Sitting as a judge cannot be easy. But how much harder must it be when the person whose decisions you are asked to judge is yourself. That fate recently befell Mr Justice Fraser, 55, a High Court judge since 2015 and an ironman triathlete in his spare time.
A month ago, Fraser delivered his third judgment in a bitterly contested claim brought against the Post Office by some 550 current or former sub-postmasters. It is their job to manage local post offices and keep track of money received and paid out. But the Post Office said it had found shortfalls in their accounts – some small but others very large.
Repayment was demanded, with the Post Office insisting that the shortfalls must have been caused by carelessness or dishonesty. That was denied by the sub-postmasters, who said the discrepancies had resulted from coding errors and defects in Horizon, the computerised point-of-sale system that they were required to use.
Some sub-postmasters made up the shortfalls from their own pockets, even though they believed they were not responsible. Others were convicted of false accounting, fraud or theft – and a few even went to prison.
The Post Office insists that Horizon is robust. If the claimants are right, it told the court, ‘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’.
Although the judgment Fraser delivered last month ran to more than 300 pages, it was just a small part of the group litigation. He made findings on what were called the ‘common issues’ – the relationship between the parties. These involved relational contracts, he found, ‘which means that there is an implied duty of good faith’. As a result, the Post Office was ‘not entitled to act in a way that would be considered commercially unacceptable by reasonable and honest people’.
The Post Office received a draft of Fraser’s judgment shortly before he moved on to the next phase of the case – hearing evidence on the Horizon issues. When the judgment was formally delivered a week later, it said it would appeal. Nearly two weeks after receiving the draft judgment, when the witnesses of fact on the computer issues had almost completed their evidence, there was an extraordinary development.
Just before Fraser returned to court after lunch for the final afternoon of evidence, he was told that the Post Office had served an application seeking his recusal as the managing judge of the group litigation. Counsel representing Post Office on the Horizon issues had apparently not seen it. He made no mention of it that morning.
Lord Grabiner QC, the heavyweight advocate brought in for the recusal application, argued that Fraser had made ‘findings, or given clear indications of his concluded views, on a large number of matters which are outside the scope of the common issues trial’ and were yet to be tried. While not accusing Fraser of actual bias, he submitted that the judge had given the appearance of prejudging those matters.
Fraser had said at various points that he was making no findings on issues such a breach, causation or loss. But that was just a ‘mantra’ that would not convince the fair-minded observer, Grabiner insisted. Recusal for apparent bias was the ‘only option’.
Not so, argued Patrick Green QC, for the sub-postmasters. The application was ‘hopeless and should not have been made’. It was a collateral attack on the common issues judgment. Grabiner’s complaints arose directly from the way the Post Office had handled its case. It had ‘expressly sought factual findings on many of the matters it now contends to be out of scope’.
Last week, Fraser dismissed the recusal application. Again, the Post Office said it would appeal. Giving judgment, Fraser said that nothing in his earlier ruling demonstrated that he had reached any sort of concluded view on the outstanding issues. The Post Office had relied on isolated passages taken out of context.
And then he suggested the Post Office had waited to see how the evidence had unfolded before making its application. ‘Even if I had found that there were grounds of apparent bias on the face of judgment number 3,’ said Fraser, ‘I would not have recused myself.’ The Post Office had waived its rights by waiting nearly two weeks. It had cross-examined all the claimants’ witnesses of fact and called almost all its own witnesses.
‘This could potentially give the Post Office an enormous advantage if the Horizon issues trial were to be abandoned and started again before another judge,’ he added. As the Court of Appeal had said more than once, ‘the trial is not a dress rehearsal. It is the first and last night of the show’.
True enough, but this one will run and run.
joshua@rozenberg.net
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