One off the fisk

Good afternoon secret emailers

I have posted up part 4 of my fisking of the common issues trial judgment. After Monday’s 5000+ word epic, I have kept this down to a reasonable size.

It deals with the judge’s finding on the Post Office’s general attitude, and his reading of the infamous 12:12 clause of the Subpostmaster contract.

It is a very short post and it has a lot of juicy quotes in it.

If you haven’t already have a look, do read part 3 after you have read part 4. It is the judge’s general comments on the Post Office witnesses and then his thoughts on each one individually.

Recusal and appeal timetable

Although things will become clearer on Wednesday, I have been asking around for some advice on how the recusal application is likely to go, and any appeal by the Post Office against the first judgment.

Thankfully, because the recusal application has got members of the legal community very interested in what’s been happening in court, this secret email now has a few more legally qualified readers. Very welcome you are too.

One experienced litigator gave me her thoughts on how the next few months could proceed:

“I doubt the Court of Appeal will hear any appeal against the first judgement at the same time as an appeal on recusal.

The former is a big appeal, lots of preparation and work and a hearing of presumably at a minimum many days (probably much more).

It would also need the Claimants legal team (they unlike the PO wont be able to run multiple teams) and they are fully engaged on the current trial.

The recusal appeal on the other hand is straightforward and involves a hearing of perhaps a day – there is also a real need to have it expedited so the trial is not delayed more than possible.

I predict on Wednesday next week the trial judge will listen to the Post Office politely, boot them out in no uncertain terms and refuse them leave to appeal (he would only normally grant it if there was some point of law in issue, which there is not).

They will then need to approach the Court of Appeal for leave to appeal and I suspect as a matter of expediency, and to avoid delay, the Court of Appeal will quickly (within days) schedule a hearing which will simply combine the application for leave to appeal the recusal with the recusal appeal itself.

I think the Post Office will lose – I’ve read the judgement and while the trial judge was pretty unhappy with the Post Office (quite rightly in my view) it was a million miles short of anything getting close to recusal territory.

The appeal court will then give judgement very quickly – they might even do it on the spot: announcing the appeal fails, with written reasons to follow. I would also expect them to be pretty withering in their criticism of the entire recusal application and probably make a costs award in favour of the Complainants straight away.

The trial can then recommence.

I cannot conceive how anyone on Post Office side thought this was a good strategy. The only possible basis for it might be a long term game plan – they expect to lose but can see more trouble/criticism coming down the tracks and hope this will cause the judge to be less forceful in the future.

If so, thats a pretty cynical/disgraceful way for a public body to spend money and also I suspect likely to backfire. I attach no weight to having Lord Grabiner front it – hes just the ultimate (very expensive) hired big gun and in itself that smacks of desparation.

On a possible appeal against the first judgement I would have thought is probably a year or more away and thought will be needed as to how its timing interacts with the existing scheduled trials and the availability of the legal team.”

Thanks very much to my correspondent for that.

So there we go – after the March 2020 trial, we could be heading toward our first appeal hearing for the Common Issues trial.

CCRC

Having woken up to what was coming out of the Common Issues trial last year and postponed its intended decision on referral until its outcome, the CCRC has told (presumably all) its cohort of claimant Subpostmasters it is now going to wait for the conclusion of the Horizon trial (if not the judgment) before making any decision on whether or not to send 35 Subpostmaster convictions to the Court of Appeal. Another update will follow in May.

A cautionary tale

I heard from a chap recently who won an industrial tribunal. I’ve rounded the figures to further preserve his anonymity.

On winning, he was awarded around £80,000 which was paid directly to his solicitors.

His solicitors were on a no-win no-fee basis and took 25% of the damages plus VAT. The barrister cost a flat fee of around £5K.

After his own expenses, he was left with around £50K. Then his employers appealed. By the time the appeal ended he had no money left and his award had been reduced to £8k (so he still won, but now owed around £70K).

The solicitors charges were based on the original £80K award, not the award after appeal.

As my contact said, “they were the real winners.”

Admin

I’ve still got a load more admin to get through, including updating the Horizon trial menu, and adding the judgment to the Common Issues trial menu. I’ll try to get that sorted soon.

I did spend a large chunk of yesterday evening dealing with correspondence. Thank you again for getting in touch, and sorry if I haven’t been able to email back.

Thanks also to all the new secret email subscribers – more than 50 in the last couple of weeks. It has helped keep the coffers in reasonably good nick and it is good to know interest in this litigation is growing.

Please do forward this email to someone who you think might like to sign up. It looks like there are going to be a lot of court hearings, trials and appeals in the months to come.

Please feel free to forward this email. The more people who read it, the more people find out about what is the biggest trial going through the UK courts right now.