Lord Grabiner is on his feet...
LG also wants the Horizon trial to be stayed
LG has confirmed PO WILL appeal the Common Issues trial.
1st :“whether the fair minded and informed observer would conclude that the tribunal is biased”
2nd “bias includes conveying the impression of any dispute that remains to be decided”
4th is a case which is to do with a case where a judge gave wrong advice and recusal should have happened stemming from the effects of the case...
I have also forgotten my laptop charger, so if everything goes quiet, you’ll know why.
LG is still listing what causes bias. There is not a spare seat in the house. Two visitors have just arrived and sat in the solicitors’ seats. Solicitors too polite to tell them to push off.
LG still listing case law on bias.
Patrick Green QC for the claimants listening to what is going on.
LG "What I have shown your Lordship is not controversial”
LG now moves on to issue of disclosure
Boom. Whilst I have been pasting this onto twitter, LG has effectively been saying as much out loud.
J asking whether cross-examination on credibility which strayed beyond Common Issues (CI) was not relevant. LG accepts it was but
LG appears to be arguing that a lot of the xe was outside of the scope of the CIs and therefore whilst it was fine to hear it in court, it shouldn’t have got into...
LG notes that claimants think it was “necessary” to inform the judgment.
1. SPMs experiences of using Horizon including SPMs ability to identify causes of shortfalls
where J makes comments about the (impeccable) credibility of lead claimant Pam Stubbs (also in court today).
LG says if in a future trial (ie breach), Pam Stubbs comes up, he the claimants would force him to...
J says you are rather ignoring the point that in the middle of par 172 "I make it quite clear that I do not speculate on any of that. Nor is it possible to know what the outcome of the trial of the Horizon Issues will be later this year."
We move on to 302: "Mrs Stockdale’s experience of running the branch was not a happy one. Unexplained shortfalls would appear on Horizon when she was completing a weekly balance or submitting a trading statement. …"
and then quotes from 309 and 311 about Mrs Stockdale’s case.
LG says in these passages J reached conclusions and made broad findings as to the...
J says - wait - Mrs Stockdale was also accused of a criminal offence during xe and there was a dispute of fact. Are you saying I was entitled to make a finding, but shouldn’t have…
LG says that is a classic Horizon issue. Not a CI.
LG so you know this is outside the remit because you say it is for future trial, yet for some reason...
This is a big ol’ list.
J asks about an internal PO email chain in which something about Horizon is stated as fact. Should he not have drawn a conclusion on that?
LG absolutely not.
LG has already said “at the risk of sounding like a stuck record” as he continues to list examples of findings he says J should not have made, which have no bearing on CI, but will have a bearing on future...
LG says the word “detailed” suggests he has already made a broad finding of fact and pre-judged the future trial.
LG says that if he was the claimants’ QC he would seize on his findings and use them in court at later trials.
We then get into a discussion where LG points out...
LG contends it does.
Talking about judge’s findings which go beyond the CI trial factual matrix.
Fits in with the other points LG was making… J made irrelevant findings...
The only real news to come out of this morning so far is that the Post Office has...
You’re not missing much, but I will post up the transcript on postofficetrial.com when I get it this evening.
We believe your Lordship’s mind is closed against the PO and a reasonable observer would conclude so.
J you mean gives the appearance of being closed or your application would be for actual bias, not apparent bias.
J don’t worry it’s just so I can be clear.
LG Describes it as “offensive"
J explains reasons for it, and asks if he should have just laid out the effect of the contract.
LG absolutely - what you said was unnecessary and prejudicial
LG says this is complete speculation.
LG says these are offensive and show a prejudiced mindset.
J says this needs to be read in context with 123. LG agrees but said his point stands. To use a phrase like...
Now on to judge’s findings about PO witnesses, where he allegedly makes implicit allegations of professional propriety. LG asks why speculate about it. Not needed and vey damaging to objective observer...
LG starts reading out J’s comments (which I rely on in my piece above) about NFSP’s lack of independence.
LG says J is adopting a “conspiracy theory” approach to evidence which is very worrying. It was not relevant.
LG takes J to case law on this.
[J has walked into LG's trap].
This is a very simple case. There is a risk of apparent bias and so you should recuse yourself and adjourn the Horizon trial.
J discussing a stay or an adjournment. Says if he recuses himself, does PO want Horizon trial to be re-heard?
LG says you can hear it and you can xe on it, but making a finding on it is irrelevant.
J asks if a hypothetical fair-minded...
LG absolutely not.
Joshua Rozenburg comes over for a chat as the court empties.
Reconvene at 2.05pm
Then I remembered I left the @5_News office in a hurry on Thursday to cover the Brexit march in Parliament Square...
Then got a cab back to the Rolls Building.
PG application wholly ignores context, makes incorrect approach to analysing apparent bias also proceeds on a misapprehension on proper judicial proceedings as they were before your lordship
J is that right?
PG now - it is an “informed” observer and to be informed you have to have been at the trial. Or may even be privy to information...
PG first off, you cannot take things out of context. you cannot refer to one paragraph or lines within a paragraph without considering adjacent ones
Also wider context it needs to be read with the judgment as a whole...
Third matter of context is issues of proceedings themselves, how matters were to be tried and how matters were presented by the parties.
Final contextual point: this is group litigation. You can’t hermetically seal them off
Evidence was served by the Post Office designed to support the factual evidence they pleaded in their constructs. Then the PO tried to strike out the lead claimants...
[there is lots of context here about legal construction. Now we are into credit - ie the credibility of the witnesses, which PG said changed during the trial]
J interrupts to say PG does not need to go through...
PG takes him to Judgment 2 (admissability judgment - postofficetrial.com/2018/10/pre-po…)
"Post Office relies on the accurate reporting by Subpostmasters of accounts, transactions and the cash and stock held at the branch."
"Post Office notes that the Claimants' case set out in paragraph 55 applies only to Section 12, Clause 12 of the SPMC. More generally, as regards shortfalls disclosed in a Subpostmaster's accounts, Post Office notes the following principles,…"
[he keeps reading out from the judgment’s factual matrix]
"losses do not arise in the ordinary course of things without fault or error on the part of Subpostmasters or their Assistants and…"
(b) Subpostmasters bear the legal burden of proving that a shortfall did not result from losses for which they were responsible. This is because…"
PG so the starting point for this is the positive point made by the PO...
It is therefore inadmissible to approach the judgment without regard to this context.
PG continues reading from AvdB’s evidence...
[up to various arguments the PO made before they were found to be incorrect during and after the trial]
PG it is important to refer to these that it is their pleaded case that these positive arguments were made by the PO and NOT abandoned...
It is completely wrong to ignore this.
Against that background LG suggested their was a quandry after J2...
We say this not true.
PG says Mr Parsons in his witness statement relies on series of interlocutory events which pass by the way events unfolded in court and how your Lordship came to a reasonable conclusion thereafter.
PG at the trial in open and closing they were still saying that was...
[bangs on about the PO’s approach]
PG credit of the witnesses was essential to the proper functioning of the CI trial and your Lordship was absolutely right to take it...
Tweetdeck chunking. Rebooting.
[PG is reading at speed...
PG draws attention to this allegation by the PO for context
PG I have never come across...
J that’s irrelevant.
PG with respect it’s not - it’s a trailblazer. I cannot find any other example where a judge is being asked to recuse himself on the basis that he is carrying out his job as he was asked to do.
PG let’s do it now
J but just to be clear I don’t consider the point of uniqueness to be relevant
[PG argues the toss a bit]
J however I assess the credit...
PG yes - we just say the applicant’s case on this basis is wrong.
PG there is no suggestion from the applicants the impugned findings are wrong, just that they are irrelevant. LG said...
[PG goes to case law- document I can’t see]
PG a case for recusal may arise where a judge has expressed himself in vituperative or intemperate terms
PG the PO’s position is that you have made unnecessary rulings on irrelevant evidence.
J raises point of jurisdiction. The judgment is made and the order is sealed. The only decision he can make about it is whether...
PG and J agree to leave the appeal of CI judgment “gloriously off-stage”.
J I don’t think “rocked up” is quite the right phrase for the process of examining a witness. [laughter] you might have "rocked up" [more laughter]...
PG makes the point that the case presented to the court and the...
[PLEASE NOTE as I have said in this thread and in all my court live-tweet threads in this litigation - I am paraphrasing and summarising what is happening in court. Nothing is a direct quote unless in “direct quotes”]
"Aside from the pervasive unreality of the challenges made to the Judgment, there are three striking features of the Application.”
"No particulars: First, there were no particulars in the Application …"
"Collateral attack: The second striking feature of the Application is that it effectively amounts to a collateral attack on the Common Issues Judgment itself”
"Own making: Finally, the complaints …"
PG we say it is demonstrably right that the informed observer should know the history of proceedings AND how a group litigation works.
[am thinking of asking for photos of people posing as our hypothetical informed observer...
PG the question is thos cases also make sure an express agency set out in a contract is not determinative of the agency that might exist.
PG the court is required to look at what happened...
[I think this is all part of PG’s argument that examples given by PO of J’s apparent bias, have to be seen within the context, legal paramaters etc of the trial and the wider litigation]
1. Nowhere does the PO say the criticisms are wrong in fact. Just irrelevant
2. They actually are relevant looked in the round.
There is also what appears to be a smaller point about whether a recusal would be desirable in the interests...
PG PO wanted a one-sided trial and didn’t get it, and now wants the court to consider the trial...
PG turns to NFSP [national federation of subpostmasters]
J they are mentioned in the NTC
PG yes and Mr Beal’s witness statement, Mrs AvdB’s statement “NFSP has publicly supported the Post Office’s view that Horizon is robust"
then in closing the assertion that NFSP not supporting action...
PG this is an application which is wrongly...
J asks if he is minded to recuse himself, what do the claimants want to see happen to the Horizon trial.
PG doesn’t know
J says draft judgment handed out on 8 March and application to recuse on 21 march - any comments?
PG just explains when he found out about it...
LG on his feet immediately discussing the delay to the recusal application. We got it on Fri 8 - oral openings for trial 2 on 11 march and then a delay before we got the...
LG well maybe but I wasn’t involved at that stage.
This is why this litigation is weird. To the claimants it's about justice, to the defendants it's about money.
LG one of the points PG came close to making is that this is a GLO and a recusal...
1. PO will appeal Common Issues judgment
2. PO board agreed to make this application (and a govt rep - civil servant - sits on the PO board) 3. 3. Judge aims to announce whether he will recuse himself on Tuesday at 2pm.