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Welcome to Court 63 of the RCJ where Lord Justice Coulson will be hearing the Post Office’s application to appeal the first trial judgment in Bates v Post Office a multimillion pound legal battle detailed here: postofficetrial.com
Live tweets follow...
… this is a very different building to the Rolls Building where the main litigation is being heard. A proper imposing neo-Gothic palace. Finding court 63, as you can imagine, was an adventure. I bumped into one of the litigation lawyer on the way in and we agreed that...
… this was a proper intimidating piles - exactly the sort of place to administer serious matters of law. Much better than the Rolls Building. But by the time we’d been upstairs, along a corridor through the Bear Garden (disappointing lack of bears) to the East Block...
… into the Masters area where we were turned round and told to go down some different stairs, outside, across the courtyard, back up the stairs to the West Wing of the East Block, by which time we were starting to think rather fondly of the Rolls Building...
… We eventually stumbled upon Court 63 and lot of robed lawyers (again, different from the litigation, which is just suits) preparing to go in.
We have begun. Lord Justice Coulson is sitting. He says he has a sore throat and won’t be talking much “which is a good thing."
[by the way everything I am paraphrasing and describing what is being said and what is happening in court. Nothing is a direct quote unless it is in “direct quotes”]
If you want to make a comment, best use #postofficetrial
PO QC is on her feet. She has until 12.30pm, then there will be lunch, then Patrick Green QC, who has already heroically dived in and switched off the thermostat as the heating was threatening to bake everyone in their wigs.
I think it’s fair to say that despite saying he wasn’t going to talk much, the judge is on feisty form, interrupting the PO QC’s introduction to tell her he has read the submissions to this appeal at least twice on many occasions three times and he does know what it’s about.
We are underway. The PO QC is taking issue with some of Fraser J’s interpretations of the Authorities (case law) in his judgment.

You can read the judgment and everything about the first trial in this handy cut-out-and-keep Common Issues Trial Menu: postofficetrial.com/2019/01/common…
If you want to read the grounds of appeal and the Subpostmaster/JFSA’s response (ie the reason we are here), you can find them in this handy cut-out-and-keep Court of Appeal Menu: postofficetrial.com/2019/08/court-…
PO QC trying to question the logical leaps she says Fraser J made in deciding the SPMR contract was relational. She believes using the principle authority (the Yam Seng case) informing the decision does not apply.

“Do we have time to look at the authorities?” asks the judge.
PO QC quite keen that we do. So we do. We are looking at Yam Seng made by Leggatt LJ. This is publicly available, but believe me, I have given you enough reading already, and I suspect we’ll be moving on swiftly.
We are - we’re on to the Globe Motors case. I’ll admit the POQC is going so quickly and dealing with some very technical points of law in reference to various authorities. And whilst I can just about understand them, trying to tweet everything being said at this speed...
… runs the risk of missing something out and being inaccurate, which is Bad Thing…

… the broad gist is that the PO do not believe there is such a thing as a relational contract into which an obligation of good faith is baked in by law. Which the POQC says was a conclusion...
… of Fraser J.

POQC says that we say Fraser J was wrong in principle. Then she has brought up what she says is a misquotation by Fraser J of another authority which leaves out a reference to relational contracts which changes the meaning of the sentence.
… and should therefore be considered by the Court of Appeal.
POQC moves on to Ground 2 of appeal in which the PO doesn’t think Fraser J’s test of what makes a relational contract is correct.

J: The judge dealt with all of this. He grappled with all the points of law in a six week trial.

PO yes but we believe there were areas where he...
… was wrong.

PO v keen to point out the term of the contract was easy to terminate which stops it being a relational contract - unlike a 25 year contract referred to in the authorities.

J long term contracts have plenty of termination clauses.
POQC says Fraser noted that the termination notices were irrelevant given the intention of both parties (when entering into a contract to run a Post Office) was for it to be a long term relationship. PO says Fraser came to this conclusion himself, rather than via the authorities
J it was the judge’s decision
POQC I am seeking to point out to this court that the way he came to this decision was unsupported. This is part of our case that our application to appeal has a real prospect of success.
J are you saying the Post Office shouldn’t have a transparency obligation?
We’re not in some dry Oxford drawing room. This is about a real contract

J it’s your submission that an obligation to transparency is onerous?

POQC when applied by the judge in this terms
[Judge’s words spoken by the judge in the last tweet were, I think it’s fair to say, dripping with incredulity]
J explaining that no one will know more about the Post Office contract going forward than Fraser J, and that the Post Office has to be careful about overlap between the grounds in their appeal [I think the inference being that any appeal is not going to be a retrial]
[sorry previous tweet should have said Subpostmaster contract]
J says he accepts that there will be overlap between the grounds, but it doesn’t necessarily assist the PO as he has to allow or not allow specific grounds which becomes harder the more he is invited to look at them in the round.
[POQC giving as good as she gets by the way.]
POQC I’m trying to show my lord, not that I’m right, because that’s for another day, but that there are reasonable grounds for appeal.
J Okay well we’ve looked points a and b…?
[I think we’re moving on]
POQC arguing about whether or not the PO accepted that they had to provide a system [ie Horizon] to SPMRs that was fit for purpose. Trying to find the exact words of what they did accept about fitness of purpose...
PO accepts the system made available may be a breach of contract if the system provided inhibited the performance of business.
J so the post office has never accepted it has to provide a system that was fit for purpose?
POQC “in an absolute sense, no my lord"
J: “well thank you, that’s very helpful.”
POQC is approaching the issue of the obligation of good faith in a way which makes it onerous to the PO in a way which is not supported by the authorities.
POQC “and we say that is where the learned judge has gone wrong in this case."
POQC we v recently received some particulars of claim setting out damages claim they seek to make so they can identify issues of quantam - it’s apparent from that they want to rely on the issues re termination to make v substantial claims.
eg Mr Abdulla is making a claim going forward to future earnings up to 2043. The suggestion being that were he not terminated he would still be in post on that date.
J you have been going half of your time and we’re only up to point 2 because you keep leaping around into other grounds. I appreciate they bleed into each other…
POQC stands her ground and takes him to where she wants to go in the judgment re termination to demonstrate her point
[we are buried in another Authority - Ilkley, Longmore LJ]

[we are still going on about good faith, fair dealing and things inferred into a contract.]
POQC The contractual right to terminate is an absolute right.
J so you can irrationally terminate a contract?
POQC that it is the right of either party to terminate irrationally, arbitrarily AND for reasonable and proper cause
POQC but the judge said the right to terminate was part of contractual discretion, which was wrong.
Since Patrick Green QC heroically turned off the heating, the temperature in this court room is rapidly dropping. Their wigs may be keeping them warm, but my typing fingers are getting cold. I am going to see if the thermostat is a thermostat or a switch over lunch and see if the
… room temperature cannot be stabilised.
J the judge worked damned hard for these parties and I’m not sure he gets much credit
POQC the answers he supplied to these questions aren’t a proper answer in law in our submission
J alright.
We are flipping forward to grounds [of appeal] 13 and 14 about suspension.
POQC judge concluded the contractual provision inferred an obligation of good faith when it comes to suspension. We say it doesn’t, the PO has a right to act in its own interests alone when it comes...
… to protecting its own stock and cash.
J querying whether PO concluded honesty = good faith.
POQC “honest cooperation my lord”
J is that not the same thing?
[a discussion about why and where implied obligations of good faith are new, and contestable]
POQC that’s why we think it’s a good case for appeal
J not sure it is.
POQC we think it is - not least the obligations Fraser J said were incidental to the obligation of good faith.
J alright
We move onto Ground 8 - termination for cause.
And we’re back into case law.
Argument over “material breach” and “repudiatory breach”

[There are some/may courtroom discussions which really don’t lend themselves to live tweeting]
Grounds 9 and 10
J Only relevant if the good faith goes?
POQC yes - in relation to termination my Lord.
We are talking about pars 925 and 926 of the Common Issues Trial judgment. Which you can read here…. judiciary.uk/wp-content/upl…
POQC says Fraser focused not on agreements between the parties, he focused on expectations.

eg 924: "It would never have been in the reasonable contemplation of the parties at the time of contracting that...
… the Post Office could, or would, give notice to a newly appointed SPM who had paid (say) £80,000 or even more to purchase branch premises, just two weeks after they were appointed.”
J "Ground 10 is a slight vague Ground of Appeal “it is not clear whether…” are you asking me to read the judge’s mind in this matter?"
Someone prompts the POQC to ask if they should have a short break to give the stenographer a break. The judge looks at the stenographer. The POQC asks the judge whether or not the stenographer wants a break
The stenographer appears to nod at the QC but also has to type the question at the same time.
The QC wonders whether they should push on through. The judge has missed the stenographer’s nod. He turns to the stenographer and asks if we should carry on, or have a break.
The stenographer does not appear to be used to being the centre of courtroom attention. There is a pause and then she whispers something to him. The judge says “Alright, we’ll rise for 5 minutes. I’ll take my Lemsip.”

He rises.
We’re back.

POQC still on her feet we’re onto Grounds 16 of the appeal. Says Fraser J is wrong in the quoting of UCTA - about the form of a type of contract and how it applies to a business.
We dive back into the authorities.

This one’s about Commerzbank.
It’s about what the business of a business is and therefore how the interpretation of that specific part of contract law should apply.
J that was all stuff the judge considered
POQC he did my lord
J and he came to an answer you didn’t like
POQC he came to an answer that
… we believe we have a reasonable case for proving that he was wrong.
J all of this is in the alternative. Some of it is in the further alternative. It’s only if good faith is out of the picture
POQC only on termination. the rest are stand alone points.
There are millions of pounds at stake in this courtroom, which is why so much of this hangs on definitions of words within context within law and occasionally reality. But it’s very dry.
We move to ground 24. Extent to which common law rules around agency and the relationship between agents and principals.
POQC and account stated by an agent is bound against them unless it can be showed to be faulty. and that if the agent misrepresents a statement of accoutns it will be held against him. Fraser says neither of the common law principles applies when it comes to an SPMR’s...
… branch trading statement (as in par 1122 of the judgment).
J so in the grounds of appeal, the reference to 1122.10 is erroneous?
POQC yes my lord, it is. It should be 12. I apologise
J no no - it’s a big judgment, misreferences are to be expected...
POQC in his reasoning my Lord - eg par 810, Fraser J said "the Branch Trading Statement did not have the status of an agreed account between agent and principal if it included disputed items.”
My Lord we accept that insofar as items had been dispited by SPMRs, the common law...
… items don’t apply. But the debate is around whether or not the undisputed accounts at the time are exempt from the common law principle.

J this is sticking SPMRs with errors that they hadn’t worked out - produced by the Horizon system
POQC [demurs] this is about the provision for this within the SPMR contract. we submit Fraser J made an error of principle was by confusing the grounds on which a branch trading statement was submitted and the CONSEQUENCES of submitted. Says Fraser J got confused between the two.
[POQC finishes. Patrick Green QC for the Subpostmasters is on his feet.]

PG - we submit not only does the judge deserves credit for the work he did on the judgment, but he deserves it for getting it right.
PG and I can demonstrate why. I’ll begin, if I may with Ground 1 par 2.

J can I just ask you, because you were there - just give me a feel for the bundles - 15, 50, 500?

PG they were electronic. But they were huge. Personally I think I had 60.

J How many witnesses?

PG 20….
PG 6 for us and 14 for them

J Thanks I just had no feel for it.

PG Okay back to G1p2 - on the grounds of automatically implying a good faith term in classifying the contracts as relational. Which they said he did in error. He didn’t.
PG he decided to use the term relational contract only in terms of those contracts which not only had relational features in the general discursive sense, but he applied it in terms of good faith.
It is of much more use. There is no error of principle and we say to this court...
… this may be of use to the court in the future.
Also he wasn’t wrong on the fact their are relational contract. He made findings of fact on what reasonable assumptions of the parties would have been and from those facts he then proceeded to determine the features of the...
… relationship of the parties and in doing that the implication of good faith was “baked in” from the outset.

So we say it’s a hopeless ground in our submission.

Third - as to the context of the good faith term...
… this is not just a matter of me adopting the question you put to POQC - in the real world what does this question mean. It went further than that. The issue as presented to the judge was very much as your Lordship guessed.
[we go to a bundle]
PG - in our opening submissions we identified the difficulty of the general woolly uncertainty of these Post Office-admitted implied terms. PO’s positions was that these were admitted where they would not say how. It got to a point where I typed this document myself and sent...
… it across to see if we couldn’t get some clarity on these terms. and your lordship’s question, to which you wanted a yes no answer. And the answer is here. NONE of them were implied terms or inferences of implied terms.
It’s not surprising that the judge, in resolving group...
… litigation (this is not a unitary claim), so the judge had to decide what the implied terms had to be in this case. It is no surprised at all that Fraser J went on to id the incidence by reference to the findings of fact he’d made about the nature of the relationship, the tech
it was carried out on and the overall business situation.

These findings are completely unimpeachable. They come from findings of fact and the application of the correct principles of law as to what good faith terms may and what he found they, indeed, were.
The suggestion that he ignored necessity is put to bed by the fact he cites the necessity test is part of it, not all of it, but if we look at par 748 of the judgment: “where the Post Office itself is in material breach…
… in respect of the matters it considers gives rise to the right to suspend, and terminate, that is important. It is this that is the necessary incident of the implied duty of good faith. It is not necessary for the Post Office not to suspend (or terminate) a SPM if the ….
…. Post Office was in material breach in respect of
different matters entirely unrelated to the ones under consideration as justifying suspension (or termination)."
We say not only did he have the rest test in mind for good faith, but that he applied them.

PG now takes us to PO skeleton argument in grounds of appeal
PG your lordship will note we go over the page… in par 9 and then 10, and then the next reference is par 712. We say the PO has fallen into error because in 711, the judge says: "I therefore consider that in this respect, the learned editors of Chitty...
… do not correctly summarise the jurisprudence in this area of the law. I consider that there is a specie of contracts, which are most usefully termed “relational contracts”, in which there is implied an...
… obligation of good faith (which is also termed “fair dealing” in some of the cases).”

PG so he is adopting a working definition of relational contract for this case.
PG the correct approach is to id as a matter of fact what was the parties expectations when they contracted - so the very passage in the skeleton is the very passage which is recited by the judge in the judgment, but it goes further than that my Lord. They refer to Mond...
… Petroluem. And they criticise the judge for leaving out the words “or a relational contract”.
Now he has adopted the idea that good faith is part of a relational contract, it would be odd if he sought to put a confusing use of the word relational into the judgment.
PG It is an unfair criticism, especially when Mond Petroleum goes on to cite Globe Motors.

PG as to “honesty”. Chitty is not consistent on this. It might be less familiar territory for those writing the commentary in Chitty….
J the equation is on p59

PG Chitty is not clear, but the cases are. Honesty is not the same as good faith. There is ZERO prospect of success on this point. Especially when my learned friend has consisted that apart from transparency we are agreed.
PG in relation to scope. The arguments on that do not recognise the way that the two implied terms in Yam Seng had been argued, found by the judge and understood.
PG a decision made by the jduge in this case is absolutely in the central channel of the authorities in this respect.
PG is that a convenient moment?

[it is! we break for lunch. 90 more minutes of PG at 2pm then the POQC has an opportunity to reply]

See you in 1 hour.
[An hour passes]
And we’re back!

PG on his feet talking about the civil law concept of good faith and the common law concept of good faith.
PG if the judge couldn’t make any findings on the basis of the evidence he heard, it would defeat the purpose of the Common Issues trial. Had the judge made findings based on subjective intentions he would have been applying the wrong test. Of course he heard evidence from...
… individuals, but he made findings in fact, based on the evidence he heard, as the parties agreed he should.

PG gives an example of this process re the judges findings on the Factual Matrix. The finding was:
"The Claimants did make long term and expensive commitments in respect of their relationship with the Post Office. The Post Office denied this was true. This denial is an example of the attritional approach of the Post Office to this litigation. This is, in my judgment...
… obviously true; Claimants who purchased property (freehold or leasehold) and who, literally, lived “above the shop” because they lived at the premises, obviously made an expensive commitment….
… Even those who did not obtain residential accommodation as part of their acquisition of any branch made long term and expensive commitments. Sensibly, this point should not have been in issue and could readily have been agreed.”

PG says this is judge looking at...
… evidence, applying the proper test and making findings of fact. As he should.

PG we move on to whether or not the judge applied necessity is a test.
PG Says Fraser J’s analysis is right and impeccable in this case. It demostrates to the court the effort he went to to define the limits of the good faith term. We go to par 749 of the judgment:

"Of the others, there are four which...
… I have found are not consequential upon the contracts being relational contracts. The first two of those are as follows.
(a) To provide adequate training and support (particularly if and when the Defendant imposed new...
… working practices or systems or required the provision of new services) (b) To provide a system which was reasonably fit for purpose, including any or adequate error repellency….
… The phrase “a system” should in my judgment, for the purposes of this judgment, be particularised as meaning the Horizon system.”

PG points out in the next par that he defines terms more precisely wrt to necessity:

"I find that these two terms are to be implied...
… , not as consequential upon the finding that the contracts are relational ones, but as part of the exercise necessary to consider whether they are necessary for business efficacy. It is perfectly possible that a party…
… acting in good faith may provide inadequate training – they might be wholly well- intentioned in doing so, and be attempting to be wholly co-operative with the venture in which...
… they are involved with the other contracting party, but objectively provide wholly deficient training.”

PG says it demostrates the correct principles being applied for business efficacy. He wasn’t looking at every contract ever written he was looking at specific...
… and unusual contract and deciding what it means for those who were contracted.
PG goes to p25 of the PO’s skeleton argument - said to relay to the relational contract point - it criticises Fraser J that he didn’t have proper regard to the express terms of the contract. But if we look at par 702 of his judgment, he says:...
"The first Common Issue is whether the agreement between a SPM and the Post Office is a relational contract. This is a term which was used by Leggatt J (as he then was)...
… in the case of Yam Seng Ptd Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB). Although I consider the law relating to that issue here, it is necessary to consider...
… the express terms before coming to a firm conclusion on the matter. This is because of what the authorities state.”

PG so he WAS considering the express terms [and then PG goes on to list exactly how and where in the judgment].
eg par 737: "It is necessary, and I have explained above, first to consider whether there are any specific express terms in the contract that prevent a duty of good faith being implied into these contracts…. I find that there are no such terms, in any of them."
PG turns to issue of discretions, of which complaint is made - Ground 5. It is perfectly correct that there is a distinction between an absolute right on one hand and a power and discretion on the other. The 2 significant things that dispose of this ground is that Fraser held...
… that on suspension it was under the good faith term.

PG on termination there was a distinction between power and absolute right as to whether it was a good faith term. PO did not argue that the good faith term was not apt to control the termination provision.
J: which termination provision
PG: Common Issue 16 as it then was - termination on notice.
J Can you stick to the grounds? It’s hard to get either of you to stay on the page. It’s one of the reasons wh this judgment was 1122 paragraphs long.
PG on ground 5 - the term that...
… was pleaded was the involvement of the involvement of the NFSP in making contractual changes, thereby meaning in those circs the PO would not have to act in good faith.
PG after the judge investigated the relationship between the PO and the NFSP and found the NFSP...
… was in the control of the Post Office, he found against the Post Office on that point.
PG the judge was construing a very unusual contract, with some very unusual terms, and a very unusual relationship between the parties. And a very unusual business. It was in construing this contract NOT contracts in general he concluded that was the construction to be put...
… upon these words. And it won’t be the same for all contracts.

[he hands up an authority]
J what does this go to?
PG the short point my lord
J [receiving the authority] well we’re certainly lacking in paperwork and authorities in this case, so I’m glad you’re making up the gap
[sarcasm klaxon goes off]
PG we say in this contract, this judge in his findings on the evidence applied the right test to come to conclusions which we say cannot sensibly construed. We say three words which might be used or note used does not help my friend
J you mean “not less than”
PG they’re a...
… prisoner to context.
It is wrong in law to reach that conclusion.
PG because the context weighed so heavily in this particular case that was more than an available view to the judge - we heard all the evidence about 26 month payments etc - weeks of evidence….
… and having heard all of that he made the conclusion that he did. And it was available to him.
“not less than” might mean something else in a different contract.

[we go to suspension]

PG the judge was construing the clause in the light of other findings.
PG he made the findings that he did of construction in terms of contractual context.

PG goes to ground 8 - material repudiatory breach of contract. There was materiality and no materiality in various elements of the contract. On the face of it it would entitle PO
to terminate a SPMR if 1p was paid one day late. Without any sense of the scope.

PG the judge was given 6 lever arch files of documents which made up the SPMR contractual obligations and none of the Post Office witnesses couldn’t explain what was in any of them.
… sorry - none of the Post Office witnesses COULD explain what was in any of them.
PG these documents were a kind of waterfall cascading into each other, some referring to documents which hadn’t existed for 20 years. The SPMR was bound by the Book of Rules, but no one could find it. It doesn’t exist.

PG this is not a usual contract. It’s not like...
… something drawn up by two firms of solicitors fighting it out.

PG the judge heard gallons of evidence about the run up to the making of this contract. He heard evidence about contractual context (ie how things happened in context) and some evidence was post-contractual...
PG ie “What Happened”
and he came to the conclusion he did.
PG you have Mr Beale one of the PO witnesses saying we “rarely” use a clause in the contract, but couldn’t give any examples either way.
[we move to Ground 14 of the Post Office’s grounds for appeal]
PG On the facts he id he reached the view that he did that specific elements of the PO contract were onerous. This was multi-factoral with reams of evidence. And you could only appeal this if he was wrong in principle
… or wrong in law, which we say it’s not.

PG the judge at par 980 says: "This judgment is unlikely to be improved by a linguistic analysis of whether...
… there is a difference between harsh, onerous, unusual and/or extraordinary (or outlandish). I prefer onerous and unusual, because that is the phrase in the majority of the cases, but the test may amount to the same whether one uses the phrase ...
… extortionate, extraordinarily harsh, or any permutation of those words. A clause imposing a literally
Draconian punishment would undoubtedly qualify under any of these words, but I doubt a clause has to be as severe as that in any event."
PG so there’s no way he could have misdirected himself.

PG it’s all about context in onerous and unusual as it states in par 982: "It is also, as stated by Henderson J (as he then was) in Carewatch at [84], “always necessary to have...
…. full regard to the context and the respective bargaining positions of the parties”. Here, the Post Office was in an extremely strong bargaining position and the incoming SPM could not bargain at all. Amendments to terms were not permitted.”
PG on liability for losses the judge deals with it on 1009 - 1010: "As I have construed the first of these clauses at Part 2 Paragraph 4.1, in the section of this judgment “The Terms of the NTC dealing with Losses” at [677] and following above...
… this clause means, on the natural meaning of the words, that as a matter of construction, the NTC imposes full liability upon a SPM for any losses to cash and stock, whether by as a result of negligence or otherwise, with the sole exception...
… being losses arising from criminal acts which could not have been prevented. In that section of the judgment, I accepted the submission of the Post Office that there is no general fault requirement for liability, and the starting point is that the...
… SPM is liable for all shortfalls, whatever the cause of the underlying loss, as long as the Post Office has demonstrated that there is an actual loss.
1010. That is, in my judgment, an onerous and ...
… unusual term. It has a very wide ambit, with potentially very serious financial implications for any SPM….
… Its effect is, absent any fault on the part of that SPM, that they may become liable for very sizeable sums with no upper limit, for something entirely out of their control.”

PG given some SPMRs would find their losses doubling every time they attempted to fix it...
… up to £2m in one instance, and they are instantly liable for it under their contract… that is onerous and unsual. Not just an available conclusion to the judge, but the only one possible.

PG uses the example of a SPMR suspended without pay unable to access anything...
… or change the business, whilst still having to pay rent, heating and other costs… etc etc again obviously onerous and unusual, which is why the judge found them so - of course it was available to him and was the only conclusion.
PG goes off on one again
J which ground is the related to again?
PG [hesitates]
J "Think of me as VAR Mr Green, spoiling your enjoyment of the afternoon."
PG [gets back on track]
We’re onto UCTA.
PG PO wants it both ways - when it suits it - it’s a business to business relationship and when it suits them its more like an employer an so UCTA doesn’t apply.
PG on any test that was satisfied on the facts.
PG my learned friend is seeking to persuade the judge that the obligations in issue which were not obligations on the Post Office. and refers to Paragon and Nash. P&N was about setting interest rates. They were set and the customer
… has to pay them. That is nothing to do with the relationship between SPMRs and the PO.
[PG has 22 more minutes then we get a reply from Helen Davies QC for the Post Office]
[PG sees to have negotiated himself until 1540]

[judge rises for 5 minutes]

[helen davies and patrick green arguing that she only had 2 hours, why should he get 2 hrs 10?]

[PG offers that he tries to finish in 2 hours 5 mins so she can reply]
PG wants to make one last point wrt to onerous and unusual and UCTA - there’s a case called Lalji v Post Office referred to by Fraser J in 2 places wrt to onerous and unusual. It was only a permission application but one feature of that decision is that the CoA were...
… proceeding on the footing that UCTA (unfair contract terms act) would apply to Mr Lalji. "I see nothing at present in the evidence which justifies the Post Office's resort to the drastic remedy of summary termination….
… As to the second, it seems to me cogently arguable that clause 19.6 of the contract, which purports to give an unfettered power to forfeit remuneration withheld during a period of suspension, falls foul of s.3(2)(b) of the Unfair Contract Terms Act 1977” [that from..
…. the Lalji judgment at the CoA]

PG makes the point therefore it’s not odd for the claimants to bring UCTA into play as the issue had come up at the CoA in a different case.
[we’re finally on to agency]

PG the PO saw the branch trading statement as the accounts being stated to the principal.
Under xe the PO witnesses accepted that in fact the statement of account INCLUDED calls to the helpline.
PG which is about as far away from sending your agent to venice to buy some silk as you can get. The SPMRs are being required to accepts accounts they don’t necessarily understand it OR may actively dispute.
PG the PO could have put a dispute button on Horizon, but chose not to.
PG the only way that accounts could be disputed was by calling the helpline. But with Pam Stubbs case, even the helpline didn’t know she was disputing them despite several conversation with them about her problems. We subsequently discovered there was no agreed way of...
… disputing accounts to the helpline, so the idea that they could be held responsible for the branch trading statement under the common law agent/principal model is ridiculous.
PG the judge found that the burden of proof of losses fell on the Post Office. Now the PO is trying to reverse that.
PG judge found that if an SPMR deliberately render an account that is wrong you are only following the rules. The PO could have raised the issue of someone...
… doing it dishonestly, but they did not. If the BTS is rendered deliberately by someone who knows it is wrong, it doesn’t make them liable under common law, and no amount incanting the word agent will make that so.
[PG sits down]

POQC stands up and says that the judge did not say he was only defining a relational contract for the purposes of this case. Or he would have said so. He didn’t. So the judge was asking whether the terms were part of the good faith obligation. Not whether...
… the good faith obligation applied as a whole.
Even if your lordship is against on 2a - that judge was using it as shorthand - in our submission it necessarily follows he should grant permission on the 10 grounds the judge says are part of the necessity test.
Bcase on that reading the good faith can’t be any broader than is necessary.
POQC the judge decided that he should deal with issues of breach
J that was part of the recusal application
POQC I’m not arguing that
J and it was piffle
POQC we are asking for your lordship to decide there if there is a realistic prospect of these terms should not have been...
… implied at all, or followed.
J I’m not sure that follows.
POQC this term as implied in the contract we say has a realistic chance of success.
J I understand.
POQC my learned friend drew your attention to par 750: "It is perfectly possible that a party acting in good faith may provide inadequate training” and we say it is perfectly possible not to investigate a shortfall where you would not be acting in the absence of good faith...
… so the same analysis is where the error creeps in.

POQC on the issue of implied limitations of good faith with regards to termination are freestanding of UCTA and Autoclenz and so we don’t have to win on all three points for the case to be accepted.
POQC my learned friend (PG) spent some time talking about the expectations of both parties with regards to termination in 3 months notice. It’s not about expectation. this does not pass the Autoclenz test. It is the actual terms of the agreement - express not implied. The judge
… here fell into error and did not look at what had ACTUALLY been agreed between the parties.

POQC Turning to grounds 11+12 - on suspension
POQC my learned friend says the PO have an unfettered right to suspend. It doesn’t it is in the terms of the contract.

POQC finally onto onerous terms. judge found the clause re responsibility for all losses absent criminal behaviour onerous. It’s not.
[it’s gone 4pm POQC begs for another minute to cover the Commerzbank issue on UCTA and business to business contract. she gets it]
POQC says that the situations applied in Commerzbank apply to this case.
J - when I thought it was in the interests of justice to deal with the issues here orally, back in September. and when today 12 November was fixed my clerk was told this was a timeslot during which a mediation was being organised.
POQC yes my lord
J has it started?
POQC 27/28 Nov
J you would like to know the result by the end of next week?
POQC my lord if that would be possible
J it may have some materiality to the mediation
POQC it can’t be ruled out
J I think that will be possible. My clerk will let the parties know if there’s a difficulty.
J but if you don’t hear from her you can assume you will get the order on the issue her by 22 November.
POQC my lord we do appreciate this.
J just from a logistical point of view I will do the reasons on a separate sheet, so whatever the result it’ll say see the reasons on a...
… separate sheet. And that is a public document. And though it will look like a judgment, it is not. It is just reasons. It will not have a citation number and therefore not a document that is capable of being cited. The parties can do what they...
… like with it providing it remains lawful.
But that is the basis on which I will produce it and I will rely on you both to keep the academics at bay.

[Does this mean we’re not going to see the reasons…?]
Had a quick chat with Patrick Green QC just before the parties disappeared. He said he expected the decision and reasons to be publicly available documents. I asked why it didn’t sound like that - would I have to request it from the parties? He wasn’t 100% sure but said he...
…. doubted it.

We’ll see.

Right that’s the first part of my work today, entirely funded by your donations. Thanks very much for reading. If you want to chuck a few quid in the tip jar, you can do so using the paypal button at postofficetrial.com
I’ll get a write up on postofficetrial.com tonight, and I’ll see if the parties will release the transcript - they’re not obliged to as the judge’s order giving me the transcripts for the litigation trials doesn’t apply here. But I would hope they will agree to my request.
Thanks for all your comments and retweets, it’s been a pretty dry day all told, but useful information did arise. The next big day will likely be the Horizon trial judgment, unless the CoA reasons come out on 22 Nov. Given mediation starts on 27 November I suspect both their...
Lordships will want to get their judgment/decision to the parties out of courtesy, even if they are not obliged to.

Bye for now.
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