1 Tuesday, 11 July 2023 2 (10.00 am) 3 Discussion re disclosure issues 4 MR BEER: Good morning, sir. Can you see and hear 5 me? 6 SIR WYN WILLIAMS: Yes, I can, thank you. 7 MR BEER: Thank you, sir. As you and the Core 8 Participants know, there have been a series of 9 further unwelcome developments in the disclosure 10 remediation exercise being undertaken by the 11 Post Office to put right errors and mistakes 12 made in the disclosure given by the Post Office 13 in response to our requirements made over the 14 last 18 months or so, that it must disclose to 15 us documents which are relevant to our terms of 16 reference and list of issues. 17 When these unwanted events emerged at the 18 end of last week, you took two decisions. 19 Firstly that all of the correspondence that the 20 Post Office had sent to the Inquiry in relation 21 to the unfolding tale should be disclosed to the 22 Core Participants so that they understood 23 firsthand what the Post Office was, piece by 24 piece, revealing to the Inquiry. 25 Second, that all Core Participants should 1 1 have the opportunity this morning to make 2 submissions on the issues that have arisen in 3 the light of what the Post Office has disclosed 4 to us since we met together in this hearing room 5 last Thursday. 6 You've indicated, sir, that you're 7 considering two courses of action. Firstly, to 8 proceed to hear evidence from Andrew Hayward, 9 John Scott, Rob Wilson, Alison Bolsover, James 10 Breeden, Paul Inwood, Thomas Pegler, Alan Lusher 11 and Duncan Atkinson -- that is the witnesses for 12 this week, for next week and one in the 13 following week -- notwithstanding what the Post 14 Office has said about the non-disclosure of 15 documents that may be relevant to the evidence 16 that they will give. You have indicated that, 17 if this course of action was taken, you would 18 not hesitate to recall any of those witnesses in 19 due course if new, relevant documentation was 20 provided that ought to have been put to them. 21 The second course of action you have said 22 that you're considering is to adjourn those 23 witnesses and to re-list them in the hearing 24 starting after the summer break. I should add 25 that, subject to a point I'll mention in 2 1 a moment the Inquiry understands that the 2 disclosure issues do not significantly affect 3 the witnesses to be called in the week 4 commencing 24 July. That is those witnesses who 5 give evidence about the civil proceedings 6 brought in connection with the Cleveleys Post 7 Office. 8 Before giving the floor to the legal 9 representatives of Core Participants, I should 10 outline in general terms what has happened. 11 This is principally for the benefit of those in 12 the room who are not Core Participants, for 13 those watching the proceedings online and for 14 those otherwise following the progress of this 15 Inquiry. 16 So by way of background, you'll recall, sir, 17 that on the 4 July you heard evidence from the 18 Post Office's general counsel, Mr Ben Foat, 19 concerning the cause of the non-disclosure of 20 a series of relevant documents, which ought to 21 have been disclosed a year ago to this Inquiry 22 but which only came to our attention because 23 they were disclosed to a member of the public 24 following her request under the Freedom of 25 Information Act 2000. 3 1 The purpose of that hearing, taking evidence 2 from Mr Foat, was not just the narrow one of 3 establishing what had gone wrong and which had 4 led to the non-disclosure of those small number 5 of documents to the Inquiry, it had a wider 6 purpose two: to seek to understand if that 7 instance of non-disclosure was symptomatic of 8 a wider series of problems. Put another way, it 9 was to establish if something was wrong at 10 a system level with the Post Office's disclosure 11 to us. 12 In that hearing Mr Foat identified three 13 such wider issues in the Post Office's 14 disclosure process, arising from, firstly, its 15 use of search terms, secondly its approach to 16 families of documents and, thirdly, to 17 a de-duplication exercise that it had carried 18 out. 19 Mr Foat indicated in his evidence that, in 20 the light of these systemic issues -- that's my 21 phrase not his -- that what he described as 22 a disclosure remediation exercise was being 23 undertaken, that the Post Office was: 24 "... genuinely working through the issues to 25 remediate them as quickly as possible to be 4 1 completely transparent with the Inquiry, that we 2 do want to support the Inquiry to be able to 3 continue its work and therefore prioritise the 4 remediation in terms of the witnesses in 5 Phase 4." 6 At that same hearing last Tuesday, you 7 indicated that you may issue directions to 8 ensure that the remaining Phase 4 witnesses were 9 not undermined by the Post Office's disclosure 10 failings. 11 The Post Office sent a letter to the Inquiry 12 on 5 July at 10.32 pm setting out further 13 information on the de-duplication issue insofar 14 as it affected the evidence of Gareth Jenkins. 15 The Post Office identified 4,767 documents that 16 could be potentially relevant to Mr Jenkins who 17 was due to give evidence the following day. 18 That following day, Thursday, 6 July, 19 ie last Thursday, you held a hearing at which 20 the decision was taken, and taken regretfully, 21 to adjourn the evidence of Mr Jenkins until 22 after the summer break. I explained the reasons 23 for postponing Mr Jenkins' evidence to the 24 public. I'm not going to repeat them now. 25 Later that day, last Thursday -- in fact, it 5 1 was at 6.13 pm that night -- the Post Office 2 sent a letter to the Inquiry that contained 3 an update on its remediation plan. That letter, 4 the 6.13 pm Thursday letter, has been disclosed 5 to Core Participants. I'll read the relevant 6 parts of it now. 7 "This letter sets out the Post Office's 8 current understanding and position in relation 9 to the most significant disclosure issues that 10 could potentially impact on the evidence in this 11 phase. At the outset, the Post Office wishes to 12 apologise unreservedly that these issues have 13 already impacted the scheduled hearings 14 requiring the adjournment of Gareth Jenkins' 15 evidence today and tomorrow." 16 The letter continued by addressing the 17 remediation to the search terms issue. It then 18 addressed putting right the de-duplication 19 exercise and said: 20 "This issue only came to light on 16 June 21 2023 at which the scope of its impact was 22 unclear. Mr Foat indicated in his oral evidence 23 that he was not in a position to give 24 a timescale for this work. Regrettably, it 25 remains the position that the scale of this 6 1 issue is not fully known nor is the Post Office 2 able to provide a timescale for the completion 3 of all necessary remedial activity. 4 "As regards the witnesses scheduled for next 5 week, in our letter of 5 July we explained the 6 steps being taken to address documents that may 7 have been impacted by the de-duplication issues 8 and that are potentially relevant to POL's 9 prosecution and criminal investigation policies. 10 We can confirm that initial search terms that 11 have been run have returned hundreds of 12 thousands of documents. 13 "The Post Office is still not in a position 14 to confirm the number of documents that will 15 need to be prioritised for review, ie in 16 relation to Andrew Hayward, John Scott and Rob 17 Wilson. Although we anticipate the number of 18 documents that will ultimately need to be 19 produced to the Inquiry will be relatively low, 20 the number of documents that may need to be 21 reviewed could be very significant. This in 22 turn could impact on the lead time to producing 23 them to the Inquiry." 24 It's notable, sir, from this letter, that 25 the Post Office's initial search terms had 7 1 "returned hundreds of thousands of documents" 2 but that it was not in a position even to 3 confirm the number of documents which would need 4 to be prioritised for review for this week's 5 hearing. 6 In the light of this material, you decided, 7 as you said you would, to issue directions to 8 the Post Office. I'm not going to read all of 9 your directions and the preamble to them into 10 the record, not least because they're publicly 11 available on our website. The relevant part of 12 them was as follows: 13 "Any documents that relate to Phase 4 14 witnesses that are disclosed as a result of the 15 Post Office's remediation of search terms, 16 family documents or de-duplication issues, as 17 the case may be, must be provided to the Inquiry 18 as follows: (i) for all witnesses who are due to 19 give evidence to the Inquiry up to and including 20 28 July 2023, no later than two clear working 21 days before the date on which that witness is 22 due to give evidence; (ii) for future Phase 4 23 witnesses, no later than 14 August 2023. The 24 Inquiry will shortly publish an indicative 25 timetable. 8 1 "For all documents provided as above the 2 Post Office must clearly identify the witness's 3 request and/or notices to which the documents 4 are said to relate. 5 "Any documents that are disclosed as 6 a result of the Post Office's remediation of 7 search terms, family documents or de-duplication 8 issues, as the case may be, and otherwise 9 respond to the Inquiry's requests issued under 10 Rule 9 of the Inquiry Rules, or Section 21 of 11 the Inquiries Act, as the case may be, and 12 relate to Phase 4, must be provided to the 13 Inquiry no later than 14 August 2023. This does 14 not affect any existing deadlines set by 15 specific Rule 9 requests or related 16 correspondence. The Post Office must identify 17 the request or notices to which the document is 18 said to be responsive. 19 "I make clear that the periods identified 20 above, in particular in respect of the first 21 direction, may in some cases only allow the 22 Inquiry's legal team an opportunity to consider 23 whether it remains possible to call the relevant 24 witness on the date that has been fixed. Where 25 the numbers of documents are small or of 9 1 tangential evidence, it is more likely that the 2 hearing will be able to proceed. However, the 3 Post Office and any other document provider 4 should be in no doubt that I will take any 5 further delay caused by the late disclosure of 6 relevant documents or a failure to provide 7 disclosure of relevant documents extremely 8 seriously and I will not hesitate to continue to 9 call those responsible to give evidence to the 10 Inquiry to account for any failings." 11 The Inquiry received a further letter from 12 the Post Office at 2.11 pm on Friday last week, 13 7 July. This letter referred to your directions 14 and set out details of what was described as 15 a "new work flow" that was "under construction" 16 to isolate documents potentially impacted by the 17 de-duplication issue. 18 The Post Office stated that it will not be 19 able to even to identify, prior to at least 20 disclose of business tomorrow, even 21 a preliminary number of documents that it would 22 need to review prior to the witnesses due to 23 give evidence this week: today, tomorrow, 24 Thursday and Friday. As such, the Post Office 25 said, firstly, it would not be in a position to 10 1 comply with the disclosure directions for the 2 witnesses being called this week. So, to be 3 clear, this was the Post Office saying that the 4 pool of documents that it needed to look at 5 would not itself be identified until at least 6 the close of business tomorrow in respect of 7 a witness due to be called today. 8 Further, that does not, of course, address 9 when the potentially relevant documents 10 themselves would be identified; when they would 11 be provided to the Inquiry; how long we would 12 have to process them and get them out to Core 13 Participants; how long they would have -- the 14 Core Participants, that is -- to look at them 15 and to formulate their questions; how long 16 witnesses would have to look at them; how long 17 we would have to analyse them and to formulate 18 our questions or, indeed, to pursue further 19 disclosure enquiries. 20 The Post Office added that it would not be 21 in a position to confirm whether it could comply 22 with the disclosure directions in relation to 23 the witnesses to be called next week, ie week 3, 24 until later. 25 Yesterday at 4.04 pm we received a further 11 1 four-page letter from the Post Office. This 2 said, in summary, that the Post Office continued 3 to investigate the underlying cause of the 4 de-duplication issue with a view to providing 5 an explanation to the Inquiry and to ensure that 6 it does not reoccur. 7 The Post Office said that it had not yet 8 been possible to determine precisely when or why 9 the approach to de-duplication that had been 10 adopted had been adopted and whether it was 11 a standard approach or an ad hoc approach. The 12 Post Office said that, in respect of week 2 13 witnesses, ie this week, the position remained 14 as set out in previous correspondence, ie it 15 wouldn't be known until tomorrow at close of 16 business, even the size of the problem. 17 In respect of week 3 witnesses, the Post 18 Office said that it was prioritising work on 19 them by expanding the team working on these 20 witnesses but, at the time of writing -- that's 21 4.00 yesterday afternoon -- no preliminary 22 search results had been received and that it 23 anticipated it would only be able to set out 24 these preliminary search results on Friday of 25 this week. To quote the letter: 12 1 "Accordingly, it will appear that it will be 2 very difficult for the Post Office to complete 3 a review of those documents identified in 4 sufficient time before the start of week 3." 5 In relation to week 4 witnesses, the letter 6 said: 7 "We acknowledge that in our 7 July letter we 8 did not specify any concerns in relation to POL 9 being able to comply with the July directions as 10 they relate to week 4 witnesses. This was not 11 intended to convey that the de-duplication issue 12 does not affect the week 4 witnesses and POL 13 regrets to say that they may also be affected by 14 the de-duplication issue. We apologise for any 15 confusion that has been caused by our omission 16 to address the week 4 witnesses until now, which 17 is due to the initial focus being on remediating 18 the de-duplication issue in respect of the 19 witnesses for weeks 2 and 3. 20 "As regards Alan Lusher, who is a former POL 21 employee, the steps being taken to remediate to 22 the de-duplication issue in respect of the 23 week 3 witnesses are also being undertaken in 24 respect of him. The remaining week 4 25 witnesses -- Jason Coyne, Susanne Helliwell, 13 1 Colin Lenton-Smith and Jan Holmes -- are not 2 current or former POL employees however, as with 3 Mr Jenkins, steps will nevertheless need to be 4 taken in order to identify and review any 5 documents potentially impacted by the 6 de-duplication issue in respect of these 7 individuals. 8 "POL will write to the Inquiry confirming 9 whether any potential impact has been identified 10 and outlining the proposed approach in respect 11 of these individuals as soon as possible and by 12 no later than this Wednesday, 12 July. 13 "POL currently anticipates that the work 14 flow to address the de-duplication issue should 15 be fully operational well in advance of 24 July 16 2023, and POL currently anticipates being able 17 to comply with the July directions in relation 18 to the week 4 witnesses. Should this position 19 change for any reason, eg the number of impacted 20 documents that require review is very large, 21 even after search parameters have been refined, 22 POL will update the Inquiry immediately." 23 The letter then addressed what had been 24 uncovered in relation to the Gareth Jenkins 25 de-duplication exercise. In summary, it 14 1 revealed that a number of documents were now to 2 be disclosed that are responsive to our Rule 9 3 Request and, if you look on the last page of the 4 letter, sir, page 4, there's a table and it sets 5 out the Rule 9 requests that the documents now 6 being disclosed were responsive to. The first 7 one was our Rule 9 request number 5, dated 8 26 November 2021; the second was our Rule 9 9 request 10, which was the 16 February 2022; the 10 third was our Rule 9 request number 12, which 11 was 31 May 2022; the fourth was our Rule 9 12 request 14 of 14 June 2002; and the last was our 13 Rule 9 request number 3, dated 20 January 2023. 14 So this reveals number of documents are now 15 to be disclosed that are responsive to Rule 9 16 requests, the first of which was dated 17 26 November 2021 and so this material ought to 18 have been produced to this Inquiry pursuant to 19 that request some 18 months ago now. 20 The letter concludes, under the heading 21 "Course of action to be adopted by the Inquiry": 22 "POL does not seek to make any submissions 23 as to the course of action to be adopted by the 24 Inquiry in response to the Inquiry's invitation 25 of the 7 July 2023. It fully recognises the 15 1 difficulties that the current issues with 2 disclosure have created and the tension between 3 the two options outlined by the Inquiry, and 4 reiterates its profound apologies for having put 5 the Inquiry and other Core Participants in this 6 invidious position." 7 You may consider it insincere of the Post 8 Office repeatedly to send to the Inquiry letters 9 about how they have failed to meet the deadlines 10 for the provision to the Inquiry of potentially 11 relevant documents, ie breach your directions, 12 and at the same time say that they will not take 13 a position on whether there should be 14 an adjournment of relevant witnesses or not. 15 This simultaneous provision of information by 16 the Post Office, which points clearly in one 17 direction but silence on the consequences of its 18 own actions, is something that you may wish to 19 explore, in particular whether this is because 20 the Post Office will not say out loud the truth 21 that dare not be spoken -- ie there must be 22 an adjournment -- or whether the Post Office 23 simply refuses to face up to the aftermath of 24 the revelation of its own conduct. 25 Sir, save for a small number of matters, 16 1 I do not propose at the moment to say anything 2 about the maddening state of affairs that we are 3 faced with. Instead, I will listen and may 4 respond at the end of Core Participants's 5 submissions. 6 The small number of points that I'll make 7 now, however, are as follows: firstly, you will 8 be aware that powers under Section 21 of the 9 Inquiries Act 2005 give to you to require any 10 person to produce any documents in their custody 11 or under their control that relate to a matter 12 in question at the Inquiry and that, if a person 13 fails without reasonable excuse to comply with 14 such a notice, that person commits a criminal 15 offence. 16 The natural reaction in a situation like the 17 present is to say that the Inquiry should not 18 hesitate to use these powers against the Post 19 Office. However, as you also know, 20 section 21(4) of the 2005 Act permits a person 21 served with such a notice to apply to you to 22 determine a claim that he is unable to comply 23 with the notice or that it's not reasonable in 24 the circumstances to require him to comply with 25 such a notice. 17 1 Whilst it's tempting to look at the sorry 2 history of disclosure by the Post Office and 3 reach the conclusion that that sorry history 4 should be visited by the service of a section 21 5 of the Post Office to require production of 6 documents relevant to our upcoming witnesses, 7 we, as your team, are clear that, in the 8 situation that we now find ourselves, that would 9 be met with a section 21(4) application relying 10 on precisely the same facts and matters as are 11 set out in the letters which I have read to you. 12 SIR WYN WILLIAMS: Mr Beer, can I ask you, in 13 respect of section 21, is the word "person" to 14 be interpreted, as is sometimes the case, as 15 a legal person, which might include 16 a corporation, or is it to be interpreted as the 17 human person to whom the notice is sent? 18 MR BEER: I think the law is clear on this. 19 SIR WYN WILLIAMS: Yes. 20 MR BEER: A person in the context of the Inquiry 21 Rules, and it appears in a number of places, 22 should be read as referring to both a legal and 23 a natural person. That has been the consistent 24 approach taken by inquiries held under the 2005 25 Act to which the 2006 rules apply, stemming from 18 1 a ruling to that effect by Sir Brian Leveson in 2 the eponymously named Inquiry that he conducted 3 but, more than that, the schedule to the 4 Interpretation Act 1978, contains a provision 5 which sets out that in other instruments and 6 enactments -- and I'm summarising here -- 7 a person must be taken, unless the context 8 otherwise requires, to mean a legal and 9 a natural person. So the short answer is it 10 could apply to the Post Office as a corporation. 11 SIR WYN WILLIAMS: Yes, but the, what I'll call 12 loosely, statutory defence to the criminal 13 allegation would be available to both the 14 natural and the unnatural legal person, if I can 15 put it in that way. 16 MR BEER: Yes, it would. Before one got to the 17 issue of a criminal offence, the process is we 18 serve a notice saying "Please produce" -- and 19 I'm drafting on my feet here -- "all documents 20 relevant to Andrew Hayward by 4.00 last 21 Thursday", the answer to that would probably be 22 an application under section 21(4), "It's not 23 reasonable for us to comply with the notice 24 because", and then essentially what is sent out 25 in the letters would appear and you would have 19 1 to determine that claim. 2 If you determined that claim against the 3 Post Office and there was still non-compliance, 4 then there could be criminal proceedings and, in 5 the criminal proceedings, there's a reasonable 6 excuse defence too. 7 SIR WYN WILLIAMS: Yes. 8 MR BEER: So there's two stages at which the 9 reasonableness of compliance is addressed in the 10 process. The point I'm simply making, sir, is 11 although it is very easy, and it is my initial 12 reaction to a non-disclosure issue, to rely on 13 the statutory machinery backed by criminal 14 sanctions, this isn't a situation where we're in 15 a position to undermine anything that we're 16 currently being -- is being said to us. It's 17 not about what has happened in the past, 18 particularly right now, it is the situation that 19 has now been revealed and whether it would be 20 reasonable to say "Turn over all of this 21 material in the next 24 hours", and whether that 22 would be ever capable of being done. 23 SIR WYN WILLIAMS: Yes. In terms of sanctions more 24 generally, if I can put it in that rather loose 25 way, there is no such thing. There is 20 1 a statutory framework and I'm bound by the 2 statutory framework, yes? 3 MR BEER: Yes. In the ordinary event that this was 4 a proceeding in a court or, indeed, some forms 5 of tribunal, what has happened here would 6 doubtless be visited by an adverse order for 7 costs against the Post Office to pay for the 8 consequences of their misconduct. That's not 9 a sanction that's available to you under the 10 2005 Act or the 2006 Rules. 11 SIR WYN WILLIAMS: No. Thank you. 12 MR BEER: The second matter that I would invite you 13 to consider, sir, is what evidence there is that 14 this remediation exercise is likely to turn over 15 evidence that is relevant to the witnesses who 16 are to give evidence, ie what's the likelihood 17 that this remediation exercise will yield fruit? 18 I'm not inviting you to speculate there but, 19 instead, perhaps just to look a little while 20 backwards at what has happened so far. 21 The first point I'd make is, in contrast to 22 some previous instances, I'm talking about 23 months ago now, of late disclosure by the Post 24 Office, where in correspondence it's said that 25 the documents it has located appear not to be 21 1 important or significant to the upcoming 2 witnesses, on this occasion, in the clip of four 3 letters that I have taken you through, nowhere 4 has that been said. The Post Office has not 5 said, "This material may be insignificant". 6 The second thing. I read to you the section 7 of the letter of yesterday of 4.04 pm, at the 8 end concerning Gareth Jenkins, and you will see 9 that a number of documents that have been turned 10 up that are relevant in the Post Office's 11 assessment to the evidence of Gareth Jenkins. 12 It's fair to say that's a much smaller number 13 than the initial estimate of 4,767 that was 14 given. There's only 35 in the list. 15 SIR WYN WILLIAMS: Yes. In the past, Mr Beer, we 16 have -- I say "we", but ultimately I -- have 17 adopted a somewhat pragmatic approach and 18 perhaps an approach based more upon hope than 19 anything else, that documents which turn up late 20 will not turn out to be particularly 21 significant, and I've been conscious that I've 22 been doing that, for example, in respect of the 23 very early development of Horizon and such 24 matters, where it may have been appropriate -- 25 I stress "may" because others me take 22 1 a different view -- but it may have been 2 appropriate for me to take something of a chance 3 in respect of late disclosure. 4 We're now at a stage where we are reaching 5 a crucial part of the investigation, are we not, 6 in terms of personal accountability, where the 7 scope for taking a risk or a chance with 8 disclosure is vanishingly small in comparison. 9 MR BEER: Sir, I would respectfully agree and you'll 10 recall that when I was making submissions last 11 Thursday about Mr Jenkins' position, I noted 12 that one of the documents that had been obtained 13 as a result of this disclosure exercise was 14 indeed highly relevant to the evidence that he 15 would give. 16 The third point under this subheading is 17 that I should point out that the Inquiry has 18 recently received from the Post Office a series 19 of documents relating to Alison Bolsover's 20 evidence. Prompt analysis by the Inquiry Team 21 that sits behind me suggests that these 22 documents include documents which are highly 23 relevant to the evidence which she is to give. 24 The third point that I would draw 25 respectfully to your attention, sir, is to 23 1 recall Tony Marsh's evidence of last week, and 2 I'm not going to invite you to make findings now 3 on the veracity or reliability of everything 4 that he said but one of the things that he did 5 say was that, having read carefully Mr Duncan 6 Atkinson KC's report, it appeared that the 7 policies and procedures that the Inquiry had 8 been given by the Post Office was not a complete 9 set that reflected his memory of the policies 10 and procedures that were in place. 11 SIR WYN WILLIAMS: The impression I gained, Mr Beer, 12 was that he was at pains to press that upon me. 13 MR BEER: He was and, whilst, of course, there's 14 an obvious reason to say it might be right that 15 the policies you've got are, if Mr Atkinson KC 16 is right, defective, there's this whole bunch of 17 other policies that you haven't seen, and they 18 were much better. Of course, there may be 19 a motive for saying that. That is evidence that 20 you should take into account in the present 21 situation, that you have received evidence under 22 affirmation that there has been non-disclosure 23 of policy documents to this Inquiry from 24 somebody as Head of Security for seven or so 25 years who would be expected to know. 24 1 The fourth point that I would make before 2 sitting down, sir, is to remind you that at 3 least two of the witnesses who we are planning 4 to hear from over the coming week -- I shall not 5 name them now -- were witnesses who, because of 6 the evidence that they have given and because of 7 documents already in the possession of the 8 Inquiry, were witnesses who I would invite you 9 to give the warning against self-incrimination 10 to. 11 SIR WYN WILLIAMS: Right. 12 MR BEER: Sir, we asked all Core Participants to 13 identify whether they wish to make submissions 14 this morning and I should just record the 15 negative returns. 16 UKGI said that they had no submissions to 17 make, Paula Vennells said that she had no 18 submissions to make and Fujitsu have informed us 19 that they have no submissions to make. 20 In terms of the order this morning, sir, 21 it's entirely a matter for you, but you may 22 wish, if you consider it appropriate, to hear 23 anything that the Post Office wishes to say 24 first, and then give the subpostmaster Core 25 Participants the floor in the order in which 25 1 they wish to speak. 2 SIR WYN WILLIAMS: I agree. So let Ms Gallafent say 3 what she wishes to say. 4 Submissions by MS GALLAFENT 5 MS GALLAFENT: Sir, good morning. 6 Can I start by repeating the unambiguous 7 apology for the position that the Inquiry and, 8 in particular, the Core Participants find 9 themselves in, as a result of the failures of 10 Post Office's disclosure. We had set out in our 11 letter sent yesterday, sir, our position that we 12 did not seek to make submissions on the two 13 alternatives that you had identified when 14 directing this morning's hearing. That is not, 15 as counsel for the Inquiry suggested, in our 16 respectful view, because Post Office simply 17 refuses to face up to the aftermath of the 18 revelation of its own conduct. 19 Post Office is emphatically engaging with 20 the aftermath of discovering the issues, sir, 21 that we have written about on a number of 22 occasions and those letters reflect the efforts 23 that we have been going to, to remediate and 24 resolve those matters. But it is not right, in 25 our submission, for us to seek to persuade you, 26 1 sir, of which of the two alternatives that you 2 identified should be adopted. 3 In our view, it is not right for Post 4 Office, as the organisation at the heart of this 5 Inquiry and facing potentially very serious 6 criticism indeed, to advocate one way or the 7 other. Rather, it is the Core Participants, 8 particularly the postmasters, whose voices 9 should be heard on this occasion. 10 Sir, the very fact that you identified those 11 two alternatives indicates that there is not one 12 ineluctable view that may be taken by others 13 involved in this Inquiry and it is, with 14 respect, those voices who we suggest, sir, you 15 hear before making any decision. But 16 I emphasise again the deepest of apologies on 17 behalf of the Post Office for the position, sir, 18 that we have put you and all those involved in 19 the Inquiry in, but emphasise we will continue 20 to do everything that we possibly can to 21 remediate and resolved the position. 22 Thank you. 23 SIR WYN WILLIAMS: Ms Gallafent, I put forwarding 24 two alternatives because it seemed to me at the 25 time I wrote them, or that they were written, 27 1 that they were the only runners, so to speak. 2 Am I right about that? Is there a third 3 alternative that you have thought about, 4 considered, and wondered why I'm not 5 considering? 6 MS GALLAFENT: No, sir. I note, of course, in your 7 directions you'd indicated it was open to anyone 8 to advance a third route. We haven't identified 9 a third route, sir. We'd accept that those are, 10 in our submission, the binary alternatives. Let 11 me make it clear that we are not in any way 12 seeking to anticipate other person's suggestions 13 that there might be perceived to be a third 14 route through. 15 SIR WYN WILLIAMS: All right. Is there anything 16 that you wish to say to update the latest 17 letter, so to speak? I'm not thinking you 18 should but I'm just giving you the opportunity. 19 That's all. 20 MS GALLAFENT: No. I'm very grateful and, sir, 21 you'll appreciate that matters are rapidly 22 moving. We will be updating you, sir, in 23 correspondence but that won't be until later 24 today. But we are conscious of the efforts that 25 are going on behind the scenes and we will 28 1 provide you with updates as soon as we can in 2 that respect. But I don't have anything further 3 at this point in time today to update you on, 4 sir. 5 SIR WYN WILLIAMS: One of the things I'm thinking 6 about which would impact upon you -- when I say 7 "you", I mean you and your team -- and therefore 8 you need to consider it, is that I should be now 9 much more proactive in the sense of not waiting 10 for letters from you to update me but adopting 11 a much more -- a practice much more akin to that 12 which I have done in relation to compensation 13 and literally scheduling hearings frequently, 14 certainly frequently over the next few months, 15 notwithstanding the advent of the holiday 16 period, so that people's minds are crystallising 17 by the prospect of having to state publicly what 18 the position is. Do you have any observations 19 about that? 20 MS GALLAFENT: Sir, I can assure you that people's 21 minds are already firmly crystallising and 22 crystallised on the importance of that matter. 23 You should be in no doubt, sir, with respect, 24 about that. 25 I don't seek to persuade you from holding 29 1 a hearing, were that would be considered 2 appropriate, on the subject of closure but just 3 to emphasise, sir, at the moment we are focusing 4 our energies and efforts on trying to resolve 5 the issue rather than -- which we recognise is 6 an equally important question -- to identify 7 exactly how the issue arose and how to prevent 8 it arising again. So we are throwing everything 9 at it at the moment to try to get the documents 10 reviewed and to the Inquiry. 11 I don't say that by way of putting off 12 an evil day; I say that simply because if, sir, 13 you were to suggest holding a separate hearing 14 on the question of disclosure, that would 15 inevitably, at this point in time, take some of 16 the resources away from the remediation efforts 17 that are already under way. But, sir, 18 I recognise fully that's entirely a matter for 19 you, sir. 20 SIR WYN WILLIAMS: All right. I'll think about 21 that, as I hear other people develop whatever it 22 is they wish to say. Is that it, Ms Gallafent? 23 MS GALLAFENT: It is. Thank you, sir. 24 SIR WYN WILLIAMS: Thank you. Right. 25 Well, as Mr Beer indicated, and as 30 1 I anticipated, the principal legal 2 representatives for the subpostmasters will now 3 no doubt wish to address me. So in whatever 4 order you have agreed, if you have, I am happy 5 to hear you. 6 MR STEIN: Sir, I believe that, with the agreement 7 of my learned friends, that I am able to go 8 first. 9 Submissions by MR STEIN 10 SIR WYN WILLIAMS: Right. 11 MR STEIN: Sir, it doesn't matter whether the Post 12 Office is dodgy or incompetent, or more likely 13 that the Post Office is staffed by dodgy 14 incompetence. The way that our clients are 15 being treated is an outrage, the way that this 16 Inquiry is being treated is an outrage. 17 These disclosure issues follow a month 18 whereby, sir, you were unable to continue with 19 these proceedings within this Inquiry due to ill 20 health. They arise at a time when we start to 21 deal with, and have had one of, the Heads of 22 Security, which we have seen through the course 23 of this evidence in this Inquiry to be a focal 24 point of many of the issues with which we are 25 about. 31 1 Our clients don't believe in coincidence. 2 They don't believe that what is happening here 3 is some difficulty that the Post Office is 4 having at this particular time. This seems to 5 them, from their experience, to be deliberate. 6 Before I develop our overall response to the 7 two options, I make no apology and I will be 8 quoting a number of our clients and their 9 reactions to what has happened. Sir, as you 10 know, we represent 157 former subpostmasters and 11 mistresses. A great many of our clients have 12 developed mental health conditions due to the 13 Post Office's original actions against them. It 14 needs to be understood they are now reliving the 15 same nightmares, being retraumatised by the Post 16 Office's conduct. 17 One of my clients says: 18 "My anxiety is at an all-time high. My 19 mental health is taking its toll. I can't see 20 any light at the end of the tunnel. Post Office 21 always throws a spanner in the works. It's the 22 same tactics every time. They're just can 23 kicking, taking the mickey out of the Chair, 24 you, the lawyers and us. They have total 25 disregard for any of us. They're making fools 32 1 of everyone with no consequence, same as always. 2 They think they're untouchable and unless 3 anything is done, they'll keep believing and 4 acting of the same." 5 The same client asks this: 6 "Why is no one getting aggressive with them? 7 Stop pandering to them. Talk is cheap, actions 8 speak louder than words. Hit them where it 9 hurts: in the pocket. They'll soon take notice 10 then. 11 "Having to relive these tactics of the Post 12 Office again brings back memories of how they 13 treated us when we were suspended: the not 14 knowing what they're playing at. I can't handle 15 this much more. They're grinding us down, as 16 always. They know what they're doing, they're 17 causing people to lose their minds and this is 18 on par with how they've always treated us. 19 I can't sleep, concentrate and I'm getting 20 snappy with my family because it's in the 21 unknown." 22 Further comments: 23 "I know this Inquiry is separate to 24 compensation but to us claimants the 25 compensation will always remain the forefront of 33 1 our minds. Everyone is being paid, it seems, 2 except those most affected: the claimants. The 3 two go hand in hand. No matter how many times 4 you say this is separate, to the claimants the 5 compensation is more important than the Inquiry. 6 We can't live on fresh air. 7 "They will have more blood on their hands 8 should things not improve, because I feel people 9 are on the very cusp of giving up. Post Office 10 don't care. Another claimant who takes their 11 life is one less to pay. 12 "Leading on from that, the way the Post 13 Office are acting fills me with zero confidence 14 that, come the time the claims to be settled, 15 these will not be completed by August 2024. 16 There is no way on God's Earth they will settle 17 all claims in time. They can't produce a piece 18 of paper on time. What makes you think they 19 will settle claims? None." 20 Another client: 21 "Every day my body and mind sink further. 22 There is no happy retirement for me. I can't 23 get closer to my family. I so understand why so 24 many leave us by their own hand. POL is 25 a machine. It doesn't care. Sir Wyn was the 34 1 last hope for any just recompense and it is now 2 lost." 3 "The whole situation with the Post Office is 4 so frightening", another writes, "frustrating 5 and is affecting my mental health badly at the 6 moment. I have lived the last 16 years 7 suffering from mental health and on medication 8 due to their actions. A lot of anger and 9 frustration was shown at the meeting today." 10 That refers a meeting we had with our client 11 group: 12 "... and those of us who were part of the 13 555 Litigation can see the way they treated us 14 then repeating itself again, and they will get 15 away with it, as they always have." 16 Another client: 17 "At the outset of this Inquiry, I found it 18 of great help to me and my mental health. 19 However, every time there is a delay caused by 20 the Post Office procrastination and deliberate 21 obstruction, it has detrimental effect on me. 22 Therefore, I'd prefer that we continue, as 23 I have no faith that the Post Office will not 24 continue making late disclosures again and again 25 at key points in proceedings causing recurring 35 1 delays, which would have a continuing 2 detrimental effect upon me." 3 Another client: 4 "I would urge the Chair to take the 5 strongest measures possible in his power to 6 force the Post Office into disclosing all 7 relevant documentation, even if that means going 8 to the High Court. The Post Office has 9 consistently failed to disclose information 10 throughout the whole process and I go back 11 14 years of fighting them. 12 "The Post Office cannot be trusted to tell 13 the truth and have shown complete disregard for 14 the law of our land. Their officials have been 15 shown to tell untruths in court and in evidence 16 documents over many years. They are making 17 a mockery of this Inquiry and have scant regard 18 to the people whose lives and health they have 19 ruined." 20 Sir, you can see that the Post Office's 21 conduct has serious, direct, human consequences. 22 Many of our clients are despairingly driven to 23 the conclusion that these recent developments 24 are nothing other than a deliberate attempt by 25 the Post Office to interfere with, frustrate and 36 1 undermine the Inquiry process. 2 This Inquiry is built upon the judgments of 3 Mr Justice Fraser in the High Court and, sir, 4 you will recall that Mr Justice Fraser made 5 a number of comments about the cavalier approach 6 that the Post Office applied to disclosure in 7 the Group Litigation. I remind you of one part. 8 Judgment number 6, Horizon Issues, dated 9 16 December 2019. Paragraph 575 of the 10 judgment. I quote Mr Justice Fraser: 11 "In the letter of claim from the claimants 12 dated 28 April 2016, the Known Error Log was 13 sought from the Post Office, that letter stating 14 'We understand that Fujitsu maintained a Known 15 Error Log for Horizon and that such reports will 16 have been provided to Post Office. Please see 17 the list of the categories of documents relating 18 to Fujitsu referred to below that we request 19 disclosure of.' 20 "Item 22 in the list of documents sought was 21 the Known Error Log kept by Fujitsu and provided 22 to Post Office Fujitsu, as referred to above, 23 and all correspondence relating to the same." 24 Paragraph 576: 25 "The answer in a letter from the Post 37 1 Office's solicitors against the specific item 22 2 was: 3 "'In circumstances where you have not 4 particularised any factual basis on which 5 Horizon is defective, disclosure of these 6 documents (if they exist) is not relevant, 7 reasonable or proportionate'." 8 Mr Justice Fraser concluded this particular 9 section at paragraph 577: 10 "The suggestion in that letter that the 11 Known Error Log was not relevant is simply wrong 12 and, in my judgment, entirely without any 13 rational basis. The further suggestion viewed 14 with the hindsight now available, that the Known 15 Error Log may not exist, is disturbing. The 16 claimants' request use the precise title, "Known 17 Error Log", and this clearly did exist. To 18 suggest in an answer 'if they exist' is somewhat 19 misleading." 20 In other words, the Post Office has form for 21 that this type of behaviour and, we suggest, the 22 Post Office has form which demonstrates itself 23 in the disturbing way it treats its disclosure 24 obligations. 25 There is a very telling passage at page 319 38 1 of Mr Wallis's book The Great Post Office 2 Scandal where one of the barristers, now King's 3 Counsel, Kathleen Donnelly, who represented 4 subpostmasters before Mr Justice Fraser, said 5 the following: 6 "It is obvious that the Post Office had 7 a strategy to withhold material until they were 8 forced to produce it. This caused delay, 9 disruption and ran up costs. We only received 10 significant documents after a battle and were 11 left with little time to review them, sometimes 12 just days before a witness was cross-examined. 13 It was exasperating." 14 Those words are just as applicable today as 15 it was during the High Court action. 16 Sir, you're aware that my instructing 17 solicitors, Howe+Co, have made repeated 18 submissions to the Inquiry in relation to 19 disclosure issues. I repeat a section of the 20 letter dated 2 February 2023. Howe+Co stated 21 this: 22 "Post Office's habitual delay in complying 23 with the disclosure process is hampering full 24 and thorough preparation by us and no doubt 25 other representatives of complainant Core 39 1 Participants, as well as the work of the Chair 2 and the Inquiry Team." 3 We suggest, sir, that the behaviour that has 4 been set out in detail by my learned friend 5 Mr Beer should be viewed in the clear light of 6 all of the serious failings of the Post Office 7 on the central issue of disclosure, that has run 8 through the core of the Inquiry and, indeed, 9 through the Post Office's conduct of all 10 proceedings. 11 We hope, sir, that it is understood that the 12 very many clients we represent have no belief 13 whatsoever in the good faith of the Post Office. 14 Mrs Holmes, who, sir, you will remember lost 15 her husband before he was cleared at the Court 16 of Appeal, she asks why those: 17 "... who are so obviously shambolic are 18 claiming such high salaries or, if they are 19 dishonest, why are they being allowed to run the 20 Post Office?" 21 Sir, we have been asked to give our view on 22 the two proposed courses of action, in response 23 to the latest disclosure scandal. In 24 considering these options, we've also turned to 25 the Inquiry's terms of reference, which state: 40 1 "The Inquiry shall [at (b)] build upon the 2 findings of Mr Justice Fraser and the judgments 3 of the criminal courts specified above in the 4 terms of reference by obtaining all available 5 relevant evidence from Post Office, Fujitsu, 6 BEIS, UKGI, to establish a clear account of (i) 7 the implementation and failings of Horizon over 8 its life-cycle; and (ii) Post Office's limited 9 use of information from Horizon when taking 10 actions against persons alleged to be 11 responsible for shortfalls." 12 It is a core part, therefore, of the terms 13 of reference that this Inquiry must pursue and 14 continue to pursue the Post Office in relation 15 to its disclosure obligations. 16 The first course suggested by the Inquiry is 17 that the Inquiry proceeds to hear oral evidence 18 from the seven POL witnesses, over the next 19 couple of weeks, and Mr Atkinson, and the 20 Inquiry states that it will not hesitate to 21 recall any of these witnesses in due course if 22 new, relevant documentation was provided that 23 ought to be put to them. 24 The second option is that the hearing of 25 those witnesses is adjourned and then re-listed 41 1 after the summer break with the exception of 2 witnesses concerning the Cleveleys Post Office. 3 We have taken instructions from our client 4 group. There is a two-thirds majority that 5 suggests that the right course of action is to 6 adjourn to ensure that all relevant disclosure 7 is made. May I say there is a strong third who 8 say that this Inquiry is being dangled like 9 a puppet by the Post Office and that the Post 10 Office should not be allowed to call the tune. 11 Sir, our clients have every faith in you 12 having no hesitation in re-calling witnesses, 13 but recognise the fact that witnesses who have 14 already given evidence may come under the 15 question of "Is the new document 16 significant/substantial? Will it make 17 a difference to the evidence? Could it be dealt 18 with another way?" 19 There is always a danger that the Inquiry 20 may be put in a situation whereby witnesses that 21 are being called, that we are suggesting should 22 be recalled, the Inquiry may make a different 23 decision to that to which we put forward and 24 that could leave individual subpostmasters very 25 frustrated, if questions relevant to their own 42 1 experiences fall away as a result. 2 Furthermore, there is the point that giving 3 Post Office witnesses two separate occasions on 4 which to give their evidence, assuming the 5 recall, may give them an advantage of having had 6 a dress rehearsal for what is to come. 7 So we make, on balance, the submission in 8 support of the second option but with two 9 important caveats. Firstly, we suggest that 10 Mr Atkinson should give evidence as per the 11 current timetable. That is because Mr Atkinson 12 King's Counsel gives evidence as an Inquiry 13 expert and, like Mr Cipione in Phase 2, is 14 likely to be recalled in any event and can also 15 therefore deal with further evidence as it 16 emerges. 17 Secondly, we ask that the Inquiry uses some 18 of the time that will be lost in these weeks to 19 recall Mr Foat, to provide a fuller explanation 20 on oath in relation to the Post Office's failure 21 to comply with their disclosure directions. 22 Further, we ask that the Inquiry requires the 23 CEO of the Post Office, Mr Nick Read, and 24 a relevant partner of Herbert Smith Freehills to 25 attend to provide an explanation about the 43 1 involvement of the Post Office's legal team in 2 the disclosure process, so that they can answer 3 questions on the wider issues concerned with 4 what appears to be the Post Office's 5 interference with this process. 6 In particular, we suggest that we need to 7 know, and this Inquiry needs to be satisfied, 8 that disclosure has been properly, honestly and 9 competently dealt with in the modules we've had 10 so far. There is nothing, absolutely nothing, 11 in this recent disclosure mini-scandal, within 12 the many of the disclosure scandals, that gives 13 a single one of our clients any certainty that 14 the Post Office's disclosure obligations have at 15 any time been fulfilled at any point within this 16 Inquiry. 17 So we ask that Mr Foat, Mr Read and the 18 relevant Herbert Smith Freehills partner be 19 called to attempt to assure us that these 20 disclosure issues don't have relevance to the 21 witnesses and modules we've already dealt with. 22 Therefore, sir, subject to the exception of 23 Mr Atkinson King's Counsel and what we say about 24 recalling Mr Foat, calling Mr Read and a partner 25 from Herbert Smith Freehills, we submit, on 44 1 balance, that the second of the proposed 2 options, although regrettable, would represent 3 the fairest option for the Inquiry, its best 4 chance of fulfilling its terms of reference and 5 also fulfilling its duty to our clients and the 6 witnesses themselves. 7 It is important that we address the 8 possibility of the Inquiry taking sanctions 9 against the Post Office. It is quite apparent 10 to us, on behalf of our clients, that the 11 disclosure issues presented by the Post Office's 12 actions and omissions are capable of preventing 13 the Inquiry's fulfilment of at least part of the 14 terms of reference. 15 We submit that the response of the Inquiry 16 should be proportionate to the seriousness of 17 the disruption which has been caused by the Post 18 Office's conduct. 19 We ask you, sir, to consider the remedy or 20 the remedies open to the Inquiry and, in 21 particular, in relation to Section 36. 22 Section 36 of the Inquiries Act 2005 enables 23 a chair of an Inquiry to certify to the High 24 Court the failure of a person to comply with 25 a Section 21 notice or an order made by the 45 1 Inquiry. The court, the High Court, would then 2 be able to make an order, by way of enforcement 3 or otherwise, to compel a party to comply. 4 Sir, you may feel that that would work well 5 with the suggestion that you have made and 6 considered with Ms Gallafent King's Counsel, 7 that the Inquiry works in a similar way to the 8 compensation hearings that we have, to drill 9 down into the detail of what is happening with 10 the disclosure. 11 We invite, sir, you to consider the 12 possibility that that approach would work well 13 in tandem with the strength of the powers of the 14 High Court backing it. The courts have accepted 15 that Section 36 may be appropriate in cases of 16 this kind. In Paisley 2008, Queen's Bench 17 Division in Northern Ireland held that the focus 18 of Section 36 was on obtaining information and 19 the provision was successfully used by the 20 Chair, Sir Martin Moore-Bick in the Grenfell 21 Tower Inquiry in Moore-Bick v Mills [2020] EWHC 22 618 (Admin). In that case, Mr Justice Mostyn 23 accepted that the respondent had not treated 24 a public inquiry with the seriousness that it 25 deserved and had failed to respond fully or 46 1 properly with a Section 21 notice which had been 2 served, and the court ordered the respondents to 3 do so. 4 It is relevant to note, sir, that Section 36 5 refers to orders made by an Inquiry as well as 6 statutory notices. 7 We submit that an application to the High 8 Court in relation to the Post Office's failures, 9 in relation to the disclosure directions given 10 on 7 July of this year, would provide the 11 Inquiry with an appropriate remedy in this case 12 and work well in tandem with the proposal that 13 you have made. Importantly, the procedure under 14 Section 36 will expose the Post Office, as 15 a company, and potentially its directors, to 16 committal for contempt of court should the Post 17 Office fail to comply with any Section 21 notice 18 or order from the Inquiry to produce the 19 evidence which the Inquiry has requested. 20 The High Court would not approach this in 21 an unthinking way. It would approach this in 22 a way that would actually understand the current 23 position and the difficulties with the 24 disclosure process. 25 Sir, in conclusion, we ask that the Inquiry 47 1 takes the second of the two options, subject to 2 what we have said about Mr Atkinson King's 3 Counsel and requiring the attendance of Mr Foat, 4 Mr Read and a partner from Herbert Smith 5 Freehills. The Inquiries Act does provide 6 a procedure backed up by sanctions to enable you 7 to put a stop to the Post Office's continual 8 interference with the progress of this Inquiry 9 and we ask you, sir, to give serious 10 consideration to deploying that process. 11 Sir, we cannot emphasise enough that the 12 conduct of the Post Office is having hugely 13 detrimental effects on the mental health of some 14 of our clients. It is retraumatising them, it 15 is putting them through it, it is reminding them 16 of exactly the way that the Post Office has 17 approached the litigation at the High Court. 18 Our clients are adamant that the Post Office 19 must not be permitted to control or interfere 20 with this Public Inquiry. 21 I think I've finished my submissions but 22 I see a note from my instructing solicitor. 23 Just one second. 24 SIR WYN WILLIAMS: Of course. 25 MR STEIN: Sir, yes. I'm very grateful. It relates 48 1 to the question of the hearings in relation to 2 disclosure. 3 This would provide useful support for the 4 process and, of course, could be scheduled to 5 take place alongside the compensation hearings 6 that you already have. 7 Sir, those are our submissions overall. Can 8 I assist any further? 9 SIR WYN WILLIAMS: No, thank you very much. 10 Right. By my computer clock, it's 11.06. 11 Who is next to speak? 12 MR MOLONEY: Sir, that would be me and I'll just be 13 a very few minutes. So it maybe -- 14 SIR WYN WILLIAMS: Well, then we'll hear you, 15 Mr Moloney, and then have a break, if that's the 16 case. 17 Submissions by MR MOLONEY 18 MR MOLONEY: Thank you, sir. 19 Sir, we echo much of that which has been 20 said by Mr Stein but won't repeat it. It is 21 an awful position that the postmaster Core 22 Participants find themselves in again, not least 23 with their having to listen to the apparent 24 apologies of Post Office again, and the more 25 those apologies are made, the more hollow they 49 1 sound. But having consulted our Core 2 Participants, we would also prefer the option of 3 not hearing the evidence of the witnesses 4 scheduled for this week and next until 5 disclosure has been completed. 6 Core Participants should be able to 7 formulate their Rule 10 requests with the 8 benefit of the fullest practicable disclosure 9 and we have highlighted, in a number of our 10 Rule 10 requests over many months, where further 11 disclosure may be outstanding, including in 12 respect of attachments to emails or further 13 emails in a chain, for example. We're very 14 grateful to the Inquiry for how it's explored 15 those requests in advance of witnesses appearing 16 before the Inquiry. 17 Some documents have been released late, both 18 to witnesses and to Core Participants. It's 19 been an ongoing problem, and in the light of the 20 evidence of Mr Foat and the exchanges over the 21 past week, we share the view of Mr Beer that the 22 position in respect of the treatment of family 23 and duplicate documents is a maddening state of 24 affairs. 25 So it is with real regret, sir, that we also 50 1 take the view that the Inquiry should not 2 continue with the witnesses scheduled for this 3 week or next. 4 SIR WYN WILLIAMS: Does that include Mr Atkinson in 5 your case? 6 MR MOLONEY: Sir, it does, in our view. Mr Atkinson 7 is an expert witness and he has to provide his 8 opinion after reviewing all relevant evidence. 9 If there are concerns as to whether he has been 10 provided with all relevant evidence, he 11 shouldn't give evidence until those concerns are 12 dealt with. 13 SIR WYN WILLIAMS: All right. Is that it, 14 Mr Moloney? 15 MR MOLONEY: That's it, sir. 16 SIR WYN WILLIAMS: I said we'd take a break. 17 Mr Henry, do you want a break? 18 MR HENRY: I would like a little break, sir, if you 19 don't mind. 20 SIR WYN WILLIAMS: That's fine. 21 MR HENRY: Thank you very much, sir. 22 SIR WYN WILLIAMS: We'll start again at 11.25. 23 MR HENRY: Thank you, sir. 24 (11.08 am) 25 (A short break) 51 1 (11.25 am) 2 MR HENRY: Hello, sir. 3 SIR WYN WILLIAMS: Good morning, Mr Henry. 4 MR HENRY: Thank you, sir. May I begin? 5 SIR WYN WILLIAMS: Of course. 6 Submissions by MR HENRY 7 MR HENRY: Sir, sometimes with a vexatious machine, 8 you just have to turn it off at the mains. The 9 Core Participants we represent are unanimous 10 that this Phase should be adjourned, and that no 11 further evidence, including expert evidence, be 12 called until September and I shall explain why 13 towards the close of my submissions, sir. 14 But may I very briefly touch on last 15 October. The old proverb goes: if a man 16 deceives me, once shame on him; if twice, shame 17 on me. 18 You were within your rights to give the Post 19 Office one chance and you did so, last October, 20 and the prescient individuals I represent won't 21 say "I told you so" and neither will I, but they 22 knew the future, sir, for the past they knew. 23 The mental scars they'd suffered, their bodies 24 broken in health, tormented by physical pain, 25 and particularly the marred existence, bleak and 52 1 pitiless, that they had endured for some of them 2 approaching two decades because of the Post 3 Office's long deceit, unthinking cruelty and 4 culture of secrets, cover-ups and lies. 5 This was intimately known to the Core 6 Participants which, together with Ms Page, 7 I represent before you. They knew their 8 oppressor better than anyone else, for their 9 bore the wounds that it had inflicted callously 10 and, through me, they told you of the nature of 11 the beast you were contending with last October: 12 a vicious institution that had crushed them, 13 suffocated their right to a fair trial, putting 14 them -- some of them -- in prison or subjecting 15 them to penury, some of them for over two 16 decades. 17 Now, this institution, sir, you will recall, 18 had misled the Court of Appeal Criminal Division 19 in the case of Butoy, as recently as 2008. That 20 subpostmaster was successful, however, in 21 Hamilton in 2021. This institution had hazarded 22 the civil litigation before Mr Justice Fraser, 23 as he then was, only to fight tooth and claw, 24 resisting the obvious limb 2 in Hamilton. 25 But after a series of civil trials and 53 1 appeals, you might have been forgiven for 2 thinking that they would approach matters before 3 you, this statutory Inquiry, with rigour, 4 profound thought, ample resources and 5 application, and maybe even a little humility. 6 It might therefore be thought that you were 7 entitled to the essential incredulity that 8 a public corporation, historically infected with 9 the contagion of non-disclosure that had 10 contaminated both civil and criminal justice, 11 was unlikely to continue with reckless 12 non-disclosure or manifest such flagrant 13 incompetence before this Inquiry. No doubt such 14 prospect seemed preposterous. 15 Well, in a sane world, a contrite Post 16 Office would unhesitatingly comply with every 17 order or stricture so that its errors could 18 belatedly be reversed by striving humbly to 19 uncover the truth, even if the damage to the 20 Core Participants had been done. Even if their 21 suffering could not be undone, honest humility 22 by the Post Office would have meant something. 23 But it was not to be. 24 At this point, sir, I will only read two of 25 the messages that we have received. I pick two 54 1 that typify the pain and anguish of those we 2 represent. One is from Nichola Arch who says: 3 "I just thought I would write my views down 4 as I am unable to attend tomorrow due to 5 an operation I had last Monday. The harm of 6 non-disclosure and/or delayed disclosure cannot 7 be underestimated when it comes to the victims 8 of this nightmare. For some, it takes you 9 straight back to the time when you tried to 10 defend yourself but constantly hit a brick wall 11 that is called the Post Office, knowing the 12 truth is there, but you constantly have no 13 access to it. 14 "This is what justice looks like to all of 15 us, a one way-ticket to nowhere. The Post 16 Office have said they've learnt lessons and they 17 continue to do this. Is this lesson 18 a conspiracy and disrespect for the whole of our 19 legal system? Being the guilty parties, I do 20 not understand why the Post Office have so much 21 slack given to them. It's almost like they 22 continue to control the whole narrative. We are 23 losing momentum in the Inquiry and changes have 24 to happen now. You, sir [she says], have showed 25 nothing but integrity, humanity and respect at 55 1 all times, yet it is being reciprocated with 2 this disgraceful disrespect to the whole 3 Inquiry." 4 You, sir, I repeat, using Ms Arch's words, 5 have shown nothing but integrity, humanity and 6 respect at all times, yet it is being 7 reciprocated with this disgraceful disrespect to 8 the whole Inquiry. 9 Then Janet Skinner, who -- and I'm grateful 10 to Mr Schwarz: 11 "I completely understand the chair is not 12 happy with this disclosure process from the Post 13 Office, so are we all. Moreover, I'm extremely 14 concerned about this situation. Why is the Post 15 Office able to do this after years of 16 withholding information? Why is it allowed to 17 continue? This isn't the first time or the 18 second time. I believe that there should be 19 some sort of punishment for their behaviour and 20 for their completely negligent behaviour towards 21 this Inquiry. It's becoming the Post Office 22 show again. The Post Office are well aware of 23 their actions. Are they not intelligent enough 24 to understand the rules?" 25 So that is what Janet Skinner and Nicki Arch 56 1 have written to you, sir. This, I won't say, 2 was always on the cards. That would be to 3 underplay it, sir. This was, I'm afraid to say, 4 inevitable. The Post Office were never likely 5 to comply or tell the absolute truth in a tight 6 corner and this now, after Rule 9s, which were 7 sent at in 2021 and 2022, is the tightest of 8 corners, you may think, that they are in. 9 They were not particularly, if I may pass 10 this observation, inclined towards dredging up 11 that which had been long buried or suppressed. 12 The suggestion that their exercise was 13 mechanistic -- when learned Counsel to the 14 Inquiry made that perfectly reasonable, 15 incontrovertible suggestion to Mr Foat, he 16 seemed to adopt an approach of truculent 17 umbrage. But I'm afraid it is mechanistic and 18 these disclosure issues will derail this Inquiry 19 unless, as I have invited you to, sir, you reset 20 and repress the button. 21 Australia has recently had a Royal 22 Commission into the terrible Robodebt scandal 23 that has echoes of this terrible scandal but 24 fortunately only lasted a quarter of its time. 25 They had a definition of disclosure in that 57 1 Royal Commission, which no doubt was in relation 2 to privacy, but it helps because, although it 3 might have been a definition devoted to the idea 4 of privacy, it nevertheless rings true in this 5 case: 6 "An entity discloses personal information 7 where it makes it accessible to others outside 8 the entity and releases the subsequent handling 9 of the information from its effective control." 10 What we are having, sir, I respectfully 11 submit, is the last gasp of the Post Office 12 having matters taken from its effective control 13 and, ironically, it has been the Post Office's 14 blind reliance on technology that has caused or 15 contributed to this problem, which is again 16 grimly ironic for those we represent. 17 Mrs Shaikh's Freedom of Information Act 18 request shows that old-fashioned fieldwork, 19 talking to those who know or ought to have known 20 the subject, should augment that mechanical, 21 unthinking approach to technology, because 22 lawyers are not investigators and investigators 23 are not lawyers. But there should be 24 an investigative arm brought in to augment and 25 potentiate technology because there needs to be 58 1 transparency and responsible disclosure, so that 2 the people responsible for these documents are 3 identifiable and accountable ultimately for 4 their production. Fieldwork must drive 5 technology. We cannot have faith in technology 6 alone. 7 I'm about to conclude, sir, but we cannot go 8 on as if anything has happened. We cannot have 9 business as usual. This is a watershed because, 10 unless the Inquiry forces the Post Office to put 11 its house in order, we can have no confidence 12 that this will not happen again, and again, and 13 again. But Counsel to the Inquiry is right that 14 to instigate criminal proceedings now, would be 15 premature and precipitate. But if the Post 16 Office is given time between now and September, 17 then, in the event of repetition, no further 18 delay or excuse could be countenanced, and we 19 respectfully submit that the whole apparatus of 20 Section 21, Sections 35 and 36, should be used 21 in a proportionate way. 22 We also adopt the suggestion by my learned 23 friend Mr Stein that the CEO and general counsel 24 need to be brought here so that they know that 25 they must now -- and they are now compelled to 59 1 devote all that is needed to ensure that there 2 are effective resources in place and proper 3 modes of operation but, also, sir, in order to 4 ensure, because we have great concerns that this 5 chance discovery, as a result of Eleanor 6 Shaikh's intervention, might reveal that 7 Phases 2 and 3 are likewise compromised, and so, 8 therefore, we invite you to serve Section 21 9 notices in respect of all past and present 10 Rule 9s. 11 It surely cannot be seriously disputed that 12 the Post Office's methodology so far is less 13 than optimal: blind, unthinking, mechanistic 14 approach to keyword searches. That is why we 15 say that there are four matters that are of 16 considerable concern now, which justify the 17 adjournment until September. 18 The first, Phases 2 and 3 are probably 19 likewise compromised and they echo and bleed 20 into all of the other phases that follow, 21 particularly Phase 4, and it will happen again, 22 unless the button is reset. 23 Secondly, sir, investigative interviewing 24 needs to be deployed. The Post Office was 25 probably shocked at the effectiveness of Second 60 1 Sight but Second Sight's methodology in 2 uncovering this scandal, a very, very 3 considerable length of time ago, was because of 4 its pre-occupation with fieldwork as well as 5 technology. 6 Sir, so far as weeks 3 and 4, we 7 respectfully submit that the whole of this phase 8 should be postponed. I'll deal with expert 9 evidence separately but Jan Holmes is a case in 10 point. You will remember -- or perhaps 11 I flatter myself -- that when I asked him 12 questions on 16 November 2022, I was concerned 13 at an extraordinary coincidence that the RMG 14 board was discussing, on the 14 May 2021, 15 serious structural flaws in EPOSS when he, quite 16 by chance, completely by coincidence, it seems, 17 and had nothing to do with his current job at 18 the time, was recalling the report that he wrote 19 with Mr David McDonnell which was dealing 20 precisely with those flaws in EPOSS. The 21 references on Relativity are RMG00000009 and 22 FUJ00080690. So we believe that there is 23 a half-open can of worms there. 24 But the fourth point, sir, is the privilege 25 against self-incrimination and the privilege 61 1 against self-incrimination affects a number of 2 these witnesses and Counsel to the Inquiry has 3 already raised this but, fundamentally for us, 4 the foundation stone for that, of course, would 5 be the expert evidence of Mr Atkinson. You will 6 note -- I think the Irish expression is 7 "cute" -- how cute Mr Marsh was in drawing 8 concerns or briefing, as it were, against that 9 report, by saying that the expert didn't have 10 all the relevant information. Again, a grim 11 irony in the context of this case or this 12 Inquiry. 13 So it is for all of those reasons, sir, 14 expressing as I do, our heartfelt gratitude to 15 you, sir, and to your Inquiry Team, and 16 recognising as well that you have done all you 17 could to avoid this but that, nevertheless now, 18 there must be sanctions in the background to 19 ensure compliance, but it would be unreasonable 20 to have that approach just imposed now upon the 21 Post Office. They must be given further time in 22 order to satisfy you that we can proceed again 23 in September without another calamitous 24 interruption. 25 MR BEER: Sir, I think you're still on mute. 62 1 SIR WYN WILLIAMS: I was simply thanking you, 2 Mr Henry, for your submissions. 3 I understand that the NFSP is present and 4 wishes to make submissions. So I will presume 5 they are next in the batting order. 6 MR BEER: That's right, sir, it's Ms Watt. 7 SIR WYN WILLIAMS: Yes. Good morning, Ms Watt. 8 Submissions by MS WATT 9 MS WATT: Good morning, sir, and thank you for the 10 opportunity to make oral submissions on behalf 11 of the NFSP, in light of the document disclosure 12 issues and related failures on the part of the 13 Post Office. 14 While the present hearing on these issues 15 arises from the recent evidence and 16 correspondence in late June and early July, the 17 NFSP notes with considerable and serious concern 18 that this most recent episode follows on from 19 ones earlier in the year, also since 2022 and 20 even since 2021, all as very clearly narrated in 21 the Chair's directions to the Post Office. 22 Sadly, the NFSP has to submit here that, in 23 light of its own ongoing and regular dealings 24 and negotiations with the Post Office, which it 25 has to have, the present situation just does not 63 1 come as a surprise. 2 The NFSP recognises that the immediate 3 practical issues facing the Inquiry and its Core 4 Participants is whether or not to continue with 5 the evidence hearings as scheduled and to hear 6 from important witnesses, in the knowledge that 7 the Post Office has not disclosed all documents 8 which may be relevant to those witnesses. This 9 inevitably impacts on the questions which may or 10 can be asked of those witnesses and the evidence 11 they will give. 12 The NFSP is concerned that the present 13 situation caused by the Post Office's document 14 disclosure failures affect the Inquiry's ability 15 to get to the whole truth of what actually took 16 place and how and why it took place. 17 The NFSP firmly believes that Phase 4 of the 18 Inquiry is a critical one. It is the one where 19 the actions taken by the Post Office against 20 subpostmasters and others, the policy making, 21 the audits, investigations, the civil and 22 criminal proceedings, knowledge of and 23 responsibility for failures and investigation 24 and disclosure, are front and centre. The NFSP, 25 along with other Core Participants and the 64 1 general public, wants to know how the 2 organisation which it trusted broke that trust. 3 The witnesses the Inquiry is due to hear 4 from this week are -- and the following week, 5 but particularly this week -- in the NFSP's 6 submission, critical to understanding what 7 happened and why to so many postmasters, 8 assistants and Crown Office employees, whose 9 lives have been totally destroyed by Horizon and 10 the actions of the Post Office, all as set out 11 by counsel for the Core Participants already 12 this morning. 13 These witnesses include the Post Office Head 14 of Security and the Head of the Criminal Law 15 Team. They are key witnesses. 16 The NFSP appreciates that all parties to the 17 Inquiry will have spent time and effort in 18 preparation for this set of evidence hearings 19 and, as it set out in its opening statement, 20 last year, it's committed to assisting the 21 Inquiry in any way it can and, at this point, 22 the NFSP simply wishes to thank you, sir, and 23 the Inquiry Team for all that you have done so 24 far. 25 But it is a small organisation of just over 65 1 20 employees and with many ongoing 2 responsibilities to the postmasters of today, 3 including the ongoing business relationship it 4 requires to have with the Post Office to ensure 5 the proper remuneration and treatment of 6 postmasters. 7 But while it may be small, it has 8 nonetheless dedicated itself to the work of the 9 Inquiry, providing thousands of documents both 10 in response to Rule 9 requests and voluntarily, 11 which it hopes will assist the Inquiry. 12 The NFSP has, as with all other parts of the 13 Inquiry to date, dedicated time and effort to 14 responding to the Inquiry's requests, redaction 15 requirements, reviewing documents on Relativity, 16 reviewing witness statements, drafting and 17 submitting many Rule 10 questions for those 18 witnesses, appreciating others have done that 19 too. 20 While many of the questions submitted have 21 been adopted into questioning by counsel for the 22 Inquiry and with geography and resources 23 preventing regular in-person attendance at the 24 Inquiry, the NFSP and its legal representatives 25 have nonetheless watched every evidence session 66 1 on the live link and prepared closing 2 submissions. 3 That's because, for the NFSP, along with all 4 of the other Core Participants, it is of real 5 importance that the Inquiry gets to the truth of 6 all that went wrong with Horizon from start to 7 finish. This is because, along with so many 8 others, the NFSP at the time trusted the Post 9 Office, believed what it said when it said that 10 Horizon was the right system to ensure the 11 viability of post offices across the UK and that 12 it worked properly. 13 As it turned out, the NFSP and everyone else 14 was misled and that is why the evidence of these 15 forthcoming witnesses who were central to 16 prosecution and decisions is important to all. 17 If there are other documents out there which 18 are relevant, which are important, which may 19 change the questions to be asked, which may 20 change the evidence to be given, but which the 21 Inquiry has not yet been given by the Post 22 Office, the question may well be asked: how can 23 the Inquiry get to the truth of what happened? 24 The NFSP believes the evidence of the 25 forthcoming witnesses is of critical importance 67 1 in getting to that truth. 2 What is also of the gravest concern to the 3 NFSP is that, despite all the recent 4 explanations from the representatives of the 5 Post Office and perhaps a late realisation on 6 the part of the Post Office that the game is 7 well and truly up in terms of disclosure and 8 this Inquiry, it is said in the most recent 9 correspondence for the Post Office -- at least 10 I think that was the most recent correspondence, 11 I have slightly lost track -- the one of 7 July, 12 paragraph number 5, that says no one knows how 13 or why all this has happened or who might be 14 responsible for it and, of course, it's not 15 believed to be anyone at the Post Office who 16 gave such instructions. 17 Unfortunately, this has a hollow ring for 18 the NFSP, and it sounds like for others too this 19 morning, in the light of all that has been 20 uncovered to date by the Inquiry. The Inquiry 21 may excuse the NFSP, in light of its experience 22 of what it was repeatedly told about Horizon at 23 the time, for finding all of this difficult to 24 accept from the Post Office. 25 The NFSP understands it will be important 68 1 for the Inquiry to establish just how all of 2 this document disclosure issue has happened, due 3 to the impact on the Inquiry's work, the Core 4 Participants' work and the public interest. It 5 is actually concerned that the disclosure issue 6 and all that has come out threatens to become 7 a Horizon-type issue all of its own. 8 The NFSP has sadly come to the conclusion 9 that the current disclosure issues are 10 reflective of the Post Office of today and that 11 it is not much different to the one which 12 oversaw the Horizon scandal. 13 The NFSP has firsthand experience of the 14 Post Office of today. Perhaps one of the 15 organisations as part of this Inquiry that 16 actually does have to deal with the Post Office, 17 week in and week out. Horizon, what we might 18 call "Bonus Gate", the recent FOI disclosure 19 which revealed the racist language and attitudes 20 behind the scenes and now the disclosure issues 21 feed into a real concern that what is said and 22 done by the Post Office today cannot, for the 23 NFSP at least, be taken at face value. 24 It has to work with the Post Office to bring 25 issues facing postmasters today, such as 69 1 remuneration and financial resources, 2 consultation on new contracts and much more. 3 But at almost every turn, the NFSP finds things 4 change, important dates change, there are 5 reductions in leavers' compensation payments for 6 around 130 postmasters of about 60 per cent, 7 addendums are added to contracts on what the 8 Post Office states it no longer needs to consult 9 with the NFSP on. 10 Therefore, any trust that remains in the 11 Post Office of today, and that is very little, 12 and its willingness to change its culture is 13 very considerably foundering, if not gone. 14 We appreciate that some of these matters are 15 not directly related to the document disclosure 16 issue which the Inquiry is looking at right now 17 but it is said, in order to demonstrate the 18 wide-ranging impact that the events have in 19 relation to the Post Office, which have 20 unfolded, particularly at the Inquiry during 21 2023 and the effect they have on the work of the 22 NFSP on behalf of today's postmasters. 23 So for many, nothing really seems to change. 24 An important feature for the NFSP of all 25 that has gone wrong in the past and in the 70 1 present is governance. While the Inquiry has 2 heard from a series of government ministers who 3 at various times have had responsibility for the 4 Post Office, the NFSP believes that recent 5 events, in particular Bonus Gate, demonstrates 6 a particular and ongoing failure in governance 7 as does the present disclosure situation. 8 This week, the NFSP will be at a Westminster 9 Hall cross-party debate being hosted by Marion 10 Fellows MP on the management culture of the Post 11 Office, in light of the recent revelations on 12 Bonus Gate and the non-disclosure of documents 13 to this Inquiry. For the NFSP, the question 14 which might well be asked -- and potentially for 15 others -- is: is this is an organisation that is 16 truly fit for purpose? Might there not be 17 a need to rip it up and start again? 18 Ultimately, the NFSP understands the chair 19 will have to make decisions which combine the 20 need to make progress with the need to ensure 21 the best evidence is obtained. There is a real 22 concern about the fact there are other documents 23 which could well have an impact on the 24 questioning of witnesses and that will, in turn, 25 have an impact on the evidence to the Inquiry. 71 1 It's understood that witnesses can be called 2 back. However, for the NFSP and others, the 3 forthcoming witnesses represent such 4 an important part of the Horizon story, there is 5 a strong argument that it may be better to wait, 6 gather in all the evidence and then question 7 these witnesses. 8 For those reasons, the NFSP considers, on 9 balance, that the preferable position is for the 10 witnesses and participants to have access to all 11 documents ahead of evidence giving for such 12 a critical chapter and therefore to adjourn the 13 Inquiry at this time. 14 Simply just in conclusion, sir, we would 15 adopt the position in relation to Duncan 16 Atkinson KC that his evidence ought to be heard 17 when the document disclosure issues are 18 resolved, in order to avoid any potential 19 criticism that he did not have all of the 20 necessary material that he needed to reach his 21 conclusions. 22 The NFSP supports the proposition put 23 forward by counsel earlier today of calling the 24 CEO and other relevant parties to give evidence 25 in the meantime, regarding what is happening, 72 1 how it has happened and what the involvement of 2 the Post Office officers has been in that. 3 If I can be of any further assistance, sir, 4 please do let me know. 5 SIR WYN WILLIAMS: No, thank you very much, Ms Watt. 6 That's absolutely clear. 7 Does that conclude the submissions on behalf 8 of any Core Participant who wishes to speak? 9 MR BEER: Yes, it does, sir. 10 SIR WYN WILLIAMS: Do you wish to say anything, 11 Mr Beer? 12 MR BEER: No thank you, sir. 13 SIR WYN WILLIAMS: Very well. 14 In the light of the oral submissions which 15 I have heard, I am clear that the correct course 16 is to adjourn the hearing of evidence in what 17 I will call weeks 2 and 3, and, for the 18 avoidance of doubt, that includes adjourning the 19 evidence of Mr Atkinson KC. 20 There is at least a possibility that the 21 direction which I issued in relation to the 22 witnesses who are due to give evidence in week 4 23 can be complied with and, for that reason, 24 I will keep under review whether or not we sit 25 in the last week of July. I won't delay 73 1 a decision too close in time to it but, for the 2 moment, I do wish to preserve the possibility 3 that we don't lose that week. 4 Mr Stein, in particular, raised a number of 5 issues which he asked me to consider, which can 6 be considered ancillary to the direction which 7 I've just made, and I propose to deal with those 8 matters in writing, as I will give reasons for 9 my primary decision in writing, namely to 10 adjourn, as I've indicated. 11 So to recap, so that everyone is clear, we 12 will not hear evidence from any of the witnesses 13 scheduled for this week and next week in those 14 weeks. They will be rescheduled until after the 15 summer break. 16 I will keep under review whether or not we 17 sit in the last week of July to hear some or all 18 of the witnesses scheduled for that week and 19 I will give written reasons for those decisions, 20 together with my decision on what I have called 21 the ancillary matters, raised primarily by 22 Mr Stein but supported to a degree by other 23 members of the bar who have spoken. 24 I think that is clear, Mr Beer, but if it's 25 not, please tell me. 74 1 MR BEER: It is, sir, save that Alan Lusher, who is 2 a week 4 witness, should be treated effectively 3 as a week 2 and 3 witness. 4 SIR WYN WILLIAMS: Right. Thank you for that 5 correction. I will make that clear in my 6 written record of what I've said and my reasons. 7 MR BEER: Thank you very much, sir. 8 SIR WYN WILLIAMS: Is Mr Hayward actually in the 9 building? 10 MR BEER: He is, sir. He's in the witness waiting 11 room at the moment. 12 SIR WYN WILLIAMS: Well, then please convey my 13 apologies to him that he has been brought here 14 but he won't be giving his evidence. 15 MR BEER: Sir, we certainly will. As you know, at 16 your direction, all of the witnesses for weeks 2 17 and 3 had been contacted, and informed that 18 today's hearing was taking place and that it may 19 have an effect on the ability of the Inquiry to 20 take their evidence over the next two weeks. 21 We'll set about now contacting them and telling 22 them of the outcome of today's hearing. 23 SIR WYN WILLIAMS: Thank you very much, Mr Beer. 24 I think it's probably better that I say what 25 I need to say about this whole saga in writing 75 1 and after reflection, rather than produce what 2 might be newsworthy but ultimately not sensible. 3 MR BEER: Thank you very much, sir. 4 SIR WYN WILLIAMS: So we will adjourn, to use the 5 old-fashioned language of the courts, I guess, 6 to a date to be notified to the parties, since 7 there is a degree of uncertainty about what will 8 happen next. 9 MR BEER: Yes. It may be that it's Tuesday, 10 25 July. That's the date for Mr Lusher but we 11 may be able to fill it with some other evidence. 12 SIR WYN WILLIAMS: Sure, yes. All right then. 13 Well, unless -- let's leave it in this way: that 14 unless my directions make it clear that that is 15 not going to happen, everyone should, for the 16 moment, proceed on the basis that there may be 17 a hearing on 25 July. 18 MR BEER: Yes. Thank you, sir. 19 SIR WYN WILLIAMS: Very well. That's it. Thank you 20 very much. 21 MR BEER: Thank you, good morning. 22 (12.03 pm) 23 (The hearing adjourned until a date to be confirmed) 24 25 76 1 I N D E X 2 Discussion re disclosure issues ...............1 3 Submissions by MS GALLAFENT ..................26 4 Submissions by MR STEIN ......................31 5 Submissions by MR MOLONEY ....................49 6 Submissions by MR HENRY ......................52 7 Submissions by MS WATT .......................63 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 77