{"id":9708,"date":"2023-05-30T09:15:56","date_gmt":"2023-05-30T08:15:56","guid":{"rendered":"https:\/\/www.taxpolicy.org.uk\/?p=9708"},"modified":"2023-06-03T19:56:55","modified_gmt":"2023-06-03T18:56:55","slug":"postoffice_silence","status":"publish","type":"post","link":"https:\/\/heacham.neidles.com\/2023\/05\/30\/postoffice_silence\/","title":{"rendered":"How the Post Office gagged postmasters with false confidentiality claims"},"content":{"rendered":"\n

The Post Office is finally paying compensation to the thousands of postmasters who it falsely accused of theft in the 2000s. 90% of these postmasters don’t have legal representation, and many believe they were pushed into accepting settlement offers that were insultingly low. <\/em><\/strong><\/p>\n\n\n\n

We can reveal today that the Post Office falsely asserted that its settlement offers were confidential. They weren’t. But that falsehood intimidated postmasters into not comparing offers with each other, not speaking to friends and family, and not going public.<\/em><\/strong> 90% never even spoke to a lawyer.<\/em><\/strong><\/p>\n\n\n\n

The Times has the story here.<\/a> <\/em><\/strong><\/p>\n\n\n

The background<\/h2>\n\n\n

Between 2000 and 2013, the Post Office falsely accused thousands of postmasters of theft<\/a>. Some went to prison. Many had their assets seized and their reputations shredded. Marriages and livelihoods were destroyed, and\u00a0at least 61 have now died<\/a>, never receiving an apology or recompense. <\/p>\n\n\n\n

The Post Office is finally paying compensation to its victims. Under the “Historic Shortfall Scheme” (HSS) it’s paying compensation to about 2,500 postmasters.1<\/a><\/sup>The HSS scheme doesn’t cover the postmasters who were wrongly convicted<\/a>, or the 555 postmasters<\/a> who claimed under the group litigation order (GLO) – these two groups overlap, but there are likely others who haven’t claimed under any scheme. So the total number of affected postmasters is unknown, but certainly over 3,000<\/span><\/p>\n\n\n

The intimidation<\/h2>\n\n\n

90% of postmasters receiving HSS payments weren’t legally represented.2<\/a><\/sup>As of 4 April, 1,924 settlements had been entered into. The Post Office agrees to cover limited legal fees for postmasters receiving offers, but as of that date the Post Office had covered legal fees of only 198 (see our FOIA correspondence, linked here<\/a>). Given the age and limited resources of most of the postmasters, it is reasonable to take from these figures that around 90% of the postmasters had no legal representation.<\/span> Many were unhappy with the compensation they were offered. I couldn’t understand how this had happened – why didn’t more postmasters obtain legal advice? Why weren’t there more press stories about the derisory compensation they were receiving?<\/p>\n\n\n\n

The shocking answer is that each postmaster receiving an HSS offer was warned by the Post Office not to mention the compensation terms to anyone. This had consequences. They weren’t able to compare compensation terms with each other. They weren’t able to speak to family or friends (who might have suggested they speak to a lawyer). And they weren’t able to go public about the way they were being treated.<\/p>\n\n\n\n

This was the key paragraph in each of the offers:<\/p>\n\n\n\n

\"You<\/figure>\n\n\n\n

The assertion of confidentiality is false and misleading as a matter of law. \u201cWithout prejudice\u201d is a common law doctrine that prevents statements made in settlement discussions from being adduced as evidence in court. It’s a form of legal privilege, and not a rule of confidentiality.3<\/a><\/sup>This is somewhat reminiscent of my experience<\/a> of receiving threats of dire consequences if I published “without prejudice” correspondence. In my case the correspondence wasn’t even properly “without prejudice”; in this case, it is. But what both cases have in common is an abuse of the “without prejudice doctrine” in order to silence somebody.<\/span><\/p>\n\n\n\n

It’s very unusual for a defendant to a claim of this kind to attempt to unilaterally impose confidentiality on claimants. Settlement offers aren’t usually stated to be confidential at all. Final settlements, on the other hand, often are confidential4<\/a><\/sup>sometimes improperly<\/a><\/span>, but that is typically achieved by a separately negotiated confidentiality agreement, not just an assertion by one party. There would usually be a list of people to whom disclosure could be made (such as family members, lawyers and insurers). Two experienced defendant tort barristers have told they would personally be uncomfortable negotiating a confidentiality agreement if the claimant was unrepresented. So the behaviour of the Post Office is as unusual as it is troubling.<\/p>\n\n\n\n

In reality, there was never anything to stop recipients of the HSS offers from sharing them with other postmasters, friends, or journalists, and nothing to stop the journalists then publishing the terms (although it would be advisable to redact identifying details, to prevent any future court from seeing publication as an attempt to circumvent the \u201cwithout prejudice\u201d rule). The Post Office’s lawyers should have known this.<\/p>\n\n\n\n

The attempt by the Post Office to intimidate postmasters into silence was shameful. It’s also a breach of professional ethics by the lawyers involved – the in-house lawyers at the Post Office, and also their external lawyers, Herbert Smith, if they were involved (it’s not clear if they were). That breach is all the more serious given that the lawyers knew that the vast majority of the recipients of these letters would be unrepresented.<\/p>\n\n\n

The Post Office’s response<\/h2>\n\n\n

I put the above to the Post Office and received this response:<\/p>\n\n\n

“Whilst we do not agree with your conclusions, we do not believe it\u2019s appropriate to enter into legal argument exchanges in responses for an article.”<\/em><\/p>\n

I am not sure what this means. I pressed the Post Office to specifically confirm if they still thought the offer letters had been confidential, and that they had acted appropriately. I wasn’t able to obtain an answer.<\/p>\n

I also wrote to Herbert Smith; they acknowledged my email but have not responded.<\/p>\n\n

What happens next?<\/h2>\n\n\n

The Post Office should immediately write to everyone who’s received an offer in these terms, correcting their false statement, and making clear that postmasters are free to disclose the terms of the offer and, where they’ve reached one, their settlement.<\/p>\n\n\n\n

Given that the false statement disadvantaged the postmasters, all HSS settlements should be reopened.<\/p>\n\n\n\n

In the meantime, I’ve written to the Solicitors Regulation Authority asking them to investigate the Post Office’s in-house legal team, and look into whether its external lawyers, Herbert Smith, were involved. My letter is here<\/a>.<\/p>\n\n\n\n

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Many thanks to Christopher Head<\/a> and the other postmasters who’ve spoken to me, and shared details of their experiences. Thanks also to B and K for their assistance on the law of confidence and the nature of “without prejudice”, and C and X for their comments on the usual approach to confidentiality in settlements of this kind. And thanks to Tom Witherow at The Times.<\/p>\n\n\n\n

Photo by Kristina Flour<\/a> on Unsplash<\/a><\/p>\n\n\n\n