The Public Inquiry rumbles on. In almost every day of sitting some new revelation appears that makes truth seem stranger than fiction.
For this small piece I am harking back to a Law Society Gazette article of 22nd September last year, which reported on the evidence given to the Inquiry by Mr Stephen Dilley of Womble Bond Dickinson. Mr Dilley's firm acted for the Post Office in the civil action against Lee Castleton, judgment having been given in January 2007. Mr Castleton's story is recounted in his own witness statement to the Inquiry, I summarised this, in an earlier article, with Mr Castleton's approval.
Here I will simply record two issues dealt with in Mr Dilley's evidence, as reported by the Gazette, and note what seem to me to be the relevant professional conduct duties
'...defend the Horizon system'. That is interesting, as it brings into play what the Post Office and their representatives knew about the problems with the system, and crucially what they chose to disclose. Two issues came out of Mr Dilley's evidence, covered in the 22nd September LS Gazette account.
But before going further I must mention the rules governing a solicitor's professional conduct in relation to litigation Judgment in the Castleton case was given in January 2007. There was a new Code of Conduct published that year, but not taking effect until July. Below I will use the relevant rules from the 2007 Code - however, it must be a decent working assumption that there will be no material difference in earlier Rules for something as fundamental as this subject-matter.
The first was the decision of the Post Office/Mr Dilley's firm not to disclose details of the 12,000-15,000 calls made every month by other postmasters reporting problems with the Horizon system. It was part of the Post Office's strategy to assert that there were no significant issues with Horizon. Mr Dilley considered that to disclose this information would be an onerous exercise (code for an excessive requirement in the context of the litigation); it would take 3/4 weeks to go through the calls and would cost the Post Office up to £3,000 (the Gazette gently points out that the Post Office was suing Mr Castleton for a £25,000 alleged shortfall and that its legal fees in the litigation were around £300,000).
Here is Rule 11.01(3)(a):
'You must not construct facts supporting your client's case or draft any documents relating to any proceedings containing:
(a) any contention which you do not consider to be properly arguable.'
Now in practice life I was a mere transactional lawyer, so it is beyond my status to opine authoritatively on whether the defence sticks here. Thoughts? A question to answer?
The second one has echoes of the first but is more specific still. As the Gazette notes, before the Castleton case came to Court the Post Office had received an interim report from its auditors BDO citing 'possible problems with the Horizon'.
The words from the Gazette report are as follows: 'Dilley said that counsel had advised him not to disclose this report and he was also instructed by the Post Office not to do it'.
So, in an action where the Post Office's key objective was to defend the integrity of the Horizon system, a decision was taken not to disclose the report.
Was this an acceptable response?
Paragraph 11.01(1) from the 2007 Code states:
'You must never deceive or knowingly or recklessly mislead the court'
That is a tough one to throw at a lawyer or a law firm. If that had come at me I would have wanted to defend myself and my firm robustly. So let's keep it again at the level of raising an eyebrow.
Public comment on Horizon has included some pretty sharp shots against the Post Office and its advisers. Now it is down to the Inquiry, and in due course the Regulators
The outcome? We shall see.
.........
The author is a former Managing Partner of a City law firm, who teaches professional conduct to junior lawyers