The live evidence is worth watching for the exchanges between Jason Beer KC (Counsel to the Inquiry) and Lord Grabiner KC who was first instructed by Post Office Ltd on 15 March 2019 and was asked to advise on whether Mr Justice Fraser should be requested to recuse himself (i.e. stand down) as Managing Judge of the Post Office Group litigation.
Lord Grabiner's witness statement is on the Inquiry website - All Evidence | Post Office Horizon IT Inquiry (postofficehorizoninquiry.org.uk) and his live evidence session may be seen on the Inquiry's Youtube channel - Phases 5/6 - 11 June 2024 | Post Office Horizon IT Inquiry (postofficehorizoninquiry.org.uk).
Fraser was appointed as Managing Judge
in April 2017 and, on 15 March 2019, he issued what is referred to as the "Common Issues" judgment - Bates & Ors v Post Office Ltd ((No.3) "Common Issues") [2019] EWHC 606 (QB) (15 March 2019) (bailii.org).Lord Grabiner advised that a recusal application was required and it was duly made but Fraser J decided not to recuse himself and gave a judgment to that effect - Bates & Ors v Post Office Ltd (No 4) [2019] EWHC 871 (QB) (09 April 2019) (bailii.org). At the recusal application, Grabiner appeared for the Post Office along with other counsel.
The Post Office sought permission to appeal this but, in the Court of Appeal (Civil Division), Lord Justice Coulson refused permission. Coulson LJ chose to issue a written decision which appears to be available on SCRIBD and stated that “the recusal application never had any substance and was rightly rejected by the judge.”
The litigation proceeded and judgment on the so-called "Horizon Issues" was handed down by Fraser J on 16 December 2019 - Bates & Ors v the Post Office Ltd (No 6: Horizon Issues) (Rev 1) [2019] EWHC 3408 (QB) (16 December 2019) (bailii.org)
(Note: A 5th judgment concerned costs).
It emerged that the former President of the Supreme Court - Lord Neuberger - had also advised the Post Office that a recusal application was appropriate. Neuberger made a written statement to the Inquiry on 10 May 2024 - WITN10650100 - First Witness Statement of Lord Neuberger of Abbotsbury | Post Office Horizon IT Inquiry (postofficehorizoninquiry.org.uk).
The Inquiry hearing 11 June 2024
Lord Grabiner's evidence session was held during the afternoon and it revealed various communications between Lords Grabiner and Neuberger. Both had formed the view that Fraser J ought to recuse himself.
That is, of course, a matter of opinion based on the relevant legal tests and there can be no objection to counsel forming such a view even if the courts, as they did here, reach the opposite conclusion.
It is the duty of the Inquiry to probe the evidence of witnesses and to do so thoroughly and robustly. An Inquiry is not a court of law but witnesses are on oath. At inquiries, it is normally left to counsel to ask questions and so Lord Grabiner found himself questioned by Jason Beer KC.
It seems fair to say that it was, at times, a tetchy process. As an example, the inquiry saw an e-mail between Grabiner and Neuberger in which Grabiner accused Fraser J of a 'rather pathetic attempt to dodge me' and then adding that his behaviour 'confirmed our suspicions about his Smith characteristics.'
This was a reference to Mr Justice Peter Smith who resigned from the High Court bench in 2017. The phrase "Smith characteristics" appears to refer to how Peter Smith J had, at times, acted whilst he was a judge. Further details of that are at Peter Smith (judge) - Wikipedia.
However that may be, Beer KC asked Grabiner KC - "Was this becoming personalised?" The reply was, "What do you mean by that?" Beer: "No more and no less than the question." Grabiner: "Personalised between whom and whom?" Beer: "You and the judge." Grabiner: "Me and which judge?" Beer: "The judge that you were applying to recuse himself." Grabiner: "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."
For a fuller report see - Law Society Gazette 11 June 2024
At the end of the session, Beer said that he had no further questions and there were none from the Chair - Sir Wyn Williams. Grabiner then said - 'I am tempted to say thank you.'
Inauiry hearings will continue (to the end of July) with Phases 5/6 - Redress, Access to Justice, Responses to the Scandal, Governance.
Phase 7 - Current practice and procedure and recommendations for the future - will follow with a view to completing by the end of September 2024.
Further notes:
Postmasters who took the first High Court legal action against the Post Office agreed a settlement worth £43 million plus legal costs in 2019.
The Post Office (Horizon System) Offences Act 2024 (legislation.gov.uk) now deals with the quashing of convictions.
Postoffice.co.uk - financial-redress
Post Office (Horizon System) Compensation Act 2024 (legislation.gov.uk)
New compensation scheme opens for postmasters who exposed Horizon scandal - GOV.UK (www.gov.uk)
Post Office Horizon compensation data as of 31 May 2024 - GOV.UK (www.gov.uk)
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