Our lawyer walks through walls for us - a Post Office story

This is a general piece mostly about the role of lawyers in the Post Office Horizon IT Scandal, focussing on solicitors' conduct duties. It might help those who wonder what those duties are. For erudite in depth legal analyses of the saga consult LinkedIn and writings from Paul Marshall of Cornerstone Chambers and Prof. Richard Moorhead of Exeter University. For a sense of the passion held by a lawyer representing three of the victims consult LinkedIn material from Nick Gould of Aria Grace Solicitors.

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So at a broad level, what do you want from your lawyer? Surely someone who works hard to achieve your objectives, and if there is heat in the activity then the 'fight' metaphor is going to appear. The walking through walls lives both in what the lawyers call contentious work (litigation, or more broadly dispute resolution) and in non-contentious work (everything else). The title phrase was an accolade I heard bestowed upon a City lawyer specialising in private equity work.

But how about a little knitting on the side to relieve the strain of being superhuman?  Not an outlandish idea. According to The Times, a Magic Circle firm is arranging for its lawyers to be offered knitting lessons to relieve stress. The Times piece sets the scene:

'High-flying City lawyers face a lot of pressure as they cut multi-million pound international deals or battle in the High Court over cut-throat litigation?'

We could have fun with this. How would mega partner feel if on telling the other side's lawyer that the Bank must have unfettered discretion on a critical clause in the document, they got the response: 'I suggest you knit two and pearl one'?

But we should not have fun (and we will come to the Post Office below). There is serious stuff here, and the next thing is to point out the metaphors above of aggression, that is 'battle' and 'cut-throat'. These both happen to be attached to litigation, which is the context for this piece. Commercial litigators are also often described as 'tough'.What does this mean, and how far should these lawyers be prepared to go in their toughness? I will focus on solicitors, although much of what is said could apply equally to barristers.

Solicitors have a core duty to act in their clients' best interests. You would take that as a given, whether the solicitor were acting on buying a house or in some commercial work. In so many instructions it is just a job to be done, and a job to be done well. However, from time to time there is a morality/justice issue in the litigation, and so to the Post Office Horizon IT Scandal, where the lives of hundreds of men and women running Sub-Post Offices were ruined, financially, emotionally, reputationally, and in health terms, as a result of ill-founded private prosecutions by the Post Office for fraud and false accounting, derived out of a defective IT system. 

Naturally there were lawyers involved. The Post Office had them through the 20 year plus saga; the victims were not so lucky, and the law only got seriously on their side when a machine eventually cranked into action to get their convictions quashed and set a pathway towards proper compensation being secured for, hopefully in the end, all affected.

Right was on the side of the victims. The legal issues were about getting justice for them. It was the little people against the behemoth of the Post Office, And the behemoth was unlikely to roll over and admit guilt/defeat the moment it was challenged.. 

The problem in the Horizon Scandal was that the behemoth Post Office was both tooled up with lawyers and empowered with vast funds it could deploy on litigation against the individuals (ironic now it has been established that the Post Office would hit insolvency before being able to pay the compensation truly due to the victims, and so will be reliant on a bailout by the Government, the latter being the Post Office's sole shareholder). The victims were not so lucky. 

The lawyers representing the Post Office had that duty to represent their client's best interests. But how far, echoing the toughness point from above, should a solicitor in litigation go in facilitating (a nice neutral word) the objectives of the solicitor's client? What strategies should they advise/suggest as being workable, and notably acceptable to the Court? Reversing gear, to what extent should they warn against the risk of strategies that their client (unconstrained by formal ethical burdens beyond some vague notion of good governance where followed) might want to pursue, at strongest with a 'It's a nice idea from your point of view, but if we followed it through then we could get in trouble with our Code of Conduct'?

Time to lay out some relevant strictures made by the regulator, the Solicitors Regulation Authority (SRA). This originates in an update report on balancing duties in litigation that the SRA published in 2018.

We should start with an introductory extract from the Executive Summary to the report. The SRA comments: 

"What has emerged since our first paper [2015] is the continued conflict between the principle of acting in the best interests of each client, and other, often higher-priority, principles such as acting with integrity or upholding the rule of law and the proper administration of justice'. Note my italics. 

This is underlined by some dramatic SRA language that follows:

'What has not changed is the fact that although solicitors must advance their clients' cases, they are not "hired guns" whose only duty is to their clients'.

Also interestingly the SRA mentioned in the Summary the steady increase at that time in reports of solicitors misleading the courts - I must stress that I am trying hard to include points that are objectively relevant to what I am discussing and am not cherry-picking to justify a pre-established conclusion.

The Executive Summary of the paper leads into the Introduction.I have already distilled the essence of the SRA's overarching concern, but it is worth adding their comment that solicitors '...are officers of the court and their overriding duty is to the rule of law and the administration of justice'.

The detail of the report features various types of litigation that the SRA considers to be improper/abusive: I can summarise these as predatory litigation; abuse of process; taking unfair advantage; misleading the court; excessive or aggressive litigation; and conducting knowingly unwinnable cases. 

What is worthy of consideration in the context of the Horizon Scandal? I am going to suggest that we have: 1. Excessive or aggressive litigation; 2. Taking unfair advantage of an unrepresented third party; 3. Misleading the court.

I am choosing my words  -' worthy of consideration' - carefully here. We are now in the world of solicitors being possibly (because it all depends on the SRA deciding to take enforcement action) held to account for their actions. Being held to account does not comprise being in the firing line of a blunt arrow that bounces off the thick skin of a politician; being held to account for the ethics of professional behaviour renders a solicitor liable to disciplinary sanction, similarly for their law firm. That is why in this trajectory of discussion I am treading steadily and not going flat out for an attribution of liability (although other voices might be willing to go further).

Perhaps another way of putting it is to say that there are questions to answer. And for immediate purposes I am not going to supplement the points introduced with any detailed analysis of the evidence - that is emerging, not the least through what will come from the detailed work that is now in train by Professor Moorhead and his colleagues at Exeter. 

Let us unpack what the SRA warn against at general level on the three headings I have chosen:

Excessive or aggressive litigation

  • Disproportionate valuation of the claim (which I take as overblowing the strength of the case)
  • Wide-ranging allegations of impropriety (my gloss here is throwing in a stack of claims)
  • Inappropriate volumes and tone of correspondence (self-explanatory).

The SRA continues by pointing out that the courts often accept that the case has been pursued in accordance with the client's instructions. However, they add: 'Solicitors are responsible for the strategy on their client's case and cannot disclaim responsibility on the basis of acting on instructions'. The SRA go on to say that solicitors '...must not advance arguments that they do not consider to be properly arguable and they must have regard to the proper administration of justice'. 

What I reckon will be front and centre in unravelling accountability in the Horizon Scandal is the cart and horse point concerning the relentless pursuing of the victims. How far was this directed by Post Office executives and  acceded to by the lawyers for the Post Office, and how far was it driven by lawyers advising executives on desirous/appropriate strategy to adopt? There is no binary differentiation here - it is a highly nuanced point and what happened on the ground will become clear only to the extent that it is revealed by the impending statutory Public Inquiry together with any investigation that the SRA chooses to implement. One must also recognise the hybrid position of the in-house solicitor, who is employed by an organisation and works under its direction, but who nevertheless has professional duties as a solicitor. The fact that the Post Office has had its own in-house legal department (I assume throughout the whole of the Horizon saga) muddies the waters of accountability still further.

Taking unfair advantage of an unrepresented third party

The Horizon context is the number of individuals who were prosecuted, with the Post Office represented in court by counsel but where the individual had no representation. This can easily be ascertained through checking court records, but if you want a case example consider the experience of Mr Lee Castleton (now exonerated by the Court of Appeal), whose case can be found at Post Office v Castleton [2007] EWHC 5 (QB)

 

In subsequent annual reports on perceived risks affecting solicitors the SRA has not come back to this subject head-on, but the principle of required ethical behaviour pervades everything that solicitors are expected to do, So for example, this is from the 2020/21 risk report:

'The solicitors' profession depends on trust. Unethical behaviour can harm public confidence in your firm and the whole legal system. The reports to us about unethical behaviour are often concerns about the integrity, independence and honesty of a solicitor'.

How will this all develop? As I said above, much will depend upon what emerges from the Public Inquiry and whether the SRA investigates. If there are any claims of professional misconduct against the firms/lawyers involved, these will be 'vigorously refuted'. I would think that the two lines of refutation will be (1) acting robustly to protect the client's interests, but not crossing the line into unacceptable behaviour; (2) acting on client's instructions, arguing that the legal operations were being driven by Post Office executives. 

In the meantime, for the lawyers concerned it will be a case of keeping head down as far as possible, and watching developments carefully.

For those who do not wish the issues to slip into the penumbra of public commentary, the approach is simple - lots of noise. Luckily, beyond the output of the Inquiry and continued verbals on social media, there will be opportunities for waves of noise - the investigative journalist Nick Wallis is due a book out in the Autumn, Professor Moorhead's team at Exeter are starting to produce content on the legal ethics issues that are at the heart of this article, and the stories of affected individuals must be ripe for TV or film docudrama.
 
I started off with the walking through walls metaphor. However, the metaphor might be more appropriate for the lawyers representing the victims, and I am going to do a shout out for Nick Gould and Paul Marshall, who acted pro bono (no fee) for three of the victims in their appeals against convictions, Paul engineering the argument of malicious prosecution that was accepted by the Court of Appeal and that has opened the way for serious compensation to be paid (although the Post Office, despite media soundbites, will fight hard to limit payouts).
 
Questions to answer. With all the other noise in the political and legal world, will there be answers? We will have to wait to see.
 
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The author is a writer, speaker, historian, and former Managing Partner of a City law firm, who teaches legal ethics.
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