Exploring the Financial Risk of Bates & Others v Post Office Ltd


It took Alan and Susan Bates 15 years or so to secure funding for what has turned out to be one of the most expensive civil litigation hearings in the last decade.   It was a long road that eventually led to Therium, a company specialising in funding large law suits.   Funding was provided on a no win no fee basis and they entered into a contract with Freeths knowing only the facts as they were at that time pre disclosure and that they were up against a government entity with seemingly bottomless pockets.

Therium knew it was going to have to outlay many millions of pounds before they would have any possibility of recovering some or all of their expenditure.  They fund this expense from what they refer to as ‘a diverse investor base’ and those secondary investors need a return on their investment as do Therium.   Therium of course will not win all the cases they fund so a good proportion on the margin they provide the funds at needs to go to cover those losses.   You certainly wouldn’t expect them to receive only a small percentage on a successful outcome and they certainly cannot be blamed for the massive reduction in what the claimants will now eventually receive out of the £58m.

When you apply to Therium for funding they will of course go through your case with a fine toothcomb and consider the chance of success, ultimately deciding whether or not to invest after the case is presented to their Investment Committee.

I do not know how many people sit on this committee nor their backgrounds, but it is very telling indeed that these clearly commercially and legally astute people made a wise choice in backing Alan when presented with the facts that Alan and Freeths had at that time.   In comparison, Post Office Ltd (POL) had not only the facts Alan had but also access to all the substantive evidence that was later produced to Freeths in disclosure and then in court.  The same evidence that led Justice Fraser to openly deride POL in all the decisions he published.

As some stage in the proceedings leading up to the eventual trial, POL would also have had to sit down at Board Level and even further up the food chain within the Civil Service (UKGI, BEIS etc) and decide upon the financial and reputational risk of the case brought against them and weigh that against the legal arguments they could pursue in their defence.   These meetings resulted in a commitment to spend millions of pounds on a defence they must have thought had a reasonable chance of success and from a financial point of view a reasonable return on the investment, perhaps not just in terms of tangible financial returns but in protecting the reputation of the Post Office network.

We cannot but admire the Therium investment committee for approving the funding of the claimants.  They got it right based on the limited evidence put before them.   The same cannot be said for all those that sat in on the various meetings that were held by POL that led to the approval of the expenditure and eventual loss of £58m from the public purse plus of course their own legal costs.

I doubt very much if the makeup of the Therium Investment committee has changed and I don’t doubt that they will have held their own small celebration when the settlement was reached (note that Therium are prevented from having any say in whether or not to accept settlements offered).  At this point, in comparison, I should be able to recount that those that were responsible in POL, the civil service and the government for deciding that they could win this case have now left the building because they have displayed such a remarkable lack of ability in legal, commercial and above all ethical, terms but I cannot.  They all remain in their place with the exception of one who may have left the building but  has not only been honoured by the Queen but also received appointments to two senior government positions.  They remain to oversee the financial risks of a £1 billion company and in doing so, having taken on board the findings of the court, have yet to make any substantive changes to the way they operate; the same way they operated that brought about this litigation in the first place.

A long long time ago I started writing about the unaccountable face of Post Office Ltd and the fact that despite being in control of hundreds of millions of pounds of public money they remain unanswerable for their actions to anyone.   Surely this now is the time for the government to put an end to this and only a full scale Judicial Inquiry will make sure it never happens again.


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