“Accordingly, we will proceed on the basis that you will not be relying on any parts of the Judgment to which you have not expressly referred in Parsons 15”
“We have now responded fully to your letter of yesterday. There are no further paragraphs that we wish to identify in accordance with the Order”
“the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”
“[1] It is a basic principle of English law that a judge should not sit to hear a case in which "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that [he] was biased", see Porter v Magill[2002] 2 AC 357 para 103 per Lord Hope of Craighead. It is an even more fundamental principle that a judge should not try a case if he is actually biased against one of the parties. The concept of bias includes any personal interest in the case or friendship with the participants, but extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view; a real possibility in other words that he might in some way have "prejudged" the case. [2] This can give rise to potential difficulties in long running cases where a judge has been case-managing a case and has then to conduct the trial or in cases where a trial has occurred and the judge has then to consider consequential matters such as, in the present case, proceedings for contempt. It is obviously convenient for a single judge rather than different judges to deal with a complex case but the question can arise whether there comes a point where findings made by a judge pre-trial disqualify a judge from continuing with a case or findings made at trial disqualify a judge from hearing consequential matters. This is the question at the heart of this appeal.”
“There is already a certain amount of authority on the question whether a judge hearing an application (or a trial) which relies on his own previous findings should recuse himself. The general rule is that he should not recuse himself, unless he eitherconsiders that he genuinely cannot give one or other party a fair hearing or that a fairminded and informed observer would conclude that there was a real possibility that hewould not do so. Although it is obviously convenient in a case of any complexity that a single judge should deal with all relevant matters, actual bias or a real possibility of bias must conclude the matter in favour of the applicant; nevertheless there must besubstantial evidence of actual or imputed bias before the general rule can beovercome. All the cases, moreover, emphasise, that the issue of recusal is extremelyfact-sensitive.”
“[30] The present case is different for two quite separate reasons. First as trial judge Eder J has considered an enormous number of issues and sub-issues between the parties. He has not focussed solely or mainly on the very issue that the judge will have to decide on the contempt application; the canvas of his judgment is infinitely broader. The focus of the contempt application will be much narrower and it is (in theory) quite possible that that narrow focus, coupled with the higher standard of proof required for the application, could produce a different result even if the evidence is essentially the same. In any event, the evidence may not be essentially the same. [31] Secondly, it is clear that Eder J feels no personal embarrassment or discomfort in considering the contempt application. Not only has he not said anything to indicate such embarrassment or discomfort; he has positively said that the fears expressed by Mr Urumov are groundless and that he would welcome his decision (which he reached with "extreme reluctance") being overturned. Since the reasons he gave for his decision are, in my view, defective, overturned it should be. [32] Usually this court will be astute to support judges exercising what I have called "this delicate jurisdiction" of recusal. But it is also important that judges do not recusethemselves too readily in long and complex cases otherwise the convenience of having a single judge in charge of both the procedural and substantial parts of the case will be seriously undermined. Of course, if the judge himself feels embarrassed tocontinue, he should not do so; if he does not so feel, he should.”
"[18] In long trials where many applications have to be decided in the course of the hearing, a party may persuade himself that a judge is biased against him as a result of his rulings. In Arab Monetary Fund v Hashim (No. 8) (1993) 5 Admin LR 348, it was suggested that Chadwick J should not continue with the case. He refused to recuse himself and, on appeal, Sir Thomas Bingham MR posed the question whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial was not possible. He continued (pages 354-355):- "…Most, if not all, of the cases in which this test has been discussed have been cases of modest dimensions. We know of no case approaching the scale of this where a charge of apparent bias has been made. That makes it the more important to recognise, as we understand to be agreed, that the hypothetical observer is not one who makes his judgment after a brief visit to the court but one who is familiar with the detailed history of the proceedings and with the way in which cases of this kind are tried. We find assistance in observations made in the Supreme Court of New South Wales by Mahoney JA in Vakauta v Kelly (1988) 13 NSWLR 502, 513A: "
“[59](i) No necessity to make the findings: the judge’s criticisms were not in my judgment necessary to enable the judge to evaluate Mr Jones’ evidence. The only issue that needed to be decided was whether Mr Jones’ evidence should be accepted: the judge held that it should not be accepted because of its inherent inconsistencies and unreliability. The question why his reports contained inadmissible material or he performed poorly as a witness – which I accept were likely to increase costs – were primarily relevant when it came to costs. As it seems to me, the judge, in making criticisms against the solicitors over their explanation to Mr Jones about his duties was concerned to ward off an application for a wasted costs order against Mr Jones (see paragraph 39 of his recusal judgment, above paragraph 34). That was to anticipate an application that had not yet been made. Even if this were not the case, there was no need to make these criticisms without inserting an appropriatequalification that they were provisional views, or views made on the limited evidenceavailable to him, thus being seen to leave the door open to the possibility that theremight be another explanation. The fair-minded observer would ask rhetorically why that had not been done. (ii) Criticisms expressed in absolute terms: The judge’s failure to leave the door openfor the possibility of some explanation when he had not heard evidence orsubmissions from the appellant solicitors gives rise to an impression of bias because itsuggests that no explanation will be considered. The impression of bias is further confirmed by the making of findings of this nature when it can be foreseen that an application for a costs order, with serious consequences for the solicitors, may result.”
“[63] I do not consider that it is necessary for me to produce my own version of the judge’s five principles. It was no doubt useful to try to formulate the principles but I do not consider that they are satisfactorily encapsulated in the judge’s principles. The first principle does not call for comment. The second principle is that a judge who isdoing no more than discharge his judicial function does not create an impression ofbias, which is well established. What occurs in that situation is adjudication, notunsought findings. The third principle is in my judgment too narrow since there are circumstances where a judge’s criticisms in his substantive judgment will cause him to be disqualified on the grounds of apparent bias from hearing a wasted costs application: Re Freudiana. To call those circumstances “exceptional” does not define them. When there is an issue of apparent bias, the test in Porter v Magill must be fearlessly applied by this court. The fourth and fifth principles overlook the possibility that mere criticism expressed in absolute terms may of itself be extreme and unbalanced because the impression to even the fair-minded observer that the door has not been left open for whatever explanation the party or non-party who has not yet had the chance of providing that explanation may have to say. These are immediate observations based on the facts of this case and should not be treated as comprehensive.”
“It is obvious that that principle would be violated if a judge were to sit in an appellate capacity to determine the correctness of his own earlier decisions or on an appeal against a conviction in a trial by jury in which he had presided.”
“In the present appeals, however, the issue does not arise in this stark form. The question for consideration is, rather, whether the involvement of the judge in an earlier stage of the proceedings should require him to recuse himself. Here, this issue appears in a novel form. Counsel were unable to refer us to any reported authority in any jurisdiction in which it had been argued that a judge who had presided at an earlier trial by jury which had been aborted should not sit on an appeal against a subsequent conviction of a defendant on the same charges in a later trial in which the judge played no part.”
“[16] A judicial ruling necessarily involves preferring the submissions of one party over another. However, it is obviously not the case that any prior involvement by a judge in the course of litigation will require him to recuse himself from a furtherjudicial role in respect of the same dispute. In the great majority of such cases therewill simply be no basis on which it could be suggested that the judge should recusehimself, notwithstanding earlier rulings in favour of one party or another, and therewill often be great advantages to the parties and to the administration of justice insecuring judicial continuity. The issue will only arise at all in circumstances whereprior involvement is such as might suggest to a fair-minded and informed observerthat the judge’s mind is closed in some respect relevant to the decision which mustnow be made. It is not possible to provide a comprehensive list of factors which may be relevant to this issue which will necessarily depend on the particular circumstances of each case. (See generally, Locabail (UK) Ltd v Bayfield Properties Ltd[2000] QB 451 per Lord Bingham of Cornhill CJ at para 25; Livesey v The New South Wales Bar Association(1983) 151 CLR 288 at p 299.) However, relevant factors are likely to include the nature of the previous and current issues, their proximity to each other and the terms in which the previous determinations were pronounced.”
“[20] In Livesey v The New South Wales Bar Association(1983) 151 CLR 288 two members of the court hearing professional misconduct proceedings against a barrister had earlier sat in similar proceedings involving the fitness of another person to be admitted to the Bar. The same factual issue featured large in both sets of proceedings. The High Court of Australia held that the judges should have recused themselves from sitting in the second case because of the appearance of prejudgment. “It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting.”
“[23] Mr Knox is correct in his submission that the fact that a judge has previously made a decision adverse to the interests of a litigant is not, of itself, sufficient to establish the appearance of bias. As Floyd LJ observed in Zuma’s Choice Pet Products Ltd v Azumi Ltd[2017] EWCA Civ 2133 (at paras 29, 30), the fair-mindedand informed observer does not assume that because a judge has taken an adverseview of a previous application or applications, he or she will have pre-judged, or willnot deal fairly with, all future applications by the same litigant. However, different considerations apply when the occasions for further rulings do not arise in the same proceedings, but in a separate appeal.”
“In the present case, during the second trial of the appellants Isaacs J had made rulings on issues of mixed questions of fact and law or involving the exercise of judicial discretion. In particular, first he had ruled against a submission of no case to answer. In doing so he had necessarily concluded that there was sufficient evidence on which a reasonable jury properly directed could convict the appellants. Secondly, he had ruled that Scott’s deposition should be admitted in evidence. In doing so he held that the statutory provision under which the application was made was not unconstitutional, that Scott’s evidence was sufficiently reliable for it to be in the interests of justice to admit it and that, in the exercise of his discretion, it was fair to admit it. Thirdly, in a further exercise of judicial discretion, he permitted dock identifications of all three appellants. These were concluded rulings on intermediate issues of major significance in the proceedings”
“The appellant's case is that the judge, by saying what he said, went well beyond giving counsel an initial indication of his thinking and expressed firm views adverse to a defendant whose evidence he had not yet heard. When therefore in his judgment next day he found against the defendant, a reasonable observer knowing what we have recounted would infer that he might well have done so because of a prior prejudice in favour of the claimants and against the defendant.”
“The test of ostensible bias is not contentious. It is whether a fair-minded observerinformed of all the relevant circumstances would have concluded that there was a realpossibility that the judge was biased. Bias in the present context has to mean thepremature formation of a concluded view adverse to one party. We put it in this way because it is well recognised not only that a judge may and commonly will begin forming views about the evidence as it goes along, but that he or she may legitimately give assistance to the parties by telling them what is presently in the judge's mind. This may properly include, as it did for example in Jacob J's decision in Hart v Relentless Records Ltd[2002] EWHC 1984 (Ch) §38, letting the parties know before reaching the defence case that the judge did not think much of the claimant's evidence. What is not acceptable is for the judge to form, or to give the impression of having formed, a firm view in favour of one side's credibility when the other side hasnot yet called evidence which is intended to impugn it. The appellant says that is what has happened here.”
“[25] It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend upon the facts, which may include the nature of the issue to be decided….. The mere fact that a judge, earlier in the same case or in a previous case, hadcommented adversely on a party or witness, or found the evidence of a party orwitness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case….. [26] ….It is, however, generally undesirable that hearings should be aborted unlessthe reality or the appearance of justice requires that they should.”
“In effect, I think [the contractors’] submission might be put in this way, that the judge has taken a certain ownership in the FTO process itself, which would permit a fair-minded and informed observer to conclude – I am glossing here the apparent bias test – ‘that there was a real possibility… that the tribunal was biased’.”
“[15] Among the matters which the fair-minded and well-informed observer would of course bear in mind, apart from those of which I have already made mention, are the factors that the judge had a responsibility to conduct the group litigation, that he was well into the conduct of that litigation and had great experience in it – and when I refer to that litigation I refer to both aspects of it, both the claim aspect and the contribution proceedings aspect of it…..”
“[18] I agree that the appeal should be dismissed for the reasons given by Rix LJ and wish to add, for the sake of emphasis only, a few words. Where a judge is entrusted to manage and eventually try a group litigation, with all of the complexities and testing of the forensic process that it involves, he is expected to immerse himself closely inthe machinery of efficient resolution of the issues raised, and also of other issues thatmay affect the litigation. Such judicial managerial involvement is of a piece with the new culture of proactive and innovative case management by the court introduced in the 1998 Civil Procedure Rules, having regard, in particular, to the overriding objective. The resultant greater familiarity of the judge with what is required and feasible for speedy and otherwise efficient disposal of a complex matter before him, including a greater professional intimacy with the parties and their concerns than hitherto was normal, may necessitate interchanges and rulings, sometimes indicative, which may, as the litigation develops, require revisiting by him. This may be interlocutory, or in rulings, or a judgment at trial. Judges involved in such an evolving process are expected, and do frequently, have occasion to reconsider their earlier case management directions or rulings, indicative or otherwise, and on occasion provisional expressions of view as to substantive issues which will fall for determination in the case. [19] To characterise too readily a judge’s response in the course of his casemanagement work of keeping a case under continuous review as conduct at risk of being perceived as bias requiring him to recuse himself could subvert the proactive role now expected of him in group litigation such as this. His earlier decisions in thatregard, right or wrong, are such that as a judge he should be expected to revisit themwhere necessary in an impartial frame of mind and change his mind if he considers itfair and just to do so. Simply because a judge has his capacity for fairness and impartiality tested in that way does not, in my view, bring him within the scope of risk of the test of bias which Mr Limb has prayed in aid as a ground for the judge to recuse himself in this case.”
“When I spoke at the beginning of this judgment about unsatisfactory features of the case, one of them to my mind is the length of delay the Family Division is having to endure in cases of this kind. That is no fault of the Clerk of the Rules nor of the judges assigned to the task of deciding these "big money" cases where millions of pounds are frequently involved. The trouble is that there are simply not enough judges to do this complicated work which takes second place to the children's cases.”
“I have given most anxious thought to whether or not I am giving sufficient credit for the robustness of the phlegmatic fair-minded observer, a feature of whose character is not to show undue sensitivity. Making every allowance for the jocularity of the judge's comments, one cannot in this day and age and in these troubled times allow remarks like that to go unchallenged. They were not only regrettable, and I unreservedly express my regret to the Sheikh that they were made: they were also quite unacceptable. They were likely to cause offence and result in a perception of unfairness. They gave an appearance to the fair-minded and informed observer that that there was a real possibility that the judge would carry into his judgment the scorn and contempt the words convey.”
“[56] There is nothing objectionable in a judge setting out his or her provisional view at an early stage of proceedings, so that the parties have an opportunity to correct any errors in the judge's thinking or to concentrate on matters which appear to be influencing the judge. Of course, it is unacceptable if the judge reaches a final decision before he is in possession of all relevant evidence and arguments which the parties wish to put before him. There is, however, a clear distinction between (a) reaching a final decision prematurely and (b) reaching a provisional view which is disclosed for the assistance of the parties. [57] In my view the fair-minded observer, with all the admirable qualities identified above, would have no difficulty in deciding this case. He would characterise the Preliminary View as a provisional view, disclosed for the assistance of the parties, not as a final determination reached before Mr Atkinson had considered Lanes' submissions and evidence.”
“The question raised is whether in doing so the judge put himself out of the running, so to speak, as the judge of the trial on the basis that, by reason of what is called prejudgment, there would appear to the fair-minded and informed observer a real possibility of bias. This is the doctrine of apparent bias: see Porter v Magill[2002] 2 AC 357 . No one is suggesting that the judge is actually biased.”
“[36] In any event, Mr Béar [counsel for Mr Ablyazov] resisted the idea that there was any obligation on Mr Ablyazov to make an application for the judge to recuse himself in advance of the opening day of the trial itself. In his submission, the moment of truth for such an application, or what Mr Béar described as the “watershed moment”, did not arrive until that time. It would only have been different if the judge had expressly raised the question of whether or not the parties had any objection to him continuing as the designated judge of trial. Only that express raising of the issue, or the arrival of the day of trial, could require Mr Ablyazov to make his election. For the rest, it must be assumed, for that was a natural explanation for his silence, that Mr Ablyazov was still in the process of making up his mind whether to object or not.”
“[55] A case closer to the situation of our case was that of Arab Monetary Fund v. Hashim(CA, unreported,28 April 1993 ) where the judgment of the court was given by Sir Thomas Bingham MR. The plaintiff Fund was seeking to recover$50 million which it alleged that its former director-general, Dr Hashim, had misappropriated from it. That action also began, as such actions generally do, with a world-wide freezing order. Hoffmann J became the designated judge. Dr Hashim complained to the Vice-Chancellor that in the course of interlocutory applications the judge had made up his mind against him. The Vice-Chancellor considered that there was no ground for that complaint at all, but as a matter of indulgence directed that while Hoffmann J should continue to hear interlocutory applications, a different judge would conduct the trial. Hoffmann J was then appointed to the Court of Appeal and Chadwick J took his place as designated judge. He conducted the pre-trial review and was subsequently 7 days into the trial when Dr Hashim drafted a letter to the Lord Chancellor to have him removed on the ground of apparent bias. However, the letter (which in being directed to the Lord Chancellor was misconceived) was never sent, apparently on legal advice. The trial continued for several more weeks, and then Dr Hashim applied to the judge to recuse himself on the ground of apparent bias. The opening weeks of the trial had been dogged by numerous further interlocutory applications, and Dr Hashim was concerned with the result of them. But he was also concerned with a remark which the judge had made in another case and which had been reported to him. Chadwick J refused to recuse himself, and his judgment was appealed. [56] This court refused to give permission to appeal, but considered the application in a full judgment. In the course of that judgment, Bingham MR said this: “In accordance with the practice now adopted in cases of this magnitude, a judge was assigned to deal with the string of interlocutory applications which were expected before trial. Such an arrangement has the obvious benefit of avoiding the wasteful duplication of time and effort necessarily involved if a series of different judges has to master the pleadings, issues and previous history of a complex case. But such an arrangement is intended to have an additional benefit:that the judge, being familiar with the case as it develops, will play a creative anddirectional role, concentrating attention on the issues which matter, discouragingunnecessary interlocutory diversions and highlighting the apparent strengths andweaknesses of the parties’ respective cases.”
“Would a reasonable and fair minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible? Most, if not all, of the cases in which this test has been discussed have been cases of modest dimensions. We know of no case approaching the scale of this where a charge of apparent bias has been made. That makes it the more important to recognise, as we understand to be agreed, that the hypothetical observer is not one who makes his judgment after a brief visit to the court but one who is familiar with the detailed history of the proceedings and with the way in which cases of this kind are tried. We find assistance in observations made in the Supreme Court of New South Wales by Mahoney JA in Vakauta v. Kelly(1988) 13 NSWLR 502 at 513A.”
“In this connection, it seems to me that the critical consideration is that what the firstjudge does he does as part and parcel of his judicial assessment of the litigation beforehim: he is not "pre-judging" by reference to extraneous matters or predilections orpreferences. He is not even bringing to this litigation matters from another case (as may properly occur in the situation discussed in Ex parte Lewin, approved in Livesey). He is judging the matter before him, as he is required by his office to do. If he does sofairly and judicially, I do not see that the fair-minded and informed observer wouldconsider that there was any possibility of bias. I refer to the helpful concept of a judge being "influenced for or against one or other party for reasons extraneous to the legal or factual merits of the case" (AF (No 2) at para [53]). I have also found assistance in this context in Lord Bingham's concept of the "objective judgment". The judge has been at all times bringing his objective judgment to bear on the material in this case, and he will continue to do so. Any other judge would have to do so, on the same material, which would necessarily include this judge's own judgments.”
“However, be that as it may, the question arises whether Mr Ablyazov’s failure to request recusal at all times from the February judgments down to19 October 2012 , and in particular as late as the pre-trial review of2 October 2012 , while still participating in the proceedings, is consistent with a subsequent request for recusal based in essence on the February judgments.”
“[89]…….In the present case, there was no mere silence, but participation inproceedings before a judge whom it was known, on Mr Ablyazov’s own case, hadconducted himself in such a way as to give rise to the appearance of bias. Moreover,there was a duty to speak, arising out of Mr Ablyazov’s duty to help the court tofurther the overriding objective (CPR 1.3 ). It was contrary to that duty to allow thecourt and the other parties to waste time and resources in preparing for a trial which,if the judge of trial had to be replaced, could not start on the fixed date, but wouldhave to be adjourned, in all probability into the following year with uncertainty as towhen it could be re-fixed. The situation was similar to the familiar case where some disclosure is made to the parties by the judge, and there is no request to the judge to recuse himself. In the present case the disclosure, on Mr Ablyazov’s own analysis, came at latest with the judge’s three judgments of February 2012 in the committal proceedings. It may be asked, what more was required of the judge, by way of disclosure, in the light of Mr Ablyazov’s own grounds for alleging apparent bias? It is unrealistic to suggest that the judge had to go on to ask whether there was any objection to him remaining the judge of trial. [90] Mr Béar submits that the watershed moment had not yet arrived, before the startof the trial itself. There is no authority to that effect. It may often happen, of course, that some disclosure is made at the start of a trial. But equally often, some disclosure is made in advance of trial, as soon as the judge realises from reading the papers that there is something which he considers needs to be disclosed. In the present case, however, the relevant disclosure, on Mr Ablyazov’s own case, came at latest in the judge’s February judgments. It was then for Mr Ablyazov to state his position.”
“It is an embarrassment to our administration of justice that recusal applications, once almost unheard of, are now so frequently coming to this Court in ways that do none of us any good. It is, however, right that they should. The procedure for doing so is, however, concerning. It is invidious for a judge to sit in judgment on his own conduct in a case like this but in many cases there will be no option but that the trial judge deal with it himself or herself. If circumstances permit it, I would urge that first an informal approach be made to the judge, for example by letter, making the complaint and inviting recusal.”
“Q: I have put to you that you have falsified your declaration to Post Office and you have done so deliberately. You have signed a Statement of Truth on your witness statement: the contents of that statement are true. What I am going to say his Lordship at the end of this trial is, as you are capable of falsifying your declaration on your accounts, you are just the sort of person who would falsify a declaration on a witness statement so you shouldn't be believed.A. That is not true.”
“[58] That was a plainly confused position on the part of the Post Office. After a degree of exploration during oral closings, this confusion was not resolved. I therefore invited the Post Office to clarify their position on this after the hearing in writing. This was done, and the Post Office submitted that “the Court should refrain from making any findings of fact on matters going to issues outside the scope of the Common Issues trial, specifically matters going to issues of breach and causation.” [59] I accept that the correct approach is not to make any findings on issues of breach, causation, or loss upon what were called Horizon Issues, which effectively deal with the operation and accuracy of the Horizon system, and whether it is robust and/or whether it had the propensity to generate errors and shortfalls. [60] The Post Office is obviously concerned that findings of fact in this judgment may affect its prospects during any future trial on breach and causation. I will not be making any findings of fact in this judgment that go to contested facts that will be dealt with as part of breach or causation. However, that is not the same as saying that the court cannot and should not deal with the credit of witnesses where this has been so directly challenged by the Post Office.”
“592. The central fact about Mr Abdulla’s evidence cannot be avoided: he lied frequently and brazenly. He began by denying that, as his interview records, his previous experience included tallying up figures. He then claimed that he read the first and second paragraphs of a letter, and then what appeared on its second page, but missed out the (from his perspective, damaging) third paragraph. He then said that a disclaimer meant that he would not have paid any real attention to a contract summary. He first claimed not to have read any of the transfer day documents, then admitted he did read the key document. He claimed that it was “definitely true” that Christine Adams and Christine Stephens were the same person, and that it was “not possible” that they were two people. He doesn’t believe it was wrong to have toldPost Office he had cash in the branch when he did not, and to have instead put anundated cheque in the till in case he was caught. Indeed, he says that he would falsifythe accounts again. He said that he was given the impression in the interview held following the revelation of his wrongdoing that if he paid back the money he would be reinstated; that was untrue, as the transcript showed. He claimed to have called the Helpline very frequently, then, when the call logs were put to him, said that in fact he gave up and stopped calling. And he claimed to believe this was all a conspiracy to eject him from his branch.”
“I find that his evidence was careful, and he was an honest, thorough and reliable witness.”
“[121] In the Common Issues trial the Post Office cross-examined Mr Bates, and made submissions about the quality of his evidence, in robust terms, as it is entitled to do. No litigant is obliged to accept the factual evidence against it, and is entitled to test and challenge that evidence when it is in dispute, and that is what the Post Office did. Mr Bates’ evidence that he did not receive a copy of the SPMC with the Letter of Appointment was described as implausible, and his assertion in this respect was said to be wholly unconvincing. Because he was a details man (he had once complained of a modest under-delivery of stamps) it was said he would surely have noticed the SPMC was not in the same envelope. He was subjected to a sustained attack. Other terms used by the Post Office to describe his evidence were risible, meaningless, nonsensical and weak. It was said he was giving evidence that was plainly wrong, but had convinced himself of the truth of his own account after years of campaigning.”
“That form of words, in my respectful submission, would appear to the fair-minded observer to be aimed at pre-empting the substantive criticisms that I have been making throughout. It is just a mantra which would not convince the observer that your Lordship had not prejudged the issues which still fall to be tried by your Lordship.”
“Post Office changed the suite of standard contracts for the purpose of the NT programme. Despite the changes, the core principles of the agent being responsible for running the branch, employing assistants, completing the accounts and liability forlosses remained the same.”
“LORD GRABINER: My response to that is first of all it obviously was in the witness statement but it was irrelevant to the matters in the trial. MR JUSTICE FRASER: Understood. LORD GRABINER: And whatever came out of the cross-examination was similarly irrelevant.”
“2. The Post Office’s case is that there is what it called an “interpretative spectrum” of contracts, ranging from sophisticated contracts which have been carefully negotiated and/or professionally drafted at one end, to more informal contracts at the other. The Post Office submits that the SPMC and the NTC are at the “more sophisticated” end of that spectrum. So far as negotiation of the terms is concerned, the Post Office reliesupon the fact that the negotiation of the terms of the NTC was done between the PostOffice and the NFSP, as though they were parties in a commercial bargaining positionat arm’s length from one another.”
“345. Neither of those tests [ie for implied terms] is met as regards changes made withthe agreement of the NFSP, a body tasked with protecting the interests of SPMs. Thecontract itself provides an express “control mechanism” (namely, the need to obtainapproval from the NFSP), and this precludes any implied restriction. In Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland [2013] B.L.R.265 at para. 139, Lewison LJ stated as follows: “Where the contract itself expressly provides the control mechanism, especially where the control mechanism is an objective test, there is no warrant for implying a different one” 346. It is an objective test whether or not the NFSP has granted its approval for achange, and there is nothing incoherent (whether practically or commercially) in theparties agreeing to such a control mechanism, to the exclusion of any impliedrestriction. If the parties had been asked at the time of contracting whether changesagreed by the NFSP were subject to any additional restriction, they would not havereplied with a terse “of course” but with confusion as to why any further restrictionwould be necessary. The NFSP could be expected to block any highly controversialchange, leaving it to Post Office to decide whether or not to impose the change or any similar change without the benefit of agreement (in which circumstance the implied restriction will apply).”
“B.1 Factual Matrix 76. Post Office asserts that the following matters are important aspects of factual matrix against which the various Subpostmaster Contracts relied on by the Claimants should be construed. (1) Subpostmasters typically stood to benefit from the relationship with Post Office in at least two respects: first; by obtaining remuneration in accordance with their Subpostmaster Contracts and, second, as a result of offering Post Office services in the Subpostmasters’ premises, by enjoying increased footfall and revenue for the retail business that Subpostmasters typically operated alongside the Post Office business. (2) Subpostmasters contracted with Post Office on a business to business basis and in the expectation of profiting from the business relationship as noted above. (3) Subpostmasters were under no obligation and no pressure to contract with Post Office on the terms that it offered or at all. (4) Post Office was unable to monitor at first hand the transactions undertaken in branches on its behalf, in relation to which it was liable to Post Office clients. Thesetransactions and the manner in which they were carried out were the responsibility ofthe relevant Subpostmasters. (5) Post Office was unable to monitor at first hand the custody and use of its property(principally, cash and stock) in branches. Again, these matters were the responsibilityof the relevant Subpostmasters. (6) Post Office relies on the accurate reporting by Subpostmasters of accounts,transactions and the cash and stock held at the branch. Should Subpostmasters notaccurately report these things, it would be impossible or alternatively excessivelydifficult to determine (i) if a shortfall has occurred, (ii) when it occurred and/or (iii)why it occurred. See further paragraphs 68 and 69 above. (7) Given the nature of Post Office’s business and the variety of transactions and processes required for the operation of a Post Office branch, it would be impracticable for all of the parties’ rights and obligations to be set out in a single contractual document. It was to be expected that Post Office would rely upon manuals and other documents containing instructions.”
“Issues 8 and 9 concern the proper approach to responsibility for losses. They shouldbe considered against the factual background of how accounting works in a PostOffice branch, as described by Angela Van Den Bogerd at paras 73 to 82 and 126 to 140 of her witness statement.”
“17…. “Post Office does not have a day-to-day presence in the branches. It relies on SPMs to accurately conduct and record transactions and to take proper conduct of Post Office’s cash and stock. Post Office is exposed to the full range of frauds (both determined schemes and those instances of false accounting which begin as relatively innocent attempts to make the numbers work). It is also exposed to SPMs’ error, and to fraud or errors by assistants (whom only the employing SPM is in a position to supervise). 18. This reliance provides crucial context for three important aspects of the parties’ relationship. 19. First…… 20. Second…… 21. Third, and most importantly, SPMs act as Post Office’s agents when transacting Post Office business, with all the ordinary obligations and liabilities that agency entails. Ultimately, Post Office cannot (and does not seek to) supervise or prescribe in detail everything that SPMs do in operating the agency business, but the basic fact is that SPMs are transacting Post Office business on its behalf. As with a more straightforward commission-based agency, SPMs are generally remunerated by reference to the number and value of Post Office transactions they carry out. Theexpress and implied terms of the SPMC and the NTC need to be viewed through theprism of an expressly created agency relationship, and so the express contractualterms sit atop the body of law regulating the duties of agents to their principals. Thecommon law principles of agency are important background to the contracts. And anyimplied terms need to be considered (and shown to be necessary) against that agencybackground.”
“Section 1: the specific findings of fact referred to in paragraph 24 of my fourteenth witness statement.”
“955. I have certain (non-binding) observations on the evidence that was given beforeme by both sides in the Common Issues trial in terms of training. A great effort was made by the Post Office to explain in detail how the training was structured and what its content included. Some evidence was given by the Lead Claimants of their experiences of the training, which the Post Office initially sought to strike out of their witness statements. That attempt failed, and once it was admitted as evidence, however, the court then at least had both sides of the story. This painted a very different picture to that presented by the Post Office witnesses.”
“[57]. Finally, before turning to the individual witnesses, the Post Office adopted a curious position on the credit of some witnesses. There were issues of fact between some of the Lead Claimants and the Post Office on matters that went to the Common Issues. For example, for Mr Bates it was in issue whether he actually received a copy of the SPMC before he took over the branch. For Mr Abdulla, the sequence of buttons and commands which would be pressed by him as a SPM at the end of a Trading Period to generate a Branch Trading Statement was also the subject of contested facts. Although the Post Office made submissions as to these witnesses’ credit – for example Mr Abdulla was said to have “lied frequently and brazenly” (in paragraph 592 of the Post Office’s Closing Submissions) and some of his evidence was said to be “new and obviously untrue” (paragraph 593) the Post Office in Closing Submissions initially invited me not to make findings on credit. [58]. That was plainly a confused position on the part of the Post Office. After a degree of exploration during oral closings, this confusion was not resolved. I therefore invited the Post Office to clarify their position on this after the hearing in writing. This was done, and the Post Office submitted that “the Court should refrain from making any findings of fact on matters going to issues outside the scope of the Common Issues trial, specifically matters going to issues of breach and causation.”
“59. I accept that the correct approach is not to make any findings on issues of breach,causation, or loss upon what were called Horizon Issues, which effectively deal withthe operation and accuracy of the Horizon system, and whether it is robust and/orwhether it had the propensity to generate errors and shortfalls. 60. The Post Office is obviously concerned that findings of fact in this judgment may affect its prospects during any future trial on breach and causation. I will not bemaking any findings of fact in this judgment that go to contested facts that will bedealt with as part of breach or causation. However, that is not the same as saying that the court cannot and should not deal with the credit of witnesses where this has been so directly challenged by the Post Office. A finding, say, in Mr Bates’ favour on issues of fact such as whether he received a copy of the SPMC has to be made one way or the other, as that affects the formation of contractual terms in his case. That isnot however (if that finding is in Mr Bates’ favour) to say that thereafter and for alltime in these proceedings everything that Mr Bates says in evidence will as a result beaccepted uncritically by the court on future other issues. All a court can do is weigh up the evidence before it, observe it being tested against the other side’s evidence and the documents that are put to a witness, and come to a conclusion. 61. The Post Office also invited me specifically “Not [to] take account of evidence which, while it may go to the witness’s credibility, risks trespassing on a future trial or trials”
“I have made it clear that I will make no findings concerning breach, causation or loss in this judgment, as these are for later rounds of the litigation.”
“In my judgment the correct approach is to consider the evidence that was led by all the parties in the Common Issues trial, but not to make findings on matters that are more properly to be dealt with in later trials, such as the operation and efficacy of the Horizon system, breach, causation and loss.”
“Mrs Stubbs was then audited on8 June 2010 for a closing audit by someone who said she was being suspended. As she put it, she was locked out of her own post office. I will not dwell upon the effect on Mrs Stubbs, which was profound. These will fall to be considered during the future trials on breach, causation and any loss. She sold her branch Post Office.”
“I do however make those comments without making findings on anything to do with breach, causation or loss.”
“I make it clear that I make no findings in relation to the issues to be dealt with in later trials, namely Horizon Issues, breach, causation and loss. It should therefore be clear that I make no findings on whether he [Mr Abdulla] falsified his accounts to the Post Office at the time, and if so, how, because that is not an issue before me in this trial.”
“Whether she [Mrs Stockdale] was right to act as she did at the time regarding her accounts is a matter for another trial. As with the other Lead Claimants, I am making no findings in respect of breach, causation or loss.”
“As with the other Lead Claimants, I make no findings concerning breach, causation or loss. Also, and again this applies to all six of the Lead Claimants, my acceptance of their evidence does not mean that all or any future evidence on all the other issues will automatically be accepted uncritically.”
“I make no findings on any matters connected with breach, causation or loss.”
“It must be understood with crystal clarity that I am not making findings on these substantive and serious issues in this judgment. Whether the Post Office was guilty of acting in the ways complained of by the Claimants can only be resolved later in these proceedings after other trials.”
“This judgment does not contain any findings as to breach, causation or loss, and therefore it remains to be decided in future judgments whether the Post Office has behaved in the way in which Claimants allege….”
“[116] This shortfall occurred in the early days of Horizon, December 2000. Between that date and March 2002 therefore, it had been brought to the Post Office’s attention by at least one SPM (Mr Bates) and potentially others (on the Claimants’ case) that there were shortfalls and discrepancies being thrown up by Horizon that the SPMs in question could not properly investigate. The Post Office’s response, eventually, at least so far as Mr Bates was concerned, was to write off the amount that could not be explained in this instance only, but to say that this was effectively a one-off solution and move on as though nothing was amiss. [117] The full subsequent trial of Mr Bates’ claim will show what, if any, consideration was given at the Post Office internally not only to this shortfall, but others (if there were others) in the period December 2000 to March 2002. If the Post Office did in reality do what Mr Bates suggests they did – namely bury their heads in the sand, press on regardless, and chase numerous SPMs for shortfalls and discrepancies caused by the Horizon system – then that would be behaviour of an extraordinary kind, and given the criminal implications for some SPMs, may be extraordinarily serious. On the other hand, Mr Bates’ shortfall in December 2000may, upon investigation by the Post Office, have been put down to early difficultiesby SPMs in operating or understanding the new system and writing off the amountmay have been decided upon as a pragmatic solution in the circumstances. I make nofindings either way at this stage of the proceedings in this judgment.”
“I make it quite clear that I do not speculate on any of that. Nor is it possible to know what the outcome of the trial of the Horizon Issues will be later this year.”
“I accept her account of contract formation and the fact she never received, nor did she have any knowledge of, the SPMC.”
“…..Mr Sabir’s evidence on this, which I accept, matches the other evidence from other Lead Claimants about in-branch training. Whatever the intentions of those who designed such training, which one supposes was to supplement and build on the classroom training, in practice for these Lead Claimants it was rather different. It is characterised by the trainers observing rather than training, and also by early departures from the branch itself by the trainers. I do however make those commentswithout making findings on anything to do with breach, causation or loss.”
“[221]…… “A letter of10 January 2010 told him that “you are contractually obliged to make good any losses incurred during your term of office for up to six years after your last day of service (Limitations Act 1980 )”
“[269] The Post Office’s case was put very squarely that he was lying, the submissionbeing that he “lied frequently and brazenly” and that some of his evidence was “newand obviously untrue”
“The Horizon system would show that there was a discrepancy at the branch, whichso far as the SPM was concerned would have arisen through unexplained shortfalls and discrepancies.”
“[40] To quote selectively from the above [ie the pleadings], the defendant's case is that a sub-postmaster who has settled an account "is bound by that account unless and to the extent that he discharges the burden of demonstrating that there are mistakes in the account". A different way of expressing what may be the same point is that "Subpostmasters who allege that they are not liable for any losses disclosed in their branch accounts bear the burden of proving that such losses were not caused by "any negligence, any carelessness, or any error on their part". Given that the defendant expressly pleads as part of the factual matrix the matters at paragraph 76(4), (5) and (6) in particular, I do not see how it can be said that the evidence challenged in thewitness statements going to each individual Lead Claimant's personal experience ofhaving shortfalls identified, then their attempts to work out what had happened andhow it had happened, can be said not to be relevant, or that it will never besufficiently helpful to make it right to allow the Lead Claimants to adduce suchevidence. The defendant's own pleading relies upon its interpretation or account ofthese events as part of the factual matrix, and does so expressly. Yet further, at paragraph 93(1)(a) of the Generic Defence, the defendant pleads that a certain inference or presumption arises "in the absence of evidence from a Subpostmaster to suggest that a shortfall arose from losses for which he or she was responsible". Given a considerable amount of the evidence challenged goes to establishing that there was such evidence, and hence the inference or presumption should not be applied to the resolution of the Common Issues, it is hard to see how such evidence can be said not to be of any relevance.”
“[567] The whole of this litigation is aimed at resolving the disputes involved between the different SPMs and the Post Office.”
“Whether she was right to act as she did at the time regarding her accounts is a matter for another trial. As with the other Lead Claimants, I am making no findings in respect of breach, causation or loss.”
“Whether this is justified will only be resolved after further trials, and this judgment does not contain findings on breach, loss or causation.”
“Q: Being fair to you, Mrs Ridge, trying to do your job, would that information [have been] pretty helpful to you?A. It would have done. Q. But you didn't have it, did you? A. No. Q. And nor did Mr Abdulla. So you weren't able to look at this and say, well, actually, this is a bit odd because they are accepting that an error has been made on£1,092 , and so it's a bit strange there are three previous ones.A. It would have been a bit odd.”
“Completing the transfer and then expecting the branch to open in the afternoon is a very optimistic expectation. In all but a handful of cases the money transfer for the business does not take place until at least 2pm on the day of the transfer and it is quite often later than that. Once the money has transferred the incoming is then pulled in all directions. trying to learn from the outgoing what all the keys open and close, learning the locking up process, how the tills work. dealing with stock takers, removal men, agreeing meter readings, putting beds together so the children have somewhere to sleep that night. numerous phone calls from the bakery/ milk/ newspaper supplier wanting to set up accounts etc etc. The last thing they want to do serve in the PO. So you either get the staff running the branch, which is OK as you can get them coached in minimum sales standards (if required) but this could obviously be completed later in the week. However as the on-site FSA you want the new Sub-postmaster and it is very rare to see him/her. If a single person branch you get a very harassed person who wants/needs to be elsewhere and he/she takes nothing in. No matter how much you stress on the pre-transfer telephone call what the expectation is in my experience it does not happen successfully very often. I feel we should go back to lunchtime transfers and leave the PO closed pm. As branches are generally busier mornings that afternoons anyway less customers would inconvenienced. Branches where there are staff or the Sub wants to could still open after the transfer once the money has gone through and it would make better use of FSA time as we would not need to attend until lunchtime in all but the busiest branches where it may be beneficial to go a bit earlier. We would not to sit around for at least half a day and sometimes considerably more awaiting the transfer of funds. I am of course aware that there would be an additional cost of one day on site training if it was decided to stick to the same delivery package as at present. but this would in my opinion be justified as the valueof day one on site in terms of training is generally worthless.”
“This judgment does not contain any findings as to breach, causation or loss, and therefore it remains to be decided in future judgments whether the Post Office has behaved in the way in which Claimants allege…..”
“We talked about this case when I was in St. Albans last month & it is still on-going. I visited there today & was too scared to accept a cup of tea in case the Horizon system crashed cos the electricity supply is still a live (excuse the pun) issue. The balances are a mess (in pre Horizon times - the Postmistress virtually achieved a clean balance every week) & I've got the RNM going in there next Wednesday to see what actually happens on the ground but I worry that something like 25 re-boots in one day is having an effect overall. Need your best offices to get this case to a proper solution - she keeps getting promises of attention - but nothing is actually being done now to clear up the problem. It is Horizon related - the problems have only arisen since install & the postmistress is now barking & rightly so in my view. Help please.” (the bold emphasis “It is Horizon related” is present in the original) In the answer sent from Sue Locke back to Frank Manning on2 November 2000 at 09:24 she asked: “Frank - As discussed when you visited, can you confirm that the office have had an independent electrician visit it and that the problems are due to the electrics input by Horizon?”
“Answer is YES to both points.”
“The system -- there is no Legacy Horizon system still in operation that people can goand check, that people are still operating. People are working off their recollectionsand off design documents that are now very elderly and that problem has been compounded by the fact that when Mr Roll made his witness statement in 2016 -- it was provided in September last year -- the things that he said in that witness statement were quite hard to follow and we will see how hard they were to follow when he gives evidence later on this week.”
“The central fact about Mr Abdulla’s evidence cannot be avoided: he lied frequently and brazenly”
“This is misuse of Post Office funds and false accounting”
“Q: You knew your declarations were untrue.A. No. Q. And you knew you were misleading Post Office? A. No, I don't agree. Q. And you did so deliberately? A. No.”
“[14] The background situation that has led to this application suggests, sadly, that this counter-productive approach lurks in the background to this application. The defendant first made complaint – or raised concerns – about the scope of the claimants' evidence about one year ago in October 2017. Given the statements themselves were only served in August 2018, that shows considerable, if not almost supernatural, foresight on the part of the defendant. There have been various proxy wars about the claimants' witness statements in the period from October 2017 onwards, even though no such statements were in existence. Indeed, notwithstanding the high number of interlocutory appearances before me, it was a rare hearing when the subject was not mentioned. Given there were no witness statements available to be considered on the majority of these occasions (and indeed not at all prior to the short notice hearing on11 September 2018 ), this was a highly unusual situation.”
“[26] The application by the defendant to strike out this evidence appears to be an attempt to hollow out the Lead Claimants' case to the very barest of bones (to mix metaphors), if not beyond, and to keep evidence with which the defendant does notagree from being aired at all.”
“[32] When one considers the purpose of this Group Litigation, attempting to strike out such evidence now on the grounds of lack of relevance at this stage of the proceedings to the Common Issues seems to me to be rather puzzling. Mr Green QC relied very heavily that this was Group Litigation and what may not be of primary and direct relevance to one Lead Claimant could very well be of considerable relevance to a large number of the others. I accept that submission. He also submitted in his written skeleton that the application "appears to be an attempt by Post Office to secure an advantage at the Common Issues Trial by selectively tailoring the evidence which the Court is to consider." I accept that submission too; the application certainly gives that appearance.”
“The National Federation of Subpostmasters (the NFSP) is an independent members' organisation supporting operators of Post Office branches across the UK and is solely acknowledged by Post Office Limited as a represented body of operators.”
“[722] It follows that I therefore do not consider that what the Claimants refer to as“the imbalance of power” has any effect upon whether the contracts are relationalones. This appears to me to be equivalent to saying “the contract terms are unfair;please re-balance them by finding they are relational contracts”
“[724] There is no doubt that the Post Office is in an extraordinarily powerful position compared to each and every one of its SPMs. It appears to wield that power with a degree of impunity. However, I do not consider any of the complaints of imbalance ofpower are relevant to the determination of the correct categorisation of the contractualrelationship, and whether the contracts are relational ones. Onerous and unusual terms, incorporation thereof and considerations of the applicability of theUnfair Contract Terms Act 1977 are dealt with separately, but I repeat that it is thecircumstances of the relationship, defined by the terms of the agreement, set in itscommercial context, that is what decides whether a contract is relational or not. Thisplainly must be considered at the time of contracting.”
“42. It is a matter for the Horizon Issues trial whether it would be right to infer or presume that a shortfall and loss was caused instead by a bug or error in Horizon.”
“72. Some Subpostmasters and assistants may act dishonestly in the conduct of their branches, including in defrauding the Post Office.”
“MR JUSTICE FRASER: Mr Green, do bear in mind what -- you have to remember what the actual issues are in this case. MR GREEN: My Lord, I have them well in mind. MR JUSTICE FRASER: I am being fairly tolerant at the moment. MR GREEN: This comes to an end quickly. It is quite important.”
“However, should I in the fullness of time make findings on the Common Issues by taking into account matters irrelevant in law (and hence inadmissible) on some of those Common Issues, there is a remedy available”
“[39] Our system of civil justice has developed a tradition of delivering judgmentsthat describe the evidence and explain the findings in much greater detail than is to befound in the judgments of most civil law jurisdictions. This requires that a judgmentdemonstrates that the essential issues that have been raised by the parties have beenaddressed by the court and how they have been resolved. In a case (such as this) which largely turns on oral evidence and where the credibility of the evidence of a main witness is challenged on a number of grounds, it is necessary for the court to address at least the principal grounds. A failure to do so is likely to undermine the fairness of the trial. The party who has raised the grounds of challenge can have no confidence that the court has considered them at all; and he will have no idea why, despite his grounds of challenge, the evidence has been accepted. That is unfair and is not an acceptable way of deciding cases.”
“4. It is submitted that the costs should be reserved, because it is too soon to tell whether any Claimant will be successful.”
“In my judgment, however, concepts of analogy or overlap are too general and amorphous to give definitive shape to the doctrine of pre-judgment in what must always be a fact-sensitive enquiry.”
“However, even if I do seek to apply the concept of overlap, in my judgment the judge was right to say and Mr Smith was right to submit that the overlap between the issues at the committal proceedings and at trial will be small.”
“I have now had a total of 10 separate interlocutory hearings with these parties in a 12 month period prior to the trial of even the first issues. The legal advisers for the parties regularly give the appearance of taking turns to outdo their opponents in terms of lack of cooperation. Behaviour from an earlier era, before the overriding objective emerged to govern all civil litigation, has appeared to become almost the norm, at least from time to time. One would have thought that all of the parties involved in this litigation would wish to resolve the many different issues between them – which are highly controversial – fairly, speedily and with as much cost-efficiency as possible. I am making no findings about this at this stage, and which party is primarily responsible for this state of affairs is only likely to be considered, if at all, at the final costs stage of the litigation, far in the future. However, it appears to me that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute. I made similar comments in Judgment No.1. These must have fallen on deaf ears, at least for some of those involved in this case.”
“However, this application regrettably falls into a pattern that has, in my judgment, clearly emerged over the last year at least. Attempts are being made to outmanoeuvre one another in the litigation, and tactical steps have led to constant interlocutory strife. This is an extraordinarily narrow-minded approach to such litigation.”