1 Thursday, 27 July 2023 2 (09.58 am) 3 MS PRICE: Good morning, sir. Can you see and hear 4 us? 5 SIR WYN WILLIAMS: I can indeed. 6 MS PRICE: May we continue, then, with the evidence 7 of Ms Helliwell? 8 SIR WYN WILLIAMS: Yes, of course. 9 SUSANNE JANE HELLIWELL (continued) 10 Questioned by MS PRICE (continued) 11 MS PRICE: Good morning, Ms Helliwell. 12 A. Good morning. 13 Q. We looked yesterday afternoon at counsel's 14 advice in the Cleveleys case, which was dated 15 26 July 2004. Then just before we adjourned, we 16 looked at the note of a conference call with 17 counsel attended by you, Mandy Talbot, Jan 18 Holmes and Keith Baines, at which further 19 evidence was discussed and a plan was made for 20 the production of statements from Jan Holmes and 21 Keith Baines. 22 A. Yes. 23 Q. May we have, please, that note on screen, the 24 reference is WITN04600310. We can see here the 25 date at the top left and that's 3 August 2004, 1 1 so eight days after counsel's advice was 2 produced. We can see about halfway down the 3 page the trial date, which was 16 to 18 August, 4 so less than a fortnight away. 5 A. Yes. 6 Q. My question for you yesterday, which prompted us 7 to go to this document, related to the purpose 8 of the further evidence which was obtained from 9 Jan Holmes and Keith Baines, namely the 10 statements of the 11 August 2004. We know that 11 counsel had advised the Post Office to abandon 12 its claim against Mrs Wolstenholme for apparent 13 losses in the sum of just over £25,000? 14 A. Yes, yes. 15 Q. And the advice was also to admit 16 Mrs Wolstenholme's claim of wrongful 17 termination; that's right, isn't it? 18 A. Yes, it is, yeah. 19 Q. He had advised, however, that there was 20 an argument to be made on one part of 21 Mrs Wolstenholme's counterclaim, the claim that 22 there was an implied term in the contract for 23 services that the computer system provided for 24 her use would be fit for purpose? 25 A. Yes. 2 1 Q. His view, set out at paragraphs 37 and 40 of 2 that written advice -- we needn't go back to 3 them, we looked at them yesterday, but just in 4 summary -- was that it could be argued that any 5 implied term should extend only as far as the 6 obligation to take reasonable steps to provide 7 a computer system that was fit for purpose. Is 8 that a fair summary? 9 A. Yes, it is. I would say it is. 10 Q. The fact that system provided may have been 11 defective on this occasion, to use his words, 12 did not necessarily mean a breach of this 13 implied term, and his advice was that further 14 evidence should be adduced on behalf of the Post 15 Office that reasonable steps were indeed taken; 16 is that right? 17 A. Yes. 18 Q. It's against that backdrop, isn't it, that the 19 discussion of further evidence at the conference 20 was taking place? 21 A. Yes, it was, yeah. 22 Q. Looking, please, to just above the trial date in 23 this note, we see counsel's conclusion, that 24 first word is difficult to make out, but: 25 "... if goes to dispute, likely to find that 3 1 computer system let JW down." 2 Then under "Tricky position", a bit further 3 down the page: 4 "We say she had difficulty operating and 5 calls to HSH were part of dealing with problems. 6 Beyond point of analysing her system. Aiming to 7 say that potentially implied terms to provide 8 system that worked and system in place to 9 support her." 10 Over the page, please: 11 "Extra evidence that can be introduced to 12 support this claim." 13 So it appears, doesn't it, that the evidence 14 to be obtained from Jan Holmes and Keith Baines 15 was intended to address the reasonable steps 16 taken to ensure the computer was fit for 17 purpose, the implied term point. 18 A. Yes, and the support given. 19 Q. Before we leave this document, can we look, 20 please, towards the bottom of this page. The 21 penultimate point here from KB; is that Keith 22 Baines? 23 A. Yes, I believe so. 24 Q. "During acceptance satisfied that if crashes 25 happen then transactions would not be lost." 4 1 So this what you were being told, isn't it, 2 about the Post Office's understanding of the 3 consequence of crashes for transactions at the 4 point of acceptance. 5 A. Yes, that's what we were being told. Yes. 6 Q. That document can come down now. Thank you. 7 Following this conference call, you assisted 8 Jan Holmes and Keith Baines to produce those 9 statements that we've just discussed. In 10 relation to Jan Holmes' statement, the reference 11 in your statement for the Inquiry at 12 paragraph 18 is, in fact, to a draft statement. 13 We do now have the final version and, for the 14 benefit of the transcript, that is WITN09020117. 15 We need not display that document now. 16 Keith Baines's second witness statement, 17 dated 11 August 2004, is at POL00118224. May we 18 have this on screen, please. 19 Can you recall now what the process was for 20 the drafting of these statements from Jan Holmes 21 and Keith Baines? 22 A. In the case of Keith Baines, I would have had 23 more involvement in the actual drafting, 24 taking -- he would provide the information in 25 a form that I would then adapt and put it in 5 1 more of a witness statement form and obviously 2 take further instructions from him on any points 3 that I wasn't sure about or where I thought 4 further information was required. And I think 5 as I said yesterday, I base it on the 6 information and documentation received from him, 7 it would be approved. It would then be looked 8 at by counsel and counsel would have his input 9 and deal with any queries or amendments 10 following that. 11 Q. Can we look, please -- apologies. 12 A. I was going to say that I think the position 13 with Jan Holmes would have been slightly 14 different, which I can explain if you want me 15 to. 16 Q. Please do. 17 A. I think as I've said in my statement, obviously 18 Fujitsu weren't our client. So my involvement 19 with them was limited. I think, looking at Jan 20 Holmes' statement, he produced the -- very much 21 the narrative of it because it was very factual 22 and sort of detailed about the system itself. 23 And looking at the format of the text, 24 I probably put in more just at the start of the 25 statement and then the end of it, and then he 6 1 provided the body of it and obviously again, the 2 comments from myself, counsel, to deal with any 3 amendments or any queries that we were looking 4 at -- that we had. 5 Q. Could we look, please, further down the page, 6 starting at paragraph 3 in this second statement 7 of Keith Baines. We see here the evidence: 8 "The Horizon system was developed as 9 a managed service by Fujitsu Services Limited, 10 formerly ICL Pathway Limited who also provided 11 the actual equipment. Notwithstanding this and 12 as is the Post Office's usual practice in 13 contracts for the development of complex IT 14 services, the Post Office put in place a formal 15 acceptance process to satisfy itself that the 16 service was fit for purpose before allowing it 17 to be widely deployed. 18 "The Post Office's required specification of 19 the service provided by Fujitsu included 20 requirements relating to the ease of use of the 21 system, the stability of the system and the 22 integrity of the financial information which it 23 produces. 24 "The acceptance process of the system used 25 a mixture of technical reviews, testing by 7 1 Fujitsu and by the Post Office and the operation 2 of a live pilot stage in Post Office branches to 3 confirm that each requirement was being met 4 satisfactorily. I should state that this was 5 not a 'rubber stamping' exercise, and that 6 significant problems were found and remedied 7 before the main 'rollout' was authorised. 8 "Whilst there were some problems with system 9 stability during the early stages of the 10 acceptance process, these were rectified, and 11 a period of monitoring in pilot offices during 12 October and November 1999 demonstrated that the 13 rectification had been effective in reducing the 14 incidents of reboot and related problems to 15 an average rate of less than 4 per counter 16 position per annum. Subsequent improvements by 17 Fujitsu during the year 2000 reduced this to 18 less than 3 per counter position per annum." 19 What were you told about the detail of the 20 acceptance process being referred to here by 21 Mr Baines? 22 A. My goodness, again, it's 19/20 years ago. I can 23 only assume that I was told what was -- pretty 24 much what was in his witness statement. 25 Q. Were you given any further detail beyond what is 8 1 here? 2 A. I just can't remember. I mean, to the best of 3 my recollection, these were quite -- they were 4 quite detailed and technical statements that 5 really the information came from -- very much 6 from the parties, the individuals who were 7 providing the statements. I may have asked 8 questions around that and got further 9 information but I just can't remember. 10 Q. We looked yesterday at Keith Baines' first 11 witness statement. May we have that on screen 12 again, please. It is POL00118250. Looking, 13 please, over the page to paragraph 5 of that 14 statement. In this first statement in 2003, 15 Mr Baines said this: 16 "Any faults that occurred in the Horizon 17 computer system were eliminated once they were 18 identified. Whilst it is possible for mistakes 19 to occur, this is usually through incorrect 20 inputting in the computer system in the office 21 affected by the mistake. All subpostmasters 22 were fully trained in the use of Horizon 23 equipment. The system was fully tested before 24 it was used by the Post Office and it is fit for 25 its purpose. The system itself does not create 9 1 losses as is claimed by Mrs Wolstenholme." 2 There seems to be a difference, does there 3 not, between what Mr Baines is saying at 4 paragraph 6 of his second statement that we've 5 just looked at, that rectification had been 6 effective in reducing the incidents of reboot 7 and related problems, and what is said here at 8 paragraph 5 in the first statement: 9 "Any faults that occurred in the Horizon 10 computer system were eliminated once they were 11 identified." 12 At the time you were involved in drafting 13 Mr Baines' second statement, did you have any 14 concerns that Mr Baines had not been full and 15 frank about the problems which had been 16 experienced with the Horizon System in his first 17 statement? 18 A. Could I just have a look at his second statement 19 again, the paragraph that you were referring to, 20 please? 21 Q. Of course. Looking back, please, to 22 POL00118224, and over the page, please, to 23 paragraph 6. 24 We see here, about three lines down: 25 "... the rectification had been effective in 10 1 reducing the incidents of reboot and related 2 problems to an average rate", and we see those 3 two rates provided there. 4 A. Mm. I can only assume that, at the time, 5 obviously he believed the statement in his first 6 witness statement to be true. Can I just have 7 a look at that sentence again, just so I can -- 8 Q. In the first statement? 9 A. Yeah. 10 Q. That is POL00118250, over the page, please, to 11 paragraph 5. 12 A. It's not hugely different because he's saying 13 that the problems -- that there were faults but 14 they were eliminated, as opposed to rectified. 15 Q. I was referring, really, to the reduction 16 reference to incidents. So a reduction in 17 incidents to three per counter position 18 per annum? 19 A. He may not -- at that stage, we were looking at 20 it from a different perspective and he was then 21 asked to look into it in more detail. So it may 22 be that the further detail produced that 23 information, that he then provided in his second 24 statement. 25 Q. When you were assisting Mr Baines in drafting 11 1 his second statement, did he tell you about any 2 specific bugs, errors and defects which had been 3 identified in the Horizon System up to that 4 point? 5 A. Not that I can remember, no. 6 Q. That document can come down now. Thank you. 7 We know that this case did settle and that 8 the Post Office made a payment to 9 Mrs Wolstenholme. Were any formal concessions 10 made in the case before this settlement was 11 achieved? 12 A. This is the bit I really can't remember, and 13 I can't remember the terms on which the case was 14 settled. So I can't help you on that. 15 Q. Can you help us with whether the statements of 16 Jan Holmes and Keith Baines, dated 11 August 17 2004, were ever failed at court and served on 18 Mrs Wolstenholme? 19 A. I can't recall, no. I mean, as I say, I can't 20 recall. I've assumed that we perhaps settled it 21 actually on the day when we -- as the trial 22 started. But I have got no specific 23 recollection. 24 Q. It may follow from your answer -- your answers 25 you've just given -- but can you help us with 12 1 what the final settlement figure was in the 2 case? 3 A. No. No, when I read through these papers, I do 4 recall the £25,000 payment into court. So I do 5 recall that that was made, and then obviously 6 the Post Office would have had to have paid more 7 to settle it but I can't remember what the terms 8 were. 9 Q. The final document I would like to take you to, 10 please, is POL00095375. This is a letter from 11 Keith Baines to Colin Lenton-Smith, dated 12 5 February 2004. If we can just scroll down 13 a little, so we can see who it's from. Over the 14 page, please. This appears to be the letter 15 which Colin Lenton-Smith's Cleveleys letter and 16 appendix, which we looked at yesterday, was 17 responding to. 18 There is one point in particular I would 19 like to ask you about, the bottom paragraph on 20 the first page, please: 21 "The County Court instructed the parties 22 jointly to commission a report from an expert 23 approved by the Court. I enclose a copy of his 24 report. As you will see, the expert's opinion 25 is that the Horizon system installed at 13 1 Cleveleys branch was defective and that the HSH 2 was more concerned with closing calls than 3 preventing recurrence of faults. As I'm sure 4 you will understand, Post Office is concerned by 5 these findings, not only in relation to this 6 particular case, but also because of any 7 precedent that this may set and that may be used 8 by Post Office's agents to support claims that 9 the Horizon System is causing errors in their 10 branch accounts." 11 Were you aware at the time of the Post 12 Office's concern to avoid a precedent being set, 13 that may be used by the Post Office's agents to 14 support claims that the Horizon System is 15 causing errors in their branch accounts? 16 A. What's the date of this letter again, sorry? 17 Q. This is 5 February 2004, so this is just after 18 Mr Coyne's opinion was produced. 19 A. I think at that stage I was -- the only thing 20 I was aware of was that the Post Office, the 21 people I was dealing with, were concerned by the 22 findings of the report and concerned that Jason 23 Coyne had reported on possible defects in the 24 system because, obviously, they hadn't believed 25 that to be the case. At this stage, I don't 14 1 think I was aware that the Post Office were 2 concerned about a precedent being set. That 3 probably came -- that came later. 4 Q. You say that came later. When later did you 5 become aware of that? 6 A. Um, well, I can say that I was specifically 7 aware of it in the run-up to the advice that we 8 got from Stefan Lewinski because that 9 prompted -- that was one of the matters that 10 prompted us to get the advice because of the 11 difficulties in the case and possible 12 consequences of the case -- of there being 13 a finding against the Post Office. 14 So I can certainly say in the run-up to 15 obtaining that advice and then having had that 16 advice and afterwards. 17 Q. At the time, were you aware of any other cases 18 involving the Post Office in which 19 subpostmasters were attributing apparent losses 20 to the Horizon System? 21 A. No, no, I wasn't. No, I wasn't aware of any 22 cases, no. 23 Q. If there were such cases, would you have 24 expected the Post Office to tell you about them? 25 A. I would have expected them to -- the Post Office 15 1 to tell me that they had other ongoing cases in 2 which -- yeah, in which alleged defects -- 3 defects with the system were being alleged. 4 Q. Would you have considered information relating 5 to such cases to be disclosable material in the 6 Cleveleys case? 7 A. It would depend on the nature of the 8 information. I'd have to see -- I'd have to 9 have a look at what information there was and 10 then take view on it from there. 11 Q. The losses alleged in this case by the Post 12 Office totalled over £25,000. If the Post 13 Office considered these were true losses, rather 14 than illusory ones, what was the Post Office's 15 explanation or favoured explanation for the 16 shortfall? Can you recall? 17 A. I can't specifically recall. I know that there 18 were suggestions about errors in inputting 19 information and the management of the system, 20 but I don't -- I can't specifically recall. 21 SIR WYN WILLIAMS: Sorry, as far as you were aware, 22 Ms Helliwell, did the Post Office in any witness 23 statement seek to explain the losses it was 24 alleging, ie to break down where the £25,000 had 25 come from and how it could be that that had been 16 1 lost? 2 A. Not from memory. I -- 3 SIR WYN WILLIAMS: I mean, it's not there on the 4 face of the statements we've seen. I was just 5 wondering if you'd ever been party to 6 a discussion where they might have been, if you 7 like, trying to work out what had happened? 8 A. No, I don't recall being part of the discussion, 9 all I can say is that I would assume that we'd 10 have disclosed documents supporting those 11 losses. But, in terms of any discussion, 12 I can't recall being a party. 13 SIR WYN WILLIAMS: This isn't being critical of you 14 but, if I were to draw the conclusion, if I need 15 to, that, basically, what happened was Horizon 16 said £25,000 was missing so the Post Office just 17 accepted it, and it was up to the subpostmaster 18 to try to prove the opposite; is that fair? 19 A. I think that it would be fair to say that -- 20 they would be asked to justify those losses and 21 how they were calculated. 22 SIR WYN WILLIAMS: Yes, well, what -- it may be that 23 we just haven't got all the documents, so 24 I don't want to be unfair in any way at all, but 25 there seems to be a complete absence of focus on 17 1 what happened to the £25,000 in this case. All 2 that seems to have happened is that Horizon says 3 "There's a deficit in that amount, therefore 4 there must be, therefore you, Mrs Wolstenholme, 5 are reliable for it"? 6 A. I can see that that does -- that is how it looks 7 but we've not seen the list of documents or the 8 documents that were provided by the Post Office 9 that could -- I'm not saying they would -- have 10 supported how that loss was calculated and how 11 it came about. 12 SIR WYN WILLIAMS: Anyway. This isn't a memory test 13 for you. 14 A. No, I know. It's so hard. 15 SIR WYN WILLIAMS: As a solicitor acting for the 16 Post Office in this litigation, you don't 17 actually remember seeing any documents which 18 explained the losses; is that fair? 19 A. Yes, I don't. I mean, that's not saying that 20 there wouldn't be, because I'm sure I would have 21 asked for them because we'd have to substantiate 22 the losses and how they were claimed. 23 MS PRICE: Sir, for completeness, the Amended 24 Particulars of Claim, if we can have those on 25 screen, please. That's POL00118218, starting at 18 1 the bottom of that page. Apologies, I need to 2 give you a page number. Page 13 within the 3 trial bundle. 4 Looking towards the bottom of that at page, 5 please, paragraph 5: 6 "The Defendant's subpostmaster's account 7 shows an overall final loss in the sum of 8 £25,034.34 in respect of the period up to and 9 including 4 December 2000. An itemised 10 breakdown of this figure is attached at 11 pages 61-67. Suction sum remains outstanding to 12 date." 13 So, sir, there is a document that shows 14 some -- shows discrepancies, ultimately, on the 15 accounts. 16 SIR WYN WILLIAMS: What I was trying to get at, and 17 perhaps you could help me -- I'd forgotten about 18 this, so thank you for reminding me -- but is it 19 any more than the Horizon record? 20 MS PRICE: No, sir. That's my understanding. The 21 document, for the reference, starts at page 80 22 of that, using the external pagination of that 23 document we've been looked at. 24 SIR WYN WILLIAMS: All right. I'll look at that for 25 myself. Thank you. Yes. 19 1 While I'm asking, the other question that 2 came into my mind, Ms Helliwell, was relating to 3 the questions that Ms Price asked you about the 4 differences in the wording between paragraphs 5 5 and 6 of Mr Baines's two statements, all right? 6 A. Yes. 7 SIR WYN WILLIAMS: I don't want to pursue the 8 difference in wording with you but, especially 9 in the second statement where he talks about 10 there being a reduction, as opposed to 11 an elimination, it did strike me that that is 12 information that could only have come from some 13 kind of document. It's not very likely that 14 Mr Baines was carrying that around in his head. 15 That's what I had in mind. 16 Do you recall any documents being made 17 available to you so that you could disclose them 18 in support of that witness statement? 19 A. I don't specifically recall any documents, no. 20 SIR WYN WILLIAMS: Because, on the face of it, would 21 you agree with me that, if you're going to 22 produce what would have been very late evidence 23 as in paragraph 6, giving quite an important 24 detail about a reduction in a problem, and 25 documents exist, you would have expected that 20 1 they would have been exhibited to the witness 2 statement, wouldn't you? 3 A. Yes, you would. Yes. 4 SIR WYN WILLIAMS: Clearly that didn't happen on any 5 view of it? 6 A. Pardon, sir? Sorry, sir? What was that? 7 SIR WYN WILLIAMS: On any view of it, that didn't 8 happen? 9 A. No, it didn't, no. 10 SIR WYN WILLIAMS: Right. Thank you. 11 Sorry, Ms Price, for jumping in like that. 12 MS PRICE: Not at all. Thank you, sir. 13 Did you understand there to be any desire on 14 the part of the Post Office to get to the bottom 15 of what might have gone wrong at the Cleveleys 16 branch? 17 A. Not from the people that I dealt with or spoke 18 to. I think I said in my witness statement, 19 I said in my evidence, that the people I dealt 20 with were shocked and concerned by the findings 21 of Jason Coyne's report and information that 22 seemed to be coming to light. 23 Q. Given the conclusions reached by Mr Coyne and 24 the fairly stark advice received from counsel, 25 did anyone within the Post Office or Fujitsu 21 1 express concern that the Horizon System might be 2 causing illusory losses in the accounts of 3 subpostmasters? 4 A. I don't recall specific concerns being raised 5 with me, apart from, you know, the concerns I've 6 already referred to. I don't remember any other 7 concerns raised about other accounts where that 8 may or -- that may be attributable to the losses 9 on those accounts, as well. 10 Q. Did anyone suggest to you that there would be 11 any form of investigation by the Post Office or 12 Fujitsu to establish whether there was a basis 13 for the suggestion that problems with the system 14 might be causing apparent shortfalls in branch 15 accounts? 16 A. No, I don't recall that. 17 Q. You said yesterday, Ms Helliwell, that you were 18 shocked and concerned by Mr Coyne's report. Did 19 you discuss the content of the report with your 20 supervising partner? 21 A. I would have done, because I had regular review 22 meetings, so cases were discussed at those 23 meetings. 24 Q. Was there any consideration given by Weightmans 25 to what the wider implications of this report, 22 1 Mr Coyne's report, was, going beyond the 2 Cleveleys case? 3 A. No, because at that stage, as far as we were 4 concerned or possibly the Post Office, it could 5 have just been isolated to that particular set 6 of equipment, that system that was in use at 7 that branch. 8 MS PRICE: Ms Helliwell thank you very much. Those 9 are all the questions that have. 10 Sir, before turning to Core Participants, do 11 you have any remaining questions for 12 Ms Helliwell? 13 SIR WYN WILLIAMS: No, thank you. As I said, 14 I jumped in and asked them, so thanks very much. 15 MS PRICE: I think there are some questions from the 16 Hodge Jones & Allen team and the Howe+Co team, 17 starting with the Hodge Jones & Allen team and 18 Mr Henry. 19 Questioned by MR HENRY 20 MR HENRY: Thank you very much. 21 Ms Helliwell, the fact that Mrs Wolstenholme 22 was a litigant in person, she was representing 23 herself, did that in any way influence the 24 instructions you were given by your client? 25 A. No. She had previously had solicitors as well, 23 1 hadn't she? 2 Q. Sorry? 3 A. She previously had solicitors and then she acted 4 in person. 5 Q. Yes. Why do you think that was? 6 A. I assume finance, money. 7 Q. Yes, exactly. So financial pressure. Did you 8 or your client give any thought to the fact that 9 she was a litigant in person? 10 A. As a solicitor, you always give -- have some 11 regards to the fact that someone is a litigant 12 in person and obviously deal with them 13 accordingly, that they don't have the same 14 knowledge of the legal system. 15 Q. Because I'm just -- if we might have a look, 16 please, at POL00118221, please. I'd be very 17 grateful if we could go to the internal 18 pagination at page 208, please. There we can 19 see your letter, which I -- obviously you must 20 have an opportunity to read it to yourself. 21 A. Yes. 22 Q. When you have confirmed that you've read it to 23 yourself, I'd like to take you to the response 24 to your letter of 29 April, which is the 25 following page, 209. 24 1 A. Okay. 2 Q. If we therefore go to 209. Again, if you would 3 be so kind as to just read that to yourself. 4 A. Yes. 5 Q. I mean, did you consider that you might have to, 6 given the fact that Mrs Wolstenholme was a 7 litigant in person, explain the court orders to 8 her, so that she was in no doubt of the 9 obligations upon her? 10 A. We had been at a hearing, and she'd been 11 present, and the District Judge had very clearly 12 explained what was required but I think then in 13 my next letter I may have clarified further 14 about the computer expert, I think, from 15 a further letter. And I think I simply sent her 16 the list of documents and the documents in 17 another letter, rather than her having to 18 request copies. 19 Q. Yes. You received instructions, since you 20 mention your further letter, if we could go to 21 internal documentation 211, please: 22 "Finally, as regards your request for the 23 call log details to Horizon from the period 24 June 2000 to November 2000, our client does not 25 have copies of these call log details and the 25 1 only call log details in our client's possession 2 are those referred into item 10 of our client's 3 List." 4 Is that what you were told, that the Post 5 Office did not have call log details to the 6 Helpdesk from the period June 2000 to November 7 2000? 8 A. That's what I would have been told at the time 9 and that's why it was in that letter. 10 Q. So did you not question their apparent void in 11 document retention and recording of information? 12 A. I certainly would have done. 13 Q. What were you told? 14 A. Well, as far as the -- these call log details, 15 they were then actually produced, weren't they? 16 Q. So you were therefore, at that point, being 17 given misinformation? 18 A. It would appear so because they were 19 subsequently produced. Correct me if I'm wrong. 20 Q. Well, we'll come back to that if necessary, 21 but -- 22 A. But my letter was based on information -- 23 Q. Your evidence here is that this was 24 misinformation. 25 A. This letter, obviously this is based on the 26 1 information I was receiving from the client. 2 Q. I see. Thank you. 3 Could I now turn to the issue of the single 4 joint expert, and you were asked by learned 5 Counsel to the Inquiry whether the statements of 6 Mr Holmes and Mr Baines were lodged with the 7 court and you could not say. But you accept the 8 principle, don't you, that with a single joint 9 expert, as we can see the order of the County 10 Court, single joint expert, it's vitally 11 important that they are only provided with 12 completely accurate information -- 13 A. Yes. 14 Q. -- and that the information submitted to them 15 must be scrupulously checked to ensure that the 16 expert is not offering an opinion on a false 17 premise? 18 A. Mm. 19 Q. You agree? 20 A. Yes. 21 Q. Thank you. 22 When an adverse opinion, such as that 23 received from Mr Coyne was received and Fujitsu 24 employees sought to rebut it, did the Post 25 Office recognise that Mr Coyne's opinion was 27 1 independent and unbiased? 2 A. I can't specifically say that they did, but 3 I certainly saw his opinion as being independent 4 and unbiased, and I would have relayed that to 5 the client. He was a joint expert that was 6 instructed and we had no reason to consider 7 otherwise, that it would be other than unbiased. 8 Q. Mm. Can you recall, notwithstanding the advice 9 you believe you tendered to the Post Office, can 10 you recall whether they accepted Mr Coyne's 11 opinion or not? 12 A. Whether the Post Office accepted it? 13 Q. Yes. 14 A. It's just so hard to recall but I can just more 15 recall the concern and questioning of how -- you 16 know, of that opinion because it had come as 17 a complete surprise and shock to them, and 18 it's -- 19 Q. Did they settle with good grace or did they, in 20 effect, very, very -- shall we put it 21 neutrally -- reluctantly settle this case? 22 A. From the -- certainly the people I dealt with, 23 they settled with good grace -- 24 Q. Ah. 25 A. -- as opposed to it being reluctantly because 28 1 they had to accept that the evidence -- 2 Q. So it would follow, if they were settling it 3 with good grace, that they would be persuaded of 4 the merits of the unbiased and independent 5 report and would want, therefore, to disseminate 6 the information as widely as possible, given the 7 risk to other subpostmasters, would it not? 8 A. Could you just repeat that, please? 9 Q. Well, it would follow, if they were settling it 10 with good grace, that they would be very 11 concerned as to the content of the independent 12 and unbiased expert report and would want to 13 disseminate the information so that there should 14 be no risk presented to other subpostmasters? 15 A. You would imagine that. The only qualification 16 I would make is that this report was based on 17 very limited information and documentation, 18 and -- 19 Q. And who's responsible for that? 20 A. Well, Fujitsu had -- you know, for whatever 21 reason, the archiving provisions rules, which 22 obviously had been changed by this time but 23 there was certainly a feeling that the expert's 24 report could have been -- could have been 25 different, had there been a full set of 29 1 information available and data available. 2 Q. I mean -- 3 A. There was no -- nobody knew that. 4 Q. Surely, I mean, it is obvious, and I mean no 5 disrespect to you in stating that it is obvious, 6 that the Post Office did not want Mr Coyne's 7 findings to be widely known or even narrowly 8 known by anyone other than those involved in 9 that case? 10 A. I would accept that, yes. 11 Q. Yes, and learned Counsel to the Inquiry asked 12 you about the Post Office's concern to avoid 13 publicity about Mr Coyne's negative report, did 14 they not? 15 A. Yes. 16 Q. You stated that this was expressed at around the 17 time of the conference with counsel, correct? 18 A. Yes, it must have been the run-up to it and 19 around the time, yes. 20 Q. Yes. We know that Mr Baines was at that 21 conference, don't we? 22 A. Yes. 23 Q. Would it be right to say that Mr Baines agreed 24 that the Post Office should be seeking to avoid 25 publicity? 30 1 A. Mr Baines individually? Um ... 2 Q. Yes. 3 A. Yes, I can't recall that he did -- that he 4 specifically said that, but ... 5 Q. Can we have a quick look -- no, I'm going to 6 move on. 7 But he was the most senior person from the 8 Post Office at that conference, wasn't he? 9 A. Yes, Mandy Talbot was there though, wasn't she? 10 Q. Yes, but he was a very senior member of the Post 11 Office at that conference, wasn't he? 12 A. Yes. 13 Q. You would you agree that, at around that time of 14 that conference, they wanted to avoid, and they 15 were very particular about this, publicity 16 concerning Mr Coyne's negative report? 17 A. Yes. 18 Q. Right. We know the fundamental issue was that 19 Mr Coyne had concluded that Horizon was at 20 fault. Pursuant to my earlier question when you 21 said that the Post Office accepted that with 22 good grace, do you accept now that the Post 23 Office allowed themselves to become more 24 concerned with suppressing that information than 25 actually learning from it and addressing it? 31 1 A. That's a difficult question for me to answer 2 because, at the time of my involvement, they 3 were concerned to avoid publicity. But what 4 they then did with that information moving 5 forward and looking at other issues that 6 I didn't know about, maybe that were ongoing 7 with other subpostmasters, I wouldn't have been 8 a party to that and how they -- 9 Q. I realise this is very difficult for you because 10 of the lapse of time but, of course, you are 11 relieved of your obligation, it wasn't your 12 privilege, it's the client's privilege and it's 13 been waived, you are relieved from the burden of 14 professional legal privilege. Did you see it as 15 any part of your job to warn the Post Office 16 that it would be advisable to get to the bottom 17 of this contentious issue, rather than 18 suppressing it? 19 A. I would have certainly advised that the report 20 had to be taken very seriously and that 21 questions needed to be asked. 22 Q. Surely, they must have sought your counsel, your 23 advice, on this, because it went to the heart of 24 whether Horizon was safe? 25 A. I can't say whether they sought my advice on 32 1 that or what discussions we had. It's just so 2 difficult to remember. 3 Q. But you do recall that you would have advised 4 them to take it seriously? 5 A. Yes. 6 Q. Yes. 7 A. I would have -- 8 Q. I mean, surely, you're a commercial lawyer and 9 a litigator. The reputational risk and the 10 enormous damage to the Post Office must have 11 featured in the considerations that centred upon 12 this case? 13 A. Yes, it would have featured but, again, at that 14 time, we were looking at one isolated case. We 15 didn't -- I didn't know if there were other 16 cases ongoing. 17 Q. Sorry? 18 A. At that point, we were looking at this one 19 individual case. Whether there were other cases 20 ongoing at that time about -- with issues with 21 the system, I don't know. And I think, as 22 I mentioned earlier, although the report was 23 very concerning, it had to be looked at in the 24 context of would it have been any different, had 25 all the data been available to Jason Coyne? His 33 1 report was based on very limited information. 2 Q. Because of Fujitsu? 3 A. Yes. 4 Q. So you have, on the one hand, an independent and 5 impartial and unbiased expert and, on the other 6 hand, you have Fujitsu disputing it but also, so 7 it appears, withholding information, correct? 8 A. Well, I wouldn't say withholding information. 9 The information had been archived -- had been 10 deleted or destroyed after however long, 11 18 months. 12 Q. Well, deleted or destroyed, did that not raise 13 a red flag? 14 A. That the information had -- that it had been 15 destroyed so soon? Yes. 16 Q. Well, exactly, but also -- 17 A. And that was -- that had been changed already, 18 hadn't it, to seven years or whatever, or six or 19 seven years. 20 Q. Can I now move, please, to Elaine Tagg -- 21 A. Yes. 22 Q. -- and could we please go to WITN09020115. This 23 is Mr Coyne's statement and if we could be so 24 kind to go to page 2. It's just underneath that 25 "more detailed examination", et cetera, 34 1 et cetera: 2 "My observations considering the documents 3 are as follows ..." 4 Then if we could -- yes, thank you so much: 5 "The statement from Ms Elaine Tagg, the 6 Retail Network Manager of the Post Office, at 7 paragraph 11, stated that: 8 "'Mrs Wolstenholme persisted in telephoning 9 the Horizon System Helpdesk in relation to any 10 problems which she had with the system 11 generally, these problems related to the use and 12 general operation of the system and were not 13 technical problems relating to the system'." 14 Then Mr Coyne opines: 15 "This, in my opinion is not a true 16 representation of the evidence that I have had 17 access to. Of the 90 or so fault logs that 18 I have reviewed, 63 of these are without doubt 19 system related failures. Only 13 could be 20 considered as Mrs Wolstenholme calling the wrong 21 support helpdesk requesting answers to 'How do 22 I ...?' type training questions." 23 When you saw that, that must have been very 24 troubling, mustn't it? 25 A. Yes, because we would know that Mrs -- that 35 1 Elaine Tagg was -- obviously she would be 2 cross-examined on her witness statement and 3 she'd have to deal with Mr Coyne's opinion. 4 Q. Well, leaving aside her being cross-examined, 5 what about the submission of a witness statement 6 which is so manifestly wrong? 7 A. In the opinion of the expert it is wrong, yeah. 8 That's why it -- having looked at -- that's why 9 we obtained the advice and -- from counsel on 10 the evidence, because statements like that were 11 a real cause for concern. 12 Q. It wasn't just the opinion of the expert that 13 she was wrong; even Jan Holmes said it would be 14 hard to dispute that, didn't he? 15 A. Yes. 16 Q. I don't need to take you to it, thank you for 17 your concession, but the reference is 18 FUJ00121499 at page 3. 19 A. Can I just have a look at that, please? 20 Q. Of course, by all means. Yes. Do you see just 21 the last line of that statement -- 22 A. Yes, I just wanted to remind myself. 23 Q. Do you see it? 24 A. Yes. 25 Q. You're happy? 36 1 A. Yes. 2 Q. Right. I think Mrs Wolstenholme brought this to 3 your attention in her letter which was received 4 on 2 February 2004. Did you -- because she was 5 suggesting actually that Elaine Tagg was, shall 6 we put the euphemism, not telling the truth. 7 Did you discuss the implications of providing 8 untruthful witness statements in legal 9 proceedings with your client? 10 A. Yes, I would have done. 11 Q. What did you say? 12 A. Again, it's hard to remember from so long ago, 13 but I would certainly have highlighted that as 14 a potential -- an error and potential 15 misstatement in Ms Tagg's statement. 16 Q. Could I ask you now about Mr Baines' direct 17 involvement. We know that he was involved in 18 the acceptance of Horizon and the many 19 significant problems that still existed when it 20 was rolled out I suggest he was aware of. When 21 you go to the first witness statement of the 22 late Mr Baines, which is POL00118250, and we go 23 to paragraph 5 -- and I want to make it clear, 24 Ms Helliwell, I'm not suggesting that you are 25 a party to any impropriety here because of 37 1 course you rely, don't you, on the information 2 which you are provided with, don't you? 3 A. Absolutely, yeah. 4 Q. Yes. But nearly every sentence in paragraph 5 5 of his witness statement, first witness 6 statement, could have been contradicted, it 7 would appear, from his own personal knowledge, 8 from what we now know. You weren't aware of 9 that at the time? 10 A. Absolutely not, no. 11 Q. No. Counsel to the Inquiry took you to the 12 handwritten notes of the conference that led to 13 this statement being produced, in which it seems 14 that Mr Baines said he would be candid about 15 glitches. Do you remember that? 16 A. I think so, yes. 17 Q. Now, what I want to just try and help me with is 18 this, because you said this morning to learned 19 Counsel to the Inquiry that you believe you 20 would have had more involvement in the actual 21 drafting of Mr Baines's witness statements. 22 I think you drew a distinction because Mr Holmes 23 was Fujitsu, Mr Baines was Post Office, 24 therefore you'd have had more involvement in the 25 actual drafting of Mr Baines' witness 38 1 statements; that's what your belief was? 2 A. Yes, and I think also I could tell from the 3 typeface of Mr Holmes' statement that it looked 4 a different point at the start and then as if 5 his information had pretty much been put in. 6 I'd have -- but then I do also -- with 7 Mr Baines' second statement, him and Mr Holmes, 8 I think as it's referred to in the notes of the 9 conference, and that they were working, yeah, 10 they were exchanging information, working on 11 their statements together as well. 12 Q. So they were a double act? 13 A. They were both providing information statements 14 and -- 15 Q. In tandem? 16 A. -- I think they were liaising on that, yes. 17 Q. Yes, so they were working together, they were in 18 tandem, and -- 19 A. And then -- 20 Q. Yeah. 21 A. -- before it came to -- before it came to -- 22 Q. Before it came to you? 23 A. Mm. 24 Q. That's precisely what I wanted to establish, in 25 fairness to you, lest it be thought that you 39 1 were, you know, being the active drafter? 2 A. No, I wasn't (unclear) on that, no. 3 Q. No. You weren't because, in fact, there is 4 an email from Mr Baines about his second witness 5 statement copied to you, in which he says that 6 it was the detail behind the assertions on 7 paragraph 5 of his first witness statement -- 8 what I'm trying to suggest is that he drafted it 9 without your assistance. 10 Could we go to, please, POL00118233. There 11 we are. I think this is copied to you, isn't 12 it? 13 A. Mm. 14 Q. Sent to Ms Talbot, copied to Mr Holmes, copied 15 to you: 16 "Enclosed is a statement covering Post 17 Office's approach ensuring that Horizon was 18 suitable for use for its intended uses and 19 users. I'm also copying this to Susanne 20 Helliwell. This in general, rather than 21 specific to Cleveleys, and in effect is the 22 detail behind some of the assertions in 23 paragraph 5 of my earlier witness statement ... 24 As agreed, I haven't attempted to put this into 25 the format required by the court." 40 1 So, in other words, and I mean no disrespect 2 to you, but would it be the case that he drafted 3 his second witness statement and you put it in 4 to the appropriate format? 5 A. Yes, I would have put it into the appropriate 6 format and asked any -- raised any questions or 7 queries I had on the information he provided -- 8 Q. Yes. 9 A. -- and sent it to counsel. 10 Q. Did he not in fact fax it to you, as well? Do 11 you recall that? 12 A. Gosh, I can't remember a fax. 13 Q. Let's have a look at -- 14 A. I'm sure if there's a fax here, he did. 15 Q. Let's have look at POL00118224, please. That's 16 the second witness statement, and could we go 17 to -- we know about paragraph 6. I'm not going 18 to take you to that again but could we go to 19 page 8, please. We can see there that he sent 20 it to you, didn't he? 21 A. Yes, whether it was the -- 22 Q. That was after you put it into the format and he 23 signed it; is that right? 24 A. Do we know that this is the format that he -- is 25 this him sending me his initial statement or is 41 1 it -- because that was attached to the email. 2 Q. Yes, that was attached to the email -- 3 A. Because this to me would be more that he signed 4 it and faxed it back to me because I'd need 5 a signed -- at that time, I don't think we 6 really did -- 7 Q. It doesn't appear -- yes, it was signed. So 8 this is -- 9 A. So this is after -- 10 Q. After you formatted it -- 11 A. This is probably after -- 12 Q. Yes, you formatted it, by this time, and he 13 faxes it back. So perhaps that's not so 14 important but -- 15 A. I think that's -- 16 Q. But the first one shows -- 17 A. The answer to what -- that this would have 18 been -- I assume that this would have been him 19 faxing his signed statement back to me. 20 Q. Yes. 21 A. I can't be certain but that's what I assume. 22 Q. Initially, it looks like he drafted this 23 statement without your assistance, doesn't it? 24 A. Yes, and it -- his -- it was attached to that 25 email that you just showed me that he sent to 42 1 Mandy Talbot. 2 Q. You don't recall making any alterations to it? 3 I mean, how could you? 4 A. I can't -- I just can't recall. No. 5 Q. No. Could I, in conclusion -- in his second 6 witness statement he admits to significant 7 problems of acceptance, touches on the subject 8 of blue screens, but he completely ignores the 9 Acceptance Incident which centred upon 10 unreliable cash accounts, doesn't he? 11 A. Pardon -- you'd have to just take me to that. 12 Q. Within his second statement. He doesn't mention 13 anything to do with unreliable cash accounts. 14 He doesn't deal with a very critical Acceptance 15 Incident which centred upon unreliable cash 16 accounts. You, of course, unless you're told 17 about serious Acceptance Incidents, you can't be 18 presumed to know. 19 A. No, I can't be presumed to know. 20 Q. No. You can't say "Well, why haven't you 21 mentioned this?" 22 A. No. 23 Q. So you were very much dependent, weren't you, on 24 the information that was provided to you? 25 A. Yes, absolutely. And him and Jan Holmes were 43 1 providing statements dealing purely with the 2 matters that we discussed in conference -- 3 Q. Yes. 4 A. -- and to do with the point that was raised by 5 Mr Lewinsky in his advice and evidence in 6 quantum on the implied term issue. 7 MR HENRY: Well, thank you so much. 8 A. Thank you. 9 SIR WYN WILLIAMS: Thank you Mr Henry. 10 Sorry, can we -- 11 MS PRICE: I understand Mr Jacobs has some 12 questions, sir. Did you want to proceed or did 13 you -- it depends a little on how long Mr Jacobs 14 will be? 15 SIR WYN WILLIAMS: I think I can encourage Mr Jacobs 16 to conclude his questions before a break, 17 I think. Let me put it that way, Mr Jacobs. 18 MR JACOBS: Thank you, sir. I'll endeavour to be 19 quick. 20 Questioned by MR JACOBS 21 MR JACOBS: I act for 157 subpostmasters, instructed 22 by Howe+Co, and want to ask you about a specific 23 point. Many of my clients, if not all of them, 24 feel that Post Office's attempts in 2004 to 25 suppress Jason Coyne's expert evidence and keep 44 1 that out of the public domain amounted to 2 a cover-up of the failings in the Horizon 3 System, so I want to ask you about that. 4 You said in your answers this morning to 5 Ms Price that you became specifically aware that 6 the Post Office were worried about a precedent 7 being set in the run-up to receiving counsel's 8 advice; is that right? 9 A. Yes. 10 Q. And -- 11 A. I would have been, because that's probably one 12 of the reasons that had prompted me -- I do 13 actually refer to getting his advice after we 14 received the report, but I know that over time, 15 I would have -- yeah, prompted -- become 16 concerned. 17 Q. You dealt with Mr Keith Baines quite a lot, 18 didn't you, in your dealings with the Post 19 Office in this case? 20 A. More from the purposes of witness evidence. My 21 main point of contact was Jim Cruise and then 22 Mandy Talbot. 23 Q. But you took instructions from Mr Baines in 24 relation to his first witness statement? 25 A. For his statements, yes, but in the general 45 1 running of the case, it would be the legal team. 2 Q. In relation to the precedent being set point, 3 can I refer you to a document, POL00095375. Now 4 this -- we'll wait for it to come up on the 5 screen. 6 So this is a letter from Keith Baines to 7 Colin Lenton-Smith at Fujitsu, dated 5 February 8 2004. He says, if we could perhaps scroll down 9 to the paragraph where it begins "As you will 10 see". So yes, if we go up again, I'm sorry, to 11 the last paragraph on page 1. So it says: 12 "As you will see, the expert's opinion is 13 that the Horizon System installed at the 14 Cleveleys branch was defective and that the HSH 15 was more concerned with closing calls than 16 preventing recurrence of faults." 17 Now you've heard from Mr Coyne yesterday 18 about that: 19 "As I'm sure [can be understood] Post Office 20 is concerned by these findings, not only in 21 relation to this particular case, but also 22 because of any precedent that this may set [and 23 the important bit is this] and that may be used 24 by Post Office's agents to support claims that 25 the Horizon System is causing errors in their 46 1 branch accounts." 2 Now, what I want to ask you is: do you 3 accept, from having Post Office as your client, 4 that the precedent issue they were worried about 5 was that other subpostmasters would latch onto 6 the fact that Post Office knew and was aware, 7 and their own expert had told them, that the 8 Horizon System had deficiencies? 9 A. Yes, if they had issues with other agents. 10 I wasn't aware that they had issues with other 11 agents concerning accounts. And also, I'm not 12 actually sure that I would have been -- received 13 a copy of that letter at that time. 14 Q. No, of course. But you say in your evidence 15 that you were aware that Post Office were 16 concerned -- 17 A. Yes. 18 Q. -- that Jason Coyne's report would set 19 a precedent. 20 A. (The witness nodded) 21 Q. What I'm putting to you is that the reason for 22 that precedent concern was that the Post Office 23 didn't want other subpostmasters to get wind of 24 the fact that Post Office's own expert has said 25 that there were deficiencies in the Horizon 47 1 System? 2 A. Yes, and at that time, it may not have been that 3 there were any -- as I say, I wasn't aware of 4 any other issues, but they wouldn't want that to 5 be set -- a precedent to be set for any future 6 issues should they arise. 7 Q. So is it fair to say, and you may or may not be 8 able to answer this question of course, that 9 Post Office were, from what you observed, 10 involved in covering up Horizon deficiencies 11 from subpostmasters from 2004? 12 A. I can't say that I was involved. 13 Q. But that was their precedent concern, wasn't it? 14 A. It wasn't a matter of covering up and 15 Mrs Wolstenholme could be very -- obviously she 16 was entitled to be very vocal and tell anybody 17 about this particular -- the County Court 18 proceedings, so she could have told anybody 19 about the findings of the report anyway. All 20 I know is that they were concerned about adverse 21 publicity and wouldn't wish for that to go 22 against them, you know, in terms of any future 23 potential claims. 24 Q. In any future cases? 25 A. Yes, but not that they were aware -- or I was 48 1 aware of any at that time. 2 Q. Thank you. 3 Um -- 4 A. I think I also mentioned before as well that, 5 certainly, the people that I dealt with, you 6 know, one view was that this report was based on 7 just a very, very limited amount of 8 documentation and that, for all we knew, the 9 outcome of such a report could have been 10 different had he had access to all the data, but 11 that's just -- that was possibly something that 12 I got the impression from the legal team. 13 Q. Did you hear Mr Coyne give evidence yesterday? 14 A. No, I didn't, no. 15 Q. You said that one view was that his report was 16 limited because of him being given limited 17 information. 18 A. Mm, yes. 19 Q. But do you accept that there is another view, 20 which happens also to be Mr Coyne's view: that 21 it was a perfectly valid report? 22 A. Oh, absolutely, yeah. Yeah, based -- yeah, it 23 was a valid report based on the information he 24 had. 25 Q. Can I go to -- and I apologise for showing this 49 1 one more time -- Mr Baines' first witness 2 statement paragraph 5. 3 A. Right. 4 Q. I will be very quick on this point. 5 POL00095374. You'll probably know this by heart 6 now. Just waiting for it to come on screen. 7 Here we are. 8 So paragraph 5, please. Now, you'd 9 obviously read Mr Coyne's report at the time 10 that this was drafted. Were you concerned that 11 what Mr Baines was saying at paragraph 5 wasn't 12 actually true? 13 A. What was the date of this statement? 14 Q. Now I'm afraid I'm not able to help you with 15 that. 16 A. Oh. Can I -- can you go back to the top? To 17 the first -- 18 Q. Let's go back to the top, shall we, please. 19 Again, it doesn't assist us. 20 A. Right. Can I just check, though, that -- 21 weren't the first set of witness statements 22 served before Mr Coyne's report? I can't 23 remember. 24 Q. Well, if that's the case then that's the case. 25 A. I don't know, yeah -- 50 1 SIR WYN WILLIAMS: I reckon that this statement is 2 the autumn of 2003? 3 A. That's what I thought, sir, yes. 4 MR JACOBS: Thank you, sir. 5 A. So he'd have actually done this without the 6 benefit, you know, without having sight of 7 Mr Coyne's report. 8 Q. Were you concerned that the account that 9 Mr Baines was giving in that statement, were you 10 later concerned that that couldn't be borne out 11 after Mr Coyne's expert report came out? 12 A. I would have been because, again, that would 13 have prompted the -- even more so the need to 14 get counsel's advice on the evidence because 15 I had our statements, I had Mr Coyne's report 16 and it's how our witnesses could deal with those 17 statements in the context of the report from 18 Jason Coyne. 19 Q. You have said that you discussed these matters 20 with your supervising partner. 21 A. Mm. 22 Q. What was his name? Was that Neil Kelly, who you 23 mentioned before? 24 A. This is the -- this is probably what I struggle 25 to remember because, at the time, he was my 51 1 supervising partner but then we also had 2 a partner who was responsible for that 3 particular client, Post Office, and that could 4 have been David Jacks, who is referred to 5 earlier on. So I don't, you know, I may have 6 discussed it with both of them. 7 Q. So either or both of David Jacks or Neil Kelly? 8 A. Mm. 9 Q. Did Weightmans act for Post Office in other 10 cases that were ongoing against subpostmasters? 11 A. My understanding at the time was that they acted 12 more on the employment claims. 13 Q. All right. 14 A. But they would have done, obviously this is 15 a litigation matter, commercial litigation 16 matter. So they would have had some dealings 17 but then, as you saw, the proceedings were 18 started by Consignia, by the in-house team, and 19 that may be what had happened. Maybe that was 20 what had happened on the commercial litigation 21 side initially. 22 Q. Did Weightmans view Post Office as 23 a particularly big client or important client? 24 A. At the time they were but I remember more 25 specifically on the employment side more than 52 1 anything, but that's just my recollection at the 2 time. 3 Q. Do you think that Jason Coyne's report is 4 something that would have been disclosable in 5 any future proceedings in which your firm had 6 acted against -- had acted for Post Office 7 against subpostmasters? 8 SIR WYN WILLIAMS: I'm going to stop you there, 9 because there are so many possible permutations 10 that that's almost an impossible question -- 11 A. That's a very difficult question to answer, 12 that. 13 MR JACOBS: All right. I'll withdraw that question. 14 Sir, I don't have any further questions to 15 ask. Thank you. 16 SIR WYN WILLIAMS: Thank you, Mr Jacobs. 17 Thank you, Ms Helliwell, for your evidence 18 to the Inquiry and your witness statement and 19 your forbearance in coming back this morning as 20 opposed to finishing your evidence yesterday 21 afternoon. I'm grateful to you. 22 THE WITNESS: It's a pleasure. Thank you. 23 SIR WYN WILLIAMS: So we'll take our morning break, 24 yes, Ms Price? 25 MS PRICE: Yes, sir. Mr Beer will be asking 53 1 questions of Mr Lenton-Smith next, so if we 2 could take a 10-minute break I think that takes 3 us to 11.30. 4 SIR WYN WILLIAMS: I think we'll have 15 minutes if 5 you don't mind. 6 MS PRICE: Of course. 7 SIR WYN WILLIAMS: Okay. 11.35, then. 8 MS PRICE: 11.35, sir. 9 SIR WYN WILLIAMS: Fine. Thank you. 10 (11.16 am) 11 (A short break) 12 (11.35 am) 13 MR BEER: Good morning, sir. Can you see and hear 14 me? 15 SIR WYN WILLIAMS: Yes, I can, thank you. 16 MR BEER: May I call Colin Lenton-Smith, please. 17 SIR WYN WILLIAMS: Of course. 18 COLIN EDWARD LENTON-SMITH (sworn) 19 Questioned by MR BEER 20 MR BEER: Good morning, Mr Lenton-Smith, my name is 21 Jason Beer and I ask questions on behalf of the 22 Inquiry. Can you give us your full name, 23 please? 24 A. Yes, it's Colin Edward Lenton-Smith. 25 Q. Thank you very much for coming to give evidence 54 1 to the Inquiry today and assisting us in our 2 investigation. Thank you also for previously 3 providing a witness statement. Can you open 4 that witness statement, please. I think it's 5 the first tab in the binder in front of you. 6 A. Yes. 7 Q. It's dated 22 May 2023 and, if you turn to 8 page 14, is there a signature? 9 A. There is a signature, yes. 10 Q. Is it yours? 11 A. It's my signature, yes. 12 Q. Are the contents of that statement true to the 13 best of your knowledge and belief? 14 A. They are, yes. 15 Q. For the transcript, the URN is WITN08590100. No 16 need to display that. I am going to ask you 17 some questions this morning and this afternoon 18 Mr Lenton-Smith, principally about your role in 19 the claim brought by Mrs Julie Wolstenholme, who 20 ran the Cleveleys post office in Lancashire, but 21 also some broader issues about the provision of 22 litigation support by Fujitsu, and in its 23 predecessor guise as ICL Pathway Limited, to the 24 Post Office. 25 A. Yes. 55 1 Q. Can I start with your background, please. You 2 tell us in your witness statement that you 3 qualified as a member of the Institute of 4 Chartered Accountants and worked in industry 5 from 1979; is that right? 6 A. That's correct, yes. 7 Q. If you just move forward a little bit the 8 microphone will pick you up a bit better. 9 That's it. Thank you. 10 You joined ICL Computers, or ICL, in 1990 as 11 a commercial manager within the international 12 division; is that right? 13 A. That's correct, yes. 14 Q. Was that preceded by some work in the IT 15 industry from about 1985? 16 A. Yes, I had worked for the computer company Wang 17 for four or five years previously before joining 18 ICL. 19 Q. You tell us that you worked for ICL Pathway 20 Limited from March 2001; is that right? 21 A. That's right, yes. 22 Q. Before then, had you had any involvement in the 23 project which became known as Horizon? 24 A. No, none at all. 25 Q. At that time, March 2001, you joined ICL Pathway 56 1 Limited as the Commercial and Finance Director? 2 A. Yes, it wasn't a registered directorship in 3 terms of registering at Companies House but it 4 was a position given the seniority of the 5 function, so it was leading the function of the 6 commercial and the finance functions. 7 Q. Did you take over in that position from Anthony 8 Oppenheim? 9 A. In that functional role yes, but not as 10 a director of Pathway. 11 Q. He was a director of Pathway, I think? 12 A. I believe so. 13 Q. Did you stay in that role as director until 14 October 2007? 15 A. I did, yes. Well, it changed. The role changed 16 from being a finance and commercial 17 responsibility to simply commercial. 18 Q. What did you do after October 2007? 19 A. I then worked for another multinational contract 20 that Fujitsu had taken with an international 21 company to manage that contract. 22 Q. Until your retirement in, I think, September 23 2018 -- 24 A. Yes. 25 Q. -- did you have any further involvement with the 57 1 Horizon Programme? 2 A. None at all. 3 Q. So we're principally interested in the period 4 March 2001 until October 2007 -- 5 A. Right. 6 Q. -- about six and a half years. 7 A. Yes, that's correct. 8 Q. If you can turn up your witness statement, 9 please, WITN08590100, and look, please, on 10 page 2, at the bottom of the page, paragraph 5. 11 You say: 12 "Regarding Post Office Limited, legal action 13 against [subpostmasters], as part of the service 14 for Horizon, Fujitsu provided support to [the 15 Post Office] as and when required in the form of 16 audit data, witness statements and if required, 17 appearances in court. Outside of the standard 18 service [the Post Office] may request Fujitsu to 19 provide special assistance." 20 So you say here that Fujitsu provided 21 support in the form of audit data, witness 22 statements and court appearances to support 23 legal action against subpostmasters. Was it 24 your understanding that that was part of the 25 contract between the Post Office and Fujitsu, 58 1 that required, in general terms, without looking 2 at the specific three elements you described 3 there, litigation support to the Post Office? 4 A. Within numeric constraints. So I believe, just 5 as I started, a number of audit requests were 6 made available, a negotiated position that 7 Fujitsu then -- or ICL Pathway then provided to 8 Post Office. I think it was 50 around that 9 time. 10 Q. What about anything more fundamental than that? 11 So rather than the number per month or year of 12 packets of audit data, anything more fundamental 13 in the contract, was it your understanding that 14 the contract contained any such provisions? 15 A. I think it was -- there was a letter from Martyn 16 Bennett to Post Office, which I believe -- there 17 was an agreement reached on limiting a general 18 statement on provision of information to these 19 number of requests, but I can't recall whether 20 there was anything wider than that. 21 Q. Okay. If we just go a the page to paragraph 4, 22 you say, as the Commercial Director: 23 "My role involved managing an autonomous 24 finance team and a small commercial team to 25 contract manage the Horizon contract with Post 59 1 Office and to execute contract changes for [some 2 things]." 3 Yes? 4 A. Yes, that's right. 5 Q. So was your job essentially managing the 6 contract? 7 A. It was managing the contract, yes. Well, it was 8 managing the contract from a commercial 9 perspective, so that my opposite number in the 10 Post Office, Keith Baines, we would have 11 discussions about the points of the contract and 12 these would be discussed or issues that were 13 raised would be discussed through Commercial 14 Forum, monthly, I believe, but periodically, to 15 deal with issues that arose from the contract. 16 Q. So at the time, you would have been very 17 familiar with the terms of the contract between 18 the Post Office and Fujitsu? 19 A. Yes. 20 Q. Can we look at, I think, the letter to which you 21 were referring, FUJ00155527. Just forgive us 22 a moment. Thank you. 23 This is indeed a letter to Charles Leighton 24 from Martyn Bennett. If we just look at the 25 letter generally to start with and look at the 60 1 foot of the second page -- thank you -- you'll 2 see that it's written by Martyn Bennett, the 3 Quality Director within ICL. 4 Then go back to the first page. It's 5 written to Charles Leighton, the Internal Crime 6 Manager in Post Office, and it's dated 7 6 February 2001. 8 We'll see in a moment that this concerns 9 contractual provisions and, most specifically, 10 the Post Office's need to have Fujitsu staff 11 produce witness statements for the purposes of 12 legal proceedings. So this is dated February 13 2001, that's about a month before you took up 14 position; is that right? 15 A. That's right. 16 Q. Is that an issue with which you became familiar 17 when you took up your post? 18 A. I find it -- I'm finding it difficult to 19 remember that, specifically. Working backwards 20 from the fact that we had contracted for 21 a number of audit requests and that was 22 an ongoing discussion with Post Office 23 Commercial in terms of providing more -- 24 increasing the number. There are, in the 25 minutes of the Commercial Forum later on, there 61 1 are points about increasing DWP support for -- 2 support, litigation support. So I think it was 3 an ongoing position that we started at 50, which 4 I think is what this letter and I think Keith 5 Baines, one of his submissions refers to as 50, 6 but I think they increased over time. I can't 7 remember specifically the numbers we got to but 8 it was a topic for discussion. 9 Q. This is about witness statements -- 10 A. Witness statements, yes. 11 Q. -- in particular, rather than the provision of 12 audit data. 13 A. Yeah. 14 Q. Was that an issue with which you became 15 involved, when you took up to post a month after 16 this letter was written? 17 A. Not specifically, no. 18 Q. Who -- we saw that Mr Bennett was described as 19 the Quality Director at ICL. Was he a person 20 who you knew within ICL? 21 A. No, he had left -- he left almost immediately 22 after I joined, and -- 23 Q. What was the role of Quality Director? What 24 does that mean? 25 A. Well, it wasn't a -- it's not a function that 62 1 I recognise existing at the time. I recall that 2 maybe that was passed over to other functions, 3 such as the audit manager, but I'm not sure 4 there was a specific Quality Director during my 5 time there. 6 Q. So he wasn't a part of your team, Mr Bennett? 7 A. Not part of my team, no. Part of the commercial 8 team -- not part of the commercial team. 9 Q. He was not part of the commercial team? 10 A. No. 11 Q. Was he working in the same office as you? 12 A. He may have been working in Feltham, which is 13 where we were based. But -- 14 Q. That's what the letterhead suggests. 15 A. Yeah, but I don't recall him -- I think he must 16 have left that position around that -- around 17 March, because I just can't recall his being 18 around at the time. 19 Q. If we look at the foot of the second page, 20 please, we'll see to whom the letter was copied 21 and we'll see that it was copied to Tony 22 Oppenheim, your immediate predecessor? 23 A. Yes. 24 Q. Presumably you received some sort of handover 25 from Mr Oppenheim? 63 1 A. Yes, I did. 2 Q. Would that include passing over of files? 3 A. There would have been correspondence handed 4 over, yeah. 5 Q. So we can assume that this would -- you will 6 have no specific memory, but this is the kind of 7 thing that would be handed over? 8 A. Yeah, I mean if there's a copy of this letter, 9 a hard copy of this letter on file within the 10 commercial library of information, then I would 11 have had that copy. 12 Q. Can we go back to the first page, please. I am 13 going to spend a little time on the letter. 14 A. Okay. 15 Q. If I may, because this is a new document to the 16 Inquiry, received relatively recently, and I'm 17 going to, therefore, given the importance of the 18 issue, look at it carefully. You'll see the 19 heading is "Witness Statement Request", and 20 Mr Bennett says: 21 "I am writing to respond to the exchange of 22 emails between yourself and Graham Hooper 23 recently re your request for the provision of 24 witness statements." 25 Can you recall who Graham Hooper was? 64 1 A. Yes, I do, yes. 2 Q. What was your recollection of the function that 3 he performed? 4 A. He worked with Jan Holmes in the audit area, 5 which included the provision of witness 6 statements. 7 Q. Some of the documents have got him signed off, 8 including in an email signature block, as 9 a Security Manager within the Security Team at 10 ICL? 11 A. Okay, I can't -- 12 Q. Does that jog your memory? 13 A. You've jogged my memory. I didn't remember 14 offhand what it was, but I think clearly that 15 was his role. 16 Q. Was he someone that you dealt with on 17 occasion -- 18 A. On occasion I -- 19 Q. -- given your role -- 20 A. Yes. 21 Q. -- ie when an issue over the contract arose that 22 concerned the function that he was performing? 23 A. Yes. So if there was material to be gained -- 24 to be put together in response to a commercial 25 issue that the commercial department in Post 65 1 Office would have raised, then in formulating 2 the response, he might have been part of that, 3 bringing that together, the information that we 4 then responded back to Post Office with. 5 Q. So this Mr Bennett, the Quality Director, 6 writing to the Internal Crime Manager in the 7 Post Office saying, "You've exchanged some 8 emails between a Security Manager within us, 9 ICL"? 10 A. Yes. 11 Q. He says: 12 "I believe that the relevant provision is 13 Requirement 829/1 which states: 14 "'The CONTRACTOR shall ensure that all 15 relevant information produced by the POCL 16 Service Infrastructure at the request of POCL 17 shall be evidentially admissible and capable of 18 certification in accordance with the Police and 19 Criminal Evidence Act (PACE) 1984, the Police 20 and Criminal Evidence (Northern Ireland) Order 21 1989 and equivalent legislation covering 22 Scotland'." 23 So this mentions the relevant requirement in 24 the contract? 25 A. Yes. 66 1 Q. "My concern [he says in the fourth paragraph] is 2 that POCL sees this requirement as an open-ended 3 obligation on Pathway to produce information 4 related 'witness statements' at POCL's request. 5 This is not how we see it. The requirement is 6 that relevant information produced by the 7 Horizon System at POCL's request be admissible 8 evidence in Court (which so far as such 9 information in itself can be, it is) and capable 10 of certification in accordance with PACE (or 11 equivalent in Northern Ireland and Scotland). 12 As you are no doubt aware, the relevant sections 13 of PACE (s69 and s70) were repealed by the Youth 14 Justice and Criminal Evidence Act 1999, which 15 came into force on 14 April 2000." 16 So having cited the relevant provision of 17 the codified agreement -- I think he's citing 18 from version 3 of the codified agreement 19 there -- he sets out ICL's interpretation of the 20 provision, which is that relevant information 21 produced by Horizon should be admissible 22 evidence in court and capable of certification. 23 Do you recall that being ICL's interpretation of 24 the relevant part of the contract? 25 A. No. Not when this was written because it was 67 1 before I started. 2 Q. Did you discuss this issue with Tony Oppenheim 3 when he left or as part of the handover? 4 A. Not that I recall. 5 Q. Did you ever have cause to look at this part of 6 the contract in the coming months and years? 7 A. Not that I recall. 8 Q. Let's carry on, in substantive paragraph 5: 9 "We have made our position with respect to 10 requirement 829 clear on a number of occasions. 11 However, given that you seem surprised by the 12 stance taken by Graham Hooper, it may be of 13 assistance if I set out some of the background. 14 The issue of witness statements was discussed in 15 meetings between Barry Proctor (then our 16 Security Manager) ..." 17 Do you remember Barry Proctor? 18 A. No, I don't. 19 Q. Bob Martin, recall him? 20 A. No. 21 Q. Paul Harvey, remember him? 22 A. No. 23 Q. "... in July 1999. It was made clear in those 24 meetings that Pathway did not consider the 25 production of witness statements to be included 68 1 in the scope of the requirement. An Acceptance 2 Incident (370) was raised by POCL (Bob Booth) on 3 23 July 1999 and a clearance action for this 4 incident was agreed as follows ..." 5 Can you recall what Acceptance Incidents 6 were? 7 A. I think these were incidents that were raised 8 during the acceptance process of the Horizon 9 software. 10 Q. Do you recall anything more about what 11 an Acceptance Incident, an AI, was? 12 A. No. 13 Q. In any event, the AI was agreed as follows: 14 "'Pathway will provide PACE statements as 15 necessary to support a fraud prosecution. 16 Pathway will update the work required to produce 17 draft witness statements when POCL have raised 18 an appropriate Change Request, as indicated in 19 the letter from Barry Proctor to Paul Harvey 20 dated 8 June 1999. The reason why this is 21 necessary is because Pathway has no contractual 22 obligation to provide POCL with any evidence to 23 support a prosecution'." 24 So these are all events that predated your 25 time in your position, yes? 69 1 A. Yes. 2 Q. Did you know that the Post Office was supposed 3 to produce a change notice to make provision for 4 the production of witness statements? 5 A. Well, that would have been a natural change to 6 the contract. So any change to the contract 7 would have gone through the change control 8 process and, if Post Office wanted to provide 9 for that or request that, then they would have 10 issued this change request, which would have 11 gone through, impacting an assessment and come 12 to a commercial arrangement, and that would then 13 have been included -- drafted into the contract 14 as a change. 15 Q. So what this is saying is that an Acceptance 16 Incident was raised with agreed wording and, 17 amongst that, it was agreed that, because the 18 contract includes no obligation to provide the 19 Post Office with any evidence to support 20 a prosecution, it's necessary for the Post 21 Office to raise a change to the contract through 22 a change notice? 23 A. Yes, exactly. 24 Q. The letter continues: 25 "The statutory requirement for PACE 70 1 statements and certification no longer exists 2 (as above). POCL has never submitted the 3 required change [notice] hence my negative 4 response to your request to Graham Hooper for 5 draft witness statements." 6 When you joined, a month after this letter 7 was written, did you know that the Post Office 8 was supposed to have produced a change notice, 9 ie tabling a change to the contract, but that it 10 had failed to do so? 11 A. Not specifically. I can only surmise that it 12 eventually did happen because the issue of 13 witness statements became a change to the 14 contract, so this point I was talking about, the 15 limit of 50, would have been dealt with through 16 a change request. 17 Q. So it's a separate issue, the provision of audit 18 data. We're at the moment looking at the 19 provision of witness statements. 20 A. Again, I can't specifically recall the change, 21 but I can -- I believe that that would have 22 happened in order to come to an agreement that 23 we would produce, or that Fujitsu would produce 24 witness statements, however numbered they 25 were -- however numbered they were going to be, 71 1 that would have been dealt with through a change 2 request. So any change to the contract would 3 have been done through a change control, through 4 a change request, and then a change to the 5 contract. 6 Q. In the answer before last you said, "I would 7 surmise that" -- 8 A. Well, I surmise it in the fact that I wasn't 9 around when this was -- the fact that they 10 had -- you're suggesting that they hadn't 11 produced it or this letter says they hadn't 12 produced it. I wasn't aware that they hadn't 13 produced it and all I can suggest is that, 14 because we were doing it later, that a change 15 request would then have subsequently been 16 issued, that we would have then impacted and 17 then bought into the contract. 18 Q. Okay well, we'll look at the rest of the letter 19 to see whether that follows at all because what 20 we'll see is that there's a without-prejudice 21 agreement to produce witness statements. 22 I don't think we've got a change notice in any 23 of the disclosure that we've got. 24 A. Really? Okay. 25 Q. You're essentially putting two and two together 72 1 and saying they equal four because "We must have 2 had a change notice because we produced witness 3 statements"? 4 A. That's what I'm saying, yes. That doesn't 5 necessarily follow but it's kind of a logical 6 path. 7 Q. Okay. The letter continues: 8 "In answer to your query as to what change 9 could be requested, the Change Request would 10 either be for a particular statement required by 11 POCL, or (which would appear the more sensible 12 option) to change Requirement 829 such that it 13 incorporates a more general obligation to 14 produce witness statements. Any such Change 15 Request would be subject to impact assessment 16 and costing in the usual way." 17 So what this is saying is that, "Because 18 there's a change to the contract here, we'll 19 have to assess its impact and work out how much 20 we're going to charge you for it"? 21 A. Yes. 22 Q. Mr Bennett continues: 23 "As things happened, [AI370] was not closed 24 on the basis of the clearance action referred to 25 above. It was closed instead, without 73 1 concession by Pathway, on the basis of agreement 2 between POCL and Pathway concerning access to 3 audit information. The background to the audit 4 information agreement (as you are probably 5 aware) is that during the first few months of 6 2000 there was discussion and correspondence 7 about the requirement to produce audit 8 information to support investigations. This 9 culminated in agreement in principle being 10 reached at a meeting on 29 March 2000 that 11 Pathway would provide up to 50 audit data 12 extractions per annum for audit and security 13 investigation purposes, with a maximum of 7 in 14 any calendar month. The basis of the agreement 15 was described in more detail in my letter of 16 24 May 2000 to Keith Baines and confirmed 17 subsequently in connection with closure of 18 [AI370] in September 2000 ..." 19 He provided the documents: 20 "Pathway has been providing access to audit 21 information in accordance with the agreed limits 22 and other matters set out in that letter (in 23 relation to which, by way of further 24 confirmation of the agreed arrangement, Pathway 25 will raise a [change notice])." 74 1 So what he's saying here is that, although 2 the AI was concerned with the production of 3 draft witness statements, it was actually closed 4 off by a different agreement relating to the 5 provision of audit data. 6 A. Yes. 7 Q. Therefore, the witness statement issue remained 8 outstanding? 9 A. Yes. 10 Q. He continues in the last paragraph: 11 "I trust that the above makes Pathway's 12 contractual position clear. In accordance with 13 your email to Graham Hooper of 10 January 14 stating that you 'would be happy to agree to 15 accept the cost to produce the Statements on 16 a "without Prejudice subject to Contract" basis 17 at this time, pending the outcome Commercial 18 discussions', Pathway is willing to provide 19 witness statements. However, I emphasise that 20 this is without prejudice to the above position 21 and Pathway does not accept that it is 22 contractually obliged to do so." 23 Were you aware of that without prejudice 24 agreement when you took over a month after this 25 letter was written? 75 1 A. I can't remember that specific detail. 2 Q. Over the next six and a half years, were you 3 aware of any change in the contract, whether 4 raised by a change notice or otherwise, that 5 made specific provision for the production of 6 witness statements? 7 A. My memory is not good enough to remember 8 specific details about the witness statements. 9 Q. I understand. So let's move on, please, and see 10 what happened. Can we look, please, at 11 FUJ00121788. If we scroll down just a little 12 bit further, we can see this is a letter from 13 Mr Hooper, the Security Manager, dated 14 8 September -- if we just scroll up a little bit 15 please -- 2001, so when you're in post -- 16 A. Yeah. 17 Q. -- to Mr Leighton, the Internal Crime Manager, 18 about the Higher Broughton Post Office, saying: 19 "Dear Charles 20 "Please find enclosed as requested a witness 21 statement in respect of Higher Broughton Post 22 Office. This has been produced under our 23 'without prejudice' agreement as outlined in 24 Martyn Bennett's letter to you of 6 February 25 2001. 76 1 "Thank you for your acceptance that POCL 2 will be charged on a Time and Materials basis 3 for this work." 4 If we skip over the page we can see there is 5 a witness statement -- 6 A. Yes. 7 Q. -- and it goes on for pages and pages, okay? 8 A. Yeah. 9 Q. Going back to the first page, then. We can see 10 that the witness statement is being produced 11 under the without-prejudice agreement that's 12 recorded in the letter of 6 February that we've 13 just looked at. 14 A. Yes. 15 Q. As part of your commercial responsibilities were 16 you aware that the Post Office had agreed to pay 17 ICL on a time and materials basis -- 18 A. I do remember that, yes. 19 Q. -- for support in pursuing prosecutions -- 20 A. Yes. 21 Q. -- including the provision of witness 22 statements? 23 A. Yes. 24 Q. Can you recall when into the process you 25 discovered that? 77 1 A. Can you see who is copied on this letter? 2 Q. I don't think there's any copy, if you scroll 3 down. I should say that there's lots of these 4 letters throughout your period in office -- 5 A. Yes. 6 Q. -- providing witness statements. This is just 7 an example where Mr Hooper, or the author of the 8 letter, says, "Here's a witness statement, I'm 9 providing on the basis of the without-prejudice 10 agreement in the letter of 6 February". 11 A. Yes, I suspect that I would have been aware of 12 the fact because, as a commercial issue, we'd 13 have to charge -- the finance function was part 14 of my function -- of my responsibility and, 15 therefore, we would be responsible for billing 16 the Post Office for the time and materials. 17 Q. So what was happening was that ICL was providing 18 litigation support, not pursuant to 19 a contract -- because it argued that the 20 contract didn't require it -- 21 A. Yes. 22 Q. -- but pursuant to a without-prejudice agreement 23 contained in a letter? 24 A. Yes. 25 Q. Were there any similar arrangements in place for 78 1 the provision of litigation support for 2 non-criminal investigations, ie civil 3 litigation? 4 A. I can't recall whether there was a distinction. 5 Q. Were you aware of any formal policy within 6 Fujitsu or any protocol between Fujitsu and the 7 Post Office that carried the arrangements that 8 we see here into effect? 9 A. No. I mean, there are quite a lot of 10 documentation around the contract, contract 11 reference documents, and various other 12 documentation, and I can't specifically 13 remember -- I mean, there's quite a lot of them. 14 It was a long time since I've seen the list of 15 such documentation. I didn't notice any in the 16 bundles. 17 Q. We've given you copies of the codified 18 agreements that are relevant to this time, and 19 I'll look at one of those just very briefly in 20 a moment. What I'm essentially asking is: were 21 you aware of any policy within Fujitsu that 22 said, "We've taken on this function, these are 23 the standards that are going to be applied, 24 these are how those standards are going to be 25 achieved, this who is going to do what and this 79 1 is how we're going to do it"? 2 A. I couldn't -- I can't name a document 3 specifically that would do that. 4 Q. Would you expect there to be -- 5 A. I would expect there to be a document. My view 6 of Pathway's internal documentation and controls 7 was I thought it was very good. It was well 8 documented -- all the processes were well 9 documented. I would expect that Graham Hooper, 10 as Security Manager, there would have been 11 security policies and audit policies that 12 Pathway would have followed, as a matter of 13 course. It's not something that would be left 14 floating, so there would be specific -- could 15 well be a specific document. I would expect 16 there to be a specific document within the 17 library that would set out what we were going to 18 do in this instance. 19 Q. How it was going to be done and who was going to 20 do it? 21 A. Exactly. 22 Q. Because, as you say, it can't just be left 23 floating? 24 A. No, it was a common methodology that there was 25 such -- all the policies and procedures that 80 1 followed were, I thought, in my view, well 2 positioned as a controlling mechanism of how the 3 account was run. 4 Q. Can we look, then -- we're going to look at 5 three documents that perform a similar function, 6 if they had been either issued as operative 7 guidance or actually carried into effect. Can 8 we start, please, with FUJ00152140. 9 Again, I'm going to spend a little time on 10 this document as it's a new document for the 11 Inquiry, received by us after all of the 12 relevant witnesses in Phases 2 and 3 had given 13 their evidence. Can you see the title to the 14 document "Evidential Information -- Production, 15 Certification and Retention"? 16 A. Yes. 17 Q. That looks quite hopeful, doesn't it, in terms 18 of performing the function that you just spoke 19 about? 20 A. Yes. 21 Q. Then look at the "Abstract": 22 "A description of the process required to 23 demonstrate the integrity of a PACE certificate 24 and the associated declaration." 25 Again, that looks quite hopeful, doesn't it? 81 1 A. Yes, yes. 2 Q. If we scroll down, please, to see who it was 3 authored by, you'll see its status, first, is an 4 "Initial draft". I ought to have said the date 5 at the top right was 4 August 1988. 6 I appreciate these are before your time, by some 7 margin. 8 You'll see that it's authored by Barry 9 Proctor and the distribution includes Graham 10 King; Matthew Cooper, from Alliance & Leicester; 11 Graham Hooper, from Alliance & Leicester; Pete 12 Spence; Alan D'Alvarez; Christopher Billings; 13 Dave Campbell (ICL Outsourcing); Martyn Bennett 14 and the Library. This, of course, is a few 15 years before you took up your position and, 16 therefore, you're not mentioned at all. 17 Just a couple of questions. Do you recall 18 what ICL Outsourcing was? 19 A. Yes, I believe it was the procurement function 20 for Fujitsu at the time. 21 Q. So procuring -- 22 A. Third-party services. 23 Q. You'll see that one of the places to which it 24 was distributed was a library. Was that 25 an intranet library -- 82 1 A. It was an intranet library, yes. 2 Q. -- to which you would have had access? 3 A. Err ... I'm just pausing because I'm not sure 4 whether the library -- the library was 5 controlled by the project office and by the 6 change control functions. So it was part of the 7 documentation set that they managed. So it 8 would have been available on request but I'm not 9 sure that it was simply a document -- simply 10 a library that one could just dial up and look 11 at documents. 12 Q. How would you know whether to look for 13 a document in a library if you didn't have 14 access to the library? 15 A. It's a good question. I can't remember how the 16 library was managed. It was part of the 17 infrastructure sort of function that supported 18 software and services. It was the change 19 control function. 20 Q. Okay. I'll move on. Can we go to page 4, 21 please. We can see the "Introduction". There's 22 some three passages on this page that I'm going 23 to draw your attention to, that may suggest -- 24 I'd like your view -- that this is a policy or 25 a process document that's about benefit payment 83 1 fraud prosecutions, not the prosecution of 2 subpostmasters for theft or false accounting. 3 So can you see in the first sentence: 4 "Prima facie evidence to be presented for 5 benefit payment fraud prosecutions is obtained 6 solely from the ICL Pathway Fraud Case 7 Management System (FCMS). This computer output 8 is only admissible in evidence where special 9 conditions are satisfied. These conditions are 10 described in detail in Section 69 of [PACE] and 11 require ICL Pathway to provide 'honest' 12 certification of such computer-generated 13 evidence." 14 Would you agree that the first sentence 15 appears to restrict the coverage provided by 16 this document to benefit fraud payment 17 prosecutions? 18 A. Well, the topic is about benefit payment fraud 19 prosecutions, yes. 20 Q. Well, let's look under "Scope", then: 21 "This process describes the PACE 22 certification of computer evidence originating 23 within the ICL Pathway [FCMS] to support benefit 24 payment prosecutions." 25 The last part of that sentence again 84 1 suggests that this is all about benefit payment 2 fraud prosecutions, wouldn't it? 3 A. It would seem so, yes. 4 Q. If we just scroll down to paragraph 4 at the 5 bottom, under "Certification": 6 "Irrespective of the number of fraud 7 prosecutions that the ICL Pathway FCMS supports, 8 a PACE certificate must be provided for each 9 individual prosecution." 10 So that's probably the third indication, the 11 first part of that sentence, which again 12 suggests that this document was all about fraud 13 prosecutions involving benefit payments, agreed? 14 A. It would seem so, yes. 15 Q. So, on the face of it, not much to do with the 16 prosecution of subpostmasters for theft by them 17 or false accounting by them? 18 A. On the face of it, yes. 19 Q. Can we now look at a later iteration of the 20 policy, please, FUJ00152142. You'll see that -- 21 and, again, this document is new to the Inquiry. 22 Can you see that the title and the abstract are 23 the same? 24 A. Yes. 25 Q. It's moved from being an initial draft to a 85 1 draft? 2 A. Yes. 3 Q. The distribution list is broadly the same, 4 albeit Dave Campbell at ICL Outsourcing has been 5 changed to Les Fereday at ICL Outsourcing -- 6 A. Yes. 7 Q. -- and I think Patrick Cattermole is added to 8 the list. You'll see, top right, that it's 9 dated 9 December 1998. 10 A. Yes. 11 Q. The first one was, remember, 4 August 1998, so 12 we're four/five months on. Are any of those 13 people on that list, the distribution list 14 there, Post Office people, to your knowledge? 15 A. Not that I'm aware of. 16 Q. Again, we can see that it goes to the library. 17 Now, can we look at two documents side by 18 side, the relevant parts of them, please. On 19 the left-hand side of the page can we have 20 FUJ00152140 at page 4 and on the right-hand side 21 of the page can we have the document we are on, 22 FUJ00152142, also at page 4. Thank you. 23 So left-hand side of the page, August; 24 right-hand side of the page, December. 25 Can you see in relation to the three points 86 1 that I picked up earlier suggesting that the 2 left-hand document was all about benefit payment 3 fraud, that they've gone? So in the 4 "Introduction", it says: 5 "Prima facie evidence to be presented in 6 support of criminal prosecutions ..." 7 A. Yes. 8 Q. So the restriction or limitation of benefit 9 payment fraud prosecutions has gone. 10 A. It has, yes. 11 Q. Can you see, under "Scope", whereas the last 12 line of the first paragraph of "Scope" suggested 13 that the policy related to support benefit 14 payment fraud prosecutions, in the third line of 15 "Scope", that's been changed to "to support 16 criminal prosecutions"? 17 A. It has, yes. 18 Q. Then, fourthly, under "Certification", whereas 19 previously it mentioned "Irrespective of the 20 number of fraud prosecutions", that's just been 21 changed to: 22 "PACE certificates may be required for each 23 individual criminal prosecution ..." 24 A. Indeed. 25 Q. So it looks like the fraud, benefit fraud, has 87 1 been stripped out? 2 A. Yes, it does. 3 Q. There's a couple of flies in the ointment to the 4 suggestion that I'm making, that there's been 5 a stripping out of the coverage of the policy, 6 to remove the limitation on benefit fraud 7 prosecutions. If we go over on the right-hand 8 side of the page, one page to page 5, if you 9 look at the bottom under paragraph 5: 10 "In order to demonstrate the integrity of 11 a Horizon PACE certificate for the Benefit 12 Payment Service, it is necessary to describe the 13 information", et cetera, et cetera? 14 So that again seems to be focused on benefit 15 payments, doesn't it? 16 A. Yes. 17 Q. Then if you go over the page on the right-hand 18 side again, there's a diagram -- and these 19 appeared in the earlier iteration in exactly the 20 same way. You'll see there's a diagram of 21 information flow, and can you see that it starts 22 with CAPS, which was a Benefits Agency payment 23 system. 24 A. Yes, I can see that. 25 Q. So not completely clear because there are two 88 1 residual mentions of Benefits Agency payments, 2 therefore suggesting that the policy might be 3 focused on fraud prosecutions, agreed? 4 A. Yes. 5 Q. Overall, would you agree that this tends to 6 suggest that this later iteration of the policy 7 was broader in its coverage? 8 A. It would seem it was heading that way, even if 9 there were flies in the ointment. But this was 10 still a draft, wasn't it? 11 Q. It was still a draft. Can we see what the 12 substance of the policy says, and I'm going to 13 use the later version, the one on the right-hand 14 side to do this, so we can lose the one on the 15 left, please. 16 Thank you. Then if we can blow up 17 underneath the diagram. The policy says: 18 "Given the size and complexity of the 19 Horizon system, it is conceivable that the 20 integrity of the PACE certificate will be 21 challenged by Counsel in order to discredit 22 a prosecution. If it is not possible to 23 demonstrate the certificate's integrity to the 24 Court's satisfaction, a very dangerous precedent 25 will have been set and all subsequent 89 1 prosecutions will be automatically jeopardised. 2 However, the corollary is also true and 3 a successful demonstration of honest 4 certification will stand all subsequent 5 prosecutions in good stead." 6 It continues, in the light of those 7 warnings, to say: 8 "Comprehensive records pertaining to the 9 site(s), services and individuals concerned 10 should be able to produced at all ... times. 11 These records will serve to show that the 12 relevant services were available at all material 13 times, were operating properly and had not been 14 used inappropriately." 15 So looking at those two paragraphs together, 16 would you agree that this was suggesting that 17 the person who signs the certificate must be 18 able to produce evidence to support what they 19 were certifying? 20 A. Yes. 21 Q. It was said that it was -- forgive me a moment. 22 If we go further up to page 4, please. 23 Sorry, to page 5. The policy says in the first 24 paragraph: 25 "It is therefore vitally important that 90 1 whoever signs the PACE declaration on behalf of 2 ICL Pathway can produce evidence to support 3 these statements. 4 "Traditionally, PACE certificates are signed 5 by a senior member of the Computer Operations 6 staff responsible for managing the computer 7 installation and its associated networks. ICL 8 Outsourcing performs this role as a managed 9 service for ICL Pathway, and it is assumed that 10 the information required for their assurance is 11 available to them in day-to-day operational 12 documentation and as management information ..." 13 Then there's a note to Les Fereday to 14 provide more appropriate wording: 15 "The certificate (see example at appendix A) 16 contains a declaration including the statement 17 'I sign this certificate knowing that I shall be 18 liable for prosecution if I have stated in it 19 anything which I know to be false or do not 20 believe to be true', it is therefore in his 21 rational self-interest to ensure (a) that the 22 logs are adequately comprehensive and (b) that 23 they are investigated thoroughly." 24 Just pause a moment, there's some movement 25 going on to my right. I just need to check out 91 1 what's going on. 2 So, it says that it is vitally important 3 that the person who signs the certificate must 4 be able to produce evidence to support what 5 they're certifying, yes? 6 A. Yes. 7 Q. You can't just sign a certificate. You've got 8 to be able, if you're challenged, to produce 9 secondary evidence to support what you're 10 saying, is what this policy is suggesting? 11 A. It is. 12 Q. Then it says: 13 "Traditionally PACE certificates are signed 14 by a senior member of the Computer Operations 15 staff", with a capital "C" and capital "O". 16 Who were Computer Operations? 17 A. I couldn't tell you. 18 Q. Have you any idea? 19 A. Possibly the service function, because it 20 relates to managing the computer installation 21 and its associated networks. So -- 22 Q. We know in due course that people from the third 23 tier of support, the SSC, provided some witness 24 statements and some analysts in the security 25 department provided witness statements. Are 92 1 either of those within the description of 2 Computer Operations staff? 3 A. Potentially. I'm trying to -- it's really where 4 the functions sat or they sat across, so it's -- 5 so statements that were signed by -- you saw 6 Graham Hooper and we've seen Jan Holmes, would 7 have sat across a -- not a definition but 8 a title of Computer Operations, I guess, within 9 the Computer Operations. 10 Q. It continues in the last paragraph there, having 11 set out what the declaration on the witness 12 statement says, that it is: 13 "... in his [I think that's going to be the 14 author of the statement] rational self-interest 15 to ensure that (a) logs are adequately 16 comprehensive and (b) that they are investigated 17 thoroughly." 18 Would you agree that that is common sense -- 19 A. Yes. 20 Q. -- and that it contemplates the production of 21 logs? 22 A. It would suggest that logs are available. 23 Q. Yes, and logs that have been investigated 24 thoroughly -- 25 A. Yes. 93 1 Q. -- not just produced. They've been investigated 2 thoroughly before they are produced? 3 A. Into signing the certificate, yes. 4 Q. Would you agree that this document is a document 5 that ought to be shown to or explained to anyone 6 who produced a witness statement for Fujitsu in 7 a criminal prosecution or civil proceedings? 8 A. To the extent that this -- that PACE 9 certificates were required, yes. 10 Q. Would you agree that its terms should have been 11 complied with? 12 A. If it became a version 1.0 published document, 13 yes. 14 Q. We're going to see that that never happened, 15 that it never became a 1.0. Do you know why it 16 wouldn't happen? What would stand in the way? 17 A. Well, wasn't the Martyn Bennett letter referring 18 to the fact that PACE certificates weren't 19 required? 20 Q. So do you know that that is the reason why -- 21 A. I don't -- 22 Q. -- it never became a 1.0? 23 A. I can't specifically say that but I can 24 assume -- well, I can come to that conclusion 25 that because PACE certificates were not 94 1 required, this particular policy never -- was 2 never required, but it may have appeared in some 3 other form, in terms of the production of 4 witness statements. 5 Q. Can we go on, please, to page 6, and scroll 6 down, please, to where we left off: 7 "This secondary evidence should include, but 8 is not restricted to, the following ..." 9 Then there's a series of bullet points. So 10 this is saying that behind the certificate 11 should be kept some comprehensive records, which 12 is described as secondary evidence, and they 13 should include an external auditor's certificate 14 of data integrity. 15 Were you ever aware of external auditors 16 providing certificates of the integrity of 17 Horizon data? 18 A. I can't say one way or the other. If they were, 19 it may well have been arranged at a -- at this 20 operational level in the production of the 21 statements. But I can't specifically recall an 22 external auditor. That doesn't mean to say it 23 didn't happen. 24 Q. But you'll see, certainly at this time, the 25 policy that was being proposed, when Section 69 95 1 and 70 of PACE were in force, was that there 2 should be an external auditor's certificate of 3 data integrity? 4 A. Yes. 5 Q. Can you recall any discussion that followed the 6 repeal of Section 69 of PACE about the 7 continuing necessity for an external auditor's 8 certificate of data integrity? 9 A. It wasn't dealt with at a commercial level, as 10 a commercial matter. 11 Q. If there was a cost involved in that, that's 12 something that would have bubbled up to your 13 level, wouldn't it? 14 A. Yes, I'm getting to that point, that I can't 15 recall whether we actually paid -- I mean the 16 level of detail, you know, number of suppliers 17 that we -- payments that we would have made over 18 the years, over the time, I can't specifically 19 recall a -- whether we did or whether we didn't. 20 Q. Secondly: 21 "Logs of calls to the Horizon System 22 Helpdesk and the Payment Card Helpline detailing 23 incidents of error, inaccuracy or value function 24 pertaining to the sites, equipment, services and 25 individuals concerned ..." 96 1 I'm going to skip over the next couple and 2 go over the page, please, and the last bullet 3 point. The secondary evidence should include: 4 "Testimony from expert witnesses stating 5 that, in their experience, similar incidents 6 have never happened or, if they had, they would 7 be reflected in the relevant audit log." 8 Can you recall when you joined, whether that 9 was something that occurred, namely ICL, when it 10 produced any certificates or witness statements 11 supporting a criminal prosecution, would also 12 seek, as part of the secondary evidence, 13 testimony from expert witnesses stating in their 14 experience similar incidents had never happened 15 or, if they had, they'd be reflected in the 16 relevant audit log? 17 A. No, I can't. 18 Q. Can we move on, please, and look at FUJ00152171. 19 So this is the third in the trilogy of documents 20 that I wanted to show you. You'll see that this 21 is dated 30 January 2001. It's a version 0.1 22 and therefore a draft. If we see that the title 23 has changed to "Production of System Information 24 for Evidential Purposes", the abstract is: 25 "Requirements and procedure for the 97 1 production of evidential information to support 2 potential prosecutions and procedure for the 3 creation of Witness Statements." 4 It seems to have been written by Graham 5 Hooper. Distribution: ICL Pathway Library, 6 Graham Hooper, Chris Billings. So this is 7 January 2001, just before you joined, a slightly 8 different title and abstract to what we saw 9 earlier, and this is a procedure document, 10 whereas the last ones were described as process 11 documents. 12 Can we go, please, to page 4. We can see in 13 paragraph 1 that the mentions of PACE have been 14 stripped out. 15 A. Yes. 16 Q. Would you agree that this tends to suggest that 17 this policy document is applicable to all 18 criminal prosecutions in which ICL are involved? 19 A. Yes. 20 Q. Looking at "Scope", again, mention here of PACE 21 and, indeed, of benefit fraud prosecutions not 22 included. Then under 4.0 "Certification", this 23 draft policy reads: 24 "Traditionally PACE certificates are signed 25 by a senior member of the Computer Operations 98 1 staff responsible for managing", et cetera, 2 et cetera. 3 You'll remember that from the last document 4 we looked at. 5 A. Yes. 6 Q. "The certificate (see example at Appendix A) 7 ..." 8 We'll come back to that because, in fact, 9 Appendix A does not include a sample 10 declaration. Then it sets out the sample 11 declaration and then, if we go over the page, 12 please, 4.2: 13 "The manager of the ICL Pathway Fraud Risk 14 Management team, or his deputy, will advise 15 a nominated member of ICL Outsourcing of the 16 relevant dates and times for which a PACE 17 certificate is required." 18 So it is mentioning PACE in these parts: 19 "The ... nominee will consult operational 20 records pertaining to computer and network 21 operations on the dates and times advised, in 22 order to satisfy himself that a certificate can 23 be signed with confidence. A statement should 24 accompany the certificate to the effect that 25 additional (supporting) evidence to uphold the 99 1 certificate can be produced ... To offer all the 2 evidence without it being requested would only 3 serve to flood the courtroom with 4 documentation." 5 Then "Supporting Evidence" gets its own 6 heading under 5.0. There's the passage about it 7 being conceivable that the integrity of the PACE 8 certificate will be challenged. Comprehensive 9 records must be available to be produced, as 10 before and they're set out, including the 11 external auditor's certificate of data 12 integrity. Then, over the page, we'll see 13 exactly the same as before. 14 A. Yes. 15 Q. Now, you'll remember that it said that the PACE 16 certificate was in Appendix A? 17 A. Yes. 18 Q. If we go over the page, please, we can see what 19 Appendix A is and, in fact, it's not a PACE 20 certificate at all; it's a witness statement -- 21 A. Yes. 22 Q. -- a blank witness statement in terms of date 23 and author. 24 If we just scroll through very slowly, you 25 can see it's like a template to be written by 100 1 a security analyst, and it's describing the 2 balancing process, and then later, the 3 extraction of documents. 4 Then, over the page, please, and then over 5 the page again. There's an interesting line at 6 the top of this third page: 7 "The integrity of audit data is guaranteed 8 at all times from its origination, storage and 9 retrieval to subsequent despatch to the 10 requester. Controls have been established that 11 provide assurances to Post Office Internal Audit 12 that this integrity is maintained." 13 So a draft witness statement, rather than 14 a certificate. 15 A. Certainly. 16 Q. So would you agree that post the repeal of 17 Section 69 of PACE, the draft policy appears to 18 have changed and, although there's some language 19 that refers to PACE certification, the draft 20 policy is suggesting that everything that has 21 been said before in the drafts obtains but now 22 we will produce a witness statement rather than 23 a PACE certificate? 24 A. It would appear so, yes. 25 Q. Do you know why this would not be carried into 101 1 effect, would not ever become version 1.0? 2 A. You're telling me it didn't become? 3 Q. Correct. 4 A. I can't say, unless there was another document, 5 another document which dealt with production of 6 witness statements. 7 Q. We haven't been given one. You would agree, 8 wouldn't you, and I think you, in fact, did 9 earlier, that it would be important to have 10 a policy that carried the contractual 11 requirement or the without-prejudice agreement 12 into effect, that told people within Fujitsu how 13 it was going to be done? 14 A. Yes, I -- that's what I said. 15 Q. Can you think of a good reason why a policy like 16 this would not be carried into effect? 17 A. I can't think of a good reason. 18 MR BEER: Sir, we're about to turn to the Cleveleys 19 case. I wonder whether that would be a good 20 moment for lunch and perhaps come back at 1.45? 21 SIR WYN WILLIAMS: That's fine, Mr Beer. Yes. 22 MR BEER: Thank you very much, sir. 23 SIR WYN WILLIAMS: 1.45. 24 (12.44 pm) 25 (The Short Adjournment) 102 1 (1.45 pm) 2 MR BEER: Good afternoon, sir, can you see and hear 3 me? 4 SIR WYN WILLIAMS: Yes, I can, thank you. 5 MR BEER: Thank you. Mr Lenton-Smith, we were about 6 to turn to the Cleveleys case. I'm going to 7 attempt to deal with matters chronologically. 8 Can we start, please, with what happened on 9 20 August 2003 by looking at FUJ00121482. 10 We can see here, looking at the bottom part 11 of the email first, an email from Jan Holmes to 12 you of 20 August -- 13 A. Yes. 14 Q. -- 2003. We can see the subject matter is 15 "Cleverleys", as he's described it, "Horizon 16 Equipment". 17 To your knowledge, to your memory, was this 18 your first involvement in the Cleveleys case. 19 A. I believe so. I mean, I haven't got any other 20 documentary evidence to suggest that. 21 Q. Nor have we. 22 A. No. Okay. 23 Q. What role did Jan Holmes perform at this time? 24 A. I believe he was the audit manager. I'm not 25 sure what his title is, I can -- 103 1 Q. If we flip over the page we can see his 2 signature block, describes himself as 3 a Programme Assurance Manager. What's one of 4 those? 5 A. Effectively to ensure kind of the overall 6 integrity of the programme. 7 Q. Back to the first page, please. What 8 relationship therefore, professional 9 relationship, did Jan Holmes have to you or with 10 you? 11 A. Okay, so he was a colleague not within the 12 commercial function, but matters that dealt 13 with -- that he came across that were of 14 a commercial nature or had been flagged up by 15 Post Office as of commercial nature, would come 16 to me and we would discuss these, the points, or 17 take them forward. 18 Q. Therefore, did you work quite closely with him 19 when the occasion -- 20 A. Yes. 21 Q. -- arose? 22 A. Yes. 23 Q. Reading the email: 24 "Colin 25 "Nothing is as clear as it seems. I have 104 1 some papers faxed over from [Post Office] and 2 this is my proposed reply. I've had it 3 'technically' checked by Mik." 4 Just stopping there, would you understand 5 that to be a reference to Mik Peach? 6 A. I believe so, yes. 7 Q. "Are you happy with it? Jim is Jim Cruise with 8 [Post Office] Legal Services their in-house 9 sollies", ie solicitors. 10 A. Yes. 11 Q. Then he sets out a draft email. If we scroll 12 down, please: 13 "Jim, 14 "For clarification I am not part of 15 Fujitsu's legal department. My role in Post 16 Office Account is restricted to assisting Post 17 Office with litigation support as and when it is 18 required." 19 Does that accurately describe his role? 20 A. I think it's part of his role. 21 Q. And -- 22 A. I think his role was wider than that but, within 23 his function, within his job, that's what he 24 did. 25 Q. So relevantly, it was his role? 105 1 A. Yes. 2 Q. Relevantly to this -- 3 A. Yes. 4 Q. -- issue? 5 A. Yes. 6 Q. "Thanks for the papers. I've done some 7 preliminary work and, perhaps inevitably, the 8 picture is not as clear as we might wish. 9 "Let me start with the easy stuff: 10 "1. We will have no record of any 11 transaction data from Cleveleys dated before 12 November 2000 in the central audit archive since 13 this is automatically deleted 18 months from the 14 date that it is written. So, if 30th November 15 was the last active day for the Counter ..." 16 Just stopping there, that was the last 17 active day for Julie Wolstenholme's employment 18 and operation of the counter: 19 "... that data would have been deleted on or 20 about 30th May 2002. 21 "2. Similarly, there will be no Helpdesk 22 logs since these are also deleted after 23 18 months." 24 Just pausing there, can I look at some 25 documents that predated this to work out what 106 1 had happened in this claim. 2 Can we start, please, with POL00118218. 3 This is part of the trial bundle for the claim 4 between the Post Office and Julie Wolstenholme; 5 do you see that? 6 A. Yes. 7 Q. If we go, please, to page 10 and look at 8 paragraph 14. This is part of what's called the 9 Defence and Counterclaim, so it's 10 Mrs Wolstenholme's defence to the claim that the 11 Post Office brought against her for delivery up 12 of computer equipment. She says: 13 "... it was an implied term of the contract 14 between the [Post Office] and [Julie 15 Wolstenholme] that the computer system provided 16 by the [Post Office] would be fit for its 17 purpose and the [Post Office] is in breach of 18 this term in that the computer systems provided 19 was unfit for its purpose and the [Post Office] 20 failed to ensure that the system was working 21 adequately. [Julie Wolstenholme] has supplied 22 the [Post Office] with details of the persistent 23 inadequacies of the said computer system." 24 We'll see that the date of that document is 25 6 June 2001. So it seems from this that the 107 1 operation and adequacy of the Horizon System was 2 in issue in the proceedings from the beginning 3 of June 2001; can you see that? 4 A. I can see that, yes. 5 Q. If we go forwards to page 95, please, and look 6 at paragraph 4. This is the Post Office's 7 response to what was said in the document I've 8 just shown you and it says: 9 "It is denied that said computer system was 10 unfit for its purpose and it is averred that the 11 same worked adequately." 12 Then if we go forwards to page 99, please. 13 This is an order of the court of 21 August 2001. 14 If we just look at paragraph 3: 15 "Each party do give standard disclosure to 16 the other by serving copies with a disclosure 17 statement by ... 21 October 2001." 18 Now, you wouldn't have seen any of these 19 documents at the time; is that right? 20 A. In 2001? 21 Q. Correct. 22 A. No, I haven't seen these documents, no. 23 Q. You would agree, I think, looking at them now, 24 that the operation and adequacy of the Horizon 25 System appears to have been an issue between the 108 1 Post Office, on the one hand, and 2 Mrs Wolstenholme, on the other? 3 A. That's what she claims, yes. 4 Q. Well, that's what the document -- 5 A. Says, yes. 6 Q. Yes. She claimed it, the Post Office denied it. 7 A. Yes. 8 Q. At that time, mid-2001, if Horizon data was kept 9 for 18 months, that would include all of the 10 relevant data from Horizon relating to the 11 Cleveleys branch in the period February to 12 November 2000, wouldn't it? 13 A. It would have not been deleted in -- 14 Q. It would have not been deleted? 15 A. -- in the 18 months, yes. 16 Q. In that 18 months. The relevant period in the 17 claim, I should have said, is between February 18 2000 and November 2000. 19 A. Yes. 20 Q. In the light of those documents, would you 21 expect the Post Office to approach Fujitsu to 22 seek such data? 23 A. In any other instance, one would have expected 24 that to happen, yes. 25 Q. Ie "The period is February to November 2000, we 109 1 know there's an 18-month deletion policy, we had 2 better ask Fujitsu to not delete or destroy the 3 data"? 4 A. Yes. 5 Q. Did you ever come to know why the Post Office 6 did not ask that of Fujitsu? 7 A. No, I don't know why they didn't. I think in 8 some of the documentation Jan Holmes' part of 9 the issue was that it took such a long time to 10 get Fujitsu engaged in providing information, 11 that by that time it was too late. 12 Q. As we've said, the first involvement that we can 13 trace certainly for you, was the email of 14 20 August 2003? 15 A. Which was after the date. 16 Q. Which was too late? 17 A. Too late. 18 Q. But you later, I think, came to learn of the 19 failure of the Post Office to ask Fujitsu to not 20 delete or destroy of the data. Was there any 21 conversation between Fujitsu and the Post Office 22 about how this had come to pass? How this state 23 of affairs had occurred? 24 A. No, by which time, I think it was almost 25 a pointless conversation because they knew it 110 1 had been deleted and, therefore, the 2 conversation wouldn't go anywhere. 3 Q. Would there have been no point in such 4 a conversation? 5 A. There might have been a point of the 6 conversation but, by that time -- by 2003, when 7 I was involved and subsequently when Keith 8 Baines wrote to me, it was a fait accompli. The 9 data had gone. So they were looking for other 10 ways to try to validate the Horizon System or 11 refute the allegations from -- that were being 12 made against it. 13 Q. Thank you. That document can come down and we 14 can go back to FUJ00121482. This is the email. 15 Scroll down, please. So we dealt with 16 paragraph 1 about the deletion. Paragraph 2: 17 "Similarly, there will be no Helpdesk logs 18 since these are also deleted after 18 months." 19 Do you know whether that's true or false? 20 A. I don't know. 21 Q. Did you see in the claim Helpdesk logs produced, 22 in order for Mr Coyne to opine on their 23 contents? 24 A. I can't remember, I'd have to go -- I'd have to 25 look at their respective -- his report and our 111 1 commentary on his report. 2 Q. Okay, well, we'll get to that in the chronology 3 but keep that in mind. Mr Holmes says that 4 records of transactions cannot be retrieved if 5 a counter has been switched off for 35 days. 6 Did you know whether that was accurate or not? 7 A. I believed it was around a month, that the 8 transactions would sit on the counter for 9 a month. 10 Q. Paragraph 4, Mr Holmes says: 11 "Under no circumstances would we allow a 3rd 12 party direct access to a counter. The file 13 store is encrypted and for a 3rd party to make 14 sense of the data we would have to release to 15 them details of the encryption key. This we 16 would not do." 17 So the third party access, who did you 18 understand that to refer to? 19 A. I'm not sure because I haven't got the faxed 20 questions that had come in from Post Office as 21 to what this is answering. So I'm not sure who 22 he's referring to in terms of a third party. At 23 that point it wasn't an expert, I don't think. 24 Q. If we go further down, on the page, please: 25 "How we can help: 112 1 "1. If this is to be pursued then the work 2 would have to be undertaken by our technical 3 specialists in Bracknell, possibly with the 3rd 4 party in attendance as an observer. Said 3rd 5 party would require to be security cleared 6 before being allowed access?" 7 Again, does that help you to understand what 8 was being sought here, who the third party might 9 be? 10 A. I'm not sure who the third party would be. 11 Q. Again, if we can pause this for the moment and 12 jump ahead a little and look at something that 13 was written later about this stage in the 14 episode, can we look at FUJ00121485. This is 15 just to date the document that we're about to 16 look at. It's six or seven months later. It's 17 an email from Jan Holmes to you and he says 18 that: 19 "Colin, 20 "[It's an] Early view of where I am with 21 a reply to Keith's letter." 22 We're going to come back to that when we get 23 to it but, in the course of this, he says 24 something about "this early stage". If we can 25 go back to FUJ00121486, thank you. This is the 113 1 attachment to the email, so we can treat this as 2 being February 2004 -- 3 A. Yes. 4 Q. -- 18 February 2004. It's the "Background" 5 section. Mr Holmes says: 6 "POL have been in dispute with [postmaster] 7 of this Outlet since mid-2000. Essentially, 8 [Post Office] have made a claim against the 9 [postmaster] for losses at the Outlet, against 10 which she had counter-claimed that the problem 11 was caused by the Horizon System and she was 12 refusing to release the equipment as she 13 believed an examination of it would vindicate 14 her. A court order was made on 19 February 2003 15 that a computer expert examine the equipment. 16 "POA's first involvement ..." 17 I think that essentially means Fujitsu's. 18 A. Post Office Account, yes. 19 Q. "[Fujitsu's] first involvement was a request 20 made 8 August 2003 by [Post Office] that we 21 provide a Witness Statement 'about the Horizon 22 equipment and what it contains (or doesn't) and 23 give [Mrs Wolstenholme] a chance to object'. 24 [Post Office] wanted the Court to overturn the 25 Court Order so that [the Post Office] could 114 1 recover the equipment. 2 "On 20 August a fax was received from [Post 3 Office] explaining the situation and requesting 4 a Witness Statement to the effect that there was 5 nothing on the equipment that would assist the 6 [postmaster] in her claim and that it should be 7 returned. 8 "The following day I replied, by email, 9 stating that I was loath to produce a Witness 10 Statement at this stage but explaining what 11 information existed on the equipment, what would 12 happen if it was switched on and that we would 13 not allow 3rd parties access. I also explained 14 how we could help POL. I received no reply to 15 this email." 16 Again, from that, does it appear that not 17 only was your first involvement in August 2003 18 but Mr Holmes' first involvement was 2003. 19 A. Yes, in response to the fax. 20 Q. Does that again accord with your recollection 21 that the first involvement of Fujitsu was only 22 in August 2003? 23 A. Yes. 24 Q. That highlighted paragraph there, the last one, 25 that "The following day I replied with 115 1 an email", that looks like the email that we've 2 just looked at, doesn't it? The one saying, 3 "The following day I replied", that looks like 4 the draft we just looked at, doesn't it? 5 A. Can we look at the email again? 6 Q. Sure. You will see that he doesn't say that 7 he's loath to produce a witness statement. 8 FUJ00121482. Yes, thank you. Scroll down 9 please, at the draft. 10 A. On the next page, does it go on? 11 Q. Yes, thank you. 12 A. No. Back again, sorry. So "How we can help". 13 Q. Sorry? 14 A. I was just looking at "How we can help". 15 I can't see a reference to the fact that we're 16 not going to produce a witness statement. 17 Q. No. Do you know why Mr Holmes would have been 18 loath to produce a witness statement? 19 A. At this stage, he says. No idea. 20 Q. We saw from the document we just looked at that 21 Mr Holmes added "After I sent this reply, there 22 was no reply from the Post Office". 23 A. That's correct. 24 Q. Does that accord with your recollection, that 25 the Post Office didn't reply? 116 1 A. I-- well, I don't know that because he sent it 2 to -- who did he send this to in Post Office? 3 Q. We can look at the actual email sent, 4 WITN04600202. 5 A. To Jim Cruise. So I wasn't copied on it, so 6 I don't -- I'm not aware -- 7 Q. You wouldn't know whether -- 8 A. I wouldn't know he got a copy -- whether he got 9 a response or not. 10 Q. That's the final email sent, and it's the -- the 11 addition is second paragraph, second sentence: 12 "Under the circumstances it might be best to 13 fully understand the position before I commit to 14 writing a Witness Statement that you may later 15 [rely on] in Court." 16 A. Yes, okay, so that's kind of a toned down 17 version of his internal statement, "I'm loath to 18 produce a statement". 19 Q. So this is the email that was, in fact, sent to 20 Jim Cruise, the lawyer at the Post Office on 21 21 August 2003. Let's assume that there was no 22 reply. The next stage in the process is in 23 2004, in February. Can we move to POL00095375. 24 I think this is a letter you've referred to 25 already. It's a letter to you from Keith 117 1 Baines. 2 A. That's right. 3 Q. If we look at the second page, please. We can 4 see it's from Keith Baines, Contract Manager. 5 Back to the first page, 5 February 2004: 6 "Dear Colin 7 "You may be aware of the above case which 8 relates (among other matters) to the recovery by 9 Post Office Limited of some Horizon equipment 10 belonging to Fujitsu Services which a former 11 subpostmistress at Cleveleys post office branch 12 (Mrs Wolstenholme) has refused to return. There 13 has been previous correspondence with Jan Holmes 14 of Fujitsu ... relating to this case." 15 That's presumably a reference to the August 16 2003 exchange of emails? 17 A. Yes. 18 Q. "Mrs Wolstenholme has counterclaimed against the 19 Post Office, and the essence of her claim is 20 that deficiencies in the Horizon System and in 21 the service provided by the HSH resulted in her 22 incurring costs and losing income because of the 23 waste of her time. She is claiming that the 24 Horizon System itself has caused losses in the 25 sub post office accounts which [Post Office 118 1 Limited] is claiming against her as being due to 2 her fault and she wants the computer equipment 3 to be examined by an expert witness before she 4 will agree to its release to Fujitsu Services 5 from her premises. 6 "The County Court instructed the parties 7 jointly to commission a report from an expert 8 approved by the court. I enclose a copy of his 9 report. As you will see, the expert's opinion 10 is that the Horizon System installed at 11 Cleveleys branch was defective and that the HSH 12 was more concerned with closing calls than 13 preventing recurrence of faults. As I'm sure 14 you will understand, Post Office is concerned by 15 these findings, not only in relation to this 16 particular case, but also because of any 17 precedent that this may set and that may be used 18 by Post Office's agents to support claims that 19 the Horizon System is causing errors in their 20 branch accounts. 21 "Please can you advise me of Fujitsu 22 Services' view of the main points in the report 23 and, if you do not agree with them, please can 24 you suggest what information or advice Fujitsu 25 Services can provide to the expert that might 119 1 lead him to change his findings. 2 "An early response would be appreciated." 3 When you got this, presumably you realised 4 that there'd had been no correspondence between 5 August 2003 and now, February 2004? 6 A. Correct. 7 Q. This was a potentially commercially sensitive 8 matter for both the Post Office and Fujitsu, 9 wasn't it? 10 A. Yes. 11 Q. Were you aware at this time that any other post 12 offices or subpostmasters were claiming that the 13 Horizon System was causing errors in their 14 branch accounts? 15 A. I can't specifically say whether there were at 16 the time. All I know -- all I can state is what 17 I've put in my witness statement, is that 18 I think, at a commercial level, there were very 19 few that were raised between Keith Baines and 20 myself where he required commercial -- 21 additional commercial discussions that -- beyond 22 what was happening at the operational level, in 23 terms of witness support. Very few over the 24 seven years. 25 Q. You put it, I think, at less than five? 120 1 A. Less than five, yes. I mean, over the time 2 I was with -- on Post Office Account. 3 Q. For that six and a half year period? 4 A. Yeah. 5 Q. Were you aware, by this time, February 2004, 6 that there had been Acceptance Incidents 7 relating to accounting integrity and 8 discrepancies that had emerged during 9 development into rollout and had persisted even 10 after rollout? 11 A. No. 12 Q. Were you aware at this time of the work that 13 something called the EPOSS Taskforce had carried 14 out during the development of Horizon and 15 subsequent management decisions taken as to the 16 ongoing Electronic Point of Sale, the EPOS 17 System problem? 18 A. No. 19 Q. When you became responsible for managing the 20 contract, from March 2001, would you not look 21 back at what had occurred to lead you and Post 22 Office to that point, in terms of contractual 23 amendments, changes that had been made to the 24 contract because of, for example, Acceptance 25 Incidents? 121 1 A. There's two things, I think, to say -- is that 2 I think the position I was in mirrored what 3 Keith Baines had reflected in his witness 4 statement, was to say that the system had gone 5 through acceptance. It had been accepted by 6 Post Office, gone through acceptance tests by 7 Post Office. It was found to be working and it 8 was rolled out, and that was kind of the 9 position overall. It was understood that within 10 an IT system at this stage of this size that 11 issues would arise, they'd have can be 12 corrected. It's in the nature of software that 13 it was going to have issues that would be 14 corrected. But it was the -- then the degree of 15 impact that that would have. 16 But, certainly, the position from 17 a commercial perspective, it may be that was 18 what we felt at the time, and mirrored exactly 19 what I felt and what Keith felt, that, actually, 20 the system was working. It was not an issue. 21 There were no issues that significantly 22 issued -- or significantly caused problems, and 23 that was the stance. That was where -- how we 24 were supporting Post Office, in terms of 25 providing data to them to substantiate any 122 1 issues. 2 Q. So to summarise, your position is that, because 3 it had been through acceptance, the system must 4 be working sufficiently well -- 5 A. Yes. 6 Q. -- save that it was a large and complex system 7 and therefore there would inevitably be 8 glitches? 9 A. Yes. 10 Q. Nothing greater than that? 11 A. No. 12 Q. Had you been, by February 2004, informed of 13 something called the Callendar Square bug? 14 A. No. 15 Q. Had you ever heard of that? 16 A. Never heard of it. 17 Q. Had you, by 2004, been told about something 18 called the lock bug -- 19 A. No. 20 Q. -- or the outstanding lock on the run? 21 A. No. 22 Q. Had you, by 2004, been told about the data tree 23 build failure bug? 24 A. No. 25 Q. Had you been told about the Girobank 123 1 discrepancies bug? 2 A. No. 3 Q. Had you been told about the counter replacement 4 bug? 5 A. No. 6 Q. These are all bugs that the High Court was 7 subsequently to find existed and predated, in 8 part, 2004? 9 A. Right. 10 Q. You hadn't been told about any of those? 11 A. No. 12 Q. Would you expect to be told about those: bugs, 13 fundamental bugs in the Horizon System that 14 either were capable of or did cause 15 discrepancies in postmaster accounts? 16 A. I think if it had become an issue of concern 17 between Post Office and Fujitsu, that this would 18 have been raised at a number of forum. But I'm 19 not aware that that happened. 20 Q. That can come down off the screen. Thank you. 21 Taking a step back, at this point, the 22 position was as follows, wasn't it: the court 23 had said there should be a jointly instructed 24 expert? 25 A. Mm-hm. 124 1 Q. An expert had been jointly instructed by the 2 Post Office and Mrs Wolstenholme -- 3 A. Yes. 4 Q. -- and he had produced a report that suggested 5 that the discrepancies about which 6 Mrs Wolstenholme complained may well be as 7 a result of defects in Horizon? 8 A. I believe that's what it says. I can't 9 remember. It was only recently I got his 10 report. 11 Q. I'm sorry, it was only recently? 12 A. It was in the bundle, his report -- 13 Q. Yes, but of course you got it back in 2004, 14 didn't you? 15 A. I got it in 2004 but I couldn't precisely 16 remember what he said, other than how we 17 responded to it. 18 Q. Were you aware at this time that the Post Office 19 was prosecuting subpostmasters? 20 A. I was aware of one or -- of these instances that 21 there was anything -- there was a great number 22 of them. 23 Q. I think the figures are between 2000 and 2015. 24 A. Right. 25 Q. So the entire period some 844, resulting in some 125 1 705 convictions? 2 A. Yes. So I was not aware of the depth and 3 intensity of their activity. As I said, the 4 only ones that came up to me through Keith, 5 through the commercial function, were a minimal 6 number. 7 Q. Why did some come up to you? 8 A. It's difficult to remember. I can't remember 9 the specific -- I know there were a few, as 10 mentioned. Why there was -- why they were 11 there, I can't remember. I'm trying to remember 12 but I can't remember. 13 Q. Why might they come up to you as the contract 14 manager? 15 A. Because there was either an obligation or 16 perhaps something that we were not fulfilling or 17 they wanted to ask for additional assistance 18 that was beyond the scope or maybe witness 19 statements, which were beyond -- perhaps were 20 getting more frequent, or perhaps the number of 21 data extractions were beyond the limits that 22 they had -- we had agreed. 23 Q. If we go back to the letter from Mr Baines to 24 you, POL00095375. Look at the last paragraph on 25 the first page and the last sentence: 126 1 "As I'm sure you'll understand, Post Office 2 is concerned by these findings, not only in 3 relation to this particular case, but also 4 because of any precedent that this may set and 5 that may be used by Post Office's agents to 6 support claims that the Horizon System is 7 causing errors in their branch accounts." 8 Did you gain any sense at this time that the 9 Post Office was seeking to cover up any defects 10 in Horizon -- 11 A. No. 12 Q. -- because admitting the contrary might be 13 rather difficult, in the round? 14 A. No. 15 Q. That if the system was found to not be reliable, 16 then it couldn't be used to trade and that might 17 lead to significant financial impacts on the 18 Post Office as a whole? 19 A. No. 20 Q. Was it ever expressed to you that Horizon and 21 the continued operation of Horizon was essential 22 to the maintenance of a substantial number of 23 Post Office branches, in particular rural 24 branches? 25 A. Well, it was always -- clearly, it was always 127 1 the objective that there was a working system 2 that would support communities. 3 Q. I'm looking at it the other way around: that it 4 was said that the existence and continuing 5 operation of Horizon was essential to the 6 maintenance of the full Post Office estate. If 7 there were problems with the integrity of it, 8 that represented -- 9 A. It was never -- 10 Q. -- an existential threat. 11 A. It was never put forward like that. 12 Q. So here they're raising, in this last paragraph, 13 if we just go back, please, the Post Office, 14 a twofold concern: (1) the impact on the case 15 and, secondly, the use by others of the report 16 to say that Horizon is causing errors, yes? 17 A. Yes. 18 Q. They are the two things that are pointed out? 19 A. Yes. 20 Q. The one thing that isn't said in the letter is 21 the Post Office is concerned by this report 22 because it might be right? 23 A. No, because I think, even going back to Keith 24 Baines' Witness Statement, it didn't occur that 25 it wasn't. It was -- the statement was that it 128 1 was working and, therefore, it could not have 2 been anything to do with Horizon. 3 Q. So the one thing that we don't see in this 4 letter is "The Post Office is concerned because 5 an independent expert commissioned jointly by us 6 has pointed out defects in the Horizon System. 7 He might be right and we're operating a computer 8 system that may be faulty". You're saying that 9 that wouldn't have occurred to the Post Office 10 in your view, because of an unshakable belief in 11 the system? 12 A. Well, there was that but also, I think, they 13 wanted us to respond to the expert's report to 14 try to balance what we thought -- what both of 15 us thought were inaccuracies or perhaps issues 16 with the report. And, therefore, as it stood, 17 it was not something that needed -- they wanted 18 to cause a precedent. 19 Q. But they don't say in this letter there's 20 anything inaccurate in the report, do they? 21 A. They say -- well, he says that the expert -- no, 22 he's talking about the expert's opinion that 23 there is an issue with the system and the HSH. 24 So he's asking us to respond to those comments. 25 Q. But he's not asking you to respond in a neutral 129 1 way, is he? 2 A. Neutral? 3 Q. "Please tell us whether the expert is right or 4 not"? 5 A. No, he's not asking that. Just "Please 6 comment". 7 Q. Would you agree that the way this is written is 8 rather myopic -- narrow in perspective? 9 A. It feels as though it is one of concern. You 10 know, "surely not". 11 Q. Was that an attitude that was prevalent in your 12 dealings with the Post Office? 13 A. In the reliance on the system? 14 Q. Yes. 15 A. Yes. Well, from a commercial perspective, from 16 the commercial function, yes. 17 Q. Did you ever get the sense that the Post Office 18 thought that it must defend the system at all 19 costs because, if it didn't, then the viability 20 of the Post Office Counters business was at 21 risk? 22 A. I think they were looking for assurance that the 23 system was correct. 24 Q. Not independence and neutrality as to whether 25 the system contained errors? 130 1 A. I think there was a -- I think the dialogue that 2 you can see between us and the Post Office, 3 regarding the report, was trying to create what 4 we thought was a more balanced position on it, 5 rather than letting the expert's opinion stand 6 as it stood, which we felt didn't -- hadn't gone 7 into enough detail around the system to give it 8 full credibility. 9 Q. Can we move forwards, please, and look at 10 FUJ00121486. This is the report that Jan Holmes 11 sent to you on 18 February 2004. Remember, 12 I showed you the email before. 13 A. Yeah. 14 Q. If we pick up where we left off, we left off 15 above "The Expert's Opinion", at the foot of the 16 page. So this is Jan Holmes's response or 17 commentary upon Mr Coyne's report. 18 A. Yes. 19 Q. Did you ask Mr Holmes to look at this? 20 A. Yes, so in response to Keith's Baines' letter, 21 we would have then discussed this. 22 Q. Can you recall what your instructions were to 23 Mr Holmes? 24 A. To take -- to review the expert's report. 25 Q. Were they loaded in any way or were they simply 131 1 to look into it and report back? 2 A. No, I don't -- I wouldn't say that we were 3 loaded. I wouldn't want to do that. So I think 4 we would say that we were trying to produce 5 a balanced response. 6 Q. Let's look at what Mr Holmes's opinion or 7 comments on the opinion were. He says: 8 "Taking each opinion as it occurs in the 9 report I would offer the following by means of 10 explanation, confirmation or refutation." 11 First heading "'Reasonableness' of calls to 12 HSH": 13 "The Expert was unable to make direct 14 comparisons between similar Outlets due to the 15 absence of records. While this was true of 16 audit data formally available to POL, [Fujitsu] 17 are able to review an unregulated archive of 18 records of the other installed 6 Counter Outlets 19 over a comparable period. The table below shows 20 the output from that analysis ..." 21 Then if we go over the page to the analysis, 22 you can see that Cleveleys is in the fifth and 23 sixth row. Cleveleys [1] is all reports to the 24 HSH and Cleveleys [2] is if you strip out calls 25 to the HSH in the course of rollout; do you see 132 1 that? Do you see 1 and 2? 2 A. I see 1 and 2, yes. 3 Q. There's an explanation at the foot of the page 4 if we just scroll down. 5 A. Yes, yes. 6 Q. So if we go up, please. You'll see that, 7 assuming that it's appropriate to strip out the 8 calls during rollout, Cleveleys has a total of 9 85 calls, and I think that puts it right at the 10 top, doesn't it? It's the third highest? 11 A. Yes. 12 Q. Showing 85 calls in a 10-month period? 13 A. Yes. 14 Q. So quite a high number of calls asking for help? 15 A. Quite a lot, yes. 16 Q. So Cleveleys was third highest and broadly 17 comparable with other outlets, wasn't it? 18 That's what it shows? 19 A. Yes, I mean, I can't analyse the ratios of all 20 the different types of calls, but yes. 21 Q. If we scroll down, we can see what Mr Holmes 22 thought of it: 23 "Discounting Rollout Helpdesk calls, which 24 should have not been addressed to the HSH, it 25 can be said that in terms of total calls made 133 1 (3rd highest from 12) [percentage] that were 2 non-Advice & Guidance (4th highest) and the 3 [percentage] that were Software based (5th 4 highest), Cleveleys numbers are broadly 5 comparable with the group of Outlets." 6 What did that say to you? What's it 7 supposed to show? 8 A. There was nothing particularly standing out, 9 differentiating Cleveleys from anything else. 10 Q. They were all getting a high number of calls? 11 A. Well, I don't know whether they're high or not. 12 They're just a number of calls. I don't know 13 whether they're respectively high or not. 14 Q. Wouldn't you want to know that to draw anything 15 from it? 16 A. Well, on the basis that other outlets were not 17 reporting problems or that we -- at least Post 18 Office was not dealing with commercial, in terms 19 of prosecution or then it was broadly the noise 20 level of the system. So there was nothing 21 significantly about Cleveleys compared to 22 anything else. 23 Q. Anyway, we can see what Mr Holmes said at the 24 foot of the page: 25 "Based on the analysis [last line], and 134 1 without analysing each and every call record it 2 would be hard to dispute the opinion of the 3 Expert." 4 A. Yeah. 5 Q. Then over the page -- 6 A. That was the statement from somebody else, 7 wasn't it? 8 Q. Yes, he's quoting Elaine Tagg. 9 A. Elaine, yes. 10 Q. Thank you. "Operator advice to 'Reboot'", 11 you'll see what Mr Holmes says. Then in his 12 second paragraph, Mr Holmes says: 13 "In this context the opinion of the Expert, 14 that 'this instruction treats the effect and not 15 the cause' is correct." 16 A. Yes. 17 Q. But it is incorrect to assume that no further 18 work is being done? 19 A. Yes. 20 Q. Under Mr Coyne's heading of "Defective 21 Equipment": 22 "The criticism that the technology installed 23 at Cleveleys was 'clearly defective' is 24 subjective and based on the raising of 70 HSH 25 calls over a 10-month period. There is no 135 1 attempt to substantiate the claim nor to draw 2 any comparisons with external benchmarks." 3 Whereas this report does compare it with 4 some other benchmarks and finds that it's 5 broadly comparable? 6 A. Yes. 7 Q. Then "Summary": 8 "It's difficult to comment on the statement 9 made by the Expert in this part of his [report 10 about worrying discrepancies] although he is 11 alluding to the fact that system errors may be 12 responsible for this. 13 "This ... has been put forward by a number 14 of [postmasters] in the past ... and each time 15 it has fallen when confronted by transaction 16 data ..." 17 This is hardly a withering attack on the 18 expert, is it? 19 A. No. 20 Q. For the most part he says, "We can't really 21 argue with what he says"? 22 A. Correct. 23 Q. In particular, "Because we haven't got the 24 underlying data, we can't argue with what he 25 says"? 136 1 A. Yes, that's right. 2 Q. There's no arguing about the qualifications of 3 the expert? 4 A. No. 5 Q. He's not inappropriately qualified or -- 6 A. No, no. 7 Q. -- inexpert? 8 A. No, not at all. 9 Q. There is no quibble on his figures? 10 A. No. 11 Q. The figures that he does give are comparable to 12 other branches and there is no arguing with his 13 general approach? 14 A. No. 15 Q. Can we look, please, at FUJ00121490. If we see 16 the foot of the page, thank you, we've got 17 Mr Holmes' email to you of 18th, and then your 18 email, eight minutes later in the morning; can 19 you see that? 20 A. Yes, I can. 21 Q. "Jan, do we have the data/response that we/POL 22 have used before which has countered the PM 23 system problem allegation? 24 "Colin." 25 You're picking up that last paragraph, 137 1 aren't you, there? 2 A. I'm picking up the last paragraph, yes. 3 Q. Why was your first reaction to seek the data and 4 response that had previously been deployed 5 successfully to counter the postmasters' system 6 problem allegation? 7 A. I think it was because the expert's report was 8 an allegation and so we had responded to that, 9 and, you know, it was an allegation without any 10 evidence, therefore did we have any evidence? 11 Q. Can we move forwards then, to FUJ00121512. This 12 is a copy of the final report that you sent to 13 Mr Baines, we're now on 20 February. If we see 14 the foot of the page, your letter to him. Then 15 up at the top of the page, dated 20 February: 16 "Dear Keith 17 "I'm writing in response to your letter of 18 [you say 6 February, I think it was 5 February] 19 and note Post Office's concern in respect of the 20 Expert's opinion that the Horizon System 21 installed at Cleveleys branch was defective and 22 that the HSH was more concerned with closing 23 calls than preventing recurrence of faults. 24 "An Appendix is attached which sets out 25 Fujitsu Services' view of and response to the 138 1 main points in the Expert's report. 2 "In respect of the earlier correspondence 3 between Jan Holmes ... and Jim Cruise ... we 4 would be prepared to discuss this further if 5 this would help progress the situation." 6 Again, I think that's a reference back to 7 the August 2003 correspondence? 8 A. Yes. 9 Q. If we go over the page, please, to see the 10 appendix, to see what has now become of 11 Mr Holmes' report. Can you see it says, "Basis 12 of Response"? 13 A. Yes. 14 Q. "Before addressing individual points from the 15 Expert's report there are two key areas of 16 understanding to be established; the first is 17 the function and objectives of [HSH], the second 18 is the way that the Horizon System handles 19 transactions should a reboot be required partway 20 through a customer [service]." 21 Under the heading "Horizon System Helpdesk", 22 there's an explanation of it being the first 23 line support, and then, in the second paragraph, 24 the one beginning "Depending on", there's 25 an explanation of the second, third, and fourth 139 1 line supports. Then in the last sentence, three 2 lines from the bottom of that paragraph it says: 3 "... rebooting the Counter often meets that 4 objective, this does not mean that a problem is 5 closed at that point in time, as a detailed 6 scrutiny of overall problem management process 7 would reveal." 8 Then under the heading "Transaction Handling 9 on Reboot", there's an explanation of what 10 happens if a postmaster reboots. If we look at 11 the foot of the page, it is said that: 12 "If a Session is interrupted pre-settlement, 13 perhaps through a fault that requires a reboot, 14 the Session -- and consequently the Session 15 Stack -- is not maintained and has to be 16 restarted once the system has been returned to 17 the postmaster. In 2000 the only exception to 18 this were Automated Payment transactions." 19 Then the next paragraph: 20 "Simply put, the design of the system 21 precludes the possibility of a Session Stack 22 being partially, or doubly committed and thus 23 accounting errors cannot be introduced through 24 a system crash or forced reboot." 25 Then the table is reproduced, if we scroll 140 1 down under "The Expert's Opinion", yes? 2 A. Yes. 3 Q. Over the page, please. A line has been added 4 after "Cleveleys numbers are broadly comparable 5 with the group of Outlets", namely: 6 "It is worth noting that Fujitsu Services is 7 not aware of similar complaints or claims being 8 made from other Outlets in the above list, some 9 of which have higher call profiles than 10 Cleveleys." 11 Did you understand that to mean that we've 12 picked eight or ten other branches and we are 13 not aware of any problems or complaints of 14 a similar nature being raised from them, or was 15 it more broadly there are no similar complaints 16 to the ones raised by Mrs Wolstenholme ever 17 having been made to Cleveleys? 18 A. I think he's referring to the above list. 19 Q. Why wouldn't you address whether problems of 20 a similar type or complaints of a similar type 21 being made by any other branch? 22 A. I couldn't say. 23 Q. Wouldn't that be the fair thing to do, rather 24 than pick ten and say, "We haven't had any 25 similar complaints from them, we're not going to 141 1 tell you about any similar complaints from the 2 other 17,000 branches"? 3 A. Possibly this analysis was about comparable 4 outlets. So I think it was looking at system 5 problems from comparable outlets, rather than 6 everything else. If it was everywhere else, 7 17,000 outlets, I think the volumes, if there 8 had been such issues, would have been much worse 9 and would have been escalated anyway. 10 Q. But there's none of that referenced in here. 11 I mean we know now that the things of which 12 Mrs Wolstenholme complains -- blue screening, 13 balances, double counting on a reboot, money 14 disappearing on a reboot -- was a complaint that 15 many, many postmasters made to Fujitsu. What 16 this appendix does is it picks ten and says, "We 17 haven't had any complaints from them". Do you 18 know why the full picture wasn't revealed? 19 A. I couldn't say. 20 Q. If we carry on looking at this page, you'll see 21 that, under a series of headings, "Operator 22 advice to 'Reboot'": 23 "In this context the opinion of the Expert 24 that 'this instruction treats the effect and not 25 the cause' is correct." 142 1 Then exactly the same as the previous draft 2 that we saw. "Summary: Defective Equipment", 3 I think that's the same as the previous draft. 4 Do you remember the passage from Elaine 5 Tagg's witness statement? 6 A. Yes. 7 Q. That seems to have been omitted. Do you 8 remember the passage from her witness statement? 9 If we just look at FUJ00121486. Second page at 10 the foot, "Statement by Ms Elaine Tagg". You 11 rightly corrected me that this was her speaking 12 and not Mr Holmes: 13 "A total of 101 HSH calls were raised 14 between [9 February] (install date) and 15 [20 November 2000] (termination date) of which 16 15 are classified as Advice and Guidance and 16 17 are to do with the Rollout itself. Based on the 18 analysis, and without analysing each and every 19 call record it would be hard to dispute the 20 opinion of the Expert." 21 If we just go back to FUJ00121512, page 2, 22 and then 3, and then 4, and then 5, it's been 23 cut. Do you know why that was? 24 A. Can we go back to the previous page? 25 Q. Previous page on here? Yes. Please do scroll 143 1 down, Frankie. 2 A. So her comment was about HSH calls, wasn't it? 3 Q. Yes, and it being difficult to refute what the 4 expert says. 5 A. Just go up a little bit. 6 Q. Yes. 7 A. I'm not sure whether it added anything having it 8 in or taking it out. 9 Q. You don't think it made any material difference? 10 A. No. 11 Q. Why? 12 A. Because we're saying it's broadly comparable 13 with everything -- you know, whatever's 14 happening at Cleveleys is broadly in line, and 15 that's what she's saying, effectively. 16 Q. Okay, go to the last page, please. The 17 "Conclusion" is now: 18 "The report presented by the expert is based 19 on a simple analysis of HSH records and not 20 a detailed understanding of how the ... system 21 works, or even the prime objectives of the ... 22 Helpdesk. Consequently the opinions expressed 23 in the report, while not always incorrect, do 24 not present the whole story and are presented 25 from a single perspective." 144 1 What had led to the hardening up of this 2 report, compared to the first version we looked 3 at? 4 A. So, of course, the previous versions were 5 internal versions. I think we were trying to 6 get to the position where we might try and 7 expand the analysis and understanding of the 8 expert and whether, in fact, this was -- if 9 there were elements that we didn't quite agree 10 with, while we're saying that they're not always 11 correct, they don't present the whole story that 12 a balanced report could and should do. 13 Q. We're moving forwards now and we're going to end 14 at a point when Fujitsu accused him of bias, 15 essentially, of lacking impartiality. That's 16 where we're going to end up in the questions in 17 about 45 minutes' time. What I'm asking now is 18 what had led to this hardening up of a position? 19 There was the internal document, which didn't 20 question his qualifications, didn't really 21 question his methodology and said, "We're in the 22 same position as him: we haven't got that much 23 data to go on, we can't really question what he 24 says". 25 Now, that's being ratcheted up a bit, isn't 145 1 it? They do not present the whole story, they 2 are presented from a single perspective. 3 I don't know what that means, but it seems 4 rather critical, doesn't it? 5 A. Yes, it's critical of the report. 6 Q. So what had led to the hardening up? 7 A. It can only be -- well, I'm not absolutely sure. 8 I don't absolutely remember but, of course, 9 Fujitsu is trying to defend Horizon, all the 10 systems that go around it, support systems and 11 everything else and, therefore, we trying to 12 position it -- to put a position to Post Office 13 that we want to present the whole story. 14 Q. Can we move on, please. FUJ00121533. This is 15 an email of 4 March and what we're going to see 16 is, in this chain, you getting back the expert's 17 response to your response. 18 A. Yes. 19 Q. So this is the Post Office lawyer, Jim Cruise, 20 sending you and others an attachment. Then if 21 we go to FUJ00121534, we can see what the 22 attachment is. It's an email which itself had 23 an attachment, and this is the response from 24 Susanne Helliwell, the solicitor at Weightmans', 25 Secretary: 146 1 "The response to the initial report of Jason 2 Coyne of Best Practice Group has been sent to 3 him and his reply is attached. He has not taken 4 on board any of the points made and has not 5 revised his report at all. 6 "I would welcome any further points you have 7 to make on his further report but it seems to me 8 that his report cannot be accepted by [the Post 9 Office] and that an application needs to be made 10 to the court for Fujitsu to give evidence about 11 the Horizon System and its working in view of 12 the stance taken by the expert witness." 13 Then if we can go to FUJ00121535. This is 14 Mr Coyne's reply. Under the heading "Horizon 15 System Helpdesk", he says: 16 "... this is a matter for the Post Office 17 and Fujitsu", ie describing the system of 18 escalating help and service desks: 19 "[But] nothing contained within this section 20 of the letter alters my current opinion. 21 "Transaction Handling on Reboot. 22 "Whilst this section is helpful and assists 23 my understanding ... it would not be proper of 24 me to alter my opinion based on this 25 explanation, the supporting evidence of which 147 1 has been destroyed. 2 "Reasonableness of calls. 3 "It has always been my expressed position 4 that direct comparisons of calls to HSH are 5 required and your clients position that they 6 have been destroyed, barring direct comparison, 7 and that I should give opinion on the surviving 8 material that is available ... 9 "Now it seems that your client has located 10 data that they believe enables comparison. 11 Although the raw data has not been made 12 available to me they say it displays that 13 Cleveleys is 'broadly comparable'. As I do not 14 have the raw data I am unable to say if my 15 opinion is effected or not." 16 At the foot of the page he says: 17 "... all of these issue factors are 18 significantly higher for Cleveleys than the 19 respective mean which is inconsistent with the 20 statement of broadly comparable when considering 21 these measurements." 22 Then over the page: 23 "Although I must stress that no raw data has 24 been presented so I am disadvantaged, is it your 25 clients intention to rely upon this data sample 148 1 referred to in this letter?" 2 Next two paragraphs I can skip over, 3 "Worrying discrepancies": 4 "I'm unsure how this can be resolved as the 5 documentation suggests the [postmaster] reported 6 discrepancies that seem to fall after a reported 7 upgrade ... 8 "In short, to answer the question posed in 9 your letter, No my opinion, currently, remains 10 as state in my original note." 11 So this is a pretty firm reply from the 12 independent expert, isn't it? 13 A. It is. 14 Q. Did you think it called for a rethink by 15 Fujitsu? 16 A. I think we waited for Post Office to see what 17 their instruction was going to be and how they 18 wanted us to support them. 19 Q. Was there ever any discussion of bringing in 20 somebody else, somebody independent of Fujitsu 21 to look at what this expert was saying, to see 22 whether it was entirely off the wall or there 23 may actually be substance in it? 24 A. Not with me. 25 Q. Were you aware of any discussions amongst other 149 1 people? 2 A. I'm not aware of any other -- I don't know. 3 I couldn't say yes or no. 4 Q. You were disappointed with this response from 5 the expert, weren't you? 6 A. Yes. 7 Q. If we look, please, at FUJ00121549, in fact we'd 8 better look at FUJ00121541, first, thank you. 9 4 March, same day at 11.30, you send Mr Holmes 10 the disappointing response from the expert. 11 Yes? 12 A. Yes. 13 Q. If we then go to FUJ00121549, he replies at 14 1.45, so 2 hours 15 minutes later, attaching his 15 initial thoughts. Then if we go to FUJ00121550, 16 this is Mr Holmes's initial response. I'm not 17 going to go through all of this but would 18 a summary be, "We need to try to get the expert 19 in to Fujitsu premises to see whether we can get 20 him to alter his opinion"? 21 A. Yes. 22 Q. Mr Holmes then goes on holiday for a week, and 23 produces a final version of this document, 24 FUJ00121557. This is now dated 11 March and is 25 the final version. I should have shown you the 150 1 covering email, thank you: 2 "I've done a bit more to this but if 3 I continue I fear I might call him a git, or 4 something worse." 5 Did you take that to be a good sign of 6 objectivity of thought? 7 A. I think I just took it as being a moment of 8 irritation. 9 Q. Why would you be irritated? Why would he be 10 irritated? 11 A. I don't know. 12 Q. Why did you take it to be a moment of 13 irritation? 14 A. I think I ignored it. 15 Q. Why? 16 A. Well, he was going on holiday and he was trying 17 to do something to get something out, and what 18 have you, so I think we -- it was just in the 19 heat of the moment. 20 Q. No, he's been on holiday. This is when he's 21 come back? 22 A. Oh, sorry. 23 Q. He went on holiday on the 4th and said, "These 24 are my initial thoughts". 25 A. I'm not sure. I don't know why he's irritated 151 1 by it. 2 Q. He's come back on the 11th after a week, 3 presumably being refreshed, thinking that -- 4 A. Sure. I don't know why he's irritated by it. 5 Q. -- the expert is a git? 6 A. Well, I don't know. 7 Q. Is this emblematic of what was really going on 8 within Fujitsu -- 9 A. No. 10 Q. -- people that criticise us are to be condemned? 11 A. No. 12 Q. People that have the temerity to question the 13 quality of our product are to be condemned? 14 A. No. 15 Q. Let's look at the substance of what he said. 16 FUJ00121558, please. I'm going to take this 17 shortly. You have seen this. It has been 18 disclosed to you. You've read it. 19 A. Yes. 20 Q. Would you agree that the suggestion that "Let's 21 have him in and see whether we can get him to 22 alter his view" has gone and that, in its place, 23 is essentially a hardening up still further of 24 the position against the expert? If you want to 25 take a moment to read it all, then please do. 152 1 A. No. So I think we were trying to provide 2 further information and clarity to the expert, 3 to provide him with the access to the data and 4 the records that we said we had and he said he 5 hadn't got access to. 6 Q. Okay. If we move on, please, to FUJ00121561. 7 The next day, 12 March, Mr Holmes emails you, 8 setting out at the bottom of the page, if we 9 just scroll down, a draft email for you to 10 consider. Then go back to the top of the page. 11 He says: 12 "Colin, 13 "Draft email to Jim Cruise for you to 14 consider. I've transferred the contentious 15 statements from the paper to the email because 16 it's not in our interests to piss the Expert 17 off. That said it has to be pointed out to Jim 18 that his report is far from impartial ..." 19 Did you agree with that, that the expert's 20 report was not impartial? 21 A. I'm not sure about "far from impartial". 22 Q. What about a little bit from impartial? 23 A. Well, I think a little bit from impartial, yes. 24 Q. Why was he not impartial? 25 A. Because I think the -- having read the report 153 1 again, I thought it was quite high level. 2 Q. Does that make somebody impartial? 3 A. Yes. 4 Q. Why? 5 A. Well, not that the -- the brevity of it doesn't 6 make it impartial. 7 Q. He continues: 8 "... in truth, we have a problem because 9 there is little we can do to dispel some of his 10 assertions other than say 'rubbish'. We can't 11 demonstrate that everything worked correctly 12 because we don't have the data. In addition, 13 any proving that we do now is at a 2004 system 14 baseline and not a 2000 baseline. POL have to 15 decide what they want to see happening here. 16 I understand the reputational aspects of the 17 situation but I fear that POA [that's Fujitsu] 18 are on the back foot." 19 A. Yes. 20 Q. Why did he think that Fujitsu was on the back 21 foot? 22 A. Because we hadn't had the opportunity to try to 23 provide additional material to the expert. 24 Q. You hadn't had the opportunity to? 25 A. Provide the data that we had come up with to 154 1 the -- which the expert said he hasn't got. 2 Q. Why hadn't you had that opportunity? 3 A. Because we had only invited -- through Post 4 Office, we'd invited the expert to Fujitsu's 5 premises to review the data. So it was 6 an invitation to Post Office to carry that 7 forward. 8 Q. Well, that was on the internal draft. That 9 never got sent, did it? "Let's get him in", 10 that draft. 11 A. No, at the top of the last one, it said, "We 12 even invited him to Bracknell" or -- 13 Q. That one? 14 A. Yeah. 15 Q. Did you think that was the solution to the 16 problem? 17 A. I thought it might help. 18 Q. Scrolling down on this page, just before we take 19 the break, you'll see in the draft, you'll see 20 in the draft email it says in the third 21 paragraph of the draft email: 22 "The attached paper provides detailed 23 feedback to his reply but in truth we can only 24 reiterate what has been already said. Given 25 that he has assumed the moral high ground, and 155 1 appears not to want to shift his position, the 2 next step is to make available to him the 3 people, data and resources at Post Office 4 Account and allow him to address his doubts to 5 the true experts and practitioners." 6 You approved this and it went out in this 7 form, correct? 8 A. Yes. 9 Q. Mr Holmes is suggesting that Mr Coyne be allowed 10 to address his doubts to the "true experts". 11 Did you think that Mr Coyne was not a true 12 expert? 13 A. So Mr Coyne was an IT expert and not a Horizon 14 expert. 15 Q. So you didn't think he was a true expert? 16 A. No, I didn't say that. 17 Q. He wasn't sufficiently expert in Horizon? 18 A. Correct. 19 Q. So the "true experts" were located only within 20 the Fujitsu premises at Bracknell, were they? 21 A. They would only -- the ones who would know -- 22 well, not necessarily, but mostly that they 23 would know the system and the processes that 24 went around it. 25 Q. It continues: 156 1 "In conclusion it has to be said that his 2 analysis of the situation is at best selective 3 and at worst simply wrong, and his conclusions 4 are partial." 5 So again, accusing him of lacking 6 impartiality, yes? You understand what 7 partiality means, don't you? 8 A. Yes. 9 Q. Favouring one size in the dispute over the 10 other? 11 A. Yes. 12 Q. In other words, are you being biased? 13 A. Yes. 14 Q. On what evidence were you happy to sign this 15 off, that the independent expert was biased? 16 A. Probably because of his -- his responses were 17 unshifting. 18 Q. Un? 19 A. Unshifting. 20 Q. So somebody who doesn't move from their opinion 21 is biased? 22 A. No, what I've said is what I've said. 23 Potentially, I go back to this data available -- 24 availability, it's kind of a cross between 25 the -- and the email -- the email chain, really, 157 1 here, that the data that was available was 2 offered, the visits were offered and, you know, 3 from our particular position, he has his own 4 view -- his view, and not necessarily -- we're 5 saying that maybe his conclusions are partial. 6 Okay. You know, that's his view. 7 We said that he was not -- we didn't think 8 he was completely correct, so that in which 9 instance that must be that he must be partial. 10 Q. So somebody who is incorrect is always partial 11 and therefore biased? 12 A. You can come to conclusions from data that is 13 not complete. 14 Q. Does that make you partial and therefore biased? 15 A. It may not make you partial but it may make you 16 biased. 17 Q. Was the thought process that you have just 18 explained to us one that was common within 19 practitioners within Fujitsu, who were 20 discussing this issue? 21 A. So within the practitioners who were discussing 22 it in Fujitsu, I think we were trying to make 23 all opportunities available in order to come up 24 with a rounded position. 25 MR BEER: Yes, thank you. 158 1 Sir, I wonder whether we could take the 2 afternoon break now until 3.20. 3 SIR WYN WILLIAMS: Yes, certainly. 4 MR BEER: If it helps, I'll conclude by 4.00, 5 allowing some time for other Core Participants 6 to ask questions if they wish. 7 SIR WYN WILLIAMS: All right, fine. 8 MR BEER: Thank you. 3.20. 9 (3.05 pm) 10 (A short break) 11 (3.20 pm) 12 MR BEER: Good afternoon, sir. Can you see and hear 13 us? 14 SIR WYN WILLIAMS: Yes, I can, thank you. 15 MR BEER: Thank you. 16 Mr Lenton-Smith, can we turn to FUJ00121602, 17 please. We've now moved forward to April 2004, 18 and there's an email from Jim Cruise at the foot 19 of the page to Jan Holmes and Keith Baines, 20 which is forwarded by Jan Holmes on the same day 21 to you. Can you see that? 22 A. Yes, I can. 23 Q. In the email from Jim Cruise, he says: 24 "The latest development in this case is that 25 POL have written off the losses of just over 159 1 £25,000 at the above SPO and have increased 2 their payment-in to court to £25,000 ... 3 "The hope is that she will accept the 4 increased payment-in and the case will be 5 concluded. If she does not and persists with 6 her counterclaim, and she has indicated that she 7 is looking for a figure of £187,500 so she may 8 not settle, she is on increased risk as to the 9 costs in the case if she does not beat the 10 payment-in at trial. As [Post Office] is no 11 longer pursuing her for losses, I hope that she 12 will be left to pay any further evidence/reports 13 from the expert witness, which should be 14 a further discouragement for her." 15 So that was updating you in April and if we 16 move on to FUJ00121637, an email directly to you 17 from Jan Holmes of 7 June 2004, with the subject 18 of "Cleveleys". He says: 19 "I've just updated myself with the latest on 20 this case and the news is not good. 21 "Jim Cruise has taken early retirement so 22 I ended up speaking to Mandy Talbot, who was his 23 boss. The [postmaster] rejected the offer that 24 was made to her some time ago and a trial date 25 has been set for August ... The [Post Office] 160 1 are still taking advice as to how best to deal 2 with this and Mandy's view/belief was that the 3 safest way to manage this is to throw money at 4 it and get a confidentiality agreement signed. 5 She is not happy with the 'Experts' report as 6 she considers it to be not well balanced and 7 wants, if possible, to keep it out of the public 8 domain. This is unlikely to happen if it goes 9 to Court. 10 "She was talking about taking the option to 11 admit the report and concede that the contents 12 are an accurate reflection of what happened (the 13 HSH transcripts are an accurate reflection of 14 what happened it's just the 'Expert' opinion is 15 the problem). The liability question is removed 16 and then it's just about 'how much [money] to go 17 away and keep your mouth shut'. 18 "One concern I have is while they've been 19 dickering about waiting for guidance from their 20 agents, the trial date has been set and it is 21 now too late for them to enter a Witness 22 Statement that might further repudiate the 23 Expert's original report. This means that their 24 Counsel might have to have thorough briefing, by 25 us, before going to Court. 161 1 "Do we need to involve Masons at this 2 stage?" 3 Did the contents of this email reflect your 4 understanding of POL's principal desire, namely 5 to keep the adverse expert's report out of the 6 public domain? 7 A. I didn't know what POL's objective was. 8 Q. Did you engage in any telephone discussion with 9 anyone at POL, Keith Baines, for example -- 10 A. No. 11 Q. -- about this case? 12 A. No. 13 Q. Who were Masons? 14 A. Pinsent Masons, solicitors. 15 Q. Why would it be necessary to involve a firm of 16 solicitors at that stage? 17 A. I think this is just Jan's question to me, high 18 level question, internally. I don't think we 19 did. 20 Q. What was the risk for Fujitsu in this process? 21 A. In what process? 22 Q. A claim was being brought by the Post Office 23 against one of its former subpostmistresses, she 24 had counterclaimed, what's the risk to Fujitsu? 25 A. On that basis, none. 162 1 Q. Why might you involve solicitors? 2 A. It was his question to me, so he's not 3 a commercial person. He's just asking me 4 a question. 5 Q. Yes, what did you think of the suggestion? 6 A. Do we have my response to him? No. So this is 7 just an update and that didn't go any further 8 than that. 9 Q. Do you think it was necessary to involve 10 solicitors? 11 A. No. 12 Q. What did you think as to the strategic of paying 13 Mrs Wolstenholme enough money to "keep your 14 mouth shut"? 15 A. So, remember, Fujitsu was a supplier to Post 16 Office, maybe a big supplier. So we are a third 17 party, effectively, who -- we don't get involved 18 in persuading or suggesting to our clients how 19 they should conduct their legal matters. 20 Q. Was there any sense at this stage -- did you 21 pick up any sense from Mr Holmes at this 22 stage -- that the Post Office might be trying to 23 blame Fujitsu for being in this position? 24 A. No. 25 Q. Can we look, please, at FUJ00121668. This is 163 1 an email to you from Mr Holmes of the following 2 month: 3 "The PO Legal person, Mandy Talbot, is on 4 holiday today but will be back on Monday ... 5 "I've also spoken to Keith Baines who 6 alluded to a number of other calls that he was 7 going to have to make on the case but didn't 8 pass any details to me. He said that Dave Smith 9 would be speaking to Ian on the subject ..." 10 Can you help us who this Dave Smith referred 11 to here is? 12 A. Dave Smith was the lead in Post Office for 13 effectively managing the Horizon System. 14 Q. Who would Ian be? 15 A. Ian Lamb. 16 Q. What role did Ian Lamb perform? 17 A. He was the Managing Director, effectively, of 18 Post Office Account. 19 Q. In Fujitsu? 20 A. In Fujitsu. 21 Q. So a high level discussion -- 22 A. Yeah. 23 Q. -- at proper director level? 24 A. Director level, yeah. Although I don't think 25 Ian was, in fact, a director, a registered 164 1 director as such. 2 Q. He continues: 3 "... it seems that Dave believes 'we' (not 4 sure whether that's the Royal we or just us) 5 have conceded what 'we' should not have done and 6 POL are now in a difficult position. Given our 7 late involvement by POL I trust he's not trying 8 to park it all on us." 9 That's what I was referring to a moment ago 10 when I asked whether you had any sense from 11 Mr Holmes that POL would be trying to blame 12 Fujitsu for being in the position they were in. 13 A. No, I don't believe so. I don't read it like 14 that. I think this is Ian -- this is Jan's 15 interpretation of a conversation but this is, 16 you know, a fourth-hand conversation between 17 Dave Smith and Ian, and Dave Smith and Keith 18 Baines, and Keith Baines and Jan Holmes, and 19 then me, so I think it must -- you know, it 20 could -- it's kind of hearsay, really. 21 Q. Can we move forwards, please. FUJ00121724. 22 We're now in the next month, August, on the 23 20 August, an email from Jan Holmes to you and 24 Bill Mitchell; can you see that? 25 A. Yes. 165 1 Q. What role did Bill Mitchell perform? 2 A. I'm not sure. I think there is a witness 3 statement from him in the bundle and I'd have to 4 refer to that to -- 5 Q. Okay, you can't remember now? 6 A. I can't remember his role, no. 7 Q. The title is risk position on litigation 8 support. 9 A. He -- well, he could have been -- he could have 10 been the Risk Manager, I guess, but I'd have to 11 go and check that. 12 Q. He says: 13 "Colin, Bill. 14 "Following on from the Cleveleys outcome, 15 what looks like the reappearance of Shobnall 16 Road and the possible outcome of that case 17 I believe we should consider a risk position 18 around litigation support." 19 What do you understand "a risk position 20 around litigation support" to mean? 21 A. So my initial -- I mean, I can't remember 22 precisely 2004, but I think it would be 23 assessing to see whether we needed -- whether 24 Fujitsu needed litigation support, if there was 25 a risk in trying to defend the system. 166 1 Q. Oh, I see, rather than assessing the risk of 2 Fujitsu providing litigation support to Post 3 Office? 4 A. Could be either -- could be that, I don't know. 5 I couldn't say. 6 Q. It's difficult to say, isn't it -- 7 A. Yes. 8 Q. -- through that fantastic use of the word 9 "around"? He continues: 10 "1. Although Cleveleys may appear to be 11 closed it could be construed that [Post Office] 12 bought off Mrs Wolstenholme rather than defend 13 their system." 14 Do you agree with the suggestion that it 15 appeared or may appear that Post Office had 16 bought off Mrs Wolstenholme rather than defend 17 their system? 18 A. Again, I'd go back to the comment before. It's 19 simply down to Post Office how they would have 20 defended their legal cases, effectively, and 21 whether they decided to settle out of court or 22 go to court is a matter for them. 23 Q. That's an answer to a different question, namely 24 whose responsibility and function is it to 25 decide whether or not Post Office defend or 167 1 settle cases? The answer is the one you've just 2 given: it's a matter for Post Office. 3 My question was a different one. Did you 4 agree with the suggestion that it may appear 5 that the Post Office had bought Mrs Wolstenholme 6 off, rather than defend their system? 7 A. I don't think it's for me, on behalf of Fujitsu, 8 to construe anything for them, why they -- how 9 they defended their case. 10 Q. Mr Holmes continues in his email to you: 11 "Even if a gagging order is placed on the 12 woman ..." 13 I think "the woman" is Julie Wolstenholme, 14 yes? 15 A. Yes. 16 Q. "... she apparently had a gaggle ..." 17 I think a "gaggle" here in this context 18 means a group of disorderly people, rather than 19 a flock of geese, agreed? 20 A. Mm-hm. 21 Q. "... lined up to support her case and they [may 22 well be aware] of what the final outcome was." 23 Is that how Fujitsu viewed matters, that the 24 subpostmistress was to be referred to as "the 25 woman" -- 168 1 A. No. 2 Q. -- who had a "gaggle", a disorderly group of 3 people, surrounding her? 4 A. No. 5 Q. He continues: 6 "I'm sure they will not be keeping quiet. 7 It is not clear why Post Office chose to settle 8 rather than fight although I suspect they 9 realised that to expose the HSH transcripts in 10 Court would not help their case -- personally 11 I can understand that position." 12 Why would exposure of the HSH transcripts in 13 court not help their case? 14 A. Oh, I don't know, I don't think it would. 15 I think -- I don't think it undermines the case. 16 Q. So the revelation of 85 transcripts of 17 Mrs Wolstenholme calling over a 10-month period, 18 setting out a succession of recurring problems, 19 causing unexplained discrepancies and balancing 20 errors, would have helped their case, would it? 21 A. No. 22 Q. So what he's saying is right, isn't it, 23 Mr Holmes (sic)? 24 A. What Mr Holmes is saying is right, yes. 25 Q. Exposing the transcripts wouldn't have helped 169 1 their case? 2 A. It wouldn't have done, no. 3 Q. No. He's right, isn't he? 4 A. He's right. 5 Q. By throwing money at the problem, buying "the 6 woman" off, with or without a gagging order, the 7 Post Office were ensuring that what was revealed 8 by these transcripts was not likely known, 9 wasn't it? 10 A. It would appear so. 11 Q. He continues in paragraph 2 -- 12 A. I mean, that's his language, not mine. 13 Q. Did you write back to him and say -- 14 A. I don't know, is there another email? 15 Q. No. 16 A. No. I don't know. 17 Q. Can you help us with this: we've seen the 18 earlier report from Mr Holmes to you commenting 19 on Mr Coyne's document, and then we've seen the 20 version that was sent to the Post Office. In 21 both of those, it was said that the number and 22 nature of the calls were all perfectly normal, 23 that they weren't indicative of any system 24 problem and that, in general terms, they were 25 usual in the operation of a complex computer 170 1 system? 2 A. Yes. 3 Q. Why would revelations of transcripts therefore, 4 if that was true, not help the Post Office's 5 case? 6 A. Well, I've got nothing to compare -- I don't 7 know what the transcripts said. You told me 8 that there are number of pages, but I don't know 9 whether they're comparable to the other 10 transcripts of the other examples that were 11 shown in the table. 12 Q. According to Mr Holmes, the number of them were. 13 A. There were comparable number of calls, so the 14 transcripts were probably comparable. 15 Q. I don't understand, you see, the reports that he 16 was giving to you, a version of which you sent 17 on, was saying to the Post Office "There's 18 nothing to see here with these HSH calls". 19 A. Exactly, yes. 20 Q. Yet here, you're discussing internally, "I can 21 completely understand, I can understand that 22 public revelation of the transcripts in court 23 won't help the Post Office's case". It doesn't 24 add up, does it? 25 A. So it's kind of -- I'm in speculation here, so 171 1 I've got nothing to substantiate it. But 2 I don't know whether there's anything 3 significant about the HSH transcripts for 4 Cleveleys, compared to the HSH transcripts for 5 the other examples that were in the table. So 6 I can't comment whether it's just the extent of 7 transcripts is an issue or whether there is 8 anything more significant than that. 9 Q. He continues: 10 "Shobnall Road has come back." 11 Do you know what Shobnall Road was? 12 A. I assume it was another Post Office. 13 Q. "Bill has apparently been asked to provide 14 a Witness Statement to the effect that nothing 15 contained in the HSH calls over the period in 16 question could have caused, or be described as, 17 a system malfunction. I'm attaching a brief 18 analysis of the HSH transcripts that I did in 19 April. Comments made by engineers that 20 'keyboards can cause phantom transactions' do 21 not help the Post Office's position. I suspect 22 that we cannot make the statement required ..." 23 That's the statement that nothing contained 24 in the calls over the period in question could 25 have caused or be described as a system 172 1 malfunction. 2 A. Yes. 3 Q. "... and when [Post Office] read the transcripts 4 in detail they may well think that they could 5 not submit them anyway. 6 "3. How many more Cleveleys and Shobnall 7 Road howlers exist in the HSH archive? Two out 8 of two is a bit of a worry. 9 "4. How long before Post Office realise 10 that they cannot rely on HSH transcripts to 11 counter claims made by postmasters that they 12 want to prosecute, or have to defend against 13 claims of wrongful dismissal, and seek to 14 recover settlement costs from Fujitsu? 15 "I think this warrants a bit more thought." 16 Was a bit more thought given, after receipt 17 of this email, to your recollection? 18 A. There was the report that was an internal report 19 which was written about the Cleveleys case. 20 Q. Yes, the September 2004 report? 21 A. Yes. 22 Q. That doesn't really make any recommendations, 23 does it? 24 A. No. 25 Q. It's just a straight up and down narration of 173 1 what happened? 2 A. It -- yeah. 3 Q. But I'm talking about whether this opportunity 4 was seized to grip the problems that had been 5 revealed? 6 A. So, on the face of it, none of this is 7 a commercial issue, in other words affecting 8 discussion between Post Office Commercial and 9 Fujitsu. It's kind of an operational matter 10 dealt with through the service organisation. So 11 any taking forward of these issues would have 12 been done at that level. 13 Q. Can we look at that report, please. 14 FUJ00121747. You'll see this is dated 15 1 September, it's written by Jan Holmes and at 16 the foot of the page you gave approval for it? 17 A. Yes. 18 Q. In the abstract it states that it: 19 "... describes the involvement of Fujitsu 20 ... with Post Office Security Investigation in 21 the matter of Cleveleys post office and the 22 dispute between the Post Office and the 23 postmaster." 24 If we look at the second page, please. It 25 appears to have been initially drafted on 174 1 29 March and then updated on 3 August following 2 a request for assistance from Post Office 3 counsel. Do you know what that was? 4 A. No, I can't. 5 Q. Ie the Post Office and their counsel helping 6 Fujitsu update its internal report? 7 A. Well, we haven't got previous versions. 8 Q. No. 9 A. I can't remember. 10 Q. If we go to page 4, please, and look under "The 11 Expert's Report", the report says: 12 "The Expert, who was supposed to be jointly 13 appointed ..." 14 To your recollection, was he jointly 15 appointed, ie by Post Office and not 16 Mrs Wolstenholme. 17 A. I believe so. The court appointed him, didn't 18 it? Requested it, I believe so. 19 Q. It's just the use of the language "He was 20 supposed to be jointly appointed". Was there 21 any suggestion that he wasn't jointly appointed 22 and he was only appointed by Mrs Wolstenholme 23 and the Post Office didn't have anything to do 24 with it? 25 A. I can't comment on it. 175 1 Q. Over the page, please. Third paragraph: 2 "We have offered to host him at any of our 3 locations so he can analyse HSH data directly, 4 speak to the experts and walk through the 5 problem management cycle for himself. He will 6 not have seen this offer since it was contained 7 in the email that accompanied our final response 8 and this has not been passed on to the Expert 9 pending the outcome of an out-of-court 10 settlement by [Post Office] to the 11 [postmaster]." 12 So it was known by you within Fujitsu that 13 the offer to the expert to come and visit the 14 premises and meet the real experts had not got 15 through to him? 16 A. So it had -- so it transpired, yes. 17 Q. Wasn't that the basis of some of your criticism 18 earlier, that he hadn't taken up the offer? 19 A. No, I said he had not been able to take up the 20 offer. 21 Q. Because it had never been made to him? 22 A. Yes, we had made it -- I said we had made it to 23 Post Office to pass on to him. 24 SIR WYN WILLIAMS: I've got this right, I think. 25 You made the suggestion that various offers 176 1 should be made to the expert, put them to Post 2 Office, but Post Office never put them to the 3 expert; is that correct? 4 A. That's correct sir, yes. 5 MR BEER: Thank you. 6 Can we lastly turn to FUJ00121636. These 7 are the minutes of a meeting called the Horizon 8 Commercial Forum held on 28 April 2004, jointly 9 between the Post Office and Fujitsu. Can you 10 explain what the Horizon Commercial Forum was, 11 please? 12 A. Yes. So this was the two commercial Teams 13 meeting periodically, I think monthly, or 14 thereabouts, to review ongoing commercial issues 15 coming out of the contract and financial matters 16 coming out of the contract to do with invoicing 17 and various other matters like that. So it was 18 an ongoing set of minutes on discussions taken, 19 actions taken, noted and a follow-up of actions. 20 Q. We can see that there's three from each party 21 present, three members of each party present -- 22 A. Yes. 23 Q. -- one of which is you? 24 A. Yes. That's right. 25 Q. How frequently did the Commercial Forum meet? 177 1 A. I was going to say monthly, but it's probably 2 there or thereabouts. Monthly or two monthly, 3 but frequently. 4 Q. Can we turn, please, to page 5, and look three 5 rows from the bottom: 6 "KB, [that's Keith Baines] suggested that 7 when the 'Cleveleys' court case had been 8 concluded, a review is undertaken to find 9 improvements in information storage for future 10 cases." 11 A. Yes. 12 Q. Was such a review undertaken? 13 A. I don't remember specifically, unless we have 14 access to the subsequent minutes of the Forum 15 beyond this. 16 Q. To your knowledge, was there ever anything more 17 broadly contemplated, rather than a review about 18 storage of information but a review of the 19 substance of what the independent expert had 20 said? 21 A. This is the final version of 16, is it? 22 Q. Yes. If we go to FUJ00121632, this is the email 23 distributing the "Commercial Forum Minutes No 16 24 (Final)". If we scroll down, please. It says, 25 "Pam, please find 'final' minutes attached", and 178 1 the document I've shown you was an attachment to 2 that email. 3 A. I thought in that document we had said that, in 4 my witness statement, we put that KB advised 5 that Post Office were trying to negotiate 6 a settlement at the time, they suggested 7 a discussion should be held with both parties at 8 some future time to understand how the situation 9 regarding the expert could be avoided in the 10 future. That was that. 11 Q. Yes, if you just look at page 3. 12 A. Yes. 13 Q. So if we go back to FUJ00121636, and look at 14 page 3, and look at the third box down. There's 15 the passage that you're just referring to: 16 "KB advised that the Post Office were trying 17 to negotiate a settlement with regard to the 18 Julie Wolstenholme case. 19 "[Keith Baines] further suggested that 20 a discussion should be held between both parties 21 at some future date to understand how the 22 situation regarding the 'Expert' could be 23 avoided in the future." 24 A. Right. 25 Q. That seems to be a suggestion, would you agree, 179 1 that Fujitsu and POL need to discuss how 2 an expert like this might be appointed in the 3 future, and how we could avoid getting an expert 4 like this rather than examining the substance of 5 what the expert said and seeing whether it might 6 be accurate or not, which is what I was asking 7 about? 8 A. Yeah, so I think it's reliance on non-expert 9 data, so not relying on an expert. 10 Q. What did you understand that the discussion in 11 the future between both parties to be about -- 12 A. Ensure that there was enough data evidence to 13 support the system, given the context of how 14 Commercial Fujitsu and Commercial Post Office 15 viewed the system at the time. 16 Q. Did that happen? 17 A. As I say, I'd have to go back to the subsequent 18 minutes after 16 to review what happened to that 19 action point. 20 Q. You've got no independent recollection. We've 21 got the minutes. 22 A. If you have the minutes -- I don't know but, 23 I mean, if you can share the minutes. 24 Q. Well, the subsequent minutes don't translate 25 that action into an action. 180 1 A. Potentially, I think that the matter passed 2 away, in other words there wasn't the 3 requirement for the expert because the number of 4 instances that were raised at a commercial level 5 in terms of prosecutions was so few. 6 Q. What about the fact that the Post Office was 7 using the self-same system as the basis for 8 prosecuting people? 9 A. Can you just repeat the question? 10 Q. Yes. What about the fact that the Post Office 11 was using the self-same system, Horizon, and the 12 data that it produced, as the basis for 13 prosecutions? Did anyone mention that in this 14 context, "We've had an expert report from 15 somebody, we don't much like it, but we ought to 16 check somehow to see whether what he's saying 17 might have substance because we're using this 18 system to prosecute people, some of whom are 19 going to go to prison, some of whom -- families 20 are going to be broken up, some of whom are not 21 going to see their children". 22 A. I understand that. I understand all of that. 23 But at this point in time, I think there was 24 just reliance on the system. I go back to the 25 witness statements, you know, the commercial 181 1 view was the system was reliable. 2 Q. What was that view based on? 3 A. Based on the fact that they had produced data -- 4 or they hadn't come up to commercial, there had 5 been instances where they had used the system's 6 data to show that transactions were not -- that 7 the system was correct. 8 Q. I think what you're referring to here is, in 9 particular, Mr Baines's witness statement; is 10 that right? 11 A. Partially that but also the point that there 12 were, in discussions we've had earlier on from 13 Jan Holmes, was that in the past, that the use 14 of transaction data had been successfully used 15 in prosecutions. 16 Q. So if we just look at -- given that you've 17 mentioned it couple of times -- what Mr Baines 18 said. It's POL00118219. It's page 3. It's 19 a rather short witness statement, if we scroll 20 down. He says who he is in paragraph 1. He 21 says that the contents are true to the best of 22 his knowledge in 2. He explains Horizon in 3. 23 Over the page, please. He says: 24 "Before January 2003, the Post Office was 25 aloud 50 audit extraction requests per year 182 1 within the fixed price of a service and, subject 2 to capacity limits of Fujitsu ... could purchase 3 others at additional cost. The system would 4 have been fully checked before being issued at 5 Cleveleys ... 6 "Every branch has the same type of equipment 7 ..." 8 (5), and I think this is the paragraph that 9 you're referring to: 10 "Any faults that occurred in the Horizon 11 System were eliminated once they were 12 identified. Whilst it is possible for mistakes 13 to occur, this usually through incorrect 14 inputting to the computer system in the office 15 affected by the mistake. All subpostmasters 16 were fully trained in the use of the Horizon 17 equipment. The system was fully tested before 18 it was used by the Post Office and it is fit for 19 its purpose. The system itself does not create 20 losses as is claimed by Mrs Wolstenholme." 21 Is that the long and the short of what you 22 describe as the commercial view? 23 A. Yes. 24 MR BEER: Mr Lenton-Smith, thank you very much. 25 They're the only questions I ask. 183 1 I think there are some questions from 2 Mr Jacobs and not from Mr Henry or Ms Patrick. 3 So just one set of questions from Core 4 Participants, if you just wait there. 5 SIR WYN WILLIAMS: Over to you, Mr Jacobs. 6 Questioned by MR JACOBS 7 MR JACOBS: Thank you, sir. 8 Mr Lenton-Smith, I represent 157 9 subpostmasters and I'm instructed by Howe+Co. 10 I want to ask you about the Post Office's 11 objectives in relation to Mr Coyne's evidence. 12 Now, you were taken to -- we don't need to turn 13 it up again -- a letter from Jan Holmes to you, 14 dated 7 June 2004, in which Jan Holmes told you 15 what Mandy Talbot's view was, that the Post 16 Office view was the safest thing to do was to 17 throw money at it get a confidentiality 18 agreement and "how much to go away and keep your 19 mouth shut"; do you recall that? 20 A. Mm-hm. 21 Q. When you were asked about it, you said that you 22 didn't know what Post Office's objectives were. 23 Can I ask you to look at a document which you've 24 already seen today and which Ms Helliwell looked 25 at earlier on. It's POL00095375. 184 1 If we can go down to the bottom of the first 2 page, and here we have Mr Baines saying to you, 3 in relation to the expert opinion: 4 "As I'm sure you will understand, Post 5 Office is concerned by these findings, not only 6 in relation to this particular case, but also 7 because of any precedent that this may set and 8 that may be used by Post Office's agents 9 [subpostmasters] to support claims that the 10 Horizon System is causing errors in their branch 11 accounts." 12 So is it right to say that Mr Baines, in 13 this letter, was telling you that Post Office's 14 objectives in relation to Mr Coyne's evidence 15 was to keep this away from the "gaggle", as they 16 were subsequently described, of subpostmasters, 17 so that they wouldn't be able to defend 18 themselves against allegations that concern 19 alleged shortfalls generated by Horizon? 20 A. Can you go back to the previous page, please? 21 Q. Yes. The highlighted section: 22 "... Post Office is concerned by these 23 findings, not only in relation to this 24 particular case, but also because of any 25 precedent that this may set ..." 185 1 A. So this is in the absence of transaction data, 2 that was thought that would have substantiated 3 the Post Office's position and, in the absence 4 of that, we have a report which Post Office 5 subsequently found unacceptable but that, in 6 itself, as it is published, would cause 7 a precedent to be set, in other words reliance 8 on an expert's -- 9 Q. Yes, we heard evidence from -- and I don't know 10 if you heard, but Mr Coyne give evidence 11 yesterday. He stood by his report. He stood by 12 his report at the time. There was a report 13 which the Post Office didn't accept. 14 A. Yes. 15 Q. But it was capable of being used by 16 subpostmasters to defend themselves against the 17 Post Office when the Post Office bought actions 18 in relation to shortfalls; that's right, isn't 19 it? 20 A. I would have thought so, if it was in the public 21 domain, yes. 22 Q. Then if we could also turn to FUJ00121486. 23 We'll wait for it to come up on the screen. If 24 we can go to the section that says, 25 "Background", and it's right at the bottom 186 1 there, it's the last paragraph. So this is Jan 2 Holmes' draft response to you, I believe, in 3 respect of the letter that Keith Baines wrote to 4 you that we just looked at. We see some more 5 about precedent here but it's more specific. So 6 it says: 7 "POL are concerned that the Expert's opinion 8 (that the system was at fault) might set 9 a precedent against future ... prosecutions." 10 So it's quite clear, isn't it, that both 11 Mr Holmes and you knew what Post Office's 12 objections were, or objectives amounted to, in 13 respect of the expert report? It didn't want 14 this being used by subpostmasters in relation to 15 defending themselves in prosecutions? 16 A. So the expert report as it stood, which he 17 hasn't changed and which we were unable to 18 persuade Post Office to provide him more data, 19 was the de facto basis that would be set as the 20 precedent -- 21 Q. Do you accept -- 22 A. -- or a precedent. 23 Q. -- that is a very serious issue. As Mr Beer has 24 said: people were being prosecuted -- 25 A. I understand. 187 1 Q. -- they were being put in prison, were not 2 seeing their children. You were asked earlier 3 on in your evidence today why didn't Fujitsu 4 have a rethink, given that, at least on one 5 view, what the expert was saying was right, and 6 we know, don't we, that what he said about blue 7 screening, money vanishing on reboot, that that 8 all came to pass. We know that it ultimately 9 was right? 10 A. Yes, but we're talking about at the time, so 11 this is -- we're talking about 2004. 12 Q. Yeah. 13 A. What came to pass in the future, we obviously 14 weren't aware of. The fact that there were 15 technical issues around -- I can't comment 16 because I wasn't a technical person but I think 17 in the statement Jan Holmes has made the point 18 that when -- as the technical issues arose, they 19 were being dealt with through the Fujitsu 20 support system. 21 Q. But don't you think that it would have been best 22 practice, instead of calling the expert a "git", 23 which Mr Holmes did, instead of trying to 24 dismiss what he'd said, to have a review based 25 on the potential at the time that this, that 188 1 what Mr Coyne was saying could be right, as it 2 subsequently turned out to be? 3 A. So I'm not aware of what activities took place 4 within the service function to take on board 5 those comments. You talked about the blue 6 screens, which I think they said were being 7 rectified or any other issues that had been 8 raised in his report, so that that would be 9 a one for record of the service function and/or 10 software development to come up with or may have 11 dealt with. But, at a commercial level, these 12 matters would not arise because they were not of 13 a commercial issue. 14 Q. Why didn't you, just as a matter of good 15 practice, have a rethink about the Horizon 16 System as a result of the issues that the expert 17 had raised? 18 A. I don't know that we didn't. 19 Q. Well, you said you didn't? 20 A. I don't know. I didn't personally. I'm talking 21 about me personally. I didn't. But I'm not 22 sure whether the functions that were -- 23 surrounded the system did. 24 Q. Well, we know that in September 2004 there was 25 a review of the Cleveleys case and that there 189 1 were no recommendations made. So nothing was 2 done; is that fair? 3 A. On the basis that nothing was -- happened -- 4 nothing -- no recommendations came out of the 5 Cleveleys report, potentially. 6 Q. My clients take the view that, when one looks at 7 the views of Mandy Talbot, when one looks at the 8 correspondence that we've looked at between 9 Mr Holmes and yourself, it's quite clear that 10 Post Office were seeking to cover up their own 11 expert opinion that showed that Horizon was 12 defective because they didn't want that to get 13 out to subpostmasters. Do you accept that's 14 a fair summary of what Post Office were doing at 15 the time? 16 A. He didn't conclude that the system was 17 defective. He construed that it might be 18 defective but he didn't have proof to say that 19 it was defective. But -- sorry, just say your 20 question again, sorry? 21 Q. My question to you is that Post Office were 22 seeking to cover up the expert report because 23 they didn't want subpostmasters to find out what 24 Mr Coyne had found. 25 A. I can't really comment on that. 190 1 Q. I have to suggest to you that your actions in 2 failing to respond appropriately to Mr Coyne 3 were complicit in this cover-up, in failing to 4 undertake a review and in seeking to dismiss, 5 rather than investigate? 6 A. As I said, I don't know whether we didn't do 7 that. I mean there may not have been 8 recommendations in the internal report on the 9 Cleveleys case but I can't comment, and we 10 have -- but we have described that, as a result 11 of particular issues, they were pushed through 12 the first, second, third and fourth line of 13 support issues and to rectify some of it -- to 14 rectify some of the issues. So I can't say that 15 they were not acted upon. There's no evidence 16 to say that they were not acted upon. 17 MR JACOBS: Well, thank you, I might just have some 18 further questions for you. 19 No, I haven't. That all I have for you. 20 Thank you. 21 THE WITNESS: Thank you. 22 Questioned by SIR WYN WILLIAMS 23 SIR WYN WILLIAMS: The impression I get, 24 Mr Lenton-Smith, is that you consider -- and for 25 all I know at the moment, you may be right -- 191 1 that it would not have been for you personally 2 or your department to take forward 3 an investigation of the extent to which 4 Mr Coyne's opinions might be valid, all right? 5 A. Yes. 6 SIR WYN WILLIAMS: Tell me whether you think there 7 was a department or a person within Fujitsu who 8 would have been charged to take forward such 9 an investigation if it was carried out? In 10 other words, can you point me in the right 11 direction so that I can investigate whether the 12 appropriate person in Fujitsu carried out any 13 investigation? 14 A. So I think within the service infrastructure, 15 service department, that managed the first, 16 second and third line support functions, the 17 Service Director may well have -- is possibly 18 the person to whom they -- those corrective 19 measures should have been applied. Any software 20 development, bugs, issues, which I'm sure you've 21 been through, would fall to the software 22 development, Software Services Director. 23 SIR WYN WILLIAMS: So I don't want to make this too 24 simplistic but through Mr Holmes -- and 25 Mr Holmes is a technical man, isn't he? 192 1 A. Yes. 2 SIR WYN WILLIAMS: Through Mr Holmes, if Fujitsu 3 wanted to, they would be able to ascertain 4 sufficient information about the expert's 5 opinion and then, through Mr Holmes, engage the 6 right people in Fujitsu to carry out such 7 investigation as was necessary, in order to 8 validate or disprove what the expert had been 9 saying. 10 A. Yes. 11 Q. So I understand it could have been done and 12 I understand your evidence to be that you don't 13 know if it was done? 14 A. That's correct. 15 SIR WYN WILLIAMS: Right. Thank you very much. 16 Thanks for coming to give evidence to me, 17 and thanks for the witness statement. 18 THE WITNESS: Thank you. 19 MR BEER: Thank you, sir, that's all of our evidence 20 today. We resume I think at 10.00 tomorrow. 21 SIR WYN WILLIAMS: You gave me a shock then, 22 Mr Beer. 23 MR BEER: It would have had given Mr Blake a shock 24 too because he's asking the questions tomorrow. 25 SIR WYN WILLIAMS: So it's just Mr Holmes tomorrow, 193 1 is it? 2 MR BEER: It is, yes, thank you. 3 SIR WYN WILLIAMS: All right, 10.00 tomorrow. 4 (4.10 pm) 5 (The hearing adjourned until 10.00 am 6 the following day) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 194 1 I N D E X 2 SUSANNE JANE HELLIWELL (continued) ............1 3 Questioned by MS PRICE (continued) ............1 4 Questioned by MR HENRY .......................23 5 Questioned by MR JACOBS ......................44 6 COLIN EDWARD LENTON-SMITH (sworn) ............54 7 Questioned by MR BEER ........................54 8 Questioned by MR JACOBS .....................184 9 Questioned by SIR WYN WILLIAMS ..............191 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 195