JUDGE REFUSES TO RECUSE HIMSELF: DEFENDANT APPEALS: APPEAL DISMISSED: ANOTHER ROUND IN THE POST OFFICE SAGA: ATTEMPTS TO HOLD THE COURT “IN TERROREM” SHOULD BE EXPLAINED

I did not blog, immediately, after the judgment in Bates & Ors v Post Office Ltd (No 4) [2019] EWHC 871 (QB because I suspected (indeed it was inevitable, given its approach to this litigation) that the Post Office would attempt to appeal.   At first instance the Post Office failed in its application to have the trial judge recuse himself.  The (inevitable) application for permission has been refused.  The reasons for dismissing the application for permission to appeal by Lord Justice Coulson are available here.

“Such a comment, presumably made in terrorem,  should not have been made at least without proper explanation of its relevance.” 

THE CASE

A number of post-masters  and former Post-Office employees (“SPMs”) 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 Mr Justice Fraser has heard a number of applications.  After a trial on a preliminary issue the court started to hear the next tranche of issues. On the last day that evidence was being heard the judge found out, by accident, that the Post Office was making an application that he recuse himself.  That application was refused in a 302 paragraph judgment.  The Post Office applied for permission to appeal. Coulson LJ considered that application on paper and gave (more detailed than usual) reasons for rejecting it.

THE REASONS FOR DISMISSAL

Coulson LJ noted

• An initial hearing occurred because the Post Office wanted to adduce factual evidence in their favour, “but objected to any evidence to contrary from the SPMs”.  “There remains a distinct flavour of that approach in this recusal application”.

• The recusal application was being made by the Post Office who had been partially successful in the relevant sub-trial.  The Post Office was “now having to argue that the outcome of the sub-trial was irrelevant to the recusal application, and that what mattered were individual sentences scattered throughout Judgment 3, which they say amount to a demonstration of apparent bias. The judge thought that this was a misconceived approach. So do I.” 

• “Whilst of course the outcome of the sub-trial cannot be the deciding factor in a case of apparent bias, it is not a bad place to start. It is on any view clearly relevant: a far minded observer is unlikely to think that the judge is biased against part X if he has just delivered a judgment in which party X was successful.”

NO ERROR OF LAW

The Post Office did not allege any error of law in the judge’s approach, nor did it allege that the judge failed to ask himself the correct questions.

“It has not been easy to categorise the particulars of apparent bias in the application for permission to appeal. The skeleton argument is oddly structured and repetitive: for example, the heading “Critical Invective” appears three times, once before paragraphs 61 – 65, again before paragraph 86 and again before paragraphs 120 – 124.”

“One other general point needs to be made about the particular passages relied on by the PO. The judge said in a number of different places in Judgment 4 that many of the phrases or sentences upon which the recusal application is based are taken wholly out of context by the PO. I agree with that conclusion. That is particularly egregious where, as happens repeatedly, the sentence before or the sentence after the phrase relied on makes clear that, for example, it is not a finding of fact, or it is an observation based on the PO’s own evidence.” 

FURTHER CRITICISM OF THE POST OFFICE’S ARGUMENT OF BIAS

There was further criticism of the Post Office’s argument.

“… the PO’s application is based on a total disregard of what it actually said and did during the Common Issues sub-trial [the Post Office’s skeleton argument] “endeavour to present the sub-trial as a clearly defined, simple set of issues concerned with the construction of contractual terms, where factual disputes were few and far between. Only any view of the papers, that is a significant misrepresentation, not only of the issues themselves, but also of the way in which the PO itself ran its case before the judge. It raised factual disputes at every turn.”

“Much of the material upon which the recusal application relies stems from the PO’s own case: either the evidence of its own witnesses, or its cross-examination of the SPM’s … For the PO no to say – as they do – that actually all of this was irrelevant, and that the judge demonstrated apparent bias by dealing with and making findings upon those matters which the PO itself had put in issue, is an untenable position to adopt.” 

The trial judge had made findings of fact in some of the trials. He made it clear in the judgments that findings in relation to a witness at one stage did not mean that there evidence would be accepted at a later stage.

“In those circumstances, the PO was obliged to argue that what the judge repeatedly said by way of caveat or qualification was a “mantra” (presumably meaning a repetitive and meaningless form of words) “which would not convince the fair-minded observer”. That is a surprising submission. On its face, it seems to assume that it was for the judge to persuade the fair-minded observer that he was not biased, an inversion of the ordinary burden or proof. More seriously, it suggests bad faith on the part of the judge: that, although he was expressly saying that he had not pre-judged a particular issue, in fact he had. At its starkest it is a suggestion that the judge was guilty of conscious misrepresentation… There is simply no basis for such a submission.”

“There is no doubt that the PO did not make the application as soon as they should have done. It is also troubling that the delay was said to be, at least in part, due to the consideration of an unnamed “judicial figure or barrister”, referred to as “another very senior person”, before the application was made. Such a comment, presumably made in terrorem,  should not have been made at least without proper explanation of its relevance.” 

“Furthermore, the scattergun way in the original application was made, now mirrored in the way that this appeal has been pursued, can be seen in the continually changing nature of the PO’s arguments.”