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Roula Khalaf, Editor of the FT, selects her favourite stories in this weekly newsletter.
The writer is a former sub-postmaster and founder of the Justice for Subpostmasters Alliance
Thanks to the TV drama Mr Bates vs the Post Office, the Horizon scandal and the plight of hundreds of sub-postmasters like me are back in the public eye and — at least for now — near the top of the government’s agenda.
But an issue which is still very much floating under the radar is a crisis facing the little-known litigation funding sector which funded our fight. Combined with the strength and stubborn defiance of my colleagues, such financing allowed us to take our case from Fenny Compton Village Hall to the High Court, securing justice, exposing the truth and clearing our names and reputations.
Ours was a David vs Goliath case, with hundreds of wrongly accused sub-postmasters — brutally treated by our employer — taking on the Post Office in a hugely expensive and gruelling legal battle. In today’s circumstances, it’s a battle we would almost certainly lose.
Litigation funding enables consumers and small business owners like us to fight our corner. This vital sector sees funders take a calculated risk, based on significant due diligence, to back legal cases that often lack the financial firepower to take on deep-pocketed corporate juggernauts. They do this in return for a share of the proceeds.
This has allowed motorists, shop owners and individual investors to access the courts and seek redress from big business for corporate, and in our case criminal, wrongdoing. Today, Apple, Google and some of the UK’s biggest mobile phone operators are being held to account by individual citizens and SMEs who claim to have been ripped off in a variety of ways. On their own, these individuals would lack the funds to pursue cases against these corporate giants.
But future access to this essential financing tool has been thrown into doubt. Thanks to an obscure Supreme Court ruling last summer in PACCAR, a case brought on behalf of truck hauliers against large truck manufacturers that had previously been in a cartel, the litigation funding sector in the UK is now in jeopardy.
The judgment — on a technical challenge brought by a group formerly found to be cartelists and seeking to exploit poorly drafted legislation — makes litigation funding almost impossible in the UK, and risks unwinding years of historic judgments against proven corporate wrongdoers who have harmed people and small businesses.
While the case might be obscure, the ramifications of the ruling are profound.
Under these conditions, would our victims group have had the funds to challenge the Post Office as they tried every trick in the book to bog us down with procedure and legal costs? Would we have exposed one of the biggest miscarriages of justice in recent legal history? And should we choke off this narrow route to justice for similar cases in the future? No, no and — hopefully you agree — no.
The government can and should fix this urgently, and in the coming weeks they’ll have their chance. All it would take is a minor tweak to the proposed digital markets, competition and consumers bill, which is currently being reviewed in the House of Lords, to unwind the impacts of the PACCAR judgment.
Ministers have even recognised that this is an important issue that needs addressing — after all, it fundamentally undermines their desire to see third-party backed claims being able to hold big businesses to account. And yet so far they have said that it’s not the right time to do anything — music to large corporations’ ears.
There aren’t many stories like that of the sub-postmasters, in which ordinary people take on large organisations with deep pockets — and win. But there will be even fewer wins for individual citizens, small businesses and people like me if this issue isn’t fixed straight away.
