“Myopic interpretation” of client’s best interests led PO lawyers astray

Page: Poor conduct was far too widespread

A “myopic interpretation of acting in the client’s best interests” is one of the reasons why lawyers who acted for the Post Office crossed lines, a barrister acting for sub-postmasters has suggested.

But Flora Page also predicted that the lessons that come out of the Horizon inquiry would help lawyers stand up to client pressure in the future.

Ms Page, who practises from 23ES, has been involved in the case for several years, working with fellow barrister Paul Marshall and solicitors Aria Grace Law to elicit from the Post Office the now infamous ‘Clarke advice’.

This came from an external barrister, Simon Clarke, who told the Post Office back in 2013 that the convictions it had secured may be unsafe. But it only came to light in 2020.

She is now part of one of the legal teams representing the sub-postmasters at the inquiry.

Writing in the Bar Council’s magazine, she said: “Poor conduct seems to have been far too widespread among those who acted for the Post Office, both solicitors and barristers, both in-house and external.

“They cannot all be terrible people but somehow, with big or small steps, they have crossed lines.”

She suspected that “a myopic interpretation of acting in the client’s best interests, and not enough focus on integrity” was why “so many apparently ordinary, upright lawyers failed to hold the line”.

Ms Page, who is also a lawyer member of the oversight regulator, the Legal Services Board, argued that what appeared to be in the client’s best interests in the short term may actually be counter to its best interests in the longer term.

While “being a bit sharp or tough may seem to get a good result”, there were instances where the lawyers acting for the Post Office would have been “truly acting in their client’s best interests if they had advised them against actions which looked good in the short term”.

One was the Post Office’s “endemic failure to lay the facts out truthfully in evidence” in both civil and criminal proceedings.

“Time and again misleading witness statements were the foundation of misplaced and aggressive litigation, which the lawyers should have been probing and challenging in their client’s best long-term interests, and in accordance with their own obligation not to mislead the court.

“The Bates litigation was the apogee of the Post Office’s approach to litigation, enabled by its lawyers. The ruinous cost of it would have sunk a privately owned company. In the end, all that short-termism brought the Post Office to its knees.”

Another example was the Post Office’s use of litigation as a means to prove that the Horizon system was robust.

“The idea that these were ‘test cases’ should have been alarming to the lawyers, because the courts are not to be used as a vehicle for a business to try to prove some wider point.

“Lawyers need to ask themselves why a business wants recourse to the law, and whether the ostensible goal – ie debt recovery or a criminal conviction – is really a cover for something else.”

Ms Page acknowledged that questions of integrity “are always hard”.

She went on: “Nowadays, many lawyers are far less powerful than their clients, particularly when they are in-house, but also when those in independent practice are keen to curry favour with a big, important client.

“What do we expect of lawyers when their clients are powerful enough to ruin their careers?”

Ms Page said, however, that the Post Office scandal would give lawyers “all the ammunition they need to hold firm to the requirement to act with integrity” in future, with examples to help explain to clients why they were giving them unpopular advice in their long-term best interests.

“The inquiry report, when it is delivered, should be mandatory reading,” she concluded.

    Readers Comments

  • Malcolm Knott says:

    Flora Page is pulling her punches. Some of these lawyers should be in jail for perverting the course of justice.

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