Reporting the class action against the Post Office at the High Court

Here are the tweets I wrote this afternoon between 2pm and 4.30pm from Court 26 of the Rolls Building, tidied up as appropriate.

NB:

SPMC = Subpostmasters’ Contract

SPMR = Subpostmaster

PO = Post Office

QC = Queen’s Counsel (ie a pretty decent and/or experienced barrister)

Back for the afternoon at court 26 Rolls Bldgs for High Court #postofficetrial

Post Office QC dives in with main point:

“What the claimaints are trying to do is water down the agency principle relationship almost to vanishing point to say it is basically marginal.”

Interesting line from PO QC – “the Lead Claimants are not test cases…. We could have had 10 notional cases. You must be very careful of what regard you have of their experience being relative to others – because they’re not.” That is a Bold Claim.

Might be true in law. But their experience, in my experience of hearing other experiences is that they do sound similar to other experiences. #postofficetrial

PO QC makes it quite clear that PO would never go after losses caused by Horizon under the terms of S12.12 of the contract (see previous in thread). Because a Horizon fault, is de facto not an SPMR error.

He also appears to be saying the Post Office is entitled to show a loss to an SPMR on Horizon as a loss because it can infer there is no Horizon fault due its general reliability.

Judge points out that that means if Horizon says x, x being a shortfall, then there is a shortfall.

This is accepted by the PO QC.

#postofficetrial

So it is now accepted by the PO that it is reasonable for Horizon to throw up a loss, and because it is generally reliable, it becomes a real loss, which as we found out this morning has to be accepted by the SPMR even if they put it in dispute.

And that the burden of proof on discovering the source of the loss, under terms of 12.12 of the contract is on the SPMR.

Judge really pushing back on this: “your ‘gateway’ [to creating a burden of proof on the SPMR to identify the source of the loss] is a step that’s reached after you reach an inference that Horizon is reliable.”

Judge: “If what you’ve explained is correct – are you saying in order to decide if something goes through the gateway stage [to make it to 12.12 on the contract], the burden is on the PO or the SPMR?”

QC says it’s on the PO. #postofficetrial

Judge invites QC to read transcript of what just happened in court carefully later as he’s not sure it makes a lot of sense.

QC says if my Lord reads my opening submission….

Judge interrupts to say no need to use the conditional. I’ve read it twice. And I will read it again.

They move on.

Interestingly the judge has the capacity in this court to pause the proceedings and go back over the transcript of the last few minutes to refer to precisely what was said in court on his screen. Whilst having the discussion about the transcript transcribed.

We’re now talking about the implied terms of the SPMC. PO QC notes that just because they have accepted there are some specific implied terms in the SPMC, it doesn’t mean there can be others. Or that the contract was badly drafted.

Particularly pushes back on JFSA QC’s invitation to accept JFSA’s implied terms on the SPMC and then have the PO tell the JFSA what they mean.

PO QC discussing whether or not SPMC is a “relational” contract. in their generic defence the PO very keen to say it was definitely NOT a relational contract, as this would put certain obligations on the PO. #postofficetrial

PO QC says SPMC is not a relational contract because it is not a long term contract which is a pre-requisite of a relational contract and SPMRs can be given 3 or 6 months notice.

PO QC says therefore JFSA’s relational argument doesn’t get out of the gate.

Very technical argument here about whether calling a contract relational infers that there should be any sort of good faith implied in that contract. PO QC accepts that relational conracts exist, but he appears to be seeking to narrow the actual amount of good faith implied…

… and indeed whether or not the SPMC is relational anyway. The argument I think is that it isn’t, because a) there are things which define a relational contract which the SPMC does not have and b) even if it were, then the “doctrine of good faith” is not general, but v narrow.

Judge and PO QC currently looking at Yam Seng which is the authority on good faith in contract law. Here is a summary: https://en.wikipedia.org/wiki/Yam_Seng_Pte_Ltd_v_International_Trade_Corp_Ltd

Only four more weeks of this. #postofficetrial

This is only the first trial, too. Actually I’m being flippant – this is fascinating. And frankly whilst they’ve got the heads in case law it’s a chance to take a break. #postofficetrial

Judge says relational and definitions of relational contracts “is an area of some debate”.

PO QC pushing again on definition of a relational contract.

Judge: “My understanding of the term relational contract is that it has an element of good faith. That might be right or wrong.”

PO QC “I think it might be wrong.”

PO QC suggests we are descending into semantics.

Judge says no actually it is important because he has to decide on the common issues in this trial, including cooperation and good faith.

The wider q being: if the Post Office has a wider obligation to its SPMRs than that explicitly stated in the SPMC, would the PO be liable for the way it acted towards some claimants, if it stuck to a its understanding of the explicit wording of the SPMC? #postofficetrial

We’re now onto the likely evidence of the Lead Claimants.

PO QC: “the Lead Claimants are asking for their recollection of policies of PO and the quality of their recollections and even their credibility will have to be tested…

… When they swear in their evidence all goes in – so I need to challenge that as well.”

Judge: “I would have thought I ‘d made it clear to you again as I have done at least a dozen times and in my written ruling – you are not having a jury trial…

… It was the subject matter of your strike out application and I made a ruling on it.”

PO QC accepts that but also says he will want to challenge the evidence of the Lead Claimants.

PO QC asking how evidence which comes forth from cross examination will be treated.

Judge says that is probably best dealt with in closing.

PO QC is wanting to know how Lead Claimaint evidence will be used because it could have material bearing on this and other trials. Starting to finish up now.

PO QC “we don’t know what the claimants’ case is”

Judge “I’ve heard that so many times.”

PO QC “This is an extraordinary case… in that we don’t know what the other side is saying.”

A bit more discussion about timings and logistics and then we are done for the day. Alan Bates, founder of the Justice For Subpostmasters Alliance gives evidence tomorrow and will be cross-examined. #postofficetrial

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And there ended the afternoon session. For the morning session tweets, click here.