Thread by @nickwallis

Okay here we go. Refusal by the Court of Appeal to allow an appeal by the Post Office to get Justice Fraser kicked off the group litigation Bates and others v Post Office, known on twitter as #postofficetrial Thread.

"permission to appeal against Judgment 4 [the recusal judgment] is refused. I set out the reasons for that conclusion in greater detail than usual only because of the volume and nature of the criticisms which have been made...

… , and the importance of the group litigation to both parties. I do not do so because of the merits of the application itself, which in my view is without substance.”
Ouch.
This decision is made by Lord Justice Coulson, btw...

He goes on: "there is force in the
submissions.. that the PO’s strike-out application [which was rejected] arose because the PO wished to adduce extensive factual evidence in their
favour, but objected to any evidence to the contrary from the SPMs [Subpostmasters]...

… As they put it, “the Post Office wanted the case decided all one way”. There remains a distinct favour of that approach within the recusal application."

"What matters for the purposes of
any recusal application is whether, when looking at Judgment 3 [the Common Issues trial judgment] as a whole, a fair-minded observer would conclude that...

… there was a real possibility that, to the extent that he made such findings, the judge was biased in so doing. That is a very different thing and, as explained in greater detail below, the PO has not come close to demonstrating it in this case."

"As the judge explained... the PO is now having to argue that the
outcome of the sub-trial was irrelevant to the recusal application, and that what mattered were individual sentences, scattered through Judgment 3...

… which they say amount to a demonstration of apparent bias. The judge thought that was a misconceived approach. So do I."

"The judge said in a number of different places in Judgment 4
that many of the phrases or sentences upon which the recusal application is based are taken wholly out of context by the PO. I agree with that conclusion."

"This is particularly egregious where, as happens repeatedly, the sentence before or the sentence after the phrase/sentence relied on makes clear that, for
example, it is not a finding of fact, or it is an observation based on the PO’s own evidence."

"The fair-minded observer would only consider whether the
passages relied on gave rise to a real possibility that the judge was biased by considering those passages in full and in context. That is what being “fair-minded'’ requires...

…. I consider that the recusal application and the appeal ignore this basic principle and are fatally flawed in consequence."

"the PO’s application is based on a total disregard of what it actually said and did before and during the Common Issues sub-trial...

“… the PO’s skeleton argument, in keeping with the oral
arguments made to the judge, endeavour to present the sub-trial as a clearly-defined, simple set of issues concerned with the construction of contract terms,
where factual disputes were few and far between...

“... On any view of the papers,
that is a significant misrepresentation, not only of the issues themselves, but
also of the way in which the PO itself ran its case before the judge. It raised factual disputes at every turn."

I don’t think I can go through this paragraph by paragraph as it’s getting late and I want to write a blog post, but here are a few choice adjectives which appear next:

"For the PO now to say - as they do - that actually all of this was irrelevant, and that the judge demonstrated apparent bias by dealing with and making findings upon those matters which the PO itself had put in issue, is an untenable position to adopt."

"it is perhaps helpful ... to demonstrate that the PO's
appeal is without substance...

"For the PO now to complain about the making of findings on these issues, which arose out of the way which they themselves put their case, is absurd."

"The mere fact that in a lengthy
judgment, the judge may have strayed beyond the strict scope of a particular issue, out of thousands in dispute, is, in one sense, neither here nor there. It is quite capable of correction at any subsequent sub-trial."

"Paragraphs 89-119 of the PO's skeleton do at least endeavour to address some of the points made in Judgment 4 [the recusal refusal judgment]. But these paragraphs are based on at least three false premises:..

… 1) that this was a sub-trial limited to issues of pure
construction (as explained above, it emphatically was not);
2) that issues of factual matrix, credit and agency did not require findings of fact (that was a
matter for the judge and he decided that they did) ; and...

“… 3) that the PO’s case at
the sub-trial was very different to the one which it actually advanced (the rewriting point). In my view, these paragraphs are not a proper basis for an appeal, let alone a recusal application."

"For all these reasons, I consider that the pre-judgment argument is without substance and has no realistic prospect of success.”

Oh wait. There’s more.

“I have already dealt with the complaint that the judge described the PO’s case
on some of the lead claimants as “confused” which was an entirely accurate summary, the consequences of which the judge dealt with in a way that was
generous to the PO."

"As noted above, it is unnecessary to decide the waiver point, given that, for the reasons I have given, the substantive appeal has no prospect of success...

… However, it would be wrong to leave this application for permission to appeal
without dealing with the timing and manner in which the recusal application was made."

"The judge learned of the recusal application by accident just before the afternoon session of the last day of the factual evidence on the Horizon Issues trial...

… This was at best discourteous; at worst, it betrayed a singular lack of openness on the part of the PO and their advisors."

“… the scattergun way in [sic] the original application was made, now
mirrored in the way that this appeal has been pursued, can be seen in the continually changing nature of the PO’s arguments."

“It is a great pity that the recusal application and this application
for permission to appeal have had the effect of delaying the conclusion of the
critical Horizon sub-trial….

… Indeed, the mere making of these applications could
have led to the collapse of that sub-trial altogether. Although I can reach no concluded view on the matter, I can at least understand why the SPMs originally submitted on 21 March that that was its purpose."

ENDS

@threadreaderapp unroll pls

And that’s yer lot. I’m going to try to put this into a blog post, but it’s very late, I’m very tired, and I have to be up early tomorrow morning.

#postofficetrial

Blog post now rit and Appeal application decision now uploaded. Tuck in:

postofficetrial.com/2019/05/j-fras…

#postofficetrial