ASSESSING WITNESS CREDIBILITY: WHEN POST OFFICE WITNESSES DO NOT DELIVER
The judgment in Bates & Ors v Post Office Ltd (No 3)  EWHC 606 (QB) is 1122 paragraphs long, following a two week long trial. There are aspects of this case I will look at again. However, it is interesting to look at the judge’s assessment of some of the witnesses called by the corporate defendant. It shows the importance of the proper and careful drafting of witness statements. Taking careful stock of the credibility of evidence available is an important element in the litigation process (and one that is almost universally overlooked). Here we have what is now the almost usual scenario, including “argumentative” statements, which the judge felt was clearly drafted by the lawyers.
” A witness statement is not the place for this sort of general argument”
A number of post-masters and former Post-Office employees are bringing an action relating to (it is said) defects in Post Office systems leading to the creation of artificial shortfalls for which the claimants were responsible. There is a Group Litigation Order and the court was hearing a number of test cases on certain preliminary issues.
THE JUDGE’S REVIEW OF THE WITNESS EVIDENCE
The judge considered the evidence of some of the witnesses called by the Post Office. Not all of the witnesses called were found to be helpful.
Mr Beal’s way of giving evidence was very much the house Post Office style, certainly for the more senior of its management personnel who gave evidence. This was to glide away from pertinent questions, or questions to which the witness realised a frank answer would not be helpful to the Post Office’s cause. Giving evidence in court and being cross-examined, is an unusual experience for most people, regardless of the amount and type of preparation that a person may have undertaken in advance. Mr Beal certainly knew his subject very well. He sought to give me evidence highly favourable to the Post Office, which I consider was slanted more towards public relations consumption rather than factual accuracy. It did not match the contents of the documents to which I have referred, namely the GFA, and the change in wording of the terms dealing with liability for loss by a SPM under the NTC.
Her written evidence did however more than merely stray into areas of arguing the case. It embarked upon argument with gusto. One example will suffice:
“There is a strong and I would say completely reasonable expectation that applicants for the position of Subpostmaster will obtain a significant amount of information from the outgoing Subpostmaster. As I have explained, the outgoing Subpostmaster will have the responsibility for providing information and relevant particulars for the marketing of their branch, whether this is through the AB website (or previously the purple website) or through an estate agent. In addition, they would be the first point of contact for potential applicants prior to NT [Network Transformation]. Following implementation of NT, they would still have a reasonable level of contact with applicants. It would seem very strange for the incoming Subpostmaster not to take full advantage of the opportunity to obtain information about the branch and its operation from the current Subpostmaster and indeed they were encouraged to do so by my team during the application process as this was the best source of information about the branch and the conditions that they would be subject to”.
There is only one part of this lengthy paragraph that is actually evidence that should be given by a witness of fact, and that is part of the final sentence dealing with encouragement coming from Mrs Rimmer’s team. The rest is pure argument. It may well not have been drafted by Mrs Rimmer at all, as some litigants’ solicitors are often responsible for the content of witness statements. This was not pursued in cross-examination and so it is neither necessary nor desirable to make any finding about it. I certainly do not criticise Mrs Rimmer for it, although if it were not written by her, it should not have been in her statement. A witness statement is not the place for this sort of general argument
THE BEST POSSIBLE GLOSS BECOMES TARNISHED.
As with the other more senior members of the Post Office group of witnesses, Mr Breeden is articulate, intelligent and also acutely aware of how much the reputation of the Post Office hinges on these proceedings. His evidence was presented in terms obviously designed to put the best possible gloss for the Post Office on matters, and some of his statements simply did not stand scrutiny. The one I have explained above, that SPMs had the chance to review their contracts before appointment, was expressly preceded by a statement that made clear he was referred both to the SPMC and the NTC. Such evidence is in my judgment inaccurate, and inaccurate factual evidence is not helpful. When faced with the actual documents, he would agree Mr Green’s points to the contrary, but one reason why the factual part of the Common Issues trial became so protracted is because of this approach by the Post Office generally. Agreement to even obvious points would be reached, eventually , but getting there took much longer, and a great deal more effort, than it ever ought to have done. His evidence was again given through a PR-prism.
YOUR OWN DOCUMENTS CONTRADICT YOUR WITNESS STATEMENT…
418. Directions had been given for the trial of Horizon Issues, that trial commencing on 11 March 2019. As luck would have it, Mr Green was putting the detailed questions about Mr Abdulla’s TCs from the Lottery on Tuesday 20 November 2018. Mrs Van Den Bogerd had signed a witness statement in the Horizon Issues trial just a few days earlier, on Friday 16 November 2018. She had dealt with these very TCs concerning Mr Abdulla in a number of highly detailed paragraphs in that other witness statement. When this was put to her (a little later, and after she had been given the opportunity of considering her Horizon Issues witness statement) she explained that her answer that she was coming to the matter cold was “a mistake”. I reject that explanation. Her Horizon witness statement is very detailed, and was signed just a few days earlier than her cross-examination. Mrs Van Den Bogerd is a very clever person, in my judgment, and she had detailed knowledge of the Lottery TCS/Mr Abdulla situation. She sought to give me the impression that she was being caught unprepared, and had only come to the matter cold when being asked questions in the witness box. This was wholly misleading.
419. The second matter concerned a very valid point that Mr Green put to Mrs Van Den Bogerd that she was very reluctant to give evidence that would be unhelpful to the Post Office’s case.
420. There are many examples of this, but I shall use just one. There were numerous internal references, in documents obtained in the litigation, which Mrs Van Den Bogerd had herself authored (some co-authored with other people) where she had internally accepted problems and difficulties with Horizon that are contrary to the position adopted by the Post Office formally in this litigation. In one, dated 24 October 2016 (a co-authored paper with a Marc Reardon) they had stated:
” Horizon Help (the in-branch operational support tool) has since its introduction over a decade ago fallen short of delivering the in-branch self-help functionality that was promised as part of Horizon roll-out and that postmasters and their assistants desperately need .
421. She accepted that entry as “an honest and candid internal recognition of the situation”, which given she had co-authored it, was not surprising. The passage also seemed rather similar to the complaints made by Mrs Stockdale in her individual pleading, which said that she “had access to the Horizon system user guide and Horizon online help, both online, but these were difficult to use and often did not provide a resolution to the issue at hand.” However, the formal position in this litigation by the Post Office is to defend the help available to SPMs as being wholly satisfactory.
422. All Mrs Van Den Bogerd was prepared to accept about this complaint by Mrs Stockdale was that there was “some truth” in it, but it was “not entirely true” because the information was there, but sometimes took too long to find. This answer is inconsistent with the documents she had herself drafted internally. This reluctance might be explained by the Post Office’s formal response to Mrs Stockdale’s complaint, which was they were not sufficiently detailed, were irrelevant, inadmissible and were denied, to the extent they could be understood.
“Q. Why don’t you mention any of these difficulties in your witness statement? Why have we had to find all these documents and put them to you to correct the impression in your witness statement?
A. I don’t … I suppose the length of my witness statement, it is what information went in there.”
424. Because that answer suggested that there was a concern or misunderstanding on Mrs Van Den Bogerd’s part that her statement was restricted in length, at the end of her evidence I asked her if it was her understanding that there was a restriction on the length of her statement. It would be surprising if there were, but nothing is impossible. She said:
“A. It was — the witness statement is quite lengthy in itself anyway and I suppose it was just myself, just how much actually went into that statement in itself.
MR JUSTICE FRASER: So it was your judgment?
A. Yes, what information was relevant to go in there or not.”
413. Mrs Van Den Bogerd has been closely involved in the Post Office response to the Second Sight Interim Report. I asked her if the sentence (which I have emphasised) reflected her view both at the time the Response was drafted, and also on the day she finished her evidence. She confirmed that it did, in both cases. This is not a surprise given she was involved in drafting the Response.
414. Indeed, some passages of the Response were, word for word, exactly the same as her witness statement. She did however attempt to distance herself from it where she could, by denying she was “the author” (it was never suggested she was) and denying that she had signed it (again, it was never suggested she had).
415. However, it is a surprise to me that she still held the view that each case was demonstrably different and influenced by its own particular facts, or that no themes connected the different cases. A Group Litigation Order (“GLO”) has been made by the court. Such orders are not made lightly, and have to be approved by the President of the Queen’s Bench Division himself. Group Litigation has its own Practice Direction, and CPR Part 19.10 reads that a GLO “means an order under rule 19.11 to provide for the case management of the claims which give rise to common or related issues of fact or law.”
416. Notwithstanding the making of the GLO, Mrs Van Den Bogerd appears entrenched in her refusal to what I consider to be the obvious common themes connecting all these claims, and I simply cannot understand this. That is not to say that the issues will be resolved against the Post Office, as final resolution will only eventually occur after future trials and nobody can say what the outcome of the many varied issues still to be tried will be. However, having such a senior witness with such an entrenched view as this means that a degree of obstinacy affected the whole of her evidence. She seemed to be entirely incapable of accepting any other view of the issues other than her own, which I consider amounts to an absolute refusal to accept that the cases of the many hundreds of Claimants were linked. She has been involved in the Post Office’s handling of the complaints made about Horizon by many SPMs since 2010/2011. She remains heavily involved. She was involved in the Working Group with the title of an animal, the name of the particular animal being said to be privileged. Given she has, for so many years, been involved in defending the Post Office’s position, she has become, in my judgment, extraordinarily partisan. Whether this refusal to accept any link between the different cases is part of a concerted “divide and rule” approach by the Post Office is not clear.
417. There are two specific matters in which I find that she did not give me frank evidence, and sought to obfuscate matters, and mislead me. The first relates to specific points of detail that were being put to her by Mr Green about Mr Abdulla’s case. The records produced for the litigation (but which were not available at the time of Mr Abdulla’s suspension) showed three separate TCs relating to his branch, each for £1,092. The short point is that these potentially showed that Mr Abdulla’s branch had been incorrectly “billed” by Horizon for sums not properly due in relation to the Lottery. When Mrs Van Den Bogerd was asked about these points in some detail, she said:
“ … I have just seen this cold, so I don’t know what is behind it so I can’t really comment further than that. I would need to understand what was actually dispatched.”