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June 17th 2020

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Reassurances from Post Office over fairness of its Historic Shortfall Scheme – but for me the jury is still out

Dr Neil Hudgell

Dr Neil Hudgell

Executive Chairman

Reassurances from Post Office over fairness of its Historic Shortfall Scheme – but for me the jury is still out

An Independent Review into the Post Office Horizon IT system was announced in Parliament last week by Paul Scully, the Minster for Small Business, and its limited terms of reference are already cause for considerable concern.

An Independent Review into the Post Office Horizon IT system was announced in Parliament last week by Paul Scully, the Minster for Small Business, and its limited terms of reference are already cause for considerable concern.

As a firm heavily involved in supporting subpostmasters whose lives were affected by this scandal, we have called for a judge-led inquiry with meaningful powers to call witnesses and hold people properly to account.

Within the announcement, however, there was reference to the inquiry being tasked to “assess whether the commitments made by Post Office in its mediation scheme – including the Historical Shortfall Scheme – have been properly delivered”.

Maybe that will provide a level of assurance to those who have or are contemplating making an application through the scheme that they will secure the compensation they are long overdue.

Interestingly, since my last blog update, in which I outlined a number of concerns I have over the scheme, I’ve received a letter from Herbert Smith Freehills, solicitors who are representing the Post Office, asking that I clarify my previous comments. I am happy to do so.

They say I have been ‘mischaracterising’ the Terms of Reference for the scheme and being unnecessarily discouraging of applicants, asking that I point out that it was put in place as part of the confidential settlement agreement between the various parties to the previous Group Litigation Order.

I am told they were aware of the scheme but had no active part in the detail of it. This is very much a scheme set up by the Post Office and overseen by the Post Office.

It could be completely coincidental to my recent blogs, but clarity has now been brought as to when an applicant can withdraw from the scheme.

The rules did initially say that an applicant could withdraw at any time. The words “before receiving an outcome letter” have now been added to the FAQ section on the site.

That is a very important qualification but I am unclear as to whether those who have already submitted an application, relying on the previous form of wording, have had that pointed out to them.

At the time of writing, membership of the panel for assessing awards remains to be finalised. I am told that is imminent and also that applications are being considered (although what that means I am not entirely clear).

There has to be a possibility that offers won’t be forthcoming before the closing date for applications on 14th August 2020. I would rather have liked to have seen some outcomes to properly advise my clients.

Will lack of legal representation leave applicants at unfair disadvantage?

I have again been given assurances that there will be a fairness in how applications are processed, especially where documentation is missing.

I have been told that where there are gaps in the documentation, applicants “will be provided with a simple explanation as to what information they will need to provide in order to make out a claim.”

I worry about an inequality of arms if matters escalate to arbitration or small claims proceedings where an applicant without legal representation (remember, the scheme does not contribute to costs) is having to make out a case for disclosure of documentation to support their case.

All these imponderables lead us back to the same position, and that is whether potential applicants can have trust and faith in the new scheme to deliver real justice.

Solicitors for the Post Office have taken the time to write to me to reiterate that they can. Arguably, the recent press statement from Mr Scully adds a layer of scrutiny too. The new CEO of the Post Office also talks a good game.

As to whether we can be assured that the scheme will do as it should, that’s a question I sadly still can’t answer for anyone with any degree of force at this time, and by the time I am able to, it could well be too late for some.

For me, the jury is still firmly out on this scheme.

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