ASSESSING WITNESS CREDIBILITY: WHEN POST OFFICE WITNESSES DO NOT DELIVER

The judgment in Bates & Ors v Post Office Ltd (No 3) [2019] 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”

THE CASE

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.

GLIDING AWAY

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 .
(emphasis added)
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.
423.       Mr Green put a general point to her about her approach:
“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.”

AN OVERARCHING RELUCTANCE TO PROVIDE ACCURATE EVIDENCE

451.       Overall, I found Mr Dance’s approach to giving his evidence unhelpful. His written evidence glossed over important points as I have explained above, and orally Ms Donnelly would often have to pursue a particular point in order to obtain a straight answer. I consider his evidence suffered from an overarching reluctance to provide accurate evidence, if that may assist the Claimants.

EVIDENCE INCAPABLE OF BELIEF

458.       Mrs Dickinson is a fraud specialist and it is simply inconceivable that she was not familiar with the Enron case, at least in outline terms. I reject her evidence that she did not know about Enron, which I find incapable of belief. The only reason to claim ignorance, as she did, was simply to be unhelpful, which is what I find she was being.
459.       With respect to Mrs Dickinson, and in any event, in my judgment her evidence wholly misses the central point that is at issue in this litigation. I entirely accept that the Post Office requires its SPMs to be honest, and I do not believe that point to be in issue. If it is, it should not be. The central point in this litigation is that the Claimants’ case is that due to the Horizon system, shortfalls and discrepancies appeared in their accounts through no fault on their part. They however maintain they were treated in a great number of cases as though they were dishonest, with all that entails, even though they were not. Explaining the importance of fraud detection and prevention measures is not relevant to whether these SPMs were or were not engaged in fraudulent accounting, or in resolving the very large number of legal and factual disputes between the parties.
460.       Mrs Dickinson did not know that there was no “dispute” button on the Horizon system and that even disputed items by the SPMs had to be “accepted”, so far as the Horizon system is concerned. This is a surprising omission in the knowledge of someone whose field includes dealing with potentially dishonest SPMs. She had only limited knowledge of the Horizon system, although she had been given some initial training (on a course with SPMs) and said she had picked things up since. She said that the number of days’ training was:
“A.  Three.  And then basically you pick things up as you go along.  But ultimately I wouldn’t work on the Horizon system because then that could cause a conflict with me investigating a matter.”
461.       It is not clear why having more detailed knowledge of Horizon, or even having worked on Horizon, would cause her a conflict in the way she explained. Logic would suggest that an investigator might be assisted by having more – or even some – detailed knowledge of how Horizon worked; at the very least, I would expect her to know the options available to a SPM if they were faced with (say) a TC that would affect their branch accounts with which they disagreed. In my judgment, an investigator such as Mrs Dickinson ought to have a detailed knowledge of how Horizon works, certainly in terms of the options available to a SPM at the end of a trading period, as otherwise she would not know if a SPM she was investigating was telling her the truth or not.
462.       In any event, her evidence does demonstrate the Post Office’s default position regarding their SPMs. This is that shortfalls and discrepancies are not caused by the Horizon system, therefore those that do occur can only be the responsibility of SPMs. This conclusion means that the Post Office fraud prevention and debt recovery procedures will be used against SPMs in this position, unless an SPM can show that the shortfall or discrepancy was not their fault. Whether this is justified will only be resolved after further trials, and this judgment does not contain findings on breach, loss or causation. Evidence saying in general terms how fraud occurs and that the perpetrators are not necessarily “bad” people does not advance matters a great deal.
TOO READY TO ARGUE THE CASE FOR THE POST OFFICE
     Mr Longbottom was somewhat too ready to argue the case for the Post Office; for example, the previous paragraph refers to an answer from him that was only eventually reached after some difficulty. The usefulness of his evidence is limited to the points I have identified in this section. That is not to say he was always positively unhelpful, simply that he was somewhat wedded to the overall Post Office cause in the litigation. An example of this is when he was being asked about the wording on the SERV 135 form. He said in relation to the issue of whether incoming SPMs were, generally or somewhat, unaware of important contractual terms (which was said in the SERV 135 itself to have come from audit teams) “I don’t think a postmaster has ever said to me that they didn’t know that the funds were not for their private use.” This was not remotely an answer to the question, and is exactly the sort of argumentative and combative answer that is wholly unhelpful. He must know that of the significant number of issues in this litigation, both contractual and otherwise, there is no question of the Claimants advancing any case that the funds held in a Post Office branch are for their private use. The question related to what appeared, on the face of a Post Office drafted document, to be a widespread issue of SPMs not being aware of some important contractual terms. This had emerged from the experience of audit teams generally. It is wholly distinct from SPMs taking Post Office funds for their private use.

IT IS A PUZZLE…

500.       Mr Haworth signed his witness statement that stated that he had interviewed Mr Sabir by using, or by reference to, a checklist which he produced as a document, which was the same one as referred to by Mrs Ridge and Mr Trotter. He also gave evidence of what, effectively, was his standard practice by reference to this checklist, which also included (as he put it) running through parts of the SPMC.
501.       However, in his evidence in chief, he stated that he had used his own personal checklist, and not the same one as Mrs Ridge (who had used her own version, the contents of which he was unaware) or Mr Trotter. There was something of an air of unreality about his evidence when cross examined about this:
“Q So have you ever seen Mrs Ridge’s personal checklist that she used?
A.  I haven’t seen her personal checklist, no.
Q.  So you are not able to say that you were using the same checklist as Mrs Ridge, are you?
A.  I can’t say definitely I was using the same list but I would imagine it would contain the same key points.
Q.  So it is based on what you imagine?
A.  That is — because I have never seen Elaine’s Ridge’s checklist, no.”
502.       This sort of evidence is, purely and simply, an attempt to put matters as favourably for the Post Office regardless of the accuracy of the evidence. Mr Haworth had initially in his written evidence said he had used the same checklist as Mrs Ridge and Mr Trotter. This was not the case, as he accepted when making the important correction in chief that he did. These were different checklists in use at this time, and he had not in any event even seen Mrs Ridge’s, and was simply making an assumption which in my judgment turned out to be incorrect. It is a puzzle how someone can expressly say their checklist was the same as that of Mrs Ridge, if they have never seen Mrs Ridge’s checklist. It is also a puzzle how a witness statement can say a witness did a particular thing, produce a document in reference to that, but then the witness themselves say that they have not seen the document produced in support.