Official hearing page

5 September 2023 – Fintan Canavan, Diane Wills, Paul Tombleson and Gregg Rowan

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(10.00 am)

Mr Beer: Sir, good morning, can you see and hear me?

Sir Wyn Williams: Yes, I can, thank you.

Mr Beer: Thank you very much. As you know, you directed this hearing today to investigate a series of disclosure failings by the Post Office and also to hear evidence about what has been done to put those disclosure failings right. The Inquiry asked for five witnesses to produce written evidence and duly received five witness statements from those witnesses.

You’ll hear evidence from four of those today: Fintan Canavan, who Mr Blake will be asking questions of firstly; Diane Wills, who I will be asking questions of; Paul Tombleson, who Mr Blake will ask questions of; and then finally Gregg Rowan, who I will examine.

The fifth witness was Mr Ben Foat from whom you heard previously, the Post Office’s general counsel. The Inquiry took the view, as a result of reviewing the contents of his witness statement, that more meaningful and detailed evidence could be obtained from the other four witnesses that I have mentioned and, therefore, he is not to be called today to give oral evidence. His witness statement will be uploaded, as will the other four witness statements, to the Inquiry website today.

So, sir, can we start then, please, with Mr Blake and Mr Canavan.

Sir Wyn Williams: Certainly, but can I just make sure that I’m up to date with the documentation. I received this morning a letter or an email from Mr Henry, which he sent in the middle of the night, and I received further information in a letter from the Post Office which arrived at 8.20 this morning. Am I up to date, Mr Beer?

Mr Beer: Yes, you are, sir. The 3.10 am email from Mr Henry was itself a response to a 22-page letter received from the Post Office yesterday, which the Inquiry distributed. In summary, Mr Henry says it’s difficult to digest complex 22-page letters on the eve of a hearing. Please can you impose a deadline in future that the Post Office should, if they wish to update the Inquiry with information, do so not less than 48 hours before a hearing.

Then the 8.20 am communication this morning is an amended version of a table that was disclosed at 4.26 pm yesterday. You are up to date, sir.

Sir Wyn Williams: Yes, thank you. All right then, over to Mr Blake.

Mr Beer: Thank you.

Mr Blake: Thank you, sir. Can I call Mr Canavan, please.

Fintan Canavan

FINTAN CANAVAN (affirmed).

Questioned by Mr Blake

Mr Blake: Thank you very much, can you give your full name please?

Fintan Canavan: Fintan John Canavan.

Mr Blake: Mr Canavan, you should have in front of a witness statement dated 22 August 2023; is that correct?

Fintan Canavan: It is.

Mr Blake: If you turn to the final page of that statement can you confirm that that is your signature? It’s on page 17 of 17.

Fintan Canavan: It is.

Mr Blake: Is that statement true to the best of your knowledge and belief?

Fintan Canavan: It is.

Mr Blake: Thank you very much, Mr Canavan that witness statement will go on to the Inquiry’s website. It’s unique reference number is WITN09970100. It doesn’t need to be brought on to the screen just yet. I’m going to start just by asking you a brief career history. You’re a qualified solicitor and I think you’ve been practising for over 30 years; is that right?

Fintan Canavan: That’s correct, I was admitted into the Law Society of England and Wales. I then transferred and I’m admitted to the Law Society of Northern Ireland.

Mr Blake: You’ve acted for Core Participants in a number of public inquiries including, for example, the Bloody Sunday Inquiry?

Fintan Canavan: That’s correct.

Mr Blake: You’re currently a partner at DAC Beachcroft solicitors and have been in that position since September 2020; is that right?

Fintan Canavan: That’s correct.

Mr Blake: In July 2021 you were asked by a colleague whether you’d be willing to be seconded to the Post Office to assist with their internal Inquiry Team; is that correct?

Fintan Canavan: That’s correct.

Mr Blake: Were you aware at that stage, so in July 2021, that on 1 June 2021, the previous month, the Terms of Reference for this Inquiry had been announced?

Fintan Canavan: No.

Mr Blake: You were eventually contacted by the Post Office in October; is that correct?

Fintan Canavan: It was around October, yes.

Mr Blake: Were you aware that, over the course of the summer before that October, before you were contacted, the Post Office and 218 others had become Core Participants in this Inquiry?

Fintan Canavan: No, I had not followed the Inquiry at all until I actually became involved with it.

Mr Blake: When you were contacted in October, were you briefed on that kind of background? So, for example, by October a provisional list of issues had already been published, including some 184 issues?

Fintan Canavan: No, I had a number of phone calls with parties from the Post Office and it was much more about my own background, what my understanding of inquiries was, what my experience with inquiries had been and to indicate that the Post Office needed some assistance with an internal team to assist the Inquiry. But we hadn’t got into any discussions about what the extent of the Inquiry itself was at that initial point.

Mr Blake: Did you know why it wasn’t until October 2021, so four months after the Terms of Reference had been published, that you were contacted?

Fintan Canavan: No, it was – I’d been contacted in July. I think one of my colleagues in London who works with – had done some work with the Post Office had indicated to me that there was a desire to bring somebody in. I indicated I would be happy to do so and then it was a number of months later when the actual contact to see if I would be available took place. So no, there was no discussion about what had taken place during that period.

Mr Blake: How long after the phone call did you actually join the Post Office team?

Fintan Canavan: Probably within about a week or so. It was – there were a number of calls, one initially with the – Mr Mark Underwood, who was the compliance director, I can’t remember his exact title but he worked in the compliance team – and then a second call with Mr Foat.

Mr Blake: Your title was Inquiry Director; is that correct?

Fintan Canavan: Correct.

Mr Blake: You’ve spoken about Mr Foat. You reported directly to Mr Foat, who was the general counsel; is that right?

Fintan Canavan: Correct.

Mr Blake: Although you are a lawyer, you weren’t actually acting in a legal role; is that right?

Fintan Canavan: That is correct. It was quite clear. I wasn’t – I haven’t – I wasn’t SRA registered at the time. I am admitted to the role but I wasn’t SRA registered and the discussion was clear that my role was the Inquiry Director; the legal advice and legal representation was by the external firm, who were Herbert Smith Freehills.

Mr Blake: Can you briefly talk us through where you sat within the company in respect of, say, the group executive, various steering committees and the external legal firms.

Fintan Canavan: Without trying to give a very detailed description of it, the General Executive – Mr Foat was a member of the General Executive and I reported directly to him. So we were – the Inquiry Team was based in Mr Foat’s area, the sort of the legal and governance side of the business. I chaired the Inquiry SteerCo, which initially met every week, or – it would have met as much as we needed it to meet but it was listed for a hearing or a meeting every week and on the steering committee were a number of GE members.

It was chaired by me and then was attended by whoever needed to attend. So there would have been Inquiry Team members; HSF would have attended on a number of occasions; Peters & Peters. As and when an issue arose, the relevant people were invited to attend. That would have sat regularly.

I would also have sat in the Freedom of Information, the FOIA SteerCo but my role on that was a secondee into that role. I didn’t have any voting or quorum rights within that steering committee. My role was to ensure that if we were aware of information that might be relevant to a Freedom of Information request or if a Freedom of Information request addressed something that we would need to be aware of, there was a link in that regard.

Mr Blake: You’ve mentioned two external legal firms: Herbert Smith Freehills and Peters & Peters. What do you see as the difference between their two roles?

Fintan Canavan: Herbert Smith Freehills were the lawyers representing Post Office with the Inquiry. Their role was to advise – to link between the Post Office and the Inquiry Team. They were our advisers and representatives. Peters & Peters, as I understood it, they dealt with a lot of the prosecutions historically, they had a lot of material available in regard to the prosecutions and they would have assisted particularly in regard to those – that aspect and the phases which would have dealt with prosecution decisions.

Mr Blake: You’ve spoken about the various steering committees, the Group Executive, et cetera. Was there anyone other than yourself with significant experience in public inquiry work?

Fintan Canavan: Not as far as I’m aware.

Mr Blake: I want to ask you about the length of the Inquiry. You’ve said in your statement it was anticipated the Inquiry would only last for three to four months. Who was it that told you that?

Fintan Canavan: That was the indication when I was contacted in July to see – I have a full – a fairly substantial caseload. My background, I do a lot of Legacy litigation and public inquiry work, so I had a fairly extensive caseload, and the indication was to me it would only be three or four months, so there would be no need for me to try to offload my caseload or to try to make arrangements within the practice. And then when I spoke in October, I think the anticipation still then was that it wouldn’t be running for an awful lot longer than that.

So initially when I came in, I did not make any arrangements or alterations to my caseload and I was still trying to manage that.

Mr Blake: Who was it within the Post Office that gave you that impression?

Fintan Canavan: My conversations were initially with Mr Underwood and with Mr Foat and those initial discussions were that it wouldn’t be a long period of secondment within the Post Office.

Mr Blake: Did you have a conversation then about retaining your current caseload?

Fintan Canavan: Only internally within the business that I had to speak to my line management team to make sure that there was sufficient cover if court hearings, whatever, came up, that I would not be able to attend those. But that discussion was internal. It wasn’t externally with the Post Office.

Mr Blake: Given the experience that you have had – for example the Bloody Sunday Inquiry lasted 12 years – did you think that that was a realistic time frame?

Fintan Canavan: Initially, I didn’t question it because I hadn’t had any involvement, so I wasn’t aware of what conversations and discussions had gone on. I wasn’t aware of the extent and nature of the matters under this Inquiry. When I first came in, within a very short space of time, it was quite clear that the team we had was too small, that the expectation of time was too small and that the budget we had was just too small, that it was always going to expand and that even initial expansion expectations were too short.

Mr Blake: You address this to some extent in your witness statement. I’d just like that to be brought on to screen. It’s WITN09970100. Can we look at the bottom of page 2, it’s paragraph 8, please. You say there:

“It was immediately apparent that the scope of the Inquiry, the period under investigation and the issues involved meant that the anticipated timescale and the team within POL was inadequate. This created an immediate issue with the budget provided for this project (a theme which underpinned much of the following work in the following 15 months).”

You say there it was “immediately apparent”; was that to you or to others as well?

Fintan Canavan: With the conversations we were having, that was one of the initial discussions that we would have had, that this isn’t going to work: (a) three to four months was not going to be sufficient. There was no way that – bearing in mind the Inquiry hadn’t even started having hearings we were not going to complete in January/February of the following year. That did become apparent very quickly and steps were being taken very quickly at that point.

Mr Blake: Did it come as a surprise to those you were having conversations with?

Fintan Canavan: I don’t think people within Post Office understood the nature and I – that’s not a criticism of the Post Office. I don’t think many people understand the nature of an inquiry as opposed to a trial, in that a trial can be listed months in advance for five days, maybe goes to six or seven, but you know what your timescales are.

Inquiries by their nature are much more fluid and I don’t think there is an understanding of the nature of that fluidity and the organic nature of an inquiry, which can change direction simply because of information which comes to light. So I don’t think it was understood and I think it did come as a surprise to those within the management level of the Post Office as to the extent that the Inquiry could expand and how long it was going to take.

Mr Blake: Moving on to budget and I’ll take you again back to your witness statement, paragraph 13. It’s page 4. You say there:

“As the Inquiry developed and grew, the issues around the projected budget and the need to secure a higher budget became the core focus and took up a significant part of the time I spent in the role. A very significant amount of my time was spent amending budgets, forecasting and projecting different scenario budgets, seeking approvals for increased budgets and drawdown, discussing ways to reduce fees with HSF and looking at ways to achieve the same outcomes at lower cost. This meant less and less of my time was spent on the actual processes themselves.”

Can we turn over to page 13 and in paragraph 50, so later on in your statement, you come back to the theme of budget. You’re addressing there the rectification of legacy document storage and you say it:

“… does not feature highly in the priorities of any area and there is a degree of passing the buck hoping other areas will take up the responsibility.”

You say:

“Again this goes to the budget allocations and the need for those heading each business area or sub-area within those workstreams did not allow for much leeway to allocate staff, time or money to document retention, identification and storage.”

Further down in paragraph 52, you give an example of the storage facility in Winchester and you say:

“Much [of it] has not been accurately indexed requiring manual searches of high volumes of material. Boxes were found to contain lottery receipts, memos, advertising brochures all in one space and if time and money were available much of the material could be reviewed and destroyed but that is not possible.”

In your view, were there sufficient funds available at the Post Office for a comprehensive disclosure exercise?

Fintan Canavan: I actually don’t think that’s a simple question to answer, in that the Inquiry’s budget came from within the general Post Office budget. The general Post Office budget was partially controlled by the Government department, but partly they were a private company who had to generate a certain amount of their own income. And projecting budgets, I don’t think any business could have anticipated the expenditure that would have been needed to rectify years/decades of document disclosure and I – I have a lot of sympathy for those within the Post Office themselves who were expected to run their departments, continue the operation of the Post Office but then also find time and the money out of limited budgets to assist me in finding other documents.

I think, in short, no, there wasn’t sufficient money within the Post Office to both run the business and deal with the legacy aspects that were highlighted during the process of the Inquiry.

Mr Blake: Mr Canavan, you talk about the process of the Inquiry but there had, of course, before that been Court of Appeal proceedings, there had been Group Litigation, all of those required disclosure to the courts. Looking back at the funding that was in place for simply maintaining and resourcing the document management within the Post Office, do you think that there was sufficient resourcing and, if not, why not?

Fintan Canavan: No, I don’t. I think that possibly the consideration hadn’t been given to the legacy of material that existed and I think that example of when we were required to go into Winchester and we found thousands of boxes which hadn’t been indexed at all, other boxes were indexed inaccurately, and when you started going through it, the material – and, in a way, the defects have assisted this Inquiry.

Had there been a proper process of document retention, disclosure, organisation and destruction, many of these documents would have been destroyed within a reasonable – a policy of destruction after, say, 10 years because material was no longer used. A lot of that material, had it been retained in a structured way, may not have existed now.

But I do think the issue of document identification, location and storage is not a priority, and it may well be now, because of the issues which have arisen but I don’t think it was and I think the issues that we identified, with boxes being found in different offices and different storage areas, highlighted that there wasn’t an understanding within the business as to where all of their material was stored.

Mr Blake: In your view, who was responsible for that?

Fintan Canavan: I think it’s a legacy thing. To say who was responsible, you would need to go back to when the material was being initially stored, so go back to the Royal Mail period where someone is in the Postal Museum, someone is in Winchester, the material we found in the Londonderry Crown Office, which as I said, from my memory, when we had the safes cracked open, predated Horizon. So that was material that people didn’t even know they had.

So I don’t think you can blame or allocate responsibility to a small number of people. I think it is a legacy across all of the running of the business. But I think ultimately the General Executive should have an understanding of what material is in their business and I say that in a global context, not as a criticism of any member of the current General Executive who have inherited this issue, as opposed to created it.

Mr Blake: Looking at, for example, the corporate recordkeeping, in broad terms, as an organisation, can you describe the state of the repositories that you found?

Fintan Canavan: I have no personal involvement. I didn’t actually attend any of the sites. The reports that were coming in to us would suggest that there wasn’t a single repository of any particular material. So it was scattergun in its storage. I think the core corporate material, so the board meeting minutes, we did – from memory, I think we were able to find those fairly easily, in that they were – the older ones were in the Postal Museum and many of the others were then locatable within the company secretariat.

Mr Blake: You’ve described in your witness statement “fractured and disjointed”. Can you elaborate on that a little bit?

Fintan Canavan: Exactly what I’m saying where you have some material in the Postal Museum, you have some material in Winchester, you have some material that was in Finsbury Dials, you had material held in large regional Post Office hubs, and there wasn’t a single point of contact where you could contact one person and say, “I’m looking for A, B and C”, and they’d be able to say, “That’s stored in this location”.

It did involve them having to conduct very widespread searches physically and electronically to try to locate material.

Mr Blake: This Inquiry had been on a non-statutory footing for quite some time and then, in June 2021, the Terms of Reference were announced as a Statutory Inquiry. You joined in October of that year. When you joined, were efforts already in place to try to improve the situation or were you the first to make the suggestion?

Fintan Canavan: I think it was an organic process, where, as the requests came in for material, the level of disjointed storage became known and it wasn’t apparent immediately that from day one, you had arrived – and when I arrived, my first core objectives were that the team was too small and the budget was too small. So we weren’t hit immediately with a lot of the disclosure requests.

I think maybe some of those came in around – I remember there were some around December but I think at that point, even then, we were more internally concerned with getting the team in place and a lot of the disclosure requests were dealt with externally.

Mr Blake: Were you aware, for example, that Mr Justice Fraser in the Group Litigation had made criticisms of Post Office’s disclosure?

Fintan Canavan: I had read the judgments, the two core Fraser judgments, so I was aware that there was criticism of that.

Mr Blake: Had those criticisms permeated throughout those who you worked with at the Post Office?

Fintan Canavan: Yes, it was – the issue of disclosure was very prevalent, it was of high priority within those that I dealt with. I think I raised the point in my statement where discussions took place about how did we ensure that there was no issue on disclosure, and there were suggestions of should we not just hand the keys to Relativity over to the Inquiry so they had access to everything or can we not just – if they want boxes from Winchester, can we not just bring the boxes, so there was no suggestion of anything being hidden, and that was not appropriate.

It’s not appropriate because the Inquiry does not have the resource to go through that amount of material. But, likewise, there would be a concern that there was an attempt to hide information, by simply blizzarding the Inquiry with disclosure that they would miss material.

So it was understood that there was a duty on us to provide everything the Inquiry wanted to see and there was a clear desire within the GE members that I spoke with that we did need to make sure that you had everything you wanted.

Mr Blake: Given that there was that desire, why was it that it wasn’t sufficiently funded?

Fintan Canavan: I think you can only make money go so far. The Post Office’s budget was, as I understood, there was a Government-set budget. The Post Office has specific duties and responsibilities that they have to comply with. They have to keep a certain number of post offices open, they still have to recruit and train postmasters, they still have to replace the Horizon System. So there was an element of prioritising and there were efforts to move budgets and that was – a constant theme throughout my time was how do we – how much money does the Inquiry need? How much money does the Inquiry Team need? Where can we find the money?

And the message is going out to the BAU departments that, if there were processes that they could stop and save money they should do so. But they only had a limited budget that they could apply to the entire Inquiry process. That budget had to cover not only the document retention but the Inquiry Team, HSF, Peters & Peters, maintaining the Relativity platform. That all came under the same budget. So finding extra money to do investigative processes, such as going out to Winchester, re-indexing and doing tours around all of the offices to locate, had to be found from other resources and I think that was just difficult to do.

Mr Blake: Diane Wills has said in her statement – and we’ll hear from her shortly – that the team had been under-resourced for a long period of time. Were you unsuccessful in your efforts to try and get more resources?

Fintan Canavan: I think a lot of work was done in my time, up to the point when I left, where we were doing different scenarios where, if we could increase the Inquiry’s internal team and reduce the external cost, what would that be? Where would we get the funding? And that debate about the different ways and different processes was under way.

I think maybe if Diane has increased her funding since I left, then that work was probably done before I left, and it was clear that steps had to be taken to increase the funding. I think we had regular meetings and we had debates of budget forecasts that went to the Department. We had to go to the board. The board themselves were generally very supportive, when we needed money to draw down the board, the GE were supportive of that, but it was within the budgets that they had available.

Mr Blake: I want to ask you about the role of Herbert Smith Freehills. You’ve addressed that in your statement at paragraph 25 onwards. You say that the instruction predated your role at the Post Office but you say you believe it was influenced by their previous involvement in Post Office related litigation and also the anticipated short duration of the Inquiry. I want to take those one by one.

So taking the first of those, what did you believe the relevance of Herbert Smith’s previous involvement to be in their instruction in the Inquiry?

Fintan Canavan: When I arrived, they had – they were already in place and, as I understood, the process earlier in the year of appointing external lawyers had been influenced by the already present position within Post Office regarding the legacy matters – excuse me – that Herbert Smith Freehills – I believe they were involved in the compensation process, that they had already become involved in a compensation process and, from memory, I haven’t gone back to it, but they may have been involved in the 555 process –

So they had some deeper understanding of some of the issues that were going to come up in the Inquiry and, as I understood it then, the decision at senior level was it made sense to utilise the information which was already available to Herbert Smith Freehills, than to bring in a new firm who would then have to come up to speed with all of the issues that they had already become involved with.

Mr Blake: Were you aware, for example, that the Group Litigation was going to be something that was going to be investigated by the Inquiry?

Fintan Canavan: When I started, no. But it was a clear issue that would obviously be of relevance to the Inquiry to understand the previous trials, although when I first started, I think the understanding was that the Inquiry would not be seeking to go back into the previous litigation. So I may not then have appreciated that taking the Fraser trials from one side and the Group Litigation as a separate process, that they would all have been in my head one earlier process, and it did make sense that Herbert Smith Freehills had that prior knowledge.

Mr Blake: In terms of the second factor, why would the length of the Inquiry be relevant to Herbert Smith’s instruction?

Fintan Canavan: As became clear, the budgetary aspect of the Inquiry, in that I don’t believe there was any negotiation of a budget or a fee process with Herbert Smith before I arrived, that was already in place by the time I took up my role. So a shorter duration would not have had a significant budgetary impact on the wider Post Office. But a longer duration, it would have made more sense to look at other alternatives that may have been less expensive or perhaps some kind of fee negotiation with Herbert Smiths that may have taken place.

Mr Blake: Is this because, as you’ve previously described, there was this fixed pot of money that wasn’t expanding?

Fintan Canavan: I think the Post Office’s budget is fixed across its entire – and then the internal allocation of that budget. There had been a small budget allocated to the Inquiry process which did continue to expand but I think the shorter the duration, the less relevant the budgetary implications would have been. The longer the process, the more relevant budgetary negotiations would have been to any process.

Mr Blake: Was anyone at this stage raising it with the Group Executive or somebody senior within the Post Office that they urgently needed more funding?

Fintan Canavan: Well, it was apparent and I had conversations with Mr Foat, who was frustrated, and his approach was very much “We need to get this done, we will have to find the money”. But again, that’s easy to say, “We will just have to find the money”. The money then has to come from somewhere. So the issue of funding was a constant theme and, whilst it may not have been openly dealt with, it was a constant process of “How much will this cost, what do we have to spend to do that?”

And one of the points that I think I did raise was when HSF would have said to us “We need to send five people to Winchester for five days”, they would have come to SteerCo and said, “This is going to cost roughly this much”, that would then have been approved. And I’m not aware, I don’t recall any instance when that expenditure was ever declined. It was always approved. But monitoring and watching that budget was essential because there was a limited budget.

Mr Blake: You say at paragraph 26 of your witness statement that the approach to each disclosure request was designed by Herbert Smith Freehills. Perhaps we can look at paragraph 53, it’s page 14. Thank you. You say at paragraph 53:

“HSF sought to identify relevant search criteria based on each R9 request. Those terms were devised by and applied by HSF and were not discussed with POL.”

Looking back, do you think that was an appropriate action to take?

Fintan Canavan: Yes, I do. The team within Post Office would not have understood what the – the search criteria were set up by the external advisers, who were immersed in the process. They would have set the criteria to what the Rule 9 Request was looking for. Some Rule 9 Requests were very simple, you could identify a specific document. That was easy. But if it was wider requests, we relied on HSF to tell us they have received a Rule 9 Request, it relates to – and they will have disclosed the Rule 9 Request to myself, but they would have devised then what they needed, what they felt was the appropriate search, and they did so under the direction that it was to be as wide as possible and it wasn’t to be a restrictive search.

Mr Blake: But in terms of providing assistance to the Inquiry, getting the right documents that the document wanted, do you think it is appropriate for an external law firm to devise and apply search terms and not to discuss them with their client?

Fintan Canavan: When I say they weren’t discussed, they wouldn’t have sent a note to us saying, “We are applying, ‘Horizon’, ‘Horizon litigation’”. They didn’t necessarily set them out. They would have – each Rule 9 Request would have been brought up at a SteerCo, they would have identified where they had identified relevant areas that they needed to search, be that Postal Museum, Winchester or Relativity searches. They would have indicated to us that – we received – I think sometimes there were hundreds of thousands of hits that went to first level review, that was reduced then to a second level review and then the disclosures were then sent to the Inquiry when the relevant material was identified.

Mr Blake: Did they too had on every occasion?

Fintan Canavan: My memory is that yes, they did. I don’t believe there were any requests where we were not aware of the Rule 9 or the nature of the searches, primarily because any budget requirement to send people out to the hard copy repositories would have had to have been approved.

Mr Blake: In terms of human involvement, though, from the Post Office, in terms of somebody with experience, with knowledge of Post Office policies, procedures, it sounds from paragraph 53 of your statement that there wasn’t that kind of involvement in, for example, search terms?

Fintan Canavan: It may well have been – I assume that may be slightly misleading in that they did not discuss the phrasing of the search terms or how they would have framed and carried them out. The Inquiry Team was kind of two layered. There was the legal side where we had legal counsel who would have been involved with certain work, but there was also an operations side, and there were members on the operations side who were longstanding Post Office employees, and they would have had contact with HSF and HSF would have utilised that knowledge about questions – they could have said “Have you looked at”, or “I remember that incident”, or “I remember a person who was involved in that department”. So there was contact –

Mr Blake: So although you’ve said in your witness statement there those term were devised by and applied by HSF and were not discussed with Post Office Limited, your evidence is that there were people within Post Office Limited, in the operational side, that did have discussions with Herbert Smith Freehills?

Fintan Canavan: They – the discussions would have been about the process, not the terms. Herbert Smith Freehills devised what searches were required, what the – what the Rule 9 was requesting, how to conduct those searches, what they would be looking for, but they would have had access to anyone within the Post Office had they needed access to anyone in particular for advice on where to go looking for material. There would have been no – Post Office did not dictate or direct what the search terms were or what the search criteria should be.

Mr Blake: So you have said that they had access to people at the Post Office?

Fintan Canavan: Yes.

Mr Blake: Did they routinely consult people in the Post Office with regards to requests that had been made?

Fintan Canavan: There was consistent two-way conversations going on that the contact would have been made through both SteerCo and through requests for information and any information which we devised or located. So if one of our processes located material, we would have immediately notified HSF and if they had needed access or if they had requested any access, it would have been granted. And I do recall instances when people within the operations team did speak with HSF. I couldn’t give you information as to how regular or consistent that was.

Mr Blake: Was there a policy in place as to in what circumstances to speak to somebody at the Post Office?

Fintan Canavan: No, there was no formal policy.

Mr Blake: Perhaps we can take an example, and that’s the request for prosecution policies and investigation policies. Can we look at INQ00002007, please. This is 28 February, 2022, Rule 9 Request. It’s Rule 9(11). This was a request while you were in post and can we look at paragraph 15 of this request. Thank you. This request says:

“The Minutes of the Audit, Risk and Compliance Subcommittee of 11 February 2014 refer to a report which outlined the proposed changes to the prosecutions policy and a paper to explain the most appropriate way to communicate the prosecutions policy. Please provide copies of the same and copies of all iterations of the prosecutions policy since 1999 that are in POL’s custody or control.”

If we move down the same request paragraph 46, please. Sorry, it’s a bit above that. Thank you. There’s a reference there to the “Minutes of the Audit, Risk and Compliance Committee”, and it says:

“These refer to an investigations policy that was circulated. Please provide copies of the same and copies of all iterations of the investigations policy since 1999 that are in POL’s custody or control.”

There was a later Rule 9 asking for much the same. That’s INQ00002008. So that was a request of 15 June 2022. Perhaps we can look at paragraph 18. That request asked for:

“Policies and guidelines … relating to the bringing of private prosecutions against subpostmasters and other end users …”

Request 22 says:

“Any guidance, training or instruction … given to those responsible for conducting criminal investigations …”

Paragraph 26, scrolling down, similarly asks for:

“Any guidance, training or instruction given to those responsible for making charging decisions …”

Paragraph 30:

“Any guidance, training or instruction given to those responsible for conducting the prosecution of subpostmasters …”

Just by way of one more example, paragraph 34:

“Any guidance, training or instruction given to those responsible for disclosure in criminal proceedings brought against subpostmasters …”

These requests were made while you were in post. The Inquiry’s understanding was that the process that followed that was that Herbert Smith Freehills would set search terms, the repositories would be searched and the end product would come back. We know that a significant document, the racial profiling document, was not contained in what was ultimately produced.

Is your evidence then that there was a discussion about prosecution policies with somebody in the Post Office, between them and Herbert Smith Freehills?

Fintan Canavan: I can’t answer that question in that I don’t have any specific memory of this individual request. My understanding would be that Herbert Smith would contact Post Office identifying particular search areas, so the hard copy/soft copy repositories. If there was a specific issue, in this case looking at governance policies and procedures, that would have been referred to the Inquiry team. That, I would believe, would have been referred to the Secretariat, the company secretaries department, and any responses would have been identified, passed to Herbert Smith, and then passed on.

Mr Blake: Your evidence is that it would have happened?

Fintan Canavan: That would be my belief.

Mr Blake: How involved in this process were you as Inquiry Director?

Fintan Canavan: I was – I had very little direct involvement in any of the specific processes, particularly by the time we came to June of last year, we were heavily involved in trying to expand, even in June last year, the process had been that we would have been ending the Inquiry by sort of Christmas and then it was quite clear it wasn’t going to end, and budgets were severely constrained by that point.

The process, I think – maybe when I came into post it was a very small team, we expanded the team both on the legal and operational side and, just before I departed, an Operations Director had been appointed. The Head of Legal who had been on maternity leave was due back and my understanding would have been that I would have then moved into the role of overseeing rather than being hands on, day to day, dealing with the finance team, and drafting of the processes. I would have been a much more oversight role.

The majority of the requests would have been dealt with by the individual teams that were created. The process we had, Phases 2 and 3 were allocated to two counsel, Phases 3 and 4 were allocated to two counsel, 5 and 6 were – is it – yeah, were allocated then to a different set of counsel, and then they would have been tasked to deal with their counterpart in HSF about any requests that were relevant to their area, that they would have assisted in that process.

I would not have had any day-to-day or even detailed responses or updates on specific documents that were located.

I think had the racial profiling document been identified, I would have been aware of it and I would have been made aware of it because of the gross nature of the material which had been produced.

Mr Blake: So as Inquiry Director, your role was not to get involved in the nitty-gritty of the Rule 9 requests?

Fintan Canavan: No.

Mr Blake: That was left to legal counsel?

Fintan Canavan: Yes.

Mr Blake: So those are qualified lawyers –

Fintan Canavan: Yes.

Mr Blake: – who you assume or your evidence is they would have discussed those with people who worked at POL?

Fintan Canavan: To the extent that HSF would have had their – they would have identified teams dealing with each Rule 9 Request, with each area and they would then have liaised with the relevant person in the Post Office team. It wasn’t dealt on a basis where the partners in HSF would deal with me, I would then allocate it down to somebody within Post Office who then reported back to me and I reported back to HSF. It wasn’t that relationship.

The relationship between myself and HSF was much more at the higher level as to what we were doing, what our strategic approaches were, what our priorities were going to be for upcoming phases.

Mr Blake: Is it possible that those conversations with the people involved on the operational side of the Post Office simply weren’t taking place and that you weren’t aware of that?

Fintan Canavan: No, because I was aware of conversations then, because I would – there were frustrations expressed by the operational side, where they would say, “I’ve sent material to HSF and they’ve asked for it again and I’ve already sent this”. So there were definitely ongoing discussions and ongoing exchanges, and that was taking place. But the exact nature of who was speaking to who and what they were asking for and what was being produced was not reported up to me. I was aware of the frustrations both from HSF saying, “We’ve asked for certain material which hasn’t arrived”. I would then say, “Look what are we doing?” and then from our side saying, “I’ve sent this three times” and then me going to HSF saying, “Apparently this has already been three occasions”.

So there were conversations at the lawyer level, either between the lawyers and the internal lawyers, or the lawyers and HSF and the operational team within Post Office.

Mr Blake: In order to assist those who are currently working for the Post Office on their disclosure, can you tell us why you think that kind of a breakdown would happen?

Fintan Canavan: I think it’s just – partly, I think it is the size of the team within Post Office. There was a limited number of people and some of the operational staff had other BAU duties and responsibilities, so they weren’t dedicated solely to the Post Office. And I also think partly – I’m criticising our own profession here – but I don’t think lawyers sometimes understand and can explain to non-lawyers what they are asking for as clearly as maybe they should.

But I also do think part of the problem can be something the size of this Inquiry where one member of the Post Office is responding to one person in HSF, and there are three different teams in HSF doing three different jobs, but the Venn diagram arrangement of inquiries is certain matters do overlap, and getting repeated requests for a document you sent to person A from person B or person C, the Post Office staff get frustrated because “I’ve already sent that”, but it was to a different team for a different purpose.

Mr Blake: So was there a lack of communication between the various Herbert Smith teams rather than a lack of communication between Herbert Smith and the Post Office?

Fintan Canavan: I think there was – there may well have been a lack of clear understanding but, again, the sheer volume of what’s being dealt with – understanding what document has come in and having a central repository of all of that information, plus how you name it. I name it “Board meeting, 12 January”, somebody names it “Board meeting re Horizon”, a third person names it “Board meeting” – they’re asking for the same document but they’ve called it a different name because of the distinction within the Rule 9 Request as to what it is you’re actually looking for.

So there may well be a lack of clarity in what is being requested, consistency in namings or even just an understanding within the teams, Herbert Smith asking for one thing and Post Office thinking they’re asking for something else, and I think that it is quite likely that there were instances where that did happen.

Mr Blake: When you were in post, is it your view that Post Office was lacking a central individual to filter those kinds of requests or was it a general understaffing or something else?

Fintan Canavan: I think the team was generally understaffed, in that there was a huge job to be done but there weren’t enough people to do all of the tasks, which meant that you had to prioritise within the teams, and that may well have led to some requests or some understanding falling between the cracks.

Mr Blake: Looking at that racial characteristics document, we’ve dealt with it with Mr Foat, so I’m not going to deal with it in depth with you today, but you’ve said that you sat on a steering committee that related to Freedom of Information Act requests and that there was liaison in fact between the Freedom of Information people and the Inquiry people, and that I think you were that figure that sat on both committees, for example.

Fintan Canavan: Yes.

Mr Blake: How, in your view, do you think it is that that document, having been disclosed under the Freedom of Information Act, wasn’t brought to the relevant people’s attention promptly?

Fintan Canavan: I don’t – I have no comprehension as to how that did not. That would have been after my time, so I don’t know how that happened. I do recall instances when documents were brought up, that were going to go on Freedom of Information requests and we immediately ensured HSF advised the Inquiry that material was going to come out because we didn’t want the Inquiry’s first – it may not have been relevant to an existing Rule 9 but it was clearly relevant to facts in issue in the Inquiry and we did not want the first knowledge to be the front page of the Daily Mail.

We wanted to make sure, even if it was only a day or two’s knowledge, that you would have known. So we did, on a number of occasions, identify material that had been requested under Freedom of Information requests and we bought them to the attention of the Inquiry. So I know that that did happen. I do not know how that did not happen on this occasion.

Mr Blake: Did you, during your period, recognise any difference in, for example, the quality of the product from Freedom of Information searches, vis à vis the quality that was produced for Inquiry’s disclosure?

Fintan Canavan: No. I think my feeling was that the Freedom of Information was much more directed, because they were – the requests would have been much more specific, where the Inquiry’s scope is much wider and the request would be a much broader brush. So what we would be looking for would be a lot wider than what a Freedom of Information request would be looking for. So it may well have been that a Freedom of Information request would divulge 14/20 documents, we would be locating 15,000/20,000 documents.

So I do not – as I say, I do not understand how that one was located by Freedom of Information when it hadn’t been located previously, nor how we – the Inquiry Team were not able to notify the Inquiry in advance that this was coming.

Mr Blake: In terms of your ultimate departure, can you tell us why you left the Post Office?

Fintan Canavan: I think from my understanding is it was quite simply budgetary, that the cost of seconding a partner from a law firm in was extensive and, therefore, they had to try to manage the long-term budget of how to manage the fees and bringing somebody in to manage the team long term. And I think possibly then again the initial view of you were brought in for a short-term to deal with a certain aspect and it has just blown up out of all proportion from what we understood.

Mr Blake: We will shortly hear from Mrs Wills, who has described some successes she has had in terms of increasing the budget. Why do you think it is or do you think it is that Mrs Wills has had more success in increasing the budget than you did during your time in post?

Fintan Canavan: I think reality has come to play but, at the end of my time, there was a much longer and much more detailed understanding that small increases of a bit here and a bit there were not going to do it, that the Inquiry was – and the Inquiry’s timetable itself had been much clearly set out, that we knew then that we were looking at this period, this period, this period, and hopefully that the wearing down I had done during my time and the work that I had done had softened the way for a much clearer understanding, that the budgets that had been discussed were simply not valid.

And we had presented scenarios of increasing the internal team, changing terms, changing the approach. A lot of that had been done setting out various avenues and I would hope possibly then that there was a – I’ve no idea, I’m speculating here, which is probably incorrect for me to do so – that hopefully more funding was provided from Government resources to ensure that the Post Office could comply with its duties and responsibilities to the Inquiry.

Mr Blake: Thank you very much.

Sir, do you have any questions?

Questioned by Sir Wyn Williams

Sir Wyn Williams: Just one, if I may. Well, it may be more than one but it’s one discrete issue.

Mr Canavan, you spoke about the role of counsel in the various teams which was set up. I just wanted to understand what you meant by that. Were you meaning that these people were members of the independent bar in private practice instructed by a solicitor or were you talking about in-house employees?

Fintan Canavan: I was discussing in-house lawyers, legally qualified staff internally, not external members of the bar.

Sir Wyn Williams: Right. Okay. Well, it was only one question. Thank you. Yes, thank you very much.

Mr Blake: Thank you very much, sir. We’re going to hear from Mrs Wills next but perhaps we could take a 15-minute break, so to 11.15.

Sir Wyn Williams: Yes, by all means. Fine.

Mr Blake: Thank you very much.

(11.00 am)

(A short break)

(11.15 am)

Mr Beer: Good morning, sir, can you see and hear me?

Sir Wyn Williams: Yes, I can, thank you very much.

Mr Beer: May I call Mrs Diane Wills, please.

Sir Wyn Williams: Yes.

Diane Wills

DIANE WILLS (sworn).

Questioned by Mr Beer

Mr Beer: Thank you, Mrs Wills. As you know, my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you give us your full name please?

Diane Wills: Diane Wills.

Mr Beer: Thank you for coming to assist us in our work, and for previously providing a witness statement to the Inquiry. You should have in front of you a copy of that witness statement, in your name and dated 22 August this year. If you turn to the last page of it, which is I think page 37, is that your signature?

Diane Wills: It is.

Mr Beer: Before I ask you whether it is true, can you go back to page 29, please, and look at paragraph 92 at the foot of the page. I think you wish to make two corrections to paragraph 92; is that right?

Diane Wills: Yes, please.

Mr Beer: Is the first of them by crossing out in the first line the words “was agreed with” –

Diane Wills: Yes.

Mr Beer: – and inserting instead the words “guide has been designed by POL, having consulted the”, I’ll read that again slowly:

“… guide has been designed by POL having consulted the …”

Diane Wills: Correct.

Mr Beer: Then secondly inserting the word “internally” at the end of that sentence after the word “used”?

Diane Wills: Yes.

Mr Beer: So the sentence would read:

“A revised Rule 9 Request process guide has been designed by POL having consulted the external advisers and is now being used internally.”

Diane Wills: Yes.

Mr Beer: Thank you.

With those corrections, are the contents of that witness statement true to the best of your knowledge and belief?

Diane Wills: Yes, they are.

Mr Beer: I am going to ask you questions about a range of matters referred to in your witness statement but not all of them and that’s because the Chair of the Inquiry has read your witness statement and it will be uploaded to the Inquiry’s website today so that everyone can see what it session.

I am going to focus on two principal issues, firstly to seek to understand more about how three disclosure failings occurred concerning search terms, reviewing families of documents, and the de-duplication of documents. So that’s a look backwards?

Diane Wills: Mm-hm.

Mr Beer: Then secondly to seek to understand more about what the Post Office and its advisers have done to put things right.

Diane Wills: Okay.

Mr Beer: Can start though with your career qualifications and experience. I think you’re a solicitor having qualified in October 1997; is that right?

Diane Wills: That’s correct.

Mr Beer: You previously worked in the Government Legal Department until in April 2012 (sic) you joined the Post Office as its Legal Services Director in the Remediation Unit?

Diane Wills: April 2022.

Mr Beer: Did I say “2012”?

Diane Wills: You did.

Mr Beer: April 2022.

Diane Wills: Correct.

Mr Beer: You appear to have had two functions from April 2022 onwards, firstly to seek to deliver timely and fair compensation to subpostmasters affected by the failings of the Horizon System and secondly to support the Post Office’s response to criminal appeals arising from the operation of the Horizon System; is that right?

Diane Wills: Correct, yes.

Mr Beer: With effect from beginning of January 2023 and upon a promotion, you became the Post Office’s Public Inquiry Director; is that right?

Diane Wills: Yes, in addition to the other role.

Mr Beer: You tell us in your statement that you spend about 75 per cent of your time undertaking that role and 25 per cent of the time undertaking the existing role; is that right?

Diane Wills: Yes, it’s not a hard split. It’ll depend on the nature of the issues that are arising at the time but that’s roughly right.

Mr Beer: When you became the Public Inquiry Director, that was a role previously occupied by Fintan Canavan, from whom we’ve just heard; is that right?

Diane Wills: Correct.

Mr Beer: You tell us in your witness statement, no need to turn it up, at paragraph 31, that you are the accountable director within the Post Office for its Inquiry programme?

Diane Wills: Yes.

Mr Beer: Can you tell us what that means in two respects? Firstly, accountable to whom? Accountable to the Inquiry or accountable within the Post Office?

Diane Wills: Accountable within the Post Office.

Mr Beer: What does that mean: you are the accountable director within and to the Post Office?

Diane Wills: So I’m the person that would – is responsible for making sure that the Group Executive, that the board, the Inquiry Steering Committee are aware of all of the issues that are going on, that I’m driving the programme forward in the way I believe is needed to deliver what’s required for the Inquiry and so I’m, I suppose internally, the face of the Inquiry, if you like, for Post Office, in terms of people know that I’ll be there to lead the work.

Mr Beer: But what does accountability involve?

Diane Wills: It’s my job to deliver and, if I was not delivering, then presumably that would be looked at in terms of performance.

Mr Beer: What does the Inquiry programme mean?

Diane Wills: So it’s all the work that we’re delivering connected with the Post Office Horizon Inquiry.

Mr Beer: If we turn up your witness statement, please, it’s WITN09940200, and go to page 26, please. At paragraph 83, you say:

“I inherited a very highly motivated team who had been under-resourced for a long period of time.”

Yes? By “for a long period of time”, do you mean for the life of the Statutory Inquiry, ie since at least June 2021?

Diane Wills: So I had in mind my knowledge since I joined Post Office, which was from April 2022 and not being directly involved with the Inquiry Team but just based on general knowledge and understanding of the pressures that the team were facing.

Mr Beer: So you’re referring to “it had been under-resourced for a long period of time”, meaning since at least April 2022?

Diane Wills: From my perspective, yes.

Mr Beer: Because that’s when you had knowledge?

Diane Wills: Yes.

Mr Beer: So it had been under-resourced for at least eight months by the time you arrived?

Diane Wills: In my view, yes.

Mr Beer: To your knowledge, had issues as to the under-resourcing of the Inquiry Team previously been brought to the attention of others within the Post Office?

Diane Wills: So I don’t know the specific details of what had been brought to the attention of others. I know, just from general conversations with Mr Canavan, that there had been concerns about whether the budget was at the right level but I don’t know more detail than that.

Mr Beer: To your knowledge, had issues as to the under-resourcing of the Inquiry Team been brought to the attention of the Group Executive –

Diane Wills: I don’t know.

Mr Beer: – and to the board?

Diane Wills: I don’t know.

Mr Beer: What was your understanding of the response from within the Post Office as to issues as to under-resourcing having been raised?

Diane Wills: So, as I said, I don’t know that they were focused specifically on under-resourcing. My sense was that Mr Canavan had found it difficult to enable the Post Office fully to understand the extent of the obligations required, in terms of a response to the Inquiry and what that would entail, and that had therefore been the difficulty in securing the right level of budget.

Mr Beer: So he hadn’t understood –

Diane Wills: Sorry, not he. He had found it hard to get the rest of the Post Office to understand the nature of the challenge, sorry.

Mr Beer: Is that the explanation for why the under-resourcing had been allowed to continue?

Diane Wills: So far as I know, yes.

Mr Beer: When was the under-resourcing of the team first bought to the attention of the Group Executive by you?

Diane Wills: So I think it would have been in either February or March, ahead of taking a paper to the board in March, at which we focused on additional – sorry an increase in the budget and as part of that additional resourcing and there would have been discussions at the Group Executive level prior to that. There would have also been discussions prior to that at the Inquiry Steering Committee, which itself has number of members of the Group Executive.

Mr Beer: Can we look, please, at paragraph 58(d) on page 18 of your witness statement?

Sir Wyn Williams: Before you do that, unless I missed it, you said February or March but didn’t give a year. I’m assuming it’s 2023.

Diane Wills: 2023, yes, sorry, yes.

Sir Wyn Williams: Thanks.

Mr Beer: You’re here dealing with part of the response to the Inquiry’s question to explain the events that led to the three disclosure failings that had been identified. At (d), at the foot of the page, you’re dealing with the issues of searches that have been undertaken, and you say:

“My understanding from discussions with colleagues is that Fintan Canavan and some others with relevant responsibilities had an ongoing dialogue with POL’s external advisers to seek to ensure that the searches for documents and document review strategies were reasonable in all the circumstances and comprehensive, thorough and rigorous.”

Then this:

“POL wanted to achieve cost and process efficiencies if they were achievable alongside fully meeting its obligations to the Inquiry and its ambition to drive improvement going forward.”

So you’re referring here to conversations that you had with Mr Canavan about search terms and review of document strategies, yes?

Diane Wills: At a very high level.

Mr Beer: That’s what I wanted to ask you about. This is expressed at a very high level. You say on the previous page the Post Office – at the foot of the page:

POL [the Post Office] wanted to achieve cost and process efficiencies if they were achievable alongside fully meeting its obligations to the Inquiry …”

Can you explain exactly what that means, “we want to fully meet our obligations to the Inquiry and achieve cost and process efficiencies”?

Diane Wills: So there has never been any doubt as to Post Office’s support, full support for delivering what’s needed for the Inquiry and that underpinned everything. So the board has been very clear throughout, in terms of wanting to ensure that everything possible was done to meet the disclosure obligations. But sometimes there are ways of doing things which can achieve the same outcome but in a more cost efficient way and that’s what that’s focused on.

Mr Beer: Can you give some examples?

Diane Wills: So probably the biggest example I can give is the – that cost was part of the driver to change the decision – sorry, part of the decision to move the recognised legal representative role from Herbert Smith Freehills to Burges Salmon and Fieldfisher.

Mr Beer: This is talking about a stage before then.

Diane Wills: Yes.

Mr Beer: This long before then.

Diane Wills: Yes.

Mr Beer: Can you give any examples about the Post Office wanting to achieve cost efficiencies concerning disclosure?

Diane Wills: Only at a high level, in terms of examining, for example, things like how many associates would attend each of the Inquiry hearings.

Mr Beer: I’m talking about disclosure? This is in the context –

Diane Wills: Disclosure, sorry. Yes, I don’t have any specific examples.

Mr Beer: What were you referring to then of POL wanting to achieve cost and process efficiencies in the context of disclosure?

Diane Wills: That was how it had been explained to me in terms of looking hard at how disclosure is approached and seeing whether, through working with Relativity, working with KPMG, there is a different way that we can achieve the same outcomes but at a less cost.

Mr Beer: Again, other than expressing it in that very high level way, can you think of any practical examples or actual events where that was carried into effect or was described to you?

Diane Wills: Perhaps the process followed – that I understood – was followed in relation to some of the hard copy work, where it was done in stages, so that, for example, in the review of the back-up tapes, which were discovered at a site, rather than going straight into a full process review, instead, the work was started to identify the policies which led to them being designated as back-up tapes. There was work done to identify indices, so there was a high level understanding of what might be on there.

There was then a sampling done, so it was done in stages to try to achieve some efficiencies whilst still being mindful of our overall obligations.

Mr Beer: In relation to the three issues that we’re concerned with, the use of search terms or the misuse of search terms, reviews of family documents and the de-duplication exercise, was the Post Office’s desire to achieve cost and process efficiencies relevant to any of those?

Diane Wills: I’ve never heard it described in terms of a cost efficiency. It was always about what was reasonable to do in the circumstances, which inevitably has some implications for cost.

Mr Beer: By that answer, Mrs Wills, do I understand you to mean that desires to save costs are relevant to the three disclosure failings that we’re looking at?

Diane Wills: No, I mean that it’s an inevitable output, in terms of decisions taken as to what is reasonable, and the approach taken, depending on how wide or not that approach is taken, will have different cost implications.

Mr Beer: Okay, I’ll move on. That can come down from the screen, please. One of the principal issues which the Inquiry – I think you’ll understand – we’re investigating, is, in the substance of our hearings, the non-disclosure of documents by the Post Office in civil litigation and in criminal litigation, which the Post Office bought against subpostmasters?

Diane Wills: Mm-hm.

Mr Beer: I think you will realise, is this right, that the Post Office was significantly criticised by both the High Court and the Court of Appeal for what was described as obstructive conduct in relation to disclosure?

Diane Wills: Yes.

Mr Beer: Against that background, we’re investigating it – ie non-disclosure – and it’s been the subject of significant criticism in the past. Would you agree that the disclosure which the Post Office gives to this Inquiry must, in the circumstances, be full, accurate and timely?

Diane Wills: Yes.

Mr Beer: That’s essentially a commitment that various senior executives in the Post Office have been committed to giving in the Inquiry; is that right?

Diane Wills: Yes.

Mr Beer: And it’s what the law requires?

Diane Wills: Yes.

Mr Beer: Can we look, please, at paragraph 43 of your witness statement on page 13. Just explaining the abbreviations, HSF is a reference to Herbert Smith Freehills –

Diane Wills: Yes.

Mr Beer: – the Inquiry lawyers and, until recently, the Inquiry recognised legal representatives –

Diane Wills: Yes.

Mr Beer: – for the Post Office. P&P are Peters & Peters. We will come to each of those in a moment. You say:

“[Herbert Smith Freehills] and [Peters & Peters] had a broad, general authority from [the Post Office] as its instructed representatives to progress disclosure, in conjunction KPMG International, without reverting to [the Post Office] for specific instructions.”

Diane Wills: Yes.

Mr Beer: You’re here referring to, I think, the past, ie the period before you took up office on the 1 January 2023; is that right?

Diane Wills: That’s the system I inherited on joining, and which, to an extent, is continued until more recently.

Mr Beer: To your knowledge, was the decision taken by the Post Office to give Herbert Smith Freehills and Peters & Peters a broad, general authority, without reverting to the Post Office for specific instructions in relation to disclosure issues, a deliberate decision?

Diane Wills: I don’t think I can answer that. I wasn’t involved in those discussions.

Mr Beer: The consequence of the decision, would you agree, that if there are issues or problems with the way that disclosure is undertaken by those external advisers, then the Post Office can say, “Although ultimate responsibility rests with us, Post Office, to give proper disclosure, in fact the errors and mistakes were not made by us they were made by others”?

Diane Wills: I don’t think that was ever the intention behind it.

Mr Beer: That’s the consequence of it?

Diane Wills: Yes.

Mr Beer: Indeed, I think that’s exactly what you do in your witness statement, isn’t it?

Diane Wills: Yes.

Mr Beer: If we just look at paragraph 10 on page 4. You’re dealing with Request 1 at paragraph 10, which was:

“Please explain the events which led to the three disclosure issues, explaining in detail all relevant decisions and communications that led to the errors and identifying those involved.”

You say:

“The relevant decisions and communications took place between POL’s external advisers. [The Post Office] did not direct these communications or take these decisions. Consequently … the witnesses from [the Post Office’s] external advisers will be able to provide closer accounts.”

Then over the page at page 12, you’re dealing with Request 2.b. Request 2.b was:

“Please set out where you consider responsibility for the errors lie.”

You say at 12:

“As I have explained in relation to Request 1, the relevant decisions and communications took place between [the Post Office’s] external advisers. Accordingly, any responsibility primarily sits with [the Post Office’s] external advisers.”


Diane Wills: Yes.

Mr Beer: In relation to other issues, signing off proposed communications to the Inquiry, signing off written, closing and oral submissions to the Inquiry, signing off submissions in relation to compensation issues, you indicate in your witness statement that by contrast, you were involved very directly with those?

Diane Wills: Yes, either I or my team.

Mr Beer: You tell us that, in relation to those issues, communications with the Inquiry, signing off submissions and signing off communications in relation to compensation issues, you have frequent and direct contact with Herbert Smith Freehills lawyers?

Diane Wills: Yes.

Mr Beer: You receive updates from them via email?

Diane Wills: And through oral conversations.

Mr Beer: You say that – in your witness statement – you attend a series of standing meetings with them?

Diane Wills: Yes.

Mr Beer: Why, to your knowledge, was a different, more hands-off approach taken in relation to disclosure issues?

Diane Wills: So reference to the communications with the Inquiry, I had in mind the production letters that go to the Inquiry so that Post Office has visibility at that stage of what is being produced to the Inquiry. We have the earlier visibility of the Rule 9s coming in. Those discussions –

Mr Beer: Sorry to interrupt.

Diane Wills: Sorry.

Mr Beer: What about the bit in the middle?

Diane Wills: That’s what I was just going to come to. The regular calls that we have with Herbert Smith go through the Rule 9s that are currently outstanding. There is a high level discussion so that I’m aware of any resourcing issues, any major issues. What I didn’t have, and I think my team only had a limited knowledge of, was precise details, such as things like search terms and how de-duplication was being applied.

Mr Beer: My question was: you get sight of the Rule 9 that comes in, you get sight of the production at the end that goes back to the Inquiry, why was a more hands-off approach taken in relation to the part in the middle?

Diane Wills: So I think it’s a combination of two reasons. One is that the reason we appointed the firms we did was because of their expertise and we wanted to be able to make good use of that and also their greater resource levels than we had, but also that there wasn’t sufficient capacity within the team to have the level of engagement on these issues that I would have liked.

Mr Beer: So it comes back to the resourcing of the internal POL Inquiry function?

Diane Wills: In part, yes.

Mr Beer: You speak in your witness statement about a series of committees and groups within the Post Office that have responsibility for the Inquiry programme. If I can deal with each of those in turn, there’s something called the Inquiry Team – capital “I”, capital “T” – at the Post Office made up of lawyers and project managers. Is it right that that had no responsibility for or oversight of any disclosure issues?

Diane Wills: No, that’s not correct.

Mr Beer: There was and is an Inquiry Steering Committee?

Diane Wills: Yes.

Mr Beer: Is it right that that had no responsibility for or oversight of disclosure issues?

Diane Wills: No, it did have.

Mr Beer: Sorry?

Diane Wills: It did have.

Mr Beer: It did have?

Diane Wills: Yes.

Mr Beer: Can you tell us, in relation to each of those, the levels of firstly the Inquiry Team, the oversight of and responsibility for disclosure issues?

Diane Wills: So within the team, each of the lawyers had a particular responsibility for a phase of the Inquiry and any of the – any Rule 9 issues that arose in relation to that phase, they would have the day-to-day responsibility for contact with the external lawyers. They were supported in that role by the project management team and a specific person in the team who had responsibility due to their longstanding corporate memory of helping us understand who, across the business, we may want to engage with, in order to gain information – corporate knowledge from subject matter experts.

Mr Beer: If your paragraph 43 is right, that Herbert Smiths and Peters & Peters had a broad, general authority in relation to disclosure, without having to revert to the Post Office for specific instructions, what oversight and responsibility was it necessary for these Inquiry lawyers within the Post Office’s Inquiry Team to undertake? What were they doing about disclosure?

Diane Wills: So my understanding is that the team’s main role was in order to help HSF understand who may have the relevant data that was relevant, where that might be held, to try to find relevant custodians within the department. We didn’t, for example, have any knowledge about an approach being taken on family documents. So that wasn’t something that we would have had knowledge or oversight of nor, as I say, the de-duplication, other than, I guess, at a high level, that it makes sense to try and avoid providing duplicates of something, but no more than that. But the team’s role was much involved in just helping source the material.

Mr Beer: Where are the documents; what are our repositories; which buildings need to be looked at; that kind of thing?

Diane Wills: Yes, but then also through discussions with those individuals to try to help build the information necessary to – for HSF to then determine search terms. So, for example, what project names were used, you know, what common acronyms or abbreviations were used within a team, so that that would then help HSF to make the more technical decision about precisely what search terms would be used.

Mr Beer: I see. So narrowing it down, then, the Inquiry Team didn’t have any involvement in or knowledge of the detail of decisions taken as to the review of family documents, which is one of the areas we’re looking at –

Diane Wills: That’s correct.

Mr Beer: – and didn’t have any knowledge of or involvement in decisions concerning the de-duplication of datasets, other than to know in general terms it’s a good idea that things are de-duplicated –

Diane Wills: Correct.

Mr Beer: – the second error we’re looking at.

On the third issue, search terms, I think you just told us that they did – the Inquiry lawyers within the Post Office – have discussion and liaison with the external advisers over the appropriate search terms to use; is that right?

Diane Wills: No, I think it’s more that they acted as a conduit for HSF to engage directly with the business and may have been present on calls, for example, but were not themselves, so far as I’m aware, directing the nature of the precise search terms.

Mr Beer: Can we ask the same set of questions in relation to the Steering Committee, then? Any involvement on or responsibility for the family review issue?

Diane Wills: They’d have had no knowledge of that.

Mr Beer: In relation to the de-duplication issue?

Diane Wills: Again, no knowledge.

Mr Beer: And search terms?

Diane Wills: I wouldn’t expect them to have any knowledge of that either. The knowledge for SteerCo about the Rule 9s was a broad sense of what was coming in, what was being looked at, what we were finding, any challenges in that, timescales, whether it had impact on resources. It was more strategic involvement than day to day.

Mr Beer: Same answers in relation to the Group Executive?

Diane Wills: Yes.

Mr Beer: Still further up the tree, same answers in relation to the Post Office Board itself?

Diane Wills: Yes, that’s correct.

Mr Beer: Would you say that through the Inquiry team within the Post Office, it – the Post Office – exercised intrusive supervision and intrusive oversight of the disclosure process that was being carried out in its name?

Diane Wills: I don’t think I could categorise it as that, no.

Mr Beer: Can we turn to paragraph 13 of your witness statement, please, which is on page 5. We’ve dealt with paragraph 12, responsibility primarily resting with external advisers. You say in 13:

“However, that doesn’t change the fact that [the Post Office] remains responsible for its own disclosure to the Inquiry. [You] hope it is made clear from the rest of this statement that [the Post Office] takes that responsibility extremely seriously.”

So you rightly say that the Post Office remains responsible for its disclosure to the Inquiry and you say that it takes the responsibility “extremely seriously”. Why, given those two things, did the Post Office not exercise intrusive supervision or oversight of the disclosure that we’re being given or not being given?

Diane Wills: I think until recently, until the issues have come to light, it wasn’t understood that there were issues of the scale that we’ve now come to realise and so I don’t think there was – it was understood that there was a concern about the approach being taken, that meant more intrusive supervision was required.

Mr Beer: But Mrs Wills, in a case concerning significant non-disclosure to criminal courts in the past, which has been extensively and deeply criticised by both the High Court and the Court of Appeal, wouldn’t the disclosure being given to this Inquiry naturally require intrusive supervision and oversight, whether or not you knew there was a problem?

Diane Wills: Yes, I can see that but I believe Post Office considered it was meeting its obligations by having appointed the firms it had.

Mr Beer: One of the issues we’re investigating is delegation of functions to a supposedly expert contractor, Fujitsu –

Diane Wills: Mm-hm.

Mr Beer: – and whether washing one’s hands of a problem and saying, “It’s down to our external contractor”, was an appropriate way to go. Are there shades of that on this occasion in relation to disclosure?

Diane Wills: It’s not how I’d see it. The team had regular engagement with Herbert Smiths, it had regular engagement with KPMG and Peters & Peters and I think the belief was we had sufficient knowledge of how disclosure was being conducted.

Mr Beer: Can we turn to page 10 of your witness statement, please. You say in paragraph 34:

“My focus has been in 3 main areas …”

Then at (c), you say:

“Ensuring the ISC [that’s the Inquiry Steering Committee] and [the Post Office’s] Group Executive and Board are appropriately aware of and consulted on risk issues relating to the Inquiry as they are identified. This is obviously essential to thorough risk governance …”

In order for thorough risk governance to take place, don’t you have to know what the risks are in the first place?

Diane Wills: Yes.

Mr Beer: Does that not necessarily involve conversations and written communications with your advisers that seek to identify what the risks are?

Diane Wills: I believe Post Office thought it understood the nature of the risks and it’s only really since June, with all the extensive work that’s been undertaken, that we’ve identified additional matters.

Mr Beer: So if it’s the case that the external advisers have adopted a disclosure strategy that’s mainly focused on keyword searches, the conversation is, “We’ve adopted a disclosure strategy that’s mainly focused on keyword searches, these are the risks that that involves” or “We’ve decided to leave it to the discretion of an individual low-level reviewer to decide on a case-by-case basis whether to look at a family of documents, that carries the following risks”?

Those things need to be identified, don’t they, they need to be bubbled up to the surface in order that risk governance can take place, don’t they?

Diane Wills: Yes, they do.

Mr Beer: By the time of your arrival, that hadn’t happened, had it?

Diane Wills: I can’t speak about what had happened before my arrival.

Mr Beer: Can we turn to paragraph 40 on page 12, please. In the middle of the paragraph here, and you’re talking about the current day, you say:

“I attend twice weekly standing meetings with the 3 partners responsible within [Herbert Smith Freehills] for leading the Inquiry work as well as regular detailed strategy meetings. These meetings are used to discuss priority issues and risks as they are identified and to establish matters that require escalation …”

Diane Wills: Yes.

Mr Beer: Between January and the discovery of problems with disclosure, in late May and early June 2023, were the risks associated with the way in which Herbert Smith Freehills, Peters & Peters and KPMG were approaching disclosure ever discussed in the meetings you refer to here?

Diane Wills: Yes.

Mr Beer: What risks were identified?

Diane Wills: So there was frequent discussions about the ongoing work in relation to hard copy data and some of the repositories that had been found there, including electronic data. I was also aware, around April time, of concerns that – as to whether or not the right repositories had been searched in relation to one particular Rule 9. I can’t immediately think of other specific risks.

Mr Beer: Again, that’s focused on places and vaults of material –

Diane Wills: Yes.

Mr Beer: – rather than the three issues we are looking at. Had any discussion occurred between January and late May/early June 2023 about any risks being associated with the way in which those three advisers were approaching disclosure concerning the three risks that have now been identified?

Diane Wills: I had been made aware of some concerns as to resourcing challenges within KPMG, that could have impacted on disclosure and we’d been addressing those but I’d not been made aware of any – as far as I can recall – certainly nothing about family documents or de-duplication. I don’t recall being made aware of any specific concerns about search terms.

Mr Beer: What were the resourcing concerns within KPMG that were drawn to your attention between January and end of May 2023?

Diane Wills: I think in about February or March, concerns were reported through to my operations and strategy director that the time being taken by KPMG to respond to certain requests was slowing things down and impacting the ability of HSF to carry out the reviews that were needed. So Post Office worked with KPMG to develop two solutions: one an offshoring resource centre in India that KPMG could then call on to boost their resources where required; and also a system in place to ensure that it had the capability – sorry, the capacity to do weekend working and late evenings where particular Rule 9s required it.

Mr Beer: At that time, were KPMG not working in the evenings or at weekends?

Diane Wills: I don’t know the detail, I’m afraid, but I assume there was a need for more, given the conversations that we had.

Mr Beer: Was the offshoring to India solution taken up?

Diane Wills: Yes.

Mr Beer: What is the nature of the offshoring to India solution? What is done?

Diane Wills: I don’t know the technical detail of the work they do but I know there is an additional team based out there, I think in the region of around about 12 people, who supplement the work of the London-based office, dealing with some of the more simple tasks, as I understand it.

Mr Beer: Do you know what that is?

Diane Wills: I don’t, I’m afraid.

Mr Beer: Have you any clue as to even the realm within which the offshore India team is operating?

Diane Wills: Sorry, could you clarify your question?

Mr Beer: Yes, are they doing de-duplication? Are they doing data reconciliation?

Diane Wills: I’m sorry, I don’t know. Hopefully Mr Tombleson will be able to answer that this afternoon.

Mr Beer: Can we turn forward, please, to page 30 of your witness statement and paragraph 93. You’re again talking in the present here. You say:

“The [Inquiry Steering Committee], which I chair, meets at least fortnightly and disclosure ([both] remediation and going forward) is part of the regular agenda.”

When you joined, is it right that disclosure was not part of the regular agenda of the ISC?

Diane Wills: It wasn’t a standing agenda item, in the way it’s become since June but, certainly, any issues that were arising, such as in relation to hard copy data, were brought to the attention of SteerCo, as was needed.

Mr Beer: Do you know why disclosure was not part of the standing agenda before the disclosure failures which have been revealed were revealed?

Diane Wills: So the papers that go to SteerCo comprise a number of components. There are papers which are for noting on issues we just want to make SteerCo aware of, there are decision papers, and then there’s a full suite of management information, which includes, for example, progress on Rule 9s and also has management information relating to progress generally, in relation to disclosure. So the papers were always there; they just may not have always been discussed.

Mr Beer: Why was that?

Diane Wills: If there was a particular issue that we needed a view on, we would have discussed it. If members of SteerCo had any questions in relation to the papers we were providing, we would have discussed it. Otherwise, it was there for their general awareness.

Mr Beer: Standing back, the disclosure given by the Post Office to this Inquiry is one of the main features of its engagement with the Inquiry. It’s not necessarily the advocacy that Post Office does within the Inquiry. The provision of witness statements and disclosure are the main touchpoints between the Post Office and the Inquiry. The impression that I am getting from reading your witness statement – please correct me if I’m wrong – is that there was a – before your arrival and to some extent for a period after your arrival, disclosure, although it was spoken about in terms of being an important and high priority, a rather laissez-faire attitude was taken to it in terms of that’s the responsibility of the external advisers and not us; is that unfair?

Diane Wills: I think it is unfair. I think I categorise it is that part of our relationship with the external advisers is we would expect them to be bringing to our attention any issues which we needed to address or be concerned about and then we’d have the regular updates and then, between those two things, we felt we were getting sufficient oversight of information.

Mr Beer: So reliance on the external advisers to identify problems with their own work?

Diane Wills: Problems with their own work but also challenges they may have been facing within Post Office, for example. Getting access to right repositories, et cetera.

Mr Beer: Putting it frankly, isn’t this the case, isn’t this the Inquiry where the internal Post Office team should be all over disclosure from the top and the bottom of it, day in, day out?

Diane Wills: Yes, in ideal world, and I think that’s what I’m now driving towards and it’s a wholesale change since June.

Mr Beer: I appreciate that you’re, to some extent, speaking of the past here and that places you in some difficulty but shouldn’t that have been obvious from the start? Why did it take these three disclosure failings to move disclosure up the agenda?

Diane Wills: So I think it’s been a trajectory of understanding on the part of the Post Office, in the way Mr Canavan described, in terms of Post Office not having that initial understanding of what’s required by an Inquiry and that gradually increasing, and the scale of the issues getting broader, the scale of the challenges being faced getting bigger and it coming right up the agenda.

Mr Beer: Can I turn, then, to the three issues identified by the Chair in his previous decisions and directions on disclosure failings by the Post Office: firstly the use of search terms; secondly, decisions made to review or not to review families of documents; and, thirdly, de-duplication exercises carried out on behalf of the Post Office.

So, firstly, the approach taken to the use of search terms and the searching strategy. Can we begin by looking at paragraph 58(a) on page 17 of your witness statement.

Diane Wills: Yes.

Mr Beer: You tell us:

“My understanding, based on discussions with colleagues and information provided by [the Post Office’s] external advisers, is that the POL employees/contractors were not involved in data-strategy discussions at a detailed level. In general:

“(a) [The Post Office] was updated about some of its external advisers’ search parameters and review strategy choices as part of business-as-usual client reporting. My understanding is that [the Post Office’s] external advisers’ decisions about search parameters and review strategies largely developed iteratively in response to feedback and knowledge obtained through document searches and document review. [Post Office] employees/contractors were not substantively involved in discussions about those detailed matters because [the Post Office’s] external advisers had the specialist experience and resource and, because they were conducting the disclosure exercise on a day-to-day basis, had the detailed knowledge required to make those choices, whereas [the Post Office] did not.”

So you’re essentially saying three things there. Firstly, it was the external advisers that made the decisions about search parameters and review strategies, yes?

Diane Wills: Yes.

Mr Beer: Secondly, Post Office employees were not involved in the substance of such decisions although they were sometimes told about them?

Diane Wills: So, as I said earlier, they may have been involved in discussions to help the external advisers understand what search terms they should apply in terms of, for example, a project name but I don’t believe they were involved in very specific search terms to be used generally in relation to a Rule 9.

Mr Beer: Thirdly, they weren’t so involved at any detailed level because it was believed that the external advisers had the requisite knowledge and the Post Office didn’t?

Diane Wills: Yes.

Mr Beer: Can we look at an example. It’s, in fact, the search terms which turned up what is now known as Appendix 3.

Diane Wills: Yes.

Mr Beer: Can we look, please, at POL00114170DS, page 82. We’ll see this is the first interim disclosure statement dated 27 May 2022 and if we can go to page 82 and look at the bottom, please.

So we’ll see in the third column across, under A, a copy of the relevant request. Here:

“Copy of [Post Office] Investigations Policy (together with all iterations of the same since 1999 that are within [Post Office’s] custody and control).”

That was the Inquiry’s request, yes?

Diane Wills: Yes.

Mr Beer: Then we’ll see the explanation of what is given against A in the far right-hand column:

“The [Post Office] produced approximately 260 documents in response to the Inquiry’s request for all iterations of the investigations policy from 1999 to date. In order to identify these materials, the following search was conducted over all of the materials which the Post Office had at that time harvested from the Postal Museum and Oasis archives …”

Over the page, if you look in the right-hand column:

“Search Terms: ‘Policy’ AND (‘Investigat*’ or ‘Prosecut*’ or ‘Whistle’).”

So they were the search terms that were used, yes?

Diane Wills: Yes.

Mr Beer: So the search term that the adviser, the lawyer, used here was the word policy, where it appeared in the same document as “Investigat*” or “Prosecut*” or “Whistle”, yes?

Diane Wills: That’s my understanding based on that document, yes.

Mr Beer: Yes. So what has been done is the truncated words of “investigate”, “investigation”, “investigator”, or “prosecution”, or “prosecutor” or “Prosecuting” have been used.

Diane Wills: Yes.

Mr Beer: You can see the little “*” after the T, yes?

Diane Wills: Yes.

Mr Beer: So these search terms wouldn’t catch documents if they were called “protocols”?

Diane Wills: If these were the only search terms used, that’s correct.

Mr Beer: They wouldn’t catch documents if they were called “guides” –

Diane Wills: No.

Mr Beer: – or if they were called “guidance”?

Diane Wills: No, I think that’s correct. What I don’t know is whether other searches were being done to try to identify those materials.

Mr Beer: Not so far as we’ve been told. Isn’t that the kind of thing that a Post Office people might be able to tell the lawyer, “But hold on, I’ve got some knowledge of these things and, in the Post Office, we didn’t call things policies or we did call things policies but there was this other level of document as well that was called a guidance. You need to use the truncated term guide or guidance”.

Diane Wills: So that’s my understanding of the role of our subject matter experts within the business, is that’s how we would use them. I’m not familiar with any particular discussions that were conducted in relation to this or other searches.

Mr Beer: What you told us earlier in your statement was that there wasn’t any detailed liaison over search terms involving Post Office employees, subject matter experts?

Diane Wills: I think what I tried to explain was that the role of the subject matter expert would be, as you’ve said, to sort of say, did we use policy, did we use guidance? What I wouldn’t expect them to do is advise, “That means you therefore need to use this truncated word in order to find all the documents”. It’s that balance.

Mr Beer: To your knowledge, did that first part of the conversation ever occur? I know you won’t know in relation to this but, at a general level, “We’ve got this Rule 9 in, we need to get the subject matter expert into the room, let’s sit down with them for a day and talk through it, work out which search terms they would suggest are used because, after all, they’ve spent their life dealing with investigations policy or prosecution policy”?

Diane Wills: Yes.

Mr Beer: Did that occur?

Diane Wills: So I’ve never been directly involved in any of those discussions but that’s certainly the – I’ve always understood those to happen. What I’ve sought to do is make that more systematic so that we now have a list of identified subject matter experts across the business who I believe would be able to help us and, whenever any new requests for information now comes in, one of the very first things we do in an initial strategy meeting is to discuss with them – to have those kind of discussions.

So I understand it was happening, but I don’t know whether it happened in every single case.

Mr Beer: Hold on. You told us back in paragraph 58(a) of your witness statement that, although the Post Office was updated about some of the search parameters and review strategies, the Post Office was not substantively involved in discussions about any detailed matters concerning search parameters and review strategies, because the lawyers, the expert advisers, had the specialist knowledge and Post Office did not. I think you’ve just said that, in fact, on occasion, Post Office people did have such specialist knowledge and they were brought into the conversations?

Diane Wills: So I’m sorry if I’m not explaining this clearly. I am seeing this in two levels. One, that there’s a general discussion with the people whose role it was to know about these sorts of documents, so that conversations could be had to enable the lawyers to understand what sort of things they should look for. What I wouldn’t expect them to have been involved in is the actual construct of the search terms on the back of that, and that’s – it’s that different layer that I was trying to get across.

Mr Beer: Okay. So how frequently were they involved in discussions over the appropriate search terms to use, in relation to all –

Diane Wills: So the second layer that I’m –

Mr Beer: No, the first layer?

Diane Wills: The first layer?

Mr Beer: Yeah.

Diane Wills: I couldn’t quantify it because I think it would depend entirely on the nature of the Rule 9, the extent to which there were people within the Post Office that had the right corporate knowledge, the earlier in time things go back, obviously the harder that was. I’d expect it to be much more frequent, going forward, as the date range moves forward.

Mr Beer: So if we wanted to, we could drill down into each Rule 9, if we asked for disclosure, to see the extent to which a subject matter was brought in to the room, and did help the lawyers to develop search terms?

Diane Wills: Would assume those records would exist, yes.

Mr Beer: Why has it increased in frequency more recently?

Diane Wills: Because the nature of the – as we move forward in time, there’s more likely to be people within Post Office that do have that corporate knowledge, and so are able to bring more assistance.

Mr Beer: Why, as we move forward in time, is there more likely to be people with corporate knowledge?

Diane Wills: Just because other people might have left, in some of the very earlier stages.

Mr Beer: Oh, I see. So you’re not saying that the longer the Inquiry goes on, the more knowledge?

Diane Wills: No, no, no.

Mr Beer: – will be obtained?

Diane Wills: No, sorry.

Mr Beer: Understood. Can we look please at paragraph 21 on page 38 of your witness statement. We should look at the foot of page 30, please, to get some context. Page 63 at the foot. You’re here dealing with Rule 9 Requests 11 and 14. These are the relevant requests, certainly the second of them that ought to have – it’s accepted, I think – turned up not only Appendix 3 but Appendix 6. You say:

“I understand from [Peters & Peters] and HSF that both firms were involved in deciding the search terms in relation to … requests 11 and 14, with HSF having primary responsibility in respect of some of the questions and [Peters & Peters] having primary responsibility in respect of others. The search terms used to seek to identify [the Post Office’s] policies and procedures relating to prosecutions and criminal investigations (ie broadly those relevant to questions 15 and 46 of [Rule 9(11)] and question 18 of Rule 9 Request 14) were significantly informed by work [Peters & Peters] had done in connection with the post-conviction disclosure exercise (utilising their pre-existing knowledge and understanding of [Post Office’s] documents). I understand there was also liaison between HSF and [Peters & Peters] in relation to appropriate search terms, particularly in relation to questions 15 and 46 of Rule 9 Request 11.”

What you don’t say there is that there was any involvement by anyone from the Post Office?

Diane Wills: I’m not aware of whether there was.

Mr Beer: Did you ask?

Diane Wills: (Pause)

I think I must have done. I don’t know why I haven’t mentioned it here, I’m sorry.

Mr Beer: Does the absence of any positive return in this paragraph suggest that there was no involvement by the Post Office in the development of search terms concerning these parts of Rule 9 requests 11 and 14?

Diane Wills: So I know there were discussions with the security team but I don’t know whether that was done as part of the remediation process or whether it was done originally. I’m afraid I can’t – I’m not entirely sure.

Mr Beer: You say here that the search terms used were significantly informed by the work Peters & Peters had done with the post-conviction disclosure exercise. The search terms that were used were truncating the word “investigation” to the word “investigat”. How was the work that they had done in connection with the post-conviction disclosure exercise utilised in order to truncate the word “investigation” to the word “investigat”?

Diane Wills: I don’t know, I’m sorry.

Mr Beer: You’ve said here that it’s because of their past knowledge of the post-conviction disclosure exercise that they developed these search terms. What we’ve seen is that, for two words, they cut the end off. What’s the relationship between this past specialist expertise and cutting the end of the word?

Diane Wills: So I don’t know if there’s a relationship with cutting the end of the word. I imagine it’s with identifying the word initially, so the word “investigation”, not that it would appear to require much specialist knowledge.

Mr Beer: We asked for “investigations policy”?

Diane Wills: I can’t answer that, I’m sorry.

Mr Beer: What did you mean by this, that the search terms used to seek to identify policies and procedures relating to prosecutions and investigations were informed by the work they’d already done? Because we’ve seen the search terms and all they did was cut the end off a couple of words?

Diane Wills: Yes, so probably a more accurate description is that the work, generally, that Peters & Peters had done, for the post-conviction disclosure exercise, had been utilised in order to find requisite documents, build repositories, and their knowledge of that work was then used in terms of helping to develop search terms generally, not necessarily in relation to this specific aspect.

Mr Beer: I understand. Can we lastly, on this part of the issue, look at paragraph 62 on page 20 so the previous page. Thank you. You say:

“Search terms were selected by HSF or [Peters & Peters] (or through collaboration between the 2 firms) and implemented by … KPMG.”

Then you make this slightly more positive assertion:

“[The Post Office] was not involved in substantive discussions about what search terms should be used …”

So that does sound like you asked the question in relation to these Rule 9 requests and were given the answer, that the Post Office wasn’t involved in discussions about what search terms should be used?

Diane Wills: Possibly. It may be back to the same point I was trying to make earlier about the higher level of involvement of Post Office in understanding the nature of work to enable those search terms to then be devised by the lawyers, and I was meaning that there was not involvement in the sort of end product as to precisely what search terms should then be used.

Mr Beer: So the cutting the end off words?

Diane Wills: Yes.

Mr Beer: You say in brackets at the end there:

“(… I have been informed by colleagues that some lists of search terms were shared with POL).”

What was the purpose of sharing some lists of search terms with the Post Office? Why were they being shared?

Diane Wills: I assume so that there was a record for Post Office so that it could see what had been done.

Mr Beer: Was there ever any request from the external advisers, “These are the search terms that we’ve settled on, have you any comments to make”?

Diane Wills: I’m not aware of any.

Mr Beer: Here you’re saying that the Post Office was not involved in substantive discussions about search terms. Do you accept or acknowledge that now to have been a mistake?

Diane Wills: So I think there will always be a certain level of expertise that we’d expect – or to rely on our external advisers for in terms of the best way to construct search terms to deliver the best results from Relativity. Should we be as involved as we can be in terms of identifying in the first place what search terms to use? Absolutely.

Mr Beer: Do you know why it didn’t happen?

Diane Wills: No.

Mr Beer: In paragraph 64 over the page, please, you say:

“I understand from [the Post Office’s] external advisers that Appendix 6 [that’s the identification codes document] was not returned by any of those search terms (or, indeed, any other search terms that have been implemented). From information I have been provided with by [the Post Office’s] external advisers as part of the remediation process, I understand that this is because the document really is quite exceptional and does not contain any of the words that would normally be seen in a policy or procedural guidance.”

Is that the explanation that has been sort of settled and accepted between the Post Office and its external advisers, because the identification codes documents doesn’t contain words that you would expect to see in a policy or procedural guidance, we couldn’t reasonably expect to have found it?

Diane Wills: I think it’s one part of the explanation.

Mr Beer: What about the other part of the explanation?

Diane Wills: So I think that then takes you to the need to discuss with subject matter experts and then also in relation to the approach to family documents.

Mr Beer: So a discussion with the subject matter expert might have revealed, for example, “Well, hold on, we have these compliance standards that we had to achieve in the security team, and they were sent out regularly by email in a series of attachments in a zip file. Some of them concerned file completion, some of them concerned the need to insert an identification code. You need to look for the zip file which has got that suite of documents in it”.

That’s the kind of thing that might have been discovered if you bring people whose day job it was for decades to conduct investigations and prosecutions into the room, isn’t it?

Diane Wills: Yes. The reason I’m hesitating is because that document was on Relativity, so it had been harvested. I don’t know the circumstances which had led to that document being harvested, so I don’t know if it was the failure to discuss with subject matter experts which led to it particularly being identified.

Mr Beer: Well, to that extent, this explanation here misses the point, doesn’t it, because, as you’ve rightly said, Appendix 6 was part of a suite of policy and procedure documents.

Diane Wills: Yes.

Mr Beer: One part of the suite was responsive to a search term but nobody looked, it seems, at the other documents in the suite of which the responsive document was a part?

Diane Wills: Yes, but I was tying to answer the question in relation to search terms.

Mr Beer: But, overall, would you accept that the real lesson to be taken from this episode concerns the need to look at other documents within a suite of or a family of documents of which a responsive document is a part?

Diane Wills: Yes, and I understand that, you know, there was no hard and fast rule that families would never be looked at. It was always decisions were taken as to the circumstances in which it would be appropriate. I’d expect that to be looked at hard, and even harder now, as to the right approach.

Mr Beer: So you would expect what to have been looked at hard?

Diane Wills: In relation to whether or not the full suite of documents needed to be reviewed.

Mr Beer: We’re going to come to that in just a moment but just finishing off search terms, if we can lastly look at paragraph 114 of your witness statement, which is on page 36. You’re here summarising your position on where responsibility lies for the non-disclosure by reason of search terms. At paragraph 114, you say:

“I do not have the knowledge or technical expertise to express a view on whether they were suitable or whether anyone designing the searches, who did not already know that Appendix 6 existed and the nature of its content, reasonably could have selected additional search terms that would have returned that document.”

So you’re essentially making the same point that we saw earlier in your paragraph 64 but in a less direct way. Are you essentially asking a form of rhetorical question there, with a pregnant suggestion, that no one could reasonably have selected a search term to pick Appendix 6 up, without knowing the existence of the document beforehand?

Diane Wills: I’m saying I don’t know whether such search terms could have been devised to do that, but the information I’ve seen or the information I’ve been provided with is that there’s nothing within the face of that document that would immediately lend itself to being identified by the search terms that would have normally been used in such circumstances.

Mr Beer: Is that how the Post Office thinks that search terms work, that it’s all about the design of the search terms. If search terms are reasonably selected and settled upon, they will likely turn up the relevant documents?

Diane Wills: Yes, except that search terms is not the only device that’s used to try to identify the right documents.

Mr Beer: What if I suggest to you that search terms are merely part or the start of an exploration for relevant material in which search terms may lead a reviewer to a relevant document? The document itself needs to be read to see whether it is associated with other documents which may also be relevant but are non-responsive to the search terms?

Diane Wills: Yes, I think you’ve described it more eloquently than I had but I think it’s the same point that I just made: it’s not the start and finish.

Mr Beer: So it’s a train of enquiry –

Diane Wills: (The witness nodded)

Mr Beer: – starting with search terms but not ending with search terms?

Diane Wills: Well, that the train of enquiry starts with identifying the relevant custodians where the data may be held, et cetera, before the search terms can be applied.

Mr Beer: But, essentially, I think you’re agreeing with me that the use of search terms can only be part of a disclosure strategy. They will lead you on a train of enquiry and the train must be followed?

Diane Wills: Yes.

Mr Beer: Can we turn, then, to the Post Office’s approach to reviewing family documents, and can we turn to page 22 of your witness statement. Can we read together paragraphs 67 to 70. You say:

“I have been informed by HSF and [Peters & Peters] that, across the Inquiry’s disclosure requests, various approaches have been taken to reviewing family documents.

“Depending on the nature of the relevant disclosure request and what HSF or [Peters & Peters] considered to be reasonable in the circumstances, in some instances HSF or [Peters & Peters] reviewed whole families of documents … and assessed whether each (or all) should be produced to the Inquiry.

“However, in other cases, HSF or [Peters & Peters] only reviewed the documents that were returned by the search terms …

“[The Post Office] was not involved in the operational decisions about review approaches for family documents. These were taken under HSF’s and [Peters & Peters’] general authority to progress disclosure.”

Diane Wills: Yes.

Mr Beer: So, again, just to summarise all the threads together, different approaches were taken by your advisers to different requests, as to whether they reviewed a family of documents or not, or whether they just looked at the document that was a hit, was responsive to the search term?

Diane Wills: Yes.

Mr Beer: The choice was made by your advisers according to what was considered by them to be reasonable?

Diane Wills: Yes.

Mr Beer: The Post Office was not involved at all, such decisions were taken under a general authority given to the lawyers?

Diane Wills: Yes.

Mr Beer: So, until this whole issue blew up, neither you nor, to your knowledge, anyone else in the Post Office, knew what was going on in this regard?

Diane Wills: Correct.

Mr Beer: Is your understanding that this approach adopted by the lawyers was done on a Rule 9 by Rule 9 basis, ie “For this Rule 9, we are going to review families, but for this Rule 9, we’re not going to review families”, which is how your witness statement reads?

Diane Wills: I’m not sure I would see it as being done just at the level of the Rule 9. I think it would depend on the nature of the investigations in relation to each Rule 9. So you would start your investigations as we have just discussed and, depending on where that took you, might lead to approach, so rather than getting the Rule 9 at the start and saying, “We just won’t look at family documents”, I don’t think there was ever any question of that.

Mr Beer: So there might be different approaches to reviewing families within a Rule 9?

Diane Wills: Yes.

Mr Beer: So “For this bit, questions 1 and to 20, we will review families but for questions 21 to 40, we won’t”.

Diane Wills: I’m not sure it’s as black and white as that, even at that level either. I think it would depend on the nature of the investigations that were ongoing and the way responsive documents were being identified and, at that level, decisions would then be taken. But I’m sorry, I’m not familiar with the detail.

Mr Beer: Can we just look at paragraph 115 of your witness statement on page 36. Again, this is answering the “Who’s responsible” question and you’re dealing in this part of the witness statement with family documents. You say:

“As set out above in response to Request 1, HSF did not require or instruct its reviewers to review family documents (although reviewers had the functionality to review family documents and so could do so where they considered it would assist them). To the extent that documents were not identified and produced to the Inquiry because of that decision, primary responsibility logically sits with [Herbert Smith Freehills].”

This reads slightly differently, that your understanding is there was no general instruction to review family documents but there was a function available to a reviewer and the individual reviewer could decide to review the family or not. Is that your understanding of what went on?

Diane Wills: So I think the – my understanding is that the individual reviewer had the capability, something to do with the reviewing pane and how it might have been shown.

Mr Beer: So a panel on the screen?

Diane Wills: A panel on the screen. But there would have been a prior discussion as to whether or not, as a sort of a starting point, the family documents should be looked at for that particular aspect, which was presumably based on discussions internally on what was being seen and advice from more senior colleagues as to whether that was an appropriate course of action.

Mr Beer: So it goes a bit beyond what’s mentioned in paragraph 115 here, which reads as if it was up to the individual reviewer to decide?

Diane Wills: I think that’s probably unfair, yes. I think there was – there would have been discussions going on but, ultimately, the documents were there and could have been looked at if the course of enquiry had suggested to that individual reviewer that they should be looked at.

Mr Beer: To your knowledge, were there any standing instructions about when and in what circumstances family documents were or were not to be looked at by a reviewer?

Diane Wills: I’m not aware of any.

Mr Beer: Would you agree that such standing instructions would engender consistency across the disclosure exercise?

Diane Wills: Yes, provided they also allowed for discretion where that was needed in relation to a particular request.

Mr Beer: They would allow somebody looking back after the event to see the rationale recorded for when families were to be reviewed and when they were not?

Diane Wills: Which seems to me a different point as to – I mean, there’s a difference between a general guidance and then someone recording the rationale, and I’d see those as two distinct steps.

Mr Beer: Yes. Sticking with the guidance then, you’re right to pick me up on it, instructions to reviewers that say, “These are the benefits of looking at families of documents, you shouldn’t just think that because you’re looking at a hit, a responsive search term document, that’s the end of the exercise”.

Diane Wills: Yes.

Mr Beer: You should consider, by reading the document in detail to see whether it refers in its – the body of the document to other documents, you should check to see whether it’s an attachment to an email and go back to the parent email. You should see whether it is part of a file, a zip file, for example, and see whether any of the other documents are relevant to the Rule 9 that you’re considering. Was there anything of that nature?

Diane Wills: I’m not aware.

Mr Beer: Is there now?

Diane Wills: Not – again, I’m not aware of any.

Mr Beer: Can we go back to paragraph 68, please, which is on page 22. You say:

“Depending on the nature of the relevant disclosure request and what [Herbert Smith Freehills] or [Peters & Peters] considered to be reasonable … in some instances [they] reviewed whole families …”


Diane Wills: That’s the information I’ve been provided with, yes.

Mr Beer: So whether families were or were not looked at, was all down to what the lawyers considered reasonable in the circumstances?

Diane Wills: Yes.

Mr Beer: What informed the issue of reasonableness?

Diane Wills: I don’t know what they considered.

Mr Beer: Well, was it the number of documents that you might have to look at if you decided to have to look at the parent email, the costs of doing it, the time it might take?

Diane Wills: Yes, all of which are normal considerations in any disclosure exercise to consider the range of documents to be considered in the time available that’s going to produce the most relevant documents.

Mr Beer: But what were they told, to your knowledge?

Diane Wills: By Post Office?

Mr Beer: You’ve, as part of the remediation exercise, I think taken a look backwards to see what was going on. What was going on in relation to family documents? You’ve explained it in general terms here in paragraph 68 – it all depended on what the lawyers considered to be reasonable – I’m asking for some more detail on that, please?

Diane Wills: I’m sorry, I don’t have any more detail.

Mr Beer: So if we took Appendices 3 and 6 as examples, Appendix 3 was responsive to a search term, presumably because it had the word “policy” in it –

Diane Wills: Mm-hm.

Mr Beer: – and “Investigation” and “prosecution” in it? That appendix, Appendix 3, was part of a family of documents, in fact many families of documents –

Diane Wills: Yes.

Mr Beer: – across the archive. It was often sent, as I’ve said, as a zip file as part of a series of appendices. So despite that document being part of a zip file or within a suite of other policy documents and the whole set of appendices constituting the procedure which investigators were to apply, because a decision had been made not to look at families in this instance, a reviewer would simply not look at those other documents; is that right?

Diane Wills: That’s my understanding.

Mr Beer: I’ve got a hit, it’s got the word “policy” and “investigate” and “prosecute” in it, that’s the end of the matter. I don’t see where this document came from and whether it’s part of a – or what’s in the rest of the family; I just move on to the next document?

Diane Wills: I just don’t feel able to comment on that further, I’m afraid.

Mr Beer: Can we turn to paragraph 115 of your witness statement, please. You deal with – sorry, we’ve looked at 115.

In terms of remediation, you tell us, I think, that a decision has been now taken to review all family documents; is that right?

Diane Wills: That was done in relation to – as part of the remediation exercise to everything that had been disclosed up to now, yes.

Mr Beer: Why was the decision taken to review all family documents if previously it was thought that it was unreasonable to have to do so?

Diane Wills: Such was the level of concern that I think we just felt we couldn’t take the risk that something else might have been missed and so we wanted to go back and make absolutely certain as to whether there was anything else relevant.

Mr Beer: Can I turn to de-duplication, please, and go to pages 24 and 25 of your witness statement. If we can read 78 at the bottom. Just by way of explanation, at 78 you say:

“There are … 2 relevant levels at which de-duplication can be applied:

  1. family-level de-duplication – duplication is analysed as between complete families of documents, excluding duplicate families and ensuring only 1 copy of a family survives computer processing to be manually reviewed or produced …”

Then secondly at (b):

“item-level de-duplication – only 1 copy of a document survives computer processing to be manually reviewed or produced, even if it appears in different family contexts.”

Just stopping there, so that we understand it in a simple example, if I’ve got one email with five attachments to it and I’ve got another email, which is in exactly the same terms, with the same five attachments to it, family level de-duplication will de-duplicate that?

Diane Wills: Yes.

Mr Beer: If I have one email with five attachments to it and another email with seven attachments to it, one of which is the same attachment as one of the attachments to the first email, item-level de-duplication will de-duplicate the second family as well?

Diane Wills: If both emails were exactly the same, yes.

Mr Beer: Yes. So if both attachments were exactly the same?

Diane Wills: Yes.

Mr Beer: Thank you. You say:

“I now understand that item-level de-duplication is rarely used in eDisclosure because it can have significant unpredictable and potentially undesirable impacts on document review.”

Who told you this?

Diane Wills: I believe it came out through discussions with Herbert Smith Freehills.

Mr Beer: Why might item-level de-duplication have significant consequences and therefore is rarely used?

Diane Wills: Because it could result in family documents not being available for a reviewer to see, so that reviewing pane we spoke about earlier, they wouldn’t appear there.

Mr Beer: So it hides from the reviewer’s view, not only the single document, which is the duplicate of the document he or she is looking at, but it hides from the reviewer’s view the other documents within the family?

Diane Wills: That’s my understanding, yes.

Mr Beer: Why might it have unpredictable consequences?

Diane Wills: Well, it would depend on the nature of the document as to precisely what was lost and you wouldn’t know that in advance.

Mr Beer: Why might there be undesirable consequences of this type of item level de-duplication?

Diane Wills: Because it removes the ability of the reviewer to see the relevant documents.

Mr Beer: Is it your understanding that the approach that was, in fact, taken, the item-level de-duplication, on occasions, meant that a reviewer would not see the other documents in the family, but also that the other documents in the family were excluded from other keyword searches being undertaken as part of the disclosure exercise?

Diane Wills: Yes, I believe that’s correct.

Mr Beer: So this non-standard approach, which is rarely used, and which has a series of significant undesirable and unpredictable consequences, was used, but all without the Post Office’s knowledge?

Diane Wills: Yes.

Mr Beer: Aside from who, as between Herbert Smith Freehills and Peters & Peters on the one hand and KPMG on the other, was responsible for that decision, do you know why, in this Inquiry, which is itself investigating non-disclosure and indeed, in the very Rule 9 we’re looking at, was searching for documents about the Post Office’s policy of giving or withholding documents in investigations and proceedings, this non-standard, rarely used approach was in fact used?

Diane Wills: No.

Mr Beer: Presumably when it was discovered, it caused more than a minor ruffling of feathers?

Diane Wills: Yes.

Mr Beer: Do you now know who was responsible for it?

Diane Wills: No, it appears to be either a miscommunication by Herbert Smith Freehills or a misunderstanding by KPMG. I think both appear to have had different understandings of what was being instructed or what was being asked of them, and I haven’t, to date, been able to understand it beyond that.

Mr Beer: Can we look at paragraph 80 which is further down the page, please. You say:

“I understand that instructions to de-duplicate were given to KPMG by [Herbert Smith Freehills] and [Peters & Peters] and were implemented by KPMG. I understand from [Herbert Smith Freehills] and [Peters & Peters] that they did not intend item-level de-duplication to be applied in connection with the document searches associated with responding to Rule 9 requests 11 and 14 (or at all). My current understanding is that item-level de-duplication was applied as the consequence of either a miscommunication by [HSF/Peters & Peters] (who have told me they didn’t intend it to be applied) or a misunderstanding by KPMG (who have explained that they understood that their instructions were to apply item-level de-duplication).”

So the lawyers say they didn’t intend and didn’t instruct item-level de-duplication to be used in any Rule 9 searches, yes?

Diane Wills: I’m just pausing as to whether it’s in any. There may have been some in which it was appropriate, I don’t know, but my understanding is it wasn’t instructed in relation to these Rule 9s.

Mr Beer: It was the addition of the words “or at all” in the fifth line –

Diane Wills: Okay.

Mr Beer: – that led me to ask that question, because your witness statement speaks of, essentially, all Rule 9 requests, not just 11 and 14.

Diane Wills: Yes. In which case, that would have been my understanding. Yeah.

Mr Beer: So the lawyers say they didn’t intend item-level de-duplication to be used in any Rule 9 Request, and KPMG say they understood their instructions to be to apply item-level de-duplication?

Diane Wills: Yes, that’s what I’ve been told.

Mr Beer: Isn’t this kind of unattractive squabble between highly paid city advisers why it is essential for the client itself to be involved to a sufficient degree to ensure an understanding of what’s being done in its name?

Diane Wills: Yes, though whether Post Office being actively involved in discussions would have enabled us to understand that a misunderstanding had occurred, I don’t know.

Mr Beer: But by subcontracting the disclosure issue out, you run exactly the kind of risk that has played out in this case, don’t you? By “you”, I mean the Post Office.

Diane Wills: Yes.

Mr Beer: Can I turn, then, to remediation and, by “remediation”, I mean correcting past mistakes and ensuring that other, similar mistakes do not happen again.

In relation to the family issue, review of family documents issue, as we’ve established already, the remediation in relation to family documents is essentially complete because, as you’ve explained, a decision has now been taken to review all family documents.

Diane Wills: A decision was taken to review all the family documents that had previously been produced. So going forward, I think it will still be taken on a case-by-case basis.

Mr Beer: That’s what I was about to ask you. Is it in relation to all new Rule 9 requests that family documents will be reviewed, or is it in relation to past Rule 9s and, if past Rule 9s, which and why?

Diane Wills: So the decision was taken to remediate in relation to all previous ones out of an abundance of caution, because of the level of concern. In terms of as we move forward, there will be much closer analysis as to how those decisions are taken as to when to review family documents. But my understanding is that the way it could multiply the amount of documents that need to be reviewed, it still needs to be looked at on an individual, case-by-case basis, as to whether or not that’s the appropriate outcome.

Mr Beer: Again, as we sit here today, has any guidance been developed to tell the reviewers when to look at a family and when not to look at a family?

Diane Wills: I’m not aware of any specific guidance.

Mr Beer: So, in relation to Rule 9s that the Inquiry is presently serving, there doesn’t presently exist any guidance to reviewers about when they should look at a family of documents and when they shouldn’t?

Diane Wills: I’m not saying it doesn’t exist, I’m saying I’m not personally aware. My team are certainly more – much more actively involved in discussions in relation to current requests from the Inquiry. I’m sorry, I don’t know whether they may have seen any.

Mr Beer: In relation to the search terms issue, can you explain briefly what has been done in relation to remediation of that problem?

Diane Wills: So in relation to the specific issue that was identified, which I understand was in relation to the – I think the failure to shorten the word “guidance” to “guide”, that was done and the remediation of that is complete. There’s been a more broad exercise in terms of – I regard it more as quality assurance rather than it necessarily being a mistake, but to whether or not, on the basis of all the additional information that has been accrued up until now, different search terms should now be gone back and applied and that’s the extensive work which has been undertaken.

Mr Beer: Is that part of what you describe in your witness statement – we needn’t go there, it’s 108 and following – as part of the structural review or does it sit outside that?

Diane Wills: It sits outside that.

Mr Beer: Who is undertaking that work in relation to search terms?

Diane Wills: Herbert Smiths and Peters & Peters.

Mr Beer: Whilst I touch upon it, can you explain in summary terms what the structural review is, please?

Diane Wills: Sure, if you just give me a moment to refresh my mind.

Mr Beer: It’s 108 on page 34.

Diane Wills: Thank you, yes. I know I’ve made a note for myself but I can’t immediately find it. Thank you, yes. So it’s centred around the use of the electronic discovery reference model, which I have annexed to my statement, and it’s checking, to the best level of achievable, whether all relevant documents that make up disclosure – so it’s checking that to see what’s been collected already, what still needs to be collected, how it’s held on Relativity, whether there’s any potential to restructure the Relativity system to enable better search functions.

It’s looking at how we might increase technological options in Relativity, which might allow, for example, some computer assisted searches to be done and it’s also looking at all the steps in the process. So what’s done by whom and looking at how we might reduce risks and make achievable improvements.

Mr Beer: As part of that, you refer to the fact that the Public Inquiry Team is presently advertising for a disclosure specialist lawyer who would engage in the granularity of the disclosure processes?

Diane Wills: Yes.

Mr Beer: Does it follow that there has not been a person within the Post Office who has been engaged with the granularity of the disclosure processes?

Diane Wills: So the lawyers that are in the team have experience of either public inquiries or similar work but I don’t believe they have specific expertise in disclosure matters in the way that I think I need in the team.

Mr Beer: That disclosure specialist lawyer hasn’t been appointed yet; is that right?

Diane Wills: So in the – no, it hasn’t. So we haven’t appointed someone as yet. In the interim, what we have had is two senior lawyers from Burges Salmon and Fieldfisher who have worked effectively in-house as part of the team since June to help us provide that extra challenge function, and the idea is that the recruitment permanently will take the place of those lawyers.

Mr Beer: Is that new post, the disclosure specialist lawyer, as has been reported in the media, to be paid, in part, by reference to a bonus?

Diane Wills: Yes.

Mr Beer: What is the bonus metric?

Diane Wills: So Post Office, like many organisations, runs a bonus scheme to which its senior manager professionals and management are entitled to participate in, which has business-wide objectives, which is set for the whole organisation, including things like financial targets. The team is entitled to take part in that in the same way that other parts of Post Office are. There are – in the current scheme and in any future schemes, there are no metrics related directly to the Inquiry.

Mr Beer: So that lawyer and other lawyers, is this right, are not being paid bonuses that are related to their performance in Inquiry work?

Diane Wills: So I think we have to look at it at two levels. So, first of all, there’s a decision which is taken by the remuneration committee as to whether or not the corporate-wide objectives have been met and that triggers the entitlement in principle to payment of a bonus. At a team level, as you’d expect, there are personal objectives for each member of the team, which are focused on, in the Inquiry Team, support for the Inquiry. Their performance is then looked at in the round at the end of the year, looking at what they’ve delivered and in what context, with what standards of behaviour, et cetera. Higher levels of performance could lead to the achievement of a higher bonus award. But the decision has to be taken in the first place that it’s payable at all.

Mr Beer: Lastly, and in less than five minutes, can we look at the hard-copy document review. This is a discrete issue in the sense that it’s not related to the three disclosure issues identified by the Chair in his previous decisions. That is the hard copy document review being undertaken by the Post Office and its advisers. Can you explain to us in summary form what the hard-copy document review is?

Diane Wills: So there was, I think after concerns had been raised previously in the way that – some of what Fintan has described about the slightly haphazard way that data had been stored, there was a review undertaken of where all data, hard-copy data, was stored. That was then audited by an external firm, which reviewed all the sites to see what was there. That’s led to the discovery of some additional hard-copy material which has been produced to the Inquiry. It also led to the discovery of some additional electronic material such as back-up tapes, where some of the work is still ongoing.

Mr Beer: Can we look, please, at POL00124517. This is a letter from Herbert Smith Freehills to the Inquiry of 22 August that deals with the hard copy document review and, under the heading “Back-up tapes”, if we scroll down, please, the author says:

“As set out [in a previous document] in October/November 2002, [the Post Office] identified 42 …”

Just stopping there, I think that’s subsequently corrected to 37.

Diane Wills: Correct, yes.

Mr Beer: “… [37] back-up tapes with unknown contents at its Chesterfield site.”

So this is telling us that nearly a year ago now, 37 back-up tapes were found in Chesterfield.

Diane Wills: Correct.

Mr Beer: If we go over the page, please, at paragraph 7:

“… in December … and again in February [the Post Office] instructed KPMG to prepare indices of data stored on the tapes …”

In paragraph 8 KPMG prepared a total of 91 indices.

In paragraph 9:

“… following … investigation of the files, POL decided to process the files remembered to in [some of the] indices … onto a separate, dedicated, Relativity workspace for further examination.”

Is that what you referred to earlier, separating something out for a smaller scale review?

Diane Wills: Yes.

Mr Beer: Paragraph 10:

“Processing the data onto the Relativity workplace has taken much longer than anticipated.”

Paragraph 11:

“De-duplication, at the ‘parent’ document level, has been applied at the processing stage across the 19 datasets … There is very significant duplication as between the datasets/sessions …”

A reduction from 19 million documents to 4.8 million documents. Over the page, please, at 13:

POL recognises the importance of continuing to assess the likelihood of new Inquiry relevant documents being backed up on the 21 datasets/sessions. [Your] current plan is as follows …”

That’s set out in the remainder of paragraph 13.

Then there’s an update, please. Can we look at POL00126338. This is a letter that came last Thursday under the heading “Back-up tapes”. Origin of the back-up tapes, as we know, they were found in Chesterfield.

If we go to page 3 of the letter, please. At the top of the page – I should say on the previous page there’s a summary of some of the steps that were set out in the previous letter.

Diane Wills: Yes.

Mr Beer: “Whilst POL is not yet able to confirm with certainty how long these steps will take, POL currently estimates it may take between one to two months before POL has identified a potential review pool. This will be subject to required machine time which will be dependent on the eventual data sizes which need to be migrated and de-duplicated.”

Then search terms will be applied. It will take approximately two days to run the search terms and KPMG say it will take approximately two weeks for the responsive documents to be migrated to the Inquiry platform.


“The migrated documents will then need to be de-duplicated.”

That’s essentially de-duplicated against what you’ve already disclosed to the Inquiry.

Diane Wills: Yes.

Mr Beer: 14:

“… POL will then assess the data that is left … and consider … targeted searches …”


“… given the large amount of data from these 21 datasets, further consideration will have to be made to ensure any review is proportionate … [The Post Office] will keep the Inquiry informed …”

Diane Wills: Correct.

Mr Beer: So essentially, it’s this: it’s going to be another one to two months before the data that was discovered last October/November, is even assembled into a pool that can be searched?

Diane Wills: That’s correct but my understanding is that the steps that have been taken have been essential in order to get the data down to even any kind of manageable size so that that review could take place.

Mr Beer: Has there been any assessment as to the likelihood that the data that has not yet been reviewed is of relevance to the three phases of the Inquiry that have already been completed and Phase 4, that we are part way through at the moment?

Diane Wills: So, as a starting point, my understanding is that, by their very nature, as back-up tapes, the expectation is that they won’t contain new information. But I don’t understand us to be at the stage of being able to work out what may or may not be relevant.

Mr Beer: Is that because there isn’t an understanding of what they are a back-up of?

Diane Wills: Yes, correct.

Mr Beer: Finally, on the remediation exercise, has the Post Office got a target date which it can now inform the Inquiry of completion?

Diane Wills: So my understanding is the vast majority of the work has been done. There are some further target dates over the course of September, so 14 September, some more on 29 September, but then an overall expectation that any remaining work will have been achieved in good time before hearing dates are set for the criminal case studies work.

Mr Beer: Mrs Wills, thank you very much.

The Witness: Thank you.

Mr Beer: Sir, apologies for going slightly into the lunch break. I wonder if you have any questions or if not, might we break until 2.05.

Sir Wyn Williams: I don’t have any questions so we will break until 2.05.

Mrs Wills, thank you very much for your detailed statement and the detailed answers to the many questions put to you.

The Witness: Thank you.

Mr Beer: Thank you very much.

(1.05 pm)

(The Short Adjournment)

(2.12 pm)

Mr Blake: Good afternoon sir, can you see and hear me?

Sir Wyn Williams: Yes, I can thank you very much.

Mr Blake: Sorry for the delay, sir. We have been having a little difficulty with the transcript. It is, I believe, now fixed but, if there is a difficulty with the transcript during this afternoon’s evidence, we will just continue and then a transcript will be available at the end of the day.

Sir Wyn Williams: Yes, that’s fine, Mr Blake.

Mr Blake: Thank you. Can I call Mr Tombleson, please.

Paul Tombleson


Questioned by Mr Blake

Mr Blake: Thank you, can you give your full name, please.

Paul Tombleson: Paul John Tombleson.

Mr Blake: You should have in front of you a witness statement, it is dated 22 August 2023; is that correct?

Paul Tombleson: That’s correct.

Mr Blake: Can I ask you to look at page 14 of that statement. Is that your signature at the bottom there?

Paul Tombleson: Yes, it is.

Mr Blake: Can you confirm that statement is true to the best of your knowledge and belief?

Paul Tombleson: Yes, I can confirm that.

Mr Blake: Thank you very much, Mr Tombleson. That statement which, for the purpose of the transcript is WITN09960100 will be published by the Inquiry and I’m just going to build on what’s already in that statement, rather than ask you to set it all out again.

By way of a brief career history you are a partner in the forensic practice at KPMG; is that correct?

Paul Tombleson: Yes, that’s correct.

Mr Blake: You’ve been with KPMG for over 33 years; is that right?

Paul Tombleson: Since 1990, yes.

Mr Blake: You’ve been leading in eDisclosure since 2005?

Paul Tombleson: That’s correct.

Mr Blake: In your statement, you said you were engaged by the Post Office from January 2021, so that’s during the non-statutory phase of the Inquiry; is that right?

Paul Tombleson: That’s correct, yes.

Mr Blake: You’re described as being engaged by the Post Office. Who was or is your client: is it the Post Office, is it Herbert Smith Freehills or somebody else?

Paul Tombleson: From a contractual perspective, it’s the Post Office.

Mr Blake: From a day-to-day relationship perspective?

Paul Tombleson: From a day-to-day perspective, we took instructions from the external solicitors in relation to the various requests and responding to those.

Mr Blake: Do you have standing instructions with regards to disclosure, provided by either the Post Office or Herbert Smiths or is disclosure addressed on a more ad hoc basis?

Paul Tombleson: We discuss with the external solicitors that we’re working with the various steps we take throughout the disclosure process, the eDiscovery process, starting from the collection of data through to how it’s processed, how it’s searched, how it’s presented to them to review and ultimately how it is produced. I think it would be fair to say we don’t have a single document currently that we use as the basis for that. We use internal standard procedures within KPMG and, for every request that comes in, we have a clear audit trail of discussions and confirmations between us.

Mr Blake: When you say every request that comes in, we know that the Inquiry issues Rule 9 Requests or now it issues section 21 notices, are those discussed on an individual basis as to how they’re approached, are they discussed on a question-by-question basis or is there some broader guidance in terms of, for example, families, duplicates, et cetera?

Paul Tombleson: I’d say they’re discussed on a request-by-request basis and sometimes on a question-by-question basis within those requests, if there are a lot of different questions within the requests.

Mr Blake: I think it’s the evidence we’ve already heard today that there is no standard approach to, for example, what to do about family documents, what to do about duplicate documents. Those are on a request-by-request basis?

Paul Tombleson: Certainly the de-duplication, that is an eDisclosure process that we discuss on a request-by-request basis. I can’t really comment on the family review side of things.

Mr Blake: Why is that?

Paul Tombleson: Because we’re not doing the review. I can comment on how we present the documents for review, which would be that we would present only the responsive documents for review but I think your question was a bit broader than that, whether we’ve got guidance for the family document review and we don’t.

Mr Blake: Do you have sight of, for example, Herbert Smith Freehills’ own internal guidance as to what to do with particular documents?

Paul Tombleson: No, I don’t.

Mr Blake: We’ve heard, before the lunch break, about cost pressures. Were you aware of any cost pressures?

Paul Tombleson: Yes, one of my roles as the partner responsible for KPMG’s work is to have a regular dialogue with the Post Office around things that could be done to manage costs without compromising the quality of the service we provide.

Mr Blake: Mrs Wills, for example, talked about resourcing concerns that have been raised with KPMG. Have you ever been given the impression that there is insufficient funding to carry out a comprehensive disclosure exercise?

Paul Tombleson: No, never been given that impression.

Mr Blake: We heard about changes between January and May 2023, some work being carried out in India; can you please tell us a little bit about that?

Paul Tombleson: Yes, so one of the – the conversations started around cost rather than resourcing. One of the advantages of a firm like ours is that we have a dedicated team in India, an offshore team. These are forensic technology eDisclosure professionals who work, for all intents and purposes, as part of our KPMG UK team, they’re a dedicated team that works with us and, in certain circumstances, we’re able to bring them on to undertake tasks in the same way as we would with some of our UK resources.

So the conversations around that started – may have been earlier this year, and the Post Office gave us security clearance to bring those individuals on in around March and April time. So they undertake some of the activity around searching, moving data between workspaces but always with a level of quality control that’s provided by a member of our senior onshore team.

Mr Blake: Are you aware of any document review taking place outside of this jurisdiction?

Paul Tombleson: No, I’m not.

Mr Blake: We’ve heard that you were involved in the non-statutory phase and then in the statutory phase. Mr Canavan’s evidence this morning suggested there was a lack of understanding at the Post Office with regards to what a statutory Inquiry might involve. Were you aware of that at all?

Paul Tombleson: No, I wasn’t, no.

Mr Blake: Do you feel you were sufficiently resourced throughout the lifetime of this Inquiry?

Paul Tombleson: Mean I would say the level of activity has certainly picked up in the last few months and Mrs Wills referred to a conversation we had where I think we did start to increase the size of our team at that point in time because there was numerous requests. Just by indication, we – our team was about 15 strong in May and is close to 30 strong at the moment but that’s, in large part, to also support the work on the remediation.

Mr Blake: So it’s doubled since May. If we look back to the summer of 2021, how many people made up your team?

Paul Tombleson: Probably six. Six or seven.

Mr Blake: Over what period did it increase from six to double that?

Paul Tombleson: Well, the workspace for the Inquiry was set up in October 2021 and I would have thought November/December ‘21 was when it really started to increase in size.

Mr Blake: I want to ask you about keyword searches. You’ve explained that your instructions came from Herbert Smith Freehills and not from the Post Office. As someone with significant experience in eDiscovery matters, do you think it’s a good idea for law firms to closely liaise with their clients in respect of identifying search criteria?

Paul Tombleson: I don’t know how to answer that question, really. I mean, in terms of our role, our role was to receive the search terms from Herbert Smiths as the RLR. I wasn’t aware of the process before we received them that those search terms had gone through, whether there had been a consultation process with the Post Office or not.

Mr Blake: You may not have been aware in this particular case but you have been involved in a number of significant pieces of litigation, public inquiries, perhaps. Are you aware from other experience that you have, of there being visibly closer liaison between the law firm and the client than there is perhaps in this particular case?

Paul Tombleson: I think it would only be fair to say I’ve seen it happen both ways. I’ve seen it with external solicitors taking the primary role or more consultation with the client. It’s difficult to give a definitive answer to that, I’m afraid.

Mr Blake: In your view, which has worked better?

Paul Tombleson: I think it really depends on the subject matter of the case and where the knowledge and experience in order to structure the search terms resides.

Mr Blake: Given your experience in this particular case, do you think that there was insufficient liaison with the lay client, from what you’ve seen?

Paul Tombleson: As I said before, I haven’t seen, but my answer to that would be, given the subject matter, I think there should have been liaison but I don’t know what liaison there had been.

Mr Blake: Let’s take the prosecution ID codes document as an example.

Paul Tombleson: Yeah.

Mr Blake: Do you see it as important to liaise with a client in the kind of cases that we’ve seen there, where the request is for a policy, historic policies, that may not be searchable by way of, for example, a keyword for “policy” because they may have used, as Mr Beer highlighted earlier, a different word, such as a “guide”? Do you see it as important in those kinds of circumstances for there to be close liaison with the client?

Paul Tombleson: That particular request, I didn’t see the wording of the request until relatively recently. I saw the search criteria that were constructed and the search terms that were constructed but I didn’t see the underlying wording from the Rule 9 Request.

So I think I am answering your question by saying I don’t know whether the construction of the search term was sufficient to find what the Inquiry was looking for with that request.

Mr Blake: With your now large team of individuals working for KPMG on this project, is there no one who applies their mind to the wording of a Rule 9 to the search terms that are applied or decided by the law firm and whether those are appropriate or not?

Paul Tombleson: So our role is not to develop the search criteria and the search terms themselves. Our role is to help construct the syntax of those terms, so they’re as precise as possible and, in the example you showed a little while ago with truncated – the use of a wild card character and a truncated word, that’s the sort of advice that my team would give, rather than the – does it address the question in the underlying Rule 9 Request which, as I said, we don’t see.

Mr Blake: Their role may not be to give that advice, but surely people who work in your team might have a view on whether keywords are appropriate in particular circumstances.

Paul Tombleson: Again, in this case, because we haven’t seen the underlying Rule 9 Request, I don’t think we can make a judgment on that.

Mr Blake: Have there been circumstances in this Inquiry where your team at KPMG have seen a request or have – are aware of the contents of a request, have seen the proposed search terms and have had a view as to whether those search terms are or are not appropriate?

Paul Tombleson: Not appropriate. Whether they are generating too many responsive documents or a high number of responsive documents, that’s the sort of analysis that we’re doing, which of the search terms is generating the most hits, and then a dialogue with the external solicitors and if they want to revise those terms in any way.

Mr Blake: You may not express a view to Herbert Smith Freehills, but are you aware of anybody within your team ever having a view as to whether search terms are effective or appropriate?

Paul Tombleson: No, I’m not aware of that.

Mr Blake: I want to ask about family documents. At paragraph 19 of your witness statement you say that in the vast majority of cases the instructions were to provide only responsive documents and not their families. Depending on the request – and let’s take the ID codes case as an example – can you see the benefit of reviewing family documents?

Paul Tombleson: Clearly, with hindsight, yes, in that particular case. The balance is always one of a number of documents to review within a very limited amount of time and it’s usually well recognised that documents that are responsive to search terms tend to have a higher relevance rate than those which are not.

I’m not saying – that doesn’t mean you shouldn’t review family items but what I’m saying is that there is a balance and decision that needs to be taken about where to prioritise the review effort.

Mr Blake: You’re sitting there with your 33 years of experience, significant experience in public inquiry work or high-level litigation. If you were told that the request is for historic prosecutions policies and investigations policies, dating back over a ten-year or more period, what decision would you have been – would you personally have made in respect of the reviewing of family documents?

Paul Tombleson: I’m not a lawyer and I’m not conducting the RLR role in this Inquiry. I can’t answer that without just purely speculating.

Mr Blake: You’re not being asked to answer that as a lawyer, but you’re being asked to answer that as someone who knows about data, about what documents might or might not be responsive to particular hits, the levels, numbers of documents that you might receive.

Paul Tombleson: Yeah.

Mr Blake: In those circumstances, if you’re being asked for, for example, policy documents, which may have annexes, for example –

Paul Tombleson: Yeah.

Mr Blake: – and you were being asked to give advice, not in a legal context but just being asked whether it would be helpful, more helpful, less helpful, what would your position have been in respect of family documents?

Paul Tombleson: I think I would have started with a set of search terms, I would have commenced the review based on documents that are responsive to those search terms and, if, through that review, other things appeared relevant in terms of words which weren’t included in the search terms that we’d applied upfront, then considered going back and rerunning those terms also across the dataset.

Mr Blake: So is it fair to say that your approach would be to review the documents, understand them, and perhaps look further, depending on what you have received?

Paul Tombleson: Potentially.

Mr Blake: If families had been reviewed in this particular case, what would have happened in respect of that ID codes document?

Paul Tombleson: That would have been identified in April 2022.

Mr Blake: I want to ask you about de-duplication. Mrs Wills has said that item-level de-duplication is rarely used in eDisclosure because it can have significant unpredictable and potentially undesirable impact on document review; do you agree with that?

Paul Tombleson: I agree with the first part of the document that it’s uncommon in eDisclosure. The set up of the data and the structure of the workspaces in this Inquiry is uncommon in so many ways. Typically, you would have your de-duplication done at the processing stage, right at the beginning, by a single vendor. In this particular case, data has arrived at various points from various different matters, and it’s been necessary to consolidate that all in one place and then apply de-duplication prior to review, so at a stage you wouldn’t ordinarily do de-duplication.

So a more nuanced solution has been necessary. But I would still item-level de-duplication is uncommon because it’s a workflow that is appropriate for a review of responsive documents.

Mr Blake: The problem that you’ve identified in this particular case, which you say required a more nuanced solution, does that go back to the evidence we heard from Mr Canavan about the Post Office’s repositories and historic data storage and the discovery, for example, of further repositories?

Paul Tombleson: Not specifically. It’s a more general point that the data does not reside in one single database. It resides in four very large databases, each with tens of millions of documents in them and so the disclosure process, the eDisclosure process, requires us to run the same searches in three or four different places, then migrate that data into a single location, and then de-duplicate in that location – if we’re asked to, I should say. De-duplication only happened when we were instructed to do so.

Mr Blake: But you’ve said it’s rarely used and it occurred because, in this particular case, it required a more nuanced solution. Presumably, that is quite a significant step and significant decision to make then, a departure from the usual position; do you agree with that?

Paul Tombleson: Well, if the decision involved the discussion and the clarification of the requirements, involved the senior manager and the manager who were the day-to-day leads on our work.

Mr Blake: So it required managerial approval on the KPMG side of the work; is that correct?

Paul Tombleson: Involved managers and senior managers on our team understanding the requirements and making sure we were clear on the requirements before we implemented a solution, yes.

Mr Blake: How about on the Post Office or Herbert Smith Freehills side of the fence?

Paul Tombleson: So we – my team was dealing with senior associates on the Herbert Smiths side and not dealing with the Post Office in relation to this matter.

Mr Blake: So am I right to understand that this rarely used solution, which was a nuanced solution to a particular problem, was, on the Post Office’s side, dealt with only by senior associates at Herbert Smith Freehills liaising on your side with quite senior management?

Paul Tombleson: Correct.

Mr Blake: Can you see a problem in that?

Paul Tombleson: The team that we have working from – I can only comment from the KPMG side, but I’ve complete confidence in the senior manager and the manager on our side and subsequent senior members of my team who have been working on this particular workflow.

Mr Blake: But for this particular solution their instructions came from people who are relatively junior; do you agree with that?

Paul Tombleson: I don’t know what senior day-to-day – our senior associate within a law firm can cover, you know, a wide range of experience, many years post-qualified as well. My experience of working with some of these people was that they, you know, they were experienced and knowledgeable lawyers who’d worked in the eDisclosure space before.

Mr Blake: In your view, was this a careful decision that was carefully recorded, for example?

Paul Tombleson: There’s an audit trail of the conversations that happened and confirmation between us, as to what the workflow would look like in order to execute on this de-duplication strategy, yes.

Mr Blake: Can we look at page 7 of your witness statement. There’s a table on page 7. It’s halfway down the page. If we look at that table, can you talk us through the problems that can occur, using the ID codes as an example, in item-level de-duplication in this particular case?

Paul Tombleson: Yes. So this is a table which shows five families of documents. In total there are 19 documents within this set of data. The emails represent the parent documents, the attachments represent the child documents to those families. The way that family-level de-duplication works – sorry, before I say that, I should point out that you can’t see it in this image here but Attachment 1, in this particular example, is the document which is responsive to the search terms and has been highlighted red –

Mr Blake: So that is the policy document, I think we call it, is it Annex 3 or –

Paul Tombleson: Correct, so that’s the equivalent to Appendix 3.

Mr Blake: Appendix 3.

Paul Tombleson: Under family-level de-duplication, one would look at the families that the responsive documents were in and de-duplicate any that were identical. In this particular case, Family 4, and Family 5 are identical and, therefore, one of those two families would be de-duplicated and one would remain in the review set.

Mr Blake: Pausing there, if we had family-level de-duplication, the only document that would be removed from view would be Family 5 because they are identical to Family 4?

Paul Tombleson: Yes, I mean, there’s a way in which decisions are made between whether it’s 4 or 5, but broadly that’s correct. There would be 14 documents left in the dataset after family-level de-duplication.

Mr Blake: Can you talk us through item-level de-duplication?

Paul Tombleson: So item level de-duplication, rather than looking down the vertical, looks across the horizontal, and it says there are five identical responsive documents, which is Attachment 1, and it de-duplicates that so only one version of an attachment is presented to the reviewers and, once again, there is a decision that needs to be made about which one of those four families – or, sorry, five families – is the master and which one is the duplicates.

Mr Blake: Am I right to say, then, that if you were carrying out item-level de-duplication on this particular table, you wouldn’t get Attachment 2, Attachment 3, Attachment 4 and you wouldn’t get nearly every document in that table?

Paul Tombleson: Yes, so the example I’ve given is where Family 1 has been selected as the master and that means that you wouldn’t see the attachments that you’ve just named.

Mr Blake: So a decision to carry out item-level de-duplication, we see the significance of such a decision in that particular table; do you agree with that?

Paul Tombleson: That’s correct.

Mr Blake: That is perhaps why you have carefully recorded the decision that was made in that respect?

Paul Tombleson: That’s correct.

Mr Blake: Thank you. Can we have look at paragraph 80 of Mrs Wills’ statement, that’s WITN09940200. It’s page 25 of that statement. Thank you, if we scroll down, thank you. So Mrs Wills’ evidence is, she says as follows:

“I understand that instructions to de-duplicate were given to KPMG by [Herbert Smith Freehills] and [Peters & Peters] and were implemented by KPMG. I understand from HSF and P&P that they did not intend item-level de-duplication to be applied in connection with the document searches associated with responding to Rule 9 requests 11 and 14 …”

Those are the requests for the prosecution policies, investigations policies:

“… (or at all). My current understanding is that item-level de-duplication was applied as the consequence of each a miscommunication by [Herbert Smith Freehills/Peters & Peters] (who have told me that they did not intend it to be applied) or a misunderstanding by KPMG (who have explained that they understood that their instructions were to apply item-level de-duplication).”

Now, if it was such a significant decision, a nuanced solution to a particular problem, one that was carefully recorded, how might it be that the answer to that is not straightforward?

Paul Tombleson: I think because – I don’t think my team or I misunderstood what we were being asked to do. And if I may – maybe I’ll refer to my table again in a minute but, before I do that, we were asked to provide statistics on the number of hits that a search term had identified, in other words how many responsive documents were there. We weren’t typically being asked to provide statistics on the number of hits and their associated families. The conversations that would happen about de-duplication would then start with, “This number of hits seems too high”, and the first set of conversations would be around are there things around the search terms that need refining, and the second set of conversations would be about de-duplicating the responsive documents, de-duplicating the hits, so that the external solicitors only see one version of a document.

And, as you can see from the worked example here, the only way that works when you’re doing a review of only responsive documents is at an item level, otherwise you leave lots of versions of the same document in the dataset which need to get reviewed time and again.

Mr Blake: You’ve said that the decision was recorded, what does that record say, then?

Paul Tombleson: The decision – recorded in the communications and the conversations between our teams, where the requirements are set out, what they would like, which is a reduction in the number of hits by only giving us unique documents, one version of a document for review, and our team clarifying whether they would like us to de-duplicate on the basis of an MD5# algorithm just the responsive documents, that being confirmed, and then the statistics then showing that in a series of tables.

Mr Blake: So is your evidence that KPMG asked Herbert Smith Freehills whether they wanted item-level de-duplication and the answer that came back was “Yes”?

Paul Tombleson: That isn’t – no, that isn’t my – my statement is that – that expression, “item-level de-duplication” was never really used until March/April time this year. What we were talking about was responsive document de-duplication, which is the same thing.

Mr Blake: So you may not have used the words that I’ve used, but you asked somebody at Herbert Smith Freehills, presumably you know who it is, presumably – based on your previous earlier evidence – it was a senior associate at Herbert Smith Freehills, for the significant decision, “Do you want the responsive documents to be de-duplicated?” and the answer that came back was “Yes”?

Paul Tombleson: That’s correct and it wasn’t one individual. We dealt with a number of senior associates and associates. Every single request and question was dealt with separately. There was no standard approach to de-duplication.

Mr Blake: So that was a question that you expected some reasonable consideration to have been given to.

Paul Tombleson: Yes.

Mr Blake: Was the question based on statistics? So would you, for example, say, “If we don’t de-duplicate we’ll have to review this number of documents, if we do, we’ll have to review this number of documents”, and the option was given to them as to how many documents they wish to consider?

Paul Tombleson: That’s correct. Our role is to provide the statistics pre-de-duplication and post-de-duplication.

Mr Blake: Having considered Mrs Wills’ evidence on this point, do you understand why it may be suggested that there was a miscommunication rather than the simple answer that you have given?

Paul Tombleson: Yes, I do understand that, yes.

Mr Blake: You understand why it may be put as a miscommunication?

Paul Tombleson: So I understand that we were very clear in what we were doing, based on the instructions we were given, the consequence of that is related to the family items of duplicates of the documents that were being reviewed. I don’t know what the intention of any of the lawyers was but, if a review of family items of all versions of documents was necessary, then there would be consequences from this, clearly, as we’ve seen. But I didn’t see that documented in that level of detail at that time.

Mr Blake: Do you see it as a problem that KPMG doesn’t apply its mind at all to the problem and only provides statistics, an A or a B option, for example?

Paul Tombleson: I think you still apply in your mind in delivering some of the technology solutions that we are. I just felt like we have different roles, and our role is, in this particular Inquiry, not to interpret the wording of the request and convert that into the wording that needs to be then searched across the database. Our role is the more technical side of establishing which work spaces is the syntax correct, and making sure from the quality control perspective we’re getting accurate results.

Mr Blake: Do you think that KPMG should be, for example, advising on the pros and cons of different approaches? So the con in this case being – or the pro being, yes, you exclude a large number of documents, the con being you might actually need to read some of those documents?

Paul Tombleson: I mean, I don’t think we were asked for our view on that. Again, with hindsight, if we went back to March last year, would I have encouraged the team to have a different conversation about the full impact of both pros and cons? Then, yes, probably I would. But, you know, I strongly believe, looking at the wording of the request that was made, that the team executed as they were asked to.

Mr Blake: In other inquiries or other significant litigation that you’re involved in, do those conversations happen from the KPMG side? So do you advise clients as to the pros and cons of the different courses of action?

Paul Tombleson: In some respects we do. With de-duplication, which I think is the topic we’re talking about, you would almost always be involved at the outset, which means that you could apply de-duplication during the processing phase, which has not been possible here. So we are in a – we’re in a unique situation with the dataset we have here.

Mr Blake: Given the uniqueness of this particular case, do you think it would have been better for KPMG to have advised on the pros and cons of that particular course of action?

Paul Tombleson: I think the clarification questions that we asked were very clear and, yet again, I’m comfortable that what we were asked to do, we delivered on. Should we – again, with hindsight, would I have liked to have highlighted some other implications or one major implication of using this approach? Yes, I would.

Mr Blake: When you say the clarification questions, can you give us some examples of the kinds of clarification questions that were posed?

Paul Tombleson: Yes. So some searches would have been run. We would have provided the results back to the external solicitors. The external solicitors would have said “These numbers still look slightly too high”, and then there would have been a conversation, first about whether or not the search terms were amended and, secondly, about de-duplication.

When the conversation about de-duplication happened, the clarification would be around what would you like to be duplicated against – de-duplicated against what? And in this particular case, because you had data sitting in different cases, there was two types of de-duplication of responsive items, one within a dataset itself and then subsequently when you move the data from various datasets to another place, a second set of de-duplication in that centralised location. But those conversations were always about de-duplication of responsive documents.

Mr Blake: I’d like to get a little bit of clarity in respect of something we’ve heard this morning, and that was about the effect that de-duplication might have on further searches and further requests?

Paul Tombleson: Yeah.

Mr Blake: It seemed to be suggested that it affects the body of available documents for other searches, whether it be in respect of the particular Rule 9 Request, let’s say the de-duplication is carry out in respect of question 11 but actually we’ve got a question 12 that those documents might be responsive to, or perhaps, in the future, a further Rule 9 Request comes in and the excluded document might be responsive to that particular request but has been excluded as a duplicate; can you tell us about that? Does that actually happen?

Paul Tombleson: No, it doesn’t. So the de-duplication happens only on a request or a question within a request basis. It applies for that question within a request and then no longer exists, effectively, when the next question or the next search is applied.

Mr Blake: Thank you. I want to move on to remediation. Sorry, just before I do, though, in terms of the numbers, you’ve said that often the response from Herbert Smith Freehills would be to go for a smaller number, to go for the one that has the de-duplication applied, for example.

Paul Tombleson: Yeah.

Mr Blake: In this particular Inquiry, have you experienced a move towards reducing the number of documents disclosed, as opposed to gathering the largest number or a larger number?

Paul Tombleson: Do you mean disclosed or –

Mr Blake: Yes. As in are there pressures to disclose smaller numbers rather than larger numbers?

Paul Tombleson: No, not at all. I think the solicitors are conscious of not overwhelming the Inquiry with irrelevant data. That’s the only reason they would be lower. But absolutely not how you’ve presented it.

Mr Blake: On remediation, you’ve obviously looked at the problems that have occurred in this particular case. What conclusions have you drawn, as KPMG, as to the failings within the Post Office or within Herbert Smith Freehills or somewhere else, in respect of disclosure which ultimately led to the issues that we are considering and have been considering?

Paul Tombleson: As I set out in one of the paragraphs in my witness statement, it’s the search terms and the review of family documents which is ultimately the reason why Appendix 6 didn’t get picked up back in April 2022. However, I clearly recognised that the form of de-duplication is also important and, if a review is not based on responsive documents only, then it has shortcomings.

Mr Blake: Have you noticed any change in respect of the involvement of the Post Office in underlying decision making?

Paul Tombleson: Well, absolutely, with my interactions with them, I have daily calls related to the remediation and at least weekly or biweekly calls related to the ongoing non-remediation based activity.

Mr Blake: In respect of, for example, search terms and future requests, have you seen any change in the approach from the Post Office?

Paul Tombleson: Well, I don’t have interaction – I don’t have visibility of the interaction between HSF and the Post Office, but I have been on calls regularly where it’s been mentioned that those have been shared for sign-off.

Mr Blake: Do you have confidence that the issues that we have seen to date will not happen again and, if so, why?

Paul Tombleson: De-duplication, absolutely. We are only doing family-level de-duplication now and we won’t be going back to item-level de-duplication, unless there’s a particular reason why that’s appropriate. I believe the review of family items is ongoing and the workflow has changed accordingly or the review workflow has changed accordingly. Search terms I cannot give you a guarantee on that, because the problem with search terms is that they are not always precise and it’s difficult to know what you’re looking for until you find it sometimes. But I know there’s a lot of work being done to reflect on the terms that have been used for previous requests and whether they appeared appropriate and fulsome enough.

Mr Blake: Thank you. I don’t have any further questions.

Sir, do you have any questions?

Sir Wyn Williams: No, I don’t, thank you very much. Thank you for your witness statement and for coming to give evidence.

The Witness: Thank you, sir.

Mr Blake: Thank you very much, sir. Can we take a break for 15 minutes now, so to return at 3.10, please.

Sir Wyn Williams: Yes, certainly.

Mr Blake: Thank you very much.

(2.55 pm)

(A short break)

(3.10 pm)

Mr Beer: Good afternoon, sir, can you see and hear me?

Sir Wyn Williams: Yes, I can thank you.

Mr Beer: May I call Gregg Rowan.

Sir Wyn Williams: Yes.

Gregg Rowan


Questioned by Mr Beer

Mr Beer: Mr Rowan, as you know my name is Jason Beer and I ask questions on behalf of the Inquiry. Can you give is your full name please?

Gregg Rowan: Gregg Nicholas Rowan.

Mr Beer: Thank you for coming to the Inquiry today to help us in our work and for previously providing a witness statement and a long annex. You should have in front of you a copy of that witness statement, dated 23 August 2023. If you look at page 63, you should see your signature?

Gregg Rowan: I do.

Mr Beer: Are the contents of that statement true to the best of your knowledge and belief?

Gregg Rowan: Yes, they are.

Mr Beer: For the purpose of the transcript, the URN is WITN09950100, there’s no need to display that. I am going to ask you about a range of matters referred to in your witness statement but not all of them. The Chairman has read your witness statement and it will be introduced to the public through disclosure on the Inquiry’s website. I am going to ask questions on two principal issues: firstly, to understand more about how and why discrete disclosure failings occurred, concerning search terms, reviewing families of documents and the de-duplication of documents, so that’s a backward look; then, secondly, to seek to understand a little more about what the Post Office and its advisers have done to put things right for the future.

Can I start with your career qualifications and expertise. You’re a solicitor; is that right?

Gregg Rowan: A barrister.

Mr Beer: You’re a barrister. You joined HSF in 2007; is that right?

Gregg Rowan: Yes, that’s right.

Mr Beer: Becoming a partner in 2014?

Gregg Rowan: Yes.

Mr Beer: I think you first began work on the Inquiry on behalf of the Post Office in October 2021?

Gregg Rowan: Yes, that’s right.

Mr Beer: You took over from Andrew Lidbetter as the designated or recognised legal representative for the Post Office in April 2022; is that right?

Gregg Rowan: Yes.

Mr Beer: You are, I think, supported by a substantial team within HSF, presently – is this right – three partners?

Gregg Rowan: Three more partners in addition to myself, yes.

Mr Beer: Yes. You’re supported by project management specialists, legal analysts, paralegals, trainees, lawyers, of whom there are presently 150; is that right?

Gregg Rowan: Yes, I think the number is slightly larger than that, I think it’s possibly increased towards 160, since I gave my statement.

Mr Beer: The legal team also consists of eight counsel, including two silks; is that right?

Gregg Rowan: Yes, that’s right.

Mr Beer: Can we look at other advisers please, firstly Peters & Peters. Can you summarise for us, please, the role of Peters & Peters in relation to the Inquiry?

Gregg Rowan: Yes, Peters & Peters, having advised on all of the criminal proceedings, appeals and related matters, were instructed by Post Office to advise in relation to the criminal aspects of the Inquiry. Typically, that will involve – a substantial part of it involves responding to Rule 9 Requests that relate to prosecutions but there’s a host of other work in addition to that.

Mr Beer: So where does their role differ from that of your own firm?

Gregg Rowan: Until recently, I was the recognised legal representative so my firm were the solicitors of record in the Inquiry, and we would engage with the Inquiry, receive the Inquiry’s correspondence, respond to its correspondence, receive Rule 9 requests and respond to them. Peters & Peters, I suppose their role is a little bit more behind the scenes but doing very similar work to the work we’re doing, albeit in the context of private prosecutions.

Mr Beer: How many lawyers do they have working on the Inquiry.

Gregg Rowan: I don’t know, it’s a relatively small team supported by a larger junior barrister team.

Mr Beer: How large is the junior barrister team?

Gregg Rowan: I don’t know.

Mr Beer: Are we talking three, four, five or 10, 20, 30?

Gregg Rowan: I think it’s towards the lower end of that scale rather than the –

Mr Beer: Two, three, four, five?

Gregg Rowan: That’s right.

Mr Beer: Can we look, please, at something that Peters & Peters undertook. It’s on page 9 of your witness statement and it’s paragraphs 29 to 31. I just want to spend some time narrating this, almost, because it has relevance to later events. I think that’s right, isn’t it?

Gregg Rowan: Yes, it does.

Mr Beer: You tell us that:

“In late 2021, [Peters & Peters] were instructed by [the Post Office] to undertake preparatory work relating to issues 109 to 161 in the Inquiry’s Completed List of Issues …”

“CLI”, as you call them. Just summarising 109 to 161 in our list of issues, all concern the conduct of private prosecutions by the Post Office.

Gregg Rowan: Yes.

Mr Beer: Carrying on with the statement:

“This work comprised the identification of material already available as part of the PCDE …”

Can you just explained what the PCDE is, please?

Gregg Rowan: That stands for the Post-Conviction Disclosure Exercise, that’s a substantial piece of work in identifying documents relevant to the criminal appeals, that includes case-specific documents but also more general documents that have the potential to cast doubt on a conviction.

Mr Beer: The PCDE was itself an exercise undertaken by Peters & Peters?

Gregg Rowan: Yes.

Mr Beer: So it continued as part of the PCDE that was relevant to those issues:

“… preparing narrative documents that provided information relevant to the issues; obtaining additional documents and information; and conducting the further application of search terms and/or review of material related to expects of the PCDE as necessary to collate materials relevant to the issues. [Peters & Peters] began this work in January 2022.”

Paragraph 30:

“When [the Post Office] received [Rule 9s] from the Inquiry relating to private prosecutions, my firm worked with [Peters & Peters] to prepare [the Post Office’s] responses to the requests. The level of involvement of [Peters & Peters] has varied, depending in particular on the information and/or documents sought by the Rule 9 Requests. For certain Rule 9 Requests, [the Post Office] and my firm have utilised [Peters & Peters’] prior work product.”

Then 31:

“For the Rule 9 Requests in which [Peters & Peters] have been involved, members of my team have worked closely with members of theirs, both in terms of agreeing the general approach on how to respond to the requests and in advising [the Post Office] as our mutual client. Until very recently, my firm has not generally been involved with [Peters & Peters’] conduct of reviews, including their devising of search terms, their consideration of whether or not to review family documents, or their instructions to KPMG … in respect of de-duplication when running searches.”

So just stopping there, I’m not going to deal with the exception that you then don’t deal with.

Just stopping there, are you saying there that, until recently, by which I take to mean after discovery of the disclosure issues that we’re looking at today, your firm did not have visibility on what Peters & Peters had done in terms of the settling of search terms, the reviewing of family documents or their interactions with KPMG on de-duplication.

Gregg Rowan: Generally not. It’s possible that we had sight of some of their search terms.

Mr Beer: Sight of them meaning incidentally they might have been disclosed in an email or a letter, as opposed to “We’re proposing to apply these search terms, do you think they’re good, have you improvements to make”?

Gregg Rowan: Yes, that’s right.

Mr Beer: That kind of visibility?

Gregg Rowan: Yes.

Mr Beer: What has changed, therefore, recently in relation to those three issues?

Gregg Rowan: Well, principally, what we’ve been doing recently is the remediation and the assurance work and as part of aspects of that, we have worked with Peters & Peters to devise search terms. Broadly speaking, we’ve had more active involvement.

Mr Beer: What about family documents in relation to work that they are doing?

Gregg Rowan: Well, I think because the approach to family documents is largely now settled, there’s an established approach, there can be variation in it but, generally, the approach is to review family documents. I think that’s common ground and understood.

Mr Beer: I’m winding forward to another topic but whilst you’ve mentioned it, you said that the approach to family documents is now firmly established. When we heard from Mrs Wills this morning, she said that it was – for a backward look, it was established that family documents were now to be reviewed where they hadn’t been reviewed in previous Rule 9s but, in the future, an approach hadn’t been settled and it was going to be done on a case-by-case basis. Is that correct or incorrect?

Gregg Rowan: I think it’s broadly correct. Generally speaking, the approach will be to review families but, within that proposition, there are different ways of going about it and each Rule 9 Request will have to be considered on its merits to decide precisely how to approach it. But, broadly speaking, yes, the approach going forward will be to review families, and, if I may, I would clarify that may be the families only of keyword responsive documents that are identified as being relevant or it may be all families, depending on the circumstances. So they’re two of the main alternatives that might be pursued.

Mr Beer: We’ll come back to that a little later. You say here that your firm was not, until recently, aware of the instructions given to KPMG by Peters & Peters about de-duplication. Did you know that Peters & Peters were giving instructions to KPMG about de-duplication?

Gregg Rowan: Personally, I wouldn’t have – I wouldn’t have known that. I think, whether the HSF team were aware of that specifically, I don’t know. I think it could be inferred that they would be giving instructions about de-duplication because that’s precisely the sort of thing that, in an eDisclosure exercise, would be part of the instructions.

Mr Beer: Surely, you would want to ensure a consistent approach between the firms?

Gregg Rowan: I think it’s difficult to speak in such general terms. Each Rule 9 Request and often questions within Rule 9 requests have to be dealt with on their own merits and it’s a multifactorial assessment where there are so many different inputs. We certainly shared a common objective of fulfilling Post Office’s disclosure obligations but how to do that will vary so much between requests that I think it’s difficult to speak of a common approach.

Mr Beer: Wouldn’t you at least wish to know what each firm was doing in terms of de-duplication?

Gregg Rowan: Not necessarily, no, I don’t think so.

Mr Beer: Well, in the absence of knowledge – or is this absence of knowledge of what Peters & Peters were instructing KPMG to do, one of the reasons why the de-duplication of errors has taken a significant time to put right, because you have had needed to find out from KPMG exactly what had happened in the first place?

Gregg Rowan: Yes, between ourselves and Peters & Peters, we have had to understand from KPMG this – the occasions on which they applied item-level de-duplication. I think that would always have been necessary.

Mr Beer: Has that been a very simple and straightforward task in understanding from KPMG when they de-duplicated and, if they did, which form of de-duplication they applied?

Gregg Rowan: No, it hasn’t.

Mr Beer: Has it been the precise opposite of that?

Gregg Rowan: Yes, it has.

Mr Beer: Can you explain why that is? Why it has been problematic and difficult?

Gregg Rowan: My understanding is that there hasn’t been a clear auditable record of the occasions on which item-level de-duplication was applied, so it’s had to be ascertained from a very forensic and detailed review of contemporaneous materials, and that has taken a long period of time.

Mr Beer: We just heard from Mr Tombleson who sat in the same chair as you saying that there was a clear record disclosed by – because of the unusual nature of the request for item-level de-duplication, that there was a clear record in exchanges between associates and senior associates and his managers and senior managers. From your perspective, is that correct?

Gregg Rowan: Certainly when you find the emails you can see what has been instructed and you can see the dialogue between our senior associates and KPMG’s managers. So, to that extent, there is a record, yes.

Mr Beer: Given that there is a record, why has it been difficult and problematic to work out when de-duplication has occurred and, if so, what form that de-duplication has taken?

Gregg Rowan: My understanding is that simply to find the emails in – between ourselves and KPMG, there are probably hundreds, possibly many hundreds, of emails on a daily basis. It’s a constant dialogue. And my understanding is that for KPMG to identify the relevant instructions from those emails has taken time. I should say, I’m explaining my understanding. Obviously KPMG would be – they would be able to explain precisely what steps they’ve taken.

Mr Beer: I think we just heard from Mr Tombleson, who said actually it was quite straightforward. Has that been your experience?

Gregg Rowan: No, it hasn’t.

Mr Beer: Can we turn to KPMG, please, on page 8 of your witness statement at paragraph 25. You say that the Post Office’s eDiscovery provider is KPMG, who are directly accountable to the Post Office for their work. Does that first sentence mean that KPMG liaise directly with the Post Office about eDisclosure directly, because they were directly accountable to them?

Gregg Rowan: At a strategic level in relation to cost, in relation to resourcing, as others have mentioned today, that dialogue would take place principally between KPMG and Post Office.

Forgive me, in terms of instructions on specific items of eDiscovery workflow, those instructions would come from ourselves or from Peters & Peters.

Mr Beer: So KPMG worked according to instructions given to them by HSF on a Rule 9 by Rule 9 basis?

Gregg Rowan: Yes, and Peters & Peters, yes.

Mr Beer: If KPMG were working to your instructions and those of Peters & Peters, rather than from instructions given on a detailed basis by the Post Office, how did the Post Office maintain oversight and supervision of what was being carried out in its name?

Gregg Rowan: I can only speak to our engagement with Post Office in relation to eDiscovery and KPMG’s role and eDiscovery issues were a subject that we discussed intermittently when there were points to discuss.

Mr Beer: To your knowledge, was there any intrusive oversight and supervision directly from the Post Office of the way that KPMG was carrying out its work?

Gregg Rowan: No, there wasn’t. I should say nor would I expect there – to see that sort of examination of what an eDiscovery provider is doing.

Mr Beer: To your knowledge, were there any communications before these issues were discovered from either Peters & Peters or HSF back to the Post Office, explaining the way in which de-duplication was being carried out?

Gregg Rowan: No.

Mr Beer: Same question in relation to whether or not families of documents were being reviewed?

Gregg Rowan: Generally speaking, the approach of my firm – I can’t speak for Peters & Peters, but for my firm – was to send regular email updates to Post Office explaining in detail the steps that we were taking in the conduct of their disclosure and, in those emails, we identified that we were reviewing keyword responsive documents.

Mr Beer: I missed a word there, you were reviewing?

Gregg Rowan: Keyword responsive documents, hits.

Mr Beer: Thank you.

Gregg Rowan: So to that extent, we explained the position to Post Office.

Mr Beer: But nothing telling them of the nature of the de-duplication that had happened before your review nor of –

Gregg Rowan: No.

Mr Beer: – the extent to which a reviewer might search for or not search for family documents, as part of their review?

Gregg Rowan: Well, certainly not in relation to de-duplication and I think I’ve answered the question in relation to family documents. What we explained was that we were reviewing keyword responsive documents.

Mr Beer: So you didn’t tell the Post Office that you were not reviewing family documents?

Gregg Rowan: Yes, yes.

Mr Beer: Was there any reason for that, for not telling them this?

Gregg Rowan: I don’t think there was a particular reason. I think that the explanation that we were reviewing keyword responsive documents, that indicated the approach that we were taking.

Mr Beer: But you could say to a client, “Look, there’s two ways of conducting a de-duplication exercise, or at least two ways of conducting a de-duplication exercise. We’ve got a very difficult dataset here because of the sources of it, that adds a layer of complexity. We could do or instruct KPMG to do item-level de-duplication, that’s has these consequences, or we could instruct them to do family level de-duplication, that has these consequences – a larger pool of documents” –

Gregg Rowan: Yes.

Mr Beer: – “that will have these cost consequences”. From what I’m understanding, none of that happened in relation to de-duplication?

Gregg Rowan: No, and, in fact, I don’t think members of my team had in mind that there were different types of de-duplication that might be applied.

Mr Beer: We’ll come to examine that in a moment. In relation to the review of family documents, again, have I understood you correctly to say that there wasn’t communication back to the client about when and in what circumstances that was occurring?

Gregg Rowan: Yes, that’s right.

Mr Beer: What was the reason for that?

Gregg Rowan: I think that the way the updates were drafted was simply – the updates generally were incredibly detailed and I think the way that the approach was expressed was that we’re reviewing keyword responsive documents and it was a form of drafting more than anything else.

Mr Beer: It was a form of?

Gregg Rowan: Drafting. It was the way in which the explanations were drafted.

Mr Beer: That only tells half a story, doesn’t it? It says what you are doing but it assumes that the client knows what you’re not doing.

Gregg Rowan: I think, with the benefit of hindsight, I think that’s fair.

Mr Beer: Can we move forward to the stage when you get to the review, please, so after a de-duplication exercise has taken place, and look at paragraph 48(e) on page 18 of your witness statement.

If we scroll down please, and I’m picking this up partway through the exercise and you’re telling us here about after a de-duplication exercise has happened, irrespective of the species of de-duplication, when the pool of documents is given back to your firm, what then happens; is that right?

Gregg Rowan: Yes.

Mr Beer: You say:

“The first level review is typically conducted by reviewers in our ALT (Alternative Legal Services) team or an associate team in London and/or elsewhere in my firm’s global network.”

So this is the first level of review. The Alternative Legal Services team, where are they located?

Gregg Rowan: They have hubs around the world, principally the team working on this matter has been based in Belfast and Johannesburg. More recently, we’ve involved resource in Melbourne, Australia.

Mr Beer: So Belfast, Johannesburg and more recently Australia?

Gregg Rowan: Yes.

Mr Beer: Are the members of the Alternative Legal Services team conducting the reviews for the Post Office lawyers?

Gregg Rowan: Sorry, I don’t entirely understand the question.

Mr Beer: Are they lawyers?

Gregg Rowan: The first level reviewers are typically made up of what we call legal analysts and senior legal analysts. They tend to be law graduates, they’re supervised by lawyers.

Mr Beer: So law graduates but not qualified in their jurisdiction or our own?

Gregg Rowan: Yes.

Mr Beer: So they don’t hold a practising certificate?

Gregg Rowan: No.

Mr Beer: Are they dedicated to working on this Inquiry or might they be working on a number of disclosure exercises at once?

Gregg Rowan: Generally, we had a core team that was committed to working on the Inquiry. There were occasions where there were lulls, in which case members of the team would work on other things. There were occasions where, such as the present one, where we needed to drawn in more resource, in which case we bring in people from – that may have been working on different things.

Mr Beer: In a moment we’re going to come to look at the reviews of families of documents and, in particular, whether these reviewers were instructed to look at documents that were within a family of which a responsive document was a part. Can we just jump ahead to that issue now and see what you say about it, in paragraph 95 on page 37 of your witness statement. You say:

“It should be noted that when a decision is taken that family documents need not be reviewed that does not mean that they cannot be considered. Unless they have been removed in the de-duplication process, the entire family of each document to be reviewed is still available to our reviewers whilst not reviewing family members will be the default when that decision has been made. If the reviewer considers the content of a document within a family is such that there might be other documents within that family which should be reviewed to understand the context of responsive document, then they will proceed to conduct that further review.”

The reviewer that’s being referred to here, is that right, the individual within, in the first instance, the Alternative Legal Services team?

Gregg Rowan: In the first instance, yes.

Mr Beer: So you’ve got these people in other parts of the world who were graduates in law, but not legally qualified, making decisions on whether to look at family documents or not?

Gregg Rowan: For the purpose of assessing whether the document they’re actually looking at is responsive or possibly privileged.

Mr Beer: Not for the purpose of establishing whether there are other documents within the family that might be relevant to the request that they are addressing?

Gregg Rowan: Generally, that wouldn’t be their role as first level reviewers no.

Mr Beer: Why wouldn’t it be their role?

Gregg Rowan: The way that reviews are set up, generally speaking they conduct linear reviews of documents that are batched to them, documents might be batched in, say, sets of 50, and the expectation of the reviewers is that they review the documents in front of them and they’re not, if you like, going on a train of enquiry. If they see a particular document, it’s not their role to look at that document and to see where it takes them, as it were.

Mr Beer: So although what you said in paragraph 95 is correct, that the reviewing pane displayed to the reviewer would allow them to go and look at the family, in practice, that’s not their function?

Gregg Rowan: Well, they would look at the families, actually. They’re encouraged to look at families in order to determine the relevance of the document they’re actually looking at. It may be that it’s – it may be that they want to understand something more about the documents and they think it is helpful to go and look at a family member. So, in those circumstances, they’re encouraged to do that. Whether or not they do it will depend on the judgement of the individual reviewer in the given case.

Mr Beer: Were written instructions given to these people within the ALT about when and in what circumstances they should access the facility within the reviewing pane to look at family documents?

Gregg Rowan: Part of their workflow, when we’re conducting a hits-only review, is to look to families when they think that will be helpful to determine whether a document is relevant or privileged for context, possibly. That is something that they routinely do when conducting hits-only reviews. I have to say, I don’t know whether that instruction is in writing or given verbally but, from the enquiries that I’ve made, I’m satisfied that it’s given.

Mr Beer: But they’re not the people we should be expecting to go on a train of enquiry?

Gregg Rowan: No.

Mr Beer: Who are the people we should be expected to go on the train of enquiry?

Gregg Rowan: If anybody goes on a train of enquiry, it would be at the second-level review stage. So, typically, the documents that are identified at first-level review as being relevant are then reviewed by lawyers, principally based in London, almost inclusively based in London.

Mr Beer: But, by that stage, a lot of documents will have been excluded including their families by the first tier of reviewers, won’t they?

Gregg Rowan: Yes, that’s right.

Mr Beer: So the second tier of reviewers don’t have a chance of looking at those families, have they, because they don’t know that they exist, they’re not within their batch?

Gregg Rowan: Well, there is some QC over documents that have been tagged as not being relevant. So people do look at those documents but for QC purposes.

Mr Beer: But is the QC process, the quality control process, picking up whether the first-level reviewers are appropriately following a train of enquiry?

Gregg Rowan: (The witness shook his head)

Mr Beer: No, because that’s what their job?

Gregg Rowan: No, precisely.

Mr Beer: So the QCing process is not going to bring more documents back within the pool on the basis of a failure to look at families?

Gregg Rowan: No, that’s right.

Mr Beer: So if the second and perhaps third-level reviews – which is lawyers in London, essentially?

Gregg Rowan: Yes.

Mr Beer: Do they include, amongst their tasks, reviewing whether the ALT staff abroad have appropriately looked at family documents? They can’t, can they?

Gregg Rowan: When you say “appropriately looked at family documents”?

Mr Beer: Yes, whether they have found a document that’s responsive to a search term, a hit, looked at the reviewing panel, seen that there are 25 other documents of which that’s a family, gone into those other documents, seen that they’re actually relevant to this Rule 9 Request, “We’d better disclose those”?

Gregg Rowan: No, they wouldn’t be looking – they wouldn’t be conducting their analysis of the document for that purpose.

Mr Beer: So who does, then? Who checks families for relevant material?

Gregg Rowan: Well, it is open to the second-level reviewers to turn to review the families of keyword responsive documents that come through to second-level review. So if they’re to be reviewed, it would be at that stage.

Mr Beer: But they’re looking at an already narrowed pool?

Gregg Rowan: Yes, they are.

Mr Beer: Is that still the position today?

Gregg Rowan: The – there are different approaches to reviewing family documents. Either – the two main ones – and I mentioned this earlier, are two – when conducting a review, to look at all of the keyword responsive documents and all of their families. The alternative is to look at the keyword responsive documents that are tagged as being relevant and their families. Both of those options are being used. The teams have to judge in individual circumstances which of those options to pursue.

Mr Beer: What determines that judgement? What are the relevant factors?

Gregg Rowan: There are a host of factors. Obviously a key one is the expectation based on the knowledge that the senior associate setting up the review have of the dataset and the issues, but the expectation is to the likelihood of identifying relevant documents in the family document set. And, again, that will vary case by case. It will also depend very significantly on the number of family documents that exist.

In this matter, what we call the family multiplier has been very high, that’s the number of additional family documents you get in addition to the keyword responsive documents.

Mr Beer: The family multiplier question, how is that answered? Is it “If the family multiplier is X or above, we won’t do it, whereas if it’s Y or below, we will”?

Gregg Rowan: No, it’s really not as simple as that. There are so many different factors that inform a decision as to how to approach a review and it’s a very dynamic situation, decisions have to be made iteratively and sometimes revisited. There’s no hard and fast rule and there really shouldn’t be. It’s a much more thoughtful and careful exercise.

Mr Beer: Can we return to keyword searches before again going back to the family issue because the two feed into each other. If we turn up paragraph 48(a) of your witness statement which is on page 17. If we just scroll down, you set out the process. At the beginning of the process, you say:

“We send each request [Rule 9 Request] to [the Post Office] and discuss with [the Post Office] what is likely to be required, including which of the relevant methods above are likely to yield relevant documents, identifying the repositories that need to be searched … the extent to which harvests of potentially relevant documents have already been undertaken [and then this] formulating keyword [searches], and harvesting and processing and uploading to Relativity of any additional materials.”

That suggests that currently you discuss with the Post Office the formulation of keyword searches, correct?

Gregg Rowan: Yes.

Mr Beer: Would you agree that that’s the sensible and indeed necessary approach, because the Post Office and its employees are most likely to be in possession of relevant knowledge to be able to develop accurate and reliable search terms?

Gregg Rowan: No, I don’t think I would agree with that. Often, when we devise keyword searches, it’s based on prior discussions with subject matter experts within the Post Office business. So if I could give you an example, in the context of the civil proceedings aspect of this phase, one of the early things that members of my team did was to go out and speak to a large number of people, subject matter experts in the Post Office business, I think there were about 14 of them, and obviously that’s a multifaceted conversation, talking about documents, trying to understand the issues.

It’s those sorts of conversations that are the basis for members of my team and I should say there are many other things as well, familiarity with documents being another obvious one. There are many different inputs but it’s on the basis of those inputs they would then devise search terms and then sent those search terms to the Post Office.

Mr Beer: Has that always been the case: that you’ve involved, to the maximum extent possible, as a firm, the Post Office in the development of search terms?

Gregg Rowan: Look, I wouldn’t like to say to the maximum extent possible. That’s – I think that probably puts it too high. But certainly what we have always sought to do is engage extensively with people within the Post Office business to understand the issues that are the subject matter of the Inquiry, issues on which they have background or expertise, and they will inform the approach that we take.

We would also obviously be in dialogue with members of the Post Office Inquiry Team.

Mr Beer: So it’s the case that in the Rule 9 Requests that have been served on the Post Office by this Inquiry, the Post Office has been involved appropriately at all stages in the development of search terms to respond to them, and it’s not a matter where the Post Office can say, “That’s down to our legal advisers and not us”?

Gregg Rowan: I think there’s a lot in that question. Certainly, we have, necessarily in our role, had extensive engagement with the Post Office business and, again, as I’ve said, we’ve sought to understand documents issues, and a part of that has been informing the content of search terms. I have to say, I wouldn’t necessarily expect Post Office as a client to be commenting in detail on the search terms that we devise. Some clients might but others might not. So I don’t think it necessarily follows that because Post Office weren’t actively commenting on search terms, that – or that a client isn’t actually commenting on search terms, that that should be seen as being inappropriate.

Mr Beer: Can we look at paragraph 61, please on page 23 of your witness statement. It’s the last sentence, you say:

“The search terms are generally shared with [the Post Office], although I do not believe that we received specific input or feedback from the Post Office in relation to the search terms now under discussion.”

When you say “The search terms are generally shared with [Post Office]” does that mean that on some occasions your firm does share search terms with the Post Office and other terms (sic) keeps them to themselves and doesn’t share them.

Gregg Rowan: I would say that we share them in all or nearly all circumstances. I can’t say absolutely that they have always been shared.

Mr Beer: So generally should be read as all or nearly all?

Gregg Rowan: Yes.

Mr Beer: Okay. What determines whether search terms are not shared or would it just be oversight if they haven’t?

Gregg Rowan: I think I would be, yes. The intention would be to share search terms.

Mr Beer: You say:

“… I do not believer that we received specific input of feedback from POL in relation to the search terms now under discussion.”

Are you relating that sentence, ie “under discussion”, to Rule 9(11) and (14) and the relevant part of them? This comes within a section of your witness statement, I should say, which is talking about the use of search terms generally, not when you turn later to look at Rule 9(11) and 14?

Gregg Rowan: Yes. I think I am and I think I probably have – I have in mind, in particular, the search terms relating to request 11, questions 15 and 46(a) which were the ones that my firm devised.

Mr Beer: So that sentence there “now under discussion” means “insofar as I’m discussing the relevant parts of Rule 9(11) and (14)”?

Gregg Rowan: Yes.

Mr Beer: Okay. You say that you don’t believe that there was any specific input or feedback from POL in relation to those. How frequently did the Post Office give input or feedback in relation to the search terms that were shared with it?

Gregg Rowan: I don’t recall whether that happened at all.

Mr Beer: So for the last couple of years, despite sharing search terms with the Post Office on all or nearly all occasions, say for oversight, the Post Office has never come back and said, “Hold on, what about X or Y? I don’t think that’s appropriate. You might want to look using this word”?

Gregg Rowan: No. Save, I should clarify, that recently, as these issues have come to light, and we’ve been focusing on remediation, the Post Office team, in the way that Mrs Wills described, has been more active and engaged in relation to search terms.

Mr Beer: Is your impression that’s because of the issues that have been uncovered or maybe even a change of personnel?

Gregg Rowan: I think it’s – the issues that have been uncovered is certainly a factor.

Mr Beer: So a more proactive and involved client, would that be a fair way of describing it?

Gregg Rowan: Very much so.

Mr Beer: Turning from the general, then, to the specific and the use of the search terms in relation to parts of Rule 9(11) and (14). I wonder whether we can turn to paragraph 65 on page 24, which is over the page. It’s the foot of the page. You say:

“The particular sub-questions relating to prosecutions or investigations policies were 15 and 46(a) …”

This is Rule 9(11). Then over the page to page 25, please, you set them out and if I just read the relevant parts. 15, last sentence:

“Please provide copies of the same [that’s prosecutions policy] and copies of all iterations of the prosecutions policy since 1999 that are in POL’s custody or control.”

Then 46(a):

“Please provide copies of the same [that’s an investigations policy] and copies of all iterations of the investigations policy since 1999 that are in POL’s custody or control.”

You say that you used, or your firm used, three principal methods to identify documents that were responsive to those two requests. If you go to the foot of the page, please. At 68, method one, you say:

“First, it was clear that these documents would be sought by the Inquiry, so in January 2022 a workstream (the ‘Policy Review’), was scoped by [Peters & Peters] together with [the Post Office], and on which my team was asked to comment, one aspect of which was targeting the documents referred to in CLI [that’s the Concluded List of Issues] 109.”

That is set out in paragraph 66 above. We can see it on the page:

“This was part of the preparatory work relating to issues 109 to 161 in the [Concluded List of Issues] that [the Post Office] instructed [Peters & Peters] to undertake, and one of a number of workstreams that [the Post Office] has instructed [Peters & Peters] to carry out in connection with criminal matters that are relevant to Phase 4.

“69. As part of [that, Peters & Peters] utilised the work that they had undertaken as part of the PCDE … I understand that the approach to the Policy Review was adopted in anticipation of [the Post Office] receiving Rule 9 Requests … When [the first request was issued Peters & Peters] were in the early stages of the Policy Review, and we liaised with them … in order to draw upon their work when responding to Questions 15 and 46(a).”

So essentially saying the first method was that work had already been undertaken or was being undertaken by Peters & Peters by reference to the concluded list of issues, paragraph 109. Had that turned up Appendix 3?

Gregg Rowan: Yes, I think it had. My recollection is that it had done, and we actually wrote to the Inquiry setting out a list of documents that we’d identified that we didn’t think were responsive to the particular requests. The requests were focusing on very specific documents, the prosecutions policy and the investigations policy. We knew what those documents were, we had various iterations, so did Peters & Peters. So we knew what we were looking for.

But in the process of the exercise that I describe in these paragraphs of my statement, miscellaneous other documents had been identified, and I think I’m right in saying it that I think it was Peters & Peters who identified Appendix 3 and, again, we wrote to the Inquiry drawing –

Mr Beer: Was that part of a suite of documents, a family of documents, when it was identified?

Gregg Rowan: If it was in Peters & Peters – forgive me, I don’t recall which – there are a number of iterations of Appendix 3 and I don’t recall, as I sit here, which one specifically was identified. What we know, though, is that the iteration of Appendix 3 that formed part of the PCDE was a standalone version, so it didn’t have –

Mr Beer: It didn’t have Appendix 6 as part of its family?

Gregg Rowan: No, it didn’t have any family members.

Mr Beer: So do you think that’s the version of Appendix 3 you’re talking about now?

Gregg Rowan: I think it is but if I misremembered then I’ll correct that subsequently.

Mr Beer: You say in paragraph 70, if we scroll down, the second method was liaising with the Post Office to try to find relevant documents. This included consideration of a FOIA request in 2020 that the Post Office had received seeking the “current guidance and/or rules provided to POL prosecutors and investigators”:

“As part of our work … we liaised extensively with POL and others to try to understand the policies that were in place at various times. We had been in contact with POL’s Head of Security Operations and we also sought information directly from [Peters & Peters] and Cartwright King … Members of [the Post Office’s FOIA] request team also spoke directly with … individuals in POL’s business including the team lead investigator, the manager of the intelligence and administration team, and the individual who subsequently identified the suite of appendices concerning [sic] Appendix 6 … At that time, we were provided with various iterations of the prosecutions policy and versions of a ‘conduct of criminal investigations’ policy.”

By that, are you saying that those approaches – or did those approaches turn over a version of Appendix 3?

Gregg Rowan: No, I think the work that I’m describing there, responding to the Freedom of Information Act request that was concerned with the prosecutions, I think it was concerned with the prosecutions and investigations policy and I don’t think it had turned up Appendix 3.

Mr Beer: Nobody that was approached said “Hold on, there is this collection of documents which we used when we prosecuted anyone. They’re part of a collection of documents, and they’re all in a zip file that was commonly distributed to all and sundry and, by the way, there’s this racially offensive document within them”?

Gregg Rowan: I don’t think that happened in the FOIA context. I think in the policy review that I describe at paragraph 69, as part of that exercise, Peters & Peters spoke with various people within Post Office’s Security team. I understand that in one of those conversations, the suite of documents was referred to in general terms, no reference to racist or offensive language, but it was referred into general terms.

Mr Beer: Was that chased down or not? I assume not?

Gregg Rowan: Well, it was established in the context of that conversation that Peters & Peters already had harvested the suite of documents, as they did. What goes wrong is that the version of the suite – or the version of Appendix 3 in the PCDE just so happens not to have any family members.

Mr Beer: So did nobody put two and two together and say, “Hold on, we’ve been told about a suite of documents which was essentially a compliance requirement, you had to do the things in the suite if you wanted to prosecute a person. We’ve got a bit of that, but we haven’t got the rest of it”?

Gregg Rowan: My understanding, and, again, this is work that Peters & Peters did, is that they’d understood that the suite of documents – and I don’t think it was described in those terms, but what we’re now calling the suite of documents – existed. They satisfied themselves in conversation with the member of the Post Office Security Team that they’d harvested it and I think it was believed that, because of the breadth of the PCDE, insofar as they’d harvested it and it was in any way relevant, it would have been in there. That’s my understanding of the position.

Mr Beer: So the answer is that there was a belief that they must have had it but, in fact, it wasn’t accessed or reviewed for the purposes of responding to the Inquiry’s request?

Gregg Rowan: Yes, neither Peters & Peters nor my firm reviewed Appendix 6.

Mr Beer: Then the third method, if we follow down at paragraph 71, is the use of search terms, and you set out what they are. We’ve looked at that already so I’m going to skip over the page to paragraph 72, please. You say:

“Looking back at the search terms and the search criteria, whilst I appreciate that Appendix 6 was not responsive to them, even with the benefit of hindsight and knowing what I do now about Appendix 6 and the suite of documents to which it belonged, doing my best to be objective, I consider these to be a reasonable set of search terms … The Inquiry’s request was for … two specific documents … and the search terms sought to home in specifically on prosecution or investigation policies. Appendix 6 is in many ways an extraordinary document. It contains no words about policy, procedures or guidance. Using search terms targeting policies and procedures, it would only be possible to generate search terms to which Appendix 6 responded if one knew about the existence of the document first.”

So that’s essentially the same point that Mrs Wills was making this morning, in a slightly less direct way. But what you said there only focuses on the reasonableness of the search terms, doesn’t it?

Gregg Rowan: Yes.

Mr Beer: I think you would agree that search terms, or viewing search terms as being the beginning and the end of a search for relevant materials is a folly?

Gregg Rowan: Not necessarily, no, I wouldn’t agree with that.

Mr Beer: You wouldn’t? You think that can be appropriate to use and only to use search terms and only disclose the documents that are responsive to the search terms?

Gregg Rowan: Yes, I do.

Mr Beer: Why?

Gregg Rowan: For example, if the request is for a specific document, and many of the Inquiry’s requests were for specific documents, you devise a set of search terms that you think will identify the document and you run the search terms and you find the document, then in those circumstances, my view would be that the search terms are appropriate or, taking the questions 15 and 46(a), the request was for all iterations of two documents, the prosecutions policy and the investigations policy. It seemed to us that, in that context, as part of a broader set of steps that were appropriate to take, in terms of catching all iterations, search terms really had an essential role.

We had the policy, we knew what it was called, we knew the words that were contained in it, and we were confident that using certain search terms would find other iterations of it.

Mr Beer: So what about Request 14? If we go forwards, please, to page 31 of your witness statement. At the foot of the page, paragraph 83, Request 14 materially asks at question 18 for:

“Policies and guidelines … relating to the bringing of private prosecutions against subpostmasters and other end users … alleged to be responsible for shortfalls shown by Horizon during the relevant period.”

That’s not seeking a specific document nor iterations of that specific document, is it?

Gregg Rowan: No –

Mr Beer: It’s more broadly crafted?

Gregg Rowan: Yes, I agree.

Mr Beer: What did your firm do in response to the receipt of paragraph 18 of Rule 9 Request 14?

Gregg Rowan: In respect of the questions in Request 14 that were focused on prosecutions, they were led by Peters & Peters. So, on receipt of the request, we shared it with Peters & Peters. As always, when a request comes in, there’s a frenzy of activity and dialogue as to how to respond to it. Peters & Peters then, I think by this stage, the policy review exercise that I described earlier in my statement, I think had been completed or, if it hadn’t been, it was in significantly advanced form, and its conclusion was that the PCDE would be sufficient for the purpose of responding to issue – I think it was 109 in the Inquiry’s list of issues.

So my understanding is that Peters & Peters then focused on the contents of the PCDE, insofar as it relates to policies and guidelines.

Mr Beer: So is the answer that your firm didn’t do anything in relation to this request, it was passed to Peters & Peters to administer?

Gregg Rowan: Yes.

Mr Beer: You don’t know, I think, the search terms that Peters & Peters were running. You didn’t know?

Gregg Rowan: I don’t think we did at the time.

Mr Beer: Has a problem with those been identified?

Gregg Rowan: Yes, it has.

Mr Beer: What’s the nature of the problem that has now been identified?

Gregg Rowan: The – ordinarily with a request such as this, that seeks policies and guidelines, as a minimum the search terms would contain a stem of the word “policy” and a stem of the word “guidelines”.

Mr Beer: What I’ve described as the truncated version of the word?

Gregg Rowan: Yes, precisely, and the search terms that were used in that context, in the context of the PCDE that were relied upon for Request 14 didn’t contain the truncated version of the word “guidelines”.

Mr Beer: Has that been rectified?

Gregg Rowan: Yes, it has.

Mr Beer: Now, you address in paragraphs 79 and 80 on page 30 of your witness statement what in fact happened when Appendix 3 was discovered and how Appendix 6, which was part of the same family of documents, was not discovered. If we can turn that up please. So 79 first:

“I have sought to understand the circumstances which led to Appendix 3 but not Appendix 6 being disclosed to the Inquiry … and my firm’s involvement. I have done so having particular regard to the fact that my firm reviewed Appendix 3 in context of our work on this Request and therefore, on the face of things, Appendix 6 was within our reach.

“I understand the position to be as follows. A number of versions of Appendix 3 were reviewed by my firm’s ALT team and marked irrelevant as part of the initial review of search-term responsive documents in March 2022. It is apparent from data on Relativity that none of these were in families containing Appendix 6.”

Just stopping there, what you’re saying is that the Appendix 3 document existed in multiple versions that were reviewed by the lawyers in the ALT team abroad?

Gregg Rowan: Yes, not lawyers, generally law graduates, but yes.

Mr Beer: How many versions of Appendix 3 were discovered?

Gregg Rowan: On that occasion, I think nine is the right number. Mr Tombleson’s statement, I think, explains how many there were and I think it was nine.

Mr Beer: Were all of them reviewed by your firm’s ALT team?

Gregg Rowan: Yes.

Mr Beer: Were they reviewed by different people?

Gregg Rowan: Yes.

Mr Beer: They were all marked as “irrelevant”?

Gregg Rowan: Yes.

Mr Beer: Then if we turn to paragraph 81, which is over the page, thank you:

“Subsequently, as part of the further review of materials in April 2022 that I describe at paragraph 73 above …”

Just cutting to the quick on that, a data error had been discovered and therefore the exercise was carried out again?

Gregg Rowan: Yes.

Mr Beer: This time in London by lawyers?

Gregg Rowan: Yes.

Mr Beer: You say:

“… a senior associate [at my firm] reviewed a number of versions of Appendix 3, some of which were in families containing Appendix 6.”

So this happened essentially by chance because of the data error.

Gregg Rowan: Yes, yes it did. The first search that had been reviewed in March had been the subject of item-level de-duplication, so my understanding, de-duplicated out of the iterations of Appendix 3 that were reviewed in that context were versions that contained Appendix 6 as a family member. But yes, you’re right, the subsequent review was – it was necessitated by an error.

Mr Beer: So if the data error hadn’t happened, we wouldn’t even have got Appendix 3?

Gregg Rowan: Not in response to Request 11, no.

Mr Beer: So the senior associate reviewed a number of versions of Appendix 3. Do you know how many the senior reviewer reviewed?

Gregg Rowan: I don’t recall. I think perhaps six or seven. Again, I think it might be in Mr Tombleson’s statement.

Mr Beer: The reviewer tagged one version of Appendix 3 as relevant and the document was produced to us in May 2022. So here, some of these versions of Appendix 3 were in families containing Appendix 6, yes?

Gregg Rowan: Yes.

Mr Beer: So here, de-duplication wasn’t an issue, whatever KPMG may have been doing in relation to other Rule 9s or other parts of Rule 9s, so far as de-duplication was concerned. That’s not the problem here?

Gregg Rowan: No.

Mr Beer: Then if we look at paragraph 82:

“I have spoken with the reviewer … He explained he was familiar with both the Prosecutions Policy and the Investigations Policy … His assessment, so far as he can recall now, was he considers that Appendix 3 was not responsive to [Rule 9(11)] … because it was not an iteration of either of those policies. However, he considered that the document might be of interest to the Inquiry, and he tagged the document as relevant on that basis. [You] believe that [this] was correct. He did not look at the family documents of Appendix 3, and did not review Appendix 6. In fact, as far as [you are] aware, no member of [your] team reviewed Appendix 6 until May 2023.”

So you say you didn’t look at the family documents of which Appendix 3 was a part, why not?

Gregg Rowan: I think principally it was due to the approach that was being taken in the context of that review, which was again seeking the two specific documents, not to look at families.

Mr Beer: But here, he wasn’t, on what he’s told you, discovering a document that was responsive to the request. He was finding a document, rightly, in which the Inquiry would be interested, and saying it’s relevant. Why not look at the family of which it’s a part?

Gregg Rowan: I fear I’ll be repeating the answer I gave, but the approach that was being taken in the context of that review was to focus on the keyword responsive documents, again the objective being to find iterations of these two policies. The approach that we’ve always taken has been where we see a document incidentally that we think is not responsive to a particular Rule 9 Request, but we think that it will be of interest to the Inquiry, that it relates to the terms of reference, then we will also produce it.

That’s what he wasn’t doing – sorry, that’s what he was doing here but he wasn’t following the train of enquiry. As I recall it, these searches were conducted very shortly before we gave disclosure and – sorry, the review was conducted very shortly before we gave this tranche of disclosure.

Mr Beer: Can I turn to de-duplication. I think it’s fair to say that there is a dispute between your firm, on the one hand, and KPMG, on the other, as to who made decisions as to whether de-duplication was to occur in relation to a particular Rule 9 and, if so, the nature of the de-duplication that was to be undertaken; is that right?

Gregg Rowan: I wouldn’t have characterised it as a dispute. I think it’s a difference of view. In terms of –

Mr Beer: So there’s a difference of view as to who made the decision?

Gregg Rowan: In relation to the latter part of your question, yes. No question on – there’s no disagreement as to the occasions on which de-duplication was instructed. The difference of view relates to the nature of the de-duplication that ought to have been applied.

Mr Beer: Would you agree that it’s unsatisfactory, to say the least, that there is a difference of view, using your language, between two of the Post Office’s service suppliers on such a critical issue as this, which has had such consequences for both the Post Office and the efficient and effective conduct of this Inquiry?

Gregg Rowan: Mr Beer, we have different views on a point. I think –

Mr Beer: Do you think it’s a good thing?

Gregg Rowan: No, it’s not a good thing. It’s regrettable.

Mr Beer: I’m sorry?

Gregg Rowan: I say it’s regrettable.

Mr Beer: My phase was “unsatisfactory”. Are you willing to go as far as to say that you think it’s unsatisfactory?

Gregg Rowan: No, I’m not, actually, I think, because the views are genuinely held, and it’s a regrettable situation.

Mr Beer: Who made the decision to carry out item-level de-duplication?

Gregg Rowan: I believe that KPMG made the decision.

Mr Beer: And why do you believe that?

Gregg Rowan: Because I have reviewed some of the instructions that members of my team gave to KPMG and the back and forth that occurred with KPMG in relation to the application of de-duplication, and I don’t think that the instructions that were given can fairly be characterised as instructions to carry out item-level de-duplication.

Mr Beer: We have just heard evidence from Mr Tombleson, who said he’d done pretty much the same exercise within KPMG, that KPMG undertook searches based on search terms provided by HSF, provided statistics as to the number of responsive hits. There was then liaison between HSF and KPMG in which, in some respects, HSF said the number of hits seemed high, or too high. And then a table was given, if de-duplication was applied at an item level, although that phrase was not used. And then instructions came back from your associates or senior associates saying yes, carry out the de-duplication. Is that a fair summary of the correspondence that you’ve read?

Gregg Rowan: I would describe it differently. I think, for one thing, there are many different email chains with instructions made, given in different contexts, from different people to different people, with different terminology used. I think what’s clear is that members of my team did not wish to review multiple iterations of the same keyword responsive document. If they’re reviewing one iteration of a document, it’s not necessary to review 15 others. So they didn’t want –

Mr Beer: That sounds reasonable.

Gregg Rowan: Well, quite, and I think no one would argue with that. That was the objective that was being articulated in various different ways in the instructions that were given to KPMG. My understanding – and I should say that I have no expertise in these issues, but I’m familiar with eDiscovery from having practised for many years, and I’ve also discussed these issues with my own firm’s eDiscovery specialists. In those circumstances, there are a number of different options that might be pursued, of which item-level de-duplication is the most extreme, and very extreme. And that was the option that was pursued.

Mr Beer: I mean, if you Google “item-level de-duplication” and “MD5#”, you can see quite quickly that it’s rather deprecated.

Gregg Rowan: Yes.

Mr Beer: I think the first three hits you get tell you it’s rarely used and can have disastrous consequences. Did you know that?

Gregg Rowan: I did when I ran the same Google search as you, evidently have done.

Mr Beer: But is the problem here that you’re saying that you and your firm didn’t know that it was being done in your firm’s name –

Gregg Rowan: Yes.

Mr Beer: – or the Post Office’s name?

Gregg Rowan: Yes, I think it is. I think the level of understanding of the different forms of de-duplication and the different techniques that one can apply to achieve the objective I described, that will differ amongst different lawyers in the team, depending on their level of experience, whether they’ve happened upon this before. I, for my part, I don’t think it can be fairly expected of solicitors that they would be familiar with different forms of – different eDiscovery techniques for achieving that objective.

Mr Beer: Did KPMG say in any of the communications that you’ve reviewed “There are two types or at least two types of de-duplication. If you do item-level de-duplication, you’ll get a much smaller number of documents that are responsive, fewer hits, which is good, but you will occlude from view a very large number of family documents”?

Gregg Rowan: If I may, I don’t think it’s so much just removing the documents from view; it’s the actual – it’s the exclusion of those documents from the dataset in a way that makes them, as we’ve seen, very difficult to retrieve and to go back to the position before item-level de-duplication was applied. So it’s that consequence, that’s the particularly severe consequence, or one of them, of item-level de-duplication –

Mr Beer: Well, it’s a severe consequence if you’re trying to do a remediation exercise. For the Inquiry, the severe consequence is that those documents aren’t reviewed for disclosure, the de-duplicated families –

Gregg Rowan: Forgive me.

Mr Beer: If you apply item-level de-duplication –

Gregg Rowan: Yes.

Mr Beer: – the other documents that are part of the families are occluded from view. They’re not part of the search –

Gregg Rowan: Yes.

Mr Beer: – and therefore can’t be part of a review, and therefore can’t be disclosed to this Inquiry in response to a Rule 9 Request. That’s the principal vice, isn’t it, of an item-level de-duplication exercise?

Gregg Rowan: It’s an aspect, but the point I was trying to make was that another significant aspect is the difficulty with getting the documents back. And putting that crudely, there’s more complexity –

Mr Beer: That’s only an issue if you realise the mistake later down the line and you have to scrabble around and do a remediation exercise, isn’t it?

Gregg Rowan: No, I wouldn’t agree with that. It might be an issue a few days later. You may review the documents set that has been made available following the de-duplication having been run, and you may take the view that you want to review more documents.

Mr Beer: But in any event, KPMG didn’t say, in any of the communications, “There are these different species of de-duplication, and they have these consequences, which would you prefer, HSF?”

Gregg Rowan: No, they didn’t. There was an email in June this year explaining the – setting out the different types of de-duplication.

Mr Beer: Which is all a bit late, isn’t it?

Gregg Rowan: Yes.

Mr Beer: You say about this in paragraph 121(j), which is on page 48 of your witness statement, (j). That’s it:

“As to the impact of de-duplication more generally, I’ve noted … above that there appears to [be] a misalignment between my team and KPMG as to the approach to de-duplication and its implications.”

That’s a rather enigmatic phrase, if I may say so, “a misalignment as to approach”. Are you describing, by the use of the phrase “misalignment”, a misunderstanding between those giving the instructions and those receiving them?

Gregg Rowan: Yes, in part, I am.

Mr Beer: Can I turn to remediation work, then, please. If we can turn up in your witness statement page 64, please. This is the start of the annex to your witness statement; is that right, Mr Rowan?

Gregg Rowan: Yes, it is.

Mr Beer: If you go to the foot of the page, please, you’ll see that the annex is 136 pages long. You’ve kindly set out for us in detail the remediation exercise that has been undertaken in relation to the three issues that we have been discussing but, additionally, a disclosure assurance exercise that has been undertaken in conjunction with the Post Office; is that right?

Gregg Rowan: Yes.

Mr Beer: I’m not going to go through any of that, it’s there for anyone that’s interested to read it but, just in relation to the timescales of some of it and the implications for Phase 4 of the Inquiry, which starts in a fortnight – or it continues in a fortnight – it’s right, isn’t it, that the chairman directed that disclosure for witnesses commencing their evidence on 19 September this year and following must be complete by 14 August 2023. They were his directions?

Gregg Rowan: Yes.

Mr Beer: So that gave the Inquiry a little over a month to digest the disclosure, to analyse it, to disclose it to Core Participants, to allow Core Participants to digest and to analyse it and to propose questions to upcoming witnesses?

Gregg Rowan: In relation to these –

Mr Beer: The first witnesses?

Gregg Rowan: Yes, the first witnesses in the case study, yes.

Mr Beer: It appears from the annex and updates to the annex which we have received recently that that deadline was not met and is not going to be met by the Post Office; is that right?

Gregg Rowan: No, the work is ongoing.

Mr Beer: Instead, a principal deadline of 14 September has been set –

Gregg Rowan: Yes.

Mr Beer: – by the Post Office itself, or a deadline that it is working to?

Gregg Rowan: I wouldn’t call it a deadline, as such. I’d call it a realistically achievable target date that the entire teams – my own, Peters & Peters, Post Office – are working very hard to meet.

Mr Beer: So that’s Thursday, 14 September, with us commencing our witnesses on Tuesday, 19 September, giving us the two working days to look at any material that arrives on the 14th?

Gregg Rowan: The way we have approached the exercise is to try to prioritise by reference to the Inquiry’s running order for the rest of the year. So in relation to – I think I’m right in saying it’s the case study that comes first – that was prioritised and closed out some time ago. So my hope is – and there was a relatively small number of documents produced in relation to that, so my hope is that, in relation to the case study, that would allow sufficient time for the documents to be reviewed, and certainly more than a couple of days.

Mr Beer: In relation to the documents that have been disclosed as a result of the remediation exercise, I think you’ve kindly prepared a table for us.

Gregg Rowan: Yes.

Mr Beer: I’m going to work over the one that was disclosed last night rather than the one at 8.21 this morning. Is it right that the total number of documents produced to the Inquiry as a result of the remediation exercise is 7,753?

Gregg Rowan: Yes, it is.

Mr Beer: That includes a number of duplicates and near duplicates –

Gregg Rowan: Yes.

Mr Beer: – despite the remediation of the de-duplication errors?

Gregg Rowan: Yes.

Mr Beer: Could you explain, please, why a re-duplication exercise has been undertaken only for duplicates and near duplicates then to be disclosed to the Inquiry?

Gregg Rowan: The exercise of remediating item-level de-duplication has involved reviewing the documents that were excluded by item-level de-duplication, which would have included, as we’ve discussed, duplicates of keyword responsive documents and their families. So a significant part of the production, certainly the production that’s to remediate item-level de-duplication, will contain, to that extent, duplicate documents, albeit they sit in different families.

More generally, by duplicate, the way we’ve actually characterised duplicates here is to talk about duplicates or near duplicates. Relativity has functionality that enables documents that don’t have the same MD5# value, but which are nevertheless substantively the same or substantively very similar, to be identified. So what we have done is used that functionality, to run that over the documents that have been produced and to draw to the Inquiry’s attention the extent of the near duplicacy that exists in the document set, which is very significant.

Mr Beer: Thank you very much.

Sir, they’re all the questions that I ask of Mr Rowan.

Oh, I’m just having something shown to me.

They’re all the questions I ask of Mr Rowan. Do you have any questions?

Sir Wyn Williams: No, thank you.

So that concludes the evidence that we set out to hear today.

Thank you, Mr Rowan, for your very detailed evidence and for the detailed answers you’ve given to Mr Beer.

I don’t propose to say anything at all this afternoon about the evidence which I’ve heard during the course of today or, indeed, to make any kind of comment about what I intend to do by way of making known my views, if any, upon that evidence. I want to reflect on what I do over the next day or two and then I will, at that stage, make a short statement in writing as to how I intend to proceed.

Mr Beer: Thank you very much, sir. That aside, we next see each other, I think, on Tuesday, 19 September –

Sir Wyn Williams: That is true.

Mr Beer: – albeit there may be a hearing in the week before.

Sir Wyn Williams: Yes. There is the possibility – let me use that word as neutrally as possible – of a hearing, I believe, on Thursday, 14 September. Is that the correct date?

Mr Beer: It is, sir. But you’ve not taken a decision on that because you’re waiting for some submissions on that discrete issue.

Sir Wyn Williams: Exactly so. So again, I say no more about that possibility. Right, that’s fine.

So thank you all for participating and, unless we meet on 14 September, I will see you all on 19 September.

Mr Beer: Thank you very much, sir.

(4.36 pm)

(The hearing adjourned until a future date)