Reading Nick Wallis’ immense book on the Post Office Scandal (buy it here, read my review here) I came across an example of something which has worried me for a considerable time. I do not think the profession, or its regulators, take this is sufficiently seriously. It is the potential perversion of civil justice through NDAs.
One chapter, two pages, contains the story Nick calls Gina’s Ultimatum, less than 500 words let’s quote it in full.
Just before the adjournment debate, on 4 December 2014, the Post Office finished its Mediation Scheme investigation (POIR) into Martin Griffiths.
Given the sensitivity of the situation, Martin’s parents and Gina, Martin’s widow, had made it clear to the Post Office they wanted Alan Bates to be copied in on all documentation relating to Martin’s case. This was agreed by the Mediation Scheme Working Group.
In their POIR report, the Post Office maintained their claim that there was nothing wrong with the Horizon terminal at Hope Farm Road. There was also no apology for the manner in which Martin was deemed part-culpable for the robbery at his branch.
The report was sent to Second Sight, who would use it and Martin’s Case Questionnaire Review to give their independent, evidenced opinion on what had happened at Hope Farm Road. Again, given the sensitivity of the situation, it had been agreed that the Post Office’s POIR would be sent to Gina as soon as it had been completed. For some reason the Post Office chose to sit on it for seven weeks.
On 22 January 2015, the Post Office sent Gina their POIR on Martin. Despite the Working Group agreement that Alan Bates should be kept informed about the Griffiths case, the Post Office failed to give a copy of their POIR to Alan or let him know it would soon be in Gina’s hands.
On 23 January 2015, the same day Gina received the report, the Post Office called her. Gina was offered a sum of money. To get it, she would have to leave the Mediation Scheme and sign a non-disclosure agreement. The offer expired that day.
Gina had a matter of hours to read the Post Office report into what happened at Hope Farm Road and make a decision. She did not know whether Second Sight’s report, which still was not finished, would corroborate or take issue with the Post Office version of events.
Under considerable pressure, without alerting Alan, Gina accepted the Post Office’s offer.
Later that month, Second Sight finished their investigation into what happened at Hope Farm Road. They handed it to the Post Office.
On 5 February 2015, all documentation pertaining to Martin Griffiths was removed from the Working Group’s shared drives, save for a signed statement from Gina Griffiths saying she had withdrawn from the Mediation Scheme. This was the first Alan Bates knew about it.
The Second Sight Case Review Report cleared Martin of any serious wrongdoing with regard to the alarming discrepancies at his branch. Second Sight also found the decision to make him culpable for cash lost during the May 2013 robbery was ‘unfair.’
One fact is covered elsewhere in the book. In 2013, Martin walked in front of a bus having been suspected of, but never prosecuted for, theft (he was sacked instead). Three weeks later, he died
The implication appears to be that Gina was pressured into settling with a view to preventing information from going to Alan Bates. POL may well have intuited or known that Bates was contemplating litigation against them by this point. Letters before action had previously been sent as early as 2011 for a class action by some claimants, but had been dropped in 2013 or 2014. The Justice for Sub-Postmasters Alliance, led by Bates, had voted unanimously to take legal action against POL on 18 January 2015. Conicidence or not, that is four days before Gina’s one-day-only offer.
The SRA’s Warning Notice on NDAs says:
…we are concerned to ensure that NDAs are not used to prevent reporting to us, other regulators and law enforcement agencies or making disclosures which are protected by law. We are also concerned to ensure that those we regulate do not take unfair advantage of the other party when dealing with NDAs.
Note the preventing of reporting problem SRA is concerned about is confined to reporting to law enforcement agencies and making protected disclosures. It does not deal with the way in which NDAs stifle evidence relevant to civil proceedings, current or contemplated. This is an important omission which I have commented on before.
The SRA notes the prevention of reporting to regulators and the police may put a solicitor in breach of obligations to uphold the rule of law, and the proper administration of justice and to act with integrity. If the NDA was instigated with one object being the inhibition of evidence passing to Bates then there is a strong argument that the administration of justice is being compromised alongside Gina’s claim. In a nutshell, if that was one object, it is akin to an abuse, the claim is being settled – in part – to frustrate the claims of others.
The pressure to sign circumstantially supports the concern that this is an NDA designed to suppress evidence, but it is also certainly relevant to the second point: whether unfair advantage was taken of Gina. The SRA guidance, makes clear unfair advantage can apply whether or not Gina was represented (we do not know) and can include
“applying undue pressure or using inappropriate aggressive or oppressive tactics in your dealings with the opposing party or their representative, for example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA.”
It is very hard indeed to see any legitimate basis for such a tight deadline for accepting POL’s offer. Tactical advantage given the imminence of the Second Sight findings (which POL would have been able to guess at, I would surmise given Second Sight’s view of POL practices in other cases) is not, I think, sufficient (the point being tactical advantage appears to have been taken unfairly).
The SRA needs to revisit its guidance to consider whether NDAs which appear to frustrate potential civil proceedings in this way should be covered in their guidance. The routine silencing of complainants in harassment and bullying cases through serial application of NDAs is not fiction in some organisations.
Here the aggressive negotiation of an NDA has contributed to the concealment of massive injustice. Even without that extra, awful, context, the problem is a significant one. The offence of perverting the course of justice is committed where someone: (a) acts or embarks upon a course of conduct, (b) which has a tendency to, and (c) is intended to pervert, (d) the course of public justice. It includes, “… conduct which relates to judicial proceedings, civil or criminal, whether or not they have yet been instituted but which are within the contemplation of the wrong-doer whose conduct was designed to affect the outcome of them.” (Selvage and Morgan  Q.B. 372; (1981) 73 Cr. App. R. 333, CA).
If the way in which the NDA was negotiated was improper, either by virtue of the way in which it was negotiated or because the intention (in whole or in part) was to deter or influence proceedings contemplated by Bates, and if the NDA had the tendency (it was likely to) influence the course of justice, then the offence is made out. Put in the crude but necessary terms, the NDA is a payment, under pressure, which may help POL to conceal evidence or silence witnesses: it is hush money, with an attempt sanctify it as the normal behaviour of a legal settlement. The only difference between this and a bribe is a) Gina has done nothing wrong and b) POL can say Gina had a legitimate claim which they paid off. It’s a strange world if POL’s prior wrong protects them in the commission of a further wrong. It’s not a bribe because she was entitled to the money, but it might well be a criminal offence and professional misconduct. She has no apparent interest in being silenced, though; it looks like a one-way bargain designed to (help) cover-up the madness that was POL’s Horizon fiasco; she was put under unfair pressure on the facts as we have them.
The SRA should investigate and should amend its guidance. It is to be hoped too, that having taken a robust line on privilege, the Williams Inquiry takes a long hard look at the use of NDAs, and that the beneficiaries of gagging clauses are required to waive them.