Partial facts: Lee Castleton's case I

The Inquiry took evidence from several of the lawyers involved in Lee Castleton’s case recently. The central narrative hanging over all of this was Mr Castleton’s allegation that the lawyer instructed by the Post Office to conduct civil proceedings had said, in the run-up to his trial, “Lee, you must understand you don’t need to go on Wednesday we were surprised to see you today…. But Lee, we are the Post Office, we will ruin you.” I plan to return to that in a later post. For now it is sufficient to know that Castleton’s case ended in his defeat, a litigant in person in the High Court, with a massive bill for the Post office’s costs which led to his bankruptcy.

Recent Inquiry hearings have provided substantial insight into how evidence the Post Office put before the courts (in this and other cases) through witness statements and disclosure was substantially more helpful to the Post Office than the facts on the ground. In simple terms the courts and the Post Office’s opponents were misled. A question for the Inquiry was how did this happen? Was it mere accident, incompetence, unprofessional, criminal? All of the above?

We start to see some early answers in Lee Castleton’s case. As such, it provides an interesting case study of how evidence was constructed under our adversarial civil justice system when the Post Office sued him for alleged shortfall debts in the mid-Noughties. To put it neutrally: what we have seen in recent evidence sessions is how partial evidence was put before the court and PO opponents. Partial in two senses: it was incomplete and it unfairly favoured the Post Office.

From a lawyering perspective, presenting the client’s case in the best light is part of the professional skill of a lawyer. I am not generally obliged to help my opponent make their case by making their arguments for them, certain points of law aside, nor am I required to draw attention to or reveal adverse facts (although I am obliged to make reasonable searches of documents containing such facts and disclose those to my opponent). It is an adversarial system after all, but one in which professional standards should be adhered to. The critical point is that I must not do so in a way which is misleading or, if a solicitor, in a way which takes unfair advantage of my opponent. Litigants, such as the Post Office, are also not supposed to bring cases for collateral purposes. I cannot for instance bring a libel claim against you to ruin you rather than to vindicate my reputation.

What we saw in the evidence of several of the lawyers on the Castleton case was how these ‘partial cases’ come to be constructed. Evidence which helped the Post Office case, but which was wrong or unreliable was included; evidence that damaged the Post Office’s case was quietly dropped or massaged away. Whilst it all felt very tactical, not least when interpreting disclosure obligations, I am not suggesting this was done mendaciously. Whilst it might have been, the Inquiry’s questions did not really delve into that possibility. However, we can see in counsels’ lines of questioning a general concern about lack of independence and a lack of forensic quality (perhaps objectivity would be a better word) in the way lawyers working for the Post Office handled evidence. Counsel to the Inquiry similarly also confronted witnesses, on occasion, with the rather self-serving nature of their own interpretation of events.

Let me begin by illustrating how the lawyers tended to accentuate the positive in evidence for the Post Office on a sometimes flimsy or non-existent basis.

Helen Rose’s two witness statements in the Lee Castleton case contained a significant error. Her statements said that when an audit was conducted of Castleton’s branch, the safe was found to be open. Stephen Dilley said that this was included in essence because it was prejudicial to Castleton, rather than being relevant to them proving the case against him. Dilley had included reference to the same ‘facts’ prominently in his own statement to the Inquiry. Reheating the prejudice if you like for a second serving. Trouble is, it was not true, and documents appended to Rose’s witness statement showed the statements to be untrue. Dilley had in effect missed the significance of the documents and drafted a statement he was forced to concede to the Inquiry was prejudicial to Castleton and not material to the case brought against him. I surmise this was done carelessly rather than deliberately; he was not really asked to explain how it had happened and simply blamed the witness. That was her evidence, he said, not his. He just relied on it. In fact, it seems likely he had carelessly (or perhaps deliberately, but we saw no evidence of that) put those words into her mouth. If he had understood the documents he appended to her statement he would have known they were untrue.

Interestingly two other witnesses in the case expressed concerns about the statements Dilley had drafted for them. Anne Chambers had described her draft statement at the time as, “full of things I didn’t say or do”.  And Gareth Jenkins, again contemporaneously, pointed out his witness statement showed Dilley had got some of it fundamentally wrong (a description of double entry accounting which relates to an assumption that accounts could be reconstituted from physical documentation); had put points in a way that was too strong, and made points based on incomplete information, points which would require a more detailed analysis to be conducted if he was to make them. In particular,  Jenkins declines to say, “there are no grounds for believing that the problem Mr Castleton’s experience with his computer would have caused by the theoretical or real losses,” without looking more closely at what had gone on.

Jenkins’ comments do not appear to be responded to. Dilley did not recall receiving them, but acknowledges that he did not follow up loose ends on Jenkins’ draft statement. This he said was because Jenkins was dropped as a potential witness, not because he was now helpful but, the Inquiry was told, because they regarded his evidence as opinion evidence, which was more suitable to be contained in an expert report.

Chambers was called to give evidence against Mr Castleton. She was an employee of Fujitsu like Jenkins. Fujitsu ran the Horizon computer system. The evidence giving caused her some discomfort. She felt compromised and asked to give evidence broader than she was happy with, akin to an expert’s. She was also aware of documents relevant to her evidence which she wasn’t sure she could discuss as they hadn’t been disclosed.

Independent expert evidence is commissioned from BDO Stoy Hayward. Interestingly BDO were plainly sensitive to the broader importance of problems in Horizon to the PO beyond Castleton, and they wrote to warn their lawyers that they have found “some indication of possible problems with Horizon” from their initial review before they report. These problems produce small, in pounds and pence terms, errors but errors which are conceptually significant: they indicate that sometimes double entry “is not being put through” on Horizon; a fact of some significance to Castleton’s case.

Their final report is written in draft and not finalised on Dilley’s instructions. Dilley has a rather long list of reasons why it wasn’t finalised: they hadn’t received an expert report from Mr Castleton; the court had said they couldn’t adduce expert evidence; counsel was satisfied the case was made out on witnesses of fact; BDO would have had to correct factual errors in the draft and there wouldn’t have been time in the seven days prior to trial to do that; and counsel advised not to disclose it.

It seems that the errors that BDO had found were also not disclosed. Dilley says as the report from BDO was not disclosable he cannot see how the information within it was disclosable if the report itself wasn’t, nor did he see it as providing any incentive to look further. I think this is probably wrong; whether he thought about it at the time or not, the report should have put him on notice to documents that should have been disclosed. The unhelpful facts contained in the report which presumably had their source in documents or electronic records were therefore hidden from view. And so a helpful piece of evidence for Mr Castleton (and the court) disappeared from view.

There were example of errors arising which were disclosed. These came from a Mr Booth, who took over from Lee Castleton as an acting sub-postmaster. Whilst initially he did not experience any problems with Horizon,   when he discovered errors in the system they were disclosed. Before doing so Dilley was reassured that it was “user error so it was benign”. He was also reassured that Booth didn’t think such errors could give rise to large transaction errors. This is one of several quite clear instances where lawyers were rather credulous when reassured about problems with Horizon. Booth had no expertise, as Inquiry counsel pointed out to Dilley, with which to make such claims. Interestingly Anne Chambers in her evidence subsequently indicates that she does not think the problems Booth discovered should have been categorised as user error; the evidence on the disclosed error was thus inaccurate. The source of the user error reassurance is not clear to me, but it seems not to have come from a robust source.

There are two other matters that relate to disclosure.

First, It became known that the Horizon helpline over the period that Mr Castleton was having problems had received between 12-15,000 calls per month. This was plainly helpful evidence supporting  Mr Castleton’s case that Horizon was prone to errors. Mr Dilley decided disclosure of such evidence was not reasonable because it would cost £2-3000 to do so (overall costs for the whole case were of the order of 100 times that). He also claimed he did not want to drown Mr Castleton in unnecessary disclosure. It will be interesting to see if the Inquiry accepts these claims; whilst one can see how Mr Dilley would seek to justify non-disclosure on costs grounds, it is harder to see how this disclosure decision was objectively justifiable on costs grounds. Mr Dilley is not helped in arguing professional balanced decision on disclosure by emailing Mandy Talbot (in-house lawyer at the Post Office) on an earlier disclosure request saying that he is looking for ammunition with which to decline it.

Secondly,  just before or during trial, the Callendar Square Bug came to the attention of Post Office lawyers; it was not disclosed to Lee Castleton. Post Office’s counsel (Richard Morgan) identified that the Callender Square bug probably needed to be disclosed, but decided to delay that disclosure. Anne Chambers appears to have reassured Dilley and all the Post Office that the Callendar Square bug could only occur where there was “individual unit stock balancing” (the implication being here that it was not relevant to Castleton’s case). And in any event, the question of disclosure is overtaken by events during the trial. Whatever the ins and outs of the situation it is suggestive of a reluctance or slowness to disclose potentially damaging information.

Whether one thinks of it as one-sided or simply error strewn, it is interesting to think about the drivers for this to the evidence and its disclosure. As noted above, the adversarial approach to litigation allows (demands perhaps) putting the best gloss on a client’s story and telling the best story consistent with not misleading the court (or one’s opponent, who must also not be misled). It also demands providing proper disclosure and taking unfair advantage of your opponent. Whilst it is concerning to see such a tactical approach to disclosure and evidence, rather than seeking to analyse whether those duties have been breached, let us focus on how the lawyers here went from a position of some scepticism in the Post Office case to such a robust, perhaps one-eyed, defence.

When Dilley first becomes involved in the case he starts off by saying to the Post Office that Castleton’s defence looked like it had merit, and it's to be noted that related requests for information from Fujitsu and for expert evidence were ignored around this time.

The case had gone pear-shaped early, pre Mr Dilley. Castleton had judgement entered in default for his counterclaim and this provoked the Post Office to put Mandy Talbot on the case. She started from the presumption that Bond Pearce had messed up in issuing the case in the first place (in fact Bond Pearce could show, it seems that “PO managers” had instructed them to issue the case) and allowing default judgement to be issued (it looks like the case had passed through at least two other fee-earners hands before it arrived on Dilley’s desk so they might well be right that Bond Pearce messed up here).

Either way, Post Office were seeking to put Bond Pearce on the back foot and at a time when Post Office’s internal lawyers were under pressure (Talbot tells us in her evidence that there had been significant redundancies). Psychologically both sets of lawyers were vulnerable to making mistakes through the need to please their client/bosses perhaps.  

In an early encounter, Dilley starts from the assumption that the Post Office would need to show there’s been a real shortfall; Talbot pushes back saying, “if the Horizon evidence is not up to the job, this will have serious ramifications for the business.” Through this line of thinking the Castleton case becomes, rhetorically at least, a battle for the reputation of Horizon and the survival of Post Office as a business. Rightly or wrongly, it becomes seen, at least in some of the rhetoric deployed by Talbot, that this litigation is a case of existential seriousness for the business. Talbot puts down a powerful marker of the importance of the case and winning it to the client.

In a subsequent post I hope look at some of the ways in which this played out in strategic terms, but for now I want to remain with what convinced Dilley to shift from his position of apparent early scepticism to one of belief in Horizon. To simplify somewhat, but meaningfully I think, what happens is a process of reassurance rather than assurance as to the reliability of Horizon. It is about persuasion (or pressure) rather than robust evidence.

Dilley is given reasons of uncertain provenance and value to say why Castleton’s allegations must be wrong (see above as regards Booth for instance). He thinks initially Jenkins’ evidence is stronger than it is. He gets caught out by counsel to the Inquiry making assumptions the system’s working which are unfounded, “how on earth could you know that, though?” he gets asked, “Are you an expert on the Horizon system?”

Dilley’s belief in the system centres on this, “when we put the point to the Post Office “is this system robust”, whenever we put those points they came back and said that that’s what they believed.” In response to the errors in the BDO report, Dilley tells his supervising partner, “there will probably turn out to be a rational explanation because I have met Fujitsu and they are utterly convinced of the integrity of their system.” Conviction trumped evidence and expertise.

Dilley is subject to powerful psychological forces here. Psychologically he is motivated to win; this discourages attention to negative evidence and encourages emphasis of the positive. He must contend with motivated blindness and confirmation bias. What Dilley appears to be convinced by is social proof, the reliance on the perceptions of others, and their apparent conviction in its reliability, to validate Horizon. His clients and, belatedly and less strongly than he hoped, their contractor were telling him Horizon was reliable and giving him arguments as to why it was reliable. Independent evidence that Horizon was reliable was thin on the ground and when that evidence surfaced problems they were discounted (errors are small, the evidence is not disclosable). Facts prejudicial to Castleton’s case were emphasised when, had they been scrutinised, they would have been shown to be wrong. Whilst evidence prejudicial to Castleton was emphasised unhelpful facts to the Post Office (and most notably the robustness of Horizon ) were scrutinised, challenged, qualified, explained away without on spurious grounds, and dropped from view in the shelter of litigation privilege.

The result was Lee Castleton did not have a fair trial.  Unrepresented and sick with a anxiety at the time, his life was ruined as a result. Whether this is the product of the normal biases of the adversarial system or something more troubling is something the Inquiry will have to grapple with.  There is no question but that misleading evidence was presented to the court in Castleton, and it is strongly arguable that disclosure was inadequate. In some ways the ordinary biases of the adversarial system are troubling enough: they appear to have driven prejudicial inaccuracies in Roses and Booths evidence and failures to disclose evidence of errors of significant import. That the lawyers involved can with hindsight and carefully curated statements offer justifications based on the rules is unsurprising. The question will be does the Inquiry believe those explanations and if they do not, what kinds of criticism they will make.