Neither gods, nor unreliable gods

What did we learn about recusal apart beyond Lord Grabiner's inability to spell bollox (sic) properly?

There was an entertaining interlude during Lord Grabiner’s evidence to the Inquiry yesterday where Team Essex Court (involved in the Common Issues Trial, the recusal application, and the ongoing work on appeals, the Horizon Issue Trial, which by this stage was, well, not going that well) get very excited about alleged chicanery by Mr Justice Fraser nudging (they imagine) the leave to appeal application from his recusal judgment to his “mate” Coulson LJ.

Various members of One Essex Court having been involved in the Bates Common Issues Trial, briefing various other members of One Essex Court on a recusal application, getting hot under the collar at inside baseball seemed a bit much, especially as they had not any evidence for it, as David Neuberger rather dextrously pointed out to them when it crossed his desk.

I say this in part because before making the recusal application, the client wanted to hear separately from Lords N and G on the merits of the recusal application and/or without members of the first instance team in the room. Lord G thought this “bollox”.

I know. Why on earth would a client be concerned that barristers in One Essex Court might be influenced by the desire not to embarrass each other when giving advice on the recusal?

Well, perhaps because Lord Neuberger appears to say, in an email to Grabiner, that he does not want to cut across his advice Lord N. Or perhaps because their views on the recusal were framed by quite limited information and briefing from the trial team. Grabiner concedes immediately that one key briefing document is an advocacy document as well, one should emphasise in fairness to them, as their reading of the draft judgment.

Barristers have this really peculiar view that they are all so fabulously independent of each other that such influence is impossible (their conflict of interest rules support this in a way which I think it is time to revisit: cue much outrage by some of the bewigged ones).

Cold independence would be why they were all so calm and forensic (I am being sarcastic here, although to be serious Neuberger kept his head admirably at this point) when the Womble Bond Dickinson solicitor suggested Fraser had tipped off the Court of Appeal about an incoming appeal. That just proved all along he was a cotten-headed ninny muggins when it came to judging public institutions or interpreting contracts.

In the land of the Post Office, remember, made-up speculation, not facts were king. As a Grabiner-esque aside let me suggest that same Womble is about to be handed his sphericola on a plate by whoever examines him later this week. It is set to be absolutely brutal.

No kind of even gentle reckoning seems likely for Lord Neuberger. He is not down to give evidence.

I did wonder when Jason Beer raised that Neuberger was reported to have told the Board that he, “did not yet know Lord Grabiner's view of the case". It is covered in Lord Neuberger’s witness statement. He denies the remark. Whilst, “I cannot pretend to remember much of what was said in that call.” Given that, “From his email earlier that day, I knew that he thought that a recusal application had good prospects and should be made, and I am sure I would not have said that I did not know that.”

The note saying this likely reflects the keenness on the part of the Post Office Board to have separate independent views from Grabiner and Neuberger, so that they could be sure that the recusal application was well founded. Perhaps Neuberger said something more gnomic or was misinterpreted, or the notetaker is simply reporting what they want the conversation to say. We may hear more later this week about this. Unless that calls Neuberger’s denial into doubt, I cannot see him being called.

I think that is a mistake. There is a public interest in hearing why a former President of the Supreme Court thought it appropriate to involve himself in such work. He was not subject to the cab-rank rule. We know he regards the conventional bar on former senior judges taking advisory work has gone. One can debate whether he is right or wrong about that but taking advisory work on such a sensitive case, on live litigation, in a way which could be perceived as defending his colleagues, when it concerns criticising a High Court judge, is one which rather begs the question does he not think there is something in the convention after all?

The Inquiry evidently disagree. It was not dealt with in Neuberger’s statement and if they had asked I am sure it would have been dealt with.

I can see why the Inquiry would have thought evidentially they were not going to gain a great deal from calling Lord Neuberger and they are, well let’s put this delicately, keen to get to the end. But I think also, given his elevated (former position) and the critical issue of public interest posed by judges returning to practice as hired gun, he should have faced some questions.

What we offers on his role in the affairs it this:

72. Like anyone who has heard and read about it, I have been deeply shocked by the POL's mistreatment over many years of many hundreds of innocent postmasters and postmistresses. I am sure that it is impossible for anyone who has not gone through it, to appreciate the full life-ruining horror of what they have suffered at the hands of POL. And it is particularly shocking for someone who has worked in the law for many decades to see what so many innocent people have suffered through miscarriages of justice

73. Given that I advised POL in an action brought against it by many of those innocent and infamously treated postmasters and postmistresses, in addition to feeling outrage at the history and great sympathy for the hundreds of victims I feel uneasy when I think, read or talk about the Horizon scandal.

74. However, the topics on which I advised POL were not connected, at least in any direct way, with the appalling history of mistreatment of so many postmasters and postmistresses. I was asked to advise on two legal issues, one procedural, namely whether the Judge should be recused, and one substantive, the effect of the contracts. Although as matters turned out my advice did not accord with the view taken by the courts, I was called on to advise in accordance with my opinions at the time, and that is what I did.

At least in any direct way. Unease. Ho hum.

In what I hope will be my next post, I suspect we will see this idea of the role of the lawyer as a mere tool develop because, on what I have caught from Tony de Garr Robinson KC’s evidence the games seem to have gotten a bit out of hand around Gareth Jenkins (who’s described as a god but an unreliable god by Mr Robinson and I have pinched that for today’s title). I am waiting for the transcript to drop.

Grabiner’s evidence is interesting for a bunch of other reasons. Jason Beer painted a picture of a lawyer-led, stiffening of the Board’s resolve, which they all assisted with because they had (to their mind and Beer does not challenge it) a well-founded view that the judge should be recused and his first judgment appealed. Both he and Neuberger, it seems, think Fraser J (as was) and Coulson LJ got things wrong. There are some rather intemperate remarks and harsh judgements which, might cause them both future embarrassment.

He was solid in his belief that there were reasons for advising (which are not discussed in any detail) to recuse but less so on why he told the Board it was their duty (a piece of apparent overreach which, in the time available, Beer did not develop). There is the open question of how he really conveyed the merits of the action: before the hearing, it was a strong application that had to be made. Afterwards, it was inevitable to fail but strong and appealable (many lawyers will be grimacing in recognition here, I am afraid) if I understood the way it was being put.

One final point worth noting is how the client regarded this in the end. This was not dealt with by Jason Beer, but there is a hint in Lord Neuberger’s statement.

62. On 24th May, an application was made by POL to the Judge for permission to pursue the common issues appeal, and the Judge refused permission. This led to a discussion in email exchanges WITN10650139 and WITN10650140 as to how POL should deal with the application which it would now make to the Court of Appeal for such permission, especially given that that application was likely to come before Coulson LJ. This was not considered further by the counsel team, as POL decided to instruct fresh leading counsel, Helen Davies QC, in place of Mr Cavender (and, I presumed and presume, Lord Grabiner and me).

Helen Davies KC is joint head of Chambers at Brick Court. As a final piece of schadenfreude I imagine Rodric Williams, typing the email letting them go, thinking, Well, this is a bit awkward, isn’t it?