Without prejudice and also integrity?

The Chairman of the Horizon Compensation Advisory Board (HCAB, on which I sit) had cause to write to the Post Office CEO

A decent encapsulation of the Post Office Scandal would include the early silencing and isolation of sub-postmasters (SPMs) when they tried to raise Horizon problems; the misrepresentation of facts and law; the failure to heed clear warnings of corporate wrongdoing; and, as our Australian cousins would describe it, shonky lawyering, by which I mean a heady brew of incompetence and a lack of integrity.

We have seen signs of the the same things recently in relation to ‘without prejudice’ letters. The Chairman of the Horizon Compensation Advisory Board (HCAB, on which I sit) had cause to write to the Post Office CEO, Nick Read, in the strongest terms, about their conduct and the advice apparently provided by their lawyers on ‘without prejudice’ correspondence (see below).

I do not want to detain readers too long with a lengthy explanation of the problem. The DBT have been asked to put the HCAB correspondence on the website and will do so shortly, I understand, when I will link to it here.

In a nutshell, we have seen the Post Office’s use of letters without prejudice to assert confidentiality on an improper basis when rejecting a compensation claim. This is in addition to the claims made by Dan Neidle about the wider practice of using without prejudice letters when making (what the claimants would describe as lowball) offers of settlement. It’s like Dan’s examples, but worse.

He reported them to the SRA, as now has HCAB, and the SRA are taking action now. I think it fair to say that the SRA’s response to the Board suggests strongly that the SRA agrees with us.

In a nutshell, the point is that Post Office, who were warned about this practice by Neidle in May and the Board in December and January this year, should not apply a without prejudice label to correspondence unless the communication represents “a genuine attempt to compromise an existing dispute”.

A letter rejecting an application for compensation does not, in our view, represent a genuine attempt to compromise a dispute.

The Post Office have argued that:

In terms of the application of WP on a nil offer, again, until it's agreed, it's still subject to negotiation and postmasters can seek legal advice which we pay for and may produce further evidence or argument that changes the outcome.  Therefore, to be consistent the advice is that it remains appropriate for all offers to be marked WP.

The argument is that we have not rejected your claim. We have made a zero offer.

This is sub-undergraduate level sophistry.

It is the Post Office dissembling in plain sight and they should feel thoroughly ashamed of themselves.

Their arguments have other problems, which show a lack of understanding of, or poor reasoning about, confidentiality and privilege. To professional misconduct concerns, we add questions about competence.

The odd thing is that there is very little legitimate gain from marking the letter without prejudice in legal terms here. The cost protection that would typically attach to a genuine offer to settle simply does not work in this situation. It adds weight to the concern that the without prejudice label is being used to isolate and intimidate the (often) unrepresented parties in receipt of such correspondence. As well as the sophistry, there is reason to think the motives are improper as a result. What other realistic reason is there to do this other than to isolate and quell SPM discontent?

The Post Office claim that confidentiality protects SPMs too, but that protection is easily and properly offered by the Post Office, saying they will not disclose details of settlements without imposing the same obligation on their opponents.

In professional conduct terms, the charges might be regarded by the SRA as serious: it is correspondence which, if our argument is correct, is misleading and which, given the warnings given by Neidle in particular, would be regarded as deliberately or recklessly misleading. It would be slightly unfair to say it involves zero honesty, but it likely fails the integrity test required of lawyers.

Labelling awkward letters without prejudice might feel like business as usual for the lawyers, but here, it is very likely to be found to be improper.

Notice also that The Post Office say in their argument above that this is done on advice (so the PO are shaping up to blame their lawyers, something else which is a feature of the PO Scandal already). It’s an almost perfect encapsulation of the whole Scandal but with more pettiness in the mix.

That advice, even if there were a small chance it was correct, must be regarded as unwise as well as unprofessional. It opens up the lawyers and the Post Office to allegations that they are behaving with a lack of decency and integrity when Nick Read would like us to believe that the Post Office have changed. Presentationally and politically it puts the Post Office bosses and their lawyers in an extremely precarious situation. They thought it better just to blunder on; to no real advantage other than intimidating others. Perhaps it was simple bloody-mindedness.

It is why the Chair of the HCAB, Chris Hodges wrote to Nick Read last week to say:

I am afraid that (as qualified lawyers, some of us with extensive experience of practice) my colleagues on the Advisory Board and I remain deeply unconvinced by the substance of what you say on the legal issues. 

However, since the matter is now in the hands of the SRA ,we will refrain from commenting for the moment, save to say one thing.

We continue to hear stories that your former sub-postmasters and -mistresses are confused, intimidated and hurt by the behaviour of the Post Office and its lawyers in negotiating settlements generally and in continued use of legalistic terminology. This is especially true for the significant number who remain deeply traumatised, and who do not understand the practice of terminology of what they see as an aggressive approach to settling claims. This is irrespective of whether the language or behaviour may or may not be technically permissible and irrespective of the fact that they may have legal representation. Your reliance on legal argument to justify the ongoing practice on NDAs and legal terminology similarly does not impress us. We do not perceive demonstration of behaviour that is anything like a sympathetic understanding towards the people your organisation has harmed.  We suggest that this should give you cause for deep concern.

Unsurprisingly the Post Office say they are now reviewing their approach. They will gain no credit for it. They have shown it to be business as usual in terms of competence and integrity. That really has got to change.