KC denies threatening judge
KC denies threatening judge
Post Office lawyer explains why he asked Mr Justice Fraser to stand down
A senior barrister has denied threatening a High Court judge who heard the civil claims brought by postmasters against the Post Office. Lord Grabiner KC said a suggestion to that effect by an appeal judge was “gratuitous, inaccurate and inappropriate”.
On 3 April 2019, Grabiner had asked Mr Justice Fraser to recuse himself — in other words, to withdraw from the next phase of the trial, which was just about to begin.
Grabiner claimed that Fraser, who has since been promoted to the Court of Appeal, had made findings, or given clear indications of his concluded views, on a large number of matters that were outside the scope of the so-called common issues trial and had not yet been tried. While not accusing the judge of actual bias, Grabiner argued that the judge had given the appearance of prejudging those matters.
After taking time to consider Grabiner’s application, Fraser gave written reasons for dismissing it. An application by the Post Office for permission to appeal was refused by Lord Justice Coulson, who concluded that “the recusal application never had any substance and was rightly rejected by the judge”.
There is no doubt that the Post Office did not make the application as soon as they should have done. It is also troubling that the delay was said to be, at least in part, due to the consideration of an unnamed “judicial figure or barrister”, referred to as “another very senior person”, before the application was made. Such a comment, presumably made in terrorem, should not have been made at least without proper explanation of its relevance.
In a written statement to the Post Office inquiry released this afternoon, Grabiner recalled his response to Fraser’s suggestion that the KC had delayed making his recusal application:
I submitted that the delay was “tiny” and that the immediate commencement of the Horizon trial had been set by Mr Justice Fraser's pre-trial directions. By way of explanation for the suggested delay, I was concerned to get across to the judge that the recusal application had been given very careful thought before the Post Office had decided to move forward with it. I explained that the decision had been taken at board level; that I had come newly into the case and had to get up to speed..
My remark was made exclusively in the context of meeting the point about delay upon which the judge had invited my opponent to comment. The suggestion that I was in some way threatening the judge — a point made by Lord Justice Coulson at paragraph 48 of his 9 May 2019 ruling… [quoted above] — is baseless. That suggestion was certainly not made to me by Mr Justice Fraser. Lord Justice Coulson’s observation was gratuitous, inaccurate and inappropriate.
In oral evidence, Grabiner gave more details about the involvement of Lord Neuberger of Abbotsbury, who had joined the chambers headed by Grabiner after retiring as president of the UK Supreme Court. He was the unnamed judicial figure referred to by Grabiner and Coulson.
Grabiner explained that, before he had been brought into the case, Neuberger had advised that “the Post Office has little option but to seek to get the judge to recuse himself at this stage”. Grabiner had independently reached the same conclusion after reading Fraser’s judgment.
“I would not have made the recusal application unless I was personally satisfied that it was a proper one to make,” Grabiner said. Like Neuberger, Grabiner took the view that unless the Post Office applied for recusal it would not be able to persuade the Court of Appeal at a later date that the judge had demonstrated apparent bias in the common issues judgment.
Grabiner wrote:
It was my view, based on everything I had read and what I had heard from [other counsel in his chambers] and from Lord Neuberger, that the Post Office realistically had no choice but to invite Mr Justice Fraser to recuse himself. I was satisfied that the apparent bias complaint was well founded and properly arguable. Indeed, I took the view that it was a strong case.
Grabiner was shown an email he had sent to Neuberger in which he said that Fraser’s decision to hold a hearing on a date when Grabiner might not be available “does rather confirm our suspicions about his Smith characteristics”. The KC confirmed that this was a reference to the much-criticised former Mr Justice Peter Smith. But Grabiner denied that his recusal application was in any way personalised. It was about the judgment, not the judge.
Update: Neuberger has given a written statement to the inquiry.
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