The lead counsel to the Post Office Horizon Inquiry last week made clear that the role of lawyers, “some of them senior”, will be put under scrutiny in the coming months.
The warning came as the Post Office pledged to pay more in legal fees for the sub-postmasters claiming from one of its compensation schemes.
In his opening statement to the inquiry last week, Jason Beer KC outlined at length to chair Sir Wyn Williams the issues of legal advice and external lawyers that would be raised.
While he focused on the senior lawyers involved, Mr Beer stressed that many solicitors and barristers gave the Post Office advice over the years.
He went through in detail the involvement of Brian Altman KC, former First Senior Treasury Counsel, who advised the Post Office “over a considerable period of time”.
For example, in 2013, the Post Office set up a mediation scheme to consider issues being raised by a number of sub-postmasters.
Mr Altman advised “considerable caution” in relation to mediation cases involving previously convicted individuals, such as Seema Misra.
He wrote: “The concern is that lawyers acting for those individuals may be using the scheme to obtain information which they would not normally be entitled to in order to pursue an appeal.”
Mr Beer said: “The inquiry will be looking at how the advice that was being given in relation to the approach to mediation and the subsequent group litigation, influenced or was influenced by advice that was given in relation to the criminal appeals.
“We know that Seema Misra’s appeal was quashed on the grounds that her prosecution was both unfair and an affront to justice. But that didn’t occur until 23 April 2021, some eight years later… A question that will be asked is that: should she and others in a similar position have been provided with more information and earlier?
“If so, why wasn’t she? What role did legal advice of this kind provide about exercising considerable caution in relation to mediation cases?”
Another advice Mr Altman provided in 2013 praised the Post Office’s prosecution work and said there was no good reason to discontinue it.
“This advice contained, at the end of it… a brief CV of its author, Mr Altman, by way of footnote, and recorded that he had been First Treasury Counsel and was, amongst other things, a recorder of the Crown Court and a bencher of Middle Temple.
“The inquiry will consider what role advice of this kind, presented in this way, had in the Post Office’s subsequent conduct and whether advice of this kind provided the Post Office and its leadership with a comfort blanket.”
Mr Beer said other issues to be examined included the 2016 review of the Post Office’s disclosure, conducted by the then Jonathan Swift QC, now a High Court judge.
The inquiry would also look more broadly at whether the litigation strategy adopted by the Post Office was appropriate and whether it “influenced or affected the Post Office’s wider response to the emerging scandal”.
It would be necessary “to consider broadly the merits” of the legal advice received and whether it was “within the range of what a reasonable practitioner might consider to be appropriate”.
Mr Beer continued: “Moreover, you will wish to consider whether those legal professionals were being given sufficient information to advise the Post Office and Fujitsu.”
He raised the involvement of the former Supreme Court president Lord Neuberger and the head of his chambers, Lord Grabiner, as well. Their advice supported an ultimately unsuccessful effort to have Mr Justice Fraser recuse himself from presiding over the group litigation in 2019.
The application caused “significant delay and disruption” to the trial, Mr Beer noted, and in refusing permission to appeal Mr Justice Fraser’s refusal, Lord Justice Coulson said “the recusal application never had any substance”.
Mr Beer said: “Once again, the role of lawyers, some of them senior, the sufficiency of the information they were given, and the extent to which they were relied on, informing the Post Office’s litigation strategy, will be examined.”
In August, Sir Wyn expressed his concerns about the compensation schemes being run by the Post Office, with sub-postmasters’ legal fees one of the issues in relation to the historical shortfall scheme.
This provides specific amounts of legal costs it would pay to have a lawyer advise on a settlement offer or on the dispute resolution procedure if the offer was rejected.
In its opening statement, the Post Office said applicants who thought they needed additional legal support should now approach it and seek to agree the extra legal costs in advance.