11.15am: General counsel Jane MacLeod wrote to colleagues in 2016 to say that given proceedings had been commenced by sub-postmasters, the Swift Review should be ended immediately, based on ‘very strong advice from external legal advisers’.
Beer points out the justification for this is not consistent with the email exchange between Parsons and Robinson. Robinson accepts this.
We go to a mid-morning break.
11.05am: Parsons responded at the time to say that it was critical to preserve privilege, concluding that it was a ‘good enough reason to shut [Tim Parker] down’.
11am: Robinson says he cannot remember this email exchange but accepts Beer’s point that what is good for Post Office litigators is not necessarily good for the thousands of sub-postmasters or the general public.
In his email reply, seen by the inquiry, Robinson said from the outset: ‘I’m not here to provide political cover, but I am concern that the client should protect its interests as a defendant to this substantial piece of litigation.’
He tells the inquiry: ‘I wanted to make it clear I am not interested in your political shenanigans.’
10.50am: The inquiry sees this email from Andrew Parsons in which he asks for help in persuading the Post Office not to act on recommendations of the Swift Review in 2016. This advice had found real problems with Horizon and recommended further investigation. But Parsons was worried about this affecting the proceedings brought by sub-postmasters and asks Robinson to offer some ‘magic QC seal’ to put the brakes on the Swift Review being followed through.
Parsons’ email concludes: ‘If we can give [Post Office] a piece of advice that says [chair Tim Parker] should stop any further work, [he] would then feel empowered to say to BIS that, on the basis of legal advice, he is ceasing his review. I’m conscious that this feels somewhat unpleasant in that we are being asked to provide political cover for [Parker]. However, putting aside the political background, shutting down [his] review is, in my view, still the right thing to do.’
10.40am: Beer pushes at this assumption that Fujitsu was the cause of disclosure failings rather than the Post Office, showing Robinson an email from the Post Office in response to questions he had posed about known error logs (the existence of which would clearly have benefitted the sub-postmasters’ case). The Post Office said then that this data was not relevant and in any case outside of its control.
Beer suggests Robinson was ‘straining’ not to disclose this information. Robinson replies: ‘I believed my instructions. I don’t think I would have inferred there was any such attitude on my client’s part… I remember being surprised [after the trial]. I would have been concerned that such a fundamental point could have been so wrong. [But] the focus of my concern would have been Fujitsu rather than Post Office.’
10.30am: In his witness statement, Robinson describes the Post Office approach to disclosure in the litigation as ‘extraordinary’. He unintentionally misled the court on several occasions as he said data was not available, when it was later disclosed. For example, it was only after the trial that the Post Office disclosed there were 5,000 known error logs with the Horizon system. Robinson says this was a ‘horrifying experience’.
Beer asks whether it was an uncomfortable thing to go through. Robinson agrees.
Beer then follows up: ‘When you found out what you were told was not the true position it must leave you not trusting your clients or solicitors?’
Robinson says the problems with disclosure were caused by Fujitsu. This was the explanation given to him by the Post Office and Bond Dickinson.
10.15am: Robinson wrote within a week of instruction to Andrew Parsons, from Post Office solicitors Bond Dickinson. He asked a series of pertinent questions, including whether shortfalls may show up without sub-postmasters causing them, and whether and when remote access was known about. Robinson accepts Beer’s assessment that Parsons’ responses were ‘relatively cursory’ and that Parsons did not answer the question about whether lawyers had looked into whether convictions had been unsafe based on the unreliability of Fujitsu’s expert witness Gareth Jenkins.
10.05am: The inquiry sees this email from MacLeod to chief executive Paula Vennells, talking about Robinson’s potential instruction. The general counsel suggested Robinson had ‘already grasped the political significance of the case’.
The KC tells the inquiry he is not clear what is meant by MacLeod’s choice of words. ‘I had certainly grasped there was a sense of concern and embarrassment that statements had been made about remote access,’ he says. ‘[But] I would have regarded this as a piece of commercial litigation.’ Robinson adds that he was never influenced by political issues in his decision-making on this case.
9.55am: Robinson was instructed following initial meetings with the Post Office and its general counsel Jane MacLeod in 2016, what inquiry counsel Jason Beer KC describes as a ‘beauty parade’ for the Post Office to decide which barrister to instruct.
At these first meetings the Post Office said it had previously denied that Fujitsu, the Horizon system operator, could gain remote access to branch accounts. That now appeared not to be correct, and Robinson advised the organisation to be open about this.
The KC says that the Post Office kept having to correct things that it had previously said, adding: ‘It was very frustrating at times.’
9.45am: A potentially big week in terms of lawyers’ role in the aftermath of the Post Office scandal, as the inquiry looks in detail at the Bates litigation and specifically the controversial and ultimately doomed attempt to have the judge handling the case recused.
First to appear will be Anthony de Garr Robinson KC, who represented the Post Office during the Horizon issues trial as part of the Bates v Post Office litigation. Then the inquiry will hear from Lord Grabiner KC, counsel who argued for the judge in that case, Mr Justice Fraser, to be recused.
Crucially, we will find out what counsel were instructed by their solicitors and by the Post Office legal team.
