Post Office Scandal Project: Issues Arising in the Conduct of the Bates Litigation

Abstract

This paper sets out the concerns raised about the conduct of Group Litigation brought against Post Office Limited by Sub-Post Masters and Mistresses. It highlights concerns about the overall strategy and conduct of POL, Fujitsu employees, and the lawyers involved on their behalf. The breadth and depth of those concerns raises a question as to whether the overall conduct and management of the litigation was professional misconduct. There are also many specific concerns raised that may give rise to professional misconduct charges in and of themselves.

This paper outlines important issues about the conduct of the lawyers involved and the blurring of responsibilities between clients, especially organisations, and their legal teams which we expect to address in subsequent analyses. For professional regulators, this raises significant questions about the adequacy of their regulation of in-house advisers and the independence of outside advisers. The failings identified in Fraser J’s judgments in Bates take place against a backdrop of concern that criminal offences were committed during the conduct of the litigation and that general strategy and particular tactics may have contributed to the masking of such criminal conduct. Were any such contribution made either knowingly or recklessly this would raise concerns about the criminality beyond the matters referred to the DPP by Fraser J.

The case also raises in stark form many of the concerns courts raise from time to time in relation to litigation culture in civil courts in particular. That suggests a need for reflection and action on how better to ensure an appropriate litigation culture and more responsible professional conduct from lawyers.

Keywords: litigation, lawyers ethics, professional regulation, corporate governance

JEL Classification: K20, K41