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The case study shows lawyers taking a standard approach to advocacy because they pursued what they might have considered to be the best interests of the client. Tim Dare argues that lawyers ought to pursue a client’s interests within reason i.e. within legal parameters. He further argues that lawyers should give the client a benefit of doubt and focusing on mere zeal which does not permit lawyers to do anything illegal. In the case study, there was an excessive and unjustified redaction in the disclosed documents, and one redaction concealed evidence of the POL’s executive committee knowing about Horizon flaws. Dare would probably argue that this is a hyper zeal approach which the standard conception should not allow. However, it also reveals the weakness in the Dare’s approach to ethics because the case study seems to undermine the idea that lawyers ought to give a client the benefit of doubt. For example, witnesses chosen by the POL’s legal counsel were chosen on the basis that they could only give on ‘what should have happened, not what actually happened’. This made the evidence of limited value at the trial, and it appears to have been designed in a way which concealed the truth of the POL being aware of the Horizon flaws. Rather than giving the benefit of doubt and pursue the client’s interests, lawyers in this case ought to have taken  Simon’s justice approach and encourage their client to disclose evidence which would be in the interests of administering justice.

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The Bates litigation trial consisted of 584 claimants bringing a group acting for:  damages for financial loss, personal injury, deceit, duress, unconscionable dealing, harassment and unjust enrichment which arose out of Post Office Limited (POL) operation of the Horizon system. The judge in charge, Mr Justice Fraser, criticised POL's conduct under several categories. Fraser J raised Civil Procedure Rules (CPR) concerns within the Bates litigation trial, specifically the need for parties to cooperate. POL's actions within the litigation could be viewed as being seriously below the acceptable standards as to amount to professional misconduct. This is related to the disclosure failures by POL. From the actions of POL by running arguments contrary to evidence as well as disclosure problems, it can be viewed that they deliberately impeded disclosure. As well as this, it can be viewed that POL's lawyers may have not met their obligations to the court (CPR). An exmaple of this is when Mr Parsons (POL's solicitor) took two months to hand over plainly relevant material in breach of CPR 31, which requires immediate disclosure. POL's are bound by the Disclosure Act to make known anything that they come across that might contribute to miscarriages of justice. However, it is evident that this was not the case as evidence that the judge requested was given to the court at a slow pace.

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NOTE FORM: Conduct/ evidence management notes

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NOTE FORM: Conduct/ evidence management notes

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·      WEAKNESS: The costs claims worth 18.7 million costs at the time of the Bates No 6 judgment, which covered the second of the two trials in the case which took place before it settled, costs were in the order of £27 million or higher. POL costs grew by £1m in one moth. Does such lucrative fees seem suitable in a case that has caused such detriment to society??

·      WEAKNESS: Their approach to this and the definition of “bugs, errors or defects” sought to narrow issues in Post Offices favour.23 The judge’s analysis suggests, although he does not say this, that their arguments run contrary to the plain words of the defined common issues. Why are they lawyers blatantly avoiding the issue at hand and making it difficult??

·      WEAKNESS: POL adopted an “extraordinarily narrow” approach to relevance seeking to strike out large amounts of evidence as a result. The approach was, “along the lines that any evidence that is unfavourable to the Post Office is not relevant.”29 As an example, they called evidence on how Horizon training worked well, and sought to strike out evidence from the claimants that it did not. Is this tactic trying to mislead the court?

-       Above has presented weaknesses of the conduct of the Bates litigation trial. There are ethical considerations to be forwarded with regards to the extortionate fees charged to the client. In a sensitive case such as this where the public has faced financial detriment, it seems unethical that lawyers are charging such high fees, especially as evidence is being not relevant. There is also potential evidence that the mismanagement of evidence was done in such a way that worked to the advantage of the PO, as this an attempt to mislead the courts. By denying relevance only lengthened the processes etc…

Recusal Application:

-       His evidence made, “it clear, not only that this remote access existed,” but also gave, “specific examples of Fujitsu personnel manipulating branch accounts, and leading to discrepancies in branch accounts.”Such evidence and the findings on it were likely to be publicly damaging for them:

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“POL indicated that the recusal application was made in response to the handing down of the Common Issues judgment (Bates No 3) and the time taken from then until the application was as expeditious as sensible and possible.”  —> Theoretically fine, as you cannot expect the lawyers to work immediately and get things done like computers would, but they did not follow the procedures and give the usual warning.

“Judgment does not say that this recusal application was unarguable, simply a very poor one.” —> Zeal. Points merely need to be arguable, encourages lawyers to make arguments

However, when looking at how desperately the application was made only within 30 mins before the end of Mr Godeseth’s cross-examination, it seems to outsiders that this was the POL’s strategy of last resort, to pause the whole case, reevaluate their legal position, and think of more ways to evade particular arguments that are detrimental to them, or think of more ways to cover matters up unethically

“POL instructed Lord Grabiner QC to conduct the application”. Even the Leading Counsel in the trial at the time didn’t seem to have proper understanding of the application. Instead of legitimate reasonings for a recusal application, very clear to me that POL asked the leading counsel about all their options, they found out about recusal applications, and went for it as the last resort despite the lawyers not knowing exactly what would happen. The lawyers were complacent and therefore unethical, as they should be legal advisers who protects the POL’s interests as much as possible, instead of simply being a mouthpiece. At this point, POL itself was deciding how to fight this court case, and not the lawyer who’s supposed to decide on the strategy.

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The recusal application made by Lord Grabiner displays a clear act of misconduct, due to the intentions and motives of POL’s representation and the failure of acting with integrity. The recusal application can be seen to be conducted in order to benefit POL at the expense of justice, where the publicizing of the evidence provided by Mr Godeseth would greatly damage POL, resulting in the following recusal application. The significance of justice, as presented by William H. Simon, display the alternative approach that can be taken in such a circumstance that the QC was placed in, where the misconduct was performed due to the lack of refusal of POL’s requests. The approach taken by the QC, and causes of ethical problems in this case, can be contributed to the act of hyper zeal, where Lord Grabiner showed no regard to the rules that must be followed by solicitor’s, or the intentions to mislead the court through stopping the publication of damaging information, all for solely defending the client. This is due to the approach of the lawyers of POL towards the accusations made, where lawyers saw the accusations as an attack, making their actions seem somewhat justified. Therefore, the ideas presented by William H. Simon may be interpreted different by solicitors in different circumstances, making the idea of justice subjective. A way of thinking about ethical problems and professional conduct rules that could mitigate risks to unethical practice here is the ideas presented by David Luban regarding moral activation, as it views common morality as the center of decision making, reducing the potential of subjectivity.

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The recusal application is such that it may suggest that the Post Office was deliberately attempting to undermine the effectiveness of the court, akin to professional misconduct. Most notably, the timing of the recusal comes when the POL had suffered a notable blow to their argument, mainly that Fujitsu was able to remotely manipulate branch accounts and caused discrepancies in those accounts. An ability that was notable undisclosed by Fujitsu, in what Lord Fraser describes as a deliberate attempt to keep the knowledge from the court. Consistent with the overall approach, it appears to be an attempt to mitigate the damages done by attempting to not only remove the judge but delay the rest of the trail. On the facts it can therefore be described as a deliberate attempt to delay the proceedings and extend the cost of the trial, and as such would be described as misconduct.

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The management of evidence in the Bates trial by the Post office lawyers demonstrates various attempts to mislead the court. An aspect of this case that is a reason for concern is the counsel’s failure to ensure that their client provides full and honest disclosure of the relevant documents and avoid suppressing them. This clearly illustrates the post office lawyers’ over-zealousness in promoting their client's best interest at all costs. Furthermore, the lawyer’s failure to fully understand the intricacies of the case's details by giving contradicting evidence of the witness statements and their oral evidence shows their inability to provide a competent standard of work. Throughout this case, we a lack of discretion and independence on the path of the lawyers by following their client’s every instruction and not forming their strategy. This is results in some level of criminality through destroying evidence and suppressing material. This reflects Moorehead and Hinchly’s idea of professional minimalism, where lawyers remove themselves from the ethicality of the case they are working on and think about ethics as a small idea.

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The management of evidence in the Bates trial by the Post office lawyers demonstrates various attempts to mislead the court. An aspect of this case that is a reason for concern is the counsel’s failure to ensure that their client provides full and honest disclosure of the relevant documents and avoid suppressing them. This clearly illustrates the post office lawyers’ over-zealousness in promoting their client's best interest at all costs. Furthermore, the lawyer’s failure to fully understand the intricacies of the case's details by giving contradicting evidence of the witness statements and their oral evidence shows their inability to provide a competent standard of work. Throughout this case, we see a lack of discretion and independence on the path of the lawyers by following their client’s every instruction and not forming their strategy. This is results in some level of criminality through destroying evidence and suppressing material. This reflects Moorehead and Hinchly’s idea of professional minimalism, where lawyers remove themselves from the ethicality of the case they are working on and think about ethics as a remote idea.