Inside the head of Sir Tim Parker

 

An open letter from me to Sir Tim has met with no response which was always the likely outcome, but there has been some action in court and in Post Office Ltd since then.  Most notably of course the application for Justice Fraser to recuse himself on the grounds of Bias which by all accounts can be no more than a delaying tactic rather than a serious assessment of the Judge’s impartiality.  I have thought about little else since that explosive moment in court only a few days ago and wondered what on earth POL are up to when it is so clearly obvious to even the most impartial and intelligent observer that POL have lost this case hands down based on the evidence and witness testimony already produced in court.

To try and get an understanding of such irrational behaviour I turn to Robert Burns who in a Poem whose title I shall not name for legal reasons finished with these lines:

O wad some Power the giftie gie us
To see oursels as ithers see us!
It wad frae mony a blunder free us,
An’ foolish notion:
What airs in dress an’ gait wad lea’e us,
An’ ev’n devotion!

I have tried all my life to see the other side of the argument and to try and understand how someone can oppose my opinion because in doing so it allows me to either form a better opinion of the situation because the opponent raises good points that I did not understand at the time or to create a better rebuttal to the opposing point of view.   In this case though I just cannot get to grips with what must be going through Sir Tim’s head.

There are four trials scheduled in this GLO, the common issues one has run its course and a decision published, the Horizon trial has stopped just short of the Expert Witness testimony and there remains a trial on Breach of Contract/Causation as well as one likely to try a couple of claimants cases.  POL have lost the first two trials hands down (although the second hasn’t been completed the decision is surely obvious to Sir Tim and his legal team).  These first two trials produce the background and evidence required for the Third trial and again it must now be so obvious to POL’s legal team that they don’t have a leg to stand on in the Third because of the evidence from the first two that they are going to lose that as well.

That all adds up to the fact that continuing with this GLO makes no sense whatsoever.  So why has Sir Tim chosen to continue?

At the very outset of the trial POL declared that an outcome in favour of the claimants would cause an existential risk to the very future of Post Office Ltd and at that time, putting my ‘see yourself as others see you” cap on I could understand that POL firmly believed that they had a good case and could win.  Now nearly through the first two trials POL must see they are marching towards defeat and perhaps we must consider that this existential risk is real.  If that is the case then I can understand carrying on and deploying all the underhand tactics they can muster.  One of these is to force the claimants in to a corner, lengthening the trial and by doing so reducing the eventual amount of money the claimants will receive by way of settlement.   Introduce threats of appeals at every stage of the process then it is perfectly possible that at some point the claimants will have nothing to win as the potential legal costs mount and as they mount the claimants financial backers will be under pressure to have the matter resolved as soon as possible.

So as far as tactics go in this trial I might now understand what is going on in Sir Tim’s head.   There is just one point I would throw in here.  An existential threat to POL is one that would see the business collapse.  Now you cannot say that unless you mean it and in POL’s case you are certain that their only shareholder would allow it to happen.  So it is probably safe to assume that Sir Tim has discussed financing a settlement of the claims with the Government and they have refused to provide the funding.  That is bizarre in itself as it would be political suicide but still a conclusion to be drawn from what we know.

So I don’t know what is going on in Sir Tim’s head, I can only surmise.  But one thing I do know, is something that is NOT going on in Sir Tim’s head.  He has completely overlooked it and should he carry on with this strategy which can no longer be about winning the case on pure legal terms, the thing he has overlooked is going to catch up with him and I would suggest possibly destroy his reputation and future career.  He has a chance, one that is getting slimmer each day as the trial progresses, to recover the situation and I would suggest that he considers the quote from Robert Burns above and do something about it.  It would indeed be a foolish notion not to.

Advertisements

Should he or shouldn’t he?

 

Should Judge Fraser recuse himself from the current trial as requested by Post Office Ltd (POL)?

I am sure that is the question in everybody’s minds at the moment but to answer that we need to consider the rationale behind the request and the consequences of whatever decision the Judge makes on this matter.

First though, thanks to Nick Wallis as ever for pointing out the financial consequences of this recusal application and to Mark Baker for a very revealing legal observation.

The rationale is perfectly obvious and if it is obvious to me it is obvious to the judge also particularly after yesterdays evidence and that is to delay this trial as long as possible and to squeeze the claimants source of funding for this trial dry.  From what I have read in the application for recusal there is no merit at all in what it claims because the outcome of the trial is now beyond any doubt whatsoever, given yesterday’s shocking revelations in court, and that will be complete and utter victory for the claimants.

There can be no doubt in anybody’s mind now that even a replacement Judge will come to the same conclusions that Judge Fraser has reached and will reach.  If the trials are rerun then the same questions will be put and the same answers given.  There is little point in rerunning the trials in the hope that the decision will be different with a different judge – it cannot be. (I have just re-read this while checking the document and it just sticks out like a sore thumb – recuse the Judge by all means but where in your application does it point out why you think the decisions would be any different – ABSURD)

So taking the above into account the Judge has to consider whether an honest and independent observer would consider whether or not the Judge has behaved in a biased way during the course of the trial and if this would affect the decision of the court.   But this is no ordinary trial, this is a Group Litigation Order to be heard over the course of several years and in several different trials.  In an ordinary trial there could be a recusal request at any stage of the proceedings prior to the decision of the court being made.  AFTER the decision you can’t recuse the Judge!  You can appeal the decision.  You can ask for another judge to hear the sentencing trial but you can’t ask for a recusal after the trial has been completed.

In this case though there are several trials and a decision has been made in the first one.  That stands and POL say they are contemplating appealing the decision.  Judge Fraser cannot be recused from it because that trial is over.  He is being asked to recuse himself from this and future trials in the GLO on the grounds that he has displayed bias and has predetermined his decisions based on part on evidence that POL suggest should not have been part of the common issues trial.  POL, it should be pointed out, do not suggest that that very same evidence should not form part of future trials.

The fact is though that this GLO consists of several trials, the first one has been heard and a decision has been made.  No matter who presides over the trial the outcome is the first in several decisions and the decision in the first trial will ALWAYS and HAS TO influence the Judge in the outcome of the future trials.  THAT IS THE PURPOSE OF THE TRIAL and why the sequencing of them is so important.  POL are not saying the Judge did not have an open mind going in to the first trial they are saying he has a biased opinion at the end of it.  He is meant to for God’s sake although Bias implies unfairness which it is not.

So here is a real problem for POL and the Judge to consider (enter Mark Baker stage left).  This recusal application wasn’t written in 10 minutes although it was dated and signed yesterday by the applicant.  POL could not have known what was to transpire in evidence yesterday before they wrote it and bias or no bias the same honest and independent individual who would consider whether bias had been displayed by the Judge would at this stage in the trial have reached a conclusion on whether or not POL were guilty as claimed.  All the evidence has been produced and the only witnesses to come were the experts who can only talk on what has been produced in court already.

More to the point though, has the Judge displayed any bias in the court towards the claimants during this second trial?  No. None.  He has been completely impartial and treated Ms VdB for example with the respect that she doesn’t deserve.

Moving on, there is no doubt that this is a seriously smart Judge.  He knows the game and he takes everything, even the smallest piece of seemingly innocuous evidence in to his brain and cogitates on it.  He wasn’t born yesterday either and he will have been perfectly aware as all judges must be that a recusal application could be made at any time so in carrying out his duties as a judge he will have gone to great lengths to maintain his impartiality.  He will have taken this into consideration when reviewing his decision before publishing it for sure.  Therefore to accuse a Judge of Bias is an extremely serious and possibly career damaging charge if it is upheld.  On the other hand the Judge can determine that the application was wilful in that its purpose was mainly to delay the proceedings for what appears to be financial reasons that would be particularly injurious to the claimants.  Justice cannot be bought and I am sure he will consider this carefully.  As an addendum to that, how many recusal applications can you make?  Will POL do the same with the next Judge?  By their very action at this stage in the trial if a new Judge comes in he will see the tactics of POL and be biased against them from the very start!  No the only reason behind this is tactical and not based on any overwhelming evidence that the Judge is biased.

I understand he has said to both parties that they may appeal whatever decision on the recusal he takes which is unfortunate and of course POL will appeal if he decides to carry on.  Whatever happens the timescale of this GLO has been lengthened considerably which brings me to Nick’s point about costs.  Perfectly true what he says but even though the timescale is lengthened the additional costs will only amount to the rerunning of this current trial because the costs of the subsequent trials will have been accounted for anyway.  In addition the Claimants sponsors will be even more confident that their support package will bear fruit after yesterday’s revelations regardless of who the sitting Judge is.

The consequences though of yesterday’s actions by POL will come back and hit them hard.  As Nick has pointed out the slightest increase in costs will detract from the amount of damages the claimants will receive.  POL relies on the support and trust of the great British public and I am certain that they, the public, will inspire the media to admonish and ridicule this organisation for what they have done.  As I have said before only a complete and utter fool would now buy a post office and that has severe financial implications for all those SPMRs who own one.  They need to sit up and take notice and I think they will.

I have no idea what the Judge will do like all of us.  He is in a horrible place at the moment but having seen the man in action I know he will make the right decision.

Finally a wee word to Sir Tim.  Flashing blue lights may appear before your eyes in the near future and it won’t be as a result of a migraine it will be as a result of something you have completely overlooked.

Evening All.

Out with the Old bring in the New

 

There is a certain absurdity about this current trial on Horizon errors.  By Post Office Ltd (POL) own admission the Horizon system is no longer fit for purpose and it should be replaced.   I am sure they will do so in due course, but when that happens, by everybody’s own admission surely, it will introduce a raft of new errors as happens when any new software system is released.  If POL pretend otherwise and proclaim the new system as being robust and reliable just as they did in 2000 with the current system (and again in 2010 with HOL) then we are back at square one.  Presumably though POL will take more care when dealing with the new errors than they did in the past.  Well based on what we are hearing in this trial the safest assumption is that they will not as they are fighting their past mistakes tooth and nail and one can only surmise that they truly believe the methods they have in place at the moment are the best way forward.  Of course they will also be relying on their present employees to support the new system – the very people in court right now as witnesses testifying to the mistakes they have made.

One thing that I thought had been extremely reliable over the years of Horizon was the counter computer equipment that staff used.  The keyboard, the touch screens, printers and computer itself.  Yes there were breakdowns and replacements needed but by and large they were quite reliable and they lasted well past their sell by date.  But they were getting extremely old.  The workstation computer was at best a 486 processor I believe – ancient and slow in today’s world.   So recently POL decided to replace them all with the latest technology and decided they would plump for the cheapest on the market.  Yet another example of incompetence and one that has truly backfired on them.   Horizon, the not fit for purpose system, cannot handle the new equipment and the errors that this new equipment generate.

I am not going to detail every type of error that the new equipment has introduced but concentrate on one that I was reminded of yesterday in the trial.   Up until then I had no idea about problems with the old touch screen monitor causing phantom transactions but I can understand how these errors may have arisen.  Actually an important point – 10 years owning a post office and I was never told about the possibility of this error occurring.   Anyway, hearing of this error reminded me of Seema Misra’s trial and how her expert IT witness Prof MacLachlan had extensively criticised the keyboard layout AND the touch screen layout but he never gave any thought to the possibility of problems with the screen hardware itself.  This error would have been in the system from the start until that hardware was replaced,  It would be impossible to trace in log files.  Mmmm.

The discussion in the trial yesterday also talked about the 00 key and the mistakes that that has enticed out of SPMRS over the years, just as Prof McLachlan pointed out in 2010 and that key and the problems it makes for subpostmasters is still there.

I am no one man call centre but I do have access to social media platforms where thousands of SPMRs meet and discuss PO issues so when the rollout of the new counter terminals started across the network I was able to note reports of strange errors starting to happen.  One of these was and as far as I know remains, the most prevalent.  The built in swipe card reader causes lots of problems but the generic effect and most likely the cause are the same.   A user swipes a mag stripe card and, occasionally, instead of the system accepting the data on the card as it should, whether that be an account number or a name or in some cases a balance, the system instead interprets it as a sequence of key strokes entered into the keyboard by the user and this causes a wide variety of different outcomes such as purchases of stamps, cash deposits etc in fact any event that can be entered via the keyboard during normal operation.   This effect would also happen extraordinarily fast so all the user can see is the contents of the screen once the computer has processed the string of characters from the mag stripe card.   The reason I know this is the cause is because several times users have reported the final screen as showing a string of characters in a field on the screen such as an address for a postage item that could only have come from the card because of the format.   Not only that but some of that data is confidential and can now be clearly seen by a third party.

It seems to me that this error is down to the cheapness of the equipment that was bought.  I am no expert in programming for mag stripe card readers but I do know that they have a start and end byte/character that should be captured, processed and checked to ensure that the data the system has received in between the start and end characters is that which is recorded on the mag stripe.  I think that this is generally done by firmware on the card reader itself and error codes are returned to the calling program should the data not be verified after the card is swiped.  Whatever the reason, whether Lenovo do not include this industry standard feature on its card readers, or Horizon itself does not interpret the data received properly, it is a mess and clearly this computer equipment was not tested thoroughly before it was purchased for no doubt a very significant sum.

Just another item to add to the long list of incompetency displayed by the current management of POL who continue to think they are the ones who can fix the problems they created.  New blood is desperately needed in this organisation so I hope Tim Parker chooses Ms Vennells replacement wisely.

 

 

 

 

An Open Letter to the Chairman of Post Office Ltd – Mr Tim Parker

An Open Letter to the Chairman of Post Office Ltd – Mr Tim Parker

Dear Sir

I note with interest your initial comments on the findings of Justice Fraser with regard to the first trial of the Group Litigation Order (GLO) brought against the company you chair Post Office Ltd (POL) by the group of claimants known as the Justice for Subpostmasters Alliance (JFSA).

We share at least two things in common.  Our first name of course but also a love for the Post Office Network (and I use the word Network not Limited advisedly).  It is the first of many sad reflections on my part that we seem to share no other common ground and your statement is testament to that.

This will be a long letter no doubt.  I have many points to make for you to consider but let me first dissect your statement to see exactly where we disagree and perhaps why.

You have had a week or so to consider your response to this very lengthy judgement and I have had only the weekend to do so; but have I? I have been considering these matters for several years, fought hard against some including the role of the National Federation of Subpostmasters (NFSP) and as far as I can see my thoughts on these matters have been correct all along.  However I am the first to accept that my thoughts are, have been, and will be, of little consequence to the future of POL but I hope you take the time at least to consider what I have to say now.

I have been and will continue to be critical of POL until certain things change for the better but first I must apologise because in the past I have been rude and disrespectful to the management of POL and in this letter I will continue in that vein because I can find no other way of expressing a) my deep dissatisfaction in what has transpired here at the hands of a management team that should have done a lot better and b) my anger at the continued unnecessary suffering for hundreds of claimants whose lives are getting shorter each day and some of whom have already passed away without the knowledge that their claims have been vindicated.  The Judge in his decision has made this point perfectly clear for you to consider and time, Sir Tim, is of the essence.

You have made a statement on the Judge’s decision but you also were signatory to the annual report last year where Ms Vennells stated:

 

On 11 April 2016, a High Court claim was issued on behalf of a number of postmasters against Post Office in relation to various legal, technical and operational matters, many of which have been the subject of significant external focus for a number of years. Post Office is robustly defending the claim, believes it lacks merit, but welcomes the opportunity to have these matters resolved through the Court managed Group Litigation Order.”

 

Obviously you seriously believed that the claim lacked merit, but now you know the truth.  Why Sir, did you believe the claim lacked merit?  Yes your QCs fought hard in court to win, and truth be told, to win at all costs, but in doing so, as I pointed out in one of my blogs, POL lost the battle before the result was known.   Everything the Judge has laid down in his decision notice is now the real truth of the matter whether you think he is right or not.   You remain in charge of an organisation that has let this happen and now by your own admission in yesterday’s statement you say you intend to change as a result of what he has said.

 

You say you are considering an appeal.  Against what I do not know but have you considered the consequences?  By appealing you lose whether you win the case or not and I am not sure why you do not understand that.   Surely the media coverage over this first decision is enough to persuade you that public opinion of you and your management will be completely destroyed should you act to delay a fair settlement for each of the claimants.  Some of these claimants have died already without hearing the result of their innocence being proven.  Sadly more will do so should you seek to extend the life of this court hearing for several years using money I might add that comes one way or another from the public purse.

 

You have issued this statement in response to the verdict:

 

We take this judgment and its criticisms of Post Office very seriously. While the culture and practices of the business have improved in many ways over the years, the Judge’s comments are a forceful reminder to us that we must always continue to do better. We have taken his criticisms on board and will take action throughout our organisation.

 

“Post Office will continue to defend the overall litigation, which has been underway since April 2016 and is scheduled to continue through four trials until at least March 2020.”

 

Let me dissect this piece by piece.

 

I find the use of the word ‘Culture’ particularly abhorrent.  How can anyone in your organisation currently, who oversaw, supported and implemented all the flaws in your company over the years, be expected to change their way of doing things particularly given the culture that exists in your Head Office which perpetuates a ‘them and us’ relationship between Head Office staff and Subpostmasters?   Look around you in your Head Office and see how many former subpostmasters are employed there.  You know the kind – successful businessmen and women with commercial retail experience that know the challenges of running a post office branch inside and out.  There are none.

 

You have taken the Judge’s criticisms on board but what of the people that over the years have pointed out your company’s failings and have now been proved correct in their assessment by a distinguished Judge?  Is there not a place for them at the top table to oversee the changes that need to be made?   The culture in your organisation has, at the moment, no place for criticism.  External criticism is rejected out of hand and I can only presume internal criticism receives the same treatment.   Most notably an internal POL document presented before the court highlights the Horizon system as not fit for purpose while you have said in the last year or so that changing Horizon would be so full of risk it is not worth doing and nothing has therefore been done about the inadequacies of the system that may now result in hundreds of millions of pounds worth of damages.

 

Had you listened to these critics – I noted with interest from the trial that Ms Venells advised her subordinates to take my report of an error in Horizon seriously then abruptly cancelled the investigation into an error that is at the forefront of this current trial  – then surely sir you can see that you would never have been in this position.   This trial reflects only a small part of what is wrong in your organisation and only critics have the answers you need to make it fit for purpose.

 

It seems sir that while taking the Judge’s decision and criticisms seriously you are not considering the consequences of his decision carefully enough.   Take the claimants cases that are currently before the CCRC and awaiting the decision of this trial.

 

I understand why the CCRC will wait now for the decision from the current trial but I am certain that with this decision they now no longer need to wait because the Judges own words in this decision provide more than reasonable doubt that these convictions are unsafe on a number of grounds.  I cannot go into detail about these matters here but if you were to give me 30 minutes of your time in private I could easily convince you that what I am saying is true.   Surely it is in your power now to avoid the further embarrassment of POL, by intervening and recommending that these claimants’ cases be now returned to the court of appeal where POL will offer no evidence.  It is not though the only consideration you should give to this matter.   By far the most important reason for contacting the CCRC is to not extend the excruciating delay that the claimants have faced in waiting for their convictions to be overturned.  I cannot understand and have never understood, despite repeated reminders to your previous CEO Ms Vennells, that her Christian beliefs did not encourage her to investigate on her own these obvious miscarriages of justice and ensure they were overturned earlier.  Any delay on your part now not to do the same will be met with derision and only increase the public humiliation your company and your personal reputation will deserve.

 

Finally on this matter, a few years ago I reported certain elements of the evidence before the CCRC to the police and they opened a case file.  I was interviewed by two detectives who took my evidence seriously and who investigated the matter further.  They found that as some of the evidence they required was in the hands of the CCRC they would put the investigation on hold until the CCRC had decided on the case in question.  I am as certain as I can be that a criminal investigation into the conduct of some of your employees will eventually take place and I believe that custodial sentences will follow.    I ask you why it should fall to the likes of me to report such alleged offences?   It smacks of conspiracy that the management of POL have failed to raise the same concerns to the Police having had the evidence presented to them many times, one of which was a TV programme watched by millions.

 

Your immediate action is also required with the National Federation of Subpostmasters who you fund.  Justice Fraser has correctly identified the lack of independence of the NFSP and criticised this organisation’s involvement in these matters.   I am certain you have never given much thought to this organisation’s role in the network but what was once a strong and reliable representative body for subpostmasters has become, at the top levels, a group of people more interested in themselves than the people they were meant to serve.  Over the years they have systematically quelled justified criticism of their organisation from within as well as choosing to ignore the wishes of their members in order to promote POL and projects such as Network Transformation which were from the very start detrimental to existing subpostmasters that at that time were paying for the privilege of belonging to that organisation.  From a Horizon perspective , as early as 2000, from NFSP Executive committee minutes, they adopted POL’s approach to criticism of the system saying that to publicly decry the reliability of Horizon would be to put at jeopardy the public’s trust in the Post Office network.  They are as complicit in this case as POL and I imagine lawyers will be considering the advice they have given new entrants into the network over the years carefully.

 

There is more to say about the NFSP, some of it deeply unsavoury and to do with certain individuals within that organisation – mostly long gone now – but to be fair the vast majority of the people that have served in meaningful roles over the years have devoted their time and efforts into making the network a better place for all to work in and I applaud them for doing that.  However there is no turning the clock back.  The independence of the NFSP has gone as has the trust that subpostmasters must place in that organisation in order for it to have any purpose at all in the future of the network.

 

Funding must be withdrawn from this organisation immediately and no assistance provided to settle the mess they are responsible for getting themselves into.  They have no future as a representative body and any statements they now make one way or another will be met with the ridicule they deserve if indeed they are not ignored completely.    Given the amount of money you have agreed to provide them with over the next few years that will be a considerable saving to POL and will help meet your funding requirements for the cost of this litigation.

 

In not dealing with criticism properly, in not accepting that the reason it was brought to your attention was for the benefit of the company not its destruction, you have opened up a minefield that requires exploration for large scale cover ups.  At the centre of this investigation will be how you dealt with Second Sight, who it appears were getting too close to the truth when they were relieved of their duties and who are now gagged from telling the truth by a non-disclosure agreement.   Public trust in Post Office Ltd is paramount for you, and whoever succeeds you, in trying to sort out this mess so it is of vital importance that Second Sight be reappointed to finish the job they started and their gagging order lifted.   I am certain the Judge will have something to say about that particular item in his decision on this current trial.

 

In conclusion, the action you need to take within your organisation immediately is clear.

 

  1. Consider immediate settlement to the claimants – prolonging this trial will only lead to further embarrassing disclosures and more importantly will prolong unnecessarily suffering for the claimants
  2. Contact the CCRC to insist they send back all cases before them to the Appeal Court
  3. Re-instate Second Sight to complete the work they started
  4. Withdraw funding from the NFSP
  5. Appoint appropriate subpostmasters into senior management positions to start the process of culture change

 

At the very least sir, sit down with a glass of whisky or similar and consider carefully your rationale for not taking any of the above actions, which I think is the most likely outcome, and think of the consequences when the result of not doing so will come back and haunt you.

 

With best regards

 

Tim McCormack

 

How to spot a computer error (Part One)

 

It amazes me to think how much Post Office Ltd (POL) rely on their subpostmasters to report errors in the Horizon computer system.  Without such reports Horizon would presumably still have hundreds if not thousands of errors in it.  Yet to become a subpostmaster the requirements are limited.  An aspiring subpostmaster has to apply for the position and along with his application form submit a business plan.  They then have to attend an interview during which the will explain how they intend to profit from having a Post Office.   Business plans can be daunting for some to prepare so applicants can pay £600 to POL – sorry the NFSP – and they will prepare the business plan for the applicant.  POL – sorry the NFSP – will also advise the applicant on what to say during the interview.  I don’t know the statistics for failures at the interview stage but as the NFSP – sorry POL – are so desperate for subpostmasters there can’t be many.

Something missing I hear you ask?  Well yes indeed there is.  Strangely enough no aptitude test is required, no computer experience is required and certainly no experience of running a post office is required.  A business plan prepared by POL – sorry the NFSP – and an interview is all you need.  Stranger still is that if the applicant changes his mind and decides he would rather apply for a job as a counter assistant with the NFSP – sorry POL, then they WOULD have to take an aptitude test before they even got to submit their application!  Bizarre and should I say?? … OK I will … Beyond Belief!

So to help out the now current subpostmasters with no aptitude and computer experience here is an idea of what it takes to identify a computer error, because you will need to and if you can’t then if it causes you a loss you will have to pay for it.  No need to ask the NFSP – sorry POL – well actually both – because they believe there are no errors in Horizon, a fact unfortunately you cannot rely on.  Oxymoron time – yet they rely on you to report the errors otherwise they would continue to exist and hundreds of claimants would have to get together and sue the NFSP – sorry POL – for the lack of robustness in their computer system.

Let me give you an example of what an error might look like.

The most serious error I ever discovered during my time at Citibank was while I was working on a project in Budapest.  Citibank’s computer systems for Central and Eastern Europe had been centralised and ran out of Warsaw but there were a few satellite systems still local to Budapest which required an overnight feed of data from Warsaw.  Paper reports on this data were prepared and each morning various clerks analysed these.  As it happens I was working in the Credit Risk department at the time and across from me was a young lad who had to analyse an FX Risk Report every morning from one of the paper reports I mention above.  I was in Budapest for several months so I got to know what his job was and the contents of the report.  Over a couple of weeks it suddenly dawned on me that the physical size of the printed report that landed on his desk each morning was getting smaller and smaller and he was finishing his task earlier and earlier.  So I investigated and found that the data that was being sent from Warsaw was not being refreshed and the local internal system was dealing only with the trades that were still live hence the reduction in the size of the report.  It was quite a serious matter at the time because the effect was to provide the FX traders with more Risk Appetite than they should have had to trade and the consequences of that could have been in the millions of dollars.

The bug was found in Warsaw and the feeds started coming through normally again.  I am pretty sure that someone else would have found the same bug eventually when the report had dwindled to nothing or huge FX losses had been made however it was only because I was seated opposite this clerk for an extended period of time that the error was noticed earlier.  Worth noting that the effect of the error remained unnoticed by the end user of the system for a period of time presumably because he had no computer experience, wrong aptitude, and his National Federation Support People had helped him with his CV to get the job.  Lucky Citibank didn’t seek retribution and ask him to pay back money they had lost otherwise he would have had to find 500 or so other Citibank employees in a similar situation and counter sue the bank.

However to be fair I was a computer programmer and analyst and it was my job to notice these things.  During my time at Citibank, in fact my whole IT career, I was working on bug fixes all the time, because in the most part the system with the bug in it had not taken account of exceptional circumstances that could arise.  Programmers can’t think of everything.

There are many noticeable effects of bugs and errors in systems but many are also hidden from the user and are exceptionally difficult to spot.   Surprising, irrational perhaps, that POL – NFSP – POL can’t remember which one now – rely on people with no computer experience to report these effects.

More to follow on finding bugs in software systems …

 

 

Decisions Decisions Decisions

 

Next week the Judge will deliver his verdict on the first trial.  He will have to decide on multiple issues some of which are quite complicated and many which will have an effect on the final outcome for the claimants.  I am certain that when all is said and done, the claimants will be victorious and enjoy the compensation and the closure that they will receive on what has been a tedious and long drawn out affair.

However the effect of the Judge’s decisions next week will also have an impact on the future of the Post Office Network.  There is no doubt about that.  Analysis will have to be done on the scope of that impact once he has published his piece.  Of all the issues being argued, it is my opinion that one stands out above all others in regard to what happens to the network.

The Judge has to decide whether or not the written contract between Post Office Ltd and their Subpostmasters implies that a duty of good faith exists between the two parties.  The law on implied good faith in contracts is in its infancy with many test cases revealing different decisions but what does implied good faith mean?  In a word, ‘honesty’. The parties to the contract believe when they sign it that the other will act in good faith when applying the terms and conditions of the contract to their relationship. (see https://www.bclplaw.com/en-US/thought-leadership/high-court-indicates-a-duty-of-good-faith-can-be-implied-into-commercial-contracts.html)

You would have thought then that ‘honesty’ and ‘good faith’ were expected from Post Office Ltd when subpostmasters signed the contract.  The phrase, ‘it goes without saying’, describes an implied term that is never written in to a contract because it doesn’t need to be there and it would be difficult to write into a contract that a subpostmaster was expected to sign, a clause expressly excluding good faith.  That would be utterly bizarre wouldn’t it?  Sign here please and note this clause because it means we can be dishonest to you!

I wish I could get the phrase ‘beyond belief’ out of my head when I write these blogs describing Post Office Ltd’s behaviour but I cannot.  It is totally, totally, beyond belief, that in the High Court,  the QC for Post Office Ltd is arguing vehemently that there is NO implied term of good faith in the subpostmaster’s contract.  He needs to do that to win his case.  I understand that, but what I do not understand is that no-one from POL has informed him of the ultimate damage to the network the decision of the judge on this point will do because POL cannot win.

If the judge decides there is no good faith implied in the contract then only an absolute fool would sign a contract with POL in the future and certainly no solicitor in their right minds would advise any of their clients to sign such a contract that places them in a position of Fiduciary duty to POL where good faith has been specifically excluded by the courts.

If the judge decides there is good faith implied then POL lose the trial immediately in my opinion because then the honesty of POL comes into question and the matter of wilful deceit has, also in my opinion, already been proven by hiding known Horizon errors from subpostmasters and auditors.  In the absence of good faith being implied them POL could argue they were perfectly entitled to hide these errors.  POL would be on a hiding to nothing in this next trial and the ones that follow in they lost this point.

So good luck POL, the mistake you made is asking a very intelligent and skilful QC to win a case for you at all costs without considering what all the costs would be if you won.

PS If everybody who reads this sticks £10 in Nick Wallis’ PayPal account at http://www.postofficetrial.com we will be guaranteed continuing live tweets from the Court Room.  I have witnessed the work he does and he has taken on far more than he originally thought.  Not only that but he has persuaded the judge to release all the court documents and transcripts to the public which saves a huge amount of money as generally you have to pay for these.  Even if you have contributed before add a Tenner – worth every penny!