Bates V Post Office: Claimants' Skelelton For Recusal

THE POST OFFICE GROUP LITIGATION
Claim No. HQ16X01238, HQ17X02637 & HQ17X04248
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Before The Hon. Mr Justice Fraser
B E T W E E N:-
ALAN BATES & OTHERS

Claimants
– and –
POST OFFICE LIMITED

Defendant
CLAIMANTS’ SKELETON ARGUMENT

FOR HEARING OF RECUSAL APPLICATION
― Recusal application on grounds of alleged apparent bias ―
― Basis of application confined to judgment ―
― Alleged overlap of findings with later trials ―
― Allegedly irrelevant “critical invective” against the Post Office ―
― Allegedly irrelevant “harsh criticisms” of some Post Office witnesses ―
― Context and judicial assessment ―
― Group Litigation and Managing Judge ―

Table of Contents
Table of Contents
INTRODUCTION AND OVERVIEW ............................................................ 4
THE APPLICATION ........................................................................................ 10

Timing ............................................................................................................................ 10
Basis of the Application .............................................................................................. 11
No Particulars ................................................................................................................ 12
Particulars in Parsons 15 ............................................................................................. 14
Effect ............................................................................................................................... 15
RELEVANT LAW .............................................................................................. 17

The test ........................................................................................................................... 17
The fair-minded and informed observer ................................................................. 17
Judicial assessment of the litigation ......................................................................... 20

Dispute facts and credibility ..............................................................................................20
Overlap .................................................................................................................................21
Designated and Managing Judges ............................................................................ 26
Current thinking........................................................................................................... 28
Leaving the door open ................................................................................................. 30
ALLEGED IRRELEVANCE ............................................................................. 35

Generic Statements of Case & Common Issues ..................................................... 36
Individual Statements of Case ................................................................................... 40
Correspondence ............................................................................................................ 41
Evidence ......................................................................................................................... 41
Claimants’ Evidence ............................................................................................................41
Post Office’s Evidence .........................................................................................................42
Admissibility Application ..................................................................................................44
Conclusion ..................................................................................................................... 46
PARAGRAPHS IN ISSUE ............................................................................... 48
CONCLUSION .................................................................................................. 50
2
Table of Contents
ANNEX 1 – Irrelevant findings overlapping with future trials .................................. 52

Introduction ................................................................................................................... 52
Training .......................................................................................................................... 53
Helplines ........................................................................................................................ 59
Post Office Knowledge of Horizon Problems ........................................................ 67
Cause of Shortfalls ....................................................................................................... 69
SPM Discovery of Cause ............................................................................................. 72
PO Investigation of Shortfalls ................................................................................... 76
Suspension and Termination ..................................................................................... 77
Unjustified Demand and Threats ............................................................................. 78
Unknown / Other.......................................................................................................... 79
Findings about LC credibility ............................................................................................79
Disputing Discrepancies and TCs .....................................................................................83
Conclusion ..................................................................................................................... 84
ANNEX 2 – Irrelevant critical invective & harsh findings ........................................... 85

Introduction ................................................................................................................... 85
Irrelevant “Critical Invective”.................................................................................... 85
Irrelevant harsh criticisms of Post Office witnesses ............................................. 96
3
INTRODUCTION AND OVERVIEW
1. On Thursday, 21 March 2019, the Court was hearing Day 8 of the Horizon Issues Trial;
the factual evidence was nearing completion. Over the course of that second week,
significant concessions had been made by the Post Office and Fujitsu witnesses, which
it was immediately apparent might be relied upon by the Claimants as advancing their
case on the Horizon Issues and undermining key premises of the Post Office’s expert
evidence. Without prior warning, the Court and the Claimants received a recusal
application (‘the Application’) from the Post Office.
2. The grounds of the Application alleged apparent bias of the Managing Judge,
“manifested in the judgment handed down in this matter on 15 March 2019”. In the Common
Issues Judgment (“the Judgment”), the Court found overwhelmingly in favour of the
Claimants on the Common Issues – which now appears to be at the root of the Post
Office’s complaints in its Application.
3. The Judgment is, on any view, a careful and detailed Judgment, prepared by a Managing
Judge conscious of the importance of the matters to be resolved before him, the
significance of the evidence he heard and the overall management and resolution of this
Group Litigation in accordance with the overriding objective, particularly by way of
further trials. The treatment of the evidence is meticulous and reflects the care and
attention which the Court paid to the evidence throughout the trial. The Judgment also
assesses witness credibility fairly and objectively (as is evident, for example, in the
careful and distinct treatment of the Post Office’s own witnesses and their evidence). In
short, the matters complained of are all matters which form part and parcel of the
judicial assessment of the case was it was presented to the Court by the parties. That
provides no foundation for allegations of apparent bias, as now alleged by the Post
Office, which are without merit.
4. However, by the mere making of the application, the Court was bound to ensure that it
was fully and fairly ventilated, notwithstanding the inevitable disruption to the Horizon
Issues Trial. Any such application must have been carefully considered and the
implications of making it obvious to the Post Office.
4
5. The covering letter to the Court asked that the Application be treated as urgent and
listed as soon as possible. The Managing Judge duly adjourned the Horizon Issues Trial
(after finishing the evidence of a witness whose evidence was nearly complete, with the
agreement of the parties) and gave directions for the Application, which will be heard
on Wednesday, 3 April 2019. This is the Claimants’ Skeleton Argument for that hearing.
6. Aside from the pervasive unreality of the challenges made to the Judgment, there are
three striking features of the Application.
(1) No particulars: First, there were no particulars in the Application or
supporting witness statement. There were none on the face of the Application,
in box 3 which simply stated the basis of the Application to be “the apparent bias
of the Hon. Mr Justice Fraser, as manifested in the [Common Issues Judgment]”. The
evidence relied upon was the Fourteenth Witness Statement of Mr Parsons
(‘Parsons 14’), which did not identify the findings, observations or criticisms
relied upon. Instead, it broadly asserted three categories of complaint:-
Overlap: Paragraphs 22 to 24 assert that the Court made “findings, or
observations, on a wide range of matters which properly fall to be decided
at the Horizon Issues Trial or at future breach trials” (para. 22, with
examples in para. 23) and that these “findings give the clear impression
that the Judge has already formed a firm view on these matters” which is
to be expected will prevent him from taking an impartial view on the same
matters in those trials “with the benefit of full evidence and disclosure”
(para.24). Not a single example of such a finding or observation was
identified.
Irrelevant critical invective: Paragraph 25 complains of “a great deal of
critical invective directed at Post Office, none of which is relevant to the
determination of the Common Issues [which] creates the clear impression
that the judge has not behaved impartially”. Again, not a single example
was identified.
5
Irrelevant harsh criticisms: Paragraph 25 goes on to allege that the same
impression is created by “those parts of the judgment which harshly
criticise Post Office’s witnesses on matters irrelevant to the Common
Issues”.
It was not until the Fifteenth Witness Statement of Mr Parsons (‘Parsons 15’)
that the Post Office in fact identified the paragraphs of the Judgment relied
upon – a step that Post Office resisted, as addressed further below.
(2) Collateral attack: The second striking feature of the Application is that it
effectively amounts to a collateral attack on the Common Issues Judgment itself
and the propriety of the Judge’s resolution of the Common Issues. Whilst
paragraph 24 of Parsons 14 (above) is prospective and focuses on the Judge’s
ability to deal with future issues impartially, by contrast, paragraph 25 of
Parsons 14 specifically alleges that the Court appears not to have acted
impartially in the Common Issues Judgment. It amounts to an attempt to
appeal that judgment by a side-wind. It also amounts to a collateral attack on
aspects of Judgment No.2, the Admissibility Judgment, which was heard and
determined before the Common Issues Trial and which the Post Office elected
not to appeal.
(3) Own making: Finally, the complaints made by Post Office arise directly from
the way in which the Post Office itself elected to plead, present and adduce
evidence in support of its case – all of which were also reflected in the
challenges which the Post Office elected to make of the Claimants evidence
during the course of the Trial. This would be recognised by fair-minded and
informed observer. Post Office expressly sought factual findings on many of
the matters it now contends to be out of scope. Those matters did not suddenly
fall out of scope simply because the findings were not those the Post Office
sought from the Judge.
7. The Claimants submit that the Application is based upon an unfair and unwarranted
mischaracterisation of both the Judgment itself and what actually happened at the trial.
6
8. In the Judgment, the Judge correctly resolved matters that were put in issue before him.
He did so in the light of the evidence adduced, how it was challenged and the case
advanced by the parties before him. A party cannot be surprised when a Judge makes
findings on a point, when the same party has elected to adduce evidence on that point,
or to cross-examine on it.1
9. The Judge rightly made his assessment of the above matters and resolved the Common
Issues in the light of the parties’ pleaded cases – in particular, Post Office’s expressly
pleaded case on issues of construction (and its procedural election not to amend that
case).2 This approach was a proper and necessary part of his judicial assessment of the
proceedings before him and affords the Post Office no basis upon which to impugn the
appearance of judicial impartiality.
10. Should it be necessary, just and appropriate, any Judge can sensibly be expected to
revisit any findings in the light of new evidence at a later trial. That is plainly recognised
to be so where, as here, (a) the Judge repeatedly reminds himself of the potential need
to do so in the course of his Judgment and (b) where he is the Managing Judge in
ongoing group litigation. Any fair-minded and realistic appraisal of the Judge’s
approach would recognise this.
11. As to the alleged irrelevant “critical invective” against Post Office and “harsh criticisms”
of Post Office witnesses, it is striking that Post Office does not assert that there was no
proper foundation for such findings or criticisms, but rather relies upon the Court
having formed an adverse view in relation to supposedly irrelevant matters.
12. In any event, these matters were not irrelevant. In many cases, they were relevant
because of the Post Office’s expressly pleaded case as to how the relevant contracts
should be construed, or in the resolution of issues directly arising from challenges
1 See Miller v Associated Newspapers Limited [2014] EWCA Civ 39, esp. at [15], [19] and [23]
2 As explained below, Post Office was repeatedly invited to withdraw the case which it had
expressly pleaded and, apart from attempting to finesse it by the provision of Voluntary Further
Information, did not do so. A party may be held to its election as to whether or not to amend it
pleadings: see, for example, Hayles v Stewart (18 November 1986) [1986] Lexis Citation 678, [1986]
11 WLUK 177
7
mounted before the Court by the Post Office’s own cross-examination of Lead
Claimants.
13. It does not lie in the Post Office’s mouth to complain that the Judge resolved matters
that the Post Office itself elected to put in issue and contested before him, or on which it
expressly invited him to make findings – less still as a basis upon which to seek to derail
the entire group litigation by alleging apparent bias.
14. In any application alleging apparent bias, context is of central importance (as reflected
in the observations above).
15. A further insight into the relevant context is revealing, namely, the unusual approach to
the Common Issues Trial for which the Post Office unsuccessfully contended. The Post
Office effectively sought a very one-sided resolution of the issues before the Court at the
Common Issues Trial, on the following basis:
(1) construction of the relevant contracts in the light of pleaded assertions of fact
as to the parties’ relative abilities to discover and investigate shortfalls and their
cause (see e.g. §, below);
(2) evidence in relation to those assertions of fact only from the Post Office’s
witnesses (as per Post Office’s submissions on the Admissibility Application –
see §, below);
(3) either no challenge to the Post Office’s witnesses giving such evidence or no
adverse findings in relation to that evidence or their credibility if their evidence
did not come over well or was successfully challenged in cross-examination;
(4) findings on the factual assertions underpinning the Post Office’s case on
construction, but only if they were favourable to Post Office;
(5) acceptance by the Court that the NFSP was ‘independent’3 of the Post Office, for
the purposes of both:
3 Mr Beal’s witness statement at §45 {C2/2/10}
8
characterisation of the entire litigation, on the basis that the NFSP “is the
organisation which represents SPMs and their interests nationwide, does not
support this action and does not endorse the factual premises of the Claims”;4 and
particular aspects of the Common Issues, relying upon the NFSP’s
involvement in negotiations regarding the Post Office’s exercise of its
power to change contractual terms within its standard contracts and in the
change from the SPMC contracts to the NTC contracts.
16. In short, the Post Office sought a trial in which it could not lose. It now complains that
this approach was not adopted by the Court. No litigant is entitled to special treatment,
nor was the Post Office entitled to the approach which it unsuccessfully urged upon the
Court. The flaws, internal inconsistencies and unfairness inherent in such an approach
are numerous and obvious, but can be amplified orally if necessary.
17. The Court cannot be fairly be criticised for making a judicial assessment of both parties’
cases, evidence and witnesses in the usual way, particularly on the basis of the parties’
respective pleaded cases and the way their cases were actually advanced at the Common
Issues Trial.
4 The Post Office’s Opening {A/2/6} and Closing at {A/8/9}, Cf. Claimants’ Closing §205 {A/6/93}
9
THE APPLICATION
THE APPLICATION
Timing
18. Draft Judgment: The parties were provided with a draft of the Judgment for the
Common Issues Trial on Friday, 8 March 2019. The parties were invited to submit a list
of typing corrections and other obvious errors in writing. The Post Office submitted
such a list, although it is of note that the Post Office did not ask for any criticisms of its
witnesses to be removed from the draft Judgment, on the basis that such criticisms were
allegedly irrelevant (nor on the basis that they were unjustified). This is in context where
the Post Office’s list of suggested corrections went beyond mere typographical
corrections, on several occasions proposing substantive changes to the judgment. One
example of this can be found in the Judgment at §525,5 in which the Judge found that
the Post Office’s approach was to treat Branch Trading Statements as though they were
an agreed and settled account between agent and principal. The Post Office challenged
this by pointing to its Written Closing Submissions, and the new case set out therein at
§98(a). The Judge noted this observation and directly addressed the position in the
Judgment as handed down by adding to the content of §525.
19. Judgment: The Common Issues Judgment was handed down in its final form on Friday,
15 March 2019 as Judgment No.3.
20. Despite the guidance of the Court of Appeal in El-Farargy v El Farargy and ors [2007]
EWCA Civ 1149, the Post Office did not in the first instance make an informal approach
to the Judge by way of, for example, a letter, making any complaint and inviting recusal.6
21. The Application: On Thursday, 15 March 2019 – which was the fourth day of the Post
Office’s witnesses being cross examined in the Horizon Issues Trial – the Post Office
issued, filed and served its unheralded recusal Application, seeking an order that, “due
to the apparent bias of the Hon. Mr Justice Fraser, as manifested in the judgment handed down
5 {B7/29/159}
6 An approach which Ward LJ (with the agreement of Mummery and Wilson LJJ) urged if the
circumstances permitted it: see El-Farargy v El Farargy and ors [2007] EWCA Civ 1149 at §32.
10
THE APPLICATION
in this matter on 15 March 2019, the Hon. Mr Justice Fraser shall no longer be the Managing
Judge of these proceedings” {B9.1/1}. The Application was accompanied by the fourteenth
witness statement of Mr Andrew Parsons (“Parsons 14”) {B9.3}.
Basis of the Application
22. As noted above, the Application is based on two very distinct footings:-
22.1. Prospective difficulties: First, the Post Office relies upon an allegation that Mr
Justice Fraser made findings or observations in Judgment No.3 on a “wide range of
matters which properly fall to be decided at the Horizon Issues Trial or at future breach
trials”.7 It is said, therefore, that there is “the clear impression that the Judge has
already formed a firm view on these matters” and “this will prevent him from taking an
impartial view on the same matters when they are revisited, at subsequent trials, with the
benefit of full evidence and disclosure.”8
22.2. Failure to behave impartially: Second, the Post Office relies upon unspecified
parts of Judgment No.3 which it is said contains “a great deal of critical invective
directed at Post Office, none of which is relevant to the determination of the Common
Issues”, and other (again unspecified) parts of Judgment No.3 “which harshly
criticise Post Office’s witnesses on matters irrelevant to the Common Issues” – these are
said to create “a clear impression that the Judge has not behaved impartially”.9
23. In the paragraphs leading up to setting out these distinct footings, Parsons 14 provides
an overview of the chronology between the filing of the Lead Claimants’ Individual
Particulars of Claim for the Common Issues Trial, and the refusal of the Post Office’s
application to strike out large swathes of the Lead Claimants’ witness statements for that
same trial (the “Admissibility Application”, which resulted in “Judgment No.2”).10
This chronology is dealt with in detail further below. For present purposes, it suffices
7 Parsons 14, §22 {B9.3/1/6}

8 Parsons 14, §24 {B9.3/1/6}
9 Parsons 14, §25 {B9.3/1/6}
10 Parsons 14, §14 to 20 {B9.3/1/4-5}
11
THE APPLICATION
to note that, in the context of an application in which the Post Office is alleging apparent
bias on the part of the Managing Judge, Mr Parsons has identified several passages in
transcripts in which the Managing Judge gave “warnings” to the Claimants in relation to
the potential admissibility of their evidence and, in particular, as to the risk of “swingeing
costs consequences”11 which would follow in the event that the Court struck out large
amounts of that evidence. Despite these being expressed in strong terms, on several
occasions, the Claimants approached the issue on the normal footing that the Court
would nonetheless be open to persuasion if and when the matter was fully argued, on
any application to strike out the Claimants’ evidence. And so it proved. Despite
strongly expressing his provisional views to the Claimants as described above,
Judgment No.2 shows that the Judge was amenable to considering the issue with an
open mind, having heard full argument. Nothing in Mr Parsons’ evidence appears to
recognise the significance of this. That said, it is important to note that the Application
makes no allegation that the Judge’s resolution of the Admissibility Application was
either wrong or anything other than actually and apparently impartial.
No Particulars
24. As noted in section A above, no particulars were provided in Parsons 14 of any sections
of the Common Issues Judgment which were said to give rise to either the alleged
prospective apparent difficulties or past apparent failure to behave impartially.
Unusually, given that charges of apparent bias are not lightly to be made, on service of
the Application that day, the Claimants had to seek an Order that particulars of the
alleged apparent bias should be provided, so that both the Court and the Claimants
could know what was being said and so that the Claimants could consider whether or
not to contest the Application on an informed basis and whether to put in any evidence
in reply – well in advance of a Skeleton Argument shortly before the hearing.
11 The relevant section of the transcript, referred to in Parsons 14 at §17.b {B9.3/1/4}, uses the word
“cringing”, but in fact the word used at that hearing was “swingeing” (as the Post Office correctly
asserted in its Skeleton Argument for the strike-out application)
12
THE APPLICATION
25. The need for such particulars should have been obvious. Identification of proper
particulars was a necessary pre-condition to the preparation and making of the
Application and provision of such particulars should have been uncontroversial.12
26. However, even that was resisted by the Post Office. As the Court fairly reminded
Leading Counsel for the Claimants, Leading Counsel for the Post Office in the Horizon
Issues Trial is not instructed for the Application.13 However, he nonetheless felt able to
address the Court on procedural matters and in relation to the proposed provision of
particulars, submitted as follows: 14
“MR DE GARR ROBINSON: My Lord, responding to my learned friend's submission,
he puts his point as a requirement for particulars. The truth is this is a matter of
argument, and your Lordship and indeed my learned friend, have already had no shortage
of arguments. There was an overwhelming number of those arguments at the common
issues trial. It is not necessary for there to be a list of critical findings in your Lordship's
judgment, everybody knows what those findings are and my learned friend's suggestion
that he needs particulars in order to decide his position on the application is frankly
surreal.” [emphasis added]
27. That submission was rightly rejected, and the Court ordered the Post Office to file and
serve a witness statement by midday on 26 March 2019 “that identifies (i) the specific
findings of fact referred to in paragraph 24 of Parsons 14, (ii) the “critical invective” referred to
in paragraph 25 of Parsons 14 and (iii) the criticisms of Post Office witnesses referred to in
paragraph 25 of Parsons 14.”: §3.1 of the Order dated 22 March 2019 {B9.2/1/1}.
12 “The starting position for any application of this type is that it must immediately be made on a basis which
clearly sets out, with particularity, the aspects of the judgment in this case and findings which are said to
demonstrate apparent bias of the court … the reason for that is it affords the party on the other side an
opportunity to consider, with clarity, whether they wish to resist the application or not.” Horizon Issues
Trial, Day 8 Transcript at {Day 8/134:7} {B10.1/8/35}
13 Although, Mr de Garr Robinson QC made clear that he was not instructed by the Post Office on
the Application.
14 Horizon Issues Trial, Day 8 Transcript at {Day 8/129:19} {B10.1/8/34}
13
THE APPLICATION
Particulars in Parsons 15
28. Purportedly in accordance with §3.1 of the Order dated 22 March 2010, the Post Office
filed and served the fifteenth witness statement of Mr Parsons (“Parsons 15”) on 26
March 2019. However:
28.1. §4 of Parsons 15 states (emphasis added): “The extracts below are the principal sections
of the Judgment on which Post Office intends to rely at the application hearing but it is
not an exhaustive list of all the points made in the Judgment that support Post Office’s
application. Post Office will also rely, in its application, on the structure, tenor and
subject-matter of the Judgment as a whole.” {B9.3/3/2}
28.2. Further, in each of the sections which then follows, the opening words are: “The
sections upon which Post Office will particularly rely…” (§5, §6 and §7 of Parsons 15).
29. The Claimants wrote immediately, on the same day, expressing their concern that the
Post Office had failed to identify all of the matters in the Judgment that it intended to
rely upon and, consequently, the risk that the Post Office might ambush both the Court
and the Claimants with further complaints (Freeths’ third letter to Womble Bond
Dickinson dated 26 March 2019 {B9.6/4}). In response, the Post Office said that it did not
agree that the witness statement fails to comply with the Order and arguments beyond
the witness statement or any ambush could be dealt with by submissions at the hearing
(Womble Bond Dickinson’s sixth letter to Freeths dated 26 March 2019 {B9.6/5}).
30. Further correspondence ensued the following morning, 27 March 2019, during which
the Claimants enquired as to whether the Court could accommodate a mention.15
31. Before the parties appeared before the Court, Womble Bond Dickinson’s letter to Freeths
dated 27 March 2019 {B9.6/7}, expressed greater clarity, stating that there were “no
15 At 10:22am, on Wednesday, 27 March 2019, the Claimants made enquiries as to the Court’s
availability for a mention. About an hour later (at 11:20am), the Post Office sent a letter purporting
to clarify its position (by which time the Court had already said it would accommodate a mention
at 12.15). In all the circumstances, to comply with the directions given by the Court, the Claimants
then (at 11:43) confirmed that they would oppose the Application, as then understood it. As noted
below, the parties then attended briefly before the Court at 12.15.
14
THE APPLICATION
further paragraphs which it wished to identify in accordance with the Order” and that “Your
clients now have the benefit of a 44-page witness statement filed in accordance with the Order
and have notice of the parts of the Judgment to which Post Office objects.”
32. Before the Court, Mr Cavender QC explained the Post Office’s position as follows
{B9.7/1/3-4}:
So it may well be that Lord Grabiner will want to say - - because he’s doing the talking
- - that - - you know, that the background, the tenor, the area of the judgment in which
the finding of fact occurs has some relevance. So all it ’ s trying to do is reserve the
ability of the advocate to make his submissions. But that doesn’t, in any way,
undermine or gainsay or expand the findings of fact and the other paragraphs that
your Lordship ordered be identified and have been identified.
So we’re not - - we’re only trying to keep open that little bit of wriggle room which
you have in submissions. We’re not going to say: oh, and by the way, look at this
tranche of evidence too. But we might refer to other paragraphs of the judgment, to
give these paragraphs context - - put them in context.
33. The Managing Judge was content to resolve the matter without making any order, on
that basis.16
Effect
34. As briefly noted above and expanded upon further below, the effect of the Recusal
Application not simply to challenge the propriety of the Managing Judge continuing to
hear the Horizon Issues Trial, which, by Day 8, had nearly reached the conclusion of the
evidence of fact. It is also a collateral, but fundamental, attack on the Common Issues
Judgment and, more obliquely, upon Judgment No.2 (on the admissibility of the Lead
Claimants’ evidence), despite the fact that the Post Office elected not to appeal Judgment
No.2 and do not suggest that Judgment No.2 was wrong or tainted by apparent bias.
16 {B9.7/1/11} “I am content that the content of those letters, together with what Mr Cavender has said, make
it clear the basis upon which the Post Office seeks to argue the recusal application. If there ’ s any further
points that arise in concrete terms next week, rather than, effectively, in principle, in isolation, well, then,
you can deal with them in your submissions opposing the application”
15
THE APPLICATION
35. In group litigation of this type, the effect of the Application could not be more serious.
The basis upon which the Application has been made is likely, if not calculated, to derail
the entire group litigation and, if successful, force the parties effectively to go back to
square one, by vitiating the Common Issues Judgment as well as halting the Horizon
Issues Trial. Although this is very serious, it is well established that the consequences
are no bar to the Application if the charges of apparent bias are properly made out – the
authorities demonstrate as much.
36. That said, the context of the group litigation and how group litigation is conventionally
managed and resolved is highly relevant to any objective appraisal of whether or not
the Post Office’s charges of apparent bias are so made out at all.
16
RELEVANT LAW
RELEVANT LAW
The test
37. The now classic formulation of the test to be applied is that stated by Lord Hope in Porter
v Magill17 namely:
whether the fair-minded and informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal was biased.
38. It is uncontroversial that in applying that test, the court must have regard to the context:
per Rix LJ in R (on the application of Lewis) v Redcar and Cleveland Borough Council.18 The
test therefore falls to be:
applied to the whole spectrum of decision-making, as long as it is borne fully in mind

that such a test has to be applied in very different circumstances and that those
circumstances must have an important and possibly decisive bearing on the outcome.
39. Thus, as ever, all depends upon the context.
40. The “inference of apparent bias is not to be lightly drawn” nor is it “to be lightly made”. That
being the case: “Counsel’s duty to the court and to the wider interests of justice in our judgment
requires that he should not lend himself to making such an application unless he is
conscientiously satisfied that there is material upon which he can properly do so”. 19
The fair-minded and informed observer
41. The fair-minded and informed observer is not the same as a disappointed litigant, as the
litigant lacks to objectivity of the fair-minded and informed observer:20
17 [2001] UKHL 67, [2002] 2 AC 357, at [103] {B9/5/8}; see also Mitchell v Georges [2014] UKPC 43,
[2015] 3 LRC 392 at 397 {B9.5/26}
18 [2008] EWCA Civ 746, [2009] 1 WLR 83, at [93] {B9.5/17}
19 Arab Monetary Fund v Hashim and another (1994) 6 Admin LR 348 at 355D-E {B9.5/6}
20 Harb v Prince Abdul Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556, at [69] {B9.5/29} – in that
case, the Court of Appeal rejected an allegation of apparent bias of Peter Smith J, who said to be
17
RELEVANT LAW
But the litigant is not the fair-minded observer. He lacks the objectivity which is the
hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a
stressful and expensive business. Most litigants are likely to oppose anything that they
perceive might imperil their prospects of success, even if, when viewed objectively,
their perception is not well-founded.
42. The opinion of the notional informed and fair-minded observer is not to be confused
with the opinion of the litigant. The “real possibility” test is an objective test. It ensures
that there is a measure of detachment in the assessment of whether there is a real
possibility of bias: Helow v Secretary of State for the Home Department.21
43. As Lord Hope also said in Porter v Magill at para 103, the “real possibility of bias” test “is
in harmony with the objective test which the Strasbourg court applies when it is considering
whether the circumstances give rise to a reasonable apprehension of bias”.
44. As is clear from Helow v Secretary of State for the Home Department, the characteristics of
the fair-minded and informed observer are as follows:
“2. The observer who is fair-minded is the sort of person who always reserves judgment
on every point until she has seen and fully understood both sides of the argument. She
is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000)
201 CLR 488, 509, para 53. Her approach must not be confused with that of the person
who has brought the complaint. The “real possibility” test ensures that there is this
measure of detachment. The assumptions that the complainer makes are not to be
attributed to the observer unless they can be justified objectively. But she is not
complacent either. She knows that fairness requires that a judge must be, and must be
seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses.
She will not shrink from the conclusion, if it can be justified objectively, that things
that they have said or done or associations that they have formed may make it difficult
for them to judge the case before them impartially.
3. Then there is the attribute that the observer is “informed”. It makes the point that,
before she takes a balanced approach to any information she is given, she will take the
trouble to inform herself on all matters that are relevant. She is the sort of person who
apparently biased against members of Blackstone Chambers (and through them, against their
clients).
21 [2008] UKHL 62, [2008] 1 WLR 2416 {B9.5/16}
18
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takes the trouble to read the text of an article as well as the headlines. She is able to put
whatever she has read or seen into its overall social, political or geographical context.
She is fair-minded, so she will appreciate that the context forms an important part of
the material which she must consider before passing judgment.
45. In El Farargy, the Court considered ill-judged, objectively offensive and impermissible
remarks made by a judge. As to the characteristics of the fair-minded and informed
observer, Ward LJ said this:
[31] 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. […]
46. A natural corollary to the test of the fair-minded and informed observer is that judges
should not be too ready to recuse themselves, unless this objectively justified. In the
particular context of the issues raised in El Farargy, Ward LJ said this at [32]:
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. Whilst judges must heed the exhortation in Locabail not to yield to
a tenuous or frivolous objections, one can with honour totally deny the complaint but
still pass the case to a colleague. […]
47. In the wider context of Locabail (UK) Ltd v Bayfield,22 the Court of Appeal gave judgment
in five applications for permission to appeal in relation to disqualification of judges on
grounds of bias. Lord Bingham (CJ), Lord Woolf (MR) and Lord Scott (VC) together
gave the judgment of the Court. At [22], the Court recognised that parties should be not
22 [2000] QB 451 {B9.5/7}
19
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encouraged to think by seeking the disqualification of a judge on grounds of bias, they
will have their case tried by a more favourable court,23 observing as follows:
We also find great persuasive force in three extracts from Australian authority. Mason
J., sitting in the High Court of Australia, said in In re JR.L., Ex parte C.JL. (1986)
161 C.L.R. 342, 352:
"Although it is important that justice must be seen to be done, it is equally

important that judicial officers discharge their duty to sit and do not, by
acceding too readily to suggestions of appearance of bias, encourage parties to
believe that by seeking the disqualification of a judge, they will have their case
tried by someone thought to be more likely to decide the case in their favour."
48. However, it is clear that if there is, objectively, a real possibility that the Court is not
impartial, such doubts as to the Court’s impartiality are to be resolved by recusal. This
does not dilute the test for recusal; it merely explains it.
Judicial assessment of the litigation
49. Where what the judge does, is done as part and parcel of his judicial assessment of the
litigation before him, he is judging the matter before him, as he is required to by his
office. If the judge does so fairly and judicially, the fair-minded and informed observer
would not consider that there was any possibility of bias.
50. There are essentially two distinct facets of the Application which, at least analytically
arise in reverse order, namely the making of findings on the case as presented to the
Court (as part and parcel of the judge’s function) and the extent to which doing so can
be said to put the Judge’s impartiality into real question in resolving subsequent issues
in the litigation.
Dispute facts and credibility
51. Assessments of disputed facts and credibility, and of the stance taken by the parties to
the litigation, are quintessential examples of exercises which are part and parcel of the
judicial assessment of the litigation before the Court. It is arbitrary and wrong for a
23 As also noted by Rix LJ at [46] in Ablyazov {B9.5/21}
20
RELEVANT LAW
disappointed litigant to seek selectively to parse from a judgment adverse findings, so
as to isolate them from their proper context or the way in which the case was actually
pursued at trial, or to characterise such assessments as showing the Court to have
stepped outside its proper judicial function.
Overlap
52. Even if there is a risk of overlap with future matters to be decided, the judge will not
compromise his impartiality by reaching findings on such matters, in the course of his
judicial assessment of the litigation before him.
53. In O'Neill No 2 v Her Majesty's Advocate (Scotland),24 Lord Hope cited aspects of the
decision in Ablyasov with approval as follows, at [51]:
In JSC BTA Bank v Mukhtar Ablyazov (Recusal) [2012] EWCA Civ 1551, [2012]
NLJR 1536, the question was whether a judge had been right not to recuse himself as
the nominated judge of trial, in circumstances where he had had to hear, prior to trial,
an application to commit one of the parties for contempt of court and had found a
number of contempts proven, by reason of the doctrine of apparent bias in Magill v
Porter. Rix LJ, delivering a judgment with which Toulson and Maurice Kay LJJ
agreed, pointed out in para 65 that, although the principles of apparent bias are now
well established and were not in dispute in that case, the application of them is wholly
fact sensitive. In para 70 he said that it seemed to him that the critical consideration is
that what the first judge does, he does as part and parcel of his judicial assessment of
the litigation before him “He is judging the matter before him, as he is required by his
office to do. If he does so fairly and judicially, I do not see that the fair-minded and
informed observer would consider that there was any possibility of bias.
54. JSC BTA Bank v Ablyazov and others (No 9)25 itself concerned an application for permission
to appeal against Teare J’s refusal to recuse himself, for alleged apparent bias, from
hearing the trial of the actions, in which the designated judge in the Commercial Court.
For present purposes, in the grounds of the proposed appeal, Mr Ablyazov asserted that:
24 [2013] UKSC 36, at [51] {B9.5/22}

25 [2012] EWCA Civ 1551, [2013] 1 WLR 1845 {B9.5/21}
21
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(a) it was inappropriate for a judge who had heard and determined a committal
application against a defendant, which had involved a detailed inquiry into
matters relating to that defendant and relevant to a later trial, to hear that later
trial, at the risk of justice not being seen to be done; and
(b) the fair-minded and informed observer, having considered the facts, would
conclude that there was a real possibility that the judge was biased in relation to
the issues to be considered at that later trial.
55. The Court of Appeal disagreed.
56. The finding complained of is set out at [7] and was that:
notwithstanding the clarity and firmness with which Mr Ablyazov gave much, though
not all, of his evidence I concluded that I could place little weight on his denials and
could only accept what he said if it was supported by reliable contemporary evidence.
57. At [19], Rix LJ noted that, when giving judgment upon the recusal application, Teare J:
57.1. considered extensive authorities (both domestic and from the ECHR);
57.2. referred to what has been said in the authorities about:
a. balancing the principles that justice must be seen to be done and litigants not
being allowed to pick their own judges or disrupt proceedings unfairly; and
b. the role of the fair-minded and informed observer;
57.3. found assistance in the considerations that findings against a litigant do not by
themselves give rise to an appearance of bias, but that the influence of matters
“extraneous to the legal or factual merits of the case”26 might do;
57.4. asked himself by reference to the possibility of an “overlap” between issues
previously considered and issues yet to be considered (cf Hauschildt v Denmark27
26 See SSHD v AF (No 2) [2008] 1 WLR 2528, at [53] {B9.5/15}

27 (1990) 12 EHRR 266 {B9.5/5}
22
RELEVANT LAW
and Sengupta v Holmes28) to what if any extent there was an overlap between
matters that he had already considered in the interlocutory and in particular in the
committal proceedings and matters that he would have to decide at trial
(concluding that the overlap was a narrow one).
58. At [27], Rix LJ summarised the principal submission on behalf of the appellant, which
focused on the effect of past decisions overlapping with issues yet to be determined, as
follows:
On behalf of Mr Ablyazov, Mr Béar has submitted, essentially by reference to the main

judgment in the contempt proceedings, that the judge has been involved in such pre-
judgment of issues overlapping with issues which would arise at trial that apparent
bias has been established. He focuses in particular on three aspects of that pre-
judgment: first, on the judge’s acceptance that the bank had proved Mr Ablyazov’s
ownership of certain companies, an issue of ownership which would arise again at
trial, albeit in connection with other assets. Secondly, he submits that the
methodology, the reasoning process by which the judge reached his conclusions,
including the judge’s rejection of the credibility of Mr Ablyazov and his witnesses,
will be repeated. Thirdly, he submits, in general, that the fair-minded observer will not
be able to conclude that a judge who has already found a defendant guilty of
concealment of his assets, lying and forgery, can avoid giving the appearance of bias
in a subsequent trial. It needs, however, to be repeated that he does not say that the
judge is actually biased, or that he has ever, in the numerous hearings which he has
conducted or judgments which he has written, given to Mr Ablyazov anything other
than fair and impartial treatment (even if his conclusions remain disputed). Nor does
he complain about the language in which the judge has expressed himself, with a single
exception, when the judge, during the July hearing, said that he would have to proceed
‘with a certain degree of caution’ in relation to Mr Ablyazov’s evidence, since “When
Mr Ablyazov says ‘Black is black’, the court has got to consider whether black truly is
black”.
59. Rix LJ noted that the appellant was not able to point to a single Strasbourg authority, in
a civil case, in which the Strasbourg court had found a judge to have been required to
recuse himself for apparent bias on the ground of pre-judgment by reason of his being
involved in preliminary hearings prior to trial, at [29].
28 [2002] EWCA Civ 1104 {B9.5/9}
23
RELEVANT LAW
60. The Court went on to consider the situations in which a judge necessarily has to form
and express a view on matters but goes on to have further involvement in a case. These
include, for example (a) where a judge gives summary judgment, it is reversed on appeal
and they must continue to hear the case;29 (b) the common practice in family matters of
the same judge trying both fact-finding hearings and the determinative care
assessment;30 of (c) in the case of a designated judge in the Commercial Court,31 a matter
further addressed in this skeleton argument below.
61. At [68] onwards, Rix LJ identified the particular considerations arising where as part of
an application for committal arising during proceedings, a judge hears cross-
examination of a witness and later hears from the same witness at trial, as follows:
68. Special considerations may arise in such cases. Where a judge has had to form and
express a view as to the credibility of a party or an important witness as a result of
such cross-examination, should that require the recusal of that judge from further
involvement in the litigation, even where he does so, as in this case, in moderate terms?
Committal applications have to be judged on the criminal standard of proof, so that,
where such an application has resulted in a finding of contempt of court, the judge has
applied a standard of proof higher than that of a civil trial.
69. On the other hand, in any event the findings of the judge are part of the res gestae
of the proceedings. They are, as it were, writings on the wall, and would need to be
considered (subject to appeal of course), for any relevance, in any subsequent
proceedings and at trial, by the same judge or by any other judge. They may not even
be appealed, or, as in this case, they may be appealed and upheld, so that in either event
it is not possible to say that the judge was in error.
62. Rix LJ observed that certain findings might give rise to issue estoppels which would not
only have to be taken into consideration by any judge at trial, but would be binding
upon the court. As to findings of that nature, a distinction is to be drawn as follows,
also in [69]:
29 Rix LJ, at [66]

30 Rix LJ, at [66]
31 Rix LJ, at [65]
24
RELEVANT LAW
What then is the difference between the judge who bears in mind his own findings and
observations, and another judge who reads what the first judge has written, as he must
be entitled to do? Mr Béar submits that in the case of the first judge who has heard
and written, the impact of what he has learned is the more direct, immediate and
powerful, and that that is a critical distinction. However, it seems to me that, unless
the first judge has shown by some judicial error, such as the use of intemperate, let me
say unjudicial, language, or some misjudgment which might set up a complaint of the
appearance of bias, the fair-minded and informed observer is unlikely to think that the
first judge is in any different position from the second judge—other than that he is
more experienced in the litigation.
63. As the Supreme Court noted in O’Neill (above), in Ablyazov Rix LJ held that the critical
consideration was whether what the first judge did formed part of his or her judicial
assessment of the litigation, without reference to extraneous matters. To quote in full:
70. In this connection, it seems to me that the critical consideration is that what the
first judge does he does as part and parcel of his judicial assessment of the litigation
before him: he is not “pre-judging” by reference to extraneous matters or predilections
or preferences. He is not even bringing to this litigation matters from another case (as
may properly occur in the situation discussed in Ex p Lewin; In re Ward [1964]
NSWR 446 , approved in Livesey v New South Wales Bar Association 151 CLR 288).
He is judging the matter before him, as he is required by his office to do. If he does so
fairly and judicially, I do not see that the fair-minded and informed observer would
consider 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”: see Secretary of State for the Home Department v AF
(No 2) [2008] 1 WLR 2528 , 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.
64. It is important to have in mind that the same evidence may be relevant to different issues
for different purposes. That is trite. A necessary, but not sufficient, step in the analysis
is to consider the purpose for which the parties had adduced and contested the evidence
and for which the Judge had resolved that conflict. The Judge frequently made clear
that he was well aware that some of his findings would need to be revisited in due course
for other purposes. The possibility of an overlap with later findings to be made is far
25
RELEVANT LAW
from a basis upon which a judge’s impartiality is to be impugned, as illustrated by Rix
LJ in Ablyazov:
71. Mr Béar has relied on the language used by the European Court of Human Rights
in Morel v France 33 EHRR 1118 about “analogous” issues, or by Teare J's
consideration of the concept of an “overlap”. He submits that *1872 the issues at trial
will be “analogous” and that they will overlap the issues considered in the committal
proceedings. 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 inquiry. In Sengupta v Holmes [2002] EWCA Civ 1104;
The Times, 19 August 2002 Keene LJ spoke, by reference to Hauschildt v Denmark 12
EHRR 266 , of a judge having to decide “the same question”. Identity of issue is a test
easier to apply than analogy or overlap: but at any rate in civil matters, absolute
identity will lead in the direction of issue estoppel and will not matter. As Mr Béar
accepted, Hauschildt was of course a criminal case, and there is understandably a real
difficulty in a judge deciding in effect the ultimate issue of guilt or innocence at a
merely pre-trial hearing and then going on to judge that same issue at trial. In England
that particular difficulty is avoided by introducing the jury only at the trial stage and
being cautious as to what evidence may be placed before it. In sum, I find such concepts
of analogy, overlap, and even identity, difficult theoretical concepts with which to work
in this necessarily fact-sensitive area.
65. The bare assertion of an overlap is unlikely to take an application very much further and
provides a fairly threadbare basis for the Application – even before the all-important
context is considered.
Designated and Managing Judges
66. In Ablyazov32 the Court of Appeal noted that the authorities showed that:
“No example of a designated judge being required to recuse himself or herself has
been found.”
32 Supra
26
RELEVANT LAW
67. The Court of Appeal considered the particular context of long running litigation being
case-managed by a designated judge in Otkritie International Investment Management Ltd
and others v Urumov:33
“[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.”
68. Whilst the test is an objective one, in Otkritie the Court of Appeal found it appropriate,
in the circumstances, to uphold the appeal against Eder J’s decision to recuse himself.
He was restored as the [designated] Judge despite his decision having been taken in the
exercise of a “delicate jurisdiction.”34 Longmore LJ went on to comment that:
it is also important that judges do not recuse themselves 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 to continue, he should not do so; if he does not
so feel, he should.
69. The position of a Managing Judge in a group litigation has been recognised by the Court
of Appeal to have very particular characteristics. In A-B & Ors v British Coal Corporation
& Anr,35 Auld LJ said this:
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 the complexities and testing of
the forensic process that it involves, he is expected to immerse himself closely in the
machinery of efficient resolution of the issues raised, and also of other issues that may
affect the litigation. Such judicial managerial involvement is of a piece with the new
33 [2014] EWCA Civ 1315 {B9.5/25}

34 [2014] EWCA Civ 1315, at [29]
35 [2006] EWCA 172 {B9.5/12}
27
RELEVANT LAW
culture of proactive and innovative case management by the court introduced in the
1998 CPR , 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 case-management
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 that regard, right or
wrong, are such that as a judge he should be expected to revisit them where necessary
in an impartial frame of mind and change his mind if he considers it fair 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.
70. The established practice and expectation, sanctioned above by the Court of Appeal, for
Managing Judges to revisit findings or decisions which they may have made provides
important context for any proper assessment of this Application.
Current thinking
71. It is not in the English tradition for Judges only to break their silence when giving
judgment. An indication of a judge’s current thinking is not necessarily indicative of
apparent bias and, indeed, will often be appropriate – see, for example, the robust
expressions of the Judge’s current thinking regarding the scope of relevant evidence for
the Common Issues Trial, which the Judge conscientiously re-considered with an open
28
RELEVANT LAW
mind when he heard full argument on the Post Office’s application to strike out evidence
adduced by the Claimants.36
72. This situation is more likely to arise in the context of group litigation that is actively case
managed by a Managing Judge. In Arab Monetary Fund v Hashim and another, 37 Sir
Thomas Bingham, then Master of the Rolls, said:
on the whole the English tradition sanctions and even encourages a measure of
disclosure by the Judge of his current thinking. It certainly does not sanction the
premature expression of factual conclusions or anything which may prematurely
indicate a closed mind. But a Judge does not act amiss if, in relation to some feature of
a party’s case which strikes him as inherently improbably, he indicates the need for
unusually compelling evidence to persuade him of the fact. An expression of scepticism
is not suggestive of bias unless the Judge conveys an unwillingness to be persuaded of
a factual proposition whatever the evidence may be.
73. Indications of current thinking or of the need for unusually compelling evidence in
relation to a particular matter commonly arise in managing complex litigation, and were
found not to be indicative of apparent bias in the context of a complex fraud trial in
Hashim, in which there had been many interlocutory applications determined by an
assigned judge.
74. By contrast, it is accepted that a judge would go beyond his or her remit in expressing,
before hearing both sides of the evidence, a prematurely formed but concluded view
adverse to one party. This had happened in Amjad and others v Steadman-Byrne38 in which
the judge expressed a concluded view of that nature before any evidence had been
called by the Defendant. At [10], Sedley LJ commented:
The test of ostensible bias is not contentious. It is whether a fair-minded observer

informed of all the relevant circumstances would have concluded that there was a real
possibility that the judge was biased. Bias in the present context has to mean the
premature formation of a concluded view adverse to one party. We put it in this way
36 It is perhaps ironic that, at paragraphs 14 to 20 of Parsons 14, the Post Office has chosen to highlight
this, ostensibly in support of the Application.
37 (1994) 6 Admin LR 348 at 365B {B9.5/6}
38 [2007] 1 WLR 2483; [2007] EWCA Civ 625 {B9.5/13}
29
RELEVANT LAW
because it is well established 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) at [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 form view in favour of one side’s credibility when the other side has
not yet called evidence which is intended to impugn it. The defendant says that is what
has happened here.
Leaving the door open
75. There may be circumstances in which a judge may properly make observations and even
findings leaving the door open for their re-consideration in the light of further evidence
to be heard at a later hearing or from other sources.
76. In Mengiste v Endowment Fund for the Rehabilitation of Tigray,39 the Court of Appeal
considered criticisms made by the trial judge of solicitors, who had neither been
afforded an opportunity to explain matters nor themselves given evidence. The judge
had made findings about the solicitors without hearing evidence as to what they had
done and without any prior warning. He then refused to recuse himself in an
application for wasted costs against the solicitors, who now appealed that decision. The
Court of Appeal noted that the judge had made repeated, clear, unqualified and
outspoken criticisms of the appellant solicitors, essentially blaming them for the poor
quality of the expert evidence of Mr Jones. The judge had also held:
These duties and [Mr Jones’s] potential exposure if his evidence was given recklessly
or negligently was not explained to him by the claimants' lawyers when he signed his
expert's report (contrary to the Expert Witness Protocol). This latter point I found
particularly concerning. In effect Mr Jones was thrown to the wolves without any
proper protection or advice as to the nature of his role and his duties and his potential
liabilities.
39 [2013] EWCA Civ 1003, [2013] 5 Costs LR 841 {B9.5/23}
30
RELEVANT LAW
77. The judge did not improve matters by bedding in his criticisms, in his judgment refusing
the recusal application, nor by (unfairly) criticising the appellant solicitors for their
failure to inform him of a possible recusal application as soon as they had wind of an
application for a wasted costs and (wrongly) inferring that this was tactical: see [59 iii)].
78. In this extreme case, the Court of Appeal departed from the normal rule in Bahai v
Rashidian,40 in which the trial judge had been very critical of the evidence given by a
solicitor, whom the judge considered had an overriding desire to see that his client won
the case and that he was prepared to act improperly if he thought it would assist his
objective. The judge in Bahai went on to deal with a costs application. The Court of
Appeal held that a costs application should normally be determined by the trial judge
and that a judge who criticised the conduct of a witness in the proper exercise of his
judicial function could not be said to be biased. Accordingly, the judge was right to
refuse to recuse himself on the application for costs.
79. In Mengiste, the Court of Appeal held that there was no need for the judge to make such
repeated criticisms of the appellant solicitors without inserting an appropriate
qualification that they were provisional views, or views made on the limited evidence
available to him, thus being seen to leave the door open to the possibility that there
might be another explanation. The fair-minded observer would ask rhetorically why
that had not been done. The repeated failure to make express such qualifications and
the repeated expression of the unqualified criticisms established the appearance of bias.
80. Again, any appraisal of the need to leave the door open to future re-consideration (and
the extent to which the Court has appreciated that) will be sensitive to context.41 The
announcement of provisional findings at an ill-advised press conference by an auditor,
so as to generate a risk of unfair reporting, did not establish any real possibility of bias:
Porter v Magill at [105]. Context will always be important.
40 [1985] 1 WLR 1337 {B9.5/3}

41 See, for example, Feld v Barnet London Borough Council; Pour v Westminster City Council [2005] LGR
411 {B9.5/9.1}
31
RELEVANT LAW
81. When findings are made, the mere fact that they are adverse to one party or another is,
self-evidently, not necessarily indicative of apparent bias. In Otkritie the Court of Appeal
considered Locabail42 in this context, at [25] per Lord Bingham, then Lord Chief Justice:
The mere fact that a judge, earlier in the same case or in a previous case, had
commented adversely on a party or witness, or found the evidence of a party or witness
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.
82. The Court of Appeal in Otkritie went on to conclude that the authorities to which it had
referred made clear:
that the mere fact that the judge has made adverse findings against a defendant (or any
party to an action) does not mean that a fair-minded and informed observer would
think the judge was biased. That is so, even if the findings are expressed to be “clear”
or “clear beyond doubt”. That is just the judge doing his duty as a judge in dealing
with the matters in controversy before him. The fact that the judge did not accept
arguments that Otkritie have been in breach of their disclosure obligations or that they
had procured their witnesses to commit perjury is likewise no more than the judge
doing his job, not evidence of a lack of even handedness.
83. Likewise, a series of interlocutory applications may go against one party. This is may be
explained by a number of factors before the fair-minded and informed observer would
conclude that there was a real possibility that the tribunal was biased. In Hashim this
point was put in the following terms:
In a case such as this, in which interlocutory applications proliferate it may well be

that one side fares more successfully, perhaps much more successfully, than the other.
There are a number of possible explanations for this, the most obvious being that the
successful part has shown greater judgment, discrimination and knowledge of the
rules than its opponent. Mr Ross-Munro accepted, as we understood, that no inference
of apparent bias could be drawn from the fact that most, or all, interlocutory
applications had been decided against Dr Hashim. We agree. He also disclaimed any
42 Supra
32
RELEVANT LAW
attack on the correctness of Chadwick, J’s interlocutory decisions. This we find

puzzling. It must, we think, be hard to show consistent unfairness in the absence of
consistent error.
84. The question of whether it may reasonably be apprehended that a Judge will approach
subsequent decisions with a closed mind was considered by the Court of Appeal in
Sengupta v Holmes.43 As to this, Laws LJ observed as follows:
84.1. There is no brightline rule which will tell the judge whether or not to step down.44
84.2. Apprehension of a closed mind “…will only arise when it is said that he has pre-judged
the issue, and in consequence it is reasonably feared that he cannot or will not revisit the
issue with an open mind.”45
84.3. That apprehension would certainly be reasonable where a judge has presided at a
first instance trial and sits on appeal (against his own decision) having “roundly
concluded on the facts, after hearing disputed, perhaps hotly disputed, evidence that one of
the parties lacks all merit”46
84.4. Ultimately, however “[a]bsent special circumstances a readiness to change one’s mind
upon some issue, whether upon new information or simply on further reflection, and to
change it from a previously declared position, is a capacity possessed by anyone prepared
and able to engage with the issue on a reasonable and intelligent basis. It is surely a
commonplace of all the professions, indeed of the experience of all thinking men and
women.”47 It is certainly reasonably to be expected of judges, particularly where
their judicial task requires it.
43 [2002] EWCA Civ 1104 {B9.5/9}

44 Per Laws LJ, at [30]
33
RELEVANT LAW
34
ALLEGED IRRELEVANCE
ALLEGED IRRELEVANCE
85. Almost everything that the Post Office contends in this Application to be irrelevant to
the Common Issues was in fact of central relevance, and its relevance arose on the Post
Office’s very own pleading in the Generic Defence and Counterclaim (‘GDCC’) the
agreed Common Issues, the individual statements of case, and in many respects, the
evidence in fact served by Post Office. This is not only self-evidently the case, but
precisely what was held at the Admissibility Hearing.
86. For that reason, the submissions below are not new, and tread a well worn path, with a
well known destination. Post Office’s asserted “irrelevance” and alleged limited scope
of the Common Issues trial are demonstrably wrong, as the Post Office must itself know.
87. There are two overlapping strands (1) contractual construction, and (2) agency.
88. How those matters were addressed in Post Office’ pleadings and on the evidence before
the Court is detailed below. But it is important to stress at the outset that the relationship
between these two strands was a central feature of Post Office’s case on the Common
Issues, and the subject of submission both in opening and in closing.
89. At trial Post Office sought to persuade the Court that the Subpostmaster contracts
forming the focus of the Common Issues Trial were “agency contracts”48 and made clear
the importance of agency to the interpretation of those contracts and ultimately to the
determination of the Common Issues.
90. In opening, Post Office stressed the following:
The express and implied terms of the SPMC and the NTC need to be viewed through
the prism of an expressly created agency relationship, and so the express contractual
terms sit atop the body of law regulating the duties of agents to their principals. The
common law principles of agency are important background to the contracts. And any
48 Post Office’s Written Opening Submissions, §7 {A/2/4}; Post Office’ Written Closing Submissions,
§7 {A/8/6}
35
ALLEGED IRRELEVANCE
implied terms need to be considered (and shown to be necessary) against that agency
background.49
91. And further, that: -
As such, SPMs are obliged to account to Post Office as its agent. They are acting on
Post Office’s behalf, and Post Office relies on them to do so. SPMs are fiduciaries; Post
Office is “entitled to [their] single-minded loyalty”. This core fact suffuses the
contractual relationship. (emphasis added)
92. In closing, Post Office was no less keen to urge upon the Court the importance to be
placed upon the agency relationship. As made clear by Post Office:
The express and implied terms of the SPMC and the NTC need to be viewed through
the prism of an expressly created agency relationship, and so the express contractual
terms sit atop the body of law regulating the duties of agents to their principals. The
common law principles of agency are important background to the contracts. And any
implied terms need to be considered (and shown to be necessary) against that agency
background.50
93. Again it was said that an obligation to account to Post Office as agent, was a “core fact
that suffuses the contractual relationship.”51
Generic Statements of Case & Common Issues
94. It was the Post Office which put in issue by its generic pleadings the relative difficulty
of finding out the cause of shortfalls as part of the factual matrix against which the whole
contract should be construed, and whether the truth of the cause of such matters lay
peculiarly in the knowledge of SPMs. These matters are at the heart of almost all matters
which Post Office now dispute as allegedly irrelevant which is the foundation of this
Application.
49 Post Office’s Written Opening Submissions, §21{A/2/4}

50 Post Office’s Written Closing Submissions, §23 {A/8/13}
51 Post Office’s Written Closing Submissions, §24 {A/8/13}
36
ALLEGED IRRELEVANCE
95. In Post Office’s GDCC:
95.1. Post Office pleaded at GDCC §76 {B3/2/37}, that, §76(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…”, §76(6): “Post Office relies on the accurate
reporting by Subpostmasters of accounts, transactions and the cash and stock held at a
branch. Should Subpostmasters not accurately report these things, it would be impossible
or alternatively excessively difficult to determine (i) if a shortfall has occurred, (ii) when it
occurred and/ or (iii) why it occurred…” and that these were each “important aspects
of the factual matrix against which the various Subpostmaster Contracts relied on by the
Claimants should be construed”;
95.2. Post Office repeated that position at GDCC §85 {B3/2/39} “The written
Subpostmaster Contracts are to be construed as a whole and in light of the relevant matrix
of fact pleaded in paragraph 76 above”.
95.3. At GDCC §93 and §94, {B3/2/42}, in respect of liability for losses, Post Office
specifically pleaded that Subpostmasters must bear the legal burden of proving
that a shortfall did not result from losses for which they were responsible, because
at §93(1)(b) “(1) the truth of the matter lies peculiarly within the knowledge of
Subpostmasters as the persons with responsibility for branch operations and the conduct
of transactions in branches, (2) it would be unjust for Post Office to be required to prove
allegations to matters that fall peculiarly within the knowledge of Subpostmasters…”
96. Thereafter, the Agreed Common Issues included Common Issues (8) and (9) ‘Liability
for Alleged Losses’ under the relevant provisions of the SPMC and NTC, which
specifically cross-referenced GDCC §93 {B7/7/15}.
37
ALLEGED IRRELEVANCE
97. The significance of Post Office’s pleading in these respects as relevant to the
determination of the Common Issues was drawn to Post Office and the Court’s attention
at the Second CMC,52 and Third CMC.53
98. Agency was also put directly in issue on the generic pleadings:
98.1. The Claimants’ generic case was that Post Office acted as their agent for the
purposes of dealing with third parties and rendering and making available
accounts, and for the specific purpose of effecting, reconciling and recording
transactions initiated by the Claimants (GPOC §82 - §83 {B3/1/45}). This was
denied by the Post Office (GDCC §124-125).
98.2. The Post Office’s generic case was that Subpostmasters were the agents of Post
Office, and, significantly, that an effect of this was that SPMs bore the burden of
proving that any Branch Trading Statement signed and/or returned to Post Office
was incorrect (GDCC §69(3) {C3/3/33}) – this was denied by the Claimants
(GRDCC §64).
99. It was on this basis that Common Issues (10) to (13) ‘Agency and Accounts’, were both
agreed and ordered to be determined by the Court at the Common Issues Trial,
encompassing (i) whether the Post Office was an agent of Subpostmasters for certain
limited purposes; and (ii) the extent and effect of the agency of Subpostmasters to the
Post Office, including whether Subpostmasters bear the burden of proving that any
52 At the Second CMC, on 2 February 2018, Claimants’ Leading Counsel read out §76 and §93, and
explained “This is their positive case on how your Lordship should determine the burden of proof point” 52
and that the Post Office “have specifically put in issue a number of things in that this paragraph including
at B2 it would be unjust for Post Office to be required to prove the allegations.” - see the transcript at
p.90D {B8.3/3/15}.
53 At the Third CMC, on 22 February 2018, Claimants’ Leading Counsel again identified §76 GDCC
and stated: “We do not believe that is factually true and that is supported by questions we have asked our
expert. On the basis of that one of the things that the court will need to do is to look at whether there is any
truth in that if that is the defendant's case. If they want to abandon their case, and say, "yes, we admit we
knew perfectly well, we had lots of access to the background documents, we have served a notice to admit
which may clarify some of those points, they have not answered it yet but an answer will hopefully come",
that is a different situation.” - see the transcript at p.135G {B8.4/4/21}.
38
ALLEGED IRRELEVANCE
Branch Trading Statement account they signed and / or returned to the Post Office was
incorrect {B7/7/15}.
100. As the Claimants identified at the Admissibility hearing (below), an agreement between
principal and agent for the conferral of authority may be implied in a case where one
party has conducted itself towards another in such a way that it is reasonable for that
other to infer from that conduct assent to an agency relationship.54 The significant point
arising therefore is that post contractual conduct has always been in issue for the
purposes of determining the agency relationship and, as set out above, that fact of any
duty to account as agent was a “core fact that suffused the contractual relationship” and a
matter to be taken into account in interpreting those contracts and background against
which any implied terms would need to be considered.
54 Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130, per Lord Pearson at 1137C
“The relationship of principal and agent can only be established by the consent of the principal and the agent.
They will be held to have consented if they have agreed to what amounts in law to such a relationship, even
if they do not recognise it themselves and even if they have professed to disclaim it, as in Ex parte Delhasse.
But the consent must have been given by each of them, either expressly or by implication from their words
and conduct. Primarily one looks to what they said and did at the time of the alleged creation of the agency.
Earlier words and conduct may afford evidence of a course of dealing in existence at that time and may be
taken into account more generally as historical background. Later words and conduct may have some bearing,
though likely to be less important. As to the content of the relationship, the question to be asked is: "What is
it that the supposed agent is alleged to have done on behalf of the supposed principal?" {B9.5/1} See also
Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552, per Lord Wilberforce at 587E “The
basic justification for the agent’s power as so far explained seems to be the idea of a unilateral manifestation
by the principal of willingness to have his legal position changed by the agent. To this any contract between
principal and agent is secondary, though there will usually be one, which often provides the reason for the
conferral and indeed may contain it. The phrase “consensual agency” used in the previous paragraph and
below, and “agency by agreement” used later in this book, are to be understood in this sense and not as
relating to any supporting contract. There is certainly no conceptual reason which requires a contract
between principal and agent to achieve this creation of power, and it is indeed clear that no contract is
necessary, for a person without juristic capacity may be an agent. Nor need the agent undertake to act as
such. It is sufficient if the principal manifests to the agent that he is willing for the agent to act, and the agent
does so in circumstances indicating that his acts arise from the principal’s manifestation. This is not
dissimilar from the formation of a contract, but is notionally separate, as the example of a power of attorney
shows. In common with other situations where in the civil law it is important to derive a party’s intention,
the principal’s manifestation of will is generally determined on an objective basis, whether or not the conferral
of power meets the requirements of the law of contract.” {B9.5/2}
39
ALLEGED IRRELEVANCE
Individual Statements of Case
101. Against that background above, in their Individual Particulars of Claim (‘IPOCs”), the
LCs pleaded facts they relied upon in relation to contractual construction and agency
(e.g. Bates IPOC {B5.1/2}). Such facts included the adequacy of training, the effect of
the introduction of Horizon (if applicable); the LC’s experience with the Helpline and
their ability to resolve apparent shortfalls, including in circumstances where they were
suspended and/or terminated.
102. The Individual Defences (“IDs”) which were then served by Post Office:
102.1. Sought simultaneously to contend that such matters relied on by the Claimants
were inadmissible and/or irrelevant but also to plead Post Office’s case in relation
to them, purportedly for the purposes of any future breach / liability trial only –
see e.g. Bates ID {B5.1/3}. (The Court will note that these IDs were Ordered and
produced solely for the Common Issues trial)
102.2. Also each incorporated by reference Post Office’s generic case on legal burden of
proof, by referring to §94 GDCC, which is itself dependent on §93 GDCC, and
asserting that such construction “is in accordance with commercial common sense”
(see, e.g. Bates IDEF at §93(1) {B5.1/3/52}); and
102.3. Also asserted its generic position on agency, both denying that it agreed to act or
did in fact act as an agent (see e.g. Bates IDEF at §97 {B5.1/3/53}“Post Office did not
agree to act as the Claimant’s agent, did not agree to undertake (and did not undertake)
any of the characteristic roles of an agent” – emphasis added); and reciting its generic
case as to Subpostmasters as agents and the effect contended for in the GDCC
(Bates IDEF at §99 {B5.1/3/54}“…Post Office’s case is set out in its pleadings….).
103. The Individual Replies (“IRs”) served by the Claimants confirmed beyond question that
the LCs relied upon the paragraphs in the IPOCs that were said by the Post Office to be
irrelevant and / or inadmissible. (They also specifically cited and GDCC §76, §85 and
§93-94 of the GDCC - see, e.g., Bates IR at §4.1 to 4.2 {B5.1/4/2} and §39.1 to 39.3
{B5.1/4/15}).
40
ALLEGED IRRELEVANCE
104. At no stage did Post Office ever apply to strike out any parts of the Claimants IPOCs or
IRs, which accordingly represented each of the LC’s pleaded positions for the Common
Issues trial.
Correspondence
105. There was lengthy correspondence over this period by which Post Office asserted that
the Claimants’ pleadings had gone beyond the proper scope of the Common Issues trial,
which the Claimants rejected for all the reasons above.
106. The Post Office did however make three concessions in correspondence over this period
to what it asserted was the “rule” that “nothing which happened after entry into the relevant
contracts can be admissible evidence for the purposes of the Common Issues Trial”55. These
were:
106.1. the Claimants’ case as to the ‘true agreement’ as to termination;
106.2. construction of relevant terms following a variation; and
106.3. the question of agency.
107. The Claimants specifically highlight the acknowledged concession in relation to agency
(which was obviously correct), as this was rather overlooked by Post Office in its
subsequent conduct – and indeed in this Application.
108. (If required, a fuller position in relation to the correspondence over this period is set out
in the Claimants’ Skeleton Argument for the Admissibility Application: {B8.10/1}.)
Evidence
Claimants’ Evidence
109. Against the background of the generic and individual statements of case identified
above, on 9 August 2018 the Claimants filed and served witness statements for the six
55 Letter from Womble Bond Dickinson to Freeths dated 19 July 2018 {B9.6/03}
41
ALLEGED IRRELEVANCE
Lead Claimants. These statements included evidence very much in line with the facts
and matters pleaded in the IPOCs and IRs, as to e.g. training, helpline, investigation of
shortfalls and other matters (e.g. Mr Bates {C1/1}. None of this should have been a
surprise to Post Office given the content of the IPOCs, what had been said by the
Claimants at the Second and Third CMCs, and the correspondence relating to the
individual statements of case.
Post Office’s Evidence
110. The Post Office filed and served 14 witness statements, accompanied by a “Reading
Note” {C2/0} explaining the areas covered by each witness. The Reading Note helpfully
explained the topics addressed by each of the witnesses, including (emphasis added):
Angela van den Bogerd
General overview of Post Office’s businesses, including:
 Post Office as a business

o Public ownership
o Commercial operating model [see also Nick Beal]
o Network size and coverage
o Brand
o Market change and competition
o Technological change
o Client products and requirements
o Regulatory requirements
o Change programmes
 Subpostmasters and their branches

o Subpostmasters' businesses [see also Nick Beal and Michael Shields]
o Operating a branch
o Assistants
o Horizon
o Training and support
42
ALLEGED IRRELEVANCE
o Causes of shortfalls [see also Helen Dickinson]
o Post Office’s reliance on Subpostmasters
o Responsibility for shortfalls
Helen Dickinson
The risk of fraud and dishonesty in branches, including:
 Fraud in branches;
 Concealing shortfalls;
 Shortfalls caused by dishonesty; and
 Monitoring assistants.
[…]
John Breeden
The selection and appointment of Subpostmasters and the circumstances in which a

Subpostmaster's contract may be suspended or terminated with or without notice,
including:
 The appointment of new Subpostmasters [see also Sarah Rimmer and Paul
Williams];
 Vacancies [see also Sarah Rimmer];
 Business plans [see also Timothy Dance];
 Interviews;
 Suspensions [see also Michael Shields];
 Termination without notice; and
 Termination on notice.
111. As the Reading Note indicated, the content of those statements served on behalf of the
Post Office was wide ranging in scope. Most strikingly:
43
ALLEGED IRRELEVANCE
111.1. Mrs van den Bogerd’s witness statement {C2/1} was far-reaching and covered
matters directed to Post Office’s generic case on construction of the contracts,
liability for shortfalls, burden of proof, and agency, including at §91 to 98, the
ability for SPMs to keep accounts and investigate shortfalls, §102 - §116 in relation
to classroom and in branch training and further training and support, and §141 –
145 contending that SPMs are best placed to investigate shortfalls;
111.2. the whole thrust of Mrs Dickinson’s witness statement {C2/6} was designed to
identify Post Office at risk of SPM dishonesty as the cause of shortfalls (effectively
part of PO’s case on liability for shortfalls, burden of proof and agency);
111.3. Mr Breeden’s witness statement {C2/3} led evidence on Post Office’s practices and
procedures when suspending and terminating SPMs, e.g. §38 typical scenarios
where suspension is considered, and §44 to 49 typical scenarios and procedure for
termination.
Admissibility Application
112. On 5 September 2018, the Post Office issued an application to strike out large swathes of
the Lead Claimants’ witness statements (but not the IPOCs or IRs). Rather mirroring
the present Application, the Claimants had to seek an Order for Post Office to provide
proper particulars, this order was made dated 11 September {B7/23/1}, following which
on 21 September 2018 the Post Office served a Schedule setting out which sections of the
witness statements it sought to have struck out {B9.6/07}, and on 28 September 2018, the
Claimants served a Counter Schedule identifying why each of those sections was in fact
relevant {B9.6/09}.
113. It appears that at this point the Post Office realised that §93 and §94 of the GDEF were
fatal to the Application, as on 26 September 2018,56 the Post Office served a Voluntary
Further Information (“VFI”) {B4/8/1}, which purported to provide further information
about its case in those paragraphs, but was in truth an attempt to amend to limit their
scope – something which could only be done by amendment (no application to amend
56 Two days before the Claimants were required to file and serve their counter-schedule
44
ALLEGED IRRELEVANCE
was ever made), and which in any event ran contrary to the scope of the evidence the
Post Office had served, as above.
114. The Admissibility Application was heard on 10 October 2015, and dismissed by Mr
Justice Fraser, in Judgment handed down on 15 October 2018 – Judgment No. 2 {B7/27}.
115. The Post Office did not appeal Judgment No. 2.
116. The Claimants particularly note and rely upon the following parts of Judgment No. 2:
116.1. §34 to 37 {B7/27/12-13}, in respect of agency – concluding at §37, that in light of
two passages in the authorities relied upon by the Claimants (Garnac Grain Co
Inc v HMF Faure & Fairclough Ltd [1968] AC 1130, per Lord Pearson at 1137C to
D, and Coleman v Mellersh (1879) 11 Ch.D 150 at 159), the evidence the Post Office
sought to strike out was of potential relevance to the agency issues;
116.2. §38 to 41 {B7/27/15-16}, in respect of burden of proof, concluding at §40 as follows:
“…It can be seen that a central plank of this litigation therefore involves which of
the claimants, or the defendant, bears the burden of doing what when shortfalls
emerge. To quote selectively from the above, 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 “Sub-
postmasters 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 the
witness statements going to each individual Lead Claimant’s personal experience of
having shortfalls identified, then their attempts to work out what had happened and
how it had happened, can be said not to be relevant, or that it will never be sufficiently
helpful to make it right to allow the Lead Claimants to adduce such evidence. The
defendant’s own pleading relies upon its interpretation or account of these 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
45
ALLEGED IRRELEVANCE
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.”
116.3. §41 - §42 {B7/27/15-16}, in respect of the VFI, concluding that it does not assist the
Post Office in avoiding the point that this evidence is relevant to the Common
Issues on the defendant’s own pleaded case.
116.4. §43 – 47 {B7/27/17-18}, in respect of the Post Office’s own evidence containing
passage after passage on matters such as training, investigation of shortfalls,
causes of shortfalls, and that all the LCs can do to counter that is to give aggregate
evidence of their own experience, concluding at §46 - 47:
“46…For the court to have a correctly balanced picture of what actually was going on –
and this can be expressed at this stage of the proceedings as being either factual context
to the issues and/or background narrative and/or “later words and conduct” and/or “the
fullest information” and/or all the circumstances and/or the defendant’s likely state of
knowledge and/or (even, for some claimants) factual matrix – the Lead Claimants’
evidence in this respect is relevant, and therefore admissible, upon the Common Issues.
47. I accept those submissions by Mr Green for the Lead Claimants. …”
117. Not only did the Post Office not appeal that Judgment, but it also elected not to provide
any supplementary witness statements – an option which was clearly available to it, and
which the Post Office had expressly identified was an option prior to the Admissibility
Hearing (See Womble Bond Dickinson’s letter dated 19 July 2018 {B9.6/0.3/2} “the
inadmissible evidence would likely take up most of the trial, or, if Post Office adduces evidence in
reply, all of the trial”.)
Conclusion
118. The observations and findings which Post Office are contending are irrelevant in this
Application, are almost entirely on the very issues which it argued at the Admissibility
Hearing should be struck out.
46
ALLEGED IRRELEVANCE
119. Having elected not to appeal from the Admissibility Application, it is simply not open
to Post Office to re argue that findings in relation to such matters as training or SPM’s
abilities to investigate shortfalls or the causes of shortfalls are not relevant.
120. The absurdity of this position is only compounded by the election made by the Post
Office’s Leading Counsel to cross examine each of the LCs on those very matters, as
addressed in the category headings below.
47
PARAGRAPHS IN ISSUE
PARAGRAPHS IN ISSUE
121. The Application relies upon extracts of the judgment set out across 44 pages in Parsons
15, which are identified only by the ground of challenge under which they fall, with no
further context or explanation. They are grouped as follows:
(1) Section 1 (overlap with future trials) at §5 of Parsons 15: 83 paragraphs;
(2) Section 2 (irrelevant critical invective) at §6 Parsons 15: 34 paragraphs;
(3) Section 3 (irrelevant harsh criticisms) at §7 Parsons 15: 13 paragraphs.
122. The Claimants have responded to many of these passages providing further context and
detail further to Section D above, particularly the case advanced by the Post Office at the
Common Issues Trial, including in submissions and in the challenges made in cross-
examination:
122.1. ANNEX 1 – Irrelevant findings overlapping with future trials; and
122.2. ANNEX 2 – Irrelevant critical invective & harsh findingsError! Reference source
not found..
123. In these Annexes, the Claimants have approached the matters relied upon by the Post
Office as follows:-
123.1. For Section 1, Mr Parsons did, in §23 of Parsons 14, provide some indication as to
the relevant subject-matter. The Claimants have endeavoured to allocate the
passages relied upon in Parsons 15 against the 8 categories of subject-matter so
identified.
123.2. For Section 2, the Claimants have done their best to group a substantial number of
the passages complained of by apparent theme.
123.3. For Section 3, the Claimants have approached this by witness.
124. As explained above and in the Annexes, there is no foundation for any complaint of
apparent bias.
48
PARAGRAPHS IN ISSUE
125. The fact that Post Office lost and does not like the observations or findings the Judge
made when properly determining the Common Issues on the evidence before the Court
and tested before him, affords no proper foundation for an allegation of apparent bias,
whether in his determination of the Common Issues or in respect of the conduct future
trials.
126. Context is vital, as the authorities make clear. The context in the present case
demonstrates that the complaints of apparent bias are both without merit and without
foundation.
49
CONCLUSION
CONCLUSION
127. In litigation, there are winners and there are losers. Losers can seek permission to appeal
if a decision is wrong in law or plainly wrong on the facts.
128. However, an allegation of actual or apparent bias is a distinct and different matter.
Where, as here, the application is based upon nothing more than the content of a
judgment with which the losing party is dissatisfied, such an application is hopeless.
129. The fact that the answer to the Post Office’s application is largely to be found in its own
pleadings, evidence and submissions, along with the challenges it chose to make to the
evidence of the Lead Claimants, shows not only that the Application must fail but that
it is not a reasonable application to have made.
130. The content and scope of the Post Office’s witness statements was plainly very carefully
considered.57 Equally, the Post Office’s clear procedural elections must have been
carefully considered. The Post Office elected: (i) not to amend its pleaded case on the
proper approach to construction; (ii) not to apply to strike out the IPOCs; (iii) to file and
rely upon extensive evidence on issues now said to be irrelevant; and (iv) to cross-
examine on these and other issues.
131. The basis of this Application is irreconcilable with the way in which the Post Office in
fact conducted its own case at the Common Issues Trial. Examples are legion. Two
which give the game away are:
(1) The contortions in the submissions as to what the Court should and should not
find in relation to Mr Adbulla (see at §199 et seq, below); and
57 Given provision for £610,453.68 in the Post Office’s budget for the witness statements phase of the
Common Issues Trial {B7/21/6}
50
CONCLUSION
(2) The Post Office’s invocation to the Court in both Opening and Closing
Submissions to construe the contract on the basis of its evidence, by way of
particular example, that of Mrs van den Bogerd:58
“Issues 8 and 9 concern the proper approach to responsibility for losses.

They should be considered against the factual background of how
accounting works in a Post Office branch, as described by Angela Van-
Den-Bogerd at paras. 73 to 82, and 126 to 140, of her witness statement.”
132. This Application is hopeless and should not have been made.
PATRICK GREEN QC
KATHLEEN DONNELLY
HENRY WARWICK
OGNJEN MILETIC
REANNE MACKENZIE
1 April 2019
58 Post Office’s Written Opening Submissions, §85 {A/2/25}; and Post Office’s Closing Submissions,
§134 {A/8/54}
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ANNEX 1 – Irrelevant findings overlapping with future trials
Introduction
133. §22 – 24 of Parsons 14 allege apparent bias in the conduct of prospective trials, as follows:
22 … The Judgment made findings, or observations, on a wide range of matters which

properly fall to be decided at the Horizon Issues Trial or at future breach trials.
23. They include findings and observations on such matters as the adequacy of
training, the quality of helplines, Post Office’s alleged knowledge of problems with
Horizon, the cause of shortfalls, how easy or difficult it was for Subpostmasters to
discover the cause of shortfalls, the circumstances of individual Claimants’
suspensions and terminations, and whether Post Office sent unjustified demands for
payment and/or threats of legal action to Subpostmasters.
24. These findings give the clear impression that the Judge has already formed a firm
view on these matters. It is to be expected that this will prevent him from taking an
impartial view on the same matters when they are revisited, at subsequent trials, with
the benefit of full evidence and disclosure.
134. §5 of Parsons 15 identifies 83 sections of the Judgment which are relied upon by the Post
Office in respect of the allegation above. No explanation is given of any of them, save
that the matters highlighted in bold are said to be of “especial importance”.
135. The Claimants have endeavoured to allocate the sections identified in Parsons 15 against
the 8 categories identified at §23 of Parsons 14, as follows: adequacy of training
(‘Training’); quality of helplines (‘Helplines’); Post Office’s alleged knowledge of
problems with Horizon (‘PO Knowledge of Horizon Problems’); the cause of shortfalls
(‘Cause of Shortfalls’); how easy or difficult it was for Subpostmasters to discover the
cause of shortfalls (‘SPM Discovery of Cause’); Post Office’s investigation of shortfalls
(‘PO Investigation of Shortfalls’); the circumstances of individual Claimants’
suspensions and terminations (‘Suspension and Termination’); whether Post Office
sent unjustified demands for payment and/or threats of legal action to Subpostmasters
(‘Unjustified Demand and Threats’). Where sections do not naturally fall within any
those categories we have identified them as such (‘Unknown/Other).
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136. In respect of each of these categories, the overarching points in Section D of this skeleton
argument apply. The matters to which Post Office objects are and were always relevant,
and the Judge was entitled to make observations and findings on the evidence he heard
– it was indeed necessary that he made findings on these issues, to fairly determine the
Common Issues.
137. The matters set out below represent additional detailed consideration of these
categories, including in particular reference to Post Office’s position during the
Common Issues trial, in choosing to cross examine, and/or in inviting particular findings
on the evidence - in its opening and/or closing submissions.
Training
138. The Claimants anticipate that the following paragraphs of the Judgement are identified
in Parsons 15 on the basis that they concern training: §104 and §105 (which concern
Horizon training received by Mr Bates and his request for further training); §142
(Horizon training received by Mrs Stubbs); §193 (pre-appointment and in branch
training received by Mr Sabir); §246 and §247 (pre-appointment and in branch training
received by Mr Abdulla); §297 (pre-appointment and in branch training received by Mrs
Stockdale); §346 and §352 (pre-appointment and in branch training received by Mrs
Dar); §437 (re: scope of training, and how to deal with a shortage – this is within the
section dealing with Mrs van den Bogerd’s evidence); §492 (re: in branch training – this
is within the section dealing with Mr Webb’s evidence); §569 (70) (finding – on the
evidence of the LCs further training when requested was not provided); and §955
(observations re: training generally, in the section relating to Common Issues 22 and 23,
Assistants).
139. The Judge was obviously entitled to make those findings and observations on the
evidence he heard. Him doing so does not give rise to any apparent bias in respect of
the conduct of future trials.
140. Post Office had itself adduced significant evidence on the issue of training - as is
recorded in the Judgment, at §34. Mrs van den Bogerd’s first witness statement included
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16 paragraphs on the topic “Training and Support”: §99 – §115 {C2/1/29-33}, including e.g.
incentives on Post Office “to deliver effective training” (§99); the “core features that have
always been covered in initial training programmes” (§104), including “How to declare,
investigate, make good and dispute shortfalls” (§104.4); and the provision of onsite training
and support, including follow up balances (§106-107).
141. Post Office also elected to cross examine each of the LCs in relation to what the training
they had individually received. For example, Post Office’s Leading Counsel cross
examined Mr Bates as follows {Day2/137:17}- {Day2/141:23}:
“MR CAVENDER: So training on Horizon, paragraph 129 and following of your

witness statement. The basic position is you think it wasn't sufficient -- wasn't any
good, is that right?
A. It was lacking. Yes, I do. I didn't think it was very good.
Q. I suggest to you your classroom training of one and a half days clearly included, I
think you say this at paragraph 135 of your witness statement {C1/1/28}, an
explanation of how to balance and cash stock weekly using Horizon?
A. Yes. But I also go on to say I didn't recall any explanation how to identify the
cause of alleged discrepancies or how to dispute them.
Q. If you go to {C2/1/31}, this is an extract from Angela van den Bogerd's statement
who will give evidence later on in this trial. She summarises at paragraph 104 the
kind of things that would have been in your initial training. Look at 104 and tell me if
you agree or disagree that 104, 1 to 5, were included within your training programme?
A. I don't recall. I can't recall.
Q. But do you agree it is likely that they were?
A. Yes, but they would have formed part of it, I would have thought. Because we were
also -- it was a new computer system and we had also been shown how to put new till
rolls in and how to connect the pieces together and replacing -- and how to replace the
ribbon in the printer. So, yes, it would have possibly formed part of it, but to what
depth I couldn't say.
Q. If we look at the training manual {F4/3/1}, we can see at {F4/3/18} "Balancing".

Under B for Balancing. It's on the left-hand side at the bottom, and then over. There's
quite a lot of information there about balancing. And the same point on reports in the
same document, {F4/3/27}, we can see from the index there all the reports that you
could generate with Horizon. Does that look familiar to you? Do you accept that that
is broadly what the functionality of Horizon was --
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A. I don't recall that document in its own right but there were many documents like
that at the time and it could well have been part and parcel of it.
Q. And {F4/5/1} is a document you were given in 2002 called "Balancing with
Horizon".
A. Again there are lots of similar documents like that.
Q. Did you find the training function on Horizon itself a useful one, where you could
use Horizon off-line effectively? There was a training function within it, wasn't
there?
A. Yes, there was a training function within it and you could use it off-line but it was
very awkward to try and do it, because most of the time you are trying to serve staff.
You had to have -- you had to have a dedicated terminal set for training -- in the
training mode and you couldn't mix and match serving people and the training
manual. Plus -- but the other side to that as well was it is also not just yourself but
also for your staff as well, it was slightly restrictive allowing them to come in and
spend time on it because it was expensive to pay them to come in and you weren't
getting money back for that training for them. So I think, yes, I suppose we did try it
in the first --
Q. There was nothing stopping you, though, was there, after hours, yourself brushing
up and deciding what training you needed or for your staff, was there?
A. I did ask for extra training and was refused it.
Q. No, I am talking about the training function of Horizon. You could have, after
hours, done any training yourself you wanted, am I right?
A. To a point.
Q. And you could have trained your staff to any extent you thought was necessary,
am I right?
A. But I wouldn't know if the training I was giving was right. It was really -- when
Horizon came in, it was really down to Post Office to train their system when it
arrived.
Q. And you had five days of support in the branch at the outset --
A. That was with the manual system, that is correct. That was when I first began.
Q. I see. So, anyway, I put to you formally that you were given all the necessary
training on Horizon that you required. I also say that is demonstrated by the fact that
although you did have these two particular problems they were of limited compass,
would that be fair?
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A. They were ongoing because -- there are a couple of things. It was obviously a
concern because you didn't know the system was sound or whether there were
problems in there, and you did get a lot of other errors coming through that the system
went down or had other problems in there. But also it took away one area of operating
the business, for example, your staff, and there was --when you had a large figure, like
we did in the sense of the money that was hanging over us that was in the account for
a couple of years, you -- it was – there was a certain unsettlement with the staff,
whether you can trust them or not trust them or whether it was down to them or not
down to them. And it was very uncomfortable, that sort of thing. If you had been able
to fully interrogate Horizon and to be able to clear that out of the way as being a
potential problem, then it would have been easier to manage the business and to resolve
these sorts of issues with Post Office.”
142. And further in relation to Mr Bates {Day2/142:10-23}:
Q. You said a moment ago to me that you had asked for extra training and not got it.
Is that contained in your witness statement anywhere? Because I don't recall it was.
A. Yes, I think it is somewhere.
Q. I am sure that can be dealt with. I certainly didn't spot it.
A. I think it ... I think it is actually the -- there is something on one of the spreadsheets
as well, the Helpline spreadsheets, where they acknowledge it, that I had asked for extra
training and been refused it.
MR GREEN: It's paragraph 143.3 on {C1/1/30}.
MR CAVENDER: Thank you very much. I have no further questions, my Lord.
143. Mr Sabir was similarly cross examined on his training {Day3/127:2}-{Day3/130:8}:
Q. Classroom training then, which is the next thing that happened in time. On 21
August 2006 you had five days of classroom training.
A. Yes.
Q. Do you remember that?
A. Yes.
Q. And that was useful training, do you agree with that?
A. That was useful, yes.
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Q. Do you think that training allowed you to operate as a postmaster and to operate
Horizon?
A. When I came in the branch that was not enough. When I took -- when you are
doing training in the classroom that is a different thing, when you come on ground
that is a bit different. I have been facing a lot of difficulties in the beginning.
Q. I think you had -- just joining those dots – from 31 August I think you had six
days' on site training as well, does that sound right?
A. One week she came during the day.
Q. That was hands on practical training?
A. We have to work but she was standing behind.
Q. Was that helpful training as well, the on site training?
A. That is helpful but for the new person it is not enough.
Q. Going back to classroom training, for the moment, I have various documents I can
put to you, but I think you would agree that during classroom training part of it was
introduction to Horizon and Helpline, do you remember that?
A. Yes. There are some dummy type of Horizon system there and some dummy
paperwork as well, how you have to do.
Q. And they also covered a stock balancing. We can turn some of these up, if you like.
Go to {F3/48/1} and {F3/49/1}, a document “Introduction to Horizon and Helpline",
do you see that? This comes from the course you would have been on.
A. I can't remember this document.
MR JUSTICE FRASER: I am not sure Mr Cavender is suggesting you have seen the
document, but he will in a minute if he wants to.
MR CAVENDER: This is what the trainer would have had. So this just helps us
with the scope. I am not suggesting you would have seen this, but this would have
been the scope of what the trainer was trying to achieve in this one hour 30 segment.
Does that remind you of the sort of things covered during the classroom training?
A. We did some training for four or five days. But as far as I can remember, I think
none of us balance was okay when they did the final thing.
MR JUSTICE FRASER: The classroom training.
A. Classroom training, yes. And when we come on – in the branch, the lady who
came to train me, she helped to do day to day transactions, but Wednesday and
Thursday we were opening late due to lottery, and she has to go early, so I have to do
the balance on my own.
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MR CAVENDER: If we go to {F3/51/1}, I think the same classroom training package

for stock balancing this time. I don't suggest you saw this but this indicates another
aspect of the training sessions.
MR GREEN: My Lord, there is a question about whether this is the right document
to be looking at. Because at {F3/47/1} there is the timetable into which these pages
appear to fit, and it relates to a two-week not a five-day one. So it may be fair to have
that in mind.
MR CAVENDER: Thank you to my learned friend for that. Looking at the content,
though, of the five days you had, we have dealt with introduction to Horizon and
Helpline, I think you said there was something about that. What about stock
balancing, would you have done some balancing work, do you think?
A. Yes, we did, but we -- I explained that at the end of five days, most of us were
working, our balance was not right. We did not understand 100 per cent how the
procedure works because there is a difference between working on ground and getting
training in the classroom.
Q. Of course. And didn't your six days on site training build on that? Isn't that
what that was about? And that is what happened in your case, was it not?
A. As I explained before, on the balance day she was leaving early because we were
opening until late, 9 o'clock for the lottery. So she was leaving by lunchtime and she
said just follow the procedure and do it.
144. Other LCs were cross examined in a similar way, including for example, in the case of
Mrs Dar, in respect of onsite training as follows: {Day5/78:8}- {Day5/79:1}:
Q. And that was pretty useful, having an experienced person there to hold your hand
and remind you of things in the classroom training and hands on being very useful, is
that fair?
A. It should be that way, yes. Margaret Guthrie did set up a lot here, I am just looking
to see how much is ... she had issues logging in initially which delayed things. It took
her a couple of hours to log in. She did show me how to count stock and cash and
whatever and sort it and put it in the safe, in her way. She didn't seem to manage to
be able to deal with a busy shop very well, which surprised me, because the whole point
of Post Offices going in to running shops is that they are successful shops, and that is
the whole point, that it can be incorporated within that existing premises. And she
seemed to think it was too busy or too many schoolchildren, but a 15-minute rush of
schoolchildren, surely that shouldn't concern you too much, it's a good thing that the
shop is busy.
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145. As must have been expected by the Post Office, Mrs van den Bogerd was also cross
examined by the Claimants’ Leading Counsel on the sections of her witness statement
relating to training, by reference to contemporaneous documentary evidence which had
been disclosed and was available to the parties but to which she had made no reference
in her statement. There was (rightly) no objection to this cross examination, which in
fact led to significant concessions being made by her, including as to the inadequacy of
induction training prior to Branch Support Programme (see Claimants’ closing, Training
and Support, §106 – 117 {A/6/39-46}).
146. It is noteworthy that in closing Post Office invited the Judge not to make any findings in
relation to training, purportedly on the basis that there had not been full disclosure. The
following was submitted on its behalf:
We also say it was somewhat cynical of the claimants to take this approach because
there has not been full disclosure on either side dealing with the issues they now seem
to want to be dealt with. In particular, what we call the breach allegations, we only
have a few we call the breach allegations, we only have a few documents that happen
to be caught in the net of the word searches. Your Lordship should not think that we
have full disclosure on all these issues. We do not. And the real temptation here is to
think you have and to draw inferences from an incomplete documentary record,
incomplete evidence, which would in my submission be obviously wrong. So, for
instance, your Lordship should not be fooled into thinking there has been anything like
proper disclosure on allegations as to training or shortfalls or investigations. Your
Lordship did not order such or investigations. Your Lordship did not order such
disclosure, there has not been such disclosure, and Post Office has not led evidence on
those issues. My learned friend has put questions on those areas –
147. The position taken by Post Office as to this matter was wholly incorrect, as addressed in
the Claimants’ Note of Reply Points {A/14/4-5}, which sets out the accurate position,
including at §6, that Schedule 2 to the Third Disclosure Order {B7/12/8} specifically
identified training as one of the Issues for Disclosure.
Helplines
148. The Claimants anticipate that the following paragraphs of the Judgement are identified
in Parsons 15 because they concern helplines: §105 (which concerns Mr Bates’ having
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contacted the Helpline and his Helpline records); §172 (which refers to Mrs Stubbs
having notified the Helpline on numerous occasions); §208, 217-218 and 223 (re: Mr Sabir
having contacting the Helpline to notify of the problem with scratchcards and this being
the position as at the date he was audited); §248-249 (Mr Abdulla could rarely get
through to the Helpline, he thought the advisors were ill informed and would give the
impression of reading off a script, he could not resolve his apparent shortfalls through
the Helpline), §274 (Mr Abdulla was told advised by the Helpline to pay back apparent
shortfalls and wait to see if a TC would be issued in his favour); §303 (that Mrs Stockdale
called the Helpline and that she was told £3,000 was a drop in the ocean compared to
some people’s problems); §357 (that Mrs Dar did not have a positive experience with
the Helpline and was mostly told to recount and if there was still a shortfall make it
good, and once how to “get around” the problem) by altering the stock figures); §556-
558 (within the section “Summary of the Helpline Operation” - matters in dispute reported
to the Helpline were not treated differently, and that sums settled centrally would be
chased as though a debt); §569 (33) (finding - the process for disputing discrepancies
was to phone the Helpline, however even amounts disputed in this way were treated by
Post Office as debts owed by the SPM).
149. As with Training, above, again, Post Office had itself adduced evidence in relation to
support available to SPMs by the NBSC helpline (generally referred to as “the Helpline”
during the trial), in Mrs van den Bogerd’s witness statement at §97 and §115 - the latter
expressly under the heading “Further support and training”.
150. And again, Post Office chose to cross examine the Lead Claimants on the evidence in
their witness statements about the Helpline – and it is notable that on a number of
occasions its’ Leading Counsel did so specifically by reference to the Lead Claimants
individual Helpline call logs, which, in each case where available, had been disclosed
by Post Office and were in the trial bundle.
151. For example, with Mrs Stubbs there was lengthy cross examination as follows – obviously
designed to elicit helpful evidence to Post Office about the Helpline (but ultimately not
successful) {Day3/59:20}-{Day3/64:5}:
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Q. Moving on to the Helpline, then. Your evidence is that the Helpline was generally
a useful one?
A. When I first took over, yes, it was useful. When Horizon came in, I found it less
helpful. I found that particularly as things might have changed on Horizon, I could
ring up with the same query three, four, possibly five times, speak to somebody
different and actually get a different answer.
Q. Mrs Stubbs, I recall an answer you gave it me on Thursday saying you didn't
recall having any manuals in the branch and you used the Helpline almost as your
manual. Are you going back on that now?
A. No, I am not saying that the Helpline was never less than useful. Every so often
you would get somebody who actually knew what they were talking about. But what
I am saying is you could ring several times with the same question, the same query,
and get a different answer. And there are an awful lot of Post Office queries where
there is an answer. You can't have a selection where you have a tick box and you can
sort of tick four boxes and say that is all right, try any one of those. And certainly it
became less useful at the time when -- I think a lot of subpostmasters needed help on a
Wednesday when we were doing a balance, particularly a trading balance. And that
was the time where the Helpline really wasn't helpful at all because you could ring, as
I used to when I was in the portacabin, and say "Oh my God, what am I going to do?
I have this shortage, I have searched, I have sat in there until 10 o'clock at night and
got absolutely nowhere". So I rang the Helpline during that time, and in the end all
we got, or all I got, was a message saying "Leave your office code and number. We
will get back to you within 48 hours". Which is less than useful.
Q. The other thing, there is an NBSC Helpline as well. In terms of the second tier of
that, can I ask you to go to {E2/83/1} where you think you found the second tier of the
Helpline useful?
A. Yes, I believe I was upgraded to the second tier.
Q. Go to {E2/83/2}, please.
MR JUSTICE FRASER: Is NBSC the second tier?
MR CAVENDER: No, NBSC is actually -- I'm saying Helpline, the NBSC Helpline
has various tiers, and what the witness says in this document is she found the second
tier particularly helpful. I was investigating that.
A. Yes, I actually was -- I am loathe to say it in case the lady had done something
wrong. But one particular member of the investigative team on tier 2 was particularly
helpful, and she on many occasions said, "Yes, I have checked this. Yes, I have been
promised that there will be an investigation". And I think by the end even she was
becoming disillusioned by the fact that nothing happened at all.
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Q. Mrs Stubbs, it is often the case with Helplines that you have an initial response,
which is quite vanilla, and then you can go through as you say to the second tier, and
if you have a complicated problem it is not a surprise that you have to go to the second
tier, as you call it, to deal with it, is it?
A. Yes, we were actually on first name terms by the time I'd finished.
Q. That is not a great surprise. You accept from me that most Helplines have that
feature?
A. Yes. But I did actually once manage to get through to Horizon about the balance
shortage, and I think that was actually because Horizon themselves had come to the
Helpline with a message saying I had a serious shortage in my branch in January,
some 20 something thousand pounds. I managed to get through to Horizon and the
young lady I spoke to just said: we've checked our nodes, it is your problem if you are
short. Then I managed to get through to a supervisor and I got his name and his
reference number and he added very little to the conversation, except that he brought
up this shortage on 5 January.
Q. But you knew, because I have shown you the emails this morning, that Post Office
behind the scenes was doing all sorts of investigations and reporting to you about
them?
A. No, they weren't reporting to me. All they said was they had investigated and
there was nothing wrong.
Q. No, quite but --
A. But this proves that there was something wrong, because Horizon were reporting
a shortage of £26,000, they had no knowledge of it at the end of January --
Q. January what year are you talking about?
A. January 2010. And they were also unaware that I had remmed out £26,000 on 5
January. They had no record of it and were saying that I was short. This came from
Horizon. This didn't come from me. I didn't bring this up. I was blissfully ignorant
and it was only after I had got this that I then had to make sure that that rem had
actually arrived.
Q. We don't have all the accounting records for all these transactions, so I can't go
into every one. I have been into a couple with you.
A. No, that's fine.
Q. I was dealing with the Helpline, if I can. So I put to you really as a final question
is that the Helpline did provide you with a reasonable level of help and assistance.
Isn't that fair?
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A. Not as far as I was concerned. The only thing that would have been of any help to
me would have been for somebody to have said: right, you've got your transaction logs.
You choose three days. I wasn't prepared to give them up to Post Office. They wanted
me to hand them all over. I said but I am perfectly happy for you or Horizon to come
to my house, to come to a neutral venue, put your logs down beside my logs and we
will check them.
152. Mr Abdulla is an example of a Lead Claimant specifically challenged by Post Office in
cross examination by reference to the Helpline call log {Day4/145:25}-{Day4/147:11}:
Q. Helpline then. Again you deal with this at paragraph 82 of your witness statement
and following. {C1/4/15} You say you called the Helpline six to seven times per month,
is that right?
A. Yes, that is -- yes, about average, six to seven. Some months it was more, some
months it was less depending on the losses.
Q. I have the call log at {E4/72/1}, if that can be expanded. That doesn't show, if we
can read it, anything like calls of that frequency?
A. I can't really see this.
Q. Is it possible you have got that wrong and you didn't call that frequently? Because
it certainly isn't shown by this --
A. I can't see the document. It is very blurry. The problem was with the Helpline,
ringing was one thing and then having someone answer it or someone being helpful
on the other side was another thing. So in the end if you are getting no help and no
answers you don't really phone that much, so you kind of give up and go through your
figure-work, your papers again, and try and find the mistakes yourself -- sorry, alleged
mistakes, I don't think they were mistakes but, as I said, it was not from my side. But
you try -- you go through your paperwork but nothing turns up. So it's very
frustrating when you have gone through everything and you're still not finding the
answers, so -- and you phone the Helpline and they are no use. I spoke to my area
manager but they are only limited to giving out point-of-sale material, the latest sale
material, and they are only interested in making the sales for the Post Office,
increasing sales for the area.
Q. I put it to you formally that the Helpline did give you a reasonable level of help
and assistance.
A. I don't know where you are getting that from but it is not true from my side.
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153. Mrs Stockdale was cross examined about what she had been told by the Helpline,
including specifically whether she was told £3,000 was a drop in the ocean
{Day4/208:23}-{Day4/209:24}:
Q. In relation to the Helpline, I suggest that what was provided was a reasonable level
of service on the Helpline. Do you agree with that?
A. No.
Q. And when you say in your witness statement at paragraph 97.1 -- can we turn
that up briefly at {C1/6/20}. You say there that the Helpline operator spoke to you and
said: "What's the problem? It's only £3,000. It's a drop in the ocean ..." That was
never said to you, was it?
A. It was, absolutely. I was shocked because, when she said it to me, I had always
been led in the direction of “it's only happening to you" and then when she said that
to me I thought: well, so it's not just happening to me, is it?
Q. It's also not true when you say in 97.2 that you requested further training. That
is also not true, is it?
A. It is true.
Q. And when in 97.1 you say you were told that you were the only person
experiencing shortfalls, that is also not true. The Helpline did not --
A. That is absolutely true.
Q. -- say that either, did they?
A. Because I am not the only person that that was ever asked to.
154. Similarly, Mrs Dar was also cross examined in relation to the Helpline, including
specifically whether the Helpline operator had told her she could get around a problem
by adjusting her stock – which elicited a very specific and certain response {Day5/80:12}-
{Day5/83: 17}:
Q. Helpline. You deal with this at paragraph 108 and following of your witness
statement {C1/1/21}. Again, you criticise the quality of the Helpline. I put to you
formally that the Helpline did give you a reasonable level of help and assistance.
A. Sorry, which paragraph were we on?
Q. You start at paragraph 108 I think, and following, dealing with training support
and Helpline.
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A. Yes, that is correct.
Q. But in fact the Helpline was a helpful aid to you, was it not, when you had issues
or problems?
A. No, not particularly. I mean you phone, and I think on several occasions I did call
and ask regarding I was having a problem. They could help you if you couldn't
find a stock code to order something and they could either order it for you or give you
the code, fine. If it was like your stamps or labels, special delivery labels or whatever.
But when it came to the issues like balancing, you were just told "We can't balance
for you. Just recount or do a full -- go right up to your trial balance," things like that,
just in case there is something. So I did that on several occasions and there were still
discrepancies, so you would just have to find it your own way.
Q. We have heard about something called a second tier, where you have the first tier
of operators, perhaps the ones you are speaking of, and then there were people who
they could take the point to if it was more technical or difficult. It has been regarded
as a second tier of Helpline. Had you come across that?
A. I wasn't aware of that. I am aware now, where I am working currently. Obviously

you have your main call floor which can sift your calls into what is more important
and then those ones can be prioritised. But I wasn't aware of that here, I was just
aware of the hardware calls had to be logged and it was a number that directed you to
America or wherever, and then there was this one. But I don't know. It probably
depends who you got, whether they prioritised it or not or whether they were helpful.
Q. Go to {C1/5/23}, please. Paragraph 118. Read that for me. I suggest to you the
Helpline operator never said to you that you could get around Horizon, let alone to do
workarounds?
A. I actually had a receipt for that. I had a call reference and a name who told me.
I'm sure that was in my evidence as well. Because I remember that vividly. That is
why it kind of flagged up to me at the time and I thought: shouldn't be doing that.
Because even if you go in to adjust stock within Horizon, it says do not adjust stock
unless advised to by NBSC. It says on there. That's where I thought: I can't be doing
this, but they had advised me of it. And then to change it back in the morning, so that
is me over my TP, like my ... and then just to get on to let me function and then look
into it. I would speak to I think, I can't remember, I get the names mixed up, Jill
Southern or Deborah Lamley.
Q. I suggest to you they didn't say that --
A. They categorically --
MR JUSTICE FRASER: Hold on a second. Mr Cavender said they didn't say that,
and your response to that is?
65
A. Categorically they did tell me that.
MR CAVENDER: So how did you deal with that problem, then? Because you had
this problem, you phoned them, and you say they suggested a workaround. What did
you in fact do? How did you deal with the problem?
A. While I was on the phone with them I did as they said and I went into -- sorry, if I
can even remember the system now. I went into adjust stock, and I think that would
be the stamp books if I am right in saying. I think so. I went in and adjusted it and it
let me do rollover, and then in the morning I had to change it back again.
Q. So you did falsify the figure?
A. I was advised to. Not on my own authority.
MR JUSTICE FRASER: That was as an overnight fix to enable it to roll over, was
it?
A. Yes, just to let me roll over, to let me function the next day, yes, because I did write
down details of that.
155. Post Office’s witnesses were also cross examined on these issues, and again a very
different picture emerged from that which Post Office had presented.
156. The observations and findings in the Judgment in relation to the Helpline and the LC’s
experiences of it were entirely proper and could have gone much further. Indeed, the
Claimants note that the Judge chose not to make any observations or findings in relation
to an email from Sharon Merryweather (NFSP) dated 30 April 2012 {G/93/4-5} which
describes a SPM having “been trying to make contact via the Hell- line, but has not had a
response”, as the Claimants invited in their written closing submissions (§123 {A/6/50-
51}. That was certainly a matter to which the Judge could have made reference in the
context of the Helpline or the credibility of Mr Beal (see the transcript reference
{Day6/121:14-25}). Similarly, the Judge chose not to make the generic finding the
Claimants invited that the Helpline clearly did use scripts (Claimants’ written closing
submissions §121 {A/6/47}), confining the observation in relation to use of a script to this
being Mr Abdulla’s impression – Judgment §248.
157. Further, the general comments which the Judge made within the section headed
“Summary of the Helpline Operation” which are relied upon by Post Office (§556 - §558) as
66
part of this Application are not only available and appropriate, but are expressly
caveated within the Judgment with “on the evidence before me” and conclude with the
statement that “Detailed findings of fact as to this must however wait for a later trial”. None
of this should be controversial.
158. There is no foundation for any complaint of apparent bias in the conduct of future trials.
Post Office Knowledge of Horizon Problems
159. The Claimants anticipate that the following three paragraphs of the Judgment have been
identified in Parsons 15 because they concern Post Office’s knowledge of problems with
Horizon: §541, §543 and §1115. These are as follows - showing the emphasis in bold, as
per Parsons 15, and with further emphasis added by the Claimants in underline.
541.Secondly, a number of contemporaneous documents internal to the Post Office

show that there has been, at least to some degree, an awareness of Horizon
problems within the Post Office itself over a number of years. A number of these
documents were put to the different Post Office witnesses. These documents were
referred to in the transcript of proceedings, but not all of the documents were put. I
did however tell counsel for both parties that I would read all of the documents in
preparing this judgment and neither party objected to my doing that.
543. These internal Post Office entries make it clear that, notwithstanding the tenor
of the Post Office evidence before me, behind the scenes there were at least a number
of people within the Post Office who realised that there were difficulties with
the Horizon system. Some of these entries relate specifically to some of the Lead
Claimants, for example Mrs Stubbs. Whether the internally expressed reservations
then, or the different position expressed now by the Post Office, is the correct one is
something that will only be resolved after the Horizon Issues trial.
1115. Horizon was introduced in 2000, and from then onwards unexplained
discrepancies and losses began to be reported by SPMs. Internal documents
obtained in this litigation show that some personnel within the Post Office
believed at the time that at least some of these were caused by Horizon. Some
of these are identified at [542] above. The first document in that paragraph of this
judgment dates from November 2000. At [41] I deal with part of an internal Post
Office report from as recently as June 2014 – other parts have been redacted – that
make it clear that steps had to be taken within the Post Office to “ensure consistency
67
of accounts and enable a higher chance of detecting errors in accounts due to problems
with Horizon”. The Post Office’s position in this litigation remains that Horizon is
what is called “robust” and that none of the Claimants experienced shortfalls or
discrepancies in their branch accounts due to problems caused by Horizon. Further
consideration of this will occur in subsequent judgments and after the Horizon Issues
trial.
160. As to §541, as the underlined text records, the Judge specifically asked for a list of
documents on this theme to be prepared, which Post Office did not object to (indeed its’
Leading Counsel suggested that they be agreed, apparently for fear the list might be in
some way selectively presented {Day13/124:18} – {Day13/128:8} – a very different
position to the suggestion now made by Post Office that the Judge should not have such
a list at all).
161. Thereafter, §543 contains comments on the list of documents, which are set out in the
§542 (that is not one of the paragraphs relied upon by the Post Office in support of this
Application, despite being in between and directly related to §541 and §543 which are
challenged).
162. The observations in the Judgment in these paragraphs are entirely unobjectionable –
they are fair observations on the evidence and documents before the Judge at the trial,
in the document he requested to be prepared, and the observations made are expressly
caveated. They form part of the judicial assessment of the litigation before the Court.
163. Post Office’s objection to this category is totally unreasonable. It is without merit. Post
Office had wanted the evidence to be accepted by the Court all one way, which the Judge
had rightly not permitted. Notably in the evidence adduced by Post Office:
163.1. Mrs van den Bogerd’s witness statement sought to give the impression that
shortfalls could be caused by users but not by Horizon, for example:
a. at §78 stating that “the Subpostmaster has complete control over the branch
accounts and transactions only enter the branch accounts with the Subpostmaster’s
(or his assistant’) knowledge”) {C2/1/23};
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b. at §81, stating that an SPM must do a cash and stock count “and compare it to
the cash and stock holdings on Horizon which reflect the net effect of all transactions
recorded by the Subpostmaster over a given period” {C2/1/24-25};
c. at §96 stating that the user in branch “Entering incorrect data or not using the
system properly could cause shortfalls or, for that matter, gains” {C2/1/29};
d. §98 asserting “The NFSP has publicly supported Post Office’s view that Horizon is
robust” {C2/1/29}; and
e. at §116 - §125, presenting nine possible causes of a shortfalls or gains in
branch, without identifying the possibility of Horizon as being a cause
{C2/1/33-34}.
163.2. Mrs Dickinson’s witness statement {C2/6} was entirely focused on evidence about
frauds that might be committed by Subpostmasters and concealed from Post Office
– this was clearly designed to identify to the Court the possibility of dishonest
SPMs as the cause of shortfalls.
164. In those circumstances, it was clearly open and proper for the Judge to contemplate the
possibility of losses having been caused by Horizon, and to record that possibility in his
Judgment. His doing so does not give rise to any basis for a challenge to his impartiality
in the conduct of future trials. He did so fairly and judicially, and no fair-minded and
informed observer, having considered these facts, would conclude that there was a real
possibility of bias.
Cause of Shortfalls
165. It is unclear which of the paragraphs of the Judgment identified in Parsons 15 are
intended to fall within the category, cause of shortfalls.
69
166. It may be that §462 is said to relate to this – this paragraph is about Mrs Dickinson’s
evidence as follows (bold as per Parsons 15, underline added for emphasis):
In any event, her evidence does demonstrate the Post Office’s default position
regarding their SPMs. This is that shortfalls and discrepancies are not caused by the
Horizon system, therefore those that do occur can only be the responsibility of SPMs.
This conclusion means that the Post Office fraud prevention and debt recovery
procedures will be used against SPMs in this position, unless an SPM can
show that the shortfall or discrepancy was not their fault. Whether this is
justified will only be resolved after further trials, and this judgment does not contain
findings on breach, loss or causation. Evidence saying in general terms how fraud
occurs and that the perpetrators are not necessarily “bad” people does not advance
matters a great deal.
167. It may be that findings §569(60) and (61) have also been identified on this basis (bold as
per Parsons 15, underline added for emphasis):
60. There is no evidence available to demonstrate that any SPM has, to date,
ever been able to establish to the Post Office’s satisfaction that an alleged
shortfall was the result of a Horizon bug or error. There is however evidence that
the Post Office has, on occasion, “written off” sums which it had initially claimed were
due to it. This happened in Mr Bates’ case. However, there is no explanation available
for why that was done.
61. The Post Office has on occasion detected that Horizon generated errors
caused the appearance of shortfalls and errors which the Claimants
themselves had not been able to identify as the cause of those apparent
shortfalls. Whether the individual Claimants had been forced to make these good from
their own funds, or when recovery was sought from them had refused to pay, must
depend on the resolution of individual cases in later trials.
168. The Claimants will await any further explanation, although it is difficult to see how any
further explanation could improve the Post Office’s position at all. At present, the Post
Office’s criticisms of the Judge appear to be wholly without merit. It is obvious that the
paragraphs above are unobjectionable, including the text which is underlined.
169. Again, Post Office chose to cross examine the Lead Claimants as to the cause of shortfalls
and specifically put a likely cause to them.
70
170. For example, it was positively put to Mr Bates during questioning of him on behalf of
Post Office – at some length - that the Horizon system was not the cause of his
unexplained shortfalls, rather it was mistakes made in branch, see the exchanges at
{Day2/127:13}- {Day2/137:11}. for example, the following questions were put by Post
Office’s Leading Counsel:
Q. That is a staff error, isn't it? That's someone entering things on a duplicate basis?
Q. But in terms of -- if someone had, for instance, stolen money, taken £100 here or
£200 there, again that wouldn't be something you would be able to identify from your
checks that you are talking about, is it?
Q. Did you look in your parallel business? I have not seen the accounts of your
parallel business.
Q. Is it possible someone could have made a mistake and put money in that till?
Q. Because there were errors in this branch. This was not an error-free branch, was
it?
Q. So it is not a sort of outlandish thing to think, that part of the losses you're talking
about were caused by errors. Because Horizon is only as good as the information you
or your staff put in, you accept that?
Q. What I suggest, and you say at paragraph 151 of your witness statement {C1/1/33}:
“... clear to me from this point there were problems with the Horizon system."
Essentially you just closed your mind to any other possibility. You got it in your mind
that it was Horizon, and for evermore it has been Horizon?
Q. So it wasn't a general problem, you think it was a problem caused by an overnight

software update, that is your potted theory, is it?
71
Q. But the reality is you hadn't really investigated properly any other possibilities,
had you? Not really. You'd had a sniff around but not had a proper investigation into
--
Q. Okay. I put to you generally that the overwhelming likelihood is that these deficits
were most likely caused by error or wrongdoing in your branch by you or your staff.
That is the Post Office case.
171. Mrs Stubbs was cross examined at length on a similar basis {Day3/1:20}-{Day3/4:13},
{Day3/6:3}- {Day3/8:25}, {Day3/18:13}-{Day3/22:14} and {Day3/54:20}-{Day3/55:23}.
Likewise Mr Abdulla {Day4/130:3}-{Day4/135:5}, Mrs Stockdale {Day4/206:8}-
{Day4/208:22} and Mrs Dar {Day5/71:18}- {Day5/75:10} – indeed, in the latter two cases,
Post Office’s case was put on the basis of mistakes or dishonesty.
SPM Discovery of Cause
172. The Claimants anticipate that the following paragraphs have been identified in Parsons
15 because they relate to how easy or difficult it was for Subpostmasters to discover the
cause of shortfalls: §106 (Mr Bates could not obtain all the information he felt he needed
in order to investigate a £6,000 variance fully), §141 (the introduction of Horizon
represented a fundamental change to the information Mrs Stubbs had available to her),
§172 (Mrs Stubbs did her best at the time to try to work out what was happening and
the reasons for it), §208, §217 and §223 (Mr Sabir discovered the mistake with lottery
scratch cards but had no way of knowing how many he should have had), §302 (Mrs
Stockdale had unexplained shortfalls she could not get to the bottom of),59 §303 (Mr
Longbottom attended Mrs Stockdale’s branch but he couldn’t get to the bottom of it
either), §309 - §311 (Mrs Stockdale did not know which product had caused her loss, she
took extremely sensible and thorough measures, introducing paper recording system
and CCTV, she explained she spent hours trying to investigate but the shortfalls kept
occurring and she could not work out why), §569 (34) (finding - Claimants were
59 Noting only part of §302 is relied upon by the Post Office (the first two sentences) – as at paragraph
177 below.
72
themselves unable to carry out effective investigations into disputed amounts because
of the limitations on their ability to obtain the necessary information from Horizon);
§569 (50 and 51) (findings – the introduction of Horizon limited the Claimants’ ability to
access, identify, obtain and reconcile transaction records and to investigate apparent
shortfalls, particularly as to the underlying cause thereof), §567 (given the amount of
information available to an SPM on Horizon it is difficult to see how an SPM could
provide exact details of the fault or product leading to the unexplained shortfall or
discrepancy) §569 (76 and 77) (finding - Post Office has greater knowledge of the record
of transactions undertaken in branches on its behalf, as it has greater access to
information on Horizon than SPMs, further findings must await Horizon trial);60 §806
(ability of an SPM to consider and investigate discrepancies was wholly different in a
paper based system), §819 (the issue with the information available to an SPM on
Horizon is that they could not identify discrepancies or shortfalls or understand the
basis on which TCs with which they disagreed were issued),61 §824 (Mr Bates tried to
get to the root cause of the first unexplained shortfall but the Horizon system didn’t
enable him to do this); and §852 (it was not possible on the information available to an
SPM on the Horizon system to identify the day, product and still less time of day
responsible).
173. This issue was of absolutely central relevance on Post Office’s own at Section D.
174. Post Office had itself adduced detailed evidence on this very topic, leading to Mrs van
den Bogerd’s conclusion in her witness statement that “It would be unlikely that a
Subpostmaster, having kept his accounts diligently, still had no idea where a material problem
was arising from”: §135 {C2/1/37}.
175. Thus, Post Office’s challenge to these matters in the Judgement as out of scope of the
trial, is essentially a challenge to findings which are the obverse to those for which Post
60 Again, noting that only part of §569 (76 and 77) is relied upon by Post Office – as at paragraph 179
below.
61 Again, noting that only part of §819 is relied upon – paragraph 181 below.
73
Office had contended. In truth, it is not the scope which Post Office takes issue with, it
is the finding against Post Office.
176. Looking at the three paragraphs where Post Office has relied on parts of the paragraph
to found its Application, reveals the illogicality of the Post Office’s position.
177. The first is §302. As set out below, the underlined passages are the additional text from
this paragraph of the Judgment which are not included in Parsons 15:
302. Mrs Stockdale’s experience of running the branch was not a happy one.
Unexplained shortfalls would appear on Horizon when she was completing a weekly
balance or submitting a trading statement. There were no explanations for these,
and there was no way available for her to get to the bottom of them either.
She found it very difficult to obtain any details from the Post Office, and did
everything she could think of to keep the most detailed records within the branch itself.
Her first shortfall was £172.50 in the very first balance that she did in the branch on
21 May 2014. One of the Post Office auditors was there, Mr Longbottom. This is
because this was the final part of her training, and he is an auditor and trainer. He
was also the auditor who had done the transfer audit from Ms Collinson to Mrs
Stockdale. I deal further with his evidence below. Mrs Stockdale said that even he could
not get to the bottom of the shortfall either, and he also told her that she had to settle
the shortfall by cash or cheque, or settle it centrally. This matches the way the Horizon
system presented options to SPMs. As has been seen, and shown by Appendices 3 and
4, this requires a SPM to “Accept Now”.
178. It wholly unclear Post Office has taken a conscious decision not to rely on the underlined
part of this paragraph. Perhaps the reason is that Post Office called Mr Longbottom as
a witness. Perhaps the reason is that the paragraph clearly links the issue to the
accounting position on Horizon, on which Post Office agreed a document for the very
purposes of such findings being made. However on any sensible view, the matters
which are complained about are given context and explanation by the text which then
follows.
179. The second is §569 (76 and 77), also partial paragraphs in Parsons 15, but which in fact
in the Judgement include the underlined text below - here clearly showing that the
disputed finding is one half of a pair of findings about relative knowledge of Post Office
and SPMs:
74
76 and 77. Subpostmasters and/or their assistants do have “first-hand knowledge of

the transactions taking place in their branches” in terms of knowledge that a physical
transaction has taken place. The Post Office is unable to monitor at first hand the
custody and use of its property (principally, cash and stock) in branches. However,
the Post Office has greater knowledge of the record of transactions
undertaken in branches on its behalf, in relation to which it is liable to its
clients, as these are performed using the Horizon system and the Post Office
has a greater access to the information contained in that system than the
SPMs. Further findings on this must await the Horizon Issues trial.
180. This example well shows the one-sided approach Post Office would like to apply to the
evidence and the Judgment. There is no proper foundation for it. It is unusual, if not
unprecedented, as an approach.
181. The third is §819, again the underlined text shows the full paragraph in the Judgment,
not included in Parsons 15, but showing the context as follows:
819. That Branch Trading Statement (whether by a SPM under the SPMC, or one
under the NTC) is not therefore subject to the same common law principles that would
apply as though it were such an account, namely that the SPM is bound by that
account unless and to the extent that he discharges the burden of demonstrating that
there are mistakes in the account that he should be permitted to correct. Indeed, the
imposition of such a principle would, in my judgment, not only be entirely wrong and
unfair, it would be contrary to the express terms of the contracts. The Horizon system,
and the options available to a SPM who disagreed with (for example) a Transaction
Correction, were designed by the Post Office and whichever company was responsible
for the IT architecture. There was no ability on the part of any SPM to demonstrate
there were “mistakes” in the “account” (that is to say the Branch Trading Statement),
or it identity within that Branch Trading Statement items or amounts that were
disputed. The whole issue with the information available to an SPM on Horizon is
that they could not identify discrepancies or shortfalls, or understand the basis on
which TCs with which they disagreed were issued. Telephoning the Helpline was
something that was entirely outside the Branch Trading Statement.
182. It is abundantly clear that the matters which are relied on by Post Office to found the
Application are part of the Judge’s decision as to whether the Branch Trading Statement
is an account in the sense that was contended for by the Post Office at trial. The findings
are relevant, proper, and clearly founded in the witness evidence as heard and assessed
by him, and as recorded in earlier passages of the Judgment on these issues.
75
183. At this point, it will come as no surprise to hear that again, these were all matters on
which Post Office chose to cross examine Lead Claimants – for example Mr Bates in the
passage set out at 170 above {Day2/135:5} – {Day2/136:9}:
Q. What I suggest, and you say at paragraph 151 of your witness statement {C1/1/33}:
“... clear to me from this point there were problems with the Horizon system."
Essentially you just closed your mind to any other possibility. You got it in your mind
that it was Horizon, and for evermore it has been Horizon?
A. My experience on that particular occasion, after there had been a software update
on the system, was that these duplicated transactions had come out of thin air. They
hadn't been there. We were only balancing weekly in these days so it was relatively
easy to keep track of accounts and things like that. But it jumped out, these errors
jumped out in there, and it could only have been the cause of Horizon. There couldn't
have been anything else. All I was asking for, even having resolved those sums, because
I was quite positive about IT, I think it is the best way forward, all I was asking was
for proper tools to actually investigate the data that I and my other staff had put in.
All I wanted was a real report writer package in there so I would be able to put in my
own searches --
Q. But there were report writing functions --
A. They were very basic.
Q. I suggest to you they were not basic, they were good and useful and all you required
necessarily to investigate your losses.
A. Sorry, I was the subpostmaster, and to be quite honest they weren't. They weren't
good enough for the job.
PO Investigation of Shortfalls
184. The Claimants anticipate that the following paragraphs of the Judgment have been
identified as relating to Post Office’s investigation of shortfalls: §165 (relating to the
evidence put to Mrs Stubbs said by Post Office to amount to an investigation in her case);
§479-480 (an excel spreadsheet showing TCs would have been helpful to Mrs Ridge
when considering Mr Abdulla’s account, and the hearing proceeded with incomplete
information); §557-558 (Post Office could not show the court the end product of the
investigation for either Mrs Stockdale or Mrs Stubbs).
76
185. The Judge was entitled to make the observations he did in these respects – they were
clearly in issue on the evidence before the Court.
186. For example, just as the Judgment indicates, in cross examination Post Office’s Leading
Counsel clearly put documents to Mrs Stubbs on the basis that an investigation had been
carried out (e.g. “From early on in the process, Post Office was investigating the problems at
your branch and you were told about that. If you go to {E2/44/1} to remind yourself of what you
were told at the time … If you look at the other said of the fence, you wouldn't have known this
at the time, but if you go to {E2/33/1} there is a log here … “ {Day3/23:9-23} and “You
mentioned Fujitsu. Can we go to what they were doing in the background. You didn't know
this at this time, but you seem to be suggesting Post Office and Fujitsu weren't doing anything.
Go to {E2/53/1}, I want to show you some emails from March 2010. Page {E2/53/5}, please.
The bottom email ….” {Day3/25:21} – {Day3/26:1} et seq; likewise, there was re-
examination arising from that {Day3/67:21} – {Day3/71:16}).
187. Further, each of the paragraphs in the Judgment is caveated: §165, by reference to what
was put by Post Office “in this trial” and the documents “produced and put” to Mrs Stubbs;
§479-§480 “I make no findings on any matters connected with breach, causation or loss”; and
§557-558 “Detailed findings of fact as to this must however wait for a later trial”.
Suspension and Termination
188. The Claimants anticipate that the following paragraphs of the Judgment have been
identified as relating to suspension and termination: §263-264 (relating to a letter sent to
Mr Abdulla dismissing his appeal); §327 - §328 (documents in this litigation show that
what the Post Office said to Mrs Stockdale after her suspension was not true, and Mrs
Stockdale was a careful and accurate witness); §402-403 (Post Office’s own witnesses do
not know what the appeal consisted of or what the test was, and risk to Post Office
reputation should not be a factor in an appeal); §479-480 (the hearing process for Mr
Abdulla’s suspension and termination proceeded with incomplete information); §514-
§515 (cross examination of Mr Carpenter who recommended that Mrs Stockdale should
be suspended, and points arising from it); §723.2 and 723.4 (legal representation is not
permitted by Post Office at interviews which deal with whether a suspended SPM is to
77
have their engagement terminated, Modified SPMC Section 15 clause 19 provides that
for an investigation division interview communications about the interview might
constitute a breach of the Official Secrets Act, which is somewhat unusual and
potentially oppressive).
189. These are all entirely legitimate comments and observations, forming part of the Court’s
judicial assessment of the proceedings. Post Office itself called evidence as to its
practices and procedures for suspensions and terminations, and that evidence was
rightly tested. In relation to Mrs Stockdale’s suspension, the Court heard from Mr
Carpenter, and in relation to Mr Abdulla’s suspension and termination the Court heard
from Mrs Ridge (and indeed the Judgment contains very positive commentary about
Mrs Ridge: §477: “…she came across to me as entirely honest and straightforward”, and §480
“Mrs Ridge seemed to me to have a greater awareness of the need to be fully accurate and helpful
to the court than some of the other Post Office witnesses).”
Unjustified Demand and Threats
190. The Claimants anticipate that the Post Office has identified the following paragraphs of
the Judgement in Parsons 15 as falling within this category of Parsons 14: §115 (referring
at point 2 to Post Office’s letter demanding that Mr Bates make good as a matter of some
urgency the sum which was ultimately written off); §222 (there can be no excuse for the
Post Office to misstate in such clearly express terms in letters that threaten legal action
the contractual obligation on an SPM for losses, the only reason must have been to lead
the recipients to believe they had absolutely no option but to repay the sums demanded,
it is oppressive behaviour); §515 (which at point 4 refers to an invoice asserting sums
due in blanket terms); §569(40) (finding – Post Office in fact sought recovery from the
Claimants for apparent shortfalls, on the evidence, regardless of whether disputes had
been reported to the Helpline or not, this was accepted by all the Post Office witnesses,
it was also done regardless of any analysis of causative fault, it was also done when the
SPM in question had been told no action would be taken); §723 (which at point 1 refers
to letters of demand for disputed sums in express terms as though the SPM had strict
liability, even where they had been appointed under the SPMC).
78
191. These comments and findings are both obviously correct, and of course entirely
available to the Judge as arising on the issues and the evidence before him. The Judge
both (1) decided the proper construction of the liability for loss clauses, and heard the
parties’ competing positions about them, and (2) also had before him the
correspondence sent to SPMs which on any view misstated SPM liability. How any
accounting relationship worked was in issue during the Trial and the Post Office’s
understanding of its own process appeared to develop significantly in the light of
explanations provided by Lead Claimants (which were obviously correct). The status
of a sum unwillingly “accepted” was central to any proper understanding the way in
which the Horizon system worked and the scope and nature of the accounting
relationship for which the Post Office contended.
Unknown / Other
192. Whilst the Claimants have done their best to devine how the Post Office seeks to
characterise the 83 sections of the Judgment about which complaint is made at Parsons
15 §5, a number of sections (or the bold passages of the sections) identified in Parsons
15 do not naturally fall in any of the categories indicated in Parsons 14. Even within
those, however, some themes appear to emerge.
Findings about LC credibility
193. The Post Office, perhaps unusually, takes issue with the Court making findings about
the credibility of Claimant witnesses who have given evidence in a trial.
194. Examples of this appear to include §172 (Mrs Stubbs is a careful and honest witness, and
on the evidence in this trial, she is reliable throughout and honest); §218 – 219 and §223
(Mr Sabir’s account is substantiated by the audit report itself, I found him to be a reliable
witness, the attack on Mr Sabir’s credit fundamentally ignores the reality of the
situation); §328 (finding Mrs Stockdale to be a careful and accurate witness).
195. The objection to these findings is not understood. Not only was it obviously appropriate
for the Judge to record his findings in relation to all witnesses’ credibility, in the usual
way, but he might well have been criticised if he had not done so. Post Office had itself
79
expressly invited the Court to make negative findings about the credibility of LC
witnesses, in closing submissions, e.g. Mrs Dar §599 {A/8/213} and Mr Sabir §589
{A/8/209}, which submissions the Judge rightly did not accept.
196. Further, the hybrid approach to credibility urged on the Court by the Post Office at trial
was irrational and did not bear scrutiny. It is not accepted that such an approach was
even an available one, less still a desirable or fair one.
197. For example, in oral closing it was said by Leading Counsel for the Post Office
{Day14/38:15-21}:
What I am saying is someone in my position would normally say, well, credibility, Mr

Abdulla is a bad'un, he lied about this, that and the other. Therefore when he says he
didn't receive his contract you shouldn't believe him. That is what someone in my
position would normally say if this were a normal trial of all the issues.
198. This was entirely at odds with the position taken in the Post Office’s written closing
submissions: it was in fact, exactly what Post Office had said about Mr Abdulla, in its
written closing, at §592 {A/8/210-211}:
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 told Post
Office he had cash in the branch when he did not, and to have instead put an undated
cheque in the till in case he was caught. Indeed, he says that he would falsify the
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. [emphasis added]
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199. Notably, Post Office’s Leading Counsel also submitted in oral closing that it was a
matter for the Judge whether he thought it proper to make findings about credibility
{Day14/42:23}-{Day14/44:2} – thus, at that point, rightly recognising this was a
discretionary decision for the trial judge.
MR JUSTICE FRASER: Those differences have gone away but I accept -- I

understand your submission: you are not because of the nature of the peculiar situation
in which the claimants find themselves, inviting me to make adverse findings on their
credibility.
MR CAVENDER: Correct.
MR JUSTICE FRASER: Is that right?
MR CAVENDER: It is.
MR JUSTICE FRASER: So when you put to at least some of them, I think, that they
weren't telling me the truth, do you want me to ignore their answers?
MR CAVENDER: My Lord, it is really a matter for you at the end of the day, what
you think is proper. What I am saying is that there has not been full disclosure62 on
those matters, that the reason that it was put was to seek to undermine the impression
they had given in their witness statements that they were telling the full story. So
what we are left with, my Lord, in my submission, is, you should treat their witness
evidence with caution, because you have seen that not in every respect has their
account of the way things worked out been full or sometimes fair. But the other point
of course is that a lot of this evidence is very, very old, and in terms of looking at the
documents, compared to their evidence anyway, one would normally prefer the
documents and the probabilities. And it's only really in relation to whether they
received the contract or not, that is really the crucial factual point you have to make in
relation to the six LCs.
200. The Post Office’s approach to evidence and findings about credibility is incoherent and
internally inconsistent. A good example of this is that in the note submitted by the Post
Office after oral closing submissions, it was said that the Post Office wished to withdraw
the submissions made in the 7th and 8th sentences of §592 of its written closing relating
62 On the issue of disclosure, again, see the Claimants’ Note of Reply Points, point 2 {A/14/4-5}
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to Mr Abdulla (§4, {A/18/2}). This withdrawal would have amended that paragraph as
follows:
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 told Post
Office he had cash in the branch when he did not, and to have instead put an undated
cheque in the till in case he was caught. Indeed, he says that he would falsify the
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.
201. However, the Court will note what remains includes (1) conduct in the termination
interview, (2) whether Mr Abdulla called the Helpline, and (3) Mr Abdulla’s belief in
Post Office’s motivation. This is wholly inconsistent with what appears to be Post
Office’s position in this Application that the Judge should not have made any findings
about e.g. individual suspension and termination, adequacy of helplines, or other
matters. Post Office’s approach is irrational and unreal, and at every turn, entirely self-
serving.
202. As above, one of the very paragraphs of the Judgment now challenged by Post Office as
out of scope of the trial is §248, and the emboldened text includes that Mr Abdulla could
rarely get through to the Helpline. Yet Post Office itself invited a finding on this very
issue in its written closing submissions. The fact that the finding went the other way for
Post Office does not somehow take the matter outside the scope of the matters in issue
at the trial.
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Disputing Discrepancies and TCs
203. Some of the paragraphs identified in Parsons 15 are concerned with the way in which
SPMs accounted to Post Office. For example, the findings at §569(35) and (40) are
objected to. These record:
35. The process for disputing discrepancies or apparent or alleged shortfalls is agreed
by the parties in Appendices 3 and 4 to the judgment as being by phoning the Helpline.
However, even amounts that were disputed in this way were treated by the Post Office
as debts owed by the SPM.”
40. The Defendant in fact sought recovery from the Claimants for apparent shortfalls.
I would also add that on the evidence the Post Office did this regardless of whether
disputes had been reported to the Helpline or not. This was accepted by all the Post
Office witnesses, and occurred whether the SPM in question was appointed under the
SPMC or the NTC, even though the terms of those contracts were different. It was also
done regardless of any analysis of any causative fault on the part of SPMs. It was also
done when the SPM in question had been told that no action would be taken in respect
of a disputed shortfall.
204. Post Office cannot possibly contend these issues were out with the scope of the Common
Issues trial – for all the reasons set out in Section D above, and, for example, because
Post Office agreed a document on the very issue of the process for disputing
discrepancies, as above at §178, p.74.
205. Similarly, the findings in relation to Transaction Corrections:
42. The Post Office required Claimants to accept changes to records of branch
transactions, (“Transaction Corrections” or “TCs” issued by the Post Office), unless
the Claimant was effectively able to prove that the Transaction Correction was not
correct.
43. The Post Office did sometimes issue Transaction Corrections after the end of the
branch trading period in which the transaction had taken place. There was only limited
evidence before me about whether this was also done after the 42/60 day period during
which Claimants could generate (limited) reports using Horizon. However, for some
of the examples used in evidence, this time limit was not observed by the Post Office.
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206. Notably, the evidence before the Court in relation to the issue of TCs, included Mrs van
den Bogerd’s witness statement, which at §79 asserted that the only connection back to
the branch accounts was “Transaction Corrections and Transaction Acknowledgments, over
which the Subpostmaster exercises control” ({C2/1/24} emphasis added) and §142 “This
includes transaction corrections issued by Post Office, which must be accepted by the
Subpostmasters before they form part of the branch accounts. Subpostmasters have a variety of
ways to contest any shortfall and would expect them to do so promptly should they not believe
they are responsible for it” ({C2/1/39} emphasis added).
207. It was relevant and reasonable for the Judgment to make findings on these matters on
the issues before the Court at the Common Issues trial. Post Office’s real complaint is
that those findings were in accordance with the Claimants’ case, and not its own.
Conclusion
208. There is no foundation for any complaint of apparent bias in the conduct of future trials.
The fact that Post Office lost and does not like the observations or findings the Judge
made when properly determining the Common Issues on the evidence before the Court
and tested before him, affords no proper foundation for an allegation of apparent bias,
in respect of the Judge’s ability to conduct future trials. It is clear that no fair-minded
and informed observer, having considered what is set out above, could conclude that
there was any real possibility that the tribunal will be biased in respect of future trials.
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ANNEX 2 – Irrelevant critical invective & harsh findings
Introduction
209. §25 of Parsons 14 {B9.3/1/6} alleges that the Judge did not behave impartially in the
conduct of the Common Issues trial, on the following basis:
22. The Judgment also contains a great deal of critical invective directed at Post Office,
none of which is relevant to the determination of the Common Issues. That too, creates
a clear impression that the Judge has not behaved impartially. The same can be said
for those parts of the judgment which harshly criticise Post Office’s witnesses on
matters irrelevant to the Common Issues.
210. §6 of Parsons 15 {B9.3/3/27} identifies 34 passages from the Judgment said to represent
the irrelevant critical invective relied upon. §7 {B9.3/3/39} identifies a further 13
passages, said to represent the harsh criticisms of Post Office witnesses on matters
irrelevant to the Common Issues.
211. The Court will note that the touchstone for both limbs of this complaint is said to be
irrelevance. In many cases, the answer to relevance is answered by the matters at
Section D, above. There are however some separate issues which arise, as addressed
below.
Irrelevant “Critical Invective”
212. No categories of this type of challenge have been identified by Post Office, but the
Claimants have noted the following apparent themes in the sections identified in
Parsons 15 (1) Post Office’s approach to evidence / the Common Issues trial; (2) how
witness statements were prepared; (3) a culture of transparency/ secrecy; and (4) the
independence or otherwise of the NFSP. The Claimants provide submissions on those
matters below.
Post Office’s approach to evidence / the Common Issues trial
213. The very first section of the Judgment relied upon by Post Office is §21, with the bold
shown as per Parsons 15 {B9.3/3/27}:
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21. Nothing in this judgment should be taken as my expressing any concluded view
on the functionality of the Horizon system, as the issues relating to that will be tried
by me between March and May 2019. Nor should this judgment be taken to be making
any findings in fact concerning any particular allegations of breach by the Post Office.
This judgment is concerned with the Common Issues. However, this cannot be done
in complete hermetic isolation from any facts at all. The Post Office adopted a curious
position so far as the Lead Claimants’ evidence of fact is concerned. Having failed to
have that evidence struck out, and not having sought to appeal that order, Mr
Cavender QC cross-examined on a great many aspects of it. The Post Office made
submissions that some of the Lead Claimants were positively lying to the court (for
instance Mr Abdulla), and were mistaken in fact as to contract documents provided
prior to contract formation (for instance Mr Bates). However, at the same time, the
Post Office urged me not to make findings as to credit. This appeared, on close
examination during oral submissions, to amount to adopting a hybrid approach to
witnesses, and an approach with which I am not familiar (nor can I find any
authority). The Post Office was entitled to challenge the credit of the Lead Claimants,
if it so chose, and it did. However, the Post Office seemed to want findings on
that only if they were in the Post Office’s favour. This is a peculiarly one-way
approach by any litigant. I deal with the credit of the Lead Claimants in Part C.
214. The first point is that Post Office apparently rely on the whole of this paragraph,
including the initial sentences which, for obvious reasons, are sentences that the
Claimants rely upon in resisting this Application.
215. As for the section in bold, this is not “critical invective”; and even if it could be described
in such terms, it is entirely justified, for all the reasons which have been addressed
above. This was an accurate summary of Post Office’s position and of course the Judge
had to record his view on the approach to the evidence which Post Office had urged in
closing submissions. This formed part of the judicial assessment made by the Court. If
he had not explained why that had been rejected, no doubt Post Office would have
complained about that too.
216. The Post Office also complains about part of §28 {B9.3/3/27}, as follows:
28. Another point with which I have to deal is what Mr Cavender QC for the Post
Office described in Opening as a “challenge to the court”. He submitted that “one of
the challenges to the court might be how it approaches that situation where its
sympathies on one side might be in a certain sub-postmaster group in one direction
86
and with a more commercial group in another”. It ought not to be necessary to state
that no judge makes decisions based on personal sympathy. It also ought not to be
necessary to recite that every party, and every witness, comes to the court at a
substantive trial with a clean slate, regardless of the procedural history of the
proceedings. This litigation is being tried by a judge and not a jury, but even juries
are told (and are assumed) to make their decisions objectively and to put no personal
emotion into the decision-making process. The Post Office may have made these
submissions because, on an objective analysis, it fears objective scrutiny of
its behaviour, or it may have made them for other reasons.
217. As is obvious from this paragraph, the Judge was simply dealing with the very
submissions which Leading Counsel for Post Office had made. It ought not have been
necessary for such a submission to be made, it was unusual for it to have been made,
and the Judgment simply records a possible reason why it may have been made, and no
more.
218. The third paragraph about which the Post Office complains is §30 {B9.3/3/28}:
30. I found the approach by both parties in some respects unhelpful. The rule of law
means that all individuals and legal entities are subject to the same laws as everyone
else. There is no special exemption available for the Post Office because it has a lot of
branches, or for sub-postmasters either. The balance of bargaining power can be a
relevant feature in the law of contract, and this is well known, and commercial
common sense is also relevant. However, a party (here the Post Office) threatening
dire consequences to national business should their case not be preferred is not
helpful, and this seemed to me to be an attempt to put the court in terrorem.
219. There are two points here. Firstly, the paragraph contains criticism of both Post Office
and the Claimants approaches. Secondly, the emboldened passage is response to the
submission made by Post Office’s Leading Counsel in both written opening (§3, {A/2/3},
oral opening {Day1/96:8-15} and again in closing (§3 {A/8/5}) that if the Claimants were
right in the broad thrust of their case, that would represent an “existential threat” to Post
Office’s ability to continue to carry out is business in the way it presently does – a point
recorded in §11 of the Judgment. That was an extremely bold submission to make, the
Judge had to deal with it in his Judgment, and his response to it fairly record his views
as to quite how unhelpful he considered that submission to be.
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220. Post Office also complains about part of §34, as follows:
34. Each side called evidence of fact. I heard from each of the six Lead Claimants. The
Post Office called fourteen witnesses. All of the witnesses were cross-examined. I deal
with my conclusions as to these witnesses in Parts C and D of this judgment. The Post
Office objected to vast tracts of the Lead Claimants’ evidence of fact and sought to
strike it out in advance of the trial; I dismissed this application in Bates v Post Office
Ltd (No.2) at [2018] EWHC 2698 (QB). In closing submissions, the Post Office sought
to persuade me that none of the evidence that I had refused to strike out was relevant
to any of the Common Issues. The Post Office seemed to adopt an extraordinarily
narrow approach to relevance, generally along the lines that any evidence that
is unfavourable to the Post Office is not relevant.
221. Again, given the submissions made by Post Office as to relevance, it is impossible to say
that a comment on Post Office’s approach to relevance was itself irrelevant. The
comments the Judge made are in any event particularly well founded, for all the reasons
set out previously in these submissions, and indeed as referred to in the final part of §34,
which is not reproduced in Parsons 15 but reads as follows:
… The Post Office adduced a significant quantity of evidence of its own to demonstrate
(as it saw it) that (for example) Horizon training was perfectly well designed and
adequate; on the other hand, it sought to keep out specific evidence by Lead Claimants
of their own individual experiences of the training they had received.
Witness Statements
222. A number of paragraphs identified in Parsons 15 refer to the content of witness
statements and whether these were in fact written by the witness concerned.
223. §393 - §394 refer to the inappropriate argument which was contained in Mrs Rimmer’s
witness statement. The emboldened passage in §394 is then as follows:
… It may well not have been drafted by Mrs Rimmer at all, as some litigants’
solicitors are often responsible for the content of witness statements. This
was not pursued in cross- examination and so it is neither necessary nor
desirable to make any finding about it. I certainly do not criticise Mrs Rimmer
for it, although if it were not written by her, it should not have been in her
statement.
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224. It is quite surprising that in this Application the Post Office takes issue with that passage,
as it in fact is protective of Mrs Rimmer’s own credibility. The Judge had positively
assessed Mrs Rimmer’s credibility in §392, finding her “a reasonable and straightforward
witness”, and the emboldened part of §394 makes clear that the Judge does not criticise
Mrs Rimmer for the matters of argument contained in her statement. There is nothing
inappropriate in the Judgment recording that witness statements should not contain
argument, and the possibility that the blame for this lay with the Post Office’s solicitors
rather than the Post Office witness herself.
225. Almost identical points arise in relation to §476 which is also relied upon as “critical
invective”, here in relation to the witness statement Mrs Ridge. This paragraph simply
records that a passage of her witness statement appeared to have been written for her,
but again the point was not put so the Judge makes no findings. Again this point in the
Judgment is essentially protective of Mrs Ridge, who is held to have given “generally
frank and helpful” oral evidence, and to have come across as “entirely honest and
straightforward”, at §477.
226. Finally again, at §532 the Judgement records that Mr Trotter’s witness statement
appeared to have been written by someone else, and not Mr Trotter – it is clear in context
that the Judge was making no finding about this. Recalling the evidence given by Mr
Trotter and how it differed in tone and substance from his witness statement, the Judge’s
observations were not surprising.
227. The Post Office’s sensitivity to these paragraphs taken collectively is unexplained and
hard to devine. None of these comments are in any way “critical invective”. As made
clear on the authorities referred to above, the informed observer is phlegmatic, and
certainly not to be attributed with sensitivity of this nature.
228. It seems most likely the Post Office’s sensitivity on this matter arises from what has
become clear as to the manner in which witness statements have been prepared for Post
Office in this litigation, particularly given the facts which have emerged in the evidence
heard thus far in the Horizon Issues Trial.
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228.1. Mr Johnson did not know the source of two screenshots in his witness statement,
which had been cut and pasted into his witness statement by someone else (he did
not know who) - Horizon Trial (Day 7) {B10.1/7/3}:
Q. So do you know where these ones have come from?
A. No.
Q. Did you actually cut and paste these into the statement
yourself?
A. No, I did not.
MR JUSTICE FRASER: Who did?
A. The statement was provided to me by our solicitors based
on conversations and --
MR JUSTICE FRASER: You don't need to tell me about that.
I just wondered who had cut and paste these into the
statement.
A. I don't know who did that.
228.2. Also Mrs Mather, whose witness statement contained paragraphs about ARQ
requests, - Horizon Trial (Day6) {B10.1/6/43}:
Q. And at paragraph 18 {E2/8/4}, somehow ARQ requests has come into your witness
statement.
A. Yes.
Q. It's not really your thing, is it?
A. No.
228.3. And most strikingly of all, Mr Godeseth- Horizon Trial – (Day 7) {B10.1/7/39}:
Q. So is it actually -- where did you get that information from?
A. From Jason.
Q. So what did you ask him?
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A. Personally I didn't ask him anything. This was information that was being
requested to go into the witness statement, so I'm confident that it is correct. I have
no particular motive in providing that information.
Q. I'm just trying to -- I'm not talking about motive, I'm just trying to identify how
it has ended up in your witness statement.
A. I was effectively asked to put it in.
Q. So did Jason Muir actually inform you of this in response to any requests from
you?
A. No.
Culture of transparency/ secrecy
229. A number of the paragraphs identified in Parsons 15 contain reference to the appearance
of a culture of secrecy and excessive confidentiality.
230. For example, §36, which follows reference to the confidentiality provisions on the Grant
Framework Agreement:
36. I deal below in Part F with the relationship between the Post Office and the
National Federation of Subpostmasters (NFSP), the very detailed confidentiality
provisions within the Grant Framework Agreement (by which the Post Office provides
funding to the NFSP) and the potentially serious consequences to the NFSP if it were
to be in breach of that agreement. I also deal below with the circumstances in which
the contents of that agreement were finally made public about 18 months after it was
signed, and only after a lengthy period of pressure by someone using the Freedom of
Information Act. There seems to be a culture of secrecy and excessive
confidentiality generally within the Post Office, but particularly focused on
Horizon.
231. This is a fair and material comment, both in the context of the other matters contained
in the Judgment, and specifically Post Office’s evident resistance to disclosure of the
Grant Framework Agreement. This resistance was very clear from the documentary
record showing the efforts it took for Mr Baker to obtain a copy of the Agreement {G/74}
– {G/80}, and the provisions of the Agreement itself, {G/72} (as put to Mr Beal in cross
examination by the Claimants’ Leading Counsel, and findings about this appear later in
the Judgment, from §580 onwards).
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232. Parsons 15 also identifies §120, which refers to the internal emails, data protection and
claims to privilege in the context of Mr Bates:
Mr Bates was threatened with having his contract with the Post Office terminated if
he did not comply, in other words start to make good these losses by paying in his own
funds to cover them. He refused to do this. Eventually, in a letter dated 5 August 2003,
he was given three months’ notice by the Post Office who terminated his contract with
effect from 5 November 2003. Curiously, disclosed e mails about this decision
internally to terminate his contract are not only heavily redacted, but even the sender
and addressee of these e mails have been redacted so it is not possible to see from whom
they were sent, or to whom. I do not understand how the identity of the sender and
recipient of e mails, parts of which are accepted by the Post Office as not being
privileged, can be said to be privileged. The identity of the sender of an e mail that is
accepted as being partially non-privileged cannot itself be privileged. The Post Office
(in submissions on typographical errors when provided with the draft) has
explained that the redaction of identity was done at the time for Data
Protection reasons. If that is correct, neither the identity of the sender or
recipient can be legally privileged and no unredacted versions were produced
for the trial bundle, so far as a I know. However, I deal with the Post Office’s
approach to privilege and secrecy elsewhere in this judgment.
233. Further §560 - §561, recording Post Office’s approach to documents. It is notable that
Post Office chooses not to rely on points 1, 2 and 3, of §560 (which have been consciously
excluded from §560 as set out in Parsons 15). The paragraphs are set out in full below,
with the excluded content underlined:
560. What is less understandable is the way that this approach seems to have affected
the Post Office’s approach to documents. The following examples can be given:
1. I have accepted Mrs Stubbs’ evidence concerning the instruction given to the
Temporary SPM, after she was suspended, that all documents relating to her
appointment in the branch should be destroyed. This is dealt with at [166] above.
2. I have dealt at [483] above with the Post Office’s refusal to give one of its own
auditors, Mr Longbottom, the documents that he requested internally, which he must
have considered he needed, when attempting to get to the bottom of unexplained
shortfalls at another branch.
3. I have also dealt above with the question of Mrs Stockdale, and the preservation of
documents in her case being presented by the Post Office’s solicitors as though it were
92
a concession. It is not, and documents directly relevant to a claimant in these

proceedings should never be destroyed; the notion should not be contemplated for a
moment by a litigant.
4. Disclosure of plainly relevant documents has been resisted by the Post Office in this
litigation, which led to interlocutory hearings and eventually orders by me in relation
to disclosure. Again, I have also dealt above with the situation concerning Mrs
Stockdale, whose credit was directly attacked as a result of an audit, yet the documents
sought by her advisers relating to the initiation of that audit were not disclosed.
5. Even the identity of both the sender and recipients of internal e mails about the
termination of Mr Bates’ appointment have been redacted from disclosed
correspondence, as I have explained at [120] above. The Post Office in later
submissions on typographical corrections maintained this was done for Data
Protection reasons. The contents of the e mails are themselves heavily redacted, and
the court will not go behind such an assertion of privilege. However, given that part
of the e mails are accepted as not being privileged, and have not been redacted, I
cannot see any sensible basis for maintaining any redaction of the identity of the
sender and recipients.
561. These are examples, in my judgment, of a culture of excessive secrecy at the

Post Office about the whole subject matter of this litigation. They are directly
contrary to how the Post Office should be conducting itself. I do not consider
that they can be a sensible or rational explanation for any of them.
234. The Judge’s comments are well founded, and it is unsurprising that those comments
have been made on the evidence before the Court. The points at 1-3 alone (which have
been consciously excluded from the part of §560 relied upon) would be sufficient to lead
to the general comments at §561 and elsewhere in the Judgment. The points at 4 and 5
(which are relied upon) are well founded – for example particularly in relation to
disclosure, which has been unreasonably resisted by Post Office throughout (both in
relation to the Common Issues trial and the Horizon Issues Trial – see e.g. Post Office’s
position as adopted in its Letter of Response {H/2}).
The NFSP
235. During the Common Issues trial, the Post Office repeatedly emphasised the role of the
NFSP as an allegedly independent voice for SPMs:
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235.1. in respect of contract negotiations, where SPM’s interests have apparently been
represented by the NFSP: witness statement of Mr Beal §36 {C2/2/27} and §40-41
{C2/2/9}, Mr Beal then emphasising the NFSP’s alleged independence §45 {C2/2/9};
235.2. in respect of Horizon, witness statement of Mrs van den Bogerd §98 {C2/1/29} “The
NFSP has publicly supported Post Office’s view that Horizon is robust”;
235.3. and in respect of the litigation, the Post Office’s written opening §13 {A/2/6}:
“Furthermore, it should be noted that the National Federation of Subpostmasters
(“NFSP”), which is the organisation which represents SPMs and their interests
nationwide, does not support this action and does not endorse the factual premises of the
Claims.” (emphasis as original).
236. Thus the independence or otherwise of the NFSP was clearly put in issue by the Post
Office. That is why the Claimants sought disclosure from the Post Office, and cross
examined Mr Beal about the Freedom of Information documents which the Claimants
had obtained from public sources.
237. Indeed, by its Leading Counsel Post Office also chose to re-examine on these issues,
including: whether the NFSP had opportunities to and had in fact obtained legal advice
{Day6/126:17} – {Day6/127:1}; the email which stated “"Please note - a signed agreement
with the blood of both myself and Paula is necessary on the future of the NFSP before any
agreement is granted on either NT and other points." {Day6/127:15} et seq.; and whether Mr
Beal was telling the truth about publishing the Grant Framework Agreement
{Day6/130:8} – {Day6/131:13}.
238. Further, in closing, Post Office:
238.1. Repeated the assertion made in opening about the NFSP not supporting the action
or endorsing the factual premises of the claims (§13 {A/8/9}).
238.2. Now pitched the position as… “whatever the organisations precise degree of
independence…” (§14(a) {A/8/9}) – implicitly recognising that that the NFSP could
not be said to be fully independent.
94
238.3. Yet continued to rely on the NFSP as a “control mechanism” for the purposes of its
position on implied terms, at §345 - §356 as follows (emphasis added):
345. Neither of those tests is met as regards changes made with the agreement of
the NFSP, a body tasked with protecting the interests of SPMs. The contract itself
provides an express “control mechanism” (namely, the need to obtain approval
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” {A1.1/144/31}.
346. It is an objective test whether or not the NFSP has granted its approval for a
change, and there is nothing incoherent (whether practically or commercially) in
the parties agreeing to such a control mechanism, to the exclusion of any implied
restriction. If the parties had been asked at the time of contracting whether changes
agreed by the NFSP were subject to any additional restriction, they would not have
replied with a terse “of course” but with confusion as to why any further restriction
would be necessary. The NFSP could be expected to block any highly controversial
change, 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).
239. The findings in the Judgment at §576-577 (as to the Paula Vennells “signed in blood” email
from the General Secretary of the NFSP, George Thompson – linking future funding of
the NFSP to an agreement on Network Transformation), §595 (as to changes made to the
NFSP website during the trial), and §596 and §1120 (concluding that the NFSP is not
independent, in that it is dependent on the Post Office for funding, and subject to
stringent and detailed conditions that enable the Post Office to restrict the activities of
the NFSP), are all proper findings, on matters which were clearly in issue, and which
derive from the documentary record before the Court, as put to Mr Beal by both Leading
Counsel for the Claimants and for Post Office.
95
Irrelevant harsh criticisms of Post Office witnesses
240. At §7 of Parsons 15 {B9.3/3/39}, a number of paragraphs of the Judgment are identified
which are said to harshly criticise Post Office’s witnesses, allegedly on matters irrelevant
to the Common Issues.
241. The criticisms identified can be grouped by witness as follows:
241.1. Mr Beal, §375 (way of giving evidence was house style for Post Office
management witnesses, gliding away from pertinent questions, seeking to give
evidence highly favourable to Post Office, more slanted towards PR consumption
than factual accuracy); §544 (Mr Beal’s evidence that NTC was designed to
replicate responsibility for losses under the SPMC, and that Post Office intended
to make its contract with the NFSP public, did not represent his genuine belief);
§547 (“they” - in context a reference to Mr Beal and Mrs van den Bogerd - remain
steadfastly committed to the Post Office party view, they give the impression they
cannot allow themselves to consider Post Office may be wrong).
241.2. Mrs Van Den Bogerd §416 (notwithstanding GLO, appears entrenched in refusal
to obvious common themes connecting the claims, she has become extraordinarily
partisan, refusal to accept themes may be divide and rule approach by Post Office
but not clear); §418 (she sought to give impression she was caught unprepared in
respect of Mr Abdulla’s TCs, which was wholly misleading); §441 (she would
sometimes give clear and cogent evidence, but for the most part she was
extraordinarily conscious of the need to protect Post Office’s position and her own
position, which led to a disregard for factual accuracy, it is necessary to scrutinise
everything she said and treat it with the very greatest of caution); §425 (none of
her witness statement dealt with the internal view of unsatisfactory performance,
at odds with the Post Office position in the case, this must mean Mrs van den
Bogerd is an extremely poor judge of relevance); §544 (she was trying to mislead
in relation to Mr Abdulla’s TCs; she was disingenuous to say that the absence of
highly relevant matters from her witness statement was a desire to keep her
witness statement short – she did not provide any reference in her witness
96
statement to matters unfavourable to Post Office’s case); §546 (Mrs van den Bogerd
is a particularly stark example of how a witness had to force their evidence of fact
to fit with a pre-ordained thesis); §547 (they - in context a reference to Mr Beal and
Mrs van den Bogerd - remain steadfastly committed to the Post Office party view,
they give the impression they cannot allow themselves to consider Post Office may
be wrong).
241.3. Mr Breeden, §400 (Mr Breeden could not have believed there was no material
difference in the SPMC and NTC terms), §408 (evidence presented to put best
possible gloss for Post Office on matters, some of his statements didn’t stand
scrutiny, when presented with documents would agree them – this was one reason
why factual part of trial so protracted as agreement to obvious points would be
reached but took much longer, evidence was given through a PR prism);
241.4. Mr Dance §451 (overall his approach to giving his evidence was unhelpful, his
evidence suffered from an overarching reluctance to provide accurate evidence, if
that may assist the Claimants);
241.5. Mrs Dickinson §458 (I reject her evidence that she did not know about Enron, she
was being unhelpful);
242. A number of short points dispose of the complaint made by Post Office as to these
matters:
242.1. These criticisms may (or some of them) may be robust, but they are nonetheless
entirely justified, and certainly available to the Judge having heard the witnesses
give their evidence and be tested on it. There are multiple examples in the
transcripts to support each of the findings made, see e.g. for Mr Dance, the position
he adopted in relation to the NFSP {Day9/97:8}-{Day9/101:19}.
242.2. Post Office was unrestrained in inviting much harsher criticisms of the LCs,
particularly Mr Abdulla, inviting the finding that he “frequently and brazenly lied”
(which in fact the Judge rightly rejected). If Post Office would have been content
with a finding to that effect in the Judgment against the Claimants, there is
97
certainly no basis, having received the Judgment, to complain of the criticisms
made of its own witnesses, which are in less stark terms.
242.3. None of the criticisms of Post Office witnesses are about “matters irrelevant to the
Common Issues trial”. This simply does not make sense – in large part the criticisms
were about the general way in which these witnesses gave evidence on all matters.
Where the criticism is about a particular issue (e.g. Enron, as put to Mrs
Dickinson), it directly arose on that witness’ evidence (e.g. Mrs Dickinson gave
evidence about the “fraud triangle” as a “well known model in the field of security” and
providing a link to the Association of Fraud Examiners website - §11 {C2/6/3}).
242.4. It is more than clear from the terms of the Judgment itself, that the Judge fairly
assessed Post Office’s evidence and formed his views accordingly, noting in
particular the positive appraisals of Post Office’s witnesses which appear in other
parts of the Judgment, as follows: -
a. Mr Williams §384: “I found Mr Williams a clear and helpful witness, and his
evidence was of great assistance. He had realised shortcomings in the Post Office
processes for contracting with incoming SPMs, and (for example) had drafted the
SERV 135 in 1993, and had adopted some regional and ad hoc (in the sense they were
not nationally adopted at the time) practices to try and get around this. … To be fair
to Mr Williams, he frankly accepted his evidence was his recollection of the processes
of over 20 years ago ….”
b. Mrs Rimmer §388: “She sensibly accepted receiving a document such as the SPMC
on the day of branch transfer was “a bit late” … it does confirm Mrs Rimmer’s
reasonable approach to the giving of her evidence” and §392 “Mrs Rimmer was a
reasonable and straightforward witness”.
c. Mr Shields §474 “I found Mr Shields broadly reliable as a witness. He did, from
time to time, stray from the question in order to put the Post Office point of view,
but these instances were isolated and generally he was doing his best, I find, to
explain matters to me”.
98
d. Mrs Ridge §476 “Her evidence orally was very clear and she made it perfectly clear
that she could not remember the interview at all and had based her recollection
entirely on documents”; §167 “I found Mrs Ridge’s oral evidence on this point was
generally frank and helpful, and she came across to me as entirely honest and
straightforward. I find that she did refer to liabilities for losses with Mr Abdulla in
the way she explained. Her oral evidence also was that she had her own crib sheet,
but no copy of that is now available. Liability for losses is an important point and
Mrs Ridge seemed to me to be a careful person…”
e. Mr Longbottom §482: “In human terms, it is understandable that Mr Longbottom
is reluctant to admit of the possibility that he did not arrange for all the necessary
documents to be signed. One of the main functions of the auditors on transfer day is
to obtain signatures on multiple documents. Given Mrs Stockdale signed the NTC
itself this may not much matter in any event, but I accept Mr Longbottom’s evidence
that he would have obtained the necessary signatures and sent the documents off to
the relevant departments in the Post Office, where they have been lost. He struck me
as a careful and diligent person.”
f. Mr Webb §498: “Mr Webb would helpfully agree with sensible points that were put
to him by Ms Donnelly. He did say that he thought he would be able to answer most
questions from incoming SPMs, but frankly admitted he was not often asked any on
transfer day”.
g. Mr Trotter §534 “Mr Trotter was accused of being evasive in some of his answers.
I do not accept that he was being evasive, but he certainly seemed extremely nervous
about giving evidence before me that he thought might be unhelpful to the Post
Office.”
243. No fair-minded and informed observer, having considered the facts and the proper
context, would conclude that there was any real possibility that the tribunal was biased.
99
THE POST OFFICE GROUP LITIGATION
Claim No. HQ16X01238, HQ17X02637 & HQ17X04248
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Before The Hon. Mr Justice Fraser
B E T W E E N:-
ALAN BATES & OTHERS

Claimants
– and –
POST OFFICE LIMITED

Defendant
CLAIMANTS’ SKELETON ARGUMENT

FOR HEARING OF RECUSAL APPLICATION
PATRICK GREEN QC
KATHLEEN DONNELLY
HENRY WARWICK
OGNJEN MILETIC
REANNE MACKENZIE
Henderson Chambers
2 Harcourt Buildings
Temple
London EC4Y 9DB
Freeths LLP
Floor 3, 100 Wellington Street
Leeds LS1 4LT
DX: 310016, Leeds Park Square
Telephone: 0845 077 9570
Solicitors for the Claimants

Bates V Post Office: Claimants' Skelelton For Recusal

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Bates V Post Office: Claimants' Skelelton For Recusal

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THE POST OFFICE GROUP LITIGATION

Claim No. HQ16X01238, HQ17X02637 & HQ17X04248

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ALAN BATES & OTHERS

POST OFFICE LIMITED

CLAIMANTS’ SKELETON ARGUMENT

― Recusal application on grounds of alleged apparent bias ―

― Basis of application confined to judgment ―

― Alleged overlap of findings with later trials ―

― Allegedly irrelevant “critical invective” against the Post Office ―

― Allegedly irrelevant “harsh criticisms” of some Post Office witnesses ―

― Context and judicial assessment ―

― Group Litigation and Managing Judge ―

INTRODUCTION AND OVERVIEW ............................................................ 4

THE APPLICATION ........................................................................................ 10

Basis of the Application .............................................................................................. 11

Particulars in Parsons 15 ............................................................................................. 14

RELEVANT LAW .............................................................................................. 17

The fair-minded and informed observer ................................................................. 17

Judicial assessment of the litigation ......................................................................... 20

Leaving the door open ................................................................................................. 30

ALLEGED IRRELEVANCE ............................................................................. 35

Individual Statements of Case ................................................................................... 40

PARAGRAPHS IN ISSUE ............................................................................... 48

ANNEX 1 – Irrelevant findings overlapping with future trials .................................. 52

Post Office Knowledge of Horizon Problems ........................................................ 67

Cause of Shortfalls ....................................................................................................... 69

SPM Discovery of Cause ............................................................................................. 72

PO Investigation of Shortfalls ................................................................................... 76

Suspension and Termination ..................................................................................... 77

Unjustified Demand and Threats ............................................................................. 78

ANNEX 2 – Irrelevant critical invective & harsh findings ........................................... 85

Irrelevant “Critical Invective”.................................................................................... 85

Irrelevant harsh criticisms of Post Office witnesses ............................................. 96

INTRODUCTION AND OVERVIEW

application (‘the Application’) from the Post Office.

Office’s complaints in its Application.

Group Litigation in accordance with the overriding objective, particularly by way of

Office, which are without merit.

implications of making it obvious to the Post Office.

three striking features of the Application.

(1) No particulars: First, there were no particulars in the Application or

evidence relied upon was the Fourteenth Witness Statement of Mr Parsons

relied upon. Instead, it broadly asserted three categories of complaint:-

Overlap: Paragraphs 22 to 24 assert that the Court made “findings, or

observations, on a wide range of matters which properly fall to be decided

(para.24). Not a single example of such a finding or observation was

Irrelevant critical invective: Paragraph 25 complains of “a great deal of

critical invective directed at Post Office, none of which is relevant to the

determination of the Common Issues [which] creates the clear impression

Irrelevant harsh criticisms: Paragraph 25 goes on to allege that the same

impression is created by “those parts of the judgment which harshly

criticise Post Office’s witnesses on matters irrelevant to the Common

upon – a step that Post Office resisted, as addressed further below.

effectively amounts to a collateral attack on the Common Issues Judgment itself

paragraph 24 of Parsons 14 (above) is prospective and focuses on the Judge’s

ability to deal with future issues impartially, by contrast, paragraph 25 of

impartially in the Common Issues Judgment. It amounts to an attempt to

appeal that judgment by a side-wind. It also amounts to a collateral attack on

informed observer. Post Office expressly sought factual findings on many of

sought from the Judge.

appearance of judicial impartiality.

approach would recognise this.

having formed an adverse view in relation to supposedly irrelevant matters.

should be construed, or in the resolution of issues directly arising from challenges