The First Flat Earther vs Lee Castleton
We take a deep dive into the strategy behind the case that ruined Lee Castleton and its implications. Is a court system that posits an overriding principle of justice too quick to submit to tactics?
The Post Office Scandal shows that courts and the professions need to urgently consider the role of litigants in person and a fundamental misalignment between the court's overriding principle (justice) and the well-resourced litigant’s lawyers (adversarial excess).
That is one of the conclusions we think flows from our analysis of evidence given to the Post Office Inquiry by the barrister responsible for handling the Post Office’s case against Lee Castleton’s, Richard Morgan (now KC) (See Working Paper 7: the First Flat Earther).
Mr Morgan developed the legal argument central to the Post Office’s civil case against Lee Castleton, a subpostmaster who ended up defending himself from Horizon shortfall allegations in the High Court against a legal team that cost over £320,000 in 2006. It led to his bankruptcy.
The same strategy formed a central part of the Post Office’s thinking in subsequent cases and provided a legal rationale for insulating Horizon from legal challenges without proper evidence of its robustness. This was the genesis of the flat earth strategy so roundly criticised in the Bates case.
The civil justice system is supposed to be geared towards truth-seeking and justice, whereas many lawyers working within the system see their role simply as winning. Tactics over justice. Our analysis of Lee Castleton’s case shows how the desire to win and justice can become misaligned. The problems are particularly acute when one side is unrepresented.
In Mr Castleton’s case, the Post Office’s barrister developed a case based on what the Inquiry counsel, Jason Beer KC, has called a “nice little legal point,” which helped completely tilt justice against Mr Castleton.
That nice little legal point was that under the contract, if Mr Castleton had signed the accounts (as the contract required), he could be taken to have agreed to them unless he could show the accounts were wrong. This ‘Chancery point’ (named after the area of legal practice from which the barrister comes) meant the Post Office did not have to prove their Horizon system worked or that the accounts were accurate. They were signed and that was enough for them to sue.
Given the Post Office also managed not to disclose evidence relevant to whether Horizon was working during the case and that evidence included errors in Mr Castleton’s branch, this is a concerning strategy. Strangely, Mr Morgan took this further when he gave evidence to the Inquiry. He said he had proved the case against Mr Castleton on the basis that Mr Castleton had not challenged the truth of documents (the accounts).
This appears to be wrong. Castleton plainly had challenged the validity of the accounts. The way the tactics were defended by Morgan is a strange feature of this case: why defend the strategy on a basis not supported by the other evidence? A legitimate argument could have been made to defend the strategy (we were entitled to reverse the burden of proof and Mr Castleton did not meet that burden) but was not. It is also odd how Mr Morgan seeks to declaim knowledge of the strategic importance of the case to the Post Office given everything else that was known about the case at the time (and also subsequently, although that is less relevant). He may have been worried about appearing complicit in making an example of Mr Castleton.
The paper considers whether there might be a case for saying the case was run in ways contrary to professional ethics. That would include whether the Post Office’s collateral purpose of making an example of Mr Castleton improperly influenced the barrister’s independence here or was an abuse of process. A professional regulator would also consider if the case was unarguable (almost impossible to establish that here) or run in a misleading way. That (quite properly) is not an easy test to satisfy either.
The case may turn on whether a professional disciplinary tribunal thought Mr Morgan had gone too far in making a legitimate legal argument (that Mr Castleton had to prove the accounts were wrong because he had signed them) into something misleading by suggesting Mr Castleton’s signing of the accounts meant that he agreed them (which was not the case). That suggestion is made repeatedly in Mr Morgan’s cross-examination of Mr Castleton and rebuffed by Mr Castleton. A professional regulator might, though, side with this as a legitimate tactic of the advocate in court. The exclusion of evidence which would have assisted Mr Castleton in rebutting the case might be thought to cast a somewhat different light.
A further possibility that could be considered is whether the case was run with such indifference to the truth as to be recklessly misleading. The disclosure problems in this case might be used as evidence to support this. There were significant questions over disclosure decisions in the case, (only) some of which Mr Morgan advised on. The ‘Chancery strategy’ may have blinded him to the underlying substance of the situation. In particular, an expert report revealed problems in the operation of the Horizon branch run by Mr Castleton. They probably did not have to disclose the report (it was very likely to be privileged, protected against disclosure) but that ‘smoking gun’ should have led the Post Office to disclose the source of its concern: the evidence for the error. They did not disclosure that evidence. A professional tribunal would have to decide if this was justified or not and if not, whether it was a mere slip or such an unreasonable decision as to be unprofessional. There are other examples, some being, it seems, the responsibility of other lawyers involved in the case.
This was but one of the many ways in which the case was run that severely disadvantaged Mr Castleton, who by the trial had run out of legal insurance and so had to represent himself. What the case shows is how far lawyers engage in what was described as the “sophisticated” management of evidence and “nice little” legal arguments for their own clients against vulnerable opponents.
Putting questions of professional conduct to one side, the case is a stark example of the problems posed by an adversarial system that does not adapt well to litigants in person. The Civil Procedure Rules state the overriding principle of the civil justice system is for, “the court to deal with cases justly and at proportionate cost.” And that dealing with a case justly and at proportionate cost includes, “so far as is practicable (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence.”
That was an objective unmet in Mr Castleton’s case often because of the tactics adopted by Mr Morgan and the other lawyers involved in the Post Office case.
Our report contains some criticism of available guidance for lawyers around dealing with litigants in person. One might also raise questions about the adequacy of the law on disclosure if self-justificatory serving disclosure decisions can be taken as casually as in this case. And the courts need to think long and hard about allowing “nice” legal arguments to shift evidential burdens onto those least able to prove their case. There is also the really interesting question of whether the rules of professional conduct, and the law on abuse of proceedings, are properly aligned with the overriding principle.
In Lee Castleton’s case he was subject to multiple disadvantages: he was required to prove Horizon was faulty, without having the evidence available to him to do so, having had some evidence available to him excluded to make the trial more manageable for the judge, and whilst unrepresented. If all these burdens had not been tilted against him it may or may not have led to a different decision. However, it seems reasonable to assume that, at the very least, a flat earth strategy would have been executed with more restraint, if it would have been executed at all, and it would have been more likely to fail.