Remote truth

How can lawyers deal with cases where clients and their witnesses repeatedly mislead? The first post on Anthony De Garr Robinson's evidence to the Post Office Inquiry

Anthony de Garr Robinson KC (Tony Robinson) evidence was all about the game of civil litigation and whether he was a tool of devious or incompetent clients, and he (as with almost all the witnesses) was simply performing his role, a victim of circumstance where no one is ever quite in charge. No one is seen to be the one pushing the buttons.

In these next posts, I am going to conduct some preliminary analysis of his evidence.

The first thing we learn is something of why Mr Robinson was hired. Jason Beer KC takes him to what he describes as a “beauty parade” meeting in 2016 to discuss whether he might be instructed. Mr Robinson recalls, “a discussion about a point which involved some real concern for [the Post Office].”

You’ll guess by now it was one of two things: back doors or bad experts. This time, it was remote access.

He was told,

“on the basis of information provided by Fujitsu, [the Post Office] had on several occasions formally confirmed that it was not possible for anyone to use Horizon to alter branch transaction data remotely (something which became known as ‘remote access’). [The Post Office] now knew that this was possible, and the question was how to manage this problem. I said that [the Post Office] should be open about it, and not try to hide anything.”

It is notable that remote access was seen as an issue to be canvassed with candidates at a Beauty Parade. It is also, the Inquiry’s counsel notes, a point in his favour when he was chosen to lead the case. Unbeknownst to Robinson, the PO’s then GC (Macleod) is reported as thinking he grasped the “political significance of the case”. In his evidence, he relates this to his grasping the “sense of embarrassment and concern about the fact that statements had been made regarding remote access”.

This grasping of the concern is particularly interesting as he concedes that remote access remained a very significant issue throughout the case because the Post Office [for which he seems to blame Fujitsu] continued to say things about remote access that were incorrect and had to be corrected to his significant embarrassment before Fraser J. His early entreaty to be open and not try to hide anything about remote access, it seems, fell on ground that was not very nourishing. One is entitled to wonder how he re-enforced the message.

In other respects, he says, the case was just normal commercial litigation (putting aside the calamities once the trials approached), and there was nothing otherwise political about it.

As with several of the lawyers instructed on the PO cases over the years he begins with an acute grasp of some critical, problematic issues for the client, raised as he is “reading in” to the case questions about:

• the propriety of the basic approach to recovering losses against SPMs;

• when PO became aware of remote access and whether this suggests they have been relying on misleading expert evidence (he doesn’t think he knew about the Jenkins problem at this stage);

• whether that makes any or all of the convictions unsafe and whether further reviews of convictions ought to have been conducted on the basis of either the potential expert problem and the remote access problem;

• how SPMs could check for transactions beyond the 42/60 day period that full transaction data was retained for;

• why PO refused to mediate some cases the working group recommended they should mediate;

• how far can they/should they go in criticising Second Sight (whom he regards as producing one-sided reports) and what demonstrable errors have they made; and,

• did they, and why did they, cut Second Sight’s work short?

These questions get a “cursory” response from Mr Parsons, the solicitor for Bond Dickinson (as was). We don’t really get to hear how far these questions were answered beyond that. The implication seems to be he just noted the cursory answers and moved on as he read into the case.

Instead, we get to hear how, during the course of the case there are a series of unfortunate events which he describes as “extraordinary” stories, disclosure of 5,000 KELs and (separately) PEAKs that were disclosed late where it becomes clear to him at the time, that on instructions he had misled the court. For him, it was a “horrifying experience”. He had told the court Royal Mail had declined to produce reports which, in fact, they had never been asked for.

Mr Beer: Would I be right in thinking that the whole process of representing the Post Office, in terms of the disclosure exercise, was a very uncomfortable experience for you?

Anthony Robinson: Towards the end, when the errors became apparent, if I can call them errors, yes, it was – very much so. In the early stages, at CMCs, and so on, when the parties were seeking to agree orders for disclosure and the court then made orders, I wouldn’t – I wouldn’t have been frustrated or found that difficult then. But it’s later on –

Mr Beer: Because you didn’t know the true position then?

Anthony Robinson: Yes

Did he cease to trust his client, he is asked? He says is going to give a long answer. It is not that long, but it is a little cryptic.

There’s a question of trusting my client and then there’s a question of trusting my instructing solicitors. In relation to trusting – in relation to trust, a significant portion of these problems were problems caused by difficulties at Fujitsu. I’m using a deliberately portmanteau term because I really don’t understand what those difficulties were.

It's an interesting and (I imagine) rather terrifying problem for someone leading such a massive trial. Someone on his side is telling porkies or making significant errors of fact. It is happening repeatedly. What should he do? He could cease to act? Some might say should, cease to act at some point, although doing that at such a late stage would have been very difficult indeed.

It’s not an issue picked up by the Inquiry, so I will not explore that route.  

Or perhaps he could have been much more robust and demanding in testing some of the statements that were made. He was asked from time to time about these events and how he looked into them.

I’m sure I would have wanted – every time it occurred I would have wanted to know what occurred but I wouldn’t have conceived it to be my function to challenge and insist on evidence supporting what my instructions were on that point.

He says he probably didn’t probe into them in more depth; he did not “conceive” it to be his job to “conduct detailed investigations into what had gone wrong”. He would have taken an explanation that Fujitsu was the cause at face value. He would not have probed further.

To remind him it was not all about Fujitsu, he was taken to matters where it seemed Mr Parsons might have been partly at fault: the claim that the Known Error Log (KEL) was irrelevant, the false assertion that the KEL database was beyond PO’s control, and the “plainly wrong” and “absurd” claim that the Known Error Log was not a document.

In spite of problems piling up as the case advanced to its conclusion, not all of which were attributable to Fujitsu, and a documented warning from Mr Robinson at the time not to risk appearing “defensive, obstructive and possibly even evasive about the KEL”, he says he does not think he “would have inferred a particular attitude on my clients part.”

Part of the justification for his response suggests that complex litigation moves in fits and starts, bursts of activity, and patterns of this kind might get missed by him whilst he fought the fires that flared up with increasing frequency on this rather difficult case.

It's an interesting problem. Mr Robinson gives an indignant defence of his duty, when being examined by Ed Henry KC at the end of his evidence, to act on his instructions. He is asked why he did not question his instructions on KELs. He interprets the question as his early instructions on KELs

Anthony Robinson: …there was absolutely no basis, back in 2017, July 2017, when the defence was served, there was absolutely no basis to question those instructions, and you have not suggested a single reason why I should have refused to accept what I was told and insisted on cross-examining my clients and insisting on further evidence. If it’s a principle – if one were to conduct complex litigation on the basis on every single point that a client needs to produce evidence to his barrister to satisfy the barrister that the point is actually right, it would be impossible ever to draft a defence.

Mr Henry: But again and again, as is clear from the Horizon Issues judgment, again and again, in particular, for example, information received from Mr Parsons was shown to be wrong?

Anthony Robinson: Not when the defence was served in July 2017.

Mr Henry: But, as the case continued, perhaps, did it ever occur to you that you had been misled?

Anthony Robinson: I’ve described my experience of the case and how unsatisfactory my instructions are in my witness statement. I think to say “misled” – I was certainly misled about whether the Known Error Log was in Post Office’s control and I – and certainly I would have thought Post Office as well – from my perception, Post Office as well – was misled about whether it contained any issues that would have been relevant to the GLO proceedings. So, on that question, yes, I certainly accept that I was misled and, as I say, I was very surprised when I discovered the truth.

Mr Robinson advanced a legitimate view on the early stages of this encounter. The Bar’s Code says (gC6):

You are obliged by CD2 to promote and to protect your client’s interests so far as that is consistent with the law and with your overriding duty to the court under CD1. Your duty to the court does not prevent you from putting forward your client’s case simply because you do not believe that the facts are as your client states them to be (or as you, on your client’s behalf, state them to be), as long as any positive case you put forward accords with your instructions and you do not mislead the court. Your role when acting as an advocate or conducting litigation is to present your client’s case, and it is not for you to decide whether your client’s case is to be believed.

I suppose the question is raised as whether, later on in the case, his attitude to the client’s instructions at face value should have required something more. A Barrister’s duty not to mislead the court: includes, “being complicit in another person misleading the court” and can include doing so recklessly (which means), “being indifferent to the truth, or not caring whether something is true or false”. It might be said that a client who repeatedly, through whatever cause — the unreliability of Fujitsu, or the errors or worse of his instructing clients and/or solicitors, may demand something of a response.

Whether a professional regulator would be willing to see a pattern that amounted to a willing blindness to (what appears to be) Post Office lawyers error, mendacity or incompetence is difficult to predict. On the evidence as it stands, on the points above, I rather doubt they would. All we have from the Inquiry evidence is he did not see probing into the problems further as part of his job.

The Bar (and its regulator) allows its members, by design, to be very credulous of its clients; the question would be, in essence, did the trajectory of that case break the prophylactic provided by an entitlement to believe? Although it is worth observing that a vigorous regulator, or a sceptical court, might not depend on a narrow interpretation of whether the court was mislead; independence, and integrity, would come into the equation too.

It suggests less controversially that there is a structural problem. Courts and regulators allow clients, especially well-resourced clients, maximum leeway to advance barely credible points as arguable. The one place where such credulity was designed for, the criminal courts, is the one where it is perhaps least present.

In civil cases, if you have the moolah and the chutzpah, you can try more on - especially in the lead up to trial, but as we will see, in the trial itself too.

This is cloaked in the symbolic niceties of the rule of law: my client is entitled to have me make any arguable point, fearlessly (these brave souls), and regardless of any belief in their veracity. A truth but also a convenient simplification to which an alternative simplification can be offered: when does not judging my client shade into complicity in their wrongs?

And of course there are risks to trying it on, most notably of adverse inferences and costs penalties should the judge disbelieve you, but they can usually be managed by settlement. That keeps the egregiously run cases away from trials, and, of course, depends on the judge one appears before.

One of the things that surprises me most is how regularly I am told by experienced litigators and advocates that it is apparently rather rare to have a judge take on egregious case strategy in the way Mr Justice Fraser did. In Bates the litigators were unlucky; they could not settle and came up against a tough judge. They of course thought him biased as a result.

The risks of such aggression, it is to be noted, are usually borne clients not lawyers. It is rare indeed for such decisions to be called to account; rarer than it should be. A point for the courts, and organisations like the Civil Justice Counsel to ponder, not least because such aggression drives up the costs about which they profess to be so concerned.

And because, whether one accepts the explanations given above or not, it is an approach that risks abdicating responsibility for the truth that is put before the court. In the next post, we will scrutinise a more positive act. And if it does not involve remote access, you will guess that it relates to Gareth Jenkins.