The working paper highlights concerns about the conduct and overall strategy and conduct of Post Office Limited, Fujitsu employees, and lawyers involved on their behalf, in that litigation.
Research highlights “serious concerns” about strategy and conduct of Post Office lawyers during High Court case
Further investigations should take place to assess whether lawyers involved in a recent Post Office case in the High Court may have committed professional misconduct in their handling of that case, researchers have said.
The Post Office has been robustly criticised for the handling of criminal and civil cases which have led to dozens of miscarriages of justice being identified by the Court of Appeal. Innocent sub-post masters and mistresses lost their livelihoods, reputation, and sometimes their liberty.
In the new analysis experts suggest regulatory bodies should consider if professional misconduct charges should be brought against those involved in court cases associated with the scandal.
The working paper, which examines conduct of the Post Office and their lawyers in group litigation brought against the Post Office by sub-post masters and mistresses, highlights concerns about the conduct and overall strategy and conduct of Post Office Limited, Fujitsu employees, and lawyers involved on their behalf, in that litigation.
The experts examined judgments by Judge Fraser, who identified failings in the group litigation, known as the Bates litigation. Those judgments suggest that pleadings, disclosure, witness statements and submissions may have been handled by lawyers either below expected standards or “with an eye on disruption and non-cooperation”.
Among other things, the paper highlights failures in presenting witness evidence that could have prevented important information in the case from being understood. Witnesses did not always appear to write their own witness statements and those witness statements did not bear proper relation to underlying documentary evidence, calling into question the ways in which evidence was managed and drafted. Witness statements were found to be misleading when oral evidence was not. These problems led to the Post Office arguing a case contrary to the evidence which emerged at trial. A number of witness statements failed to include critical material on which the witness could give evidence but did not, because those matters were harmful to the Post Office case.
The paper identifies some examples of evidence necessary to sustain hostile cross-examination not being raised. Given that this evidence was not raised, cross-examinations may have breached professional guidelines.
The paper says answers and action are needed if professional standards and civil justice are to be meaningfully protected.
Project lead, Professor Richard Moorhead, from the University of Exeter, said: “The conduct of the Bates litigation is a scandal within a scandal. Mr Justice Fraser’s judgments suggest lawyers making inappropriate arguments; evidence which was mismanaged or misrepresented; and the use of aggressive tactics which were contrary to civil justice rules with the apparent intention of exhausting the resilience and resources of the claimants.
“We hope our analysis contributes to the ongoing investigation of these matters. The Sir Wyn Williams Inquiry needs to investigate and the professional regulators need to act to enforce the obligations that lawyers and their powerful clients owe to the administration of justice.
“The case is part of a broader abuse of power apparently affected by the Post Office in perpetrating a large number of miscarriages of justice. But may also be symptomatic of more general concerns about powerful clients undermining the independence of their lawyers and poor conduct in civil litigation, which a series of civil justice reforms have sought to address but, in this instance at least, appear to have failed.”
The research is part of a broader project looking at issues in corporate governance; criminal justice; and professional regulation, as well as government oversight, in the context of the Post Office Scandal.
Researchers will examine the design, execution, and enforcement of contracts; the conduct of investigations and prosecutions arising from Horizon; the conduct of appeals including post-conviction disclosure decisions; the management of information about Horizon within and beyond the legal processes and the handling of independent investigations, including those by Second Sight. They will also analyse the role of legal professionals and their advice in the management and representation of Horizon within and beyond the Post office; the oversight of legal processes and information on Horizon’s flaws by the PO Board and BEIS; evidence of pressures to plead guilty for defendants; differences between the handling of Scottish, English and Wales cases and variability in sentencing decisions.
The project’s initial work is supported by the ESRC, the University of Exeter, and LBC Wise Counsel.
The research team also includes Dr Rebecca Helm, the Director of the Evidence-Based Justice Lab and Karen Nokes, Research Fellow at the University of Birmingham.
Date: 4 August 2021