Publicly, the government has said it is determined to compensate Subpostmasters affected by the Post Office scandal “as soon as possible”. Behind the scenes it seems determined to drag things out to a ridiculous degree.
Earlier this year both the Post Office and the government decided that money gifted to Subpostmasters with criminal convictions, by other Subpostmasters, should count against any compensation they receive from the government when/if those convictions are quashed.
Four years ago today the Post Office settled with 555 Subpostmasters who had taken it to the High Court as part of the Bates v Post Office class action (known in this country as a Group Litigation Order – or GLO). Sixty-one of the claimants had criminal convictions. Under the terms of the settlement (which the claimants’ lawyers, Freeths, initially told its clients it couldn’t see on grounds of confidentiality) those 61 were expressly given nothing by the Post Office. Clause 7.1.3 of the settlement agreement states:
“as part of the settlement set out in this Deed, the defendant has not made, or agreed to make, any payment to, or for the benefit of any Convicted Claimant.”
In 2019, the GLO claimant steering committee, comprising former Subpostmaster Alan Bates and his advisor Kay Linnell, secretly decided to share out the circa £11.5m they ended up with (once funders’ and legal fees had been deducted from the £57.75m settlement) between the entire claimant group, rather than leave the convicted claimants with nothing.
The cash that the 61 convicted Subpostmasters received was therefore effectively a gift from the non-convicted claimants. This was, according to Freeths (in a letter sent to convicted claimants in July 2020) in order to be “fair and consistent across the group”.
Whatever the rights and wrongs of this (and I happen to think it was right), there was (or at least there should have been once the settlement agreement became public in 2020), no doubt as to the status of these payments.
It’s yer money I’m after, baby
Fast forward to 2023 and for some inexplicable reason, the Post Office and government decided that if applicants to the Overturned Conviction compensation scheme were members of the GLO claimant group, the payments they received from their fellow claimants should count as compensation made by the Post Office, and therefore be debited from their compensation pot.
The government seemed to think this was the “fairest available” way of dealing with the issue. The fact it would end up saving them money was, of course, the furthest thing from their minds. In fact, argued the government (in one position paper I have seen), if they accepted the settlement cash was a gift, it:
“would mean that each convicted claimant would receive the amount of their agreed losses plus a gift. However each not-convicted claimant would receive the amount of their agreed losses minus a settlement payment, which is not compensated.”
The government felt this “would be wholly unfair to that group”.
Lawyers for claimants on the Overturned Conviction scheme did not agree with the government’s view.
Dyson’s decision
Former judge Lord Dyson, who has already been working on various other compensation issues between the Post Office and some of the claimants, was asked to make a decision in what’s known as an Early Neutral Evaluation (ENE). This is usually non-binding, but parties can agree to be bound by any decision before starting the process. After receiving submissions, Dyson did his ENE and came down in favour of the convicted claimants, stating:
“the assessment of the Convicted Claimants’ damages should be made on the basis of the facts as between the Convicted Claimants and POL [Post Office Ltd] and without regard to the position of any third parties, including the Not Convicted Claimants.”
Consequently:
“I consider that the Convicted Claimants are not required to give credit for the sums they have received from the Not Convicted Claimants… payments that were made to Convicted Claimants out of the Cash Settlement Sum:
are not to be taken into account in assessing damages payable”
The barrister Paul Marshall made submissions to the ENE on behalf of claimant Subpostmasters. I asked him what he made of all this. He replied:
“the Post Office’s position on what may be called “clawback” of sums received as compensation by those convicted on prosecution by the Post Office whose prosecutions were (subsequent to the Group Litigation) quashed on appeal, a position that to my surprise was shared by the government, was to my mind misconceived as a matter of legal principle from the outset – for reasons I explained in some detail to Minister Hollinrake in March 2023.
“The Post Office’s willingness to incur substantial expense in contesting an issue on grounds that to my mind, as a matter of law, were plainly without merit, is disappointing. The Post Office’s approach is, however, entirely consistent with the Post Office’s approach to claims against it by its victims since the time at which Second Sight was instructed in 2012 – and with which many will be wearily familiar. It does not sit easily with the Post Office’s (or the government’s) publicly avowed intention to pay full and fair compensation to the Post Office’s victims. It also illustrates the substantial difficulty encountered by Post Office victims in securing proper compensation.”
Post Office minister Kevin Hollinrake this morning told me:
“It’s really not about ‘reducing Subpostmaster compensation’ and I think it’s wrong to imply that it is. The total amount of compensation being paid has never been a consideration in any of the conversations I’ve had on this matter, the only factors have been parity, fairness and doing whatever we can to increase the pace of resolution.”
I have asked the Post Office for comment.
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