AGGRESSIVE LITIGATION IS COUNTER-PRODUCTIVE: JUDGE REFUSES DEFENDANT’S APPLICATION TO STRIKE OUT WITNESS STATEMENTS (WITH A COMMENT, OR TWO, AMONG THE WAY)
I am grateful to barrister Adam Heppinstall for sending me a copy of the judgment of Mr Justice Fraser today in Bates -v- The Post Office  EWHC 2968 (QB). This is a forceful judgment and what the judge had to say along the way is as interesting as the decision itself (although it all clearly played a part in the outcome). A copy of the case can be read here.Bates v The Post Office – Judgment No..2 strike out application 15 Oct 18
“The defendant first made complaint – or raised concerns – about the scope of the claimants’ evidence about one year ago in October 2017. Given the statements themselves were only served in August 2018, that shows considerable, if not almost supernatural, foresight on the part of the defendant”
“… it appears to me that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute. I made similar comments in judgment No.1. These must have fallen on deaf ears, at least for some of those involved in this case. There is a limit to what the court can do other than, yet again, to exhort the parties to remind themselves – daily, if necessary – of what the overriding objective requires.”
“I wish to make one point entirely clear, so that this cannot be misunderstood. An aggressive and dismissive approach to such major Group Litigation (or indeed any litigation) is entirely misplaced. I repeat that such litigation has to be conducted in a cooperative fashion and in accordance with the overriding objective in the CPR.”
The claimants are a group of sub-post masters who are bringing an action against the Post Office alleging that there were significant defects in the Post Office computer system that led to their suffering losses. The matter is listed for a trial due to start on 5th November 2018.
THE DEFENDANT’S APPLICATION
The defendant made an application to strike out large parts of the witness evidence of the six main claimants.
THIS IS NOT AN ISSUE THAT SHOULD BE LEFT TO TRIAL
The judge rejected the defendant’s argument that this is an issue that should be left to to trial.
“Somewhat surprisingly, on 19 September 2018 the defendant then altered its stance over the hearing of its strike out application – which it had originally sought to have heard within 10 working days of its issue – and this time asked for an adjournment of the hearing of 10 October 2018, seeking instead to have the strike out application dealt with actually during the trial itself on 5 November 2018. I refused that application. The Common Issues, which are included at Appendix 1 to this judgment, have to be resolved at the first trial. Extensive time at the trial, both in my judgment and applying normal sensible case management measures, should not be spent arguing about what evidence should be admitted at that very trial. That trial has six Lead Claimants giving evidence and 14 witnesses giving evidence for the defendant. The defendant had relied, inter alia, as one of the grounds justifying its strike out application, upon lack of time at trial. It would be rather circular to hear such an application relying upon such grounds at the very trial for which it was argued there was insufficient time. Given the breadth of the application, and the length of time (even prior to the challenged evidence being served) that the parties had been arguing about it, it seemed to me that the application should be dealt with in advance of the trial. These were not isolated passages that were being attacked. The parties also needed to know in advance of the trial, particularly given the root and branch attack by the defendant upon such substantial amounts of the claimants’ evidence.”
THE CONDUCT OF THE LITIGATION GENERALLY
The judgment also contains a, not entirely favourable, comment on the strategies adopted at the interlocutory stage of the litigation.
11. Before turning to the application itself, there are two other matters that must be mentioned. Firstly, the parties also agreed between themselves (as part of the litigation funder/security for costs Consent Order) that Costs Management Orders would be sought from the court, and hence voluntarily adopted the costs management regime in the CPR. This led to three separate hearings, and ultimately to such orders being made in respect of each of their costs budgets. This means that the court has a highly developed idea of the parties’ joint costs burden to date; the total costs expended by all the parties to date exceeds £10 million.
12. Secondly, this is a large and complicated case. The technical subject matter of the Horizon issues is likely to be complex. The litigation must be conducted in accordance with the overriding objective. CPR Part 1.1(2)(d) expressly requires the case to be dealt with expeditiously and fairly. CPR Part 1.4(1) requires that it be actively case managed; CPR Part 1.4(2)(l) requires directions to ensure that the trial of a case proceeds expeditiously and fairly. Group litigation has its own Practice Direction 19B, but that must be considered within the context of CPR Part 1. As I have said before, the subject matter of the litigation is a matter of obvious public interest. The defendant is an important public institution, and the way that the substantive issues affected the claimants is also very important. Resolving the many issues in the group litigation is likely to take some time.
13. I have now had a total of 10 separate interlocutory hearings with these parties in a 12 month period prior to the trial of even the first issues. The legal advisers for the parties regularly give the appearance of taking turns to outdo their opponents in terms of lack of cooperation. Behaviour from an earlier era, before the overriding objective emerged to govern all civil litigation, has appeared to become almost the norm, at least from time to time. One would have thought that all of the parties involved in this litigation would wish to resolve the many different issues between them – which are highly controversial – fairly, speedily and with as much cost-efficiency as possible. I am making no findings about this at this stage, and which party is primarily responsible for this state of affairs is only likely to be considered, if at all, at the final costs stage of the litigation, far in the future. However, it appears to me that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute. I made similar comments in judgment No.1. These must have fallen on deaf ears, at least for some of those involved in this case. There is a limit to what the court can do other than, yet again, to exhort the parties to remind themselves – daily, if necessary – of what the overriding objective requires.
14. The background situation that has led to this application suggests, sadly, that this counter-productive approach lurks in the background to this application. The defendant first made complaint – or raised concerns – about the scope of the claimants’ evidence about one year ago in October 2017. Given the statements themselves were only served in August 2018, that shows considerable, if not almost supernatural, foresight on the part of the defendant. There have been various proxy wars about the claimants’ witness statements in the period from October 2017 onwards, even though no such statements were in existence. Indeed, notwithstanding the high number of interlocutory appearances before me, it was a rare hearing when the subject was not mentioned. Given there were no witness statements available to be considered on the majority of these occasions (and indeed not at all prior to the short notice hearing on 11 September 2018), this was a highly unusual situation. All it did identify was that there was a major interlocutory battle looming. And so it has proved.
15. This application has an agreed bundle of authorities numbering 25 different judgments; skeleton arguments of 36, and 49, pages respectively; and a hearing bundle containing (amongst other things) no fewer than 62 letters passing between the solicitors for the parties on this subject, in addition to the witness statements themselves, and the witness statements both supporting and opposing the application itself. The principles of contractual construction, the scope of each of the first two trials (Common Issues, and Horizon Issues), the approach to striking out evidence, and various pleadings point have been debated almost endlessly between the parties. The hearing was set down for a day.
16. Finally, no judge ever knows (and should never speculate) about what is going on in the background to any litigation, particularly complex litigation such as this. However, this application regrettably falls into a pattern that has, in my judgment, clearly emerged over the last year at least. Attempts are being made to outmanoeuvre one another in the litigation, and tactical steps have led to constant interlocutory strife. This is an extraordinarily narrow-minded approach to such litigation.
THE JUDGE’S REJECTION OF THE DEFENDANT’S APPLICATION
The judgment contains a detailed consideration of the law and principles relating to the prospective editing or striking out of witness statements.
23. This authority is distilled by the editors of the White Book, in the notes to CPR Part 32.4.21, to the following sentence, which I adopt; the heading to that paragraph in the notes being “Application to strike out witness statement”:
“A judge asked to approach such questions at the interlocutory stage is at a disadvantage and should only strike out proffered evidence if it is quite plain that, no matter how the proceedings may look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it.”
APPLYING THIS TO THE CURRENT CASE
“The application by the defendant to strike out this evidence appears to be an attempt to hollow out the Lead Claimants’ case to the very barest of bones (to mix metaphors), if not beyond, and to keep evidence with which the defendant does not agree from being aired at all”
SAUCE FOR THE GOOSE SAUCE FOR THE GANDER (OR BLATANT HYPOCRISY?)
The claimant pointed out that some of the objections that the defendant took to the claimant’ evidence was present in the defendant’s own witness tatement.
43. Thirdly, Mr Green relies upon the fact that the defendant’s own evidence contains passage after passage where the same subject matter is dealt with from the defendant’s overall perspective. As an example, Ms Van Den Bogerd, the defendant’s People Services Director, gives considerable evidence about the training provided to sub-postmasters, the core features of that training, including “how to declare, investigate, make good and dispute shortfalls”. She gives evidence of the evolution of training on Horizon in the periods up to 2002, between 2003 and 2006, 2007 to 2011, and then into 2012. She also continues “I set out below a short summary of how initial training was delivered over the years”.
44. She also addresses the investigation of shortfalls. A whole section of her witness statement is under the heading “Causes of Shortfalls”, with nine different reasons given for why shortfalls occur (on the defendant’s case, hence Horizon errors is not one of them). She makes statements such as “I have always taken the position that a diligent businessperson would check their accounts daily to identify any discrepancies and look to resolve them there and then….” and, having pointed out that very small shortfalls might not be worth the sub-postmaster’s time to investigate, states “it would be unlikely that a Subpostmaster, having kept his accounts diligently, still had no idea where a material shortfall was arising from.” She also states “In any event, for the reasons set out above, the Subpostmaster is best placed to investigate shortfalls and Post Office generally cannot find the root cause of a shortfall without the Subpostmaster’s cooperation. A reversal of the burden for determining the root cause of shortfalls would also create the perverse situation whereby the greater the scale and sophistication of the false accounting by a Subpostmaster, the less likely Post Office will be able to find the root cause of a shortfall, and thus the more likely the Subpostmaster would not be held liable for that shortfall.”
45. Mr Green’s submission in this respect amounts to having two limbs. Firstly, it is to identify that the defendant on this application takes both a surprising, and unsupportable, position on relevance, given its own evidence in this respect, which seeks to deal with the same points from the defendant’s point of view. Such material, he submits, is clearly relevant, which is why it is adduced by the defendant’s witnesses. It is also to meet a submission advanced by the defendant that unless the claimant’s evidence on the different topics challenged is struck out, the trial will become demonstrably unfair as the defendant simply had no idea such evidence would be required or would be admitted, and/or that did not realise that such issues would be relevant, and hence has no evidence of its own on this topics. Such a submission, Mr Green points out, is difficult to reconcile with the defendant’s own evidence such as this.
46. Mr Green also points out that whereas the defendant can give general evidence in this respect – based upon the aggregate of its own experience across the piece, dealing with many different sub-postmasters – all that the Lead Claimants can do is give their own separate and distinct evidence of their own specific experiences. This would be what is properly called direct evidence.
THE DEFENDANT WAS ATTEMPTING TO PREVENT BAD PR
53. Finally, the defendant submits – and submitted before at the hearing of 19 September 2018 – that without striking out this evidence, the trial of the Common Issues would simply become unmanageable, and cross-examination would be constantly interrupted by regular repetitive objections by Leading Counsel for the defendant on the same grounds, again and again. I find that submission surprising. It is not possible to rule on objections to questions in cross-examination in advance, just as it was not possible for the court to deal with striking out passages in evidence before those witness statements were served. These submissions by the defendant could, on an uncharitable view, appear to be made almost as vague threats to disrupt the Common Issues trial. Any objections to questioning will be dealt with as and when they arise, on their merits. All the parties are professionally represented and I expect them to observe this ruling, unless it were to be overturned. However, should I in the fullness of time make findings on the Common Issues by taking into account matters irrelevant in law (and hence inadmissible) on some of those Common Issues, there is a remedy available. Applying the principles as I have explained them above, I find that the defendant has not satisfied the necessary test to have these passages struck out and I dismiss the application.
54. I also suspect that in the background to this application the defendant is simply attempting to restrict evidence for public relations reasons. Even Mr De Garr Robinson accepted that the evidence that was the subject matter of this application was properly admissible evidence that went to the claimants’ cases as a whole…”
AND FINALLY A WARNING AGAINST AGGRESSION
“57. Finally in terms of the tenor of this litigation generally, I make the following observation. Some passages of the Lead Claimants’ evidence relate to the circumstances in which their engagement with the defendant was terminated. These terminations, for some Lead Claimants, occurred before other claimants in the Group Litigation (who are not Lead Claimants) contracted with the defendant. The Lead Claimants complain that such terminations were abrupt, came out of the blue, accused them of falsifying accounts and made other statements that were not factually accurate, and also that the defendant’s approach (and that of its solicitors) was generally heavy handed. I have read some of this correspondence, as it was exhibited to the witness statements. The tone of some of it is undoubtedly aggressive and, literally, dismissive. I make no findings about any of this at this stage, nor do I even consider whether such an approach was, or was not, justified in any particular individual case at the time. However, regardless of any rights and wrongs of such an approach then, with the Lead Claimants individually in that correspondence, I wish to make one point entirely clear, so that this cannot be misunderstood. An aggressive and dismissive approach to such major Group Litigation (or indeed any litigation) is entirely misplaced. I repeat that such litigation has to be conducted in a cooperative fashion and in accordance with the overriding objective in the CPR.”