Thread by @nickwallis

Today is the 22nd and final day of the Horizon trial, second trial of the Bates v Post Office group litigation at the High Court. Anthony de Garr Robinson QC (left) for the Post Office arriving this morning. He will be making the PO's closing submissions for five hours today.

I'll be tweeting from Court 26 from 10.30am and posting up sections of the Post Office's written closing (if I get it) as the day progresses. Follow this thread for all the "action". A write-up of yesterday's closing submissions for the claimants is here: postofficetrial.com/2019/07/horizo…

There are lots of interested observers in court today - @Karlfl from @ComputerWeekly (who wrote this yesterday) computerweekly.com/news/252466111…

@Karlfl @ComputerWeekly Blogger, agitator and former Subpostmaster @Jusmasel2015 is here, he wrote this today:
problemswithpol.wordpress.com/2019/07/02/dea…

@Karlfl @ComputerWeekly @Jusmasel2015 And if I can draw your attention one more time to an article about the reliability of computers which references the Horizon trial on the Institute for Advanced Legal Studies website, I’d recommend a read: ials.blogs.sas.ac.uk/2019/06/28/rob…

@Karlfl @ComputerWeekly @Jusmasel2015 The trial had started, but there is a technical glitch. So the judge has risen for five minutes - computers, eh?

This is good as it allows me to do a tiny bit more housekeeping...

@Karlfl @ComputerWeekly @Jusmasel2015 First a warning - I am paraphrasing and describing what is being said and what is happening - NOTHING is a direct quote unless in “direct quotes”.
I post the transcript every evening on postofficetrial.com - go there for direct quotes.

@Karlfl @ComputerWeekly @Jusmasel2015 And the hashtag for this entire litigation is #postofficetrial - best to use it if you want your comment to be seen by interested parties.

We are back underway.

Anthony de Garr Robinson QC for the Post Office is on his feet. He’ll be DG, judge is J, Horizon is H the Horizon Issues are numbered - so H1 etc (read them here postofficetrial.com/2019/06/horizo…)

Subpostmasters are SPMs and the Post Office is PO.

DG is saying that Jason Coyne (IT independent expert for the claimants - JC)’s expert report was unmanageably big and both experts reports were “interminable"

DG praising the judge for encouraging the IT experts to produce joint statements. DG says this was ordered as an expert-led trial but yesterday’s submissions by the claimants gave nearly no reference to the oral evidence of JC or Richard Roll (former Fujitsu (F) employee) - RR.

DG my learned friend (Patrick Green QC for the claimants PG) did not seem to rely much on JCs report and avoided much of the joint statements.
DG PG says robustness doesn’t really mean anything which is directly contradictory to the joint statement.

DG PG also failed to acknowledge that the total number of ID’d bugs was around 40 in 20 years. 30 lasting bugs.
DG those numbers loom large in the key extent questions in the H issues. Instead he gave examples and he told little stories. He didn’t draw back and ask the question..

… where do we end up.
DG the claimants have done this exercise and have decided they would prefer your Lordship to look elsewhere. They have given you an impressionistic view with snippets.
DG this is all headline-grabbing stuff and it’s nothing to do with the H issues...

… and nothing to do with the expert-led evidence in this trial.

DG I want to focus on JC’s view on H1, 3, 4 and 6

DG in their submissions the claimants say RR was right. What they mean is that the RR in the witness statement drafted for him is right. But a very different RR...

… came through in oral evidence and much as the claimants did not reference JC’s oral evidence. They make no reference to RR’s oral evidence in their submissions either.
DG to give us an edea of how far we’ve come, could your Lordship read paragraph 7, the last sentence of par 8

… the first sentence of par 10, the last sentence of par 11 and then finally par 19. That’s a brief selection of headline -grabbing statements made by RR and your Lordship will have heard from RR and all of these claims have effectively gone and we deal with them in our closing

… submissions.
DG you’ll remember RR admitted his recollection was hazy of both the assertion Fujitsu (F) H support was under time pressure and that most of what he did was fixing errors.
DG his evidence has rather been overtaken by the KELS and PEAKS in this case which have...

…. been studied by the experts and the claimants own IT expert said there were no more than 40 bugs in 20 years.
JC also said no more than 30 occasions of relevant remote access and the chances of remote access affecting branch accounts were small. All consistent with RR’s...

… oral evidence. But there is no mention of the oral evidence in the closing submissions. They are trying to distract the court. They want to tell little stories and suggest they are emblematic of wider problems for which there is NO evidence.

DG with regard to the H issues, they say the PO is trying to re-write them. So where H1 says bugs with “potential” to cause discrepancies - as soon as a bug with “potential” is found, the court’s inquiry should stop there. This ignores the words likelihood and extent also in H1

DG critically the court is not required to stop if it finds potential. It should look further and establish likelihood through scale and perspective. Also their rejection of the term “lasting” as impermissible because it’s not in H1 is ridiculous… now - what is the difference...

… between a discrepancy and shortfall?
A shortfall is something for which an SPM is held liable. A discrepancy doesn’t matter. I don’t wish to be quoted out of context, but if a discrepancy is resolved over the course of a month it is essentially of no consequence...

… it is only when an SPM is held liable it becomes a problem, which is why the word shortfall was included in H1 as well as discrepancy.

[to avoid confusion I am PARAPHRASING DG - not quoting him - so the above tweets are not quotes!]

DG in my submission the drafters of the H issues could never have dreamed that the investigation called for by H1 could be as stunted as the claimants are now wishing to achieve.
DG let’s look at H3 - here there are two arguments being run for which there is no evidence...

… in their written openings.
DG in fact the claimants always seemed to have accepted that H is relatively robust. [quotes from opening] so they are toying with the meaning of robust in their opening and that relative robustness was accepted in their reply. That is the complete..

… opposite of what they are now saying. They are now trying to ditch their own expert whilst lauding him to the skies.
DG whether robustness has a meaning and what meaning it has is not in issue between the experts. JC says relatively robust is “performing well relative to...

… big systems”. This is a trial of generic issues. And at a generic level, absent of particular circs a set of accounts is overwhelmingly likely to be reliable.
DG it is worth noting other things JC agreed….

[Ron Warmington - MD of second sight has just tweeted "Nope... a ‘discrepancy’ is either a shortfall or a surplus and it can appear at the end of any day...

… , one of which may be at the end of a Trading Period and as such need to be made good. It seems de Garr Robinson doesn’t understand that.” @WarmingtonRjw ]

DG there is a passage of evidence from JC [which he asks the judge to read] - where he further accepted the concept of robustness was mature and the subject of study - and important concept, referred to frequently in the IT industry
DG I asked if the concept of robustness is...

… also about the concept of guardedness against errors through countermeasures and he accepted this. He accepted its possible to benchmark robustness against other systems and that H compares well.
DG transactions should happen correctly and that lasting errors should be...

… a tiny fraction of transactions.
DG so he accepts concept and definition of robustness and we submit he has sufficient information to form a view of robustness on H.
DG now onto another part of H3 in which probability comes into play - DG calls this reading of H3...

“so bold as to be impressive”.

DG their intention is to avoid their problem that with 3m branch accounts to look at - relatively speaking there were hardly any bug impacts and infinitely fewer remote access impacts. And that’s a problem for them. Their essential...

… endeavour is to suggest that there are errors that haven’t been found yet. They are trying to bend H3 to a definition was not part of the original thinking of whoever wrote them.
J I did not get involved in the drafting of H issues - I was given them and I approved them.

DG I wasn’t there then, but I think that’s correct.
J but the point is they were agreed by both parties.
DG And your Lordship should not be distracted by last minute swerves into odd definitions.
[we move on]

DG their first point is on remote access. This is a second order point. JC agreed. Yesterday PG said there is “unfettered” remote access with an “open back door” to H. This was designed as a headline grabbing metaphor. But it’s telling. It’s not an open back door onto...

… the street. It’s an open back door into a walled garden, staffed by responsible highly-trained engineers who otherwise couldn’t get in. There is no evidence of a single harmful event that happened as a result of APPSUP (unilateral access to branch accounts.)

DG these people were not burglars waiting to get in through the back door when the owners were asleep. and there is no evidence anything happened.
DG back to the stories - the claimants are trying to speak quickly and pick out sentences eg the most extraordinary reliance...

… the claimants are placing on internal PO documents from between 2010 and 2016. They seek to ignore joint expert opinion and instead use internal PO documents about upgrading and improving the system. Now if these docs were the ultimate evidence, why spend millions...

… on experts who will have a far better grasp of the system having examined it.

DG quoting line from internal PO report - IT is out of date slow and user unfriendly. If your Lordship were a journalist you’d think “oooh” sounds bad. But let’s read on. He does so “improving control environment… and business strategy” we our outside our risk appetite etc...

DG let’s go over the page - there are a critical few dependencies that drive cost base - we need to quickly rationalise and resolve legacy contracts, thin clients, reduce service levels 2 or 3 tier service...
[I think I have this doc somewhere when it came up earlier...

… in the trial]
DG still reading from it: tech sits at the top of the wider business strategy set out in our five year plan - host retailers - tech is critical to improving our offer - smaller tech solutions - driving operational benefits…
DG the first benefit ID’d is to...

… help SPMs plug in PO IT into their existing EPOS systems.
DG it IDs prolonged outages - the only problem identified in this entire paper relating to branches in this entire paper as far as I am aware.
DG still reading: there are tensions around the contract - F have a six...

… year fixed contract and no incentive to invest in more agile systems.

DG I find this hard to read with the straight face but the management-speak wants to deliver an agile elastic service.
DG it goes on: H is at the end of its life and needs replacing...

DG whilst H runs on windows software, it is a closed and inflexible system which does not allow us to compete….
DG so I ask forensically what this doc shows us about how good the H system is and its likelihood of creating false discrepancies. Nothing. it’s not about those...

… things. This is the danger of taking small snippets from documents. By relying on these sort of documents. They are hoping your Lordship will make a category error which is inconsistent with the agreement between the experts.

That entire approach is the very antithesis of what this trial is supposed to be.
This should be an analysis of the correct approach to H.
If docs like this (he waves the PO doc) do the claimants’ job why did we just spend 4 weeks at trial?

DG PG tried to suggest Dr Worden (independent IT expert for PO) that is was a bad thing he hadn’t seen these docs - that he should have been reading them rather than studying H architecture and countermeasures.
DG there’s a problem here tho...

DG JC didn’t study them either. There’s no reference to them in his reports and I was not aware these docs were going to be pulled out like a rabbit from a hat during DW’s xe. So I couldn’t ask JC about them. They are a distraction technique.
[DG moves on to bugs]
[rebooting]

[we’re back]
DG the use of the term “lasting impact” in the joint statement [between the IT experts] the number is between 12 and 29. JC has agreed this. It is a joint statement. He means “not transient” - these are bugs not caught by some countermeasure.

DG JC accepted all this in xe and the idea that he now doesn’t I don’t understand.
DG claimants note joint statement 2 DW accepts there is evidence of lasting impact in 12 of 29 bugs - so they accept the term “lasting” so we don’t understand why they say that was a compromise...

… so are they trying to go behind that agreed statement now? I don’t understand what they’re trying to do.
DG as the evidence has come out. As JC’s evidence has come out the claimants want to backtrack. It’s a good examination of what xe can achieve. My submission...

… is that points are established on both sides that wouldn’t be established elsewhere. It’s important to understand the importance of JC’s evidence on bugs. He and DW disagree on particular bugs, but let’s take JC’s views at face value...

DG he said “if you get a bug with a branch impact there will be a KEL for it” on p122 JC says he’s now reviewed between 5,000 - 6,000 KELS and later a further 1,000 with his team of the 9,500 disclosed. on p123 he says he’s found 29 bugs
and goes on to say total number...

… of bugs found in his KELS is likely to be no more than 40.
p128 JC agrees his search processes are reliable and would have found the majority of bugs. Not many more to be found if he had more time to look.
DG you will also recall it’s possible to find the impact...

… JC says he’s been able to ascertain likely impact from KELs.
DG on this side of the court we believe that there were 545 - 550 branch impacts in very round numbers - so less than 20 impacts per bug. I would ask your lordship to bear that figure in mind.
[we break for 10 mins]

DG let’s look at one of DW’s calculations [DW is in court today as he has been for most of this trial] - your Lordship will have seen this before - a calc which involves all sorts of financial impacts an detected bugs over 20 years.
DG row A is mean number of branches 1999-2017

Row B is years of H - 19 years. Total branch months 3.1m - so 3.1m sets of accounts which DW rounded down to 3m in his report. Column C is central estimate (his favoured) and D is his conservative estimate to favour the claimants.
Row F is total number of claimed shortfalls...

[which I think is £18m] Row G is how many branch accounts “occupied” by claimants - 52,000
Row L max number of KELs with impact on branch accounts. These estimates are based limited number of KELS. JC looked at 6,500 KELS. DW looked at 200 v carefully with various passes...

… described in appendix D of his first report. He’d only looked at a small proportion of KELs whereas JC had looked at more than 6,000 and done intelligent searches through 220,000 PEAKS and his opinion was that he’d found most of the bugs that are there to be found...

… and his view is that there aren’t more than 40.
That’s to compare with DW estimate of 100 (central) and 200 (conservative). I would say DW’s view has been superseded by JC’s research. I would suggest that JC's view of lasting bugs is 30 and if you put that in the column...

… the maximum possible number of bugs becomes 44 - detected and undetected - the figure would be higher with a conservative estimate but much lower than 672.

Just for the sake of illustration of 44 bugs and multiplied by 20 [not sure where this comes from]

… you’d get 880 branch impacts over 19 years.
The claimants don’t like this. They’re happy to try to discredit DW, but they like this original sum of his. Now I am sure that PG liked it because it worked out as one bug per claimant and I’m sure if you’re a journalist, you’d...

… think “crikey”, but if you look at how these bugs could cause £18.7m of shortfalls as is claimed - but for bug such as the suspense account that JC agreed was a big one which affected 18 branches to the tune of £1000 - there would have to be a further 19,000 bugs.

[I’m only catching half of this - don’t go on my maths - wait for the transcript (and ideally the docs) before looking at the maths]
DG these are just illustrations but they’re designed to give your Lordship a sense of the likelihood of a bug causing a discrepancy in...

… branch accounts. If gives us an idea of how big the scale how many bugs there would need to be in order to reach the scale claimed.

DG the complete absence of any sense of scale in the claimants case is not an answer to the horizon issues it’s an attempt to avoid them.
[we move on to remote access]

DG now reads from PO closing submissions [which I now have] quoting of the xe of JC re remote access: "Q. So you have found, as I say, a relatively small number; relative to the fact that we are talking about 3 million branch ...

… accounts over the last 20 years, all you have actually found is a very small number which is less than 20 or 30, let's call it less than 30, would you agree with that?
A. Yes.”
DG this is not a second order issue it’s a 3rd order issue.

DG tiny evidence of access, no evidence of bad actors and no evidence that mistakes were made (save the one contested one between the parties)

DG it’s a very glamourous subject - it’s discussed in emails re select committees and statements to panorama etc, but if we ignore the theatrics stage left, there’s nothing there.

DG not only is it necessary for there to be remote access, carelessness or malice, but there’d need to be a lack of awareness on the part of the SPM. It’s v important to recognise in all the PEAKS, OCPs OCRs and MSRs there is only ONE example of anyone going into an SPMs...

… branch accounts without involving him. And that was admitted in court by RR.
DG so where do we get to - if we multiplied this up with all the estimates in order to favour the likelihood is 1 or 2 in 3,000,000. Even JC accepted the chance of remote access adversely...

… affecting accounts is “reasonably small”. Yet in their answers to the H issues the claimants say there is a “material and significant” risk and they put it first in their closing. The fact they do is revealing and might suggest that’s where they think the strongest chance is.

[we move on to the claimants’ criticism of DW the PO independent IT expert]

JC’s deep focus was on bugs and he found 29 with 800+ impacts

DW looked H architecture and countermeasures - he looked at testing and then he reviewed how the countermeasures had operated during...

…. the entire life of H.
DG that was the right thing to do. H is a massive system. If you don’t start by seeing how it is configured and if you don’t delve into the support system you’re likely to get a disorganised catalogue of problems. Which is what JC did.

DG I refute the suggestion hat DW only stayed at the top - he didn’t he delved down. It was not a biased exercise, he criticised PO and F and 9 of the bugs in the joint report were found by DW - so if he hadn’t done the work, we’d only be looking at 20 bugs in all likelihood.

DG now - DW made some mistakes. He made a scaling error in his first report and dealt with the mistake by the time of the second report. He did make mistakes, but there’s no basis for saying he was biased or that his mistakes had any substantial impact on his overall conclusion.

DG the second allegation that he assumed H was working well and worked backwards from there doesn’t stand up. He assumed things in the claimants’ favour.
He was criticised for scaling. Approximations are not mistakes. The important q is what precision is needed to arrive...

… at a usefuly conclusoin and what information is available.
He did make mistakes, but all are small beer compared to the assumptions he made in the claimants favour.
DW is criticised because he didn’t consider Dalmellington bug or properly in his second. But he did.

DG they are there in the appendix to his first report [DG gives the reference] - he didn’t specifically address it in the text, but he did in the second report. Dalmellington never caused any lasting harm, it just looked like human error, but it didn’t have any representative...

… impacts.
[we move on to disclosure]
DG wrt our closing submissions -
1119. By the time the Horizon trial was ordered, it had already been ordered that there was to be no standard disclosure; and that Model C disclosure was to apply instead.

1120. In relation to Extended Disclosure generally (of which Model C is one type) 51UPD.6 para 6.5 provides that:
“...It is for the party requesting Extended Disclosure to show that what is sought is appropriate, reasonable and proportionate

1121. Model C requires focused and specific requests: i.e. it is “Request-led search-based disclosure”. (1) The court may order a party to give disclosure of particular documents or narrow classes of documents relating to a particular ….

… Issue for Disclosure, by reference to requests set out in or to be set out in Section 1B of the Disclosure Review Document or otherwise defined by the court.

… (2) If the parties cannot agree that disclosure should be given, or the disclosure to be given, pursuant to a request, then the requesting party must raise the request at the case management conference...

DG there is no requirement under model c to disclose documents which adversely affect your case. They have to be “known” documents. They therefore have to be asked for.

DG at the CMC there was no outstanding issues…

[more on disclosure from the written closing:

"Mr Coyne made his own separate requests for information and documents and it is this separate stream of requests which has given rise to many of the ...

…. complaints in the case. It is unclear to Post Office what if any involvement Freeths had in this process….

… It should have taken control of Mr Coyne and ensured that his requests aligned with the requirements of Model C. Freeths failed to do so, and instead allowed Mr Coyne to pursue these matters."

"1129. Mr Coyne’s first request was sent to the Court on 29 May 2018. Post Office responded to this on 4 June 2018 i.e. the day before the Fourth CMC. At that CMC, the Court, by paragraphs 8 and 9 of the...

… Order, ordered the experts to provide an Error Codes List and jointly to compile a list of information which either or both considered they required."

1130. This joint report was duly produced on 26 June 2018. It is a request for a huge amount of information, explanation and documentation. Dr Worden did not support the requests since his view was that his current requirements...

…. for information were already being met and that he preferred to develop his understanding further before deciding to ask “the right focused questions”.

"1131. On 20 July 2018 Mr Coyne sent an email to Freeths and WBD requesting various wide- ranging requests for documents which he wanted following an inspection of the TfS and Peak systems….

… These documents were generally Fujitsu documents and Post Office did not understand many of the requests or precisely why they were relevant to issues in the case."

DG the model C system was being used and if the claimants had a problem with what was or was not being disclosed, they could bring it to a CMC and understand the reason for the requests and review its procedures.
DG the claimants failed to pursue their claim. They sabotaged...

…. this exercise by doing nothing. The reason we are having this conversation is that PO is constantly being attacked for failing to respond to disclosure when it’s based on a fundamental misunderstanding of how disclosure works in the current system.

DG in matter of fact the claimants have had the disclosure they could expect to have. Their problem is that it is disclosed late. But the reason for that is because they did not do anything about it when they had the opportunity.

DG there is a third submission the claimants also wish to maintain a suggestion and that there’s a lack of candour from the PO as if they are trying to conceal things. NOTHING could be further from the truth.

DG the docs that have been disclosed… they’ve had KELS for more than a year. No order for PEAK disclosure has ever been made, but PEAKS were extracted and that took time there was no resistance to being given the PEAKs and as soon as they were extracted they were...

… submiited. With OCRs, OCPs and MSU - we gave them as soon as we possibly could as soon as they were requested. PO was not trying to withhold these docs. Also these docs have been helpful to the PO in that they’ve shown how few bugs there have been and how miniscule these...

…. exercises in remote access have been. There’s been no smoking gun and these documents have served no purpose other than to back up the PO case. The submission we have not been forthcoming is grotesquely unfair.

DG notes case law and asks J not to make any comments on disclosure in his ruling.
J notes his case law reference refers to a judge’s comment DURING a trial and wonders if DG is suggesting he has intervened during this trial.
DG says no - the par is simply the principle...

J well that’s rather my point - what occurred in that case is about what a judge did during a trial. That is different from this case when Mr Green raised a generic complaint.
J I’m generally unimpressed with a party complaining about not reeiveing disclosure if they haven’t ...

… made a specific application. Equally I’m always keen to identify to why there might be problems in the course of disclosure to understand why through a witness statement.
But I don’t think I have made any comments during the trial.
DG you haven’t.

[we are back after lunch - DG is going to spend 10 - 15 minutes more on disclosure]
DG I addressed your Lordship on the standards the claimants were inappropriately seeking to impose on the Post Office - I’d like to compare that with the standards the claimants imposed...

… on themselves.
DG is taking use through sections of closing statement about disclosure from the claimants’ side - "Post Office was therefore seeking to work with Cs to ensure that as far as possible all relevant disclosure for the Horizon Issues Trial ...

… had been provided by Cs so as to avoid a repeat of the late disclosure of documents close to trial which had happened in the Common Issues Trial. At the same time, in relation the Common Issues Trial, Cs provided on 6 September 2018 the fourth additional...

… round of Lead Claimant disclosure which amounted to c.1451 pages and should have been disclosed in February 2018 pursuant to the Court's Order."

"1179. On 28 September 2018, Cs served 9 witness statements, 6 of which were claimant- specific evidence from current or former SPMs (or, in one case, the son of an SPM). These included witness statements were served by Mr Latif and Mr Tank."

"1180. These exhibited seventeen documents none of which had not been previously disclosed. The disclosure list contained the documents exhibited to Cs’ witness statements and a number of other documents relating to Dalmellington...

…. , Newport and Remuneration overpayments were provided on 2 October 2018. A total of thirty new documents were disclosed by Cs."

"1181. In light of further disclosure provided by Cs, on 1 October 2018 Post Office continued to seek information from Cs on the scope of their disclosure. Post Office...

…. wrote to the Cs again on 22 October 2018, 7 November 2018, 30 November 2018 and 20 December 2018. No response was received.”
PG this is an example of the double standards they are applying to themselves and Post Office.

[DG still making points about failures of disclosure on the claimants’ side]
DG to cut a long story short the claimants refused to provide disclosure of evidence see 1198 "Cs responded to these requests on 27 March 2019 refusing to provide...

… disclosure of the requested documents on the basis that they were either outside of Cs’ control, no longer existed or were not relevant the Cs evidence and not relied upon at trial.”

DG contrast the way the PO has gone about disclosure - a lot of PO disclosure...

… has been voluntary.

DG It would be inappropriate for your Lordship to make findings about undetected bugs causing branch discrepancies based on lack of disclosure.
J it’s not in the H issues. and I’m trying the H issues
DG yes but you’re being invited to make...

… findings on all sorts of things outside of the H issues
J I will make findings on the H issues, but there will obviously be a lot of detail I will deal with beforehand. I am not going to make an individual finding on an individual case about an single bug in a branch

J and I am surprised you think I might
[DG takes him to a point in the claimants’ closing where it might be inferred he is being asked to do just that]
DG there’s an Alice in Wonderland quality to it and I am glad it isn’t going to be part of your thinking.

J makes it clear he will be addressing the evidence of the individual SPMs
DG my submission is that you should reject it. It is not dealt with by JC other than to note it is broadly in line with his findings. These snapshots are so brief as to be meaningless.

[we move on to the definition of discrepancy]
DG the claimants are saying that PO hasn’t grasped what a discrepancy is. This is not true.

[sorry - got distracted]
[we’re now looking at Bug 13 which was one of the ones brought up yesterday]
[Bug 13 is a rem out error]
DG this was a case where the SPM did not follow the correct procedure it is not a bug in withdrawn stock it is the SPM not remming out properly.

DG the office had 137 PO savings stamps and did not rem it out before the icon disappeared on H - they were physically returned and traded out. Now PG went straight to the second sentence like a magnet and said look look it must be a bug.
The SPM did not rem the stamps out.

DG it was an error by the SPM
DG phantom transactions is more complicated… these PEAKS are relied on with a view to casting doubt on a conclusion in those PEAKS. I xe’d JC on this and he had ONLY relied on the ROMEC engineer and I took him to the conclusions of Pat Carroll.

DG PG refers to the sentence “I now have pressing evidence unwanted peripheral input is occurring” etc etc but at the end Patrick Carroll notes that following a significant amount of monitoring we’ve been unable to find any problems. It’s likely user related.

DG that’s Mr Carroll’s conclusion - the onsite, experienced representative and it should not be discluded.

[we go to another PEAK on the same subject of phantom transactions]
DG reads from PEAK notes which suggests there appears to be an issue with training and support not IT. There are no phantom transactions we have been able to identify and SPM says they’ve now stopped.

J reading from PEAK: what does POM stand for?
DG I’d have to take instruction - no? No my Lord…
J don’t worry I’m going to give you a list of three letter acronyms to clear up for me
DG I look forward to that
J I’m going to give it to you both so you won’t be the only one

[DG moves on to miscellaneous matters]
DG first if I could deal with the criticism of Angela van den Bogerd (AB) over the crit by PG on the Helen Rose report which she partially accepted and which he makes a big deal of in his closing submissions
DG in AB’s WS she is not...

… saying the SPM reversed the transaction. She’s saying it happened and was part of the recovery process operating normally and that the SPM knew because he had receipts. Both are true. So the criticism is unfair.
PG sorry to interrupt she agreed it was wrong

DG no she said it was not her intention to give the impression the SPM did it himself, which is NOT what she says in her witness statement so she was right.
J alright

[still on AB]
DG in par 35 of the claimants submissions there’s a criticism AB is relying on a document which hadn’t yet come into existence. She couldn’t explain that in xe. On instruction I can do so now - during prep for xe of Mr Patny so they requested it from PO...

… that was the one which was referred to. The date on the document was the date it was released, she will have seen that data previously.
DG criticism was made of Mr Johnson for not knowing the source of a screenshot in his WS. It does not matter where that screenshot...

… came from - it matters that it was a true screenshot. It was. Mr johnson did not know where it came from but he did know it was a proper screenshot at that’s the short point.
DG another crit made of the claimants’ witnesses is of the xe of Mrs Burke. It was suggested...

… that because AB’s WS was adjusted before she went into the box allowed Mr Draper to criticise Mrs Burke on her evidence. But it was suggested it was a breach of procedure and that her actions increased the risk of a failure - that was all that was put to her. No criticism...

… was made of her nor was it put to her her actions had a causative effect on what subsequently happened. The idea a false cause was put upon her as a result of amendments to AB’s WS is wrong, unfair and I resist it.

[we are into stated difference between a financial and service audits which DG has said claimants have got wrong]

DG the claimants are faced with a series of audits from 2012 - 2017 by E&Y which are v positive about H and the controls so when they say "The control objectives and controls are selected by Fujitsu rather than the auditor” they’re trying to infer F is marking its own...

… homework and therefore they can’t be trusted. First of all there’s no basis for saying F’s tests would have no value and secondly if we look at E&Y’s statement on the matter [he reads from report which notes the auditing of F’s control objectives by E&Y in several ways]...

DG so what E&Y are saying there is that they evaluated the suitability of the control objectives and ensuring they were fit for purpose
J as I understand it F specify the control objectives and the auditors do what is specified in those paragraphs.
DG yes

DG notes claimants observation re the audits: Much of the content of these audits has been simply cut and pasted from one year to the next….

… (E.g. for control objective 10, which Dr Worden relied upon, the tables within the audits for 2013 and 2014 are identical, and likewise for 2015 and 2016.)”
DG there appears to be the intention to suggest E&Y are not doing a proper job. That’s not the case.

DG the claimants also say "The audit expressly excludes the auditor giving any opinion on application processing and application controls”
DG I don’t know what they are trying to suggest by this submission.

[we’re now into the 2011 E&Y audit and whether it says good or bad things about H]
DG your Lordship might be exhausted by the number of misc statements and this is my final one
J I’m not remotely exhausted
DG maybe it’s just me.

DG the suggestion the PO was at fault for not amending their WS in the way the claimants did with theirs is unfair.
J your way was not unconventional.
[DG ends his closing]

[we’re having a break then the judge is going to ask DG a few questions and then there will be admin re the schedule for the rest of the year which will be very useful for a number of reasons - I’d particularly like to hear what the next trial is going to be about]

J the first point I confirmed during your submissions was that H issues were agreed and drafted by the parties.
J just to be clear - insofar as where I go for a benchmark definition of robustness I intend to find it in your pleading - you define it in your pleadings...

DG I need to remind myself my lord - slightly impertinent but can we go to my pleadings
J my private screen has stopped working
DG C3 tab 3 in the bundle

DG Mr Draper is suggesting par 16 page 5 so it’s his fault if it’s wrong
- like any other IT system H is not pefect but PO position remains its extremely robust and very unlikely that an error in it could cause a discrepancy in branches.
DG is that what you’re looking for?

J short point is - experts in different places discuss robustness in different terms - and they also agree on it
DG par 16 is not a definition - a system that is robust is unlikely to cause discrepancies in branches - and the other things in that par. I would say it was what...

… JC said when I asked him about it.
J I know - can I have a reference. When one is describing robustness in specific terms what is it? I don’t want a fresh definition.
DG it may be a in a number of documents
J that’s quite in order - but robustness will be defined quite...

… early in the judgment and I know that you have a different definition to the claimants
DG I’d have to remind myself of what theirs is.
J well when I asked yesterday I don’t think I got one.
J right. that was supposed to be an easy one… okay let’s move on.

J could i have a reference to the ruling I made about the PTR re Mr Henderson and the Second Sight report as it’s not there in the transcript.
DG of course
J acronyms: RPOS, SIL, PON - what do they all mean.
DG they mean something like Retail Point of Sale...

J [cuts in] well I was tempted to guess and decided that I wouldn’t. Could I have them listed?

J Mr Green?
PG just a couple of points of clarification - DG said the “double trouble” references he hadn’t seen before there are all the submissions
PG drafting of H1 and H3...

… we were asking for caused and potentially caused and got the specific wording in this way.
PG we can’t disaggregate at this stage whether £18.7m is bugs, errors etc

PG disclosure re Aug - Dec - there are the dates
PG where DW said SSC was out of scope
PG history of KELs complaint
DG why is my friend… my submission on application processing - what was excluded from the services audit was the operation of H itself...

… but the controls were included.
DG why has my friend referred to par f? Was there a relevance?
[this is all going v quickly]
[there’s an issue re the contract between Fujitsu and PO and what submissions might be needed about it]
DG if my lord is minded to make a...

… finding on the contract I’d welcome the opportunity to make a submission.
J so if I’m going to do something material on that I will give you both the opportunity
J so as far as H issues other than the fact there’s a judgment to be written is that everything
DG my lord...

… I hope so.

[we move on to 2019]
J dates are:
23 July CMC
18 Sep CMC
17 Oct PTC
4 Nov trial starts

this seems unrealistic

PG suggests agreed between parties that trial should not happen in Nov, especially as there is a discussion about potential mediation after the second trial judgment around October...

[There is a limitation trial in the offing and a “further issues” trial in March]
[not to be bleak about this but some claimants will die before this resolves]

PO wants Nov trial delisted and relisted for 2 March. Wants 23 July CMC
J so by definition is that you want the stay lifted on that date
PO there’s discussion of a possible mediation
PG the parties solicitors have agreed the pleadings for the further issues trial be done with...

… the benefit of the Horizon judgment and it would be useful to know what the Court of Appeal are going to do. rather than trying to get everyone to agree anything now.
J I’m not going to order anything or ask you to agree anything now.

J the PTR on 17 Oct is vacated
the further issues trial date on 4 Nov has to be vacated

the further issues trial will start on 2 March

Parties to seek to agree directions for further issues trial by noon on 21 July. Failing that there will be a CMC on 23 July.
18 Sep CMC stays.

J as the managing judge has to deal with costs and parties since I last mentioned it there’s been a notification on costs from PO of £13.9m - so £1m more than when I last mentioned this.

J is that everything?
[it is. judge rises. Horizon trial ends]

Well there we go. It’s all over and everything grinds to a halt for the rest of the year.
Wheels of justice and all that.
I’m going to find out exactly what the next trial is going to be on before all the lawyers disappear… “further issues" is a bit too vague.

Sorry to disappear briefly. I have now had a chance to find out a bit more about the next trial, which won’t begin until 2 March. It is most likely going to deal with issues of limitation, concealment and quantam. The issue of limitation affects pretty much every claimant...

… who was a Subpostmaster during the Legacy Horizon years (ie pre 2010) as the first claim in this action was filed in spring 2016.

This is a huge number of claimants. The issue of concealment is connected to limitation, as if important information was withheld..

… from potential claimants within the six year statute of limitations, and that is agreed by the judge, they then have a legitimate claim. Naushad Abdulla and Pam Stubbs will be the lead claimants on the issues of limitation/concealment.

There will also be issues of quantam dealt with. This is (as I understand it and forgive me if I have got this wrong) a discussion/argument about how much can be claimed in damages for each contract breach and its effects at the time and since. Alan Bates and Liz Stockdale...

… will be the lead claimants on this issue.

Quite how all that is going to be wrapped up into one trial in March I have no idea. The advantage of choosing the lead claimants as stated is that they were four of the six lead claimants in the first trial so much of their...

… situation is known. But now the claimants have this long, depressing hiatus, which has its roots in the Post Office’s recusal application. Other interesting things which came out of today...

was that there is a window of opportunity both parties are keen to keep open for the option of mediation after the second trial judgment comes through. This is likely to be October, which is also when there will be a decision by the Court of Appeal on the first trial appeal...

… application. So both parties will have a much better idea of where they stand wrt to the way the wind is blowing across the class action as a whole.

I now have to prep for quick @bbcpointswest 2-way to mark the end of the Horizon trial so I’ll go.

I’ll write up the day on postofficetrial.com when I get a moment and I’ll post up the court transcript as soon as I get it. There will be a secret email too.

There are now likely only to be one or two court days (Case Management Conferences for the third trial) before the Horizon judgment is handed down, but I’ll keep the blog going - I’ve got a load of stories that need to see the light of day...

… if you’re in @bbcpointswest territory make sure you tune into BBC1 at 6.30pm - they’ve done an interview with Wendy Buffrey, one of the claimants done for false accounting… if you have anything of interest to tell me on the whole Post Office Horizon story...

… or indeed the Post Office itself, please get in touch. Either through twitter and I’ll follow you back, by joining the secret email list or messaging me on the secure message form on postofficetrial.com...

… all my work on this is done via crowdfunding so please donate if you can afford it and haven’t done so before… there’s a paypal tip jar on the website. Donations of £20 or more get on the secret email list - notifications of developments, gossip and blog posts on the...

… ongoing litigation.

Have a lovely evening. I’ll be writing my report with one eye on the England match tonight so it will be a little late again. Ta-ra. Nick
#postofficetrial

@threadreaderapp unroll pls