NB Interesting and very apt comment from Iain follows this post – make sure you read it
The decision coming soon from Justice Fraser will focus on the implied terms in the contract between Post Office Ltd (POL) and the Subpostmaster . These are unwritten clauses that are assumed to be in place as no contract can possibly cover all eventualities. POL have agreed already that one such implied term would be that the subpostmaster is not responsible for any losses caused by a Horizon error even though that is explicitly not written into the contract. A contract which was not changed in any way after the introduction of Horizon in 2000 and very pointedly a clause concerning Horizon was not inserted in the new contracts written for Network transformation.
The JFSA lawyers have specified the implied terms they consider are appropriate to their case, which POL are refuting, but there are certainly more implied terms that are worthy of disputing with POL.
For instance, on the RunaPostOffice website (www.runapostoffice.co.uk) that POL uses to advertise Post Office opportunities to aspiring subpostmasters, it clearly states under the ‘How do the Fees Work?’ tab, that “You get paid a fee for every Post Office transaction – postage, home shopping returns, Local Collect (parcel collection), travel money, easy bill payments, e top-ups, MoneyGram and much more.”
Now a transaction is commonly described, in commerce terms, as an exchange of goods or services between a buyer and a seller. In accounting terms it can also be described as an event that effects a change in liability and/or establishes a legal obligation.
Regardless of what the contract says regarding Fees Payable or its definition of what a transaction is, the runapostoffice declaration is seen by the newsubpostmaster before he signs it and there is no definition other than the above common description of a transaction. There can be no dispute that this implied payment for all transactions based on common acceptance of the term ‘transaction’ carries through as an implied term into the contract.
Now take for instance a transaction that is very common for all subpostmasters and who do not receive payment for it from POL: a Certificate of Posting (COP). This can be asked for by anyone posting a mail item regardless of whether or not they purchased the postage at the branch they request the COP from. It satisfies all the requirements of a common understanding of what a commercial transaction entails i.e. providing a service and it also satisfies the common understanding of what an accounting transaction entails i.e. establishes a legal obligation.
POL of course would argue otherwise and it could be interpreted that those subpostmasters who received a Core Tier Payment were remunerated for transactions that did not attract a payment from customers and this was included in the core part of the remuneration. However this core tier payment was done away with under NT so that causes a problem for them.
Not only that but it is extremely likely that in the near future Subpostmasters will be conferred Worker Status thanks to the efforts of Mark Baker and his team and among all the benefits that brings is the obligation to remunerate for ALL work carried out on behalf of the ‘employer’. There is no escaping the fact that POL will be required to introduce payment for Certificate of Posting once worker status is confirmed. That leads to the possibility of back payments which on top of all the additional costs being incurred at the JFSA trial and Worker benefits places POL in an extremely dire financial position.
There is certainly one implied term missing – POL ARE IN DIRE STRAITS…..