Neuberger stands by recusal advice in Post Office trial

Lord Neuberger, the former president of the Supreme Court, has said he is ‘comfortable’ with the advice he gave to the Post Office over a recusal application.

Neuberger and Lord Grabiner KC were both instructed by the Post Office in 2019 following the initial judgment in the Bates litigation, in which the organisation had suffered a significant defeat.

With a second trial about to start overseen by the same judge, Mr Justice Fraser, external counsel were sought for an opinion on making a recusal application. This application was rejected and the Post Office was refused permission to appeal, with the organisation since widely criticised for prolonging legal proceedings involving more than 500 sub-postmasters wrongly accused based on Horizon IT data.

Neuberger was not called to give oral evidence to the ongoing Post Office Inquiry but his written statement was published yesterday. In his statement, he caveated his comments by saying it was difficult to take an objective view where the court’s view had ‘markedly differed’ from his own, but he continued to stand by the advice given in 2019.

‘I am comfortable with the advice I gave in March 2019 in relation to the recusal application,’ he said. ‘Following the judge’s rejection of the recusal application, I am comfortable with what I advised in relation to an appeal against that refusal in April 2019, in that, viewing the issue now by reference to the facts as they appeared in April 2019, I am of the view that the judge should have been recused.’

Neuberger also advised that the Post Office (POL) should appeal the first ruling and said he remains ‘firmly of the view’ that permission should have been given to appeal.

‘I would expect the appeal to have succeeded to a significant extent,’ he added. ‘The topics on which I advised POL were not connected, at least in any direct way, with the appalling history of mistreatment of so many postmasters and postmistresses.

‘I was asked to advise on two legal issues, one procedural, namely whether the judge should be recused, and one substantive, the effect of the contracts. Although as matters turned out my advice did not accord with the view taken by the courts, I was called on to advise in accordance with my opinions at the time, and that is what I did.’

Grabiner did give oral evidence yesterday. Emails exchanged between Neuberger and Grabiner were shown to the inquiry and revealed that the pair discussed whether Post Office had the ‘stomach for a fight’ to make the recusal application.

In one email Grabiner accused Mr Justice Fraser of a ‘rather pathetic attempt to dodge me’ and said his behaviour ‘confirmed our suspicions about his Smith characteristics’ (the Smith reference was to a Mr Justice Peter Smith who had recused himself on a different case four years earlier).

Asked if this had become ‘personalised’ between Grabiner and the judge, he replied: ‘Absolutely not. My view was that he had made a mess of that case and that was my position and that was David Neuberger’s view as well.’