Civil servant was lone voice on Post Office board to query legal plan that blew taxpayers’ cash

The civil servant on the Post Office board during subpostmasters’ High Court litigation battle has said he was alone in having concerns about the organisation’s court strategy, which saw it blow over £100m of taxpayers’ money.

In 2018/19, hundreds of subpostmasters took the Post Office to court in a multimillion-pound group litigation and successfully sued after proving the Horizon computer system used in branches was the cause of unexplained accounting shortfalls for which they were blamed and punished.

Tom Cooper, who sat on the board of the Post Office as the government representative at the time of the High Court case, told the public inquiry that he “felt like the only player on the pitch questioning the litigation [strategy].”

Appearing at the latest Post Office Horizon scandal inquiry hearing, Cooper said all the lawyers involved for the Post Office “completely mismanaged the litigation.”

“There were major defects in Post Office processes and therefore its case,” he said.

Cooper said there were points raised by the subpostmaster claimants that the Post Office should have conceded: “I felt the Post Office should have been looking for compromise rather than disputing everything for the sake of it… That didn’t really make sense to me and seemed inappropriate for the situation the Post Office found itself in.”

He cited one disputed point about a liability clause in the subpostmasters’ contracts with the Post Office. It stated that subpostmasters were responsible for all losses, whether they were actually responsible or not.

He said: “This seemed unfair, unethical and actually undermined the basis for the partnership between the subpostmasters and the Post Office, because it effectively let the Post Office off the hook from doing what it should do in supporting the relationship.” He described the Post Office’s support for the clause as defending the indefensible.

This and other examples raised his concern over the quality of legal advice the Post Office was receiving, he told the inquiry. His worries were heightened after a judgement was handed down by Judge Peter Fraser following the first trial in the group litigation, which was damning of the Post Office.

In the judgement in March 2019, Fraser wrote: “There can be no excuse, in my judgment, for an entity such as the Post Office to mis-state, in such clearly expressed terms, in letters that threaten legal action, the extent of the contractual obligation upon a [subpostmaster] for losses. The only reason for doing so, in my judgment, must have been to lead the recipients to believe that they had absolutely no option but to pay the sums demanded. It is oppressive behaviour.”

At the time, the Post Office immediately said it was considering appealing the judgement and subsequently did so. The Court of Appeal rejected the Post Office’s application to appeal the judge’s ruling.

Cooper told the public inquiry: “A lot of what Judge Fraser said made total sense and I thought it was premature to talk about appeal when we hadn’t actually evaluated the judgement itself, and worked out which parts the Post Office agreed with and what it disagreed with.”

He said that before the judgement, when he asked then Post Office general counsel Jane MacLeod what the Post Office would do if it lost any of the points in dispute in the litigation, she told him, “We will appeal everything”.

The Post Office went further than appealing the first highly damaging judgment in the trial and applied for Judge Fraser to recuse himself from the trial on the grounds that he was biased.

As a result, in March 2019 the trial was temporarily suspended. Cooper said he was “deeply uncomfortable” with the recusal application, which he said he reacted to with “astonishment”.

“There hadn’t even been a proper post-mortem on the judgement itself and the Post Office legal team were talking about taking extremely serious action,” he added.

Fraser rejected the recusal application and the Court of Appeal subsequently rejected the Post Office’s appeal against his decision. The Post Office went on to lose the legal battle, and in December 2019 settled with the 555 subpostmasters. This victory triggered the next phase of their fight for justice, which has seen hundreds of wrongful convictions overturned, the statutory public inquiry, and the government committing over £1bn towards financial redress for the victims.

The Post Office scandal was first exposed by Computer Weekly in 2009, revealing the stories of seven subpostmasters and the problems they suffered due to accounting software. It is one of the biggest miscarriages of justice in British history (see below for timeline of Computer Weekly articles about the scandal, since 2009).

Also read: What you need to know about the Horizon scandal.

Also watch: ITV’s documentary – Mr Bates vs The Post Office: The real story.

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