Post Office lesson of “misalignment” between justice and desire to win

Castleton: Case highlights weakness of guidance on LiPs

The case brought by the Post Office against former sub-postmaster Lee Castleton highlights the potential “misalignment” between advocates’ desire to win and a just outcome, academics have argued.

It also raises questions about the “weak guidance” on litigants in person (LiPs).

A working paper focused on the experience of one of the best-known victims of the scandal is the latest published by the Post Office project being run by Exeter University’s Evidence-based Justice Lab, headed by Professor Richard Moorhead.

He co-authored it with research fellow Sally Day from Exeter and Karen Nokes, a law lecturer at University College London.

They said a “central part of the Post Office story” was how it “managed to shift the risk and responsibility” for its faulty accounting system onto the sub-postmasters.

“They did this in part by shifting the burden of proof, practically and legally, onto those least able to challenge the Horizon accounting system.”

Mr Castleton, who became a LiP before his trial, was one of a number of sub-postmasters sued for debt by the Post Office based on faulty figures produced by Horizon – his case was highlighted in the recent ITV drama, Mr Bates vs The Post Office.

Speaking at the Legal Services Board conference earlier this month, he described the process as “very isolating, very difficult to understand and comprehend the little terms and nuances and the details that the judge really needed to see or hear”.

The academics said Mr Castleton, “like any lay person, was always going to struggle” in a conventional court.

“Judges in such courts may tend to take too passive an approach to managing cases involving litigants in person, leaning significantly on legal representatives of their opponent. The difficulties posed by being unrepresented are acute.”

Joint guidelines for lawyers dealing with LiPs produced by the Law Society, the Bar Council and Chartered Institute of Legal Executives in 2015 were generally “of very limited use”.

The guidelines stated the “paramountcy of obligations to court but aside from specific obligations, such as requiring courts not to be mislead and ensuring relevant cases and statutory provisions are before the court” did not suggest other ways in which the duty “might manifest or limit zeal” by lawyers on their client’s behalf.

The academics said the Castleton case raised further questions about the duties of advocates.

“Although the civil justice system is supposed to be geared towards truth-seeking, an advocate’s role is not, as long as they do not mislead others, especially but not exclusively courts, they disclose evidence when they should, and behave with integrity (including not abusing their role as advocates).”

The academics said “clever strategy, and the tactical defence of that strategy, may be inconsistent with the overriding principle which governs our civil courts” leading to “a misalignment between professional cultures, rules and practices and principle that is suppose to put justice and proportionality at the heart of civil justice”.

Professor Moorhead commented: “Our analysis of Lee Castleton’s case shows how misaligned the desire to win and justice can become. The problems are particularly acute when one side is unrepresented.

“There is a question here whether the lawyers were overly influenced by a legitimate, if opportunistic, strategy.

“The courts need to think long and hard about allowing artful legal argument to shift evidential burdens onto those least able to prove their case. Courts are supposed to enable both sides to put their case not make it harder for one side.

“They were persuaded to do so by the arguments presented by the Post Office against an unrepresented defendant and without the full evidence being before them.”

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