By Tony Collins
The FT reported yesterday on a class action against the Post Office over the “faulty” Horizon IT system.
In an article or more than 1,000 words, it said that 522 former sub-postmasters are involved in the legal action.
A procedural hearing with a managing judge will take place in October 2017, which should lead to a timetable for final resolution by the court.
The FT reported on two families (previously unpublicised cases) whose lives have been devastated by shortfalls shown on the Post Office’s Horizon branch accounting system. In one case, the Post Office dismissed Deirdre Connolly, a former sub-postmistress, after an apparent shortfall of £15,600. The alleged deficit was found during an unannounced branch audit.
The FT said that, out of fear, she made up the apparent loss with help from relatives. The Post Office did not prosecute. Her son later attempted suicide, which she attributed to his witnessing the stress she was under.
The FT also reported on a successful businessman, Phil Cowan, whose business ventures included a post office in Edinburgh run by his wife and her friend. He said that a £30,000 deficit shown on the branch electronic ledger account was a factor in his wife’s death from an accidental overdose of anti-depressants, alcohol and cold medicine. She was 47.
He attributed the shortfall to a technical glitch.
Cowan told the FT,
“This situation I know for a fact had a huge contribution to her passing away. It had a massive effect on her.”
In 2015 the Daily Mail reported on Martin Griffiths, a sub-postmaster from Chester, who stepped in front of a bus one morning in September 2013.
An inquest heard that Griffiths, 59, was being pursued by the Post Office over an alleged shortfall of tens of thousands of pounds.
The Post Office reached a settlement with his widow and required the terms of it to be kept confidential.
The legal action between the Post Office and the sub-postmasters could be said to be a simple one, at least from the PO’s perspective. Sub-postmasters signed a contract that held them responsible for losses shown on the branch accounting system (whether or not there was any evidence they gained from the shortfalls).
The Post Office’s lawyers will argue that there is no evidence that Horizon or any of its related elements such as network and communications equipment was to blame for the losses. Under its contract with sub-postmasters, the Post Office is entitled to pursue the former sub-postmasters for the losses.
It is this contract that is the main point of legal relevance, rather than claims by sub-postmasters that the losses were not real, that they didn’t steal any money and have had their lives, and their family’s lives, ruined by the Post Office’s actions against them.
For the sub-postmasters, lawyers will argue that errors were caused by software bugs and inadequate training and support. The FT article referred to a “pattern of bullying and intimidation by the Post Office dating back to shortly after Horizon was rolled out”.
After shortfalls were discovered, people were held and their homes searched, Alan Bates of the Justice for Sub-postmasters Alliance told the FT. Freeths solicitors are handling the Alliance’s case.
The Post Office’s enforcement of its contract with sub-postmasters after discrepancies were found on Horizon raises the question of whether the law in this case has little – or perhaps nothing – to do with right and wrong.
The Post Office may have a contractual right to pursue former sub-postmasters for shortfalls shown on Horizon.
But does the Post Office’s conformance with the law – its contractual right to take action – make the action right?
In Vermont, it’s unlawful for women to be fitted with false teeth without the written permission of their husbands. It would be perfectly legal for Vermont’s lawyers to prosecute offenders. But being lawful to prosecute doesn’t make it right to do so.
It was perfectly lawful for the state to prosecute Alan Turing in 1952 (and Oscar Wilde in 1895) for homosexual acts. That the prosecutions were lawful (and were possible factors in their premature deaths) didn’t make the prosecutions right.
If NASA made its space missions conditional on a requirement that astronauts sign a contract that made them responsible for anything that went wrong, they would probably sign – because of their overwhelming desire to go into space. But if something went wrong would it be right for NASA to enforce the contact (assuming the astronauts survived?).
It can be lawful to enforce a contract but wrong to do so.
Post Office happy?
The Post Office (which is still publicly owned) sounds relaxed about going to court. The FT quoted the Post Office as saying,
“We welcome [the group litigation order] as offering the best opportunity for the matters in dispute to be heard and resolved.
“We will be continuing to address the allegations through the court’s processes and will not otherwise comment on litigation whilst it is ongoing.”
Even at this late stage, it’s not too late for the Post Office’s directors to ponder on the matter of right and wrong rather than go ahead with a court case merely because they can.
They have the power to exacerbate the devastation for hundreds of families. They also have the power to withdraw from the court case, settle and reduce the risk of any further personal tragedies.
This is where the distinction between enforcing a legal right and doing the right thing couldn’t be clearer.
Post Office faces class action over “faulty” IT system – FT
Shedding new light on the Post Office Horizon IT controversy?
As someone who has and still does represent Postmasters in disciplinary matters for over 20 years I should point out that the Postmaster contract only holds a Postmaster liable for losses caused by his/her own personal actions of carelessness, negligence or error or the same caused by staff hired by the Postmaster. Therefore under the precise wording of the contract the burden of proof that a Postmaster has committed an act of carelessness or committed an error or has acted with negligence or his/her staff member did, rests with the Post Office. This requires indisputable evidence to be provided by the Post Office that the individual was personally to blame. Sadly since the inception of Horizon the Post Office stopped producing evidence at hearings and defaulted to a position of “it must be human error because it cannot be anything else our equipment is infallible” . Given that the contract was written in 1994 well before computerised accounts and was for a paper based accounting system I have always believed that holding a Postmaster liable under the contract for losses was unenforcible because the Post Office failed to update the contract to reflect the change of accounting process and not least given the “interventions” that we now know can occur within a computerised accounting system, is the Postmasters cash account under his\her absolute control? I would argue that it never has been ever since the day Horizon went live. How can one be held liable for a cash account that you do not have absolute control over?
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Thank you Mark. That’s the clearest explanation I have read on the contract between the Post Office and sub-postmasters. Now I have a better understanding.
I am not a lawyer but I’ve a feeling there is something in law that makes contracts unfair if they are unbalanced, favouring one side. Though this may apply to consumer law only rather than contracts of employment, there is nothing to stop the Post Office’s lawyers holding good to the principle that contracts should be balanced.
At the moment, as you suggest, the Post Office’s contract with sub-postmasters seems deeply unfair, particularly as it pre-dates the Post Office’s move from paper, which it controlled, to technologies under the control of a range of third parties.
Doubtless the Post Office would say it has control over its contracts with third party IT suppliers. But, as you suggest, where does that leave the sub-postmasters who have no direct dealings with the Post Office’s IT suppliers and certainly no control over their contracts?
Indeed the sub-postmasters have to rely on the Post Office to tell them about the strengths and weaknesses of the IT; and so far the Post Office has refused all requests – even under FOI – to publish its Known Errors log.
Am terribly upset over this case – it is David and Goliath but where David doesn’t really stand much of a chance.
Have just seen a programme on Victorian social reformers who used their energies to save, and or, improve the lives of others. Can’t help comparing and contrasting with the characters in this case. Our learned friends don’t appear very honourable and the Post Office is shameful.
I suggest that although the bullies may well appear to win, they will have lost everything that makes humans human.
Shame on them – big time losers in my book.
Thank you for the comment Zara. I agree and find it difficult to understand how people can live with themselves when they are perpetuating many injustices, each of such magnitude.