Litigation? This is normal

Unless things change, Andy Parsons was the last really important lawyer witness before the Inquiry. There was a bit of a sense of anticipation and not just from nerdy old me. The first of three posts.

Anticipation for Andy Parsons’ appearance cranked up during Jason Beer’s examination of Rodric Williams in April. Beer introduced an email from “Ms Prime, who was then recently qualified,” and told us that, “Andrew Parsons [had] contributed to the drafting of it. ….a matter we will take up with others later in the phase.” Satirical website Roll on Friday deployed a mocking graphic for him burying evidence. And we already knew he was the solicitor most centrally involved in the Bates litigation outside of the Post Office.

We all know how well that went. Fraser’s excoriating judgment on the strategy, tactics, and management of evidence was what persuaded me to start digging into the Post Office Scandal over four years ago.

So what was his story? Parsons, looking like a cornered teenager at first, grew in composure. In essence, and with increasing confidence, advancing the idea that he was merely conforming to type. Doing what any litigator would do. This is normal.

Normal being putting the best gloss on what a client tells them that they can. An allergy to apologising. Covering every bit of damaging information possible in putative privilege. Resisting disclosure of material evidence. And deploying strategies that target the pockets of their opponent’s lawyers and the funders of litigation. Legitimately do these things, he would say on each point. And there is a possibility, if the Inquiry believes him on the particulars, that he is right.

That raises two questions: do they believe him on those particulars, and if they do, is his version of normal, okay? The way the Inquiry’s legal team handled the approach to privilege suggests that they do not think so, which opens the interesting question as to whether a challenge to the extent of professional privilege is, or should be, coming or whether the questions will be confined to ones of abuse.

To the outsider, normal litigation may seem like licensed arseholery. It is not entirely uncommon for it to seem like that sometimes to insiders too. Some rather revel in tactical machismo, and as we will see, there are moments that might be characterised as that here, but the point Mr Parsons sought to make was that, as a litigation lawyer, his actions simply manifest the rules of the game; the rules of the game allow him to declaim responsibility for litigation that is simply red in tooth and claw.

The rules of the game approach was perhaps most clearly expressed towards the end of his evidence when he was taken to various advice given, or thoughts offered short of advice (to echo a, to my eyes futile, distinction he drew on occasion), on strategy. Was it legitimate to pressure the funders and lawyers of the SPMs, who had an economic interest in the litigation? He is taken to his witness statement by Counsel, Julian Blake to explain the rationale:

“More generally, as explained above, where it was consistent with my duties to the Court, my client and my professional obligations for [Womble Bond Dickinson] to advise on approaches which had the effect of applying pressure on Freeths and the Claimants’ litigation funder, these approaches would be explained to [the Post Office] as advantages of a particular step or action. However, at no stage did I advocate taking a step purely for this effect. Where this factor infrequently arose, there was always an overarching meritorious reason for recommending a particular course of action, a byproduct of which may have been to place pressure on the opposing Legal Team.”

So you’re setting out there that, at no point, did you recommend that as a strategy, it may be a byproduct of some other strategy; is that a fair summary of that?

Andrew Parsons: What we’re talking about here is what I would call is a pure attrition strategy, where a party takes unreasonable points for the predominant purpose of causing one’s opponent to incur costs. I don’t believe I ever advised Post Office to take such a strategy. There were times during the litigation where there were meritorious reasons to take a point that had a byproduct of applying pressure onto the claimants.

Here, as so often in this story, what is pure or impure depends a great deal on context and motivation. One difficulty for the specific claim made here is that Fraser J plainly regarded many of the points taken in the conduct of the Bates litigation as unmeritorious and it will be interesting to see how far the Inquiry goes in testing Parson’s claim that any pressure that the Post Office and its lawyers applied to its opponents in the Bates case was simply “part and parcel of an adversarial system of litigation”; the by-product of legitimate steps taken when defending the claim.

Sometimes his own language does not help him. He is taken to a “long email setting out some [of his] initial thoughts on a possible trial in May 2019.”  The email describes these thoughts as, “a straw man for everyone to take shots at.” And, “I’m sure everyone can raise a million reasons why the below is crazy … I think it’s crazy … but we need to find a way forward so we all need a positive (if deluded) mental attitude!”

The email talks about a planned third trial after the Horizon Issues trial, the objectives being to “1. …progress the litigation… “2. To secure some form of tactical advantage that forces the [claimants] to quit/settle…. [and] 3. …[keep] Fraser happy by doing something ‘productive’”

I will spare us an examination of whether putting productive in scare quotes means productive or pretend productive.

Parsons’ email offers up this further thought:

“Drawing the attached together, I think we need a plan that can be [flexed] to accommodate the possibility of an appeal. Also tactically the best option for [the Post Office] are (i) to force the [claimants] to burn money and (ii) to target limitation. My straw man therefore tries to achieve these objectives whilst trying not to look tactical!”

Julian Blake, Counsel to the Inquiry, puts this to him as follows:

Now the witness statement I took you to before said that you never advised that as a strategy. Here, we have, it seems, you’re advising that at this point in time a strategy to force the claimants to burn money; do you agree with that?

Andrew Parsons: I don’t agree with that. This is a straw man discussion amongst the lawyers with the counsel team. I think I did forward it to Rodric Williams but it’s expressly under cover of an email that says, “This isn’t advice” I think I used the phrase “brain dump of ideas”. These points were discussed, even here though the strategy is to target limitation and, if you scroll slightly up in this email, you can see I set out the advantages of targeting a limitation issue, so there was reasonable merit.

And, in any event, what happened in practice was that the trial date moved back and this discussion never went anywhere. So I don’t believe this ever ended up as actually being advice to the client, as opposed to a point being discussed amongst the lawyers.

Mr Blake: What is the difference between a “brain dump” to a client by a solicitor and “advice” from a solicitor?

Andrew Parsons: I think Rodric Williams would have understood this, as an experienced in-house litigator, that this was just some ideas that were being knocked around amongst the Legal Team and it wasn’t a settled view on the way that Post Office should have proceeded.

Mr Blake: But it was your view as to how they could proceed?

Andrew Parsons: It was one option. I think if you scroll through the entire email, it sets out a whole range of different options and, as it sets out at the start, it’s a starter for ten for discussion amongst the Legal Team.

And a little later he suggests whilst they talked about a strategy of attrition (and Fraser J accused them of one too):

….I don’t accept that that was the advice that was given to Post Office. It was an idea being discussed amongst the lawyers and, ultimately, it never came to fruition because the trial date moved back and matters moved on. I don’t think, actually, decisions around trial 3 were made for several months after that point.

There is another important occasion when Mr Parsons is forced to rely on things not being as he appears to describe them at the time. It is the infamous email from Amy Prime, a document that produced metaphorical gasps amongst many lawyers following the Inquiry when it first came to light.

She sends a draft of the email to Andy Parsons for thoughts. The draft, which is to be sent to Rodric Williams, sets out that Freeths (the claimant solicitors) have requested Post Office’s Investigation Guidelines (and any revisions). Although already providing disclosure to claimants, they had not disclosed the guidelines because they had been awaiting advice from Brian Altman as to whether they were privileged. He had confirmed they were not and would, “at some point, have to be disclosed.”

Not only were they not privileged they were material and damaging it seems. Her draft sets out that the guidelines contained statements that,

““Freeths will more than likely use …to confirm that Post Office responded to postmasters using stock answers [to fob off postmasters] …and further could be spun to show that Post Office was not taking issues with Horizon seriously and were trying to ignore any issues which were raised.”

“Although we may face some criticism later on, we are proposing to try and suppress the guidelines for as long as possible on the grounds that the most recent version is not relevant since it post-dates the investigations complained of and it would require a full disclosure exercise to piece together all historic revisions of the guidelines. We thought it would be best to bring this to your attention early.”

So the email frames what they are doing as suppressing disclosure on what appears, on the face of the draft, to be spurious grounds (in essence they would need to find all the versions of the guidelines before disclosing these ones that are harmful to their case.)

How does Mr Parsons respond when asked by this recently qualified solicitor to comment on her draft?

He writes back the same day offering a “Little tip – try to always spell out exactly what is required from the client (even if that is nothing or a negative statement like below).”

And inserts the following into her draft:

“For now, we’ll too what we can to avoid disclosure of these guidelines and try to do so in a way that looks legitimate. However, we are ultimately withholding a key document and this may attract some criticism from Freeths. If you disagree with this approach, do let me know. Otherwise, we’ll adopt this approach until such time as we sense the criticism is becoming serious.”

In his witness statement, we are told in the Inquiry session, he explains this as follows:

“Regrettably, this email is worded very poorly. Whilst, as I have said I do not recall this email, my firm’s records show that Amy had sent a draft for my approval earlier that day which did not contain this final paragraph. I responded to her adding it into her draft though my purpose in doing so appears to have simply been to make clear what action we required from [the Post Office] on this point, rather than to consider or build upon the substance of her email.

To pause there, I am not sure I agree. My reading of his addition is emphasises that this is a tactical ploy. Something that merely looks legitimate and will only be maintained until criticism makes that untenable.

“Though ill-expressed, having reviewed the relevant emails from around this time I consider that [that document] and the final paragraph in particular does not reflect the true position, as there were in fact substantive legitimate reasons for resisting disclosure of the investigation guidelines at this early stage. My email should have been better expressed to make that clear at the time.”

And it is to put to him by Julian Blake:

…It’s not just a poor choice of words, is it? Even if you take out the words in terms of legitimacy, so let’s take out “that looks legitimate”, what you are saying here is that “We are ultimately withholding a key document”.

I mean, that’s not a poor choice of words; that is your acknowledgement at that time that there is a key document, that it is okay to withhold that document for as long as possible, isn’t it?

Andrew Parsons: So we are advising Post Office here not to disclose this category of documents. I think the reference there to a key document is not referring to those two specific versions we have but the broader category of investigation guidelines, which is what the request was.

He says its related to it being pre-action disclosure:

Andrew Parsons: So the context here is this is in the pre-action phase of the litigation. No disclosure orders have yet been made and the request that was made of us was for a broad category of investigation guidelines. The two documents we had were dated from August 2013 and 2016 and, therefore, post-dated, in this sense, any prosecution that Post Office had conducted because, as I understood it, Post Office hadn’t conducted any prosecutions after July ‘13.

Now I suspect that he is right about this in one respect. He may well not have been required at that point to disclose pre-action the documents that Altman has told him are going to be disclosable ultimately. I think it is likely more complicated than it being pre-action: there is the question of what expectations were created and promises made about disclosure as part of the mediation scheme which may mean withholding of disclosure at this stage is otherwise problematic, but let’s assume for now that mine are bad points and he is right about ­pre-action disclosure.

The point that remains is that it is an explanation he seems to be offering now, after the event, rather than at the time. There seem to me to be three main options:

1.     Either he knew there was a good reason not to disclose and did not convey that to Williams (important information one would have thought, which Parsons defines as poor wording - indeed, why go to the client at all seeking instructions on disclosing documents that do not actually need to be disclosed) and decided to, or acceded to and in some ways emphasised the idea of presenting it to the client as a purely tactical suppression, or

2.     He did not think of it at the time at all and thought he was advising the client they should withhold disclosure illegitimately for as long as they could get away with it, or

3.     He thought the email was explaining disclosure accurately (they had a legitimate reasons to delay) but also still seems to think it appropriate to present this a tactical step for which they can be criticised).

Here is how Julian Blake deals with that:

Mr Blake: Your belief at that time was they were not disclosable?

Andrew Parsons: Correct.

Mr Blake: Where on earth in this correspondence does it say that? How could anybody reading this get the impression that your view was that they were not disclosable? How does that paragraph – how can that possibly be read as suggesting that it wasn’t disclosable?

Andrew Parsons: So the explanation is in the paragraph above, where it says:

“The most recent version is not relevant since it post-dates the investigations complained of and it would require a full disclosure exercise to piece together all the historic versions of the guidelines.”

Again, the context is important. This is during the pre-action phrase of the litigation where a party is not required to undertake a disclosure exercise.

Mr Blake: Doesn’t this show a mindset, a mindset that we have already seen from 2013, not to record, not to disclose or, if you’re going to have to disclose something, hold onto it to the very last moment until you absolutely have to disclose it.

Andrew Parsons: I think each of those has to be considered on its own merits, in its own circumstances at the time. I think, against that, I would weigh the fact that we advised Post Office to run the Mediation Scheme, which itself is a process that gave rise to lots of information being provided to subpostmasters. So I think there are other points on the other side of that equation.

Of course, it is worth noting that Mr Blake's interpretation of the email is consistent with Fraser J's criticism of the Post Office's attrition strategy, Parsons's strategic brain dump, and Prime and Parsons' presentation of this particular disclosure decision to their clients. It would be consistent with tactical game-playing contrary to the overriding objective of civil justice and might be seen as an attempt to mislead Freeths by providing false justifications for non-disclosure).

So perhaps the first ‘this is normal’ of litigation is if we can find an arguable justification for our actions, we can deploy it and, importantly here, behave as if our actions are justified, regardless of the actual situation. Parsons problem is that unusually his intentions at the time are under the microscope: if I deploy an arguably legitimate tactic for an abusive purpose it is an abuse if my intention is to be abusive.

Whether the Inquiry finds his explanation now (it was legitimate) or at the time (let’s suppress in ways that look legitimate) most plausible is, I think, one of the important questions they will grapple with.