Recusal and the Post Office

It’s jaw-dropping stuff. This Post Office inquiry has revealed a variety of fascinating goings-on that I recognise all the way down here in little-ol’ adjudication.

Alan Bates vs the Post Office is group litigation: some 550 sub-postmasters got their act together and challenged the Post Office in court, for what they said were huge wrongs landed on their shoulders. The lid was blown off – and quite to smithereens – by Mr Justice Fraser in his scathing denouncement of the Post Office and his exoneration of the sub-postmasters running their village stores and selling stamps and dishing out pensions.

The entire and very sad episode has been widely described as a very serious miscarriage of justice by the Post Office. The formal and subsequent government inquiry that is in place and unfolding daily live on YouTube is aiming to find out what and why it went so badly wrong.

Oh, but I have seen this kind of wrong before, time and time again, in my 40 years (yes, 40) of deciding disputes. It’s that human flaw that drives people to become utterly convinced that “my side” is right and “the other side” is utterly wrong. It’s the way the human mind works. Unshiftable – if there is such a word. The Post Office was dedicated to its god; it could do no wrong. We are right etc, etc. So often the parties in everyday adjudication take positions that are of the same ilk. They believe.

The Post Office, crestfallen, shocked and furious, did what happens even in very low-level dispute systems – it began an attack on the judge

Then – oh dear, oh dear – Mr Justice Fraser told the Post Office that its beliefs – its truly held beliefs – were in fact awfully wrong. I have said on these pages before that this is what happens to institutions. I call them mini-states; they have their own police force, own penal system, and own judges in their own cause… and they believe they can never be wrong.

The Post Office, crestfallen, shocked and furious, did what happens even in very low-level dispute systems – it began an attack on the judge.

The ruling by Mr Justice Fraser had been the first substantive judgment in the trial, and there was more to come. So the Post Office said it wanted this judge fellow to clear off. It sought what is called a “recusal”, and asked Mr Justice Fraser to accept that his 1,000-plus paragraph judgment on the Post Office was top-to-bottom full of the judge’s bias.

That meant the judge had to adjourn the next part of the case and hold a trial about his own behaviour. After some months, he handed down a very detailed judgment, which answered there was no bias in fact or law and that he would dismiss the recusal application – the litigation could now get back on the rails.

Not quite, replied the even more angry and disappointed Post Office. It sought leave to appeal the dismissal – but was refused. So it applied next to the Court of Appeal for leave to appeal the recusal outcome. It came before a single Court of Appeal judge, Lord Justice Coulson, seeking permission to appeal. He refused leave, however, saying the recusal application was without substance, and adding that “there remained a distinct flavour of the Post Office wanting the case decided all one way in their favour”. The recusal application was totally flawed.

>>Also read: The Latham report, 30 years on

>>Also read: The Post Office scandal and the fallibility of wanting to win

When this was discussed last month in the judicial inquiry, the flavour came vividly through. The Post Office instructed, for its recusal application, a very senior barrister, who it was revealed liaised with a recently retired Supreme Court judge for guidance – and there was nothing wrong with that. They were looking to establish whether there were “reasonable prospects” of obtaining recusal.

But mixed in with that was that the Post Office and the lawyers were “bruised” or “slighted” by the judgment. The decisions of Mr Justice Fraser came as a shock to them, and the Post Office and its lawyers hadn’t appreciated in the trial that he had taken such a strong view against their position. The lawyers’ advice was that the Post Office should take every step to get rid of the judge or risk losing on the other matters that were yet to be tried out.

Here we see the procedural side of litigation. As to prospects of success, the senior barrister’s view was that “this judge had done an unbelievable nonsense and demonstrated apparent bias”. No matter how much the Post Office wanted an arm’s-length opinion as to prospects of success or procedural necessity, it would take no more than those few words to persuade the loser to seize on these hopeful remarks. The Post Office was desperate.

The recusal effort failed; it went nowhere. But the inquiry lifted a surprise stone. The Post Office and its lawyers asked themselves, and only themselves, whether there was “an inappropriate relationship” between Mr Justice Fraser and the Court of Appeal judge Lord Justice Coulson. The suggestion was that Mr Justice Fraser had “lined up” this particular Court of Appeal judge because he (like Mr Justice Fraser) had once been head of the Technology and Construction Court, being the construction industry court, and “his mate”.

Thank goodness the most senior lawyer for the Post Office poured cold water on this suggestion. If you are an adjudicator that suffers an attack, take comfort that you are not alone in being on the receiving end of this line of desperation.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple