Thread by @nickwallis

Good morning. We are in a packed (busiest I’ve seen it) court 26 for the recusal hearing. The Post Office wants the judge removed from Bates v Post Office litigation. There was a CWU demo outside court. It’s all going off. Follow this thread for live tweets.
#postofficetrial

Seema Misra is in court with Jo Hamilton. Seema was sent to prison whilst pregnant in 2010. She is a former Subpostmaster at West Byfleet. Jo has a conviction for false accounting from her time as Subpostmaster at South Warnborough.
Lord Grabiner is on his feet...

“We invite your Lordship to recuse yourself from this litigation”
LG also wants the Horizon trial to be stayed
LG has confirmed PO WILL appeal the Common Issues trial.

LG turns to the bias by using reference to 4 cases.
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”
...

3rd real possibility that a judge may approach a dispute having pre-judged it
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...

PLEASE NOTE: everything I write is a paraphrase and summary of what is happening in court. NOTHING is a direct quote unless it is in “direct quotes”

I have also forgotten my laptop charger, so if everything goes quiet, you’ll know why.

The judge has changed his chair because it appears to be broken.

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.

Both LG and judge have used the phrase “old school” in reference to their bundles.

LG still listing case law on bias.

I am being sent the skeleton argument for recusal by the Post Office. I’ll try to get it on postofficetrial.com as soon as possible.

LG still listing what bias and apparent bias is. I expect we’ll get on to evidence shortly.
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

Okay I’ve got the skellies from both parties. Post Office says: "Instead of focusing exclusively on the Common Issues, Fraser J went seriously wrong in two key respects. ...

… First, he made findings or observations on a number of matters which will or might fall for decision in the Horizon or breach trials, and did so without the benefit of proper disclosure and witness evidence from both sides. …"

“… Secondly, he made a number of other findings or observations, which were both irrelevant to the Common Issues, and had no apparent purpose other than to undermine the credibility and reputation of Post Office."

And: "In addition to the specific passages referred to above, the Judgment contains many examples of criticism directed at Post Office and its witnesses. None of these criticisms were relevant to the fair disposal of the Common Issues…"

“… and some appeared to be premised on the assumption that Horizon was deeply flawed."

And under the heading “Invective”: "In other places, the Judge has attacked Post Office for reasons unconnected to the Common Issues. He says that Post Office is “answerable only to itself” (para 523) and wields its power “with a degree of impunity”…."

"In several places, he speculates as to terrible things Post Office might have done. It might have changed the terms of the NTC to make Subpostmasters liable for …"

“… Horizon’s mistakes (para 1059). It might have made submissions on the importance of objectivity because “it fears objective scrutiny of its behaviour” (para 28). It might have destroyed, or failed to preserve, evidence (para 295). It might have suppressed …"

“… material relevant to the litigation (para 483). It might have induced the NFSP to change its website in the course of the trial (para 589). There is no basis for any of these criticisms/speculations. …"

“… More importantly, they have no place in what should have been a decision focused on contractual construction."

"Similarly, the Judge criticises Post Office’s witnesses on matters unconnected to the Common Issues. He attacks Mr Breeden for his subjective view of contractual construction (para 400)…"

“… and Ms Van den Bogerd for not giving evidence on Horizon issues (para 425). He attacks Mrs Dickinson for not professing greater knowledge of the Enron scandal (para 458). None of this had any bearing on the Common Issues."

“… Taken together, the Judge’s criticisms would cement the fair-minded observer’s view that Post Office would not, or at least might not, get an impartial hearing in the ongoing and future trials."

“Occasionally the Judgment purports to be making no findings on breach or the Horizon Issues. Often that caveat does not appear. With or without the caveat, the fair-minded observer would perceive, as a matter of substance, …"

“… a risk that the Judge has prejudged matters based on incomplete evidence, disclosure and argument, and has entrenched himself in an anti-Post Office position. From the perspective of the…"

“…. fair-minded observer, there is a real possibility of bias affecting the ongoing and future trials. The only option is recusal.”

Boom. Whilst I have been pasting this onto twitter, LG has effectively been saying as much out loud.

LG (and the PO’s skeleton) also makes a clear point that the judge allowed the court or strayed himself from the narrow matter of the common issues.
J asking whether cross-examination on credibility which strayed beyond Common Issues (CI) was not relevant. LG accepts it was but

says there are issues where issues of credibility did not apply.

Oh Jesus, i have just received the claimants skeleton. Unlike the PO’s (which is 16 pages + appendices) it is 51 pages + 49 pages of appendices.

Or “annexes” as both parties seem to call them.

J and LG discussing the relevance of using cross-examination material in the CI trial to inform the judgment.
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...

… the judgment.

LG notes that claimants think it was “necessary” to inform the judgment.

LG is now listing 7 points in the judgment where the PO claims the judge demonstrated bias:

1. SPMs experiences of using Horizon including SPMs ability to identify causes of shortfalls

LG goes to par 172 of the judgment (you can read along at home judiciary.uk/wp-content/upl…)
where J makes comments about the (impeccable) credibility of lead claimant Pam Stubbs (also in court today).

LG says J’s finding on her credibility as a witness (impeccable). LG says those views went far beyond what was needed to make a finding on whether she got a contract or not.
LG says if in a future trial (ie breach), Pam Stubbs comes up, he the claimants would force him to...

… accept what he has already ruled.
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."

LG says he’s going to come to that.

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. …"

"There were no explanations for these, and there was no way available for her to get to the bottom of them either.”
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...

… claimant witnesses credibility which had nothing to do with contract formation.
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 yes

LG goes to 852: "unexplained shortfalls or discrepancies became apparent at the end of a branch trading period. It was simply not possible, on the information available to a SPM on the Horizon system…"

“… , for them to identify the day, product, and still less the time of day, that was responsible for this”

LG says that is a classic Horizon issue. Not a CI.

so the gist is LG says J went beyond his remit to make findings outside CI which the claimants will rely on in future trials. This means there is a problem in that things yet to be tried have already got settled conclusion in the judge’s mind.

LG reads from judgment "I find that in some instances, there was discussion internally at the Post Office about the altering of branch transaction data directly, and also of the Post Office and/or Fujitsu carrying out changes to Horizon and/or transaction…"

“… data which could affect branch accounts. Mrs Van den Bogerd accepted this could be done. Further detailed findings on this will be dealt with in a later trial.”
LG so you know this is outside the remit because you say it is for future trial, yet for some reason...

… you choose to make a finding on it anyway.

67% battery.

This is a big ol’ list.

LG listing areas where judge has drawn a conclusion or a finding from evidence, which was not relevant to CI trial.
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.

(on the basis that because it was Horizon it was for a later trial)

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...

… trials, before they have been properly tried. We’re onto findings about the helpline at the moment...

Par 558: "It is therefore the case that, on the evidence before me, the Helpline did not operate for the Lead Claimants in the manner that the Post Office contended for. What was presented to the court by the Post Office in respect of disputes notified to the Helpline show that..

… , for the most part, initially the SPM in these individual cases was told they would have to pay the shortfall. Even when persistent, all that would happen is the sum would be “settled centrally” and after a period of a few weeks the …"

“… SPM would be chased for the Post Office for that sum as though it were a debt. Detailed findings of fact as to this must however wait for a later trial.”
LG says the word “detailed” suggests he has already made a broad finding of fact and pre-judged the future trial.

LG what was not legitimate was to investigate a post-contractual factual investigation into events such as breach of contract, effectiveness of the helpline. Absolutely impermissible.

This hearing was requested at 4 hours. It looks like it’s easily going to take a day. I suspect judgment will be reserved.

We are no onto the 4th of the 7 points which deals with J’s finding on the PO’s behaviour.
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...

… that he doesn’t care what the cliamants’ QC does or thinks. It doesn’t matter what he thinks, and in this situation it doesn’t matter what the judge does actually think. It is an objective test. Would a reasonable person look at the judgment and conclude that there was a...

… risk of bias affecting future trials.
LG contends it does.

J when he pushes back is pushing back on the necessity to make findings on credit of the witnesses and occasionally points out that Post Office evidence included material on the helpline etc.

LG what our exchanges today I think have proved is the difficulty of maintaining a clear bright line between the issues under trial, and those which are for later trials. what you have to do is a difficult task, but we do respectfully submit you went over the line.

[Batter update - 62%: I have dipped the screen brightness, shut all irrelevant applications and am watching the battery slow its descent. It’s like when the red lighting comes on in Star Trek]

J says the PO QC made a statement on what he wanted re credit of the witnesses, and suggests that is the best starting point. LG accepts this, but says it doesn’t affect the PO’s points.

We are on a break. I am going to use this oppo to upload the skeleton arguments. Hold fast.
#postofficetrial

‘Ello. Joshua Rozenburg is here.

Okay here are the two skeletons, uploaded to Scrib’d:

Post Office: scribd.com/document/40423…

Claimants: scribd.com/document/40423…

More to read along with.
#postofficetrial

We’re back. LG on his feet. Now starting points 5 - 7 of the Post Office’s verbal reasons why the judge should recuse himself.
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...

…. to CI trial which would demonstrate to the reasonable observer that he is (or at least may be) biased when it comes to properly examining those issues at future trial.

Judge had noted the room was rather hot before the break and that he would try to find a way of making the room cooler. (he sits higher up and it is pretty hot down here). The room is getting cooler. He rules the air conditioning.

Jane Croft from the @FT is here, sitting alongside @JoshuaRozenberg. Jane is sitting next to Ron Warmington, MD of Second Sight. Seema Misra and Jo Hamilton are sitting alongside Susan Knight who was accused of false accounting by the Post Office.

@FT @JoshuaRozenberg Ms Knight was advised to plead guilty to get a better sentence, but when in the dock, she felt, as a good Christian woman, she couldn’t tell a lie, so she plead not guilty. The Post Office dropped the case. I made a film about her: …whatyouwishfornickwallis.blogspot.com/2014/12/the-on…

Also in court is Lee Castleton, the Subpostmaster who first brought the story to @ComputerWeekly back in 2008. CW’s investigation, published in 2009 was the first time this story was covered in the media.

Lee had problems with his computer system and was sacked. He took the Post Office to court and won. The Post Office took him to the High Court. Lee had no money and defended himself. He lost and is now a bankrupt.

Pam Stubbs (Lead Claimant) is in court and was shaking her head vigorously just now as LG mentions her name.

I reckon there are at least 4 people here with criminal convictions from Post Office prosecutions, and a few more who had prosecutions mounted against them. At least two have been to prison.

LG is still going through a litany of examples which he says are findings on incomplete evidence beyond the scope of the CI trial which must have an effect on the outcome of future trials.

The only real news to come out of this morning so far is that the Post Office has...

…. said for the first time it WILL appeal the Common Issues trial judgment.

You’re not missing much, but I will post up the transcript on postofficetrial.com when I get it this evening.

LG now talking about the number of paragraphs J dedicates to each lead claimant in the CI trial. There are a lot. The point I want to make is that your findings were observations you made after a v v detailed scrutiny of the claimants’ case. They are settled conclusions...

… which the other side will rely on.

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.

LG you’re absolutely right my Lord and I apologise for the error.
J don’t worry it’s just so I can be clear.

LG goes onto expression “extraordinarily serious behaviour” - says it is strong, eye-catching, prejudicial and there was no reason to make it in the context of the CI trial.

LG highlights par 1059 of the judgment: "It would be, perhaps, too cynical for even the most hardened Post Office watcher to suggest that the problems with Horizon led to changes to, and extension of,…"

“… the contractual liability of SPMs for losses that were adopted in the NTC. However, that option cannot be entirely discounted.”

LG Describes it as “offensive"

… and displaying a prejudice against the Post Office.
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 notes par 28: "The Post Office may have made these submissions because, on an objective analysis, it fears objective scrutiny of its behaviour, or it may have made them for other reasons.”

LG says this is complete speculation.

LG brings out par 123: "The case by the Post Office is that careful and/or diligent and/or honest SPMs and/or their assistants do not experience shortfalls. Therefore, so far as the Post Office is concerned, in each branch where such shortfalls occurred,…"

“… either the Claimants and/or their assistants must have at least some, and potentially all, of those characteristics. If it were otherwise, the Post Office edifice would run the risk of collapse.”

LG says these are offensive and show a prejudiced mindset.

J points out par 121: "In the Common Issues trial the Post Office cross-examined Mr Bates, and made submissions about the quality of his evidence, in robust terms, as it is entitled to do. No litigant is obliged to …"

“… accept the factual evidence against it, and is entitled to test and challenge that evidence when it is in dispute, and that is what the Post Office did. Mr Bates’ evidence that he did not receive a copy of the SPMC with the Letter of Appointment…"

“… was described as implausible, and his assertion in this respect was said to be wholly unconvincing. Because he was a details man (he had once complained of a modest under-delivery of stamps) it was said he would surely have noticed the SPMC was not in the same envelope…."

“… He was subjected to a sustained attack. Other terms used by the Post Office to describe his evidence were risible, meaningless, nonsensical and weak…"

“… It was said he was giving evidence that was plainly wrong, but had convinced himself of the truth of his own account after years of campaigning.”

J says this needs to be read in context with 123. LG agrees but said his point stands. To use a phrase like...

… edifice suggests fantastical construction and reveals a mindset.

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...

…’s impressions about future trial.s

[LG doing a very good fist of telling J what his job is. J coming back at him to justify the context in which his points were made. LG having none of it.]

LG says J comments on PO’s “house” style of evidence which was to glide away from subject matter and give a PR-friendly answer rather than the truth, and his specific criticism of the PO’s Angela van den Bogerd and Nick Beal, calling AvdB “disingenuous”.

LG first you make a generalised statement about the “house style” of the PO, which means this is how you will view all subsequent PO evidence. Mrs van den Bogerd was criticised for not giving evidence on Horizon. She didn’t need to. It was not the Horizon trial.

LG is rolling towards lunch. Brings up attacks on the NFSP which I wrote about here: postofficetrial.com/2019/04/common…
LG starts reading out J’s comments (which I rely on in my piece above) about NFSP’s lack of independence.

LG notes NFSP was not represented at the trial and says J’s comments were irrelevant, and embarked on a lengthy discussion about the NFSP and the alteration of the NFSP’s website during the course of the trial...

… notes J calls NFSP “highly suspicious”.
LG says J is adopting a “conspiracy theory” approach to evidence which is very worrying. It was not relevant.

LG says all the caveats adopted by J to say he is not making findings and saving his conclusions for a future trial are “just a mantra” and a fair-minded observer would not be convinced by these terms.
LG takes J to case law on this.

LG notes from this case law apparent bias includes a clear inescapable impression of a closed mind. Says that J cannot just point to his caveats [as he has been doing] - the court will look through the mantra and see the reality.

[J has walked into LG's trap].

LG takes him to Lord Justice Bingham ruling that a) the apparent bias should be obvious and b) if it is not, it should still be done in favour of recusal.
This is a very simple case. There is a risk of apparent bias and so you should recuse yourself and adjourn the Horizon trial.

LG finished.
J discussing a stay or an adjournment. Says if he recuses himself, does PO want Horizon trial to be re-heard?
LG yes.

There is a huge amount at stake here. It is a massive play by the Post Office - throw out two weeks of evidence, get rid of the managing judge and appeal the CI trial judgment. Effectively an attempt to get everything back to square one.

We are three years and at least £20m down the line.

J asking about findings made on the back of cross-examination of a PO witness, when the witness raised the issue in their own witness statement.
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...

… observer would, could or should take into account the number of findings for the claimants against the defendants.
LG absolutely not.

J rises
Joshua Rozenburg comes over for a chat as the court empties.

Right - I’m off to find a sandwich and a macbook air 2 chargeer.

Reconvene at 2.05pm

Wahey! We have juice.

First I went to the computer shop at the bottom end of Fetter Lane. They didn’t have one. They recommended Robert Dyas opposite. They didn’t have one. So I marched north to the Gray’s Inn Road Argos. They didn’t have one...

… but the Argos on the Strand did for £79.

£79?!

Then I remembered I left the @5_News office in a hurry on Thursday to cover the Brexit march in Parliament Square...

@5_News … and that was the last time I’d seen my charger. So I ran up Gray’s Inn Road, but couldn’t get into the building because my pass had expired. I got a temp pass, legged it up to the 5th floor and RECOVERED MY OWN CHARGER.
Then got a cab back to the Rolls Building.

@5_News Oh. The. Drama.

@5_News Anyway, here we are back in a packed court 26 for the claimants’ case on why the judge should not recuse himself.

@5_News Patrick Green QC for the claimants on his feet.

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

PG and also the reasonable person has to have been there throughout proceedings, not just reading a judgment or island hopping
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...

… not even discussed at the trial.

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...

… including the findings in favour of the Post Office.
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

and the Civil Practice Rules makes this exact provision.

PG you will be familiar with Mr Parsons’ witness statement (part of the recusal application). I’m not going to take you through them as we address them in our skellie

PG But I will say that the Common Issues (CIs) were not plucked out of thin air.

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...

only attempt to respond to the evidence laid out by the PO….

[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...

… the pleadings in detail.
PG takes him to Judgment 2 (admissability judgment - postofficetrial.com/2018/10/pre-po…)

Paragraph 40...

"Post Office was unable to monitor at first hand the transactions undertaken in branches on its behalf, in relation to which it was liable to Post Office clients. .."

“… These transactions and the manner in which they were carried out were the responsibility of the relevant Subpostmasters.”
and
"Post Office relies on the accurate reporting by Subpostmasters of accounts, transactions and the cash and stock held at the branch."

and
"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,…"

“… each of which applies to Subpostmasters:”

[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…"

" (3) it would not be right to infer or presume that a shortfall and loss was caused instead by a bug or error in Horizon.

(b) Subpostmasters bear the legal burden of proving that a shortfall did not result from losses for which they were responsible. This is because…"

" (1) the truth of the matter lies peculiarly within the knowledge of Subpostmasters as the persons with responsibility for branch operations and the conduct of transactions in branches, …"

“...(2) it would be unjust for Post Office to be required to prove allegations relating to matters that fall peculiarly within the knowledge of Subpostmasters and/or …"

“… (3) where a person is subject to a fiduciary obligation as regards his or her dealing with assets, the burden is on that person to establish the justification for his or her dealings.”

PG so the starting point for this is the positive point made by the PO...

… of the above and that is crucial context which Lord Grabiner completely ignored.

It is therefore inadmissible to approach the judgment without regard to this context.

[Okay I get it, he’s going to make the point that all the judge’s comments are entirely reasonable in the context of the initial arguments advanced by the Post Office]

PG has gone to Angela van den Bogerd’s evidence in her witness statement which is striking in its similarity to the Post Office’s pleaded case.

and notes that it is an aide to understanding various assertions made by the Post Office, including the evidence that only Subpostmasters have access to their branch accounts and only they can change it.
PG continues reading from AvdB’s evidence...

… - It would be unlikely a diligent Subpostmaster would have no idea where a material problem arose, Post Office would be unlikely to be able to find the root cause of the shortfall...

PG which follows back

[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...

… so they are crucial context as to whether the Post Office could or should have been able to take succour from AvdB evidence to advance their case.
It is completely wrong to ignore this.
Against that background LG suggested their was a quandry after J2...

… about how to play the xe.
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 goes back to AvdB’s evidence - what actually seems to be the position they wanted to strike out the claimants evidence but keep the PO witnesses to support their evidence. This was not allowed.
PG at the trial in open and closing they were still saying that was...

… the right approach. So saying your Lordship should continue to ignore the claimants evidence.

[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...

… into account.

Tweetdeck chunking. Rebooting.

PG your lordship took a view about credibility in the light that of the questions that were asked and answers given. The extraordinary contortions the Post Office have put themselves in in order to justify their position is on p80 of the annex to our skeleton submission...

… so LG was saying that someone like Mr Abdulla had not given honest evidence which is precisely what they did in their written submissions. Then the matter was sought to be cleared up because the court was not clear precisely where this dividing line was drawn...

PG - PO’s position by this stage was the court should refrain from making any findings of fact, specifically on breach or causation… conversely findings of fact will need to be made on matters going to the common issues...

… the court should look at scope on matters given in the common issues trial - whether Mr Bates was “careful” or did receive his contract etc etc etc but NOT to take account of evidence which might trespass on evidence given at future trials.
[PG is reading at speed...

… from a document submitted by the PO at the end of the CI trial to clear up what should be adduced from the cross examination including the allegation that lead claimant Naushad Abdulla lied frequently and brazenly]
PG draws attention to this allegation by the PO for context

PG so the PO’s parsed approach to bright line relevance very careful to leave in the allegation that Mr Abdulla was a liar AND issues of trying. Now LG is saying there appearance of bias because you are doing what you were asked to do.
PG I have never come across...

… a recusal like this. It’s almost unique.
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.
J okay...

… I don’t want to knock you off your stride, but I assume you’re going to get to matters of law at some point.
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...

… of any witnesses is on judgment 3 (the main one)
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...

… your Lordship’s findings against witnesses would create apparent bias in future trials. That is wrong in law and demonstrably so. And I will explain why.
[PG goes to case law- document I can’t see]

PG quotes case law: the mere fact of a judge makes adverse findings against a witness does not mean a fair-minded and informed observer would consider him biased

PG the submission I made earlier about context is underpinned throughout the authorities.
PG a case for recusal may arise where a judge has expressed himself in vituperative or intemperate terms

[sorry - PG is reading from case law that I can’t see too quickly - I’ve lost him. ah right he’s making a point that the consequence of a judge recusing himself might make the pursuit of justice less likely - because a secondary judge would have to read the first judgment...

… including the vituperative and intemperate terms and come to a similar if less well-informed conclusion]

PG the PO’s position is that you have made unnecessary rulings on irrelevant evidence.

PG it is the thread of irrelevance. This raises a very tricky point when it comes to the PO’s approach to the CI judgment evidence on appeal.
J raises point of jurisdiction. The judgment is made and the order is sealed. The only decision he can make about it is whether...

… to give lead to appeal.
PG and J agree to leave the appeal of CI judgment “gloriously off-stage”.

PG now focusing on LG’s objection to J’s language wrt to PO witness statements. A diversion begins on witnesses writing or not writing their own witness statements is acceptable. PG makes the point that when he and LG started there...

… were no witness statements - you just “rocked up” and heard what the witness had to say and then you cross-examined them.
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 takes note and apologises for his slightly clumsy language. So we are back to talking about quality of evidence in cross examination, witness statements and contradictions in positions between the two]
PG makes the point that the case presented to the court and the...

… witnesses had to be properly cross examined and the evidence as heard HAD to be properly evaluated by the judge in his judgment or he would not be doing his job properly.

We are having a 5 min break.

[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”]

Quick look at the huge skeleton from the claimants:
"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 …"

“…. or supporting witness statement.”
"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 …"

“… made by Post Office arise directly from the way in which the Post Office itself elected to plead, present and adduce evidence in support of its case.”

"In the Judgment, the Judge correctly resolved matters that were put in issue before him. He did so in the light of the evidence adduced, how it was challenged and the case advanced by the parties before him. …"

“… A party cannot be surprised when a Judge makes findings on a point, when the same party has elected to adduce evidence on that point, or to cross-examine on it."

"It does not lie in the Post Office’s mouth to complain that the Judge resolved matters that the Post Office itself elected to put in issue and contested before him, or on which it expressly invited him to make findings…"

“… – less still as a basis upon which to seek to derail the entire group litigation by alleging apparent bias."

"In short, the Post Office sought a trial in which it could not lose. It now complains that this approach was not adopted by the Court."

Okay J is back. PG is on his feet.
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...

… but I might be getting hysterical. It’s difficult to remember sometimes amid the theatre of court, that this also is a deadly serious business and a lot of peoples futures are at stake.]

PG now bringing up a case whereby a judge recused himself for bias and was sent back to try the case and there was a ruling made that a judge should not recuse him/herself too readily especially in long cases (which J accepts a group litigation is)

PG moving on “benefit of the doubt” to be given to applicant on apparent bias. PG says just because you lose a case and lose it badly you can’t say...

… hey we should get benefit of the doubt on apparent bias circumventing the carefully set out agreement on what apparent bias is.

PG what PO sought to do in some cases directly and some by a sidewind inviting the court to accept lead claimants as illustrations on a problem they relied for certain purposes in their arguments...

… when evidence helpful for the Post Office was made it was in, and when it wasn’t then your Lordship shouldn’t comment on it because it’s terribly unhelpful.

PG it’s a flawed basis for an application of this sort.

PG what is in fact important it wasn’t just contractual principles which were in issue in the CI - there were also issues of agency, it’s important on what the parties had contended to do for each other. it’s a key concession and it complicates the PO’s submissions...

…. which say the contract has to be construed in the light of the agency relationship.
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...

… the nature and the scope of the agency and how that worked in practice.
[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]

So the claimants’ two main points are:

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...

… of the litigation. ie some sort of balancing between the possibility of apparent bias and what might happen to the interests of justice were another judge to be brought in.

PG bringing up a background point about disclosure - it is wrong to proceed on a footing that there had not been disclosure given to things re Helpline and those sorts of things.

PG what PO was seeking before the court was a trial in which evidence of what happened on the ground if helpful was relevant to the trial and if not it was relevant only to breach.

PG PO wanted a one-sided trial and didn’t get it, and now wants the court to consider the trial...

… as if it had been one-sided.

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"

and notes it is in the Generic Defence. So clearly the PO put the NFSP in issue. Then we’ve got the email from the the NFSP GS: “please note a signed agreement signed with the blood of myself and Paula…”
then in closing the assertion that NFSP not supporting action...

PG - so PO still relied on involvement of NFSP as control mechanism on relevance of implied terms so it’s quite wrong for the court to be criticised for making a proper judicial assessment on the evidence before the court.
PG this is an application which is wrongly...

… premised on a misunderstanding of the correct approach. It is misconceived and without merit.

PG ends
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...

They are discussing the extraordinary application and whether it amounts to a waiver. PG says it’s for the court to decide on that tho notes the usual manner is to write a letter.

PG pointing out that no particulars were given with the last strikeout application and none with this.

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...

… instruction to make the application. It took a long time to reach a decision because it was very careful. It was made at board level of the Post Office and I had to be got up to speed from the standing start. and i was not the first barrister to look at it.

J you could have requested an adjournment for a week
LG well maybe but I wasn’t involved at that stage.

So the Post Office board gave the order to roll the dice with taxpayers money on trying to put this trial back to square one. As they have said this litigation represents an existential threat to the Post Office’s business.

So they really are betting the farm on this.

I can’t imagine it wouldn’t have been done at least with some discussion with their only shareholder - the government.

After all - the government is either going to have to pay for this legal action or pay the damages arising.

This is why this litigation is weird. To the claimants it's about justice, to the defendants it's about money.

Maybe that’s a bit simplistic. They want money, sure, but they also want their good names reinstated, apologies, recognition of what they went through and were put through etc etc

They in the last tweet being the claimants. Apols. It’s been a long day.

We’re in the wash-up now. LG is on his feet taking issue with a few bits of PG’s argument and referring to competing law or where PG has in his view omitted important elements of law.
LG one of the points PG came close to making is that this is a GLO and a recusal...

… is almost certain to fail because it is a GLO. That’s irrelevant.

LG - Also PG’s assertion that because there’s no history of this sort of recusal succeeding in this sort of situation is also irrelevant.
J agrees.

LG the key point is that everyone knew there were going to be further trials and matters in the first trial would impact on key issues or matters in later trials and so care in the first judgment was absolutely vital to ensure it wouldn’t impact in later cases.

LG finishes on saying that yes the NFSP was mentioned in the first trial but that does not justify the explicit conclusion J came to and shows apparent bias.

J is summarising the application. He will reserve judgment - written reserve judgment number 4. Won’t be this week. So it will NOT be handed down before 9 April at 2pm. But parties will be notified on Monday that it will be Tuesday at 2pm or a different time.

Other matters will need to be dealt with on the day depending on whether he recuses himself or not.

Judge rises.

That concludes today’s hearing. Headlines:
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.

You’ll get the transcript on postofficetrial.com when I get it and a full report on the same website tonight.

Thanks for reading and thanks for all the retweets and mentions!

#postofficetrial

@threadreaderapp unroll pls