It’s difficult to comprehend that one of the UK’s biggest miscarriages of justice could have remained under the carpet, where its effects were swept for nearly two decades, had it not been for a landmark High Court case in 2018.
At its heart were a team of barristers facing the toughest fight of their careers – but it was one that ended up making legal history. The team at Henderson Chambers htalked to Computer Weekly to reflect on their experiences and the outcome of the Post Office scandal so far.
Their involvement came after hundreds of subpostmasters had been convicted of crimes, with many imprisoned, after being wrongly blamed for accounting shortfalls in their Post Office branches, which were caused by bug-ridden software. Many more lost their livelihoods and had their lives ruined due to the system’s glitches.
But what is today referred to as the Post Office Horizon scandal might never have even reached the public conscience had it not been for former subpostmaster Alan Bates and 554 other members of the Justice for Subpostmasters Alliance (JFSA) campaigning for years and eventually, in 2015 initiating a High Court group litigation against the Post Office.
The High Court trials began in November 2018 with the Common Issues trial which looked at the fairness of subpostmaster contracts with the Post Office, followed by the Horizon trial, which focused on the robustness of technology used in branches. The trials blew the lid off the Post Office’s defences of both. In mediation, following the end of the second trial, the Post Office conceded after the damning judgments of Judge Peter Fraser, who said the contract subpostmasters were forced to sign was oppressive and that the Post Office’s denials of computer system errors was “the 21st century equivalent of maintaining that the Earth is flat”.
But it was not an easy victory. The government-owned Post Office had deep pockets and a determination to prevent a court loss that its lawyers said would be an “existential threat” to its business model.
The litigation concluded by mediation, with the Post Office agreeing to pay £57.75m as part of a global settlement, and numerous other provisions for the benefit of subpostmasters, including a compensation scheme for any subpostmaster affected, and for the independent review of the convictions of claimants who had been prosecuted by the Post Office.
A media frenzy
What followed this judgment has been a media frenzy, and for good reason. The JFSA court victory has so far opened the door to 73 former subpostmaster criminal convictions being overturned, with potentially many more to come; an investigation into potential perjury offences during trials of wrongly prosecuted subpostmasters is being carried out by the Metropolitan Police; and there is a statutory public inquiry examining who, what, when and how it all happened. There are also ongoing negotiations for compensation for thousands of subpostmasters affected and the government has set aside £1bn of taxpayers’ money to meet the cost of the Post Office’s failings;
Without Judge Fraser’s rulings in the High Court Bates & others v Post Office group litigation, none of this would have happened.
The JFSA victory came after years of dedicated work by the law firm Freeths, and a group of barristers at Henderson Chambers led by Patrick Green QC, who were chosen by the JFSA and Freeths, to take on the Post Office.
In 2015 they began the challenge of unearthing evidence of a massive corporate cover up in preparation for the High Court.
Computer Weekly spoke to the team of barristers at Henderson Chambers about the case and why it was the toughest legal fight of their careers.
Aggressive business practices
Kathleen Donnelly, one of the barristers working on the case, explains that back in 2015 when the team began work, the outcome was far from obvious: “In hindsight the case is often presented in very stark terms as if the outcome was obvious, but when it came to us there was a great deal of complexity and uncertainty, and we had access to very few documents.”
She says there were a lot of credible individual accounts from subpostmaster claimants, but proving they were true in the face of a Post Office determined to stop them doing so, was a struggle: “We were up against the well-resourced Post Office, who had argued its position many times before.”
Henry Warwick QC says what happened to the subpostmasters was an injustice on an industrial scale: “Since settlement of the legal action, Post Office has been contrite, but it was only a few years ago that the honesty and credibility of lead claimants was called into question. The challenge was to lift the lid on Post Office’s aggressive business practices, to obtain findings that would help the claimants and the wider group to unravel the tight grip that had been held on the narrative, and expose the unfairness at the heart of what went on.”
Barrister Ognjen Miletic says it will be difficult for any other case to rival this one in his career: “There was obviously the David and Goliath element to it, with so many long-suffering subpostmasters searching for justice after years of false starts and dead ends. There were the myriad legal issues which spread across various core concepts of English law, with multiple landmark judgments handed down. There was the intense work rate, investigation and creative thinking that was required.”
In the months running up to each of the trials the team worked flat out, barely leaving chambers, according to Donnelly. “We camped in a conference room and ate every meal there. There were five of us for the Common Issues trial, and four for the Horizon trial, which was really a very small team for the scale and scope of the issues. It was certainly tough, but we had a great team spirit and a lot of good humour, which goes a long way,” she says.
Patrick Green QC says “it was pretty brutal at times,” but agrees the fantastic team spirit kept the team “buoyant and positive” even when exhausted and under extreme pressure.
The legal challenges were clear in the Common Issues trial, which according to Donnelly engaged with almost every chapter of contract law. “Post Office had drafted all of the contracts, interpreted the words in a way which was favourable to itself, and then amended the terms to make them yet more favourable. “
She says this ultimately backfired, “because the words in the original contracts didn’t support the interpretation Post Office had given them, and the wording of the new contracts were so unfair as to be unenforceable.”
Widespread legal ramifications
Warwick says the judgment on the Common Issues concerning the contract and agency relationship between subpostmasters and the Post Office remains one of the leading judgments on so-called relational contracts, which may be subject to an implied term of good faith and fair dealing: “[It has] ramifications for other commercial contracts that give rise to long-term relationships where the spirit and objectives of the venture may not be capable of expression exhaustively, such as certain joint ventures, franchise agreements and long-term distributorship agreements, to name a few.”
This is just one of the reasons why the huge case will go down in history, but it will also be a career high for the barristers involved.
“This was the most extraordinary, and rewarding, case that I have ever worked on – among some stiff competition over the years,” says Green. “From start to finish, everything about the case was extraordinary. I think we all felt hugely privileged to be able to try to help such a decent group of people who had been treated so unjustly.”
Donnelly too feels privileged to have been part of making history. “To have been involved in exposing the biggest miscarriage of justice in British history is unmistakably an enormous privilege,” she says. “We feel proud to have played our part in exposing the truth about Horizon and Post Office’s practices, and the Horizon judgment opening the door to so many convictions being overturned.”
Barrister Reanne MacKenzie says the team always knew it was a special case, but adds, “I don’t think any of us realised quite how important the impact and ramifications of the group action would be. Helping to finally reveal one of the largest miscarriages of justice in English legal history is something we are all incredibly proud of.”
The barristers also pay tribute to the claimants – the subpostmasters that suffered great hardship at the hands of the Post Office but came forward and fought for the truth.
“The litigation simply couldn’t have happened without Alan Bates,” says Donnelly. “The fact that the claimants are now working so hard to keep the public spotlight on the government’s commitment to providing full compensation is also hugely impressive and commendable.”
Green says: “Alan Bates has done something truly amazing, for all the subpostmasters, not just those who took part in our case – he has been principled, determined and tenacious and he just never gave up.”
Jo Hamilton, whose name is on the Court of Appeal judgment where 39 former subpostmasters had wrongful convictions overturned, is also praised. “Jo Hamilton is wonderful too. She was there in court every day and has been such an obvious example of the injustice meted out to the subpostmasters, as well as an inspiration for some of them too. We were very grateful to have such supportive clients in the case,” says Green.
The Dalmellington bug
Computer Weekly first reported on problems with the Post Office Horizon system in 2009, when it made public the stories of a group of subpostmasters who were being blamed for unexplained losses (see below for timeline of Computer Weekly articles on the scandal since 2009).
Our continued investigating and documenting of events was used by the barristers as they began working on the case.
Donnelly says, “Computer Weekly reported on the issues facing subpostmasters from 2009, and maintained a detailed timeline of events which was an invaluable resource at the outset of the case. At the beginning we had very few disclosed documents and faced a wall of denial from Post Office.”
For example, in 2015 Computer Weekly exposed a Horizon error that could cause unexplained losses and also revealed an email from Post Office IT support, admitting its existence. This was highly significant as the Post Office had always maintained there were no errors with Horizon that could cause unexplained losses. The error had occurred at a branch in Dalmellington, Scotland.
“The fact that Computer Weekly had identified the Dalmellington bug gave us a direct challenge to the claims that Horizon was ‘robust’ and a lever to seek documents and disclosure,” says Donnelly. “That such a serious error had lain undiscovered for five years, causing discrepancies of many thousands of pounds, was concrete evidence supporting the accounts given by subpostmasters of unexplained losses and amounts doubling before their eyes.”
Green adds: “[The article] was very important to us, because we had so little to go on at the beginning and, at the time, the case looked nothing like it does now. You have to remember that Post Office secured criminal convictions – which you cannot normally put in question in a civil case – in hundreds of cases. Post Office also claimed, ‘There is no evidence that faults with the computer system caused money to go missing at these Post Office branches.’ The Computer Weekly article helped to support us to reach the views that we did about the case, including the making of serious allegations against the Post Office.”
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