SJ Interview: James Hartley

What inspired you to become a lawyer? And how did you get to where you are today?

As a youngster, I had a naïve belief that because I was reasonably good at chess then I would surely be a successful litigation lawyer! Maybe there is something in that, but in the end the ability to evolve and adapt has been something I’ve tried to focus on over the years, along with trying to continue enjoying practicing law. The spectrum of skills demanded of successful lawyers in the modern world is ever broadening, so adaptability is key.

Has anything about the profession surprised you?

Yes, how unimportant one’s ability to play chess is! And how we as a profession are sometimes too quick to forget how privileged we are to have the careers that we do.

What do you think it takes to be an effective lawyer in your area of specialism?

As already mentioned, the list of skills needed to be an effective litigation lawyer is ever-growing, which on one level can be intimidating for those entering the profession, but for those who embrace the opportunity to build new skills, they have an exciting career ahead; with skills in areas such as project management, deployment of tech solutions, risk management, to name only a few – all of which will complement the traditional legal and people skills that will always be of central importance.

What areas of law fascinate you the most and why?

The changes that technology/artificial intelligence (AI) will bring are already fascinating – not only because the tech itself is mind-bogglingly clever, but also because it means we as lawyers now need to work out how we can re-shape how we deliver projects so that we’re delivering efficiency for clients by combining tech and people, while also disaggregating our offerings so that our pricing aligns with the value we deliver. In other words, we’ll need to be smart about distinguishing process from insight/expertise and price accordingly. I find all that fascinating.

You have worked on some high-profile cases; can you tell us a bit about how you came to work on these cases, what drove you and the challenges you faced?

Most of the high-profile cases I’ve acted on, such as acting for the 555 claimants in the Group Litigation Order (GLO) claim against the Post Office, have involved a high degree of ambition and a fair bit of confidence in one’s own ability – without exception they are challenging and complex projects, not for the faint-hearted! But I do feel that if we can show our young colleagues (and our children) that they can make a difference and can play a part in positive change, however small, through the work they do then they should feel proud and that should get them out of bed in the morning.

How did you feel watching the dramatisation Mr Bates vs The Post Office? How important was the TV series in the fight for justice?

An ‘out of body experience’ is how I would describe watching an actor playing me in the ITV drama! John Hollingworth was the actor who drew the short straw to play me and he first appears in Episode 3, when he calls Alan Bates to offer help to take the case on. ITV and the writer, Gwyn Hughes, did an incredible job on the drama, which of course stirred up a massive reaction from the UK public, with an outpouring of outrage, upset and disbelief at the monumental abuse of power that caused such human suffering. The interplay was also extraordinary to witness, between the drama, the public response and then the political dynamic, which led to legislation quashing hundreds of convictions and delivering compensation.

How accurate was the dramatisation in regard to the important issues involved and the portrayal of the legal process?

Broadly very accurate – albeit simplified in some respects, understandably, so as to condense a massive amount of material that took place over 20 years.

What are your views on the importance of the general public’s engagement in legal issues?

I think that the importance is for people to have faith that the justice system works, including the court system and the legal profession – and that when things go wrong, the system puts it right. The Post Office scandal has shaken peoples’ confidence, not only in the ‘establishment’, namely a government-owned Post Office abusing its power, but also in the criminal justice system – and the tens of millions of pounds that the Post Office spent on defending the GLO claim, when it is clear they should not have done, has further eroded confidence in the system. So, collectively, we have a good deal of re-building to do of confidence in the system – I believe we can and will do it.

Can you share your thoughts on the Post Office Horizon IT Inquiry? Have any of the revelations surprised/shocked you?

The inquiry is leaving no stone unturned, which is very comforting. The 200+ issues that it is tasked with investigating include all the important issues and the findings and recommendations from the inquiry will, I’m sure, be damning of many of those involved over the 20-year duration of the scandal. I continue to be shocked by the extent of knowledge of the problems and issues with Horizon, which is emerging in the inquiry. I fear that the evidence from the witnesses scheduled to give evidence over the next few weeks will simply add to our collective despair at how all this can have been allowed to continue for so long.

What would adequate justice look like for those impacted by the Post Office scandal? Is it likely that those responsible will be held accountable?

We need to follow through with the three compensation schemes, soon to be four schemes, which we will do. The will is there on the government’s part, as is the money, so we will continue to push all that through as quickly as possible. The inquiry output is also important for closure for postmasters’ – they understandably need to see accountability on the part of Post Office decision-makers and those advising the Post Office. I naturally won’t pre-judge the findings of the inquiry, nor the prosecuting authorities and professional regulatory bodies, but we can rest assured that they are all very focused on these issues and I would be very surprised indeed if there were no consequences for individuals in due course.

How can we ensure that such a miscarriage of justice does not happen again?

At Freeths we have always done a lot of work with our corporate clients on helping them see embryonic problems before they escalate – and managing issues before they cause harm. So, as more and more organisations build socially responsible thinking into their strategies, then that reduces risks. I think also that the Post Office case will have the effect of re-focusing lawyers’ minds on where the ‘redlines’ are, whether that be in respect of disclosure obligations or the approach taken to fighting legal cases hard, which is legitimate provided it’s done within the rules and in a way that enables the courts to do justice.

How can we ensure that the legal system enables all citizens to have equal access to justice?

In my ‘world’ of commercial dispute resolution, litigation funding is key to gain access to justice. We saw that play out in the Post Office case, where the GLO case would never have got off the ground without funding from Therium – and without the GLO I fear that all that has followed since would not have happened – a chilling thought, that the massive miscarriage of justice may never have been exposed!

What reforms would you like to see as a result of the scandal?

To select a couple, giving the courts the power to order a party to pay some or all of the costs of funding in limited and specific circumstances. This can happen in arbitration cases, but there is no clear basis for that to happen in the UK courts.

What response would you like to see from the government?

I think the government is now doing a great deal to try to put things right. The lessons to be learned are, in my view, around oversight of organisations owned by the government and avoiding situations ever occurring again such as the Post Office scandal, where government would probably do things very differently if the clock was turned back.

What are your views on the Post Office Horizon bill?

I welcome it – a pragmatic solution to a massive problem – clearly not a perfect solution, but nevertheless necessary to quash all the convictions.

What long-term impact would you like the Post Office case to have on the legal profession?

I’ve already mentioned corporate social responsibility, but also the legal profession re-setting their thinking on ethical factors. Hopefully the end result being enhanced confidence from the public in the justice system and the legal profession.

Do you think that the Post Office case will lead to lawyers recalibrating their approach to balancing independence with their duty to fight the client’s corner in contentious matters and what would the likely impact be on the legal profession if such a shift happened?

Yes, the rules governing the profession haven’t changed, but this case will help recalibrate for the better. None of this detracts from a lawyer’s ability to fight their clients’ corner and to do so robustly, provided it’s done within the rules and the courts are supported by the lawyers in achieving justice.

If you could do it all again, in regard to the Post Office case, would you do anything differently?

No, not really. The last 8 years, since we first launched the GLO, has been a tough road for all involved, but the end is in now sight for the postmasters.

How should the Post Office go about rebuilding its reputation?

Not my area of expertise, but for what it’s worth, my view is that structural change is probably necessary to make sufficiently deep and sustainable changes.

What trends are you seeing in risk mitigation and dispute resolution more generally?

Outcome scenario planning and modelling of financial outcomes in litigation is emerging as an area of value, which tech/AI will play a part in.

What issues and/or concerns are businesses raising in regard to risk mitigation in 2024?

Data breach risks, competition compliance and class action risk are some examples.

What are the advantages to effective alternative dispute resolution (ADR)?

There are many advantages – timing is key and the strategic considerations involved in that, and in mediation strategies, are often underestimated.

How can ADR be used effectively by companies?

By building it into strategic planning in disputes – and also ensuring contractual DR mechanisms are built into contracts in a way that work well for the company, taking into account the sector and its DR preferences.

How can ADR be effective when a power imbalance exists between the parties?

The quality of the mediator/arbitrator is key. They can often shape the process to level the playing field to some degree.

How can it be ensured that parties to ADR are fully committed to making it work?

This is where timing comes in – ADR too early can be counterproductive. Too late and costs incurred can become a barrier to resolution.

Can the legal framework around ADR in the UK be strengthened?

ADR does need to remain a consensual process that both parties need to buy into. The courts increasingly have a role in encouraging the parties to engage in ADR and that has been a trend for some time now.

Can you tell us anything about the cases you are working on now?

Numerous commercial disputes. We have over 100 litigation lawyers in the Freeths national team. As notional head of the DR Group I get involved in the larger cases, to give strategic input, which I enjoy doing.

What sort of case would you like to get your teeth into?

A major commercial dispute about the use of cutting-edge AI would be fascinating. One where we’re also using AI to run the case and to plan strategically – that would tick all the boxes for me!

How have you adopted innovative technologies into your practice?

In the DR team, tech is embedded in most of what we do now, whether that’s using AI in an e-disclosure platform, or using data to profile an opposing party. Clever use of data in litigation is something we’re building into our practice.

What achievements are you most proud of so far in your career?

I think it has to be the Post Office case!

What would you like to be remembered for?

The Post Office case I’d say, and the part that my team and I have played over the years in delivering justice in a historic case.

How would you like to see the legal profession evolve in the next decade?

To have evolved so that it is seen nationally and internationally as one of the best legal professions in the world, because of its integrity, reliability, its efficiency and its cost effectiveness.

What advice would you give to anyone looking to follow in your footsteps?

Adapt, evolve, stay healthy, work hard, have high standards, be optimistic, be kind and enjoy!