Image by Pete Linforth from Pixabay
I have been closely reading the Post Office (POL’s) final submissions to the PO Inquiry. It is a skilfully drafted document, interesting for an indication of where POL think there are battles to be won.
In general, whether I agree with what they say or not, they often look like sensible battles to be pick from their point of view. They draw attention to interesting conflicts or absences in the evidence, some of this will help the Inquiry (no, really) and some might help POL get a bit less of a kicking even whilst it knows it is going to get a mauling.
I had a feeling on occasion that some of the points had an eye on future potential litigation against the organisation or perhaps people connected with it. It particularly sought to advance the point that it was culture and understandable bias that drove the problems as much as any individual failure. The individual failures they sought to emphasise generally, I would say, were the product of incompetence or negligence rather than deliberate wrongdoing or conspiracy.
One decision I cannot allow to pass unremarked is their own handling of the mediation scheme chaired by Sir Anthony Hooper. They recognise in limited ways the mediation was problematic and not geared towards “truth-seeking” (major eye-roll*) but argue it was not wrong in conventional legal/tactical terms (which in a way makes a deeper and troubling point – the conventional justifications are messed-up).
These are arguments that they are entitled to make, although you can get a sense of the need for vigilance with some of their claims given they say a “not insignificant portion” of cases were mediated, an only put the actual figure in the footnotes: 24/136 – and without any mention of why those people might have settled).
But it was their attempt, to suggest Sir Alan Bates’ using the mediation to get information relevant to litigation that was somehow morally equivalent to their own tactical exploitation of mediation which I thought was really foolish. They say this:
it is fair to say that the criticisms which have been levelled at POL as to how transparent it was in respect of what it intended by, and expected to achieve from, the ICRMS [the mediation], can be applied equally to [Sir Alan Bates]/JFSA
This is a sentence which shows that POL and its lawyers still need to recalibrate their understanding of what “fair” and “equally” means. They might also, perhaps, consider what the word “ludicrous” means while they do so.
A good deal of the submission is about caution, and not being too hindsighty, and blaming systems not people. The balance between individual blame and the system putting the inept or the inexperienced into difficult situations to which they “rose” in generally rather similar ways (not a point they make, that’s my point), is nicely captured in the first substantive point they make about POL’s handling of the Bates litigation. They suggest their strategy was in significant ways driven by their reliance on legal advice. They head straight to Womble Bond Dickinson’s Andy Parsons and begin by saying this:
236. WBD first became involved in advising POL in early 2013 when [Andy Parsons] was instructed to advise on letters before claim from Postmasters raising concerns about the Horizon system. He was then a 5 years PQE associate at WBD. He advised on the disclosure (or otherwise) of issues with Horizon in letters to Postmasters, despite the fact that he “didn’t understand the nature of the error in hardly any detail”, and advised on crucial wording in correspondence based on his understanding that it was normal for lawyers to “soften wording”. He made “recommendations” to POL on his own initiative without instructions or without the “level of thought” required to understand the impact on disclosure in other matters.
237. He remained POL’s main external legal adviser in civil matters to POL until 2019 during which period he played a substantial role in shaping POL’s strategy in relation to key responses to the emerging scandal (including the response to SSIR and the ICRMS). He was made a Partner in May 2016 (just weeks after proceedings in the GLO were issued), and thereafter had principal responsibility for the conduct of POL’s defence in the GLO, sitting on the Postmaster Litigation Steering Group (PLSG) and attending some meetings of the Board Subcommittee (established in early 2018). This was despite having no previous experience of group litigation. [Andy Parsons] in turn delegated a number of tasks to a colleague, Amy Prime (“APr”), including the instruction of [Brian Altman KC] in relation to the criminal appeals, and liaising with POL to provide background to the pleading in the GLO. At this time APr was less than one year PQE.
238. It was obviously a mistake for POL to rely on such an inexperienced legal adviser in APa, and, in turn, for him in turn to rely on such a junior colleague, in a matter of such significance to POL. Indeed, the absence of any tendering process for appointment as POL’s lawyers in the GLO, or even any evidence at its inception there was anything more than a cursory consideration of instructing another firm of solicitors (and in any event no consideration apparently given to instructing a more senior partner), was an obvious error. It is now clear (and ought to have been clear to POL at the time) that [Andy Parsons] had neither the experience nor the judgement to provide POL with the depth of advice that the GLO required. Moreover, his involvement from a very junior stage of his career appears to have led [Andy Parsons] to overidentify with his client in litigation and to lose his ability clearly to assess issues of disclosure, evidence, strategy and costs. As a result, POL was deprived of legal advice which was truly objective.
Well except for all the other lawyers involved for them, some in-house, and some at the Bar. They get mentions but usually, save for those who worked at Cartwright King, more muted ones.
* The Submission is littered with statements that might be knowing, lawyerly, understated admissions or signs that POL do not still get beyond the corporate reflex to defend or gloss the indefensible. It was hard sometimes to tell the difference and perhaps that is the point.
