Wednesday, 18 December 2019

Final Bates v Post Office Group Litigation Judgement could open the floodgates.

Although we have reported the end of the Group Litigation through mediation, the final judgement, which the parties had already seen last week, was handed down by Mr Justice Fraser on Monday.

I can do no better than replay the words of journalist Nick Wallis's email, extracts from which are below.  Note in particular that this may not be the end of the story, in so many ways.  Although the judge has found for the claimants in all material aspects, there will likely to be other legal (civil and criminal) action over the next couple of years.

This is what Nick wrote on Monday afternoon (my highlights):
As we know from the press statement on Wednesday last week, this litigation was supposed to be dead. Settled with an apology and £58m in compensation from the Post Office. Well - today's judgment re-energised the corpse and now the judge appears to have set in motion a Frankenstein's monster which could lay about the "nation's most trusted brand" and the IT firm which operates the Post Office's Horizon computer system, Fujitsu.

Malicious prosecution

The first interesting discussion was about the possibility of claimants going after the Post Office for malicious prosecution. Normally with a settlement of this nature, claimants are prohibited from taking the defendant to court for any reason ever ever again, but the claimants' QC Patrick Green wanted the judge to make an order that claimants who have criminal prosecutions against their name should not be disbarred from pursuing the Post Office over criminal matters, simply because they have signed up to a civil settlement. After seeking agreement from the Post Office's QC Owain Draper (which, it transpired, was a formality), the judge made the order.

Then the judge made an announcement which stood outside of the 177,211 word findings he had just handed down. He told the parties and the court he had "grave concerns" about the evidence of the Fujitsu employees; so much so that he felt the veracity of evidence provided by Fujitsu employees in a number of Post Office prosecutions of Subpostmasters needed to be properly scrutinised. To that end, he would be supplying a dossier to the Director of Public Prosecutions for further investigation.

No one was expecting this. I was sitting with journalists from Computer Weekly, the Daily Mail and the Press Association and we all looked at each other, thinking pretty much the same thing. Fujitsu is now in the game.
The judgment

..... here are the choice quotes:

"The Post Office’s approach to evidence, even despite their considerable resources which are being liberally deployed at considerable cost, amounts to attack and disparagement of the claimants individually and collectively, together with the wholly unsatisfactory evidence of Fujitsu personnel such as Mr Parker."

Who is Mr Parker? Glad you asked:

"Mr Stephen Parker is... the Head of Post Office Application Support {at Fujitsu - IB}. He is therefore a very senior person. He first started work on what was then called the Royal Mail Group Account in 1997, which was before the introduction of Horizon. He has continued to provide support to the Post Office Account in the various roles he has occupied at Fujitsu throughout the whole of Horizon’s life, by which he meant both Legacy Horizon and Horizon Online."

So he, under oath, would tell the judge, the truth, right?

"Mr Parker chose specifically to give the impression in his first witness statement that Fujitsu did not have the power (the word Mr Parker expressly chose) to inject transactions into the counter at branches, even though he knew that it did. This paints him in a very poor light as a credible witness."

What did the judge think about Mr Parker's evidence, when exposed to cross-examination?

"I consider that Mr Parker, and the team who assisted him, sought to portray the Horizon system – Legacy Horizon and Horizon Online – in a light as favourable as possible to Fujitsu, regardless of its own internal evidence to the contrary, and regardless of the facts."

And the judge's conclusion about Fujitsu in general?

"Fujitsu do not,... appear to me to have properly and fully investigated.. myriad problems, nor did Fujitsu categorise such incidents correctly. They also seem to have moved away, in their investigations, from concluding that there were any issues with the software wherever it was possible for them to do so, regardless of evidence to the contrary, an approach that has been carried into the Fujitsu evidence for the Horizon Issues trial."

What about the Post Office?

They come in for the sort of pasting we have, perhaps, got used to. Their approach:

"has amounted, in reality, to bare assertions and denials that ignore what has actually occurred… It amounts to the 21st century equivalent of maintaining that the earth is flat.”


“A theme contained within some of the internal documents is an extreme sensitivity (seeming to verge, on occasion, to institutional paranoia) concerning any information that may throw doubt on the reputation of Horizon, or expose it to further scrutiny."


"It was possible for bugs, errors or defects of the nature alleged by the claimants to have the potential both (a) to cause apparent or alleged discrepancies or shortfalls relating to Subpostmasters’ branch accounts or transactions, and also (b) to undermine the reliability of Horizon accurately to process and to record transactions as alleged by the claimants.... Further, all the evidence in the Horizon Issues trial shows not only was there the potential for this to occur, but it actually has happened, and on numerous occasions."


Alan Bates was the lead claimant in the litigation and founder of the Justice for Subpostmasters' Alliance. His dogged determination to see the Post Office held to account is well documented. He is not a man who likes the spotlight, but I am sure he would have been at court yesterday if he were not recovering from a recent hospital visit. He sent through this statement from his hideout in Wales:

"This judgment, like that of the Common Issues trial vindicates everything we have been saying for years. The real problem we have been left with is the unrecovered expenses which we have had to incur to pursue the litigation and which include considerable litigation financing fees, all of which have devoured most of the £58m damages, leaving little left to be shared between the group.

"It would seem, from some recent excellent research work Eleanor Shaihk undertook, that successive governments have failed in their statutory duty to oversee and manage Post Office and this is something that we are planning to ask our MPs to raise next year. If it turns out to be correct, we will be wanting to recover everything we have had to spend doing the job government should have done.


"It isn't over yet, just the end of another chapter."

So why isn't it all over?

The Director of Public Prosecutions has to decide whether there is a good chance of perjury convictions.

The Criminal Convictions Review Commission has to adjudicate on 30+ ‘criminals’ who weren’t.

The lawyers have to decide whether there is a good chance of winning malicious prosecution cases.

The SPMs who weren’t part of this case have to decide whether to take action against the Post Office.

The government has to decide whether to go for a public enquiry or judicial enquiry into the conduct of the company, and maybe even the government officials and responsible ministers who had no mechanism for holding the PO properly to account.


And for those former SPMs who repaid money when demanded (some of whom were charged and found not guilty), now knowing that the 'shortfall' may not have been their fault and that Fujitsu at least (and Post Office Ltd probably) knew this, there seems to be a case not only for malicious prosecution but also recovery of money paid.

For all SPMs the accounting system required that shortfalls under £150 in any particular week had to be made good before the rollover to the next accounting period.  Shortfalls over £150 could be repaid either by deduction from payments due to the SPM or by periodic payment.   How many of them were real, due to error, and how many of them every week/month were down to system errors?

What is the consequence for us and for the Post Office network?
I don't know.  Governments are committed to maintaining a network of over 11,000 branches, although included in this figure are a large number of 'outreach' branches.  Near here there is a small market town of about 2100 souls, and they get a visit from another PO five days a week.  A little further away is a much larger market town of 14,5000 which has a visit for just a few hours on one day a week.

Post Office have said that the arrangements with SPMs will be changing.  Just how the organisation can afford to improve the situation is difficult to envisage.  We may well see, in future, all closures being replaced by mobile/outreach services to reduce costs.   The availability of Royal Mail's special stamps is likely to be diminished if this happens, and from what collectors say, it is poor already in many areas.



2 comments:

  1. More bad news for the Post Office
    https://www.ofcom.org.uk/about-ofcom/latest/features-and-news/post-office-fined-for-overcharging-disabled-customers

    ReplyDelete
  2. https://www.bbc.co.uk/news/av/uk-england-hampshire-51120545/post-office-assisting-review-of-postmasters-convictions

    ReplyDelete