One minute to midnight...

Tom Cooper's evidence to the Inquiry provides his perspective on lawyering for the Post Office during the Bates litigation and in its aftermath.

Tom Cooper replaced Richard Callard as a UKGI’s shareholder non-executive director on the PO board in 2018 where he remained until May 2023. Briefed by Callard in reassuring terms on Parker’s ‘Chairman’s review’ (in fact the Swift review), Cooper didn’t dig. If he’d seen the Swift report, he says, it could have been transformative,

“it basically is saying the company had never assured itself properly that the system actually worked, and I think that would have given me, you know – so when the management team or the lawyers were saying in the context of the litigation, “Well, the system is fine, it works, you know, there’s no systemic problem”, comparing that with the Swift Review recommendations, it begs the obvious question, “Well, how do you actually know that?” And I think that would be the obvious question I would have asked, had I had the Swift Review earlier.

After that, things did not start well either.

The Post Office were reluctant to share information with him and colleagues in UKGI because of legal professional privilege. This, he says, hampered his role until June 2018 when an information sharing protocol led to him obtaining a copy of a merits opinion by David Cavender QC on the common issues trial that was due to run later in the year.

At that point, Cooper shared the view of all the lawyers that there was an important point of principle at stake. That was whether the contract was relational or not. But he also thought some of the points being raised by the claimants were reasonable, including criticism of a liability clause that could impose liability without fault on the SPMs, and the suggestion there should be an implied term in the contract: the PO were required to provide a working computer system.

He suggests Jane MacLeod, the PO GC, who incidentally had advised Parker against sharing the Swift review with the Board before Cooper had joined, was unreasonable in her response to these points:

So one of the 23 clauses was, for example, that Post Office should agree to provide a computer system that worked. Well, a working computer system was fundamental to the whole relationship, so it didn’t seem at all unreasonable to me that Post Office should agree to provide that. And I couldn’t under – Jane MacLeod’s initial response to this, when we had our first meeting on it, was to say – I did ask her, you know, “If Post Office loses on these points, what’s your response going to be?”, and she said, “Oh, we’ll appeal everything”.

So that didn’t really make sense to me. It seemed completely, you know, inappropriate for a situation that the company found itself in.

He said he described the liability clause to Macleod and PO lawyers as defending the indefensible and he began to develop a strong sense of frustration about the conduct of the litigation. By the late summer of 2018, with the Common Issues trial beginning in November 2018, he was concerned about the quality of the legal advice Post Office was receiving.

His concern was heightened by Fraser J dismissing PO’s application to have witness evidence struck-out. He says it became obvious to him that the litigation was being handled, “in a very cack-handed way”. Macleod writes to Richard Watson (UKGI’s GC) and others to explain the decision. She makes clear Fraser had criticisms of their conduct of the case, including a lack of cooperative and constructive attempts to resolve the litigation, and that the court had been impugned by an application made for improper purposes.

MacLeod’s response in the email indicates disappointment, refinement of preparation, and a “reactive communications plan”. Communications feature a lot in the planning and risk registers.

Cooper spoke to Richard Watson.

Watson requested a copy of the judgment, expressing surprise that Post Office had been advised to make the application. Once Watson reads the judgment, he reports, “it gave him very considerable cause for concern about the Post Office’s litigation tactics and handling, not to mention the merits of the case itself.”

Tim Parker was invited to read the judgment by Cooper, we are told, and it was raised with Paula Vennells.

A central theme of Mr Cooper’s examination (by Catriona Hodge of the Inquiry team) is whether he did enough with his concerns? This may be one reason he might want to blame the lawyers.

He was at pains to suggest this was very late in the day and there were limited things he could do that would have any influence. The strike-out judgment came in mid-October with the hearings due to start in November: “one minute to midnight” as he put it.

He felt his advice to the PO and their lawyers was being ignored and he did not get a lot of support from other members of the board either.

A meeting with the permanent secretary and minister took place but this seems to have had a limited agenda, hamstrung by the lack of a pre-meeting. He reports other occasions where he tried to speak to the Department and particularly the Minister and a generally passive response from the civil servants he did engage with.

He was also receiving complaints about being too intrusive in his role as a non-executive director. Interestingly, Sir Wynn asks him who conveyed these complaints to him.

His answers are: Jane MacLeod, Rodric Williams, and the Finance Team/Al Cameron.

Shortly after the strikeout application, he apprehended a link between the common issues trial and the conduct of past prosecutions. In essence, he wondered if Post Office were not able to establish proper contractual relations, how could they have prosecuted these people? He had been picking up from the press and so on the potential for the Bates case to lead to miscarriage of justice concerns and concerns about coercive behaviour more generally.

Interestingly though, he says unfair prosecutions had not been identified as a risk at board level by this stage of his involvement as a board member.

He says there was a very strong sense that because sub-postmasters had mainly pled guilty dealt any concern about unsafe prosecutions could be seen off:

Thomas Cooper: …I think the backdrop to this on convicted postmasters was that it had very little profile in any of the discussions we had – in the Board at this time or in my discussions with the management team. There was a very strong sense, I think – two things I think I took away from it, and I can’t date when these – when I got these impressions, but the first was that the majority of people who’d been convicted – and we had no idea about numbers – but the majority had pleaded guilty to the offence concerned and, secondly, that a guilty plea would, if you like, trump anything else.

If a postmaster had pleaded guilty, they were guilty of something and, you know, it didn’t – effectively, what had happened to get you there and to get the conviction in place, sort of didn’t really matter. And that view, I have to say, persisted for a very long time. I remember, you know, when Brian Altman first came to the Board in early 2020, that was my takeaway from the first meetings we had with him.

So this was a very strong view.

And:

Ms Hodge: You said, Mr Cooper, in your evidence just now that the consistent advice you received, including from Brian Altman QC was that a guilty plea really was the end of the matter.

Thomas Cooper: Yeah.

Ms Hodge: But you seem – you were raising here the possibility that that might not be right, if the Post Office had coerced a subpostmaster into submitting a guilty plea, in return for dropping a more serious charge?

Thomas Cooper: Well, even if they hadn’t, I mean, the fundamental point was, you know, if the money – if the postmaster wasn’t responsible for missing money, then how could they be guilty of a crime?

Ms Hodge: Did it occur to you at the time that, if the points you were raising in this email were correct, that a very serious miscarriage of justice might have occurred?

Thomas Cooper: I think so, but I – this discussion I don’t think developed. From memory, I don’t remember receiving an answer to this email and I think I moved on because there were other things going on. And I didn’t really come back to it until after the Common Issues judgment and when we were discussing the appeals strategy.

The email he refers to is sent by Cooper to the general counsel at UKGI, Richard Watson (and others). It seems to raise the possibility miscarriages of justice. What they did with it is an important question. We do not hear an answer, although he thinks his email went unanswered.

Perhaps to deflect criticism that nothing seems to have been done about this, he suggests that the risk of miscarriage of justice cases is raised obliquely on UKGI risk registers. His broader discussion of risk registers is a bit inside-baseball but I would say, to be fair from a position of limited knowledge, it suggests an unhealthy satisfaction with paper systems.

He says he does not remember whether he brought his concerns about the potential miscarriages point to the attention of the Post Office Board. The absence of response from the UKGI/BEIS teams is perhaps emphasised by him saying that, in general, the BEIS legal team had been quite closely involved in the litigation, and were feeding advice up to ministers, but he was not getting a lot, if anything, back by way of questions or requests for meetings from the departmental team.

By December 2018, he says he had lost confidence in the PO legal team. He explains his ineffectiveness in acting on this as being explained by his being in a minority of one: the company was still expressing great confidence in the outcome of both the common issues trial and the forthcoming Horizon trial. He portrayed his view as one amongst many and he was not expert on legal matters.

He is implicitly criticised for allowing the UKGI register to suggest as mitigations against the litigation risk an external legal team that he apparently no longer had confidence in. If he was there to provide intelligence to the Government, why had such an assessment stood, was the essential line of attack here.

On 8 March 2019, the draft common issues judgement was sent round the Board by Jane MacLeod. She tells them they lost in all material points, have been criticised comprehensively on operations, behaviours, and conduct of the case; their witnesses have been criticised as extraordinarily partisan [they were criticised for worse than that too of course]; and the branch trading statement can’t be relied on as a statement of accounts. They are working on an appeal, she says.

Cooper asked for a copy of the draft judgment. His witness statement, we are told, describes him feeling shocked when he learned the basis of some of the Post Offices arguments. He agreed with the judge’s characterisation of PO positions as unrealistic:

Ms Hodge: Please can we take a look at what you say at paragraph 167 of your witness statement, please. It’s at page 79. Paragraph 167, thank you. This paragraph reads:

“I was also shocked by some of the flaws pointed out by the judge in [Post Office’s] processes, including for example the inability of [subpostmasters] to effectively dispute items, the unfairness and oppressive effect of having to ‘settle centrally’ before disputing an item and the inadequacies of the branch trading statement. I thought POL’s Legal Team would have been more fully aware of these points in the run-up to the Common Issues hearing. There were major defects in [the Post Office’s] processes and therefore in [Post Office’s] case. But none of these issues had been brought to the attention of the subcommittee nor, if they were ongoing in [Post Office’s] business, the [Audit and Risk Committee] and the Board. I also reflected that these flaws did not seem to have been brought to light in the past by any of the safeguards that the company had in place, including internal and external audit. It was also shocking to learn that some of [the Post Office’s] witnesses, particularly Angela van den Bogerd, had been heavily criticised. Justice Fraser said she had not been frank and had sought to mislead the court. My view, which I believe was shared by other members of the Board, was that the Legal Team had comprehensively mismanaged the litigation.”

He saw mismanagement as being by the whole legal team not just the in-house lawyers and he includes independent counsel.

A board meeting was convened for 12 March 2019 which was attended by David Cavender QC who told them they have strong grounds of appeal.

Ms Hodge: When he advised the Board that the Post Office had strong grounds of appeal, you questioned that advice; is that right?

Thomas Cooper: Well, I think, if I recall, the preamble – there was important preamble to understand what had gone wrong and I remember challenging Jane MacLeod, for example. I mean, one of the things that horrified me about the ruling was the argument that Post Office’s counsel had put forward that – in relation to contracts, that even if a subpostmaster had not signed their contract, they were somehow meant to be bound by a contract that was left in a cupboard somewhere in the branch by their predecessor. And I thought this was risible as an argument.

And I challenged Jane on this in the meeting and said, “Who advised us – who advised the company to argue this?” And she said something like, “Well, if we hadn’t done that the whole Post Office edifice would have crumbled”, and it was at that point that I thought, you know – I’d completely lost confidence in the Legal Team at that point.

So before we got to the appeal part of the discussion, you know, there was a short post mortem on the hearing itself.

Ms Hodge: So far as Mr Cavender’s advice is concerned, to the effect that there were strong grounds to appeal the judgment, you say in your statement that you considered that he was not considering the judgment sufficiently objectively; is that right?

Thomas Cooper: Yes, I mean it struck me that there were significant – on a reading of it, a lot of what Justice Fraser was saying, it seemed to me, made total sense and I thought it – personally, I thought it was premature to talk about appeal when we hadn’t actually evaluated the judgment itself and worked out which parts of it the company actually agreed with and which parts they really disagreed with and on what basis they disagreed with them.

It seemed to me that was an important exercise to go through first before you started talking about appeal.

Ms Hodge: So, in a nutshell, your concern was that there was a knee-jerk reaction –

Thomas Cooper: Yes.

Three days later further advice was received via MacLeod on bringing an appeal against judgement. Neuberger’s advice is referred to:

“Attached is Lord Neuberger’s preliminary advice … as you will see in paragraph 5 [he] states that although he has only looked at the issues very cursorily, ‘at least some of them raise quite significant points on which the [Post Office] has a reasonable case, and at least on the face of it, some points on which the [Post Office] has a pretty strong case’.

“Further however, he suggests … that if we wish to rely on the ground of procedural unfairness at an appeal, then ‘[Post Office] has little option but to seek to get the judge to recuse himself at this stage’ and … that if we fail to act promptly during the Horizon trial we ‘risk being held to have waived [our] rights, or at least weakened our position on the recusal [application]’.”

Cooper says he was astonished on reading the email:

there hadn’t even been a proper post-mortem on the judgment itself and, you know, the company’s Legal Team were talking about taking very extreme action, in my view, without having considered it properly.

He sought advice from Alex Chisholm which Richard Watson (as UKGI’s head lawyer) replied to advising against participating in the decision on the recusal application as the shareholders representative. Various other people weighed in, in essence stating a preference that he not participate in the decision but also suggesting that he might ensure the board fully realises the seriousness of what is being proposed before standing back.

He “felt very strongly that [the recusal application] was a very rash thing to do”. No one was contemplating him voting in favour of recusal and it seems clear that UKGI and BEIS main concern was to distance themselves, and the Government, from being involved in the decision.

It seems car-crash litigation, now with a gaping wound, was to be stood back from for presentational reasons. Cooper tries to offer a more kindly explanation, the desire not to be seen to interfere in operational matters. Arms-lengthness. Tricky, innit. Expensive, also.

Given all the advice to stay out of it, he did so. Whilst he knew he could have acted contrary to the advice, he says he felt constrained by his principal’s (the Government’s) instructions.

By this stage Cooper had been told he thinks that Grabiner’s advice was “even stronger” than the Neubergers’, although he had not seen any advice from him.

The jerk of the knee got stronger; we all know how that ended.

After the Horizon trial, which is not discussed in any detail, he is asked if anyone was asked to resign. He says only Jane MacLeod was asked to go. No one else’s role seems to have been under consideration. They concentrated instead on replacing the existing legal team (Womble Bond and all the barristers from Grabiner’s chambers).

Tim Moloney KC extracts some interesting information about PO being advised against action for disclosure failings because the PO had known for more than six years about problems with Horizon. The Board were advised about this twice it seems.

Ed Henry KC uses his time to take us to a note of a very interesting meeting in January 2020 between Brian Altman (KC), Roderic Williams, Nick Vamos (of Peters and Peters instructed on the criminal appeals for the Post Office) and others. At that meeting, it is said that on cases going to the CCRC:

“CCRC agenda – want to make sure got [documents], got right people, bow around it to give to counsel. Need to start reading CCRC files now. Feel from Board that they will go with wide review. We have material for 34 [applications] to CCRC [including] Misra/ Hamilton/Thomas/McDonald. Board’s concern is that there is a narrative and we’re just letting it go. Board desperate to decide whether to take pot shots at Misra.”

It is suggested by Henry that this must be Rodric Williams view in the meeting.

Cooper denies the Board wanted to take pot shots very flatly indeed. Indeed he suggests that what Williams apparently says in this note is the exact opposite of what was in the mind of him and the Board.

Henry also suggests, based on the note, that Cooper may have been researching SPMs to undermine people like Misra. Cooper says it is the opposite. He had been researching cases out of a concern to counter some of the things being said by the Post Office which he was mistrustful of.

And further suggestion is made: that the Board had requested any review not advise on the safety of convictions but only on disclosure.

This is also flatly contradicted by Cooper.

He describes the note as being entirely contrary to what Board’s actual intentions were:

Thomas Cooper: No, absolutely not. I mean, the Board’s perspective on this was that, clearly, as far as the company could possibly do so, this situation of the postmasters concerned, who had been convicted/terminated/harmed in any way, needed to be compensated/resolved/apologised for in every way – you know, in every way possible and this was the opposite of what the Board was trying to do.

Cooper says the Board’s instructions are being “totally reversed” in this note. Part of his argument is supported by a contemporaneous email from him which says:

“Josh has a list of the cases that have been covered publicly. I’d like to have a dossier of these cases which includes the claimants’ side of the story as a check against what POL will show us.”

Thomas Cooper: Yes. Yes, I wasn’t trying to check what the claimants were saying; I was trying to check what Post Office was saying. I mean, you have to remember, I had – Post Office’s record in providing me with accurate information about individual cases was woeful and I didn’t trust what I was hearing.

When taken back by Henry to his losing confidence in the legal team in the summer of 2018 and why he did not make his concerns known:

Mr Henry: But did you make your concern known, even if you felt “It’s not a matter for me but my concern at least should be relayed to the lawyers so that it can then be forwarded to the experts”?

Thomas Cooper: I don’t recall what I said, but my – dealing with the Legal Team at that point in time was dealing with a brick wall. I might be exaggerating slightly but that was how it felt. They were completely – you couldn’t get any traction with these people on anything.

If Cooper’s evidence is accepted by the Inquiry it will prove very interesting indeed. These last points, in particular, suggest Williams stating the Board’s intentions in ways that may have limited the criminal review work, assisted in any cover-up, and sought to weaponise criticisms of SPMs like Seema Misra.

We do not know where Williams got this view of the Board’s intentions from, but what Cooper’s evidence suggests is that the lawyers, including Jane Macleod, who as far as we know continues to refuse to give evidence, and resides in Australia, may have been both inept, over-confident, and dominant on key decisions.

The case that the lawyers worked deliberately or otherwise to keep the PO Board in the dark now has several strands to it. This, if Cooper’s evidence is accepted, is one more.

A final point, a question from Ms Shah for the NFSPMs, raises why the SPM contract has not been changed post-Bates. Cooper tells us it was dealt with by guidance instead; the Post Office said they were going to interpret the contract in line with the common issues judgment.

I can’t imagine anyone outside the Post Office having any confidence in that, can you?