By Tony Collins
The Law Society Gazette reports that the High Court judge in the Post Office Horizon case has called for a “change of attitude”.
At a case management conference, the judge Sir Peter Fraser listed some of the problems already reported during the group litigation:
- Failure to lodge required documents with the court
- Refusing to disclose obviously relevant documents
- Threatening ‘pointless’ interlocutory skirmishes.
- Failure to respond to directions for two months
- Failure to even consider e-disclosure questionnaires
The case involves a class action – called a Group Litigation Order – against the Post Office brought by more than 500 mostly sub-postmasters.
Justice for Subpostmasters Alliance seeks damages related to the introduction of the Horizon computer system about 17 years ago, which is alleged to have caused financial distress and in some cases bankruptcy.
According to the Law Society Gazette, the judge said the behaviour of legal advisers in the case “simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the over-riding objective”. He added,
“A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders.”
The court has heard of problems trying to establish a timetable for the litigation. The claimants sought a substantive hearing for October 2018, while the Post Office argued the case could be managed for another entire year without any substantive hearing being fixed. Under this proposal, the hearing would not happen until at least 2019.
Fraser noted that to describe this approach as ‘leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement’.
The day after a trial was ordered for November 2018, the Post Office asked for a change because its leading counsel already had a commitment at the Companies Court.
The judge suggested it was a ‘clear case of the tail wagging the dog’ if clerks were allowed to dictate hearing date. He said there was reasonable notice to arrange for a replacement counsel.
Fraser added: ‘Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.’
It appears that the judge did not single out the claimants or the Post Office as the main target for his irritation. He was impartial. But his no-nonsense approach might have surprised some at the Post Office.
The Post Office is familiar with control. When the Horizon system has shown a shortfall in the accounts of a local branch, the Post Office has required the sub-postmasters to pay whatever amount is shown, in order to return the balance to zero.
Even when paying the shown amount has led to bankruptcy and destruction of the family life of the sub-postmaster, the Post Office has pursued the case.
It has had control.
It supplied the contract that sub-postmasters signed; it supplied the Horizon branch accounting system; it required payment of what the system showed as a deficit; it investigated complaints by sub-postmasters that the shown deficits might have been incorrect; it was able to decide what information to release or withhold – the “known errors” Horizon log being one piece of information not disclosed – and it was the prosecuting authority.
It has also been free to rebut public criticisms, as when BBC’s Panorama and forensic accountants Second Sight focused on the concerns of sub-postmasters.
Now it’s a High Court judge who is questioning, among other things, a failure to lodge required documents with the court and refusing a to disclose obviously relevant documents.
The judge’s comments are refreshing. Since 2009, when Computer Weekly first reported on the concerns of sub-postmasters, control has been one-sided.
Now at last it is on an even keel.
We hope the Post Office will reappraise whether it should be using public funds at all to fight the case.
If the case does drag on for years – postponing a judicial decision – who will benefit? Certainly not the sub-postmasters.