During the first week of phase two of the Post Office Horizon IT inquiry we discovered more about Lord Neuberger’s involvement in the decision to ask Mr Justice Fraser to recuse (remove) himself as managing judge from the Bates v Post Office group litigation, something the Post Office recognised internally was “the nuclear option.”

It’s a squalid little episode.

In March 2019, Mr Justice Fraser had just produced his Common Issues judgment. It was the first document written by anyone in authority which recognised that the Subpostmaster claimants had been treated appallingly, and that they had a case. Over 1000 paragraphs he spelled out why. It’s a very readable judgment, and it’s obvious how and why Fraser came to his conclusion – it was the only fair result.

Apoplexy

The reaction at the Post Office was apoplexy. This week, at the inquiry, Jason Beer KC read from internal Post Office documents, one of which was a note from the Post Office legal team. It declared the Common Issues judgment:

“astonishing; it is unfair and unprecedented. With no hesitation, we strongly recommend lodging an appeal.”

The Post Office’s top barrister on the case, Anthony de Garr Robinson “recommended that the Post Office consider making an application to seek the recusal of Mr Justice Fraser on the grounds of apparent bias.”

De Garr Robinson’s advice was given the day before the Horizon Issues trial was due to start. The Post Office then went to Lord Neuberger for more advice. Not any judge this, but a former President of the Supreme Court. Neuberger wrote the Post Office an eight-page document, which, according to Beer: “advised that there were reasonable grounds for the Post Office to bring an application to recuse the judge, and that the Post Office “has little option but to seek to get the Judge to recuse himself at this stage”.”

Neuberger attended a Post Office board meeting and offered further advice, but told the Post Office he couldn’t represent them as he was a retired judge.

Get Grabs

So the Post Office turned to Lord Grabiner, Head of Chambers at One Essex Court and one of the most expensive barristers in London. Grabiner appeared equally enthusiastic about doing a job on Fraser. 

Beer says Grabiner gave “strong advice” during a meeting “that the Post Office should pursue the recusal application”.

A note of the meeting says Grabiner believed there was a “serious prospect of success” and “that this judge had done an unbelievable nonsense and demonstrated apparent bias“.

Grabiner also said that in his view:

“if there is no recusal application made then the Post Office will lose the series of trials set up in this matter. Without a recusal application, Post Office is stuck with this judge. An appeal on the law may correct some of the very significant errors in the Common Issues Judgment, but then the case will be sent back to this Judge who has demonstrable apparent bias against Post Office and hence the firm conclusion that Post Office will lose and the financial impact of that will be substantial. Recusal is therefore essential.”

In the light of the fact that without recusal the Post Office was heading for a massive damages payout which could hurt the business “it was Lord Grabiner’s view that there was a duty on Post Office to seek recusal.” [my emphasis]

Wow. 

Neuberger apparently advised for recusal because strategically, the Post Office had “little option”. Grabiner was spoiling for it because:

• he didn’t think much of Mr Justice Fraser’s grasp of law, 
• the Post Office was otherwise going to lose the case and,
• the prospect of losing money placed a duty on the Post Office board to go for the “nuclear option”. 

Two of the most senior legal minds in the country were advocating to misuse a legal instrument designed to aid fairness as a weapon purely for their wealthy client’s benefit.

As history records, Mr Justice Fraser refused to recuse himself and when the Post Office tried to appeal, Lord Justice Coulson called their application “without substance“, “misconceived“, “fatally flawed“, “untenable” and “absurd“.

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Related post: Brian comes out of the shadows – the Altman advices.

Professor Richard Moorhead: President of Nowhere? Some points on Lord Neuberger being drawn into the PO Scandal and What happens when Big Guns misfire?

Solicitors Regulation Authority press release about the Post Office’s in house team.

Read the full transcript of Day 2 of Jason Beer KC’s opening statement to the inquiry or watch the video here.

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