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May 22nd 2020

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Continued lack of clarity over Historical Shortfall Scheme makes it a choice of ‘devil and the deep blue sea’ for applicants

Dr Neil Hudgell

Dr Neil Hudgell

Executive Chairman

Continued lack of clarity over Historical Shortfall Scheme makes it a choice of ‘devil and the deep blue sea’ for applicants

I read with some interest this morning on the Post Office website that 232 applications have been lodged with its new Historical Shortfall Scheme in the three weeks since launch.

I read with some interest this morning on the Post Office website that 232 applications have been lodged with its new Historical Shortfall Scheme in the three weeks since launch.

These will be some of the people who have come forward to say they suffered as a result of the faulty Horizon accounting software used by the Post Office, who have yet to secure any redress.

Each one of the 232 people will have a story of loss and suffering to tell.

They will have applied in the hope that this scheme finally delivers them the legal redress they deserve.

But will it, or will it take them to the point of no return and an unsatisfactory end result?

Could applicants become ‘trapped’ in a long drawn-out process?

Since my last blog on the scheme, in which I outlined many concerns over a lack of detail being provided, I have been able to clarify a number of key features relating to the protocol and set up.

I have to say though that I remain concerned.

I still feel I am unable to properly advise my clients as to the appropriateness of the scheme, as too many vital details are still vague.

Certainly, anyone applying under the scheme at this stage will need to show a degree of trust in the Post Office to do “the right thing”.

Sadly, a long history of dealings between the Post Office, subpostmasters, their advocates and supporters doesn’t engender a great deal of that.

Importantly, I now understand at what point an applicant becomes bound by the rules of the scheme –in effect ‘trapped’ into the process without any alternative redress.

Under the scheme’s Q&A section it says ‘you may withdraw your application at any time’.

This may seem clear enough at face value, but what that actually means is ‘at any time before the initial application is determined’.

That means if an applicant gets a response they don’t like, they are still obliged to follow the process of a ‘good faith meeting’, followed by an ‘escalation meeting’ and then finally ‘mediation’. Recourse to civil proceedings is expressly ruled out in the absence of fraud.

As of now, there is no indication as to how long an application will take to be determined, nor how long each subsequent review stage will take.

That has to be a cause of concern.

Applicants need clarity over what evidence is needed to secure compensation they deserve, and who will determine eligibility 

There are other important considerations too.

The Post Office is at pains to stress the impartiality of the scheme and that it will be overseen by an independent advisory panel – yet the panel is still to be finalised.

The Post Office says ‘it expects to make an announcement shortly.’ So ‘it’ being the Post Office is about to appoint a panel of so far unidentified members.

It is clear that the onus is on the applicant to provide sufficient evidence, information and supporting documentation to support their claim, and in this area there will be some really difficult evidential barriers to overcome.

Some of these cases are decades old and evidence will have been lost, yet there is no guidance on what evidence will be acceptable other than ‘the better the quality of information, the more likely the applicant may be made an offer of compensation’.

At this stage, I am offering support to clients as I can see the presentation of a damages claim to be a challenging one.  People can contact me at postofficeclaims@hudgellsolicitors.co.uk

Without expert legal advice, people will struggle to understand what ‘consequential losses’ mean beyond recovering money they paid to the Post Office to ‘balance the books’.

It may be that medical evidence is needed to support a diagnosis allegedly attributable the wrong doing of the Post Office.

Three weeks after this scheme was launched, a huge question still remains in my mind as to whether people should go down the route of using this scheme.

In theory a successful group litigation which concluded last December should make the way clearer for those not involved in that case to issue proceedings in the civil courts, but sadly for those to still see any form of redress for their suffering such an approach remains far from a ‘shoe in’.

Litigation in the civil courts is costly, time consuming, risky and an incredibly emotionally draining experience.

On the other hand if you believe what you read about the scheme and its intent to deliver a fair outcome under a new Post Office senior management team, it ought to achieve a quicker, fairer and less costly end result.

It’s only when you begin to look at the small print that it starts to look a little different to what is being advertised on the tin.

At present it’s a choice between ‘the devil and the deep blue sea’.

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