By Tony Collins
The Post Office has applied for the removal of the judge in four High Court trials over the Horizon IT system, say journalist Nick Wallis, who is covering the case and Alan Bates, founder of the Justice for Sub-postmasters Alliance, which is suing the Post Office.
The judge, Sir Peter Fraser, is Judge in Charge of the High Court’s Technology and Construction Court. He has practised in the Technology and Construction Court field for nearly 30 years. Last week he issued a 1,100-paragraph judgement in the case that was highly critical of the Post Office’s behaviour.
One of his criticisms was that the Post Office (which is publicly owned) was trying to make the litigation as expensive as it could.
“The Post Office has appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can.” [Par 544)
His judgement set out in forensic detail how hundreds of sub-postmasters have been blamed for losses, shown on the Horizon system, that they were unable to dispute effectively or have investigated thoroughly.
The Post Office has described Horizon as robust and has held the sub-postmasters responsible for losses shown on the system. Its officials have required sub-postmasters to make good losses shown on the system which has led to bankruptcies, ruined lives and is said to have been a factor in one suicide.
The Post Office dismissed Second Sight, its forensic accountants who wrote a report that criticised aspects of the Horizon system. The Post Office also issued a long rebuttal of points made in a BBC Panorama documentary on Horizon and the plight of sub-postmasters.
Critics of the Post Office say its application to remove the judge would be consistent with its approach in the past, which has been to say that those who side with the sub-postmasters are biased and/or wrong.
Lord Arbuthnot, who has followed the litigation and is a former barrister, described the application to remove the judge as “utterly extraordinary” and said that such an application had never been made in any cases he was involved in.
“I am absolutely flabbergasted,” he said, adding that the judge has acquired a profound understand of the technical aspects of a complex case – and is in the middle of the second of four trials.
Former sub-postmaster Alan Bates, who is one of the lead claimants in the case, said the Post Office application was a sign it was “desperate”.
Joshua Rozenberg QC, a BBC journalist and the UK’s best known commentator on the law, said that an application by one side in High Court litigation to have the judge removed was “rare but not unprecedented”.
The application, if accepted, is likely to increase costs for both sides and extend the length of the litigation into several years if there are appeals. Even before the application, the case was expected to cost tens of millions of pounds.
The judge has already read thousands of pages of documents.
The Post Office is said to have accused the judge of invective and hostility in his judgement. Nick Wallis quotes the Post as saying,
“… Post Office believes it has no choice but to make this application for the Judge to recuse himself from these proceedings. As an adjunct to that, Post Office applies for an adjournment of the ongoing Horizon Trial,”
The sub-postmasters’ legal team can oppose the application.
Computer Weekly’s Karl Flnders, who, with Nick Wallis, is covering the trial, reported this afternoon that the second Horizon trial currently underway has been suspended because of the Post Office’s application.
“The trial has been suspended until 3 April, to allow the Post Office to make its application, and for the claimants in the case to oppose the claim.
“If the application is granted, the trial would have to start again with a different judge. The suspension came as expert witnesses for both parties were next to take the stand for cross-examination. If the judge rejects this Post Office can appeal and the trial will continue during the appeal.
“The claim by the Post Office is based on a witness statement submitted by a solicitor from the law firm Womble Bond Dickinson, who was involved in a working group set up to oversee a mediation scheme between the Post Office and subpostmasters …”
Th judge used the word “attrition” in describing the Post Office’s approach to litigation in his judgement on the first trial.
And by applying for the removal of the judge, the Post Office could be perceived as acting in exactly the way the judge described when he said the Post Office “appeared determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can”.
There are already questions about whether the Post Office has shown humanity in its treatment of sub-postmasters. Now there are questions about how a public institution can be allowed to spend money in this way, with apparent impunity. Is it not time for ministers to step in?