for background on this trial please go to postofficetrial.com
He is on day 2 of his closing argument.
We are talking about explicit, agreed and implied terms.
With reference to the Authorities.
He points out just how much information has been handed over.
J intervenes to say it would be surprising if he were to be drawn by DC to solicitors correspondence...
DC saying that therefore the JFSA’s attempts to rely on it are weak.
J suggests it might wake everyone up.
J asks if this is DC's way of reminding him that he was involved in the case
"was I?” says DC, drily.
Judge says he’s been keeping count of the number of times the QC have told him they have been...
J what does intrinsic mean? Fact or law?
DC not sure how it is being used here.
J me neither
Just because implied terms..
DC very keen to say the SPMC is NOT a good faith contract.
And there are authorities which make it quite clear that there is no good faith, it is down to the letter of the contract.
DC footfall in their branch and the growing of their business.
DC and because after a while - things change, but the contract stays the same
QCs no objection
J okay both of you put in a note to me within 14 days. 2 sides of A4 max.
Court rises. That was hard work.
DC you have Dar and Stockdale (he is giving him the references)
DC locates a signed branch trading statement from Dar
DC that can be done.
J I’m not exploring a scenario where an SPM settles to cash in one trading period and then tries to dispute it in the next trading period.
DC you can hold a TC to the end of of a branch trading perdod, but then you’ve got to do something about it because you can’t roll over with an outstanding TC
J well some of the evidence heard at court is that by settling and raising a dispute initiates debt recovery
DC well that would be breach of contract
J when you say outside do you mean outside the accounts? Because they’re still part of them
DC yes but when you rollover, when you dispute or pay them they’re set to one side.
DC but the bar is almost a penalty
J but your argument they knew what they were getting into so no terms need to be drawn to them fails
DC my lord I accept that.
Ah. Judge [J] is here. Mr David Cavender QC [DC] for the Post Office is on his feet. I think he is going to go through the Lead Claimants now...
DC goes through what Bates signed - says whether or not he got the contract through the post doesn’t matter. He could have asked for it and he signed up to it.
J not sure that adds much other than evidential support
DC agreed but it reflects his knowledge that he has a contract.
J but you had the opportunity before even becoming an SPMR to see the incumbent’s contract
DC goes into Bates’ evidence. wants to test it again.
J that is ignoring the evidence of other documents were in that pack
DC that evidence is incredible. The two page document...
J don’t know how it happened?
J it must have come from the PO…
DC yes of course.
DC points to a letter where Mr Bates talks about the contract being huge and voluminous. He must have had that contract….
J says that doesn’t mean he had it in March the year before
J well then this goes back to the credibility of the witness which you are saying you don’t want me to make findings on
DC no quite the opposite
J rather than hold you to oral submissions on what might prove to be a careful distinction...
J wants DC to put it in writing exactly how you want me to treat the evidence.
J I don’t need to go to Yam Seng to be reminded that memory can be subjective
DC and faulty
DC Mr Sabir he has the same routine as Mr Bates in terms of contractual position...
J maybe it was the change in language you were using
J are you inviting me to impugn him or is that an observation on that basis?
DC the former
DC concludes Mr Abdulla’s evidence on the contract (that he didn’t get it) was untrue.
J well this is perhaps a reflection of an internal change of policy within the PO given there are internal documents which suggest some SPMs were not aware of their contract.
J it’s difficult to see how PO would argue the right to suspend “irrationally”
DC yes at most the decision to suspend should be reasonably based on the contract grounds
DC legitimate interests as a business
J writes that down
"there are no contractual words referring to Post Office’s own conduct, let alone to any “material breach” on its part. As a matter of ...
DC if they lose on construction and implied terms, Autoclenz is their fallback...
DC says this is unorthodox, to say the least.
In the closing: "Post Office’s business is the provision of services to customers, not the engagement of SPMs. The SPM, as agent to Post Office, is conducting transactions on its ...
No entitlement to render a substantially different contractual performance
INCORPORATION AND VALIDITY
And there you have it.
J has questions. Or does he?
J but notwithstanding unhappiness about it would be cooperative about the transfer date.
DC well that and you can take a view on how...
J no but it still comes down to the mechanism of contractual formation
DC yes in many contracts you have lots of documentation
J yes but the evidence is they were made to sign lots of documents in a rush which they couldn’t possibly read
JFSA QC on his feet to answer DC
PG says actually the docs they signed on handover day massively important - neither of the docs received before transfer day HOW SPMs were expected to account.
PG now onto NTC - and how it refers to a wider manual…
PG now onto outgoing SPMs and whether they were forced to stay on. Mr Sabir says he was “told he had to stay in post"
PG MLF conflates operating network with serving customers and operating a branch. They do both. And wrt to UCTA - there was a contractual obligation on Mr Bates re lottery terminal...
PG hands up a list of other points from earlier and the “three pieces of homework we were set” which they have done on time.
J notes for the benefit of the court "the resolution of this case is not going to depend on who has the last word.”
DC says “despite that, my Lord, may I…?” and makes an administrative point.
J says this is what I asked him for. But he will read all the points DC wants him to read.
DC says the locked audio interview of Liz Stockdale cannot be unlocked despite judge’s order. J wants a...
J has just asked for all 23 Common Issues with a short answer to each of them as to how each side WANTS him to rule on them.
J will reserve judgement he will produce it as quickly as he can but it is a lengthy job. He will try to do it some time in January.
J also sets date for CMC...
Also wants them to think about appointing a single joint expert on matters of quantam. Wants them to address their minds to who that is going to be. "I had thought it might be a forensic accountant"
J the resolving of ALL outstanding issues with the LCs - how many of the LCs you will have to decide.
DC there are no pleadings worthy of the name which we could take to trial. could the claimants actually raise what their case is…? affects disclosure etc
DC yes but Horizon trial to cater for that complicates things...
DC confirms Horizon experts reports (first round) are in.
J insofar as there were such a gap that could be addressed by the experts engaged on Horizon - a supplementary report
J looking at the outline of that it’s not impossible to achieve
J thats’ what you have to decide
DC well it may be for the court
J ultimately yes, if you can’t agree
DC yes but we can’t just pick and choose our favourite cases
J Mr C the agreement of the Common Issues, a process started by me - there was a lot of push back from the PO. The PO didn’t want a trial at all this year.
J okay in Jan this is going to be how many, ideally all 6 and if you can’t agree it is going be decided by me
DC says next trial will be 2 or 3
J 2 - 4 then
JFSA QC we think for it to be most useful in resolving the grid as a whole is 6
J well choose a number smaller then. I don’t want to be abrupt or steamroller you, but I have to get through this litigation. So you are saying 3 to 6. DC is saying 2-4
J There’s an overlap there.
J my regret is that the CMC is not
I’ve carved out a date for the starting on this on 14 Jan…. which creates a window.
[looks like judgment will appear in latter half of January. he may get it out earlier to the parties so they can prepare for the CMC
Judge wishes everyone a happy Christmas and rises.
#postofficetrial round 1 is finished.
I'll make sure I'm around to go to the case management hearing on 31 Jan