'Lovely day for prison, Mrs Goggins!'

Lawyers acting for the Post Office have clashed with a barrister acting for victims of the Horizon IT scandal, with the Post Office denying claims that Herbert Smith Freehills was its “oily rag”. 

The Post Office publicly insisted for years that accounting discrepancies in its branches were due to thieving sub-postmasters. In fact the errors were caused by its defective IT system, Horizon. 

Innocent sub-postmasters suffered bankruptcy, accusations of criminality, imprisonment, and divorce as a result of the Post Office’s cover up, with some taking their own lives.

Regarded as the largest miscarriage of justice in British legal history, a pivotal moment saw the Post Office seek to remove the judge who ruled against it in a last-ditch attempt to stave off confirmation of its wrongdoing, by accusing him of bias.

Acting for the post office, heavyweight barrister Lord Grabiner agued unsuccessfully in the 2019 application that Mr Justice Fraser should recuse himself because he had shown he was not impartial.

Grabiner told the court, “I am not the only judicial figure or barrister that has looked at this with a view to reaching that conclusion. It has also been looked at by another very senior person before the decision was taken to make this application”.

The ’very senior person’ was later revealed to be Lord David Neuberger, former President of the Supreme Court and Grabiner’s colleague at One Essex Court chambers.

Around the same time as the Post Office’s failed attempt to overthrow Fraser, it replaced its general counsel and instructed Herbert Smith Freehills.

The precise timing and nature of HSF’s involvement is set to be examined after Edward Henry KC, acting for a group of subpostmasters, accused the litigation powerhouse of advising on the controversial recusal application.

Speaking at the ongoing public inquiry into the scandal, Henry said the attempt to usurp Fraser was a “massively aggravating feature of this campaign of wrongful conviction” in which the Post Office was “aided, advised, assisted and dare I say abetted by Herbert Smith Freehills”.

“HSF wasn't a new broom - HSF was part of the problem. It was, as it were, an oily rag that tried to tarnish the reputation of the judge”, said Henry.

He called the firm's continued involvement in administering compensation schemes for victims of the Post Office's conduct “untenable” as a result, and a “hopeless conflict”.

“Here you have Herbert Smith advising on recusal, advising the Post Office and witnesses in respect of this inquiry”, and “also supervising certain of the compensation schemes”, he said.

“If they cannot see that it is a conflict then one respectfully submits they are so purblind that it's even more dangerous”, alleged Henry.

The barrister added that HSF had ended up supervising one of the schemes because “the original hard bargain they drove - ruthlessly drove - on behalf of their clients, consistent with their duty to their client, was completely unfit for purpose”.

He also accused the Post Office of attempting to hide HSF’s involvement in the recusal application from Sir Wyn Williams, the inquiry chair.

“There was an attempt deliberately or inadvertently to mislead you”, said Henry.

However, Kate Gallafent KC, representing the Post Office, suggested there was a large hole in Henry's argument.

She told the inquiry that the document on which Henry had relied “does not say that HSF was involved in the recusal application”, and that in fact HSF only pitched to replace the Post Office’s legal advisors just after the recusal application was made.

They “were not the people who advised on making the application”, she said.

Eliciting applause and cheers from the public gallery, Henry retorted, “If they were not formally instructed, were they acting, as it were, below the parapet, question mark”.

Williams cut off the celebrations, stating, “That's enough, there has to be some decorum in these proceedings. I like to be informal but there comes a line and we're about to cross it”.

Herbies passed RollOnFriday's request for comment to the Post Office, which reiterated Gallafent's point. "Contrary to what was suggested by Mr Henry KC, HSF did not have any involvement in POL's decision to apply to recuse Mr Justice Fraser", said a Post Office spokesperson.

The SRA confirmed last year that it was also investigating the role of law firms in the scandal.

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NHS panel rates but hoping to make it big in UAE 05 May 23 09:33

underlines the need for big firms to have effective compliance reviews at matter opening and periodically throughout the matter.  a rogue partner with a need for some billerz can trash the reputation of a giant like HSF very quickly 

Ethical risks 05 May 23 13:03

I agree with the comment about "a rogue partner with a need for some billerz".

Also, the pressure on newly-appointed salary partners to justify their promotion - and to claw their way up the pole to equity partner - must be immense. If instructed by clients with no moral compass then the combination of the partner's self-interest and client's willingness to do anything can mean that ethics gets thrown out of the window.

On the mutual irresponsibility point:

"A striking feature of many corporate or other scandals is how organisations and their lawyers construct a system of mutually assured irresponsibility. Some of this is done artfully, some without even thinking about it. The problem often, subtly or unsubtly, comes down to this: the client says they did what they did because the lawyer advised them it was legal and the lawyer says they were mere advisers following instructions. Lawyers, too often, and often incorrectly in my view, say they bear no moral or professional responsibility for the acts of clients that flow from their advice. It boils down to this: the client says, my lawyer said I could do it; and the lawyer says, that doesn’t mean I said they should do it. Or, It’s the law’s fault, not mine. Or, bloody law professors don’t understand what commercially savvy legal advisers need to do to make a living these days.

There are two convenient features of this: (1) no one is to blame when the proverbial hits the fan and (2) the factual accuracy of who did what and why lies hidden behind legal professional privilege. Sometimes, as appears to be the case in the Levitt report, when the veil is lifted, the lawyer is seen to be telling the client exactly what the client should do and doing so on shaky legal grounds.

We can see an example of mutually assured irresponsibility in the Post Office case in this letter from Paula Vennells, former CEO to the Post Office, to the BEIS Select Committee in 2020. In this letter she seeks to diffuse responsibility for the Post Office scandal far and wide. Part of that diffusion involves her relying on legal advice... [continues]"

Postie 05 May 23 14:38

This is all down to the Wombles. I expect when report comes out they will be finished as a serious firm

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