THE POST OFFICE GROUP LITIGATION

Claim No. HQ16X01238, HQ17X02637

& HQ17X04248

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

BEFORE: The Hon. Mr Justice Fraser

B E T W E E N:-

ALAN BATES & OTHERS

Claimants / Respondents

– and –

POST OFFICE LIMITED

Defendant / Applicant

APPLICANT’S SKELETON ARGUMENT

The following pre-reading is suggested:

1. Applicant’s skeleton argument

2. Respondents’ skeleton argument

Estimated reading time: 2 hrs

Bundle references are in the form [Bundle/Tab/Page(s)]

1
This application

1. Post Office applies for an Order that the Hon. Mr Justice Fraser should recuse himself
as the Managing Judge of the Post Office Group Litigation. In that context, Post
Office also seeks an adjournment of the current Horizon Issues Trial.

2. The Court is familiar with the background, and for that reason this skeleton argument
is narrowly focused on the subject matter of this application.

Background

3. As a result of the case management process, this litigation has been broken up into
separate trials, namely:

(a) the trial of the Common Issues, heard in November 2018 and for which
judgment has been given (Judgment No.3);1

(b) the trial of the Horizon Issues, focused on the operation and effectiveness of
Horizon IT system provided by Post Office and used by the Claimants. This
trial is part-heard and currently adjourned; and

(c) further trials dealing with limitation, breach, causation, loss and damage and
various other issues, for which purpose at least two more trials will be needed,
with trials currently listed for November 2019 and March 2020.

4. The Common Issues are defined in para 1 of the Order of 27 October 2017, as “issues
relating to the legal relationship between the parties”.2 At pre-trial hearings on 2 and
22 February 2018, Fraser J accurately and concisely described the Common Issues as
dealing with “the contractual relations”,3 and as “purely points of construction”.4
There are 23 Common Issues, which are conveniently listed in para 45 of Judgment
No. 3.5

1
{B7/29}
2
{B9.3/2/1}
3
P.24H: {B9.3/2/61}
4
P.9D: {B9.3/2/85}
5
{B7/29/15}

2
 5. Evidence was ordered by reference to the Common Issues: see para 10 of the Order of
27 October 2017.6

6. As to disclosure, at the hearing of 22 February 2018, Fraser J approached disclosure

on the basis that the Claimants had to make clear whether and how the material
sought was relevant to the Common Issues:

The reason I asked that question, Mr. Cavender, and I want to be completely
clear with you because it might help, is it seemed to me that some of these
could not possibly be said to go to the Common Issues trial, which is why I
wanted Mr. Green to tell me if he was seeking in this schedule for Common
Issues or for some other purpose. That demarcation seems to me sometimes to
be blurred.7

7. Fraser J then rejected the Claimants’ argument, in respect of a number of disclosure

requests, that the material sought was relevant to the Common Issues. See, for
example:

(a) Requests B, C and D (minutes of management meetings to discuss variations

of postmasters’ contracts, minutes of meetings in which the operations and
effect of section 12, clause 12 of the standard contract was considered or
discussed; and standard guidance, rules or instructions to managers/contract
advisors regarding the operation and effect of section 12, clause 12 of the
standard contract).8

(b) Request E (minutes of meetings between Post Office and Fujitsu at which
known or suspected bugs, errors or defects were considered or discussed).9

(c) Request O (instructions to Helplines for dealing with queries about

shortfalls).10

6
{B9.3/2/5}
7
P.17A: {B9.3/2/93}
8
P.26B: {B9.3/2/102}
9
P.28A: {B9.3/2/104}
10
P.47E to p.48G: {B9.3/2/123-124}

3
 8. In advance of the Common Issues trial, it became apparent to Post Office that,
notwithstanding the case management decision to have separate trials, the Claimants
intended to adduce and rely on facts and matters which were not relevant to the
Common Issues trial, but which would or might become relevant in one or other of
the later trials. This included matters which were not common knowledge and/or
which were post-contractual.

9. Post Office expressed its concerns on this issue at pre-trial interlocutory hearings on
19 October 2017, 2 and 22 February, and 5 June 2018. Annexed hereto, as Schedule
1, are the key extracts from the transcripts of those hearings. In short, Post Office
pointed out that the case to be put forward by the Claimants would trespass into the
territory of the later trials. As appears from the transcripts, Fraser J took the point, and
made it clear that the forthcoming trial should be concerned only with the Common
Issues. At the 5 June hearing, Fraser J anticipated that Post Office might apply to
strike out the irrelevant passages from the Claimants’ witness statements, or
alternatively would refrain from cross-examining on the irrelevant issues raised in
those witness statements.

10. In the event, Post Office applied in September 2018 to strike out numerous passages
from the Claimants’ witness statements on the grounds of irrelevance. That
application was heard in October, but was dismissed by Fraser J. The dismissal was
accompanied by astringent criticism of Post Office for having made the application,
notwithstanding the points which had been made by Fraser J at the 5 June hearing.
Nevertheless, Fraser J reiterated the importance of not making findings on Horizon or
breach issues at the Common Issues trial, and said that there was “no such risk”.11

11. In Post Office’s written opening for the trial, in oral opening argument, in written
closings and in oral closing argument, Counsel for Post Office repeatedly expressed
the concern that the Court should be exclusively concerned with the Common Issues,
and should not be beguiled into making findings or commenting upon matters which
were irrelevant to the Common Issues trial, but which were relevant, or potentially
relevant, to one or other of the future trials. For ease of reference, the key extracts
from those submissions are annexed as Schedule 2.

11
Paragraph 52: {B7/27/19}.

4
 12. In the course of the trial, the approach adopted by Counsel for the Claimants was to
cross-examine Post Office’s witnesses by reference to the irrelevant materials. The
possibility that the Claimants would approach the trial in this way had been
anticipated by Post Office, which was a key reason why the application to strike out
was made in the first place. In his judgment of 17 October 2018, rejecting Post
Office’s strike out application, Fraser J said, at paragraph 53:

Finally, the defendant submits — and submitted before at the hearing of

19 September 2018 — that without striking out this evidence, the trial of
the Common Issues would simply become unmanageable, and cross-
examination would be constantly interrupted by regular repetitive
objections by Leading Counsel for the defendant on the same grounds,
again and again. I find that submission surprising. It is not possible to
rule on objections to questions in cross-examination in advance, just as it
was not possible for the court to deal with striking out passages in
evidence before those witness statements were served. These submissions
by the defendant could, on an uncharitable view, appear to be made
almost as vague threats to disrupt the Common Issues trial. Any
objections to questioning will be dealt with as and when they arise, on
their merits. All the parties are professionally represented and I expect
them to observe this ruling, unless it were to be overturned. However,
should I in the fullness of time make findings on the Common Issues by
taking into account matters irrelevant in law (and hence inadmissible) on
some of those Common Issues, there is a remedy available.12

13. Mindful of these observations of Fraser J, and respecting the fact that the strike out
application had been dismissed, Counsel for Post Office refrained from intervening in
cross-examinations, but the fact is that throughout the trial the clear lines of
demarcation between the subject matter of the different trials were ignored by the
Claimants.

14. Post Office maintained its objection to the admissibility and relevance of this
material, and conducted limited cross-examination on these irrelevant matters to try to
prevent the Judge from getting a misleading impression. However, Post Office

12
{B7/27/29}

5
 maintained its objections throughout, and went out of its way not to seek findings
on any such material.

15. Post Office’s core concern was accurately summarised by Fraser J in paras 51 and 52
of his strike out judgment:

51 The fifth point relied upon by the defendant is that the court should
not make findings on the matters included in the evidence, in particular
(but not limited to) matters of breach alleged against the defendant by
individual claimants.

52 It is worth expanding on this point made by the defendant, which is

relied upon in favour of allowing this application. It is that as a result of
admitting this evidence (by which the defendant means failing to find it
inadmissible and striking it out) the court will either find itself asked, or
will make, findings on matters that are in reality to be dealt with in the
Horizon Issues trial, or in the later trials that are to deal with specific
breach, loss and damage alleged by the individual Lead Claimants. I do
not accept that there is such a risk. The trial that is about to commence on
5 November 2018 is to deal with the Common Issues. Those Common
Issues number 1 to 23. They are attached to Schedule 1 of the Directions
Order of 19 November 2017. They are the agenda for that trial. There is
no such risk of the court making findings on the Horizon Issues, or of the
court making findings on breach. Judges are expected to be able to
consider relevant matters pertaining to different issues, keeping them
compartmentalised where necessary. What is relevant for one issue may
not be relevant to another. A trial of this nature is not similar to a trial
before a jury, where the risk of prejudice sometimes outweighs what
might be called issues of strict admissibility (or probative value). Even
jury trials admit evidence — for example admissions by co-defendants —
where the jury will be directed that such evidence is admissible for certain
limited purposes, but is not to be taken into account for others. I consider
this point to be an exceptionally weak one. The court will not find itself

6
 making findings almost by accident, which is what the defendant came
perilously close to submitting.13

The Judgment

16. The final form of the Judgment in the Common Issues trial was handed down on 15
March 2019. In the respects explained below, the Judgment confirmed Post Office’s
worst fears as to what would happen in the event that inadmissible and irrelevant
evidence was allowed to be adduced and argued about in the course of the trial.

17. 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.

18. By reference to the pre-trial case management arrangements, the Common Issues
judgment should have been confined to the matters listed at (a) to (d) below:

(a) Issues as to contractual construction/ implication (Issues 1 to 4, 8, 9 and 14 to 23);

(b) Mixed issues of construction and common law, as to whether and, if so, to what
extent agency principles apply to SPMs and/or Post Office (Issues 10 to 13).

(c) Issues as to the status of various terms, i.e. whether they are onerous and unusual
and/ or invalid under the Unfair Contract Terms Act (Issues 5 and 7).

(d) If and insofar as any terms are found to be onerous and unusual, what steps Post
Office needed to take to bring them to Subpostmasters’ attention (Issue 6).

19. Instead, in the paragraphs of the Judgment identified below, the Court made findings
or observations as to:

(a) Subpostmasters’ experiences of using Horizon and the functionality of Horizon.

See, in particular, paras 172, 217, 219, 302, 309-311, 569, 819, 824, 852.

13
{B7/27/19}

7
 (b) Post Office’s alleged knowledge of problems with Horizon. See, in particular,
paras 541, 543, 1115.

(c) The quality and operation of the Helpline. See, in particular, paras 248-249, 303,
328, 357, 556, 558.

(d) The quality of Post Office investigations into shortfalls. See, in particular, paras
115, 165, 208, 217(2), 223, 557.

(e) The ways in which Post Office allegedly harassed Subpostmasters. See, in
particular, paras 222, 327, 462, 569, 723(1), 723(4).

(f) How Post Office behaved when suspending or terminating Subpostmasters. See,
in particular, paras 20, 263-264, 402-403, 479-480, 514-517, 519, 723(2).

(g) The adequacy of training. See, in particular, paras 104-105, 142, 193, 246-247,
297, 346, 352, 437, 569, 955.

20. 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.14 Specifically, in
the paragraphs of the Judgment identified below, the Court made findings or
observations as to:

(a) Whether Post Office mistreated SPMs. See, in particular, paras 117, 523, 724,
1059, 1111.

(b) Criticisms of Post Office’s behaviour in this litigation. See, in particular, paras
21, 28, 30, 34, 123, 295, 393-394, 476, 483, 532, 560, 561.

(c) Attacks on Post Office’s witnesses, for misleading the Court and/or not dealing
with irrelevant material. See, in particular, paras 375, 400, 425, 544.

(d) Attacks on the NFSP and Post Office’s relationship with it. See, in particular,
paras 368-370, 576-577, 589.

21. At the hearing of this application, reference will be made to the paragraphs of the
Judgment set out above.

14
See, for example, para 545: {B7/29/172}.

8
Legal test for apparent bias

22. The legal test for apparent bias is well-established. It is whether “the fair-minded and
informed observer, having considered the facts, would conclude that there was a real
possibility that the tribunal was biased” (Porter v Magill, per Lord Hope).15

23. Bias includes giving the impression of having pre-judged any issue. In Otkritie
International Investment Management Ltd v Urumov Longmore LJ said that “The
concept of bias includes any personal interest in the case or friendship with the
participants, but extends further to any real possibility that a judge would approach a
case with a closed mind or, indeed, with anything other than an objective view; a real
possibility in other words that he might in some way have “pre-judged” the case.”16

24. In the recent Privy Council decision of Stubbs v The Queen, Lord Lloyd-Jones
considered the implications of a judge’s prior involvement in a case. He said that,
whilst prior involvement will not necessarily give rise to apparent bias, it will do so
where it “is such as might suggest to a fair-minded and informed observer that the
judge's mind is closed in some respect relevant to the decision which must now be
made.”17 He stressed that it “is not acceptable for a judge to form, or to give the
impression of having formed, a concluded view on an issue prior to hearing full
argument by all parties on the point”.18

25. The fair-minded and informed observer is assumed to assess bias as a matter of
substance, not form. In Amjad v Steadman-Byrne a judge called in counsel before
he had heard all of the evidence, and told them that he believed the claimants’
evidence. He also made other comments indicating his current views. Following his
judgment in favour of the claimants, the defendant appealed on the basis of bias. The
respondents said, as per a note taken of the conversation by their counsel, that the
judge had described his comments as a mere “indication of his thoughts”. They relied
on this as countering any indication of pre-judgment. Sedley LJ dismissed that
argument, saying:

15
[2002] 2 AC 357, at paragraph 103: Authorities/8 {B9.5/8}.
16
[2014] EWCA Civ 1315, at paragraph 1: Authorities/26 {B9.5/25}. On the facts of that case, there was no
indication of pre-judgment: see paragraph 33.
17
[2018] 3 WLR 1638, at paragraph 16: Authorities/30 {B9.5/29}.
18
At paragraph 17: Authorities/30 {B9.5/29}.

9
 We are entirely content to accept that whether the district judge said it or not,
it is what he was seeking to do. The question remains whether the thoughts he
communicated were nevertheless such as to suggest to a reasonable observer
that his mind was all but closed against the defendant.19

26. The Court upheld the complaint of apparent bias.

27. A similar point arose in Lanes Group Plc v Galliford Try Infrastructure
Limited.20 Lanes argued that an adjudicator had pre-judged his conclusions, and
thereby shown bias, in a document he circulated titled “Preliminary Views and
Findings of Fact”. In that document, the adjudicator said that:

(a) He was circulating the document “to assist me in my examination of the issues
referred to me, in my ascertainment of the facts and the law and in order to allow
the Parties the opportunity to make further submissions on the issues”.

(b) The views and findings enclosed “are a step in making my Decision and I am not
bound by them”.

(c) “The statements “I find”, “I find and hold” and “Decision” and other similar
statements are not and not intended to be decisions of the adjudicator but
preliminary views and findings of fact preparatory to the decision.”

28. Judge Waksman QC (as he then was) at first instance, and Jackson LJ in the Court of
Appeal, both analysed the substance of the document. Neither of them said that the
words of qualification automatically meant that the document did not prejudge the
relevant issues. Judge Waksman QC said that, despite the words of qualification, the
“overriding impression” was “of a decision already made”. 21 Conversely, Jackson LJ
thought that “the fair minded observer…would characterise the Preliminary View as a
provisional view, disclosed for the assistance of the parties, not as a final
determination”.22 More generally, he said:

19
[2007] 1 WLR 2484, at paragraph 12: Authorities/14 {B9.5/13}.
20
First instance: [2011] EWHC 1679 (TCC): Authorities/20 {B9.5/19}. Appeal: [2012] 1 CLC 129:
Authorities/21 {B9.5/20}.
21
At paragraph 73: Authorities/20 {B9.5/19}.
22
Paragraph 57: Authorities/21 {B9.5/20}.

10
 There is nothing objectionable in a judge setting out his or her provisional
view at an early stage of proceedings, so that the parties have an opportunity
to correct any errors in the judge's thinking or to concentrate on matters which
appear to be influencing the judge. Of course, it is unacceptable if the judge
reaches a final decision before he is in possession of all relevant evidence and
arguments which the parties wish to put before him. There is, however, a clear
distinction between (a) reaching a final decision prematurely and (b) reaching
a provisional view which is disclosed for the assistance of the parties.23

29. Consideration of whether a judge has reached premature concluded views is not
limited to looking at his verbal formulae. It is a question of substance, to be decided,
objectively, by reference to the view of the fair-minded observer.

30. Finally, and insofar as relevant, in Locabail (UK) Ltd v Bayfield Lord Bingham
stressed that “if in any case there is real ground for doubt, that doubt should be
resolved in favour of recusal”.24

Application to these facts

31. This is a clear case.

Prejudging

32. As set out above, the Judge has made findings, or given clear indications of his
concluded views, on a large number of matters which are outside the scope of the
Common Issues trial. Many of those findings and indications relate to matters which
fall to be decided at the Horizon Issues trial, or at future breach trials. The Judge has
given the appearance of prejudging those matters.

33. We have set out above the broad headings, and the specific paragraphs, to which Post
Office will refer in detail at the hearing of this application. Post Office’s case will be
apparent from looking at those paragraphs.

34. Subpostmasters’ experiences of Horizon and its functionality fall squarely within
the Horizon Issues. Those experiences cannot be relevant to construing the contractual

23
Paragraph 56: Authorities/21 {B9.5/20}.
24
[2000] QB 451, at paragraph 25: Authorities/7 {B9.5/7}.

11
 relationship. As Fraser J explained (Hearing of 2 February 2018, p.16E to p.18A25),
even a “smoking gun memo”, proving all the allegations about Horizon to be true,
would “not…affect…the proper construction of the relationship in contract between
sub-postmasters and Post Office.”

35. Fraser J found that there was “no way available for [Mrs Stockdale] to get to the
bottom” of her shortfalls (para 302), and that “the Horizon system did not allow” Mr
Bates to investigate shortfalls (para 824). More broadly, he found that the “whole
issue with the information available to an SPM on Horizon is that they could not
identify discrepancies or shortfalls, or understand the basis on which TCs with which
they disagreed were issued” (para 819), and that Horizon “limited the Claimants’
ability to access, identify, obtain and reconcile transaction records” (para 569, point
50) and “limited the Claimants’ ability to investigate apparent shortfalls, particularly
as to the underlying cause thereof” (para 569, point 51). It cannot be expected that
Fraser J will revisit these findings in the light of full evidence and disclosure. Nor did
he give any indication that he expected to do so.

36. Whether Post Office employees knew about alleged problems with Horizon might
be relevant to the Claimants’ allegations of deliberate concealment (key to the
limitation questions scheduled to be tried in November) or deceit. But Post Office’s
internal knowledge would not be common knowledge. It therefore is not relevant
matrix. As Fraser J pointed out at the hearing on 22 February 2018, at p.9E: “the only
factual matrix which is relevant to construe the meaning of those contracts in law is
common knowledge”.26 The Judgment prematurely reached conclusions on this
breach issue.

37. The functioning of the Helpline is post-contractual. It cannot be relevant matrix.

Fraser J made that point at the 22 February 2018 hearing, saying, at p.47H to p.48A,
that “What in fact then happened, if any of the claimants phone the help line, goes to
breach, does it not?...Either what happened or what should have happened is not
relevant to construing the Common Issues.”27 Nonetheless, the Judgment made a
number of findings, both on the quality of service provided by the Helpline, and on

25
{B9.3/2/53-55}
26
{B9.3/2/85}
27
{B9.3/2/123-124}

12
 how it functioned within the overall disputes and accounting process. As to the
former, Fraser J found, for example, that Mr Abdulla “could rarely get through to the
Helpline”, and “could not resolve” shortfalls through the Helpline (paras 248-249).

38. As to the latter, he said that, although it was common ground that once a shortfall was
disputed with the Helpline it should not be pursued until the dispute was resolved,
“the Helpline did not operate for the Lead Claimants in the manner that the Post
Office contended for” (para 558). It is suggested (para 55) that findings on the
Helpline were necessary to resolve the Common Issue as to the status of the Branch
Trading Statement. That cannot be right. The status of the Branch Trading Statement
is a mixed question of contractual interpretation and common law. It must be
answered as at the time that the relevant contract was entered into.

39. The status of any individual Branch Trading Statement would depend on the facts. If a
dispute has been effectively registered via the Helpline, Post Office would accept that
it could not rely on the Branch Trading Statement to the extent of that dispute. If a
Subpostmaster tried but was unable to register a dispute via the Helpline, that might
prevent Post Office from relying on the Branch Trading Statement to the extent of the
dispute, if it could be shown that through fault on the part of Post Office the Helpline
was not working.

40. That factual investigation is entirely distinct from the matters which were to be
investigated in the Common Issues trial. The contractual and common law position as
to the Branch Trading Statement and the Helpline falls to be analysed as at the time of
contracting. It is not permissible to look at evidence of alleged breaches of contract,
for example as to the effectiveness of the Helpline, to ‘improve’ or clarify the factual
matrix.

41. It is harder still to see how the quality of Post Office’s investigations into shortfalls
could be relevant matrix. These, by definition, can only have occurred after Claimants
had entered into contracts, begun operating their branches, and encountered shortfalls.
Nonetheless, the Judgment condemns an investigation into Mrs Stubbs’ shortfall as
“not, in my judgment, an investigation under any normal understanding of meaning of
that word in society generally” (para 165). It also attacks Post Office for not giving
Subpostmasters information which allegedly could have helped them to investigate
shortfalls.

13
 42. There are also findings and observations on Post Office’s pursuit of debts and
threats of legal action. For example, the Judgment found as part of the matrix, at
para 569, that Post Office sought to recover shortfalls whether or not they had been
disputed. At para 222, the Judge said that Post Office misinformed Subpostmasters as
to the scope of their liability, and threatened legal action against them, in order “to
lead the recipients to believe that they had absolutely no option but to pay the sums
demanded” (para 222). This was described as “oppressive behaviour” for which there
was “no excuse”. None of this is relevant matrix. It is highly relevant to the
Claimants’ breach allegations, particularly as to the tort of harassment.

43. The extent to which Post Office’s contractual rights to suspend and terminate
Subpostmasters are restricted were Common Issues. How Post Office behaved when
suspending and terminating Subpostmasters was not a Common Issue, although it
will be important in future breach trials. Nonetheless, the Judgment criticises the
criteria used in the termination process (for example, at para 403) and reaches
conclusions on whether the bases for particular terminations were sound (see para
723(2)).

44. Finally, the adequacy of post-contractual training cannot be relevant matrix.

Nonetheless, the Judgment accepts the Lead Claimants’ evidence of the training they
received (for example, para 193) and criticises trainers for “observing rather than
training”, for leaving early (both para 193), and for not covering balancing in detail
(para 246). It also specifically finds as matrix, at para 569, that “even when further
training was specifically requested it was not provided.” A striking passage, at para
955, reads:

One feature which seemed to me to be wholly absent from the training courses
run by the Post Office for the Lead Claimants was any sort of assessment or
test of competence at the end of the training… This situation is in no-one's
interests, and in my judgment I would go further and say it is contrary to
business logic… I do not consider that it would be difficult for any training to
include at the end of it some sort of assessment or test28

28
{B7/29/270}

14
 45. The Court will have to assess, at future breach trials, whether the training received
was adequate. The Judge appears to have already reached very firm conclusions.

Invective

46. 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” (para 724).

47. 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.

48. 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)29 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.

49. 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.

Conclusion

50. 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

29
This is notwithstanding that Mr Breeden’s view coincided with the Claimants’ pleaded case on the
construction of section 12, 12 of the SPMC and para. 4.1 of the NTC.

15
 fair-minded observer, there is a real possibility of bias affecting the ongoing and
future trials.

51. The only option is recusal.

LORD GRABINER QC

DAVID CAVENDER QC

GIDEON COHEN

STEPHANIE WOOD

1 April 2019

16
 SCHEDULE 1: KEY EXTRACTS FROM TRANSCRIPTS

(All emphases added)

Hearing of 19 October 2017

Page 12A-F:30

MR. GREEN: Well, my Lord, the only thing is that in fact the relevance of
the evidence here is to give the court the context in which to construe and
determine the contractual questions and to provide evidence so that the
court is not doing the exercise in a vacuum. I think both parties recognise that
may be helpful and important. Now, we propose that there be an agreed
statement of facts which is the second point I was coming to. The first point is a
smaller number in the pool, the second point is an agreed statement of facts and
the third point is that our intention in relation to witness evidence is only to
address in witness evidence matters which have not been capable of agreement in
the agreed statement of facts. So what we have proposed is aimed at confining
the scope of evidence given by confining the pool and the number of lead
claimants, confining the scope of disagreement by having the agreed statement
of facts and witness evidence only being admissible on matters which are not
reflected in the agreed statement of facts and which are directly relevant to the
determination of the issues. Now, my Lord, just because the court hears
evidence from Mrs. Miggins that “x” happens does not mean that the court needs
to determine finally whether “x” did happen but the court is perfectly able to
determine these issues on a footing informed by such findings as the court finds
it necessary to make in relation to any of those disputed facts which we think
will be a secondary category of evidence.

So I accept that there’s a theoretical risk but I do regard it at the moment as a

secondary if not tertiary issue because of the way we’ve sought to structure the
approach and because these are largely purely questions of either contractual
interpretation simpliciter or contractual interpretation in a context which at
least is largely common ground.

30
{B8.2/3/4}

17
Page 14D-F:31

MR. DE GARR ROBINSON: That’s probably my fault. Probably, I was going

too fast and I was taking my learned friend and your Lordship out of turn. What
I was trying to convey was the importance of the subsequent processes and, in
particular, the importance of a CMC at which a review can be taken of the facts
that have been alleged in the relevant pleadings and of the attempts, whether
successful or not, of the parties to agree a schedule of facts which then can be
used as a basis for the trial. If it turns out the parties because of various reasons
agree a set of facts but it becomes clear that they then want to adduce lots more
evidence on all sorts of what we would characterise as breach type issues, my
Lord, that would be----

MR. JUSTICE FRASER: If they go to breach and breach isn’t mentioned in

sch.1 it wouldn’t be relevant evidence anyway. So this is wrong.

Hearing of 2 February 2018

Page 5C to page 6A:32

MR. JUSTICE FRASER: I am glad you have thought about it, because I can tell
you that vacating March 2019, the chances of that happening are extraordinarily
slim, verging on zero. We will come do that when we come to future case
management. At the moment you have your existential dispute on the scope of
disclosure arising out of scope matrix of facts necessary for the revision of the
common issues this year, which are contractual. We will deal with that first.

MR. GREEN: I am grateful.

MR. JUSTICE FRASER: Can I summarise what I understand the position to be?

MR. GREEN: Yes.

MR. JUSTICE FRASER: Mr. de Garr Robinson and, indeed, Mr. Cavender
are adopting a conventional, he was and Mr. Cavender is adopting a

31
{B8.2/3/5}
32
{B9.3/2/42-43}

18
 conventional approach as set out in the authorities, which Mr. Cavender has
helpfully reminded me of, such as Arnold v Britton, et cetera, which is the
extent to which factual matters can or should be taken into account or are
even admissible on the construction of the contractual provisions.

MR. GREEN: Indeed.

MR. JUSTICE FRASER: When this discussion/dispute arose at the last CMC,
you addressed me shortly on why there was the need for factual evidence at all on
the common issues, which you effectively said it is to put the contractual
relations in context. I am giving you a shorthand, but that is more or less
what it is.

At that point Post Office were saying that they were very worried, because until
they saw your witness statements they did not know the scope to which you were
perhaps going outside the envelope with that admissibility to include an
enormous amount of factual matters which simply will not be relevant or will not
need to or, indeed, ought to be considered when I deal with common issues in
November.

MR. GREEN: Indeed.

Page 16E to page 18A:33

MR. JUSTICE FRASER: But as far as resolving as a matter of law what the
construction of the contract is, let us say there is a smoking gun memo.

MR. GREEN: Let us assume that hypothetically.

MR. JUSTICE FRASER: It was obviously a hypothetical suggestion. Let us say

there is a smoking gun memo which sets out in terms internally at Post Office that
all of the averments you made about Horizon in your pleading are in fact made
out.

MR. GREEN: Indeed.

33
{B9.3/2/53-55}

19
MR. JUSTICE FRASER: How will that help you on the construction of the
contract as a matter of law?

MR. GREEN: Can I finesse your Lordship's example and then answer?

MR. JUSTICE FRASER: Yes.

MR. GREEN: The memo says that there is a significant number of errors thrown
up by Horizon, although it is a tiny number of the overall transactions as a
whole -- which is our case too -- postmasters have no idea about this and are
basically unable to get the documentation. If we were to introduce the sort of
reporting function on Horizon that Mr. Bates, claimant number 1, asked for in
correspondence repeatedly in very courteous letters that Master Fontaine saw, if
we were to do that they would be able to find out its our fault. The idea that your
Lordship is going to approach the question of justice on the burden of proof ----

MR. JUSTICE FRASER: No, no.

MR. GREEN: ---- in the same way without of without that ----

MR. JUSTICE FRASER: Mr. Green, all of this is going to be done with justice
very much at the front of everyone's mind. But looking at the common issues,
your point about the memo, which you have explained in a bit more detail, is
not going to affect, is it, the proper construction of the relationship in
contract between sub-postmasters and Post Office. If it is, if you are going to
tell me it is as a matter of contract to do that, could you explain to me how?

MR. GREEN: The answer is yes and yes, it is, and I will explain. Leave aside
arguments for a moment.

MR. JUSTICE FRASER: I am not talking about each party's cases. I am talking
about the exercise of construing the contractual relationship. Because your
case is that it is a contract that falls into that particular exceptional category.

MR. GREEN: Yes. If your Lordship is against us, for example, on the (unclear),
for example, it is not a relational contract, and we are going to get some clarity
from the defendants on this shortly.

20
 MR. JUSTICE FRASER: That is the main point, in a way the common issues
are refinements of what really is the main general point which is what was
the nature of the relationship.

MR. GREEN: Precisely. Your Lordship is absolutely right about that and
I do not shrink from saying that. Indeed, it is impossible for the claimant to
win on all the common issues because they are effectively alternatives. If there
are implied terms which render something that might otherwise have been
expressly unfair, fair, for the purposes of UPTA(?), then we automatically lose on
UPTA. If they are there are no such terms, then we may have a better chance on
UPTA. Your Lordship is absolutely right, the fundamental question is what is the
relationship between the parties. But the idea that the factual matrix before the
court to determine that important question in this case should be deprived of the
eloquence of a measure of generic reality as to what was going on, in addition to
the fact of six cases, in our submission is unrealistic.

Page 34B-E:34

MR. GREEN: What I can absolutely see is an achievable and effective trial of
the Horizon issues, either perhaps in the early autumn of next year or the late
summer of next year.

MR. JUSTICE FRASER: Why not March? There are in this case three main
rafts of dispute, there is the contractual relations, there is the operation of
Horizon and there is the impact of that on the individuals.

MR. GREEN: Exactly.

MR. JUSTICE FRASER: The first of those three main areas is being tackled in
the autumn of this year. Horizon is going to have to be tackled, because
regardless of the outcome in either party's favour on contractual relations
there is a fundamental difference between them on that point.

34
{B9.3/2/71}

21
Hearing of 22 February 2018

Page 9B to page 10F:35

MR. GREEN: … If your Lordship is going to be asked to take into account in

construing a contract, a common fact known to both sides, that it was very
difficult for the Post Office to know what causes shortfalls, when in fact the Post
Office knew exactly how it could do that and the Post Office did not share that
factual knowledge, that would be wrong.

MR. JUSTICE FRASER: Mr. Green, by definition it is not common

knowledge.

MR. GREEN: Precisely.

MR. JUSTICE FRASER: This is, with respect, rather off the point for this
reason. I thought I made this crystal clear last time but I appear not to have
done so I am going to repeat myself, so far as resolving the Common Issues
which are, and I have reminded myself what they are, purely points of
construction.

MR. GREEN: Indeed.

MR. JUSTICE FRASER: On the authorities the only factual matrix which is
relevant to construe the meaning of those contracts in law is common
knowledge. That is without doubt orthodox and the correct way of doing it.

MR. GREEN: No doubt about it.

MR. JUSTICE FRASER: That does not mean, and I think the expression I used
in the transcript two weeks go, but the expression I used perhaps over
dramatically was a smoking gun, that does not mean that smoking gun-type
documents are not disclosable because I have the ability to order documents of
that nature, whether they are going to be relevant to the point of
construction or not. I also thought I made it clear that they had to be
narrowly focused requests and the existing requests were far too wide.

MR. GREEN: Indeed.

35
{B9.3/2/85-86}

22
 MR. JUSTICE FRASER: I have your point about the orthodox factual
matrix. Mr. Cavender, to be fair to him, explained this very clearly on the
last occasion. We did not go into the authorities but I thought I made it
clear that his approach on construction was indeed correct.

MR. GREEN: Well, my Lord, yes ----

MR. JUSTICE FRASER: We are not arguing the point now for decision.

MR. GREEN: No, we are not argue the point now for decision; that is quite
right. I just wanted to highlight specifically the question, I mean, this is the
precise example that my learned friend relies on.

MR. JUSTICE FRASER: But it does not matter.

MR. GREEN: As to which a lot of our requests go.

MR. JUSTICE FRASER: Mr. Green, it does not matter for this reason. You
might have a good case for an order for disclosure of certain documents anyway,
whether they go to Common Issues or not.

MR. GREEN: Of course.

MR. JUSTICE FRASER: But that does not at this point and it might be when
we go through the tendentious task of looking at your requests, that some of
them are disclosable anyway, whether they are going to Common Issues or not.

MR. GREEN: Indeed.

MR. JUSTICE FRASER: I might choose to order them.

MR. GREEN: Indeed.

MR. JUSTICE FRASER: However, on the last occasion as I understand it, as I

recall it and as I remind myself of it, I made myself clear that Model C was being
ordered and further requests would have to be narrowly focused.

Page 26B-C:36

MR. JUSTICE FRASER: I do not consider these items to be relevant to the

Common Issues trial. Even if they were it seems to me, this is no criticism of
36
{B9.3/2/102}

23
 you Mr. Green because you do not know what they are called, but the term
management meetings or the term within a very large organisation such as Post
Office management is simply too vague.

Page 46C-G:37

MR. GREEN: Yes. I am trying to short circuit it simply, my Lord, by saying

that we would obviously need something that captures, well, the difficulty is that
we do not know what they call their documents, whether they call them
directives, instructions and I understand the difficulty with the word
"instructions" but the documents that instruct or the policies or procedures
instructing the help lines about who to deal with shortfalls including those two
items, because this is a narrow one. It is the mirror of m which we have just
dealt with but within that specific category we have spelt out two particular
things that we want to make sure are covered to be helpful, but that is not
because the category is wide.

MR. JUSTICE FRASER: The operation of the escalation process and

effectively the manual to the people at the help line; is that right?

MR. GREEN: Exactly that. There are two specific points. I think we are
perfectly content to limit it as we did with m to whatever we come up with for
instructions but does not use the word, on those two points. We are obviously
not including emails about it.

MR. JUSTICE FRASER: Understood.

MR. CAVENDER: My Lord, if I can reply on that.

MR. JUSTICE FRASER: You do not need to. This relates to paragraph 61 of
the defence which does not arise in the Common Issues at all so I am not
going to give disclosure of category.

Page 47B to page 48G:38

MR. JUSTICE FRASER: Mr. Green, please! Show me in relation to which

Common Issues paragraph 61 of the defence is identified.
37
{B9.3/2/122}
38
{B9.3/2/123-124}

24
MR. GREEN: I was going to do something different, my Lord.

MR. JUSTICE FRASER: Maybe you will in a minute but first of all show me
where paragraph 61 is in the Common Issues. Paragraph 61 of the defence, is it
there? It might be that I have missed it.

MR. GREEN: It is not identified.

MR. JUSTICE FRASER: Thank you.

MR. GREEN: It is not identified as defining an issue.

MR. JUSTICE FRASER: Right.

MR. GREEN: My Lord, the concern is that there are two parts to that one that
we were asking for. The part that is defined by reference to paragraph 61 of the
generic defence is only the bit in green. The other bit is the mirror of the one
you have ordered on m.

MR. JUSTICE FRASER: No, but it is about the help line.

MR. GREEN: Yes.

MR. JUSTICE FRASER: I do not see that it is a mirror.

MR. GREEN: It is quite difficult to see how your Lordship can construe the
things that the defendant has raised on the pleadings without the information
about what they are told to tell them.

MR. JUSTICE FRASER: Not that I need to explain in any great detail because
we have spent two hours on disclosure, the instructions that I have given to the
Postmaster in terms of dealing with and disputing a shortfall within category m
because that comes from the training. What in fact then happened, if any of
the claimants phone the help line, goes to breach, does it not?

MR. GREEN: My Lord, we are not asking for what happened, we are just
asking ----

MR. JUSTICE FRASER: Okay, how those calls ----

MR. GREEN: ---- what should have happened.

25
MR. JUSTICE FRASER: Either what happened or what should have
happened is not relevant to construing the Common Issues.

MR. GREEN: It is probably me, my Lord.

MR. JUSTICE FRASER: I think it is you.

MR. GREEN: But it may not be so I am going to make the submission and you
can tell me if it is me. If we order category n, category n is network wide
instructions to Post Office trainers and how to train a Postmaster to deal with a
shortfall. So that is what they are told, generally this is what you should do.
Then the corollary of that ----

MR. JUSTICE FRASER: Why do you think that is relevant to Common Issues?

MR. GREEN: Your Lordship has just ordered it.

MR. JUSTICE FRASER: (a) because I have ordered it and (b) because it is
common knowledge because the Post Office know what the trainers are
supposed to do and because, in theory, that is what the Subpostmasters or branch
post officers are told. So, it is common knowledge. It is therefore directly
relevant to construing the contract.

MR. GREEN: That is the second half of 46.

MR. JUSTICE FRASER: No, incorrect. That is what actually happens in

fact if there is a shortfall. It goes to breach.

MR. GREEN: My Lord, the existence for an apparent shortfall is not anything to
did with breach necessarily. My learned friend seeks to conflate before your
Lordship two different points with respect and that was his submission to your
Lordship which led to this. If I have it wrong I apologise.

MR. JUSTICE FRASER: Right, Mr. Green, you can argue for as long as you
like. This arises from paragraph 61 of the defence which does not arise at
all on the Common Issues, I have now said that three times, please do not
waste any more time about it. I am not ordering it.

26
Hearing of 5 June 2018

Page 57E to page 59E:39

MR. JUSTICE FRASER: No, let me deal with it on that basis. Whatever the
factual evidence upon which you seek to rely it has to be relevant to the
Common Issues.

MR. GREEN: Correct.

MR. JUSTICE FRASER: If it is not relevant to the Common Issues it is not

admissible.

MR. GREEN: Absolutely right, there is no dispute, to uncertainty about

that.

MR. JUSTICE FRASER: In those circumstances it is difficult based on

reading the authorities to see for example, to use Mr. Cavender's example,
how evidence of breach could remotely be relevant to the Common Issues
Trial.

MR. GREEN: We have at some length sought to explain that in correspondence.

MR. JUSTICE FRASER: Would you like to explain it to me?

MR. GREEN: Certainly.

MR. JUSTICE FRASER: Perhaps not at some length but just relatively
succinctly.

MR. GREEN: The characterization of matters being matters that go to breach is

the defendant's characterisation of those matters.

MR. JUSTICE FRASER: I do not understand that submission for a moment I

am afraid simply as a matter of English.

MR. GREEN: Someone says, "I was provided with this training which I
found inadequate and it did not help me do X", let us assume that is going to
be the evidence. Now, my learned friend says that is evidence that goes to
breach, but that is wrong analytically.

39
{B9.3/2/271-273}

27
MR. JUSTICE FRASER: Show me which Common Issues it would go to.

MR. GREEN: May I take it in stages?

MR. JUSTICE FRASER: Yes.

MR. GREEN: The first point is that on Common Issues number 1, relational
contract the court has to decide that by looking at the nature of the contract.

MR. JUSTICE FRASER: Correct.

MR. GREEN: As in fact it worked in practice to see whether or not it was a

contract which requires the parties ----

MR. JUSTICE FRASER: I do not think one looks at the nature of the
contract as it worked in practice. One looks at the nature of the relationship
between the parties to the contract to see if the necessary ingredients, or if
there are any new ones which have not yet been subject to authority.
Whatever the necessary ingredients are for a relational contract are, print
or not.

MR. GREEN: Correct. Then we reformulate it to say, was the contract one
which in practice required the fair dealing and good faith requirement et cetera in
the ----

MR. JUSTICE FRASER: That does not require breach.

MR. GREEN: No, but, my Lord, my learned friend has captured the language,
we say, quite wrongly. There are two points, contractual orthodoxy from which
we do not depart at all. The first point is that when you are looking at the
construction of a contract you look only at the evidence as it was when the
parties contracted. We are not going to invite your Lordship to look at any
evidence after the parties contracted to construe the agreement that they
entered into on that date.

MR. JUSTICE FRASER: Good, because that would be inadmissible.

MR. GREEN: Of course. I am trying to clear the ground where the dispute is.

MR. JUSTICE FRASER: By definition the breach must happen after the
contract ----

28
 MR. GREEN: Of course, we are not talking about ----

MR. JUSTICE FRASER: My question to you was predicated specifically by

reference to breach.

MR. GREEN: Breach assumes one has identified what the legal obligation is
first which we have not even done, that is what the Common Issues Trial is
about. My learned friend's characterisation is speculative.

MR. JUSTICE FRASER: I will tell what you I am going to do about this
because I am have grave difficulty in following it, but it is also undoubtedly the
case that there are bear traps left, right and centre in my attempting to identify in
advance ----

MR. GREEN: Precisely.

MR. JUSTICE FRASER: ---- when you can and cannot do in your evidence. So
this is what I am going to do. I am going to express myself very clearly. If you
serve evidence of fact which includes passages which are plainly not relevant
and, hence, not admissible, Mr. Cavender is going to have a choice. He can
either simply say, "I am not going to be cross-examining at all" or he is going to
issue an application to have it struck out. If he does issue an application to have
it struck out and that application is effective, it will involve the court going
through it and simply striking out large amounts.

The court will make time to do that but cringing costs consequences will follow.

Page 60A-E:40

MR. JUSTICE FRASER: But it does not open the door and it might be that this
is all a concern without any real substance. It does not open the door to
wide-ranging evidence of fact which appears to be Post Office's concern, that
cannot possibly form part of the factual matrix.

MR. GREEN: Precisely. We have taken that on board, I hope.

40
{B9.3/2/274}

29
MR. JUSTICE FRASER: I know, you always do say you take it on board and
you all say that you are following contractual orthodoxy. It might be that you
are.

MR. GREEN: I am grateful.

MR. JUSTICE FRASER: At the moment, without the documents in front of you
to be able to look at it with any sort of concrete analysis, it is difficult for me to
do any more. To continue the quasi military analogies from earlier this
afternoon, a very powerful shot has now been fired across your bows on two
occasions and I do not mean by Mr. Cavender or Mr. De Garr Robinson; I
mean by me.

MR. GREEN: My Lord, yes.

MR. JUSTICE FRASER: If it comes to a contested application of that nature,

well, that is what will happen. Please do not try and explain it to me by
reference to finding out what their case is because that does not make any sense
at all.

30
 SCHEDULE 2: KEY EXTRACTS FROM POST OFFICE’S SUBMISSIONS

(All emphases added)

Post Office’s Written Opening Submissions41

29. This trial is the first stage in the resolution of the issues in the group
litigation. It necessarily precedes the determination of issues as to the
functions and reliability of the Horizon system and the determination of
matters going to breach of contract and liability in individual cases.

30. The Court confirmed in Judgment No. 2 that it would not be drawn into
“making findings on the Horizon Issues, or…making findings on breach” at
the present trial (para. 52). Post Office welcomes that ruling. Post Office
anticipates that Cs’ case on the supposed relevance of its breach allegations to
the Common Issues will become more fully articulated at trial.

31. In any event, it will be important for the parties not to stray into issues
that fall to be determined at the Horizon trial and/or issues as to breach.
The Court will recall that Post Office has not adduced any evidence at
this trial to make good its case on Horizon; nor has it sought to address in
evidence the various breach allegations that appear in Cs’ witness
evidence. Post Office has not prepared for a trial on Horizon or a trial on
breach. The function of this trial is not to reach any findings on those
issues, or on facts that go to those issues.

41
{B9.3/2/296}

31
Post Office’s Oral Opening Submissions42

Transcript, Day 1

Page 165

1 You will see what we said in our written opening

2 about things that it would be useful -- findings to make

3 and not to make. In your number two judgment you made

4 it clear you are not making findings on the breach

5 allegations or allegations about Horizon.

6 MR JUSTICE FRASER: Everyone is agreed about that.

7 MR CAVENDER: See paragraph 52. What I also ask that you

8 don’t do is make any findings of fact that go to -- are

9 ancillary to those breach allegations or Horizon

10 allegations, rather than the Common Issues. Otherwise,

11 again, you have the difficulty of overlap and arguments

12 about issue estoppel and all these kinds of things.

13 MR JUSTICE FRASER: It depends what you mean by findings of

14 fact that go to breach. I imagine, if there are any

15 necessary findings of fact at the end of the evidence in

16 terms of disputes of fact as to whether Mr Bates got

17 document X, you won’t want me to leave that floating in

18 the air, will you?

19 MR CAVENDER: My Lord, no. That goes to my first

20 category of --

42
{B9.3/2/445}

32
21 MR JUSTICE FRASER: I know that and I haven’t yet bottomed

22 that out with Mr Green. Because, on one view, a finding

23 of fact that goes to breach could involve any finding of

24 fact in relation to the contractual relationship,

25 couldn’t it?

Page 166

1 MR CAVENDER: But what I am talking about is downstream. So

2 the training wasn’t good enough, that they didn’t have

3 sufficient report writing, that they didn’t have enough

4 help with investigations; all those things that are

5 downstream. Potentially breach. We haven’t brought the

6 evidence to the trial to deal with it . There hasn’t

7 been full disclosure on some of these issues. So we

8 won’t be dealing -- and this has been our persistent

9 position -- obviously this is a trial about the contract

10 and the relationship. Those are my submissions.

33
Post Office’s Written Closing Submissions43

31. This trial is the first stage in the resolution of the issues in the group
litigation. It necessarily precedes the determination of issues as to the
functions and reliability of the Horizon system and the determination of
matters going to breach of contract and liability in individual cases.

32. The Court confirmed in Judgment No. 2 that it would not be drawn into
“making findings on the Horizon Issues, or…making findings on breach” at
the present trial (para. 52). {B7/27/19}. Post Office respectfully submits that
the Court should also resist any invitation to comment on the substance of
those issues and disputed facts going to them, even if those comments fall
short of findings.

33. It remains, even after hearing the evidence and cross-examination, wholly
unclear on what basis Cs will seek to persuade the Court that it can have some
regard to (or should make any findings or comment upon) the evidence of
post-contractual conduct and documents. Nothing that Cs argued in their
opening submissions sheds any light at all on how Ms Stockdale’s experience
of shortfalls in 2016 is said to be something to which the Court can have
regard in interpreting the relationship that she entered into with Post Office in
2014, for example. Nor is there anything to suggest that her experience is
relevant to any other C’s relationship with Post Office at any relevant time.
The same goes for the other lead Cs.

35. Ultimately, no case as to the relevance of the post-contractual events has

been pleaded or set out in the Written Opening Submissions because there is
no such case to advance. The simple truth is that Cs have always intended to
ignore the limitations on the scope of the Common Issues Trial in the hope of
securing some advantage by bringing the whole of their claims (without
proper responsive evidence from Post Office and without full disclosure).

36. Now that the promised case as to relevance has failed to materialise, it is
clear that Cs’ intention must always have been to engineer a situation in which

43
{B9.3/2/463-465}

34
 they can fight out the merits of the lead claims on an unlevel playing field. Cs
must anticipate, for example, that the absence of full evidence and disclosure
puts them in a stronger position to obfuscate in relation to their own post-
contractual conduct (although, ultimately, one of the lead Cs felt that she had
to invoke the privilege against self-incrimination as regards her accounting to
Post Office). All this must be in the vain hope that the Court might be
influenced by inadmissible evidence in determining the Common Issues.

37. It remains acutely important not to stray into issues that fall to be
determined at the Horizon Trial and/or future trials on breach and
liability. The Court will recall that Post Office has not adduced any
evidence at this trial to make good its case on Horizon; nor has it sought
to address in evidence the various breach allegations that appear in Cs’
witness evidence. Post Office has not prepared for a trial on Horizon or a
trial on breach. It has not, for example, led expert evidence on Horizon,
and it has not provided anything like the accounting evidence that it
would lead at a liability trial. The function of this trial is not to reach any
findings on those issues, or on facts that go to those issues.

Post Office’s Oral Closing Submissions

Transcript, Day 14

Page 2744

18 MR JUSTICE FRASER: And you don’t take post-contractual

19 matters into account on either footing.

20 MR CAVENDER: Or hindsight or views from hindsight. You

21 have to ask the right question. The right question is

22 not: well, is it reasonable? You don’t ask: well, what

23 term should be implied in light of what happened in

44
{B9.3/2/680}

35
24 fact? That is the mistake made in Bou Simon by the

25 First Instance that the Court of Appeal identified. And

Page 28

1 there is a real risk of doing that here - -

2 MR JUSTICE FRASER: I don’t think there is.

3 MR CAVENDER: It’s an easy mistake to make as Bou Simon

4 shows. There is a lot of evidence here of that nature.

5 My learned friend has put his case both in

6 cross-examination and his closings on that basis. So

7 you have a yawning invitation to make a mistake and it

8 is my job to try and prevent that happening and I intend

9 to try and do that. But in doing that, you have to be

10 very careful what question you ask and what evidence you

11 have regard to when you ask it.

12 I will just divert a moment and put some skin on

13 those bones. When you are looking at implied terms

14 particularly, my learned friend is fascinated by doing

15 it in the guts of the dispute and the thing going wrong.

16 When you know a lot more detail - - and at that stage you

17 would be able to identify certain cardinal obligations

18 and things that have gone wrong and try and put them

19 right. “Tempting but wrong”, in the words of M&S.

20 At the stage you’re contracting you know very much

36
 21 less. You have a very high level view of what you

22 expect. So the very notion of being able to imply

23 precise terms dealing with suggested infelicities or

24 difficulties down the line is itself wrong headed

25 because you wouldn’t be able to do that.

Page 3245

24 We also say it was somewhat cynical of the claimants

25 to take this approach because there has not been full

Page 33

1 disclosure on either side dealing with the issues they

2 now seem to want to be dealt with. In particular, what

3 we call the breach allegations, we only have a few

4 documents that happen to be caught in the net of the

5 word searches. Your Lordship should not think that we

6 have full disclosure on all these issues. We do not.

7 And the real temptation here is to think you have and to

8 draw inferences from an incomplete documentary record,

9 incomplete evidence, which would in my submission be

10 obviously wrong.

11 So, for instance, your Lordship should not be fooled

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12 into thinking there has been anything like proper

13 disclosure on allegations as to training or shortfalls

14 or investigations. Your Lordship did not order such

15 disclosure, there has not been such disclosure, and

16 Post Office has not led evidence on those issues. My

17 learned friend has put questions on those areas - -

18 MR JUSTICE FRASER: You have led evidence on training.

19 MR CAVENDER: My Lord, only very, very high level. I think

20 it was a couple of paragraphs --

21 MR JUSTICE FRASER: Quite a lot of your evidence was high

22 level in some areas, and I’m not criticising, I’m

23 observing, but you did lead evidence on training.

24 MR CAVENDER: My Lord, only just high level evidence. If

25 you wanted evidence on training, we would have evidence

Page 34

1 from trainers and the proper documentary record of the

2 plans et cetera. All we did was have a few slides, that

3 wasn’t proper evidence.

4 The other thing about training of course is it is

5 wholly irrelevant. Why? Because my learned friend’s

6 case is that all the contracts were made in advance of

7 even initial training, let alone subsequent training, so

8 the whole question is wholly irrelevant.

38
9 MR JUSTICE FRASER: The irrelevance point I understand, but

10 it is wrong to submit you didn’t put in any evidence on

11 training - -

12 MR CAVENDER: We didn’t put any proper evidence on

13 training - -

14 MR JUSTICE FRASER: Mr Cavender, there is no distinction

15 between putting in evidence and putting in proper

16 evidence. You might have a point that it could have

17 been more comprehensive --

18 MR CAVENDER: There has been no disclosure on training.

19 MR JUSTICE FRASER: There might not have been. But you did

20 put in evidence on training because some passages of

21 your witness statements expressly deal with training.

22 MR CAVENDER: My Lord, yes, there is a paragraph or two in

23 Mrs Van Den Bogerd’s statement that on a very high level

24 says. But not evidence of training where your Lordship

25 can make any finding. Her evidence is about what could

Page 35

1 have been known or anticipated at the date of inception,

2 that is what her evidence goes to if you look at it, not

3 the actual experience of training, how good or bad it

4 was, were shortfalls dealt with in sufficient detail,

5 which is the point my learned friend wants it for.

39
 6 MR JUSTICE FRASER: By ”date of inception ”, do you mean ...

7 MR CAVENDER: The contractual date.

8 MR JUSTICE FRASER: The contractual date.

9 MR CAVENDER: Indeed. That is why it is so general.

Page 4646

6 MR CAVENDER: Yes, because to do so you would have to make

7 findings as to the accounting system, to the TCs, what

8 happened in fact, and you haven’t had full evidence on

9 that by any means.

10 You can test it in this way: these are questions of

11 breach, this is a classic question of breach. This is

12 what they will be if there is a breach trial in October,

13 or whenever it is going to be, that will be exactly what

14 these witnesses will be putting forward. But then with

15 the benefit of the judgment here as to what the rules

16 are, and with Horizon and how good or bad that is. But

17 this will be the meat and drink of that breach trial.

18 Now, what has happened in this court in the last

19 four weeks is a fact. It has been recorded, it is in

20 the transcript. Those witnesses can of course be taken

21 back to that evidence during the breach trial and it

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 22 will be surprising if they were not. So it is not

23 wasted, it is in the can ... It is still as a matter of

24 record it is there. But for you to make findings on it,

25 my Lord, we go further, for the same reason you

Page 47

1 shouldn’t make findings on the accounting processes

2 generally and all these other matters that have come in

3 by a side wind but there has not been full disclosure

4 on.

Page 5247

2 MR CAVENDER: The

3 bright line I am making is issues of breach really.

4 MR JUSTICE FRASER: You are saying don’t go near findings

5 that relate to breach, is that right?

6 MR CAVENDER: Indeed.

7 MR JUSTICE FRASER: Is that the best way of summarising it?

8 MR CAVENDER: It is, and we said that at the beginning. And

9 your Lordship said in judgment 2 you are not going to

10 make findings on breach, and I said good, obviously, but

11 also don’t make findings of fact leading to those

12 questions of breach. Not obviously whether there is

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41
 13 a contract or not, you could - - if you took that too

14 far. But not in directly leading up to findings on

15 breach, or would do. Platforms of fact that would lead

16 to that.

17 MR JUSTICE FRASER: Understood.

Page 6348

11 MR CAVENDER: So in summary on important points of this

12 introduction in terms of scope, the court should not

13 have regard to post-contractual evidence, evidence of

14 breach, for two distinct reasons: firstly, to do so

15 would involve a basic error of law, and, secondly, would

16 involve a serious procedural irregularity. It would do

17 the second because the orders of the court setting out

18 the issues for trial and the issues on which evidence

19 were to be admitted is set out in the Common Issues.

20 The Statements of Case have been ordered to be limited

21 to those issues, see paragraph 8, and the witness

22 statements were limited to those issues, see

23 paragraph 10. That is the trial Post Office has

24 attended and involved itself in. It has not engaged in

25 wide-ranging evidence on breach, which the claimants

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Page 64

1 have, and so not only would it be an error of law to

2 have regard to it, it would also be procedurally unfair

3 for that reason. Because in the absence of full

4 disclosure on matters such as the dispute, Horizon,

5 accounting, procedures, deficits, training and Helpline,

6 without full evidence and disclosure on all those

7 points, the court should not engage in inferential

8 findings or comments along the way. It shouldn’t do so

9 as a matter of procedural fairness but also particularly

10 given there are two other trials that have been loaded

11 in the system effectively on Horizon and on breach,

12 where on those very matters there will be full

13 disclosure, there will be full evidence and there will

14 be determinations.

43