Case No: HQ16X01238, HQ17X02637 and HQ17X04248

THE POST OFFICE GROUP LITIGATION

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION
Rolls Building
Fetter Lane
London, EC4A 1NL

Date: 17 June 2019

Before :

THE HONOURABLE MR JUSTICE FRASER

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Between :

Alan Bates and Others Claimant

- and -
Post Office Limited Defendant

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REASONS FOR REFUSING PERMISSION TO APPEAL
RE: JUDGMENT (No.3) “COMMON ISSUES”
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Patrick Green QC, Henry Warwick, Ognjen Miletic and Reanne MacKenzie
(instructed by Freeths LLP) for the Claimants
David Cavender QC, Jamie Carpenter and Gideon Cohen
(instructed by Womble Bond Dickinson LLP) for the Defendant

Hearing date: 23 May 2019

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Mr Justice Fraser:

Introduction

1. These reasons are to accompany Form N460. Brief reasons were given orally on 23
May 2019, but given the breadth of the Grounds of Appeal, it was not possible to deal
with them fully on that occasion. Due to lack of space on Form N460 and for
convenience they are provided separately. The Grounds submitted dated 16 May 2019
are very wide in their breadth, running to 53 pages. It is not known if the Grounds in
fact submitted to the Court of Appeal are the same, but those submitted on the
permission application had certain features which makes comprehensive addressing of
each Ground difficult; it is a matter for the Court of Appeal whether these amount to
defects in the Grounds.

2. There were no separately identified numbered Grounds. In oral submission, when

asked, the Post Office’s counsel finally settled on a total of 37 Grounds said to be
related to Errors of Law; 3 related to Procedural Unfairness; and 8 related to Errors of
Fact. This would amount to 48 separate Grounds of Appeal. As these are not
numbered individually, comment cannot be given by reference to numbered grounds.
The three separate sections (law, procedural unfairness, fact) will be addressed
sequentially. Sub-post masters and sub-post mistresses are referred to as SPMs.

Application for expedition – Section B of the Grounds

3. This is included in paragraphs 9 to 12 of the Grounds. Paragraph 12 thereof states that
“expedition would enable the parties and the Court to avoid potentially wasted time
and money on the Further Issues trial” which is due to take place in November 2019.
That submission is not understood. The Further Issues are wholly separate to the
Common Issues decided in Judgment No.3. Those issues for trial in November 2019
principally concern limitation. No individual cases can or will be resolved before the
spring of 2020 at the earliest on the current outline timetable, which may in any event
require revision following conclusion of the resumed Horizon Issues trial.

4. The Post Office’s position on speedy resolution of the litigation does change
regularly, if that is what the application for expedition of this appeal represents. The
Horizon Issues trial which commenced on 6 March 2019 is still underway and oral
closings end on 2 July 2019, even though its original end date was early April 2019.
That is due to the delay caused by the Post Office issuing a recusal application,
explained in Judgment No.4.

Generally
5. None of the Grounds of Appeal have a realistic prospect of success, which is required
under CPR Part 52.6(1)(a), nor is there any other compelling reason for the appeal to
be heard under CPR Part 52.6(1)(b). On that latter point, the SPMC contract form was
superseded in 2011, and is no longer used by the Post Office for its contracts with
SPMs (it now uses the NTC). It is not considered that the Post Office passes the
hurdle to obtain permission on either limb, whether “realistic prospect of success” or
“other compelling reason”. However, the assertion that is made in the Grounds that
the contracts affect “at least 11,000 existing SPMs” cannot apply to any of the
grounds that affect the SPMC. It is the NTC contract form that is currently in use, that
form being introduced in 2011.
6. The oral application for permission, and the Grounds, mis-state what Judgment No.3
in fact decides. As a single example, in oral submissions, the Post Office stated that
Judgment No.3 found that a repudiatory breach could only be accepted in good faith,
thus restricting the Post Office’s ability to accept a repudiatory breach. A similar
submission is made in paragraph 76 of the Grounds themselves, relating to the
challenge to Common Issue 15. However, the passage at [899] in Judgment No.3 that
is relied upon by the Post Office, does not in fact state this. That passage clearly states
the following:

“The decision to terminate without notice can only be taken if the contractual right to
do so has arisen, which on the construction that I have considered, means a SPM must
be in repudiatory breach of contract.”

7. Additionally, the actual answer itself to Common Issue 15 (at the very end of
Judgment No.3, where all the answers are collated) states:

“The Post Office was entitled to terminate a SPM’s appointment summarily in

circumstances where the breach or breaches on the SPM’s part was repudiatory in
nature.”
It is difficult to see how this can properly be said to amount to a finding on this
particular Common Issue that Judgment No.3 imposed a restriction on the Post
Office’s ability to accept a repudiatory breach.

8. This approach by the Post Office also leads to a great concern that the majority of the
claims by the Post Office of what Judgment No.3 does, and does not, find or hold are
taken either wholly out of context, mis-stated, or otherwise not correctly summarised.
This was a feature of its recusal application. Isolated sentences are taken wholly out
of context in the Grounds in a great many cases.

9. Almost all of the different Grounds stating Errors of Fact have already been ventilated
by the Post Office in their unsuccessful recusal application, and have been dealt with
in Judgment No.5 and also in the Reasons by the Court of Appeal for refusing
permission to appeal in respect of that Judgment. Those latter reasons, in particular
the explanation that preferring the evidence of one witness of fact over that of another
witness, rejecting or not accepting what a witness says, and making relevant
comments in respect of the conduct of the litigation, have been entirely ignored in the
drafting of these Grounds of Appeal. Again as a single example, the finding in
Judgment No.3 that the Post Office Director Ms Van Den Bogerd sought to mislead
the court is challenged as being “not open to the Judge on the evidence and/or is
perverse” (paragraphs 180 to 184 of the Grounds) This is to misunderstand the
function of the trial process, a judge’s ability to weigh and consider the evidence, the
right of a judge to accept or reject contested evidence, and also the function of the
appellate court.

10. The correct test for appealing matters of fact, set out in Wheeldon Brothers Waste
Ltd v Millennium Insurance Co Ltd [2018] EWCA Civ 2403 at [7] to [10] by
Coulson LJ, in Fage UK Ltd v Chobani Ltd [2014] EWCA Civ 5 at [114] by Lewison
LJ, and many other cases, has been ignored. It is not known what the Post Office
means by making a “perverse” finding on a witness’ reliability, but this seems to be a
refusal by the court to accept what that witness said, or to take it at face value.
11. The appeal also seeks to have the Court of Appeal “quash” findings in the judgment
itself, rather than correction of what the answers to the Common Issues should be. It
is the answers to the Common Issues that made their way into the Order consequential
upon the trial of the Common Issues. The approach contended for by the Post Office
on this appeal is to misunderstand the function of an appeal, and verges on an attempt
to reargue the trial. The notes at CPR 52.0.6 and all the cases therein mentioned make
it clear that “In a number of cases it has been stated that the function of an appeal
court, in particular of the Court of Appeal, is to deal….with the “result” or “outcome”
(to use non-technical terms) of the hearing in the lower court, and not with “findings”
or “reasons” given in the judgment….”. Notwithstanding those clear statements,
numerous passages in the Grounds seek to have findings or reasons overturned or
quashed.

12. Further, Judgment No.2 (which refused the Post Office’s application to strike out the
Lead Claimants’ evidence for the Common Issues trial) was handed down on 17
October 2018, before the Common Issues trial even started. The Post Office in this
appeal seeks to re-argue relevance and admissibility of evidence at the trial, almost as
though it were an appeal against Judgment No.2. The Post Office did not seek to
appeal Judgment No.2 at all, and did not ask for permission to do so. Nor did it seek
to serve further evidence of its own as a result of that judgment (for which it would
have required permission). It knew in advance of the Common Issues trial what the
evidence of the Lead Claimants was to be; and following Judgment No.2, it knew its
attempt to restrict or keep out that evidence had failed. The Post Office chose to put
certain facts or features in issue at the Common Issues trial as a direct result of how it
conducted its cross-examination of the Lead Claimants. This point has been fully and
extensively addressed in Judgment No.4.

13. In order to assist the Court of Appeal, these Reasons for Refusing Permission address
the different Common Issues that are challenged in the Grounds. It is appreciated that
yet another document of substantial length is unlikely to assist, particularly given the
length of both Judgments No.3 and No.4. It is not possible to address each different
separate Ground of Appeal because these are not identified concisely, or in many
cases, separately, in the Grounds as required by PD52C at paragraph 5(1) and 5(2).
The latter states that the reasons must not be included in the Grounds of Appeal but
confined to the skeleton argument. Numerous paragraphs of the Grounds document
consist of reasons.

14. Finally, due to the presence of so many grounds that broadly or even exactly matched
those raised on the failed recusal application, the Claimants maintained in written
submissions (at the oral application for permission) that issue estoppel applied and
permission should be not given for that reason alone. Due to the decision to refuse
permission in any event, it was not necessary to resolve that point, although the Post
Office application proceeded as though there were no such issue.

Errors of Law – Section C of the Grounds

15. The Post Office’s counsel were not entirely sure how many of these there were, and
time was given for them during the oral application so that these could be counted.
The total arrived upon was 37 relating to Errors of Law. Given the grounds are not
 numbered, these reasons will be given by reference to the Common Issues identified
in the Grounds, rather than separate numbered Grounds.

16. In summary, permission to appeal on each of the Grounds has been refused because
there are no points of law in any of the Grounds that have a realistic prospect of
success (CPR Part 52.6(1)(a)), nor are there any other compelling reasons why the
appeal should be heard under CPR Part 52.6(1)(b)

17. Common Issue 1: this relates to the findings that the contracts were relational
contracts. Paragraph 18 of the Grounds states that the good faith term was implied
“automatically from the classification of the contracts as ‘relational’. Relational
contracts are those found to contain an obligation of good faith, as explained by
Leggatt J (as he then was) in Yam Seng Ptd Ltd v International Trade Corporation
Ltd [2013] EWHC 111 (QB) and the cases that follow. The challenges to this
Common Issue arise from a failure by the Post Office to understand the concept of
relational contracts. Marks & Spencer is not authority for the proposition that there is
no such specie of contracts, and the cases that demonstrate that there is, are reviewed
at [703] to [722] of Judgment No.3. The skeleton argument stated that the Judgment
was “novel and far-reaching”. The Judgment merely applies principles already stated
in a high number of cases, identified in Judgment No.3.

18. There is no error of law identified. Further, paragraph 20 of the Grounds wrongly
characterises what Yam Seng and the other cases decided. An obligation as to good
faith does not require only honesty, regardless of the views of the Editors of Chitty,
and this is dealt with at [706] to [709] of Judgment No.3. In particular, the dicta of
Leggatt J (as he then was) states at [175] in Sheikh Al Nehayan v Kent [2018] EWHC
333 (Comm) the following:
“In my view, this summary is also consistent with the English case law as it has so far
developed, with the caveat that the obligation of fair dealing is not a demanding one
and does no more than require a party to refrain from conduct which in the relevant
context would be regarded as commercially unacceptable by reasonable and honest
people”.

19. Dove J also stated in D&G Cars Ltd v Essex Police Authority [2015] EWHC 226
(QB) at [175] “By the use of the term ‘integrity’, rather as Leggatt J uses the term
‘good faith’, the intention is to capture the requirements of fair dealing and
transparency which are no doubt required…..There may well be acts which breach the
requirement of undertaking the contract with integrity which it would be difficult to
characterise definitively as dishonest. Such acts would compromise the mutual trust
and confidence between the parties in this long-term relationship without necessarily
amounting to the telling of lies, stealing or other definitive examples of dishonest
behaviour.”

20. Paragraph 20 of the Grounds state that “the good faith term implied by the Judge is
extremely broad and onerous”. It is not “broad and onerous” and indeed the passages
in the authorities say it is not a demanding standard. What it means is explained at
[738] of Judgment No.3 as follows: “This means that both the parties must refrain
from conduct which in the relevant context would be regarded as commercially
unacceptable by reasonable and honest people”. The Grounds ignores the dicta in the
numerous cases analysed on relational contracts that state such a duty of good faith is
 not onerous – see [18] above where it is said it is “not a demanding one” – and also
[738] of Judgment No.3 itself. It cannot sensibly be said that it is an onerous burden
for either the Post Office or a SPM to refrain from conduct which, in the relevant
context, would be regarded as commercially unacceptable by reasonable and honest
people.

21. Paragraphs 21 and 22 of the Grounds ignore [722] of Judgment No.3. The Claimants
relied upon an argument stating there was an “imbalance of power” and the behaviour
of the Post Office towards the Lead Claimants. This was dismissed at [724] which
stated “However, I do not consider any of the complaints of imbalance of power are
relevant to the determination of the correct categorisation of the contractual
relationship, and whether the contracts are relational ones.” Some examples were
given in Judgment No.3 of the behaviour relied upon by the Claimants, as the finding
that they were not relevant could have potentially been overturned by the Court of
Appeal. This does not mean they were relied upon in categorising the contracts as
relational. Rather to the contrary, they expressly were not. This point has already been
addressed at [226] to [229] of Judgment No.4 as it was relied upon by the Post Office
in its recusal application.

22. Common Issue 2: This relates to implied terms. A limited number of implied terms
were found, the majority being consequential upon (or examples of) the finding that
the contracts were relational ones. At [743] this is explained as follows; “a number
are, in my judgment, consequential upon these contracts being found to be relational,
namely to include an implied obligation of good faith. However, it would be wrong to
conclude that they all are. In my judgment, it is necessary to consider each of them
individually to consider firstly, are they simply consequential upon my finding that
these are relational contracts; and secondly, if not, are they to be implied terms
because they are necessary to give business efficacy to the contracts, in other words,
under the first category as set out by Baroness Hale in Geys v Société Générale. It
must also be remembered that the question of whether or not a term is necessary is to
be judged at the date the contract is made. As Lord Neuberger stated in Marks &
Spencer at [23]….”

23. Paragraph 26 of the Grounds says each term should have been considered separately.
The passage quoted above states “In my judgment, it is necessary to consider each of
them individually” and they were then considered separately. No errors of law are
identified in part A of this section of the Grounds, dealing with the effect of the
finding that the contracts were relational.

24. Part B of this section of the Grounds deals with terms which Judgment No.3 stated
would have been found on the necessity test if the contracts were not relational ones.
This therefore only arises in the alternative in any event, and would require the
finding on Common Issue 1 to be overturned to become relevant. These terms, in
summary, would require the Post Office to keep records of transactions on Horizon,
produce or explain the records or transactions it relied upon, and to do so before
seeking recovery of losses from SPMs and essentially demonstrating causation of
losses said to be the responsibility of the SPMs. None of these are especially complex
or unusual. They would be, however, plainly necessary.
25. There are no errors of law identified and in any event these terms would be, and are,
necessary in order to require the Post Office to do more than simply assert a SPM
owed the Post Office a particular amount of money which was said by the Post Office
to amount to a loss. The further assertion in paragraph 34(b)(i) of the Grounds that
“the contracts can work (and indeed, insofar as relevant, have worked for very many
thousands of SPMs over 20 years) perfectly well without such a restriction” is
puzzling, and also wrong in law. An assertion of this kind ignores the legal
requirement that necessity is judged at the time of contracting. It is not an answer to
the legal test of necessity. Secondly, it also requires a peculiar definition of “worked”
and “perfectly well”. It is correct that the Post Office could and did (on its pre-
Judgment No.3 interpretation of its obligations) seek to recover losses from SPMs
without producing such records, but that is not the answer to whether the terms are to
be implied. Thirdly, given it mischaracterises the legal requirement of “necessity”, all
it amounts to is a claim that such a term (or terms) are not required for the contracts to
operate. There is no particular analysis included in the Grounds.

26. The challenge in paragraphs 35 and 38 of the Grounds to the findings that the Post
Office was not entitled to suspend and/or terminate SPMs’ engagements “arbitrarily,
irrationally or capriciously” can only logically amount to an argument by the Post
Office that it was contractually entitled to act arbitrarily, irrationally and capriciously
in suspending or terminating the engagement of the SPMs. Such points are not
reasonably arguable.

27. Finally, the requirement found upon the Post Office, as an implied term, to provide
adequate training for SPMs to operate the computerised Horizon system, which they
are required by the Post Office to use, and which is the subject of paragraph 43 of the
Grounds, is not a separate point of law that is arguably wrong in any event. What the
Post Office’s contended-for interpretation amounts to is that it was not required to
provide adequate training for SPMs, even though it is accepted by all parties that it
was entitled to require SPMs to use the Horizon system. That is not a reasonably
arguable point.

28. Common Issue 3: The Grounds at paragraphs 50 to 52 entirely ignore the dicta of
Lord Sumption JSC in British Telecommunications plc v Telefónica O2 UK Ltd
[2014] UKSC 42 at [37] when he stated:
“As a general rule, the scope of a contractual discretion will depend on the nature of
the discretion and the construction of the language conferring it. But it is well
established that in the absence of very clear language to the contrary, a contractual
discretion must be exercised in good faith and not arbitrarily or capriciously: Abu
Dhabi National Tanker Company Ltd v Product Star Shipping Ltd (No 2) [1993] 1
Lloyd's Rep 397, 404 (Leggatt LJ); Gan Insurance Company Ltd v Tai Ping
Insurance Company Ltd (No 2) [2001] 2 All ER (Comm) 299, para 67 (Mance LJ);
Paragon Finance Plc v Nash [2002] 1 WLR 685, paras 39-41 (Dyson LJ). This will
normally mean that it must be exercised consistently with its contractual purpose:
Ludgate Insurance Company Ltd v Citibank NA [1998] Lloyd's Rep IR 221, para 35
(Brooke LJ); Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459 (Lord
Steyn), 461 (Lord Cooke of Thorndon).”
(emphasis added)
29. The summary of this dicta, namely that in the absence of very clear words to the
contrary, a contractual discretion has to be exercised consistently with its contractual
purpose, in good faith and not arbitrarily or capriciously, is contained at [911] of
Judgment No.3. Although this arises in a different section of Judgment No.3, it
plainly relates to the exercise of contractual discretion. It is also referred to at [878]
[755] and [759]. The passage at [757] makes it clear that the four terms (which
contain the exercise of discretion) at [756] are considered in the alternative if the
finding on Common Issue 1 is wrong. This authority has been ignored by the Post
Office in its Grounds.

30. Common Issues 12 and 13: These consider the agency obligations and the Branch
Trading Statement. These are dealt with at [782] to [864] of Judgment No.3. Common
Issue 13 encompassed consideration of what the Branch Trading Statement in fact
was, which was heavily fact specific. This is explained at [782]. When the Post Office
put its case to Mr Abdulla (for example) it was expressly put that he (and SPMs) did
not have to “accept” items in dispute. He denied this. By the end of the trial, the Post
Office had (effectively) accepted this by reason of the agreed flow charts at
Appendices 3 and 4. This was in any event inevitable, given the presence of internal
Post Office documents demonstrating that “settle centrally” was synonymous with
acceptance by a SPM of legal liability and that document is summarised at [438] of
Judgment No.3. The sequence or development of these points throughout the trial is
explained at [211], [212], [227], [228], [298], [301] and [438].

31. The authorities on agency make it clear that the label in a contract is not
determinative. Elisabeth Laing J stated at [94] in Acer Investment Management Ltd v
Mansion Group Ltd [2014] EWHC 3011 (QB): “There are many different types of
relationship which are labelled ‘agency’, but the label does not determine the
incidents of the relationship. It is necessary to see in each case exactly what type of
relationship exists between an agent and his ‘principal’ (for want of a better word).”
This is referred to and applied at [786] et seq, as is the classic statement from Garnac
Grain Company Inc v HMF Faure & Fairclough Ltd and Ors [1968] AC 1130,
1137. That passage states that “Primarily one looks at 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?’”

32. These authorities make it clear that a critical factor in defining any relationship is the
terms of any contract between the parties, but the conduct of the parties can be
relevant too. Paragraph 54 of the Grounds is wholly circular. Further, given SPMs did
not have the ability freely to agree to the Branch Trading Statement, and given such a
statement included disputed items which were not accepted by SPMs, they cannot
sensibly be said to be “settled accounts” for periods when disputes were in fact raised
by SPMs (see [841] of Judgment No.3). The common law principles of agency cannot
take priority over the express terms of the contracts, and SPMs were required
contractually to conform to the method required by the Post Office (in other words by
using the Horizon system) as set out in [807] and [808]. The extent and scope of the
agency was stipulated in the SPMs’ contracts.
33. The last two sentences of paragraph 60 of the Grounds are apt to confuse. The Branch
Trading Statement, or BTS, had to be completed at the end of a branch trading period
(usually 4 weeks, although some periods were 5 weeks). This had to be done to “roll
over” the branch into the next trading period. It was necessary, in order properly to
determine the agency issues, to consider and decide what the status of the Branch
Trading Statement was. The finding in Judgment No.3 was that it was not a “settled
account”. This happened to match later evidence of fact from the Post Office’s own
witness in the Horizon Issues trial in March 2019, when Mr Godeseth (originally of
the Post Office, now Fujitsu, the Designer and Chief Architect of Horizon) expressly
confirmed in his cross-examination that there was no “dispute” function within
Horizon and that this feature (or lack of it) was expressly “by design”. Paragraph 60
of the Grounds proceeds as though the finding in Judgment No.3 about a Branch
Trading Statement were wrong, and as though its own later evidence in the
proceedings on this important point either did not exist, and/or was to the contrary.
Admittedly Mr Godeseth did not give evidence in the Common Issues trial, and the
Post Office cross-examined both Mr Abdullah and Mr Sabir as though there were
such a dispute function, but in reality there is no difference between the approach in
Judgment No.3 which made the necessary finding on this point, and the later evidence
from the Post Office itself.

34. Common Issue 8: This is a point of construction on the words of the clause dealing
with loss in the SPMC. The clauses are at [608] and the general principles are
identified in the section from [611] to [639]. The notion of “Horizon-generated
shortfall” which the Post Office deploys in this section of the Grounds has to be
considered carefully because it is not how the case is, in reality, put by the Post
Office, as demonstrated in [648].
It has already been seen that there is no dispute function included within Horizon, and
the Branch Trading Statement (as a result) includes disputed items. It can be seen in
the submissions quoted from the transcript at [648] of Judgment No.3 that the Post
Office said “In the ordinary way, if you allege there is a loss you need to show it. He
who asserts must prove. But it is not a matter of construction of the clause. The Post
Office will seek to discharge that persuasive burden by relying on signed accounts or
evidence derived from audit or Horizon…..” Judgment No.3 makes it clear in [650] to
[652] what the Post Office’s case was on this point. The argument deployed orally by
the Post Office is that things which it now called “Horizon-generated losses” did not
fall within the clause. However, the Post Office does not accept that there are such
things, and the whole “burden of proof” argument in these proceedings is whether it is
for a SPM to demonstrate that losses at a branch were not caused by Horizon, or
whether the Post Office had to demonstrate that losses at a branch were caused by a
SPM and/or were the responsibility of the SPM under Section 12 clause 12. The oral
submissions did not match its own pleadings. This is explained in [671] to [675] of
Judgment No.3. Nor does this approach match the Post Office’s own definition of
“loss” in its own Defence, namely at paragraph 41(3) which states that “a "loss" refers
to an event that causes a negative discrepancy (i.e. the situation where the branch has
less cash and/or stock than the derived figures for cash and/or stock on Horizon).”
(emphasis added)

35. That this is the correctly understood position is clearly demonstrated in the final
sentence of paragraph 65(c) of the Grounds which state “It is true but irrelevant to
 contractual construction that Post Office seeks to use the clause to recover losses even
where SPMs assert that the losses are caused by errors in Horizon but Post Office
disagrees with that assertion”.

36. This shows that Judgment No.3 did not misunderstand the argument advanced by the
Post Office. The question of construction was correctly undertaken on the words of
the clause by applying the relevant approach under the authorities. The conclusion on
the point of construction of the clause is at [653], namely that the wording of the
clause imposed a contractual burden on the Post Office.

37. No hindsight or consideration of large quantities of post-contractual evidence was

deployed in construing the clause dealing with SPM’s liability for losses, or those of
his or her assistants (which was the subject matter of a different clause of the SPMC
contract, namely Section 12 Clause 5).

38. Common Issue 16: At the hearing for permission, the Post Office relied upon an
authority on this ground, namely Ilkerler v Otomotiv Sanayai v Ticaret Anonim
Sirketi [2017] EWCA Civ 183. That case concerned a distributor agreement and a
claim by the claimants that an express term requiring 6 months’ notice (after an
“initial period” of 3 years had passed) had been varied such that termination could
only expire on a date later than 6 months, alternatively was replaced with reasonable
notice. Knowles J held that the contended for variation was impossible and gave
summary judgment for the defendant. In the appeal (Longmore LJ and Briggs LJ, as
he then was) upheld the first-instance decision.

39. This case was not cited in the Common Issues trial by either party. The Post Office
explained this on the oral permission application as “we came across it subsequently”
and “we hadn’t found this authority at that point”. The actual facts are of interest
because (at [13] of Ilkerler) the following is stated:
“Article 2.3 and 19.3 fit perfectly well together because the agreement was to run for
3 years in the first instance which, no doubt, seemed a reasonably long time to the
parties when they originally made the agreement on 1st May 2000. During that time,
neither side could give notice of termination; it was therefore necessary for Perkins to
reserve to itself some opportunity for extricating itself if the first claimant's services
were unsatisfactory; not unnaturally it agreed that in those circumstances the first
claimant, should have the opportunity of putting things right.”

40. Yam Seng is considered but distinguished (at [28] and [29] of the judgment), also as
summarised in the headnote at [2017] 4 WLR 144. This authority is plainly
distinguishable here.

41. It arose in the context of two implied terms which the claimant maintained should be
implied, set out at [26] in relation to which Longmore LJ said at [27] “the judge gave
short shrift to these suggested terms and so would I”. The second of the terms was
“inconsistent with the proper construction of the contract since it seeks to elevate
what is already in article 19.3 to the exclusion of article 2.3”. The first contended for
implied term “requires appraisals to be carried out, which is an entirely new concept
coming into the contract”. The second part of the first implied term also sought to
“give legal liability to a misleading “impression”” and was “hopelessly vague”.
42. The case is plainly distinguishable from this one concerning SPM contracts. The Post
Office’s contended-for construction on termination with notice was that it was the
wording of the provision, and also the objectively ascertained intention of the parties,
that (contrary to the type of situation present in the Ilkerler case, which had an initial
period of 3 years without notice) the very day after a SPM had invested considerable
sums and purchased a business, whether freehold or leasehold, to be a SPM, having
been interviewed and selected, the Post Office could instantly give notice. That
construction was not preferred. The facts of Ilkerler are very different.

43. The Post Office, in explaining the failure to cite the authority at the Common Issues
trial, claimed that the point itself was however argued. The point is, if the contracts
were held to be relational, whether the good faith obligation could affect termination
provisions. It is not correct that the Post Office argued this point.

44. Common Issue 15: This concerns what the Grounds describe as “termination for
cause”. This is dealt with in the same section of Judgment No.3 dealing with
termination generally (namely [888] to [908]). The NTC contract form uses the
expression “material breach” and [907] of Judgment No.3 finds that the clauses
should be interpreted “as being limited to repudiatory breaches”, and stated that this
was:
“consistent with the views expressed in The Interpretation of Contracts, Lewison
(2017) 6th ed. Sweet & Maxwell at 17-16. and I consider it to be an uncontroversial
and conventional approach in terms of interpretation. The phrase “material breach” in
Paragraph 16.2.1 identifies that this is the subject matter of the provision. A minor or
consequential failure to provide the Services or Products would not, in my judgment,
fall to be considered within this clause, entitling the Post Office summarily to
terminate the appointment.”

45. The paragraphs in the Grounds at 38(ii) and 38(iii) which state there is a “fetter” on
the ability of the Post Office to accept a repudiatory breach is not an accurate
summary of the conclusion in Judgment No.3 on Common Issue 15, and this point is
explained further at [6], [7] and [8] above of these reasons. It is also clear from [295]
in Judgment No.4, dealing with the dismissal of the recusal application, which
identified the Common Issues upon which the Post Office had fully or partially
succeeded in Judgment No.3, that this was one such issue. That passage clearly states
that “termination without notice provisions being construed as relating to repudiatory
breaches was the Post Office’s case”.

46. Paragraph 39 of the Grounds relies upon a single sentence in a judgment not cited in
the Common Issues trial, even though there were 78 “core authorities” relied upon
and 64 other authorities (not described as “core”), a total of 142 cases relied upon.
Given Yam Seng was distinguished in that judgment in any event, that sentence is
obiter. In any event, the Post Office’s written submissions dealing with termination
were dealt with at paragraphs 437 to 457 of its Closing Submissions (notice both with,
and without, notice). Nowhere in that section is there any argument deployed that if
the contracts were found to be relational ones, an obligation of good faith could not be
read as applying to termination provisions. That argument is new and raised for the
first time on this appeal.
47. Common Issues 17 and 18: This relates to the “true agreement” argument advanced in
the alternative by the Claimants. It is clear from [912] that this did not arise for
decision in Judgment No.3 – the exact wording is “I do not therefore consider that the
“true agreement” and Autoclenz issues arise for determination.” The summary at the
end of Judgment No.3 states under Common Issues 17 and 18 the clear finding that
“these do not arise”.

48. This is a good example of the Post Office in these Grounds failing to understand the
function of an appeal. It does not seek to overturn the result of Common Issues 17 and
18 of Judgment No.3. Indeed, there is no result or outcome for the Post Office to seek
to overturn. The arguments of the parties were briefly addressed, because the parties
spent so long arguing these points (this is made clear at [924]). However, there is no
finding in the ratio decidendi of Judgment No.3 on these Common Issues, and the
statements in [925] of Judgment No.3 are obiter.

49. The drafting of the Grounds does not pay attention to the actual statements in
Judgment No.3 on these two issues (even though such statements are strictly speaking
obiter). Paragraph 45(ii) of the Grounds states “There was no evidence to justify a
finding that the parties in fact intended a period of notice of 12 months or any other
period. Such a holding would have been perverse”. However, Judgment No.3 in fact
states:
“I do not accept the arguments of the Claimants that application of the principles
would always result in a minimum period of notice of 12 months. That seems to me
simply to be another arbitrary period, merely fixed as a longer period than the one in
the contracts themselves. I consider 12 months would be the very longest period of
notice to which a SPM could be entitled; depending upon the factors I have identified
above (length of service, price paid and so on) it may be less than that. The parties
would therefore, on the terms of the NTC, be in dispute about periods between 6 and
12 months long; on the SPMC, the range is a little longer, but not by very much.”
(emphasis added)

50. In any event, these Common Issues only arise in the alternative, and on the findings of
construction on the termination on notice provisions in Common Issue 16, they do not
arise at all.

51. Common Issue 14: This concerns suspension of SPMs. Paragraphs 46 and 47 of the
Grounds (concerning the SPMC) and paragraphs 48 and 49 of the Grounds
(concerning the NTC) both state that Judgment No.3 found that the Post Office had a
discretion to suspend SPMs, but not the power to do so. However, that is an
inaccurate summary both of the competing arguments at the trial concerning the Post
Office’s ability to suspend SPMs, and also an inaccurate summary of the findings in
Judgment No.3.

52. Judgment No.3 at [869] states what the Common Issue concerned, namely the
circumstances in which the Post Office could suspend SPMs, and the parties’ different
positions on what the correct answer to that should be. It stated as follows:
“The Post Office submits that the circumstances [in which it could suspend SPMs] are
set out in the clauses themselves; the Claimants submit that the Post Office could not
suspend on what is called a “knee jerk” basis and also could not suspend without first
giving “fair consideration to all relevant circumstances and to whether or not to
 suspend the Claimant even if the threshold for doing so was established”. It is also
argued [by the Claimants] that the Post Office should not be entitled to suspend if
itself it were in material breach.”

53. The Common Issue itself was worded as follows: “On a proper construction of the
SPMC and NTC, in what circumstances and/or on what basis was the Post Office
entitled to suspend pursuant to SPMC Section 19, clause 4 and Part 2, paragraph 15.1
NTC?”

54. The wording in the SPMC was in Section 19 Clause 4, which stated that “A
Subpostmaster may be suspended from office at any time if that course is considered
desirable in the interests of [the Defendant] in consequence of” being arrested, having
legal proceedings commenced against him/her, irregularities, misconduct and so on
(including such matters being suspected/investigated). The wording in the NTC was
similar, but instead of desirable used the phrase “necessary in the interests of [the
Defendant]”.

55. The relevant findings in Judgment No.3 were as follows. In summary it was held that
the circumstances in which the Post Office could suspend SPMs was set out in the
clauses. At [872] it stated “in both cases [ie the SPMC and the NTC], the clauses must
be considered as containing (both as a result of construction of terms in the
commercial and contractual context of the agreements as a whole, and if not then by
means of necessary implication) the “legitimate interests” of the Post Office.”

56. This was further explained at [873] which stated:

“All of the occasions that give rise to the power being available – arrest, charge,
investigations, criminal and civil legal proceedings, insolvency – have the power to
harm the Post Office’s legitimate business interests. It is therefore, in my judgment,
obviously the case that these legitimate business interests can be protected, by means
of the exercise of this power. I do not consider that there is any substantial difference
between a test whereby such an exercise of power is “desirable” to protect such
legitimate interests, or “necessary” to do so. What is necessary would be desirable;
equally, what would be desirable would be broadly equivalent to what is necessary. I
do not consider that there is any appreciable difference between the power under each
form of contract.”

57. It is difficult to square those statements with the approach in the Grounds stating that
Judgment No.3 found that the Post Office did not have the power to suspend. In
summary, Judgment No.3 was broadly in line with the Post Office’s contended for
construction, with the only addition (or clarification) being the use of the word
“legitimate” in conjunction with “interests”.

58. It is correct to say that the suspension provisions in both different contract forms fall
to be considered as subject to the obligation of good faith, a result of the finding that
these are relational contracts which was Common Issue 1. However, that does not
give rise to a free-standing ground of appeal as a matter of construction of these
particular terms.
59. Further, the Post Office effectively accepted at paragraph 429 of its Closing
Submissions for the Common Issues trial that the decision to suspend should be
reasonably based on one of the specified contractual grounds. This paragraph stated:

“At most, it might be implied, by strict reference to the specified contractual grounds
for suspension, that Post Office’s decision to suspend should be reasonably based on
one of those grounds (and hence, not arbitrary, irrational, capricious, or without
reasonable and proper cause (i.e. reasonably and properly related to one or more
grounds for suspension)).”

60. This was recognised at [880] of Judgment No.3. Whether this amounts to a formal
concession or not, it was a submission made by the Post Office that recognised it
should not arbitrarily, irrationally or capriciously suspend SPMs, and/or that it should
not suspend a SPM without reasonable and proper cause. That is not how it is now
expressed by the Post Office in the Grounds, which seeks to challenge the findings
that the circumstances in which the Post Office could suspend are set out in the
clauses, and that it had the power to do so to protect its legitimate business interests.

61. Common Issues 5 and 6: These concern onerous and unusual terms, and the degree to
which they were brought to the attention of SPMs.

62. Paragraph 92 of the Grounds deals with the clause in the NTC that makes an SPM
liable for losses. That clause, Part 2 paragraph 4.1, states that an SPM “shall be fully
liable for any loss of or damage to, any Post Office Cash and Stock (however this
occurs and whether it occurs as a result of any negligence by [the SPM], its Personnel
or otherwise, or as a result of any breach of the Agreement by [the SPM]) except for
losses arising from the criminal act of a third party (other than Personnel) which [the
SPM] could not have prevented or mitigated by following [the Defendant’s] security
procedures or by taking reasonable care. Any deficiencies in stocks of Products
and/or any resulting shortfall in the money payable to [the Defendant] must be made
good by [the SPM] without delay so that, in the case of any shortfall, [the Defendant]
is paid the full amount when due in accordance with the Manual.”
(emphasis added)

63. The test applied in deciding this followed detailed consideration of the authorities,
one of which is summarised at [973] and includes consideration of whether “the
clause must have the potential to act very severely to the detriment of the party in
question, almost to the point of being a punishment or imposing a different or
additional liability.” Guidance was also taken from (as set out in [976] of Judgment
No.3) the recent authority of Goodlife Foods Ltd v Hall Fire Protection Ltd [2018]
EWCA Civ 1371. That passage in Judgment No.3 referred to the case and stated it
was relevant:
“even though there the court was concerned with an exclusion clause. At [5], Coulson
LJ made it clear that there were two distinct steps. The first (which he subdivided into
issue 1(a) and issue 1(b)) was whether the clause in question was onerous and
unusual, and whether (if it was) it was brought fairly to the attention of the other
contracting party. This step is necessary in order to decide whether the clause in
question is incorporated into the contract at all.”
64. The wording and effect of the actual clause itself (rather than the legal principles
applicable to such clauses, which are at [958] to [983] of Judgment No.3) is dealt with
at [1004] to [1011] in Judgment No.3. Unlike the terms dealing with an SPM’s
liability for losses in the SPMC, which were found not to be onerous or unusual, two
of the NTC clauses were found to be onerous and unusual. This is explained at [1009]
to [1010] – the wording of these clauses (as construed in Judgment No.3) imposes full
liability upon an SPM for unlimited losses for matters that might be entirely out of
their control, and which arise regardless of any fault on their part. That is, in the
correct meaning of the word, onerous. It is also, in the context of a small business
person such as an SPM who is transacting financial business for the Post Office
within a branch (or for any small business person), unusual.

65. The sentence in paragraph 92(c) of the Grounds that states “liability can only be
anticipated where there is some error on the part of the SPM or an assistant” is rather
off the point. The Post Office’s submission on the construction of the clause
(recounted in [1009]) which was accepted in Judgment No.3 was that there was “no
general fault requirement for liability” within that provision for recovery of loss by
the Post Office from an SPM. An error by a SPM is not a no-fault situation; an error
by a SPM is a fault by that SPM. Therefore analysis of whether a clause is onerous or
unusual by reference to fault-based losses being anticipated, when the wording of the
clause imposes liability for losses caused without fault, is not likely to be helpful.
Indeed, it is entirely off the point.

66. Paragraph 93 of the Grounds states that the result of the Judgment would “result in
many standard commercial terms being considered onerous and unusual”. That
submission is not understood. These are not “standard commercial terms” in other
commercial contracts; they are terms governing the relationship between the Post
Office and SPMs. That is not a “standard” relationship. The unique nature of the Post
Office/SPM relationship is explained elsewhere in Judgment No.3. At [67] it explains
that the Post Office witnesses accepted that the Post Office was anxious to ensure that
SPMs were not seen as employees, though they had some similarities. SPMs receive a
form of holiday pay (explained at [386] in Judgment No.3) provided certain personal
service is provided by them. Other consideration of the particular relationship is at
[692]. There are other unique features too; many SPMs have purchased freehold or
leasehold premises, and associated business, operated from the same location as the
branch. They are paid remuneration on a monthly basis by the Post Office but it is not
a salary (explained at [1027]). Compensation was paid by the Post Office to SPMs for
loss of office under the Network Transformation Programme (also referred to at
[1041]). The short point is that the contract between the Post Office and SPMs is not a
“standard commercial contract”; it has its own unique characteristics as a relationship.
The relevant parts of Judgment No.3 do not have wider implications for other
commercial contracts between other commercial parties concerning different subject
matter.

67. Although not a point of construction, paragraph 92(b) of the Grounds misstates the
subject matter of the litigation. It is said that an SPM will not be liable for “such
apparent losses”, with apparent losses said to be those generated by computer bugs or
errors. As a matter of fact, the Post Office does use the clauses of the SPMC and the
NTC to recover or claim losses from SPMs that are said (by the SPMs, and whether
 this is correct or not is in dispute) to be generated by computer losses or errors. This
approach by the Post Office is further explained in [669] to [676] of Judgment No.3.

68. Common Issues 7, 19 and 20: These concern the Unfair Contract Terms Act 1977,
compensation for loss of office, and the circumstances in which breach of contract
claims and consequential losses are limited. The latter two Common Issues 19 and 20
were answered as the clauses purporting to remove or exclude rights were found to
fail the reasonableness test in UCTA (which was the subject matter of Common Issue
7).

69. The conclusion that the standard contract terms upon which SPMs contracted with the
Post Office (the SPMC initially; from 2011 the different contract form called the
NTC) were the Post Office’s written standard terms of business is not an error of law.
They plainly are.

70. The stance adopted in the Grounds by the Post Office that these standard contract
terms are not “written standard terms of business” contradicts its own characterisation
of them as “business to business” contracts, particularly where there was no
negotiation of the terms between SPMs and the Post Office, and the Post Office’s own
evidence at the Common Issues trial was expressly that changes to these standard
terms was not permitted. This point was recited in the Judgment No.3 at [632] in the
following terms “This is because the evidence makes it very clear that these contracts
were not negotiated at all. Indeed, the uncontroverted evidence of the Post Office
itself is that even if a SPM had sought some specific amendments to the terms of the
SPMC or NTC, these would not have been tolerated at all. There was simply no
negotiation possible”. The terms could not be changed.

71. Paragraph 606 of the Post Office’s Closing Submissions had said “it is true that the
contracts in question were produced, in a standard, non-negotiable form, by Post
Office.” Paragraph 3 of its Opening Submissions had said that “if the Claimants were
right in the broad thrust of their case, this would represent an existential threat to Post
Office’s ability to continue to carry on its business throughout the UK in the way it
presently does.” (emphasis added) It is not seriously or reasonably arguable that the
terms of the SPM contracts are not written standard terms of business, or that Post
Office branches are not part of (and not run pursuant to or as part of) the Post Office’s
business, or that the Post Office does not contract with SPMs as part of its business.
For the Post Office to carry out its business properly or at all in (say) a remote town or
village that location needs a Post Office branch, and a branch would only be present
there if the Post Office contracted with a SPM to provide it.

72. So far as the challenge to reasonableness is concerned, the Grounds fail to heed the
correct approach to appeals on this fact-sensitive subject as set out by Lord Bridge of
Harwich in George Mitchell (Chesterhall Limited) v Finney Lock Seeds Limited
[1983] 2 AC 803 and more recently by Coulson LJ at [28] in Goodlife Foods Ltd v
Hall Fire Protection Ltd [2018] EWCA Civ 1371.

73. Common Issue 23: This concerns the responsibility to train assistants. The finding
was that SPMs were not required to train their assistants to a higher level than they
themselves were trained.
74. The Post Office was responsible under both contract forms for providing training to
the SPMs themselves. The Post Office contends for a contractual obligation upon
SPMs to train their own assistants to a higher level than the Post Office had itself
trained that particular SPM. This surprising argument can most usefully be considered
both in terms of common sense, and also contractual construction.

75. Firstly, in terms of common sense (or lack thereof) it has obvious and serious
difficulties. Very clear words would be required to achieve such a surprising result,
and there are none.

76. Secondly, in terms of contractual construction. The NTC used the express word
“cascade” in Part 2 Paragraph 2.4 of the contract form. That term connotes something
flowing or pouring downwards. It is difficult to construe the clause using that word in
the way contended for by the Post Office, without doing violence to the actual words.

77. The Modified SPMC term is at Section 15, Clause 7.1 (at [939] of Judgment No.3).
Under that clause, the Post Office was to provide the SPM with relevant training
materials and processes to train his or her assistants; information where new or
revised training was necessary; and where appropriate, updated materials and
processes. The obligation was “to ensure” that the assistants “receive all the training
which is necessary” to provide the services and perform other tasks required.
Construed as a whole and its context, it requires the SPM to train the assistants to the
same level that the SPM had themselves. The only way that a SPM would know what
was necessary would be as a result of their own training. It is difficult to see how a
higher level could be justified on the words themselves.

Procedural Unfairness – Section D of the Grounds

78. At the oral application for permission the unfairness was said to consist of holding a
trial wider than that which was ordered. The unfairness was said to be that the Post
Office “did not put evidence forward on certain matters because it was not expecting
it.” These matters upon which the Post Office claimed it had not led evidence, were
then on the oral application for permission (following a request from the court)
specifically identified as being evidence related to training; the Helpline; the
accounting process between the Post Office and SPMs; how that accounting worked
in fact; how Transaction Corrections (TCs) were dealt with; the accounting
relationship; and the operation of the suspension and termination provisions.

79. This is simply unarguable, and also factually incorrect. Firstly, the Post Office did put
forward evidence on all those different matters, from a variety of its own witnesses.
All of these areas were expressly dealt with in the Post Office’s evidence. One
example will suffice (and it is taken from a summary of Ms Van Den Bogerd’s
witness statement in [43] of Judgment No.2, when the Post Office sought to strike out
large parts of the Lead Claimants’ witness statements):
“Mr Green [for the Claimants] relies upon the fact that the defendant's own evidence
contains passage after passage where the same subject matter is dealt with from the
defendant's overall perspective. As an example, Ms Van Den Bogerd, the defendant's
People Services Director, gives considerable evidence about the training provided to
sub-postmasters, the core features of that training, including "how to declare,
investigate, make good and dispute shortfalls". She gives evidence of the evolution of
training on Horizon in the periods up to 2002, between 2003 and 2006, 2007 to 2011,
 and then into 2012. She also continues "I set out below a short summary of how initial
training was delivered over the years".”
(emphasis added)

80. The accounting process was the subject of a great amount of evidence from the Post
Office, and resulted in Appendices 3 and 4 to Judgment No.3, because (eventually)
the Post Office accepted the Lead Claimant’s factual evidence on how this worked,
and the options available on Horizon in terms of “accepting” disputed transactions.

81. It is not understood how the Post Office can properly submit that it did not put
forward evidence on training, or accounting, or that there was procedural unfairness
as a result. The same point can be made in respect of each of the separate areas
specified.

82. Secondly, the Post Office itself put in issue matters such as a particular Lead
Claimant’s experience of the Helpline, the suspension and termination provisions and
so on, by reason of how the cross-examination was conducted. This was evidence
elicited from the Lead Claimants as a result of the specific questions asked of them by
the Post Office’s own counsel. This point is extensively dealt with in Judgment No.4
dealing with the recusal application. The Post Office seems to regret having put all
those points in issue by reason of the way it conducted the Common Issues trial.
However, that cannot be elevated to procedural unfairness.

83. Thirdly, the Common Issues were agreed, ordered at an early stage, and although
Judgment No.3 is lengthy, it decided only those 23 Common Issues (subject to any
appeal). The Post Office always knew what the Common Issues were that would be
decided at the Common Issues trial. The wording of the Common Issues was agreed
by the parties and they were attached to a specific Order following the first Case
Management Conference.

84. The Grounds of Appeal in this respect allege that Judgment No.3 decided what are
called “irrelevant issues”. All of Common Issues numbered 1 to 23 were relevant, and
were ordered. Any complaint that “binding findings” were made on matters not yet
tried has been comprehensively addressed, and dismissed, in Judgment No.4 on the
recusal application, and the refusal by the Court of Appeal to give permission to
appeal that.

85. This section of the Grounds of Appeal attempts to re-argue the same points as were
deployed upon the recusal application.

86. The separate headings just before paragraph 137 of the Grounds (“the Judge’s
findings on post-contractual and/or irrelevant issues”) and paragraph 142 (“the
Judge’s reliance on post-contractual matters in deciding the Common Issues”) do not
identify procedural irregularity. Whether the evidence of the Post Office was, or was
not, “complete” – and whether it wishes now it had put forward different evidence -
was the evidence that the Post Office actually advanced at the Common Issues trial.
The passages identified are, in any event, general narrative based on all the evidence
adduced at the Common Issues trial. They do not represent findings in respect of any
specific Lead Claimant, and specific findings on the answers to the Common Issues
on contractual construction and agency were not made based on narrative.
87. There is no reasonably arguable procedural irregularity with any prospect of success,
nor is there any compelling reason for the appeal to be heard, and so permission was
refused.

Errors of Fact – Section E of the Grounds

88. This section of the Grounds amounts to an attempt to re-hear the trial. At the oral
application hearing, the Post Office stated there were 8 different Grounds that were
errors of fact. In summary, permission to appeal on each of the Grounds has been
refused because there are no errors of fact in any of the Grounds that have a realistic
prospect of success (CPR Part 52.6(1)(a)), nor are there any other compelling reasons
why the appeal should be heard under CPR Part 52.6(1)(b).

89. The correct approach to challenging findings of fact set out in Wheeldon Brothers
Waste Ltd v Millennium Insurance Co Ltd [2018] EWCA Civ 2403 at [7] to [10] by
Coulson LJ, in Fage UK Ltd v Chobani Ltd [2014] EWCA Civ 5 at [114] by Lewison
LJ (and numerous other cases) has been entirely ignored.

90. The Grounds that seek to challenge criticism of the failure to accept the evidence of
the two more senior Post Office witnesses, Mr Beal and Ms Van Den Bogerd, are
misplaced and are not proper matters for an appeal. A judge is entitled to accept or
reject evidence by a witness advanced at a trial and challenged in cross-examination.
Judges are also entitled to criticise witnesses who have given evidence that is contrary
to clear contemporary documents that say something different.

91. The Grounds that seek to challenge the way the Post Office and/or its legal advisers
dealt with disclosure and redaction of documents, and also conduct in the litigation
generally, ignore three fundamental matters. Firstly, these are matters that the Post
Office has raised specifically before as complaints, in its recusal application, and the
Court of Appeal expressly stated at [44] of the Court of Appeal Reasons that it was
legitimate to have included these in Judgment No.3. These statements by the appellate
court have been entirely ignored in the Grounds, which post-date those Reasons.
Secondly, this is Group Litigation and one of the benefits of having a Managing Judge
is that comment and guidance can be provided to the parties during the proceedings,
which can sometimes go on for many years. There will be at least three more trials
and such guidance should be adopted and followed, not challenged as errors of fact in
this misconceived way. In any event, such guidance did not result in any component
of any order following Judgment No.3. Thirdly, these are justified matters of
comment generally in terms of the court’s management of the proceedings before it.