THE SELF INFLICTED WOUNDS OF A “TRUSTED BRAND”/”CAPRICIOUS MID-VICTORIAN FACTORY-OWNER”: THE DANGERS OF PUTTING YOUR CASE TOO HIGH

The judgment of Lord Justice Coulson rejecting the Post Office’s application for permission to appeal is available on “Post Office Trial“, a case that has already been looked at several times on this blog.   Here we have a critical appraisal of an attempt to appeal that was, in effect, an attempt to appeal findings of fact.

“The PO describes itself as ‘the nation’s most trusted brand’. Yet this application is founded on the premise that the nation’s most trusted brand was not obliged to treat their SPMs with good faith, and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner”

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. The trial judge found against the Post Office on certain preliminary issues.  The Post Office sought permission to appeal.

COULSON LJ’S JUDGMENT IN REFUSING PERMISSION TO APPEAL

The Post Office’s application for permission to appeal was refused. It was held that the appeal amounted, in effect, to attempts to challenge findings of fact.

3.Furthermore, any consideration of the application for permission to appeal must bear in mind the dangers of attempting to untangle one issue for the purposes of an appeal, and the unacceptable ‘island-hopping’ that might result. The oral hearing of the permission application demonstrated all too clearly the impossibility of this task: inevitably, consideration of one issue opened up another, and another, until the whole first instance trial ended up being re-fought. That is manifestly not in the interests of justice.
4. This is compounded by the inescapable conclusion that many (if not most) of the PO’s challenges are, when properly analysed, challenges to the findings of fact made by the judge or the inferences to be drawn from them. He heard extensive evidence about the background to these contracts, how they operated in practice, how the written terms differed from the expectations of reasonable persons, and the practical consequences of the problems with the Horizon computer system. Challenges to such findings of fact are not open to an appellant in the position of PO: see Fage UK Ltd [2014] EWCA Civ 5 and Henderson v Foxworth [2014] UKSC 41. This represents a fundamental difficulty for the PO because even the judge’s conclusions of law (such as the formulation of the implied terms) are so entangled with his findings of fact that it is neither just nor practicable to endeavour to separate them out.
5. Many of the PO’s difficulties now are self-inflicted. For example, as happened during the trial and on the application for permission to appeal both to the judge, and to this court, the PO has consistently put its arguments much too high. It made sweeping statements about the trial and the judgment which were demonstrably wrong. The PO ascribed various findings or conclusions to the judge which, on analysis, form no part of his judgment. As the judge himself noted when refusing permission to appeal, even when concerned with findings that he did make, the PO takes such findings “either wholly out of context, mis-stated, or otherwise not correctly summarised”.
10.Contrary to the PO’s repeated argument, there is no “other compelling reason” to grant permission to appeal, beyond a consideration of the individual grounds which they raise. The fact that the judge’s findings may affect other contracts with SPMs has always been known: that is why this was designated group litigation in the first place. There is no greater or wider right to permission to appeal just because this is group litigation; indeed, from the point of view of practical justice for those waiting for the outcome of this application, and all the other sub-trials listed in front of Fraser J still to come, the opposite may well be the case. In any event, as the judge noted, the SPMC is of historical interest only, because it is no longer in use.
11. Finally, just standing back for a moment, there is an underlying point of common sense or commercial reality which, in my view, runs through every part of this application for permission to appeal. The PO describes itself as ‘the nation’s most trusted brand’. Yet this application is founded on the premise that the nation’s most trusted brand was not obliged to treat their SPMs with good faith, and instead entitled to treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner (the PO’s right to terminate contracts arbitrarily, and the SPMs alleged strict liability to the PO for errors made by the PO’s own computer system, being just two of many examples). Given the unique relationship that the PO has with its SPMs, that position is a startling starting point for any consideration of these grounds of appeal.
12. None of this is a criticism of Ms Davies QC who was not involved in the trial or the application for permission to appeal to the judge in May, and who argued the points at the oral application for PTA with real skill and tenacity. But because of all that had gone before, she always had something of an uphill struggle.