Official hearing page

12 January 2024 – Christopher Jackson

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(10.04 am)

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

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

Mr Beer: Thank you, sir. May I call Christopher Jackson?

Sir Wyn Williams: Yes, of course.

Christopher Jackson


Questioned by Mr Beer

Mr Beer: Good morning, Mr Jackson. My name is Jason Beer and I ask questions on behalf of the Inquiry. Can you give us your full name, please?

Christopher Jackson: Christopher Michael Jackson.

Mr Beer: Thank you for the provision of a lengthy witness statement to the Inquiry, in response to two Rule 9 requests, that is requests served under Rule 9 of the Inquiry Rules 2006. I think the first request was dated 31 October 2023 and the second request was dated 17 November 2023, and you addressed both of them in a witness statement that was dated and signed on 19 December 2023; is that correct?

Christopher Jackson: That is correct.

Mr Beer: Although that’s the date you signed the witness statement, does it, in fact, reflect the position on the facts as you understood it on 1 December 2023?

Christopher Jackson: Yes, it does, that was the deadline to submit the draft witness statement. There are two updates in that the exhibit adds two letters from mid-December from us, because they went to the issues but, other than that, I didn’t update it.

Mr Beer: Yes, so there’s two letters exhibited by way of update, both dated 15 December 2023.

Christopher Jackson: That is correct.

Mr Beer: That witness statement is 99 pages long excluding its appendices. With appendices it’s 135 pages long and there are 34 exhibits to it. Can we look at it, please, WITN10810100, and if you can look in the hard copy version in front of you at page 99.

Christopher Jackson: Yes.

Mr Beer: Is that your signature?

Christopher Jackson: It is, yes.

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

Christopher Jackson: They are.

Mr Beer: That can come down from the screens. Thank you. In the witness statement and in the appendices to it, you promise at various points to update the Inquiry as to further information concerning the Post Office’s disclosure exercise as it becomes known to you; is that right?

Christopher Jackson: That’s correct, yes.

Mr Beer: I think it’s right that on 9 January this year, ie Tuesday of this week, you sent three letters to the Inquiry in that regard?

Christopher Jackson: Yes, we did.

Mr Beer: Two concerned the remediation or so-called remediation of what we’re going to discuss this morning, the Microsoft Exchange/365 issue; is that right?

Christopher Jackson: That’s right.

Mr Beer: And those two letters contained an explanation of how the Post Office proposed to remediate, put right what had gone wrong, disclosure in relation to Phases 2 and 3 of the Inquiry –

Christopher Jackson: That’s right.

Mr Beer: – and the disclosure that’s so far been given in relation to Phase 5 of the Inquiry, which we’ve yet to start.

Christopher Jackson: That is correct. With Phase 5, clearly the work was ongoing so with some of the requests that were live that didn’t need to be remediated because the Exchange issue was known, so was factored in to the responses and, indeed, some of the remediation work has already been done for one of the earlier notices.

Mr Beer: The third letter of Tuesday concerned an update to what is called by the Post Office a “structural review”.

Christopher Jackson: That’s correct, yes.

Mr Beer: The structural review is – is this right in general terms – a re-examination, consolidation and, if necessary, rectification exercise in relation to all of the disclosure which has been sought by the Inquiry from the Post Office?

Christopher Jackson: The structural review is focused on we call the left-hand side of the electronic disclosure reference model, although we’re covering hard copy as well, which is really the elements about identification, preservation and collection. Separately, we’ve been looking at an ongoing basis as to how Post Office responds to Rule 9 requests but the structural review itself is focused on those earlier stages: effectively, identification, preservation and collection.

Mr Beer: Thank you. By way of roadmap, this is principally for the Chair and the Core Participants, there are three topics that I propose to examine with you. For those new to the Inquiry, they may rapidly find the issues that we’re going to discuss in a moment rather dry. All I would say is that, if others find the issues somewhat desiccated, for the Inquiry the disclosure of documents is the lifeblood of the Inquiry and is required for a proper examination of the issues in our terms of reference and the 218 issues that we’ve identified in our list of issues.

The Inquiry regards it as essential that fulsome and timely disclosure of documents is given to the Inquiry by Core Participants and, in particular, the Post Office, because securing evidence from witnesses and testing that evidence and challenging that evidence is itself reliant on obtaining primary documentary materials. I think you would understand that?

Christopher Jackson: Fully understood and in full agreement, yes.

Mr Beer: So the three topics which I propose to address with you are as follows: firstly, the Microsoft Exchange/365 issue, what it is, what the issue is, when it arose, how it was discovered, what has been done to put it right and when the Inquiry will receive documents to which it is entitled. That latter issue is particularly relevant because it may affect the timetabling of Phases 5 and 6 of the Inquiry.

Christopher Jackson: I understand.

Mr Beer: Secondly, and relatedly, an examination of how the disclosure of Microsoft Exchange/365 documents relevant to yesterday’s witness, Stephen Bradshaw, was undertaken and what assurances you can give on behalf of the Post Office that disclosure of Microsoft Exchange/365 documents in relation to other witnesses who are to come will be given in a more timely manner.

Thirdly, the progress that’s been made with the structural review of disclosure and the extent to which it is necessary to take into account the outstanding tasks on the structural review in timetabling Phases 5 and 6.

Before we look at the issues, can I start with your background, the appointment of you and your firm by the Post Office and some of the overview points that you make in your witness statement.

So, by way of background, I think it’s right that you’re solicitor and a solicitor advocate; is that right?

Christopher Jackson: That’s correct, yes.

Mr Beer: You’ve been in practice since 1988?

Christopher Jackson: Yes, I have.

Mr Beer: You joined Burges Salmon in 1991 and became a partner in 1997?

Christopher Jackson: I did, yes.

Mr Beer: And you remain a partner at Burges Salmon?

Christopher Jackson: I do, yes.

Mr Beer: In terms of appointment, you and your firm were first appointed to act for the Post Office Limited in May 2023; is that right?

Christopher Jackson: That’s correct, yes.

Mr Beer: Your firm and Fieldfisher, another firm of solicitors, a subcontractor with whom you act in a joint venture, began to work for the Post Office on this Inquiry in May 2023?

Christopher Jackson: We did, in late May 2023, June, July and August we were learning the issues and mobilising and getting up to speed, and I took over as recognised legal representative on 1 September.

Mr Beer: I was about to ask you that. You replaced Gregg Rowan of Herbert Smith Freehills as the recognised legal representative, the RLR, of Post Office Limited on 1 September 2023.

Christopher Jackson: I did yes.

Mr Beer: I think it’s right, however, that Herbert Smith Freehills continued to work for the Post Office in relation to a range of issues connected with the Inquiry, most notably they retain operational conduct of the Post Office’s work on Phase 4 of the Inquiry –

Christopher Jackson: They do, yes.

Mr Beer: – the phase we’re currently engaged in?

Christopher Jackson: Yes.

Mr Beer: Can we just turn up paragraph 8 of your witness statement, please, on page 5. It should come up on the screen. This is just to set the context of some of the things that you are subsequently going to describe. You say in paragraph 8:

“The current situation is not one that anyone would wish to see continue. Post Office has asked me to convey its apologies for the current situation and to assure the Inquiry and other Core Participants that it is a Post Office priority to get to a position where hearings (and planning and preparation for hearings) can take place from a stable basis with the risks of further emerging data sources minimised and managed so far as is practicable.”

Mr Beer: Yes?

Christopher Jackson: Yes, that is correct.

Mr Beer: You say “The Post Office has asked me to convey its apologies for the current situation”; does that situation, the current situation, described as of 1 December 2023, remain today?

Christopher Jackson: Sorry could you clarify which part of the situation?

Mr Beer: That’s part of the question.

Christopher Jackson: The situation where – as I understand it, if I’m correct, where things are having to be done shortly before hearings in order to present evidence, that is, as I understand it, the position, and we’re not –

Mr Beer: We’re not out of that situation yet?

Christopher Jackson: We’re not out of that situation yet and the aim and the objective – there’s two objectives: one is to get the Inquiry the evidence that it requires to do all that it needs to do under the terms of reference to bring out all the truth and all the facts; the second, from our perspective and Post Office’s perspective, is to get hearings on to a stable case-managed basis and –

Mr Beer: By that, you mean that when we say we want to call Mr X in three weeks’ time on a Tuesday, Mr X does get called in three weeks’ time on a Tuesday –

Christopher Jackson: Correct.

Mr Beer: – and there isn’t a flood of disclosure in the days leading up to that Tuesday, which means Mr X has to be postponed or people have to work through the night in order to read documents?

Christopher Jackson: Correct. There is always, in these situations, below the waterline, an occasional document that might emerge. That is the reality, as – of the situation but, as a structural issue, it’s certainly Post Office’s aim to move beyond the present situation.

Mr Beer: I think you’d acknowledge that we’re not dealing with the usual vicissitudes of legal practice here, where the occasional document appears from below the waterline. What’s been happening in Phase 4, and what’s likely to continue to happen in Phase 4, are dozens, hundreds or thousands of documents relating to a single witness are disclosed proximately to that witness giving evidence. That’s what’s been happening.

Christopher Jackson: That has been the consequence of the Exchange issue, yes.

Mr Beer: So the position, the current situation, as you were describing it, as of 1 December 2023, remains current for Phase 4, in that the Post Office has not yet given full and complete disclosure for the witnesses who are due to give evidence in Phase 4 for the rest of this month?

Christopher Jackson: I don’t know. I’m not operationally sighted on Phase 4 because we’re not, for the reasons you say, delivering that.

Mr Beer: But I think what you can say is it remains the case at the moment – we’re going to discuss this later – that the Post Office hasn’t given full and complete disclosure in relation to witnesses who gave evidence in Phase 2 of the Inquiry, as between October and December 2022?

Christopher Jackson: It needs to be checked – because of the periods that apply to the Exchange issue, the extent to which there is additional material for them has to be checked but, until that is checked, I can’t say with certainty that there is missing material.

Mr Beer: The same applies to the witnesses who gave evidence in Phase 3 of the Inquiry as between January and May 2023?

Christopher Jackson: That would need to be checked also.

Mr Beer: The same applies, ie the Post Office has not given full and complete disclosure in relation to the witnesses who are going to give evidence in Phases 5 and 6 of the Inquiry, which the Inquiry wishes to commence as soon as possible after it concludes Phase 4?

Christopher Jackson: The concept of – there is more material to come. Full and complete is always, in modern disclosure, effectively – there becomes a degree of judgement, which has to be a degree of judgement for the tribunal on an informed basis. It shouldn’t be for the Core Participants to decide. But there becomes, after a certain point, a set of diminishing returns on what can be given relative to time and effort and the probative value of that material. So there is –

Mr Beer: But we’re not dealing with that here, in relation to Microsoft Exchange, are we? We’re not talking about diminishing returns type material that it would, applying a counsel of perfection, one would have? The material that’s been turned over as a result of Exchange/365 has included important material?

Christopher Jackson: The material in Phase 4 I haven’t looked at but I understand that and I am conscious that, counsel team, you would be wishing to receive it if it is probative.

Mr Beer: Yes.

Christopher Jackson: In terms of the Phase 5 material, the Exchange – yes, there is material within Exchange that needs to be looked at and looked at hard because there may be things in there. How much and in depth, it may vary from witness to witness but it needs to be looked at.

Mr Beer: Would you agree that the context in which the disclosure failings for which you convey the Post Office’s apology in that paragraph have occurred in a context that includes the following: firstly, that the Inquiry is examining the extent to which the Post Office breached the law in not disclosing relevant documents and information in criminal proceedings against subpostmasters and counter clerks?

Christopher Jackson: Those are very much within the terms of reference, yes.

Mr Beer: Secondly, the present disclosure failings occur within a context that includes the Court of Appeal Criminal Division having already found that there was non-disclosure by the Post Office, and that such non-disclosure breached the law in the criminal proceedings and that it rendered a large number of convictions unsafe?

Christopher Jackson: Yes, that was the finding in Mrs Hamilton’s appeal and that of others.

Mr Beer: Thirdly, the Inquiry is examining the extent to which the Post Office breached the law in failing to disclose relevant documents and information in civil proceedings that it took against subpostmasters?

Christopher Jackson: Again that is very much in the terms of reference, yes.

Mr Beer: Fourthly, we’re examining the extent to which the Post Office breached the law in failing to disclose relevant documents and information in the Group Litigation?

Christopher Jackson: Again, that is within the terms of reference.

Mr Beer: We’re looking at the extent to which the Post Office failed to disclose relevant documents and information in proceedings before the Court of Appeal Criminal Division?

Christopher Jackson: That is within the terms of reference.

Mr Beer: We commenced our Phase 2 hearings in October 2022 and the Inquiry has been required to delay the evidence of many witnesses –

Christopher Jackson: Yes.

Mr Beer: – including Gareth Jenkins, who has provided a witness statement to the Inquiry and whose evidence had to be adjourned because of failures in the Post Office’s disclosure?

Christopher Jackson: Yes.

Mr Beer: The context that we’re discussing today includes, as part of its background, the regrettable delay to Phase 4 hearings at the end of July 2023, the rearrangement of hearings to September to December 2023 and then, still further, the delay of some witnesses that we’re due to be called in that period to this year?

Christopher Jackson: That was the period when we were getting up to speed, so the reasons for those hearings being delayed, I’m afraid, I don’t know.

Mr Beer: Can we turn up paragraph 29 of your witness statement, please, which is on page 16. In the second line, you say:

“Historic data governance problems, many of which were embedded within the Post Office’s data landscape over many years, have risen to the surface under the scrutiny of the Inquiry and Post Office’s internal and external Inquiry teams.”

To be clear, this is a part of your witness statement that seeks to explain the context in which the disclosure exercise is occurring.

Christopher Jackson: Yes, that context is set out at paragraph 28, which is – and also then go on to set out factors which apply to many organisations at paragraph 31, because this period, this 25-year period covered by the terms of reference, is the period where IT was rapidly developing. I think Mr Justice Fraser makes similar comments in his judgments, and so in paragraphs 28 and 31, I’m trying to explain that context, and paragraph 29 sits with those two paragraphs.

Mr Beer: Thank you. You say “historic data governance problems”. What do you mean by “data governance”?

Christopher Jackson: Knowing what is where.

Mr Beer: Would you agree with this formulation of it: that data governance is the setting of internal standards within a company or an organisation, data policies that apply to how data is gathered, to how it’s stored, to how it’s processed, to how it’s disposed of or retained?

Christopher Jackson: Governance is about rules and also how they are implemented but also about knowledge as to how they – knowledge as to what is where and how those things are implemented, yes.

Mr Beer: So governance should be about policies, written documents, which define roles and responsibilities and which set out processes that ensure, would you agree, the accountability and ownership of data?

Christopher Jackson: That is part of governance because policies set the framework but then what you do within that is also part of governance.

Mr Beer: What are the data governance problems embedded within the Post Office to which you are referring?

Christopher Jackson: Many are – they are not atypical of large complex organisations during this period that I’ve seen, I haven’t – clearly, we’ve come to this very recently, so we’ve far from done a comparative analysis.

Mr Beer: Never mind about the comparison with other organisations but what are the data governance problems embedded within the Post Office that you have identified?

Christopher Jackson: Summarised as not a full map of systems and what is where and how it is evolved over time.

Mr Beer: You say that these are only rising to the surface – does that mean discovered – in the course of the Inquiry?

Christopher Jackson: Yes, because when – most organisations don’t have to go back in time, so when, subjected, rightly, to intensive scrutiny about some serious problems that have happened, then all of those things are interrogated and all of the things that are not known become apparent.

Mr Beer: But these data governance problems, I think you’re telling us, didn’t rise to the surface in the course of the Group Litigation or in the course of the disclosure exercise undertaken for the purposes of giving disclosure to the CCRC or the Court of Appeal Criminal Division?

Christopher Jackson: I don’t know because I wasn’t involved at that time. I’m not aware that they did but I don’t know.

Mr Beer: It was just that this paragraph, this part of the paragraph tended to suggest that they have risen, and only risen, to the surface in the course of the Inquiry?

Christopher Jackson: They have certainly done that. Whether they had done so previously or not, I don’t know.

Mr Beer: But this is about the way that the Post Office ran its business in the relevant period and, in particular, how it ran the part of the business that concerned governance of data. There were problems with that, is what you’re saying?

Christopher Jackson: Yes.

Mr Beer: Thank you. That can come down.

Can we turn, please, to something you said in a letter back on 16 October 2023 as to the Post Office’s intended approach to disclosure, outside of the three failures in disclosure we were then looking at, which were: misuse and use of search terms; the proper and improper conduct of a deduplication exercise; and the non-disclosure of families of documents.

Can we start, please, by looking at that letter which is WITN10810102. You’ll see that this is a letter written by you or by your firm, yes?

Christopher Jackson: It was by my firm. I was away at that time but, yes, it was by my firm, by my team, yes.

Mr Beer: By your team, okay, and jointly, obviously, with Fieldfisher, with whom you act in a joint venture?

Christopher Jackson: Yes, well, I think in my – operationally, it’s a joint venture. As I say, contractually, it’s a contract/subcontract relationship but, operationally, yes, it is.

Mr Beer: This is amongst the first letters that you wrote to the Inquiry and you say in the first paragraph, in the third line:

“As explained in [an earlier letter] we consider it is important to be frank and direct concerning the approach to disclosure so that any points of concern or differences in understanding can be discussed.”

Then over the page, please, to page 2 and look at paragraph 4. So here you’re dealing with different remediation work, ie remediation of different failings, yes?

Christopher Jackson: I mean, there had been quite a number of letters sent before that. I mean, they – between the end of August and this one, I think there’d been 22 points of engagement suggesting discussion or case management –

Mr Beer: Yes. No, we get about ten letters a day from the Post Office, many of which are more than 10 pages long.

You say in paragraph 4 that the Post Office understands the Inquiry’s concerns about – and these were the there is problems that we were then dealing with back in the autumn and have been the subject of previous hearings – “Search Terms, Deduplication and Family Documents”. You say that it, the Post Office, has apologised previously for what has happened and the impact on the Inquiry and sought to rectify them as swiftly as possible. You say:

“At the latest update [paragraph 5], the remediation and assurance exercises undertaken following the July Directions have involved the review of at least 402,000 documents and the production of 11,357 documents: a relevance rate of about 2.82% … As the Inquiry has noted, this figure includes a high proportion of duplicates or near duplicates of documents which have already been produced to the Inquiry. When they are taken into account [the Post Office] estimates the true … figure of relevancy when excluding exact and near duplicates to be 1.83%.”

By way of comparison, for a previous review for a Section 21 notice, 48% relevancy rates were returned.

You say paragraph 7:

“Although these stringent measures have been necessary in relation to the specific circumstances arising in respect of the Three Issues [that’s search terms, deduplication and family documents], this approach does not reflect what is required for [the Post Office] to comply with its disclosure obligations in relation to previous or future requests. The principle of reasonableness in relation to disclosure to the Inquiry – even if operating at the more stringent end of the spectrum – does not, and cannot, require [the Post Office] to leave every stone unturned. Such a standard is impossible for [the Post Office] realistically to comply with. Therefore, [the Post Office] does not intend to adopt a similar approach to future requests having regard to the low rates of relevance.”

Two questions arising from that, if I may. You’ll see there that what is described is said to be a low rate of return for relevant documents – 2.82 per cent before deduplication and 1.83 per cent after deduplication – and it’s that which leads to the suggestion in paragraph 7 that the Post Office isn’t going to carry on doing this and it’s going to apply, instead, a different approach.

Can I understand, firstly, have we understood this correctly: that when carrying out remediation work, the Post Office used, as a measure of reasonableness and proportionality of what it was doing, the size of the pool of documents that it itself created for itself, and then compared it to the size of the pool of documents that it ended up disclosing?

Christopher Jackson: No, that isn’t correct.

Mr Beer: That’s how this reads; do you agree?

Christopher Jackson: No. Um –

Mr Beer: It says, “We reviewed 402,000 documents”, that 402,000, would this be right, involved the application of some search terms to create a pool?

Christopher Jackson: Yes.

Mr Beer: Then you measured how many of them ended up being disclosed, and that figure was 2.8 per cent of them?

Christopher Jackson: That was done after the event, not to design the remediation.

Mr Beer: I’m not saying it was designed that way, I’m saying it ended up being the case that you disclosed 11,357 documents?

Christopher Jackson: Post Office did, yes, in relation to the three issues. The – this letter was a request for a case management discussion, covering about seven or eight items, of which this was one, prefaced saying “This is our or Post Office’s understanding of the position”, but – I haven’t got the rest of the letter in front of me on the screen, but saying words to the effect of “want to check the extent to which this is or is not aligned with the Inquiry’s expectations, so could we please discuss”.

Mr Beer: Yes, and you know that what happened is that although there was a meeting, the Inquiry wish to maintain more than an arm’s length relationship with the Post Office and would not seek to approve or pre-approve what the Post Office proposed to do?

Christopher Jackson: Certainly, there wasn’t a request for approval or – yes, there was a meeting on the 3 November. The first Rule 9 – rather than the discussion, the first Rule 9 Request to me arrived asking for an explanation about this letter, which I’ve sought to give, yes.

Mr Beer: I want to get back to what’s written here which seems to be “In deciding what’s reasonable, we have had regard to the relevant rate of return on a pool of documents that we created”; do you agree that’s what it says?

Christopher Jackson: Well, Post – it’s the rate of return for the remediation on the three issues.

Mr Beer: Yes.

Christopher Jackson: It was done over the summer, and it is used, effectively, as a reality check. In all electronic disclosure, for the reasons I’ve set out in paragraph 31 of my witness statement, effectively, there is always a judgement call but it has to be a judgement call for the tribunal, ultimately, because it can’t be for the Core Participants in the final instance. It has – the Core Participants or the disclosing party should explain what it is doing and –

Mr Beer: What you’re explaining, that what your client is doing it here, is it’s saying: “We created a pool of documents somehow that had 402,000 documents in it we ended up disclosing 2.82 per cent of them, ie 11,357 documents.”

Christopher Jackson: Mm.

Mr Beer: “That’s such a low rate of return we’re not going to carry on doing it this way; it’s going to be different in the future.”

Christopher Jackson: It’s the balancing exercise between the two objectives I mentioned earlier, which is –

Mr Beer: Just before you go on, do you agree that’s what this says?

Christopher Jackson: It – as a mathematical situation, yes.

Mr Beer: Ie the maths has been used to decide what the Post Office is not going to do in the future, because it is said to be not reasonable?

Christopher Jackson: As a proposition, with the request for discussion with the Inquiry, in the way that is done in all case management hearings in civil litigation and in our experience in an inquiry context.

Mr Beer: Does it occur to you, looking at this now, that this may be a flawed approach?

Christopher Jackson: No.

Mr Beer: Does it occur to you that it depends what approach you take to the creation of the initial pool that will significantly affect the percentage that you end up with?

Christopher Jackson: The size of the initial pool and what you end up with after review are directly related to each other. The relevance rates – sorry.

Mr Beer: How you created the initial pool is going to affect the percentage you end up with, isn’t it? I mean, take an example: if you said, “In my creation of my initial pool I’m going to use as my search term the word ‘the’, I want to collect in an initial pool, all documents with the word ‘the’ in them, and I’m going to end up with, say, 10 million documents. I’m then going to apply the inquiries Rule 9 and Section 21 search terms to them, and when I apply those search terms to them, I find 10,000 documents that are actually relevant. I’ve got a relevance rate there of 0.1 per cent. That’s unreasonable. It’s such a low percentage, I can’t carry on doing things this way”.

So the way you construct the initial pool is directly relevant to the percentage that you end up with, agreed?

Christopher Jackson: In this context, this was a remediation exercise done by HSF.

Mr Beer: Yes.

Christopher Jackson: So, yes, as a proposition. These, as I understand it – but this was not an exercise we did – the 402,000 were documents already understood to be relevant or for the purposes of early disclosures. That may not be –

Mr Beer: I appreciate this was done by HSF but your firm, more properly, is writing here to say “This approach of comparing the initial pool that we find for ourselves and then the final pool that we end up disclosing, a comparison numerically between them, is directly relevant to the reasonableness of the exercise.”

Christopher Jackson: Yeah.

Mr Beer: Isn’t the relevant question here, the relevant issue, as part of this exercise, “We ended up disclosing 11,357 documents that, if we hadn’t done this, the Inquiry would never have had”?

Christopher Jackson: It should absolutely – I think it – it goes on to say this should definitely have been done in this context.

Mr Beer: But it says, “We’re not going to do that in the future”?

Christopher Jackson: That is the proposal and the request to discuss.

Mr Beer: But do you agree that the relevant point is: “We, the Post Office, ended up disclosing just shy of 11,400 documents that, had we not done this, the Inquiry would never have had?”

Christopher Jackson: Correct.

Mr Beer: Not “We created a pool of 402,000”, and there’s such low relevance rate that we think this is an unreasonable approach for the future”?

Christopher Jackson: Relevance rates are used – because there’s a relationship between review and time, and so linking into the impact on hearings, if one is reviewing at very, very low rates of relevance, that – the standard within the Inquiry’s disclosure protocol is rightly reasonable in all the circumstances, and with all the appropriate rigour and I’m paraphrasing.

Mr Beer: I’m exploring with you the question of how the Post Office approaching the question of reasonableness. What measure, what indicia it used itself for deciding whether something was reasonable and, as paragraph 7 says, this is not going to continue?

Christopher Jackson: What the subsequent proposals go on to say, I think, is effectively that it will be done on a specific basis, which is what, from recollection, HSF had been doing. Gregg Rowan’s witness statement often 5 September basically said they were taking Rule 9s on a case-by-case basis and then applying the standard, which is reasonable in all the circumstances. And this, I think, was a reversion to the discussion about reasonable in all the circumstances. So with certain Rule 9 requests, one looks at absolutely everything. For others, it is simply not practicable and, if, as a reality check, one is reviewing at very low rates of reliance, that indicates a problem both as to the process and also impact on hearings and time but it was a request to discuss.

Mr Beer: Can we scroll down to paragraph 8, please, to see what – and just onto the next page as well. You continue:

“The Post Office will revert to its previous approach to the identification and review of potentially relevant materials. If a search term returns a significant pool of documents, this will be refined using revised search terms.”

Just stopping there, does that mean “If we use search terms and in our judgment the number in the pool is too high, we will come up with some other search terms in order to make the pool smaller, so we’ve got less documents to look at”?

Christopher Jackson: Yes, that is the only way some – it depends on the particular request that has been made. So to draw a really practical example, I won’t go into the detail for confidentiality reasons, but Request 21/08 was for a very defined pool of documents, so one can identify, isolate and review effectively all of them, up, down, top and sides.

Section 21/03 covered a period of two decades, potentially, or certainly many, many years, and had 14 issues, many, many sub-issues, and many, many individuals. So one starts with the search terms, and if the document pool initially – and you check it – comes to several million, which it did, but there is a statutory requirement also to meet a deadline or to apply for extension if you can’t, then, as a matter of practicality your – that’s indicating that you’re capturing things that are probably not relevant so yes, you refine the searches to try to hit that sweet spot between impact and getting the right material or as much of the right material as you can.

Mr Beer: So search terms are therefore selected, identified, designed into the system, that have the intention of returning fewer documents?

Christopher Jackson: No. That’s not the intention. The intention of search terms – when search terms are used, it’s not the only technique that’s used. For some searches you can do it on a targeted or specific basis. Where search terms are used, the intent is that you are getting the material that the other party or the court or tribunal or inquiry requires, in the time that it needs it, balancing the realities of electronic disclosure.

Mr Beer: The letter continues that on the second page there:

“… dip sampling will assure the quality of the review exercise.”

Who conducts the dip sampling exercise?

Christopher Jackson: It will be done within the disclosure team. There are different levels to disclosure team, so you have your first tier reviewers, that will be done generally by your Tier 2 reviewers, or by other, more senior people for all reviews, so it is done within the disclosure expert team.

Mr Beer: Okay, so they’re lawyers, not the KPMG or other e-disclosure providers?

Christopher Jackson: Correct.

Mr Beer: You say the final result will be a smaller pool?

Christopher Jackson: Yeah. Sorry, there will be dialogue with KPMG as to – as you refine search terms, to find out what is working to get to the evidence that you need. So there’s input from KPMG but the dip sampling is done by the lawyers.

Mr Beer: In paragraph 10 in the fourth line, you say:

“Although the professionals employed by [the Post Office] and its external advisors are well used to working at pace and for prolonged periods of time, it is not realistic to expect that they will be able to maintain this pace and continue to work during the evenings and over weekends.”

Did what we see there in paragraph 10 lead to the redesign of the approach of using refined search terms to identify smaller pools of potentially relevant documents?

Christopher Jackson: No. They’re separate points. Clearly, well – there’s a wellbeing aspect to teams. Lawyers work hard. We all work hard and do weekends and late nights, and so on. The point that I understand that this paragraph is trying to make is that, if that is relentlessly done over a period of weeks or months, then that has, as it says in the paragraph, a human impact, and has to be factored in.

Mr Beer: As a result of this, we asked whether any significant changes had been made in relation to the resourcing by the Post Office of its disclosure and, in short, the answer is that resourcing has not decreased. Instead, since 5 September hearing, it’s materially increased; is that right?

Christopher Jackson: That’s right. Obviously, it flexes according to what is happening at any one time. If there are particularly intensive demands, then the resources upsurges but, yes, the numbers were given in my statement as at 1 December, which is a particularly intensive period.

Mr Beer: We can look at those, it’s page 98 of your witness statement, please. Page 98, please:

“In terms of the relative sizes … these are broadly similar between [Herbert Smith Freehills] and [Burges Salmon/Fieldfisher] …”

Since 6 September, the numbers are as follows, and these are absolute numbers rather than full time equivalents, yes?

Christopher Jackson: They are, so some people will be full time some people will be –

Mr Beer: Part time?

Christopher Jackson: – providing half of the time – they’re full time – sorry, many of them will be full time lawyers but they will be working.

Mr Beer: Part time in this file?

Christopher Jackson: Exactly so, but what footnote 17 was trying to do was to take and produce an equivalence to say those who are working very few hours are in the low tens. So people are working substantively –

Mr Beer: So, at Herbert Smith, 171 individuals including 68 trainees, paralegals or other first tier reviewers; at Peters & Peters, 45 and 17; at Burges Salmon/Fieldfisher, 175, of whom 80 were trainees, paralegals or other first tier reviewers.

Elsewhere you say that the general figure has remained at about the 350 mark; is that about right?

Christopher Jackson: I don’t recall that paragraph. Could I take – go to that paragraph?

Mr Beer: I can’t remember where I got it from. I think it was a letter. These figures we see here, do they continue to date?

Christopher Jackson: As – they will have gone down since then, because the – clearly, you don’t have people sitting around not doing things and once – so, for example, as is currently the situation, there is a prioritisation of Exchange data. The constraint is not the availability of review capacity; it’s the waiting for the data to come through.

So those numbers are available, they’re not all – it’s probably fewer than this working at the moment but that’s not a scaling back of the team, any other reason than available data and task.

Mr Beer: Thank you. With that background then, can we turn to the first issue, Microsoft Exchange/365, and turn up page 24 of your witness statement, please. You set out here in italics the issues that the Inquiry asked you to address, on all of that page; is that right?

Christopher Jackson: That’s –

Mr Beer: That’s an extract from the Rule 9 Request?

Christopher Jackson: That’s correct.

Mr Beer: If we scroll down so we can see the remainder of (e). Then in paragraph 34 of your witness statement, if we go forwards to that, please, which is on page 24. You say that:

“[The] Post Office has yet to conclude its investigation into these issues …”

Christopher Jackson: I did, yes.

Mr Beer: The Microsoft Exchange/365 issue, I think was first – you’re going to tell us – discovered by the Post Office in May 2023?

Christopher Jackson: The – I’m trying to recall the month. The trigger for it was the email, the Wise email from 2011, that was initially picked up by HSF. I’m just trying to recall the particular month that would –

Mr Beer: That was May. So Andrew Wise had accessed an email in order to answer a Freedom of Information request, it was the provision of what became known as Appendix 6 and Herbert Smith Freehills identified why haven’t we got part of that email – why haven’t we got that email in the searches we’re conducting? That was one of the two triggers; is that right?

Christopher Jackson: That is my understanding, yes.

Mr Beer: That was in May 2023. Why is it that the investigation into the failure to disclose Microsoft Exchange/365 data has taken eight months, at the time you were writing and still now, because I don’t think it’s concluded yet?

Christopher Jackson: I don’t think it has taken eight months to get to that point. I think the Inquiry, it was pursued between May, June, July and then the – written to the Inquiry in August. By the time we’d got to – the state of understanding has not advanced materially since the position was set out for the Inquiry in early October.

Mr Beer: It was the part of this paragraph that says that Post Office has yet to conclude its investigations into the issue?

Christopher Jackson: As at 1 December, and it will continue to, effectively, test the state of knowledge. This is the state of knowledge as it exists at the moment.

Mr Beer: So the investigation wasn’t concluded on 1 December, has it now concluded?

Christopher Jackson: Yes, in terms of the working conclusions, but will it not – if we have a reason to doubt it, we will go on to – we will look at whether these conclusions are right. We will keep them under review, effectively. So –

Mr Beer: Yes, of course, so the investigation into the 365 issue has concluded; when did it conclude?

Christopher Jackson: It wasn’t set up as a formal investigation with a formal start date or a formal conclusion date. It is under examination. So, for example, there are issues with post-1 January 2016 data, for example. The working assumption, at the moment is that items post-1 January 2016 are trivial – and I can give some examples – but that is being reality checked and if we find that that is not the case, then we will update the Inquiry. So it’s effectively keeping alert to further developments and actively checking.

Mr Beer: But although what you tell us today therefore can’t be taken to be the last word on the subject, would that be right, the issue has been sufficiently investigated, would you agree, for you to be able to give us some strong evidence-backed conclusions?

Christopher Jackson: Yes, and these are evidence-backed conclusions that we will keep testing, so we are confident they remain valid.

Mr Beer: Thank you. Can we start, then, as the first issue – that statement can come down thank you – with an explanation of the systems.

Christopher Jackson: Yes.

Mr Beer: I’m afraid this is super dry. So can we start with an explanation of the Post Office’s email systems and how they’ve changed over time. We need to do this to be able to understand what we’re going to speak about later. Before even that, can we set out some terminology and concepts that are relevant to a disclosure exercise relating to emails.

Christopher Jackson: Of course.

Mr Beer: You kindly undertake this for us in part on page 26 of your witness statement. And paragraph 36(a), (b) and (c). So if we can look at page 26, paragraph 36.

Christopher Jackson: Yes.

Mr Beer: You tell us about, essentially – if we scroll down to (a), you tell us about essentially three species or types of email and email exchange or gateways. So 36(a) to start with. You say:

“First, and most recognisably, when an email is sent from or to an email client such as Outlook … on a user’s device this is stored in a local email data file or mailfile on the device … and email data on that local file can be viewed from the email client even when the device is offline …”

So an email client is a software application that’s used to access, manage and send emails, like Outlook, like Apple Mail or other applications?

Christopher Jackson: Yes, a gateway is something different.

Mr Beer: Yes. So that’s the first concept, an email client like Outlook or Apple Mail. Then can we look at 36(b). You say:

“… emails are not sent directly to or from an email client. Rather, the email client … connects with a cloud-based mail server that sends out or receives the email. Post Office currently uses Exchange as its mail server. This is a server-level email data file or mailfile (‘Exchange mailfile’) that synchronises with and replicates the local mailfile. Permanent deletions of email data by users at local client level will synchronise and replicate in the server mailfile after 30 days unless a relevant litigation hold has been applied (which would prevent permanent deletion from the Exchange mailfile). By design and because of the application of the litigation holds we are instructed Post Office have put in place, Exchange mailfiles would be a more complete record of emails than local mailfiles so there would be no benefit to harvesting a local mailfile if an Exchange mailfile also exists.”

So what you’re referring to here, in summary, is what might be described broadly as the mail server?

Christopher Jackson: Yes.

Mr Beer: Then if we can look at paragraphs 36(c) and (d):

“In addition, Post Office utilises a further email gateway platform that records a copy of emails transmitted within Post Office’s Exchange server and through which emails between its Exchange server and an external email domain must pass. Current platform used by Post Office is Mimecast. Among other email services, Mimecast services include … a repository that keeps a separate, immutable copy of:

“(i) all external emails transmitted between email domain and any other email domain; and.

“(ii) all internal emails sent between email addresses transmitted within the Exchange server itself but are then uploaded to Mimecast.

“That function (known as ‘journalling’) creates an archive of email data that flows into, out of and within Post Office that is separately held on the Mimecast platform. Importantly, Mimecast only journals live email traffic once Mimecast has been activated – it does not journal email data that pre-dates its activation and operation.”

So would you agree here what you’re describing in 36(c) and (d) is what might be described as an email gateway and an email gateway is a type of email server that, amongst other things, protects an organisation’s internal email servers, provides pre-delivery protection by blocking email-based threats, for example, before they reach a mail server. That’s not what we’re concerned with here. Here we’re talking about retention.

Christopher Jackson: Yes, it has various different levels of functionality but it’s the point at which the email passes, you know, from the client to somewhere else, hence the gateway.

Mr Beer: Yes. Can we go to paragraph 42 of your witness statement, please, which is on page 32. If we scroll down – thank you – you say:

“Given [a number of factors], loss of institutional knowledge has been a key factor in the ability of the Post Office to reconstruct its understanding.”

Then you say you set out in Appendix 1 Post Office’s understanding of the summary position on pre-2016 email data, as explained to Burges Salmon/Fieldfisher by Post Office, accompanied by diagram prepared by the Post Office to illustrate its current understanding of how its email systems have evolved.

Christopher Jackson: Yes.

Mr Beer: I’m not going to go to or through Appendix 1, it’s going to be on the record because this witness statement will be uploaded but, essentially, what that is, is a narrative account, assisted by a diagram, of the evolution of the three species of email systems that we’ve just described over a 20-plus year period.

Christopher Jackson: Yes, and an earlier – Lotus Notes was the predecessor of the Microsoft systems and that’s captured within the diagram at Appendix 1.

Mr Beer: Would you agree that that’s the kind of thing that should be prepared at the beginning of a disclosure exercise, not three years into it? I’m not criticising you.

Christopher Jackson: You would seek – at the start of a disclosure exercise, you would look to find out what was held where in email systems and – to gain that understanding, yes.

Mr Beer: Can I press you on that a little bit. Would you agree that it’s common sense that, when you’ve got to do a disclosure exercise you say “Well, what kind of disclosure exercise are we looking at: hard copy documents or electronic documents?”

“Electronic documents.”

“What kind of electronic documents?”

“Oh, we are looking at email, amongst other things?”

“Right, we are looking at email. We need to find out what email clients were in operation across the relevant period. We need to find out what mail servers were in operation across the relevant period. We need to find out what email gateway platforms were in operation at the material times. Where are we going to harvest from? Will that give us complete coverage?”

Christopher Jackson: Yes, and that’s what the EDRM model seeks to achieve. You’re tying to find out what is held where, and how you get to it.

Mr Beer: Was that one of the first things that you decided needed to be done when you were instructed?

Christopher Jackson: Yes, but in the – before we were instructed, we had set out in our tender that we were going to use that methodology to – the way we put it was for Phases 5 to 7, which is what we’d been instructed to do.

Mr Beer: So you set out to create a narrative account to work out what this part of the data universe looked like and, would you agree that with what I suggested earlier, it’s common sense that you do that at the beginning of the disclosure exercise, not three years into it after the Inquiry has already heard from nearly 200 witnesses?

Christopher Jackson: We didn’t – when we set out to do it we had no concept of the Exchange and Mimecast issue.

Mr Beer: That, Mr Jackson, I think you’ll know, is an answer to a different question.

Christopher Jackson: Sorry, there were two questions. I was attempting to answer both of them.

Mr Beer: You were building up to an answer, okay.

Christopher Jackson: I was attempting to – the first question was: were we aware that we set to deal with the Exchange and Mimecast issue? And, no, we didn’t because, we didn’t know about it.

Mr Beer: No, I wasn’t asking that at all. If I did, I’m sorry.

Christopher Jackson: At the start, yes, you do need to find out what’s there and you talk to the IT staff and you try to build up the best picture that you can as to what is where, yes.

Mr Beer: Well, this is really common sense, isn’t it? If you translated this to something much more humdrum, a physical disclosure exercise, you were instructed by a client and they say, “We’ve got some warehouses”, and you ask them “How many warehouses have you got and where are they?” and they say, “Well, there’s one in Sheffield and there’s one in Birmingham”, and you say, “Right, which documents are held in the Birmingham one and which are held in the Sheffield one?”

Christopher Jackson: Yes.

Mr Beer: It’s the equivalent of that, isn’t it? It’s working out –

Christopher Jackson: At the outset, you try to find out what you’ve got where, yes.

Mr Beer: Am I right, therefore, that I think you said that you identified this as something that needed to be done even before you were instructed, as part of the tender process?

Christopher Jackson: We, in our tender process we said what we do for disclosure – yes, we use EDRM to check what we’re doing –

Mr Beer: I don’t think you’ve described what EDRM is, yet.

Christopher Jackson: I apologise.

Mr Beer: If you can, in as few a words as possible.

Christopher Jackson: Certainly. It’s the Electronic Disclosure Reference Model, but it’s also used for hard copies. It really came in about 20 years ago but it’s been refined ever since. It’s a series of steps really that you identify, preserve, collect, then process, review, produce. And there’s a system of integrated governance so, effectively, you have a – you operate it as a system and that is the principle.

And there’s a diagram within the bundle, if it would be helpful to go to it, but, effectively, you’re approaching disclosure as a system from the start and that is the principle, and then if you’ve – inevitably, you don’t capture everything at the start, so there are a series of – the jargon is “feedback loops” but what that means is keeping your eyes open to see if you’re spotting things that you missed first time round and so, within the model, it contemplates that you learn things later that you didn’t know at the start.

Mr Beer: Would you agree that we’re being provided with documents now, as the Inquiry unfolds and in respect of witnesses who have come and passed through the seat that you currently occupy, because this was not done at the outset of the Inquiry?

Christopher Jackson: Certainly with Exchange, things are coming to witnesses now because of the Exchange issue was not identified at the outset, that’s right.

Mr Beer: Can I try and summarise Appendix 1 by reference to the relevant periods. I don’t want it to be turned up on the screen but can you have it open in your hard copy witness pack. The document on the screen can come down at the moment, thank you.

I am going to try and summarise quite a lot of information by reference to some periods. So, firstly, up until the early 2000s, that’s Period 1, Royal Mail Group used early versions of Microsoft Mail or MS Mail, and the Post Office has little information relating to that period and is not aware of any email repositories from that time?

Christopher Jackson: That’s my understanding, yes.

Mr Beer: Thank you. Period 2: from the early 2000s, Royal Mail Group started to use Lotus Notes, combined with something called a Lotus Domino server and a sendmail gateway. There was no journalling at a gateway level. People may have kept their own emails locally but very few repositories of emails from that time exist in a structured way, but some emails may exist on SharePoint or on One Drive.

Christopher Jackson: That’s –

Mr Beer: That’s your understanding?

Christopher Jackson: That’s my understanding.

Mr Beer: Thank you. In around 2008 or 2009, Royal Mail Group changed from Lotus Notes to Outlook and the email server changed from Domino to Exchange and its gateway from sendmail to IronPort; is that right?

Christopher Jackson: Again, that’s my understanding.

Mr Beer: Efforts were made to convert Lotus Notes to Microsoft data repositories but there were instances of data loss. After that migration it remained possible for locally archived snapshots of email data to be created and stored but that was discouraged, given the increased use of cloud-based systems, such as SharePoint.

Some data might have been retained on physical devices like USBs or other similar devices.

Christopher Jackson: Again, that’s my understanding.

Mr Beer: Then, in around 2012, Royal Mail Group changed from IronPort to Proofpoint, that’s its gateway; yes?

Christopher Jackson: Yes, I believe so.

Mr Beer: Email journalling was introduced in a manner broadly equivalent to Mimecast, as you describe it. However, the Post Office does not have information as to exactly when Proofpoint was activated and the retention periods or settings that were applied at that period of change. Correct?

Christopher Jackson: That’s my understanding.

Mr Beer: At that time, it’s understood that Proofpoint didn’t ingest pre-2012 email data from the Exchange mailfiles into its archive?

Christopher Jackson: Again, that’s my understanding.

Mr Beer: From 2012 to 2016, last period, some important changes that coincided with the demerger from Royal Mail Group to the Post Office Limited, firstly Post Office adopted Microsoft Exchange/365.

Christopher Jackson: Yes.

Mr Beer: It updated, secondly, Outlook and, in around 2015, it adopted Mimecast as its email gateway?

Christopher Jackson: Again, that’s my understanding.

Mr Beer: You say:

“This legacy mailfile data, ingested by Mimecast at its activation, came from Royal Mail Group’s Proofpoint email gateway in around late 2015.”

Is that right?

Christopher Jackson: Again, that’s my understanding. This is obviously all reconstructed knowledge –

Mr Beer: Yes.

Christopher Jackson: – by Post Office.

Mr Beer: Is it your understanding that, as Proofpoint was only activated in 2012, Mimecast was not expected to contain pre-2012 material?

Christopher Jackson: Again, that’s my understanding.

Mr Beer: Thank you. So that short description of the three levels of email services and gateways is the kind of thing that is the foundation for a disclosure exercise when one is concerned with emails?

Christopher Jackson: Yes.

Mr Beer: It’s now, having that foundation, that you’re able more accurately to assist the Inquiry, is this right, in providing relevant disclosure to it?

Christopher Jackson: Yes, and it introduces some practical challenges because Exchange is not a litigation disclosure system. So actually extracting and getting it in a form which doesn’t burden the Inquiry but gets the Inquiry the correct evidence is challenging but – so, yes, you have the basis to do it; it presents some operational challenges.

Mr Beer: Thank you.

Sir, that’s an appropriate moment. It’s 11.20 now, can we take a 15-minute break until 11.35, please?

Sir Wyn Williams: Yes, of course.

Mr Beer: Thank you, sir.

(11.19 am)

(A short break)

(11.35 am)

Mr Beer: Good morning, sir, can you continue to see and hear us?

Sir Wyn Williams: Yes, thank you.

Mr Beer: Thank you Mr Jackson can we look, please, at page 31 of your statement at paragraph 40. This is dealing with one aspect of the chronology of change in systems that we dealt with before the break. Page 31, paragraph 40. You say:

“I understand from Post Office that Mimecast was activated in or around late 2015.”

We covered that this morning:

“Allowing for transition time, there should therefore be a high degree of confidence that any and all emails sent or received from early 2016 onwards are held on Mimecast. However, out of an abundance of caution, Post Office is undertaking checks and I will update the Inquiry further if those investigations indicate any systemic issues with Mimecast journalling of emails transmitted from 2016.”

Have you got an update, please?

Christopher Jackson: Yes, those checks have been done and continue to be done. The indication is that – the indications are there is no systemic issue but we continue to – or we ask KPMG to test that. The indications are that anything – there are Exchange items that are not replicated in Mimecast post-1 January 2016. To the greater part, they appear to be things that would not travel through the gateway, so you would expect them to be passed –

Mr Beer: Such as?

Christopher Jackson: So personal calendar appointments, notes made on one’s own Outlook, that type of item. There are, however – and this is being checked against number of – and so draft emails, for example, that never leave the mailbox.

There are, however, some – a very small number of emails showing up for sample checks that we have asked KPMG to look at further and KPMG would wish to look at further. So that is the one remaining issue to be tested.

Mr Beer: So post-1 January 2016 emails that you’ve obtained, other than from Mimecast, don’t appear on Mimecast and you’re asking KPMG to find out why?

Christopher Jackson: Correct, because the working presumption so far has been that, effectively, post-1 January 2016 Mimecast is safe, if we can put it in that way, that it will be a complete repository but, because no one wants to end up in the situation again, we’re asking KPMG, and KPMG would wish to, and Post Office would wish to, test that presumption.

Mr Beer: Where have the emails been obtained from, post-1 January 2016, other than Mimecast?

Christopher Jackson: So the – they are taken from Exchange because the purpose of the exercise is to effectively compare Exchange to Mimecast to see the extent to which Mimecast is or is not safely picking up everything from Exchange.

Mr Beer: How many emails are we talking about?

Christopher Jackson: I don’t know. I mean, these are sample checks and I don’t know which specific individuals have been looked at.

Mr Beer: What do you mean they are sample checks?

Christopher Jackson: Clearly, there are many tens of thousands of individuals who will have had Exchange accounts, of which a number in the hundreds will be relevant to the Inquiry, to greater or lesser degrees, and Exchange is not a litigation support system, so it’s not very friendly to – or it’s not user-friendly to extract information. So, basically – it’s a sample checking exercise to validate that assumption.

Mr Beer: What assumption?

Christopher Jackson: The assumption – the working assumption here that it is safe to rely on Mimecast post-1 January 2016 as capturing everything that it needs to, in terms of emails.

Mr Beer: Can I just explore slightly further this idea of a sample? Obviously, it’s not everyone’s email account, irrespective of whether they had anything to do with Horizon or not. To what extent is it still a sample of emails that are being tested by KPMG, ie not all of the emails that you have discovered from Exchange, which are not replicated on Mimecast.

Christopher Jackson: Sorry, you’ll have to deconstruct that one a little for me, if that’s okay.

Mr Beer: How many emails have you established have not been replicated on Mimecast?

Christopher Jackson: We haven’t because you’d need to work through it. That is not something that is known at the moment, because one would have to decide – it would be a specific total for each person that you looked at. Each person that had an Exchange account. So you’d have to decide within the tens of thousands of users down to the number that are relevant to the Inquiry. So that is not known at the moment. The priority for the –

Mr Beer: What is known at the moment about how many emails are not replicated on Mimecast?

Christopher Jackson: The total is not known.

Mr Beer: No, I know the actual total that it might be is not known but how many emails at the moment has it been established are not replicated on Mimecast?

Christopher Jackson: I’m not following. It is just not known because you’d need to look at each of the users. There isn’t a – there isn’t a button to press to say compare the whole of Exchange to the whole of Mimecast.

Mr Beer: Earlier on, Mr Jackson, you said it’s not a systemic issue.

Christopher Jackson: Mm.

Mr Beer: It’s the working basis that you and your client are operating under.

Christopher Jackson: For –

Mr Beer: But there are a few, I think you used, or a small number of emails, and I’m trying to find out what that number is.

Christopher Jackson: I think for one – the short answer is I can’t remember. It’s been tested against one particular user over recent days, and it’s a low number but I can’t remember what the number is.

Mr Beer: Is that the only user in respect of which a test has taken place?

Christopher Jackson: I don’t know. I would need to check.

Mr Beer: Bearing in mind that we’re moving to Phases 5 and 6 soon, which include events which post-date 1 January 2016, is there a time frame by which you can say that this exercise will be completed?

Christopher Jackson: It will have to be a priority. I mean, this – the short answer is no. But we will – we can come back to the Inquiry on that. Part of the reason for the time that is taken is because the same resource that does this both at KPMG and at the Post Office is the same technical resource, which is having to prioritise searches for Phase 4 and, indeed, at Post Office, and to – it’s the Cyber Team, so protects all of the business of the Post Office.

So there has to be – not everything can be done at the same time and the priority, to date, has been to get the evidence into Phase 4. So that – we’ll need to come back with a timescale.

Mr Beer: Thank you. Can we look at a previous working assumption that was, I think, used, by looking at our tab B15, which is POL00165906. This is a letter written by Burges Salmon/Fieldfisher on 2 November 2023. It addresses a range of topics and I want to look at that part of the letter which addresses the current issue. If we look at page 3 of the letter, please, and pick up paragraph 16, you say – when I say “you”, your firm said:

“Around 2016 Mimecast was introduced and we understand that Proofpoint data was migrated into Mimecast. On that logic there should have been continuity of email data in Mimecast from 2012 onwards.”

So we’re here looking back to a similar point but back in history from 2012 to 2016.

Christopher Jackson: Mm.

Mr Beer: “We understand therefore that Mimecast was used as the source for email harvesting for the Inquiry and also for the GLO. We understand that 300+ email accounts have been harvested from Mimecast into the various part of the Relativity database for various phases of the Inquiry.”

Then paragraph 17:

“However, queries by Herbert Smith Freehills relating to the account of Andrew Wise, and in parallel queries at [Burges Salmon/Fieldfisher] in the course of work on the Section 21 notice have led to investigations by Post Office and by/with KPMG. Those have now established there are material volumes of email data that are in Microsoft Exchange but that are not in Mimecast (and which therefore have not been available for search). Post Office has not been able to establish why the Proofpoint to Mimecast transfer did not provide the assumed continuity/completeness.”

That last sentence there, in particular the assumed continuity and completeness, is it your understanding that the Post Office had previously been working on the basis of an assumption?

Christopher Jackson: That is our understanding, yes.

Mr Beer: So would it be correct, to your understanding and in the light of the investigations that you and your firm have undertaken, that, in none of the disclosure exercises that have been conducted previously for the Group Litigation, for the CCRC, for the Court of Appeal and in the Inquiry itself, no one actually thought “We should check whether the repository that we’re harvesting from, Mimecast, which was only introduced with effect from 1 January 2016, is actually a complete repository of emails sent and received before 2015”?

Christopher Jackson: There was no – essentially, yes, my understanding is that Exchange data, which was effectively the other source of data that could have been obtained for those various uses, was not looked at because Mimecast was felt to be a complete source, not only from its introduction in 2016 but because there had been this import from the earlier gateway system which is Proofpoint.

So the understanding, as we understand it, is now going back a number of years – it’s reconstructed knowledge – is that effectively the understanding was there was a complete set in Proofpoint and that complete set was moved into Mimecast and, therefore, there was a complete set and, therefore, Exchange was not – no, so that is – that, I say, is reconstructed –

Mr Beer: The reconstructed knowledge, the point I’m asking about, is that that was based on assumption, to your understanding, rather than somebody actually asking the question “We’re harvesting from a repository, Mimecast. Can we just check, it was only introduced in 2015, is it actually a complete repository of that which went before?”

Christopher Jackson: There was knowledge of – there was an assumption that between Mimecast and the import into Mimecast from Proofpoint that it would provide continuity. That is my understanding.

Mr Beer: Thank you. Can we turn to when the issue was discovered, by whom and in what circumstances. That’s page 40 of your witness statement, please, at paragraph 49. That can’t be right.

I’m looking for paragraph 49.

Sir Wyn Williams: I think it is page 40.

Mr Beer: Yes, thank you.

You set out here the two causes of the discovery of the incomplete nature of the data pool that was being used by the Post Office to give disclosure to the Inquiry.

Christopher Jackson: Yes.

Mr Beer: The first cause you address in paragraph 49(a):

“A series of documents had been provided by the Post Office on 19 May … as part of a [Freedom of Information] request in May 2023, but the full suite had not been provided to the Inquiry in response to any prior Rule 9 Request.”

We have investigated this previously, I should say. Those documents were then produced to the Inquiry on 30 May. These documents are referred to in some statements of Mr Foat and Mr Rowan.

Then, over the page:

“The [Freedom of Information Act] request response produced documents that were not found in any Mimecast data. [You] understand from [Herbert Smith Freehills] that the documents were, however, identified by Andrew Wise who, when searching through his Outlook email client, located an email (with attachments) that could not be found in Mimecast. That led to an initial query by [Herbert Smith Freehills] of the Post Office on 10 July … as to how Mr Wise had located the email in question which, over time, developed into a query as to whether there was a repository separate to Mimecast.”

So this was essentially a discovery by chance?

Christopher Jackson: I think – my understanding was that the – HSF were following up on how it was –

Mr Beer: I mean, had the Freedom of Information Act 2000 request not been made by the investigator/campaigner, Appendix 6, the racist and archaic identity code document, would not have emerged?

Christopher Jackson: I’m not aware that it was coming up in any other context.

Mr Beer: Mr Wise, an individual, produced the document by looking at his own Outlook –

Christopher Jackson: Yes.

Mr Beer: – and his production of it to the Freedom of Information team revealed that the same document couldn’t be found in Mimecast?

Christopher Jackson: That’s my understanding, yes.

Mr Beer: Then the second cause of the discovery you list in paragraph (b)?

Christopher Jackson: Yes.

Mr Beer: Essentially, is this a fair summary, a member of your team was seeking to identify documents that were responsive to a Section 21 notice served on the Post Office by the Inquiry on 21 July 2023 for the purposes of Phases 5 and 6 of the Inquiry?

Christopher Jackson: Yes.

Mr Beer: They found an email chain and they sought to find the originating email within that chain in Mimecast but couldn’t do so?

Christopher Jackson: Yes. I mean we were at an early stage but we were also aware at the – the 2(a) and (b) weren’t entirely unconnected. We were aware that HSF were following up on the point but, yes, this was a separate issue. We were wondering why the chain was not complete.

Mr Beer: We asked you to address in your witness statement where responsibility for the disclosure failure lay and you addressed this in paragraph 47(a), so if we just go back, please, to page 39. 47(a) is further down the page. You say:

“In relation to responsibility for the issue:

“(a) In terms of the responsibility (duty) to address the issue, this rests with Post Office. In terms of delivery, that, operationally, will need to be by advisers by phase.”

So am I right in thinking that there you’re taking the issue to mean the fact that emails are missing from Mimecast?

Christopher Jackson: I tried to take it on two levels in (a) and (b) – so, yes, this is the – I understood the question to mean how there were things in Exchange not in Mimecast, yes.

Mr Beer: You’re dealing in (a) with who has responsibility for responding to the identification of the issue?

Christopher Jackson: Yes.

Mr Beer: You’re saying that will need to be by advisers by phase and, decoding that, does that mean that, if the response relates to Phase 4 issues, that will be for Herbert Smith Freehills; if it’s in relation to Phases 5 and 6, that will be for us in Burges Salmon/Fieldfisher?

Christopher Jackson: Yes, at the time – it was less specific than that, because, at that stage, in terms of Phases 2 – so Phases 2 and 3, we were not, and, actually, as we stand at the moment, technically not retained to do Phases 2 and 3, we’d agreed, and it’s reflected on the Inquiry’s website, effectively, to be the point of contact for Phases 2 and 3, but on an assumption that substantive work had been closed.

Mr Beer: But what about the issue that, in fact, we were asking about: who has responsibility for the disclosure failing?

Christopher Jackson: That –

Mr Beer: Rather than who’s got responsibility for responding to it?

Christopher Jackson: I think that’s (b) and, insofar as the answer is who – effectively, it was a paraphrase for who is to blame, quite genuinely, I don’t professionally think it would be right to comment. There was two weeks between the question being asked and answering but, also, what we’ve tried to do throughout is focus on what happened and what can be done about it, rather than why.

Why questions or why answers tend to be involved and come up with competing versions. So I don’t think it would be right for me to express an opinion on things with which we were not involved many years ago, on the basis of work we’ve done in a fairly compressed period of time.

Mr Beer: Can we just look at the facts, then, as to how it was that the issue that’s now been discovered was not identifying earlier when searches were carried out over Mimecast. Is the endpoint, as you’ve described it in the witness statement, this, that the systems were either misunderstood or the existence of separate systems overlooked in the Group Litigation, the post-conviction disclosure exercise and in the Post Office’s previous interim disclosure statements to the Inquiry?

Christopher Jackson: Sorry, what’s that – could you take me to that section in my statement, please?

Mr Beer: Yes, I’m trying to synthesise about 20 pages of what you say as to why it was that this issue was not discovered in the Group Litigation, in the post-conviction disclosure exercise for the purposes of the CCRC and the Court of Appeal and in the four interim disclosure statements lodged in the Inquiry?

Christopher Jackson: I haven’t tried to answer a question as to why because the – I’ve aimed, to the best of my ability, as I’ve described it, to pull the threads together as to what happened factually. The short answer as to why is a much more complex question and I wasn’t involved in the time and I don’t know.

Mr Beer: Okay, well, let’s truly try and stick to the facts in relation to each of those three stages, Group Litigation, criminal appeals and then the interim disclosure statements to this Inquiry.

In relation to Group Litigation, you tell us in your witness statement that it was the Post Office’s obligation to file what was called an Electronic Disclosure Questionnaire or an EDQ?

Christopher Jackson: Yes, that has to be done under the CPR, the Common Procedure Rules of the High Court.

Mr Beer: So the rules that govern the litigation in some species of civil proceedings in the High Court?

Christopher Jackson: Yes, there’s a specific set of rules and a protocol that goes with it.

Mr Beer: We’ve got that Electronic Disclosure Questionnaire, the EDQ. Can we just look at that please. It’s POL00000657. Is this the Post Office’s Electronic Disclosure Questionnaire for the Group Litigation?

Christopher Jackson: I believe so. As –

Mr Beer: It’s exhibited to your witness statement saying “This is the Post Office’s EDQ for the Group Litigation”.

Christopher Jackson: Sorry, yes, I believe it is. The only reason for hesitating, I was just – they all look quite similar. I was just checking it was the correct one. Yes.

Mr Beer: Okay, well, we can have a look at page 13, please – page 12, please. We can see the date of it just at the foot of the page there, 6 December 2017.

Christopher Jackson: Yes.

Mr Beer: Then, if we scroll up, we can see that it’s signed by Andrew Parsons, a partner at Womble Bond Dickinson. His signature appears underneath where it says, “GRO” there?

Christopher Jackson: Yes.

Mr Beer: It comes with a statement of truth, “Defendant believes” – that’s the Post Office believed the facts stated in the answers to this EDQ are true and that he, Mr Parsons, is duly authorised by the Post Office to sign that statement?

Christopher Jackson: Yes.

Mr Beer: That’s also for a solicitor a significant step, isn’t it, signing a statement of truth?

Christopher Jackson: It is, yes.

Mr Beer: Because it’s the solicitor saying, on behalf of his client, to the court and to the claimants that it, the Post Office, believes that what’s in this document is true?

Christopher Jackson: That is correct, yes.

Mr Beer: I’m not going to go through this lengthy document and all of the attachments to it because you have kindly analysed it and provided the results of your analysis in your witness statement. Can we look at those, please. It’s page 50 of your witness statement, paragraph 60. You say:

“Based on Post Office’s current understanding of its email systems and repositories [which we’ve gone through already], unfortunately, it appears that these descriptions in [the document we’ve just looked at, the Post Office’s Electronic Disclosure Questionnaire] in hindsight were not accurate or were oversimplified.”

Can we go through the five categories of inaccuracy or oversimplification that you set out. The first category of inaccuracy or oversimplification, you say:

“Although Exchange is mentioned [in the EDQ] in the context of emails and instant messages, it is not identified as a separate server-level source of email data. References [in one of the appendices to the EDQ] appear to equate it [that’s Exchange] to ‘email software used by employees’”, and that’s wrong.

That would describe the Outlook Email client.

Christopher Jackson: Correct.

Mr Beer: So they’ve muddled up the email client and the gateway?

Christopher Jackson: Yes.

Mr Beer: So it’s a misdescription of what Exchange was and the function that it performed?

Christopher Jackson: Yes.

Mr Beer: Thank you.

Then (b):

“The statement that Post Office used Lotus Notes until 2012 is understood to be incorrect, current understanding is that Post Office stopped using Lotus Notes email client and Lotus Domino servers and started using the Microsoft Outlook email client and Microsoft BPOS-D servers over the period from 2008 to 2010. For completeness the statement is also incorrect as before Lotus Notes, it is currently understood that Post Office used versions of MSMail …”

So two inaccuracies that speak for themselves: one as to the time period over which Lotus Notes was in use; and the second in implying that Lotus Notes was in use at all material times, whereas for some of the period of time, Post Office was using MSMail.

Christopher Jackson: Correct.

Mr Beer: Third error:

“Consequently, the suggestion that the Post Office introduced Proofpoint email archiving at gateway level in 2012 at the same time that it moved to Microsoft Exchange and Outlook also does not look to match the currently understood timeline.”

That speaks for itself.

Christopher Jackson: Yes.

Mr Beer: The fourth error or inaccuracy is that:

“The assertion that all Lotus Notes data would have transferred to Exchange in 2012 is … incorrect, as well as the period of migration to Exchange occurring between 2008-2010, Post Office’s current understanding is that not all old email archives would have been migrated. Only those files associated with active users would have been migrated to Exchange at the time (if at all). It follows the indication that Lotus Notes archived data would be duplicative of Exchange is therefore also not (always/fully) correct …”

Out of the five errors, that’s perhaps second in terms of significance, would you agree?

Christopher Jackson: I haven’t tried to rank them in order.

Mr Beer: You haven’t applied a judgement as to the seriousness of the inaccuracies in what the High Court was told?

Christopher Jackson: No, I haven’t.

Mr Beer: Then you say:

“Finally, although implied at most, any reading of the [questionnaire], as suggesting that Mimecast (and before it Proofpoint) is a complete repository of:

“(i) Outlook emails either in whole or in part from 2012 onwards; or

“(ii) Lotus Notes emails imported into Exchange or any other emails pre-dating 2012

“would not be correct based on current understanding.”

Would you agree, firstly, that what you said there, as any reading, is a fair reading of the EDQ as a whole? It doesn’t make those implications?

Christopher Jackson: I’m sorry, could you –

Mr Beer: Yes.

Christopher Jackson: – put that to me again?

Mr Beer: You say there any reading of the questionnaire as making the following two suggestions would not be correct. I’m asking you: in fact, that is a fair reading, that it does make those suggestions?

Christopher Jackson: Yes.

Mr Beer: I was going to suggest that maybe that’s the most significant error, that implication that you haven’t applied qualitative judgement as to the seriousness of the mistakes of what the High Court was told?

Christopher Jackson: I haven’t, no. I’ve just set them out.

Mr Beer: If we go on to paragraph 61 of your witness statement, please, on page 52, you say:

“The … reasons for these issues …”

I’m going to call them inaccuracies in information provided to the High Court:

“… are not clear or known to me at this time and it would require much more investigation … to pinpoint the specific cause or causes of the issues.”

So you haven’t, in fact, investigated the causes in the failures in information provided to the High Court. I’m not going to seek to blame you for that. Would you agree the important point is the High Court and the claimants were given inaccurate information?

Christopher Jackson: With what is known now, yes.

Mr Beer: Thank you.

Can we move on to the criminal proceedings. In paragraph 63, which is on page 53 and following, you tell us about the disclosure exercise undertaken for the purposes of potential appeals against conviction, and appeals against conviction, in the Court of Appeal Criminal Division. To summarise, that was undertaken by a firm of solicitors called Peters & Peters – is that right –

Christopher Jackson: That’s correct, yes.

Mr Beer: – on behalf of the Post Office, and it was called the Post Conviction Disclosure Exercise, or PCDE?

Christopher Jackson: Yes.

Mr Beer: One of the things that was done was a series of documents called disclosure management documents were drawn up?

Christopher Jackson: Yes, I believe so.

Mr Beer: You give us a number of those as exhibits to your statement. Can we just look at an example, at POL00142261. We’ll see it’s very different to the document we saw in the civil proceedings. It’s written as straight narrative, rather than being responsive to preset questions that are on the form –

Christopher Jackson: Yes.

Mr Beer: – and are designed by the protocol to the Civil Procedure Rules?

Christopher Jackson: Yes, I’m not familiar with the protocols in criminal appeals but it is – I see it’s very different.

Mr Beer: Yes, I think there isn’t actually a protocol in the Criminal Procedure Rules that mandates what is in a disclosure management document and that’s why this is reason as free text narrative. Can we see on the last page, please, which is page 22, and scroll down, we can see that this first disclosure management document is signed off by Peters & Peters on 19 August 2020, yes?

Christopher Jackson: Yes.

Mr Beer: We can see it doesn’t contain a statement of truth in the same way as the disclosure questionnaire did –

Christopher Jackson: Mm.

Mr Beer: – in the civil procedure.

Christopher Jackson: No, it doesn’t.

Mr Beer: Okay. Again, I’m not going to go through all those 22 pages or the addenda disclosure management documents, because there were a series of addendums, weren’t there –

Christopher Jackson: Mm.

Mr Beer: – the first and second addendum to this disclosure management document.

Christopher Jackson: I believe so, yes, and those are the ones that are exhibited, yes.

Mr Beer: They are. They are exhibited to your witness statement. Again, you’ve kindly analysed the effect of this disclosure management document and the addenda to it, and set out whether inaccurate statements were made to the appellants in the criminal proceedings and to the Court of Appeal Criminal Division. So can we go to page 55 of your witness statement, please. It’s paragraph 65 at the top there. You say:

“The [Post Conviction Disclosure Exercise Disclosure Management Document, the two addenda to it and the annexes to those documents], reflect Post Office’s developed understanding at that time (as it stood) and since the [Group Litigation Order Electronic Disclosure Questionnaire] that Mimecast in fact contained emails after 2012 but not before 2012.”

So that error has been realised and corrected; is that right?

Christopher Jackson: Yes, that would appear so.

Mr Beer: “The explanation captured [in part of the documents] in particular in respect of pre-2012 emails does unfortunately (in hindsight) however continue to reflect some of the looser use of terminology adopted in the [Group Litigation Order Disclosure Questionnaire]. In respect of the date that Post Office stopped using Lotus Notes, it also continues to state incorrectly that it was 2012. Exchange was, as previously, not itself identified to be a separate, available, disclosure repository for email data.”

So three inaccurate or partial statements made to the court in these series of documents.

Christopher Jackson: The same understanding replicates, yes, through those three documents.

Mr Beer: You’ll agree that the importance – and you haven’t investigated the causes of this – is, firstly, that these inaccurate statements were made to the appellants and to the Court of Appeal Criminal Division but, perhaps more importantly, the full archive of emails was not accessed and, therefore, not disclosed or provided to the appellants or to the Court of Appeal?

Christopher Jackson: We – that’s our understanding, that Exchange was not interrogated prior to this current exercise in Phase 4 of the Inquiry.

Mr Beer: Thank you. Can we then move to the third stage, then, what has been said in the past to this Inquiry. That can come down from the screen. Thank you.

Summarising, the Post Office has made a series of interim disclosure statements to this Inquiry, correct?

Christopher Jackson: Correct.

Mr Beer: Can you confirm that these, the interim disclosure statements, are provided pursuant to the Inquiry’s protocols. There will be a final one towards the end of the Inquiry that explains in detail the steps that have been taken to ensure that relevant material has, so far as is possible, been disclosed to the Inquiry to give assurance to the Inquiry and to Core Participants and to the public that the Inquiry has been provided, so far as is possible, with all relevant material?

Christopher Jackson: Er –

Mr Beer: That comes at the end.

Christopher Jackson: Yes, I don’t – we haven’t, I believe, discussed it but, certainly, yes, I would anticipate that would happen and that would happen in the normal course, yes.

Mr Beer: But these interim disclosure statements are stepping stones along the way, would you agree, and are served where there have been issues with the disclosure of one of the Core Participants?

Christopher Jackson: I don’t know because the reasons why they were produced, because we weren’t around at that point – but we’ve seen what they said, based on the belief at the time, yes.

Mr Beer: Okay. Reading the four interim disclosure statements, I think you can tell us that the purpose overall is to tell the Inquiry what data is available for disclosure, what approach has been taken to the obtaining of that data and the progress and timescales for the disclosure exercise?

Christopher Jackson: Yes.

Mr Beer: Thank you. Can we look at the first one, POL00142261 – that’s a mistake. POL00114170ds, thank you. This the first interim disclosure statement. We can see it was dated 27 May 2022, top right, and it was signed by Mr Foat, the Post Office’s General Counsel.

Christopher Jackson: Yes.

Mr Beer: If we just pick up from page 6 of the disclosure statement and look at paragraph 19 at the bottom, Mr Foat addresses electronic communications, and he says:

“[Before] 2012, I understand that [the Post Office’s] provider of email servers and software was Lotus Notes. Following the separation, [Post Office] began to use Microsoft Exchange instead of Lotus Notes. At the same time, [Post Office] began to use an email archiving system called Proofpoint. Since the beginning of 2016 [the Post Office] has used Mimecast as its email archiving system. The emails that had previously been stored in Proofpoint were transferred into Mimecast.”

Then it carries on over paragraphs 20, 21 and 22, further explanations of the Post Office’s understanding as to its electronic communications repositories, insofar as their email servers and related software, okay?

Christopher Jackson: Yes.

Mr Beer: You, again, have kindly analysed the number of problems with what the Inquiry was told. That’s page 57 of your witness statement. Top of the page, you say:

“However, once again, in hindsight it is unfortunate that the chronology for Post Office moving to Lotus Notes to Exchange and coinciding with email archiving with Proofpoint no longer accords with the understanding of Post Office as I have set out in this statement.”

That’s a long way of saying that you think that what was said was inaccurate?

Christopher Jackson: Yes, it – the “however” follows on from – this was a rolling over, effectively, of the same level of previous understanding that Proofpoint had rolled into Mimecast and, therefore, that was – in effect, there was continuity and that was the belief at the time, I understand, but I wasn’t around.

Mr Beer: You carry on with a second problem with the disclosure statement:

“The matter of pre-2012 emails is not specifically addressed in the First Interim Disclosure Statement save to note that legacy ‘E-filing Cabinets’ as part of Lotus Notes had formed part of GLO repository searches. However, I note that data repositories where local archived email data … are now known to be found were referenced in that statement as known repositories of data such as SharePoint and other team drives, file servers, the NAS Drive and laptops. However, Exchange data is not itself identified as a separate repository for emails.”

So depending on how you cut it up, two or three errors in the statement?

Christopher Jackson: The – those same errors replicate through that understanding, yes. They reappear here.

Mr Beer: You tell us in paragraph 68, if we scroll down, and I’m going to summarise this, the second, third and fourth interim disclosure statements did not correct those errors?

Christopher Jackson: Correct.

Mr Beer: Thank you.

So would it be right to say overall that inaccurate and, to some extent, misleading information in the disclosure questionnaire provided to the High Court was then reprovided to the Court of Appeal Criminal Division and then provided again to this Inquiry?

Christopher Jackson: The same underlying understanding was replicated in all of those documents that led to the replication of the same inaccuracies, yes.

Mr Beer: Can we turn, then, to what has been done to address the disclosure failings as a result of the late recovery of the issue. Your statement focuses on Phase 4 remediation, and focuses on documents provided by Herbert Smith Freehills and Peters & Peters. Can we turn to remediation of other phases, other than Phase 4 and can we start, please, with remediation for Phases 2 and 3.

You tell us – I don’t ask for it to be turned up – in paragraphs 74(a) and (b) of the Post Office’s then thinking on how to remediate Phases 2 and 3, but I think it’s right that you sent the Inquiry a letter on Tuesday of this week setting out the Post Office’s current position; is that right?

Christopher Jackson: That’s correct. The understanding in the statement was that Phase 2 might not need to be remediated but we were going to test that understanding. We don’t – or we didn’t and still don’t have a full understanding of Phases 2 and 3 and, therefore, we are working out – so a sensible approach now for Phase 2 appears to be looking at it on a witness basis, to look at those witnesses that were called by the Inquiry. They’re not witnesses with which we, as a firm are familiar but, effectively, the proposal is that we will go back and look at those on behalf of Post Office.

Mr Beer: Can we just look at the letter that you set out that proposed approach in, POL00333343. The heading “Post Office … Inquiry: Phases 2 and 3 Exchange Remediation”, from Tuesday of this week. We can skip over paragraphs 1.1 and 1.2. 1.4, you say:

“We propose that the remediation will be in respect of the Phase 2 individuals listed at Appendix A and Phase 3 … listed at Appendix B.”

Christopher Jackson: Yes.

Mr Beer: Essentially, they are Post Office witnesses that were called to give live evidence in between October 2022 and December 2022?

Christopher Jackson: Yes, and that is the proposal for the Inquiry’s view to check that it meets expectations.

Mr Beer: Can you assist us as to why that approach has been designed or proposed?

Christopher Jackson: In order that those witnesses, the evidence of those witnesses is as full and accurate as it can be for the Inquiry and both the witness and the – and, in particular, the Inquiry has a chance to see anything that may be relevant. The further back this goes in time, probably the less likelihood of that because of the dates of the Exchange issue but that is the intent.

Mr Beer: Why would you not apply the search terms from the relevant Rule 9 requests for Phases 2 and 3 to the new server that has been identified as a repository of material –

Christopher Jackson: The –

Mr Beer: – ie why would you do it on a custodian basis by focusing on the witnesses who have already been called?

Christopher Jackson: It is a question of balancing the objectives that I was talking about earlier, which is the importance of getting – or within the terms of the protocol, all reasonable and necessary evidence to the Inquiry, but also the potential impact on further disruption of time because, if one had an infinite amount of time, one could extract several hundred custodians, but Exchange in itself, it’s an email system, it’s not a litigation system.

So litigation systems have the functionality to search. All of the conventional wisdom in all disclosure exercises, really, is not to do litigation search type things in email applications because they’re not built for it and they produce surprising results and they’re slow and clunky and difficult.

So this is an attempt to strike a proper but conservative balance because the initial proposal was that – for Phase 2 may not be needed, but to take a more conservative approach and identify those things, take them into Relativity, which is a system where you can do all those things, with – mindful of the Inquiry’s strong – and the Chair’s understanding – very, very strongly expressed and completely understandable view to complete hearings in 2024. So it’s attempting to balance those two objectives.

Mr Beer: And that we’ve got a month of Phase 4 evidence still to undertake and we want to start Phases 5 and 6 as soon as possible?

Christopher Jackson: Yes, and we’ve said in the letter our understanding – but, again, we welcome the case management guidance – is that Phase 2 and 3 would be effectively returned to at the end, rather than disrupting or delaying Phase 5 and 6, but we – that’s our understanding, obviously. It’s the tribunal – it is the Inquiry’s and the Chair’s decision. We will do it in whichever order is sought.

Mr Beer: So it’s essentially a custodian-based approach, the list of custodians, point 2, is the witnesses who gave evidence in Phase 2 and were Post Office employees or staff at the relevant time, and then the search terms that had already been utilised for the relevant Rule 9 requests are going to be run against the products of those custodians?

Christopher Jackson: Yes, I believe so.

Mr Beer: Thank you. Remediation for Phases 5 and 6, again, you set out a –

Christopher Jackson: And, sorry, could I just say, it would be – we had put our hands up to do Phases 2 and 3 not anticipating that substantive work would be – we would be heavily dependent on being able to establish what those search terms were. HSF have given us quite a bit of information but we will still be dependent in that knowledge in running that search term – the exercise.

Mr Beer: Thank you. Phases 5 and 6. Although you address Phase 5 in your witness statement, paragraph 75 – we needn’t turn it up – the position has again been updated by reference to a letter sent to us on Tuesday of this week.

Christopher Jackson: Yes.

Mr Beer: That is POL00333342. So similar format of letter if we go down, Tuesday of this week, but this is now about remediation of Phase 5. Can I summarise or seek to summarise what you say. Firstly, again, it is proposed to be a custodian-based approach?

Christopher Jackson: Yes, but this is dealing with going backwards in time to earlier Rule 9s and Section 21s that have – might concern Phases 5 and 6 because for the –

Mr Beer: Just stopping there. You said Phases 5 and 6. This letter only appears to be about Phase 5. We haven’t got proposals for Phase 6 yet, I don’t think.

Christopher Jackson: Sorry, yes. To clarify, for the things that have – for notices of Rule 9s and Section 21s that have come up since the Exchange issue was known, they don’t need remediating.

Mr Beer: Because the right approach was applied to them?

Christopher Jackson: Because – yes, because Exchange data was factored in from the outset, so it does not need remediating. Subject to our testing and the assumption that 1 January 2016 is safe – and I do want to keep that one in mind – Phase 6 – and so Phase 6, insofar as any of those numbers relate to – and a number of them do – should not need remediating.

So what this is dealing with is looking back at all of the Rule 9s and Section 21s that were served prior to our involvement.

Mr Beer: Or were processed?

Christopher Jackson: Were processed – sorry, that is quite correct – were processed prior to our involvement and, going back in time, and saying well, to the best of our understanding, to what extent were those relevant and then remediating that. So it is in relation to those categories that we are looking at custodian-based searching, I understand.

Mr Beer: You propose to do it by reference to a list of people that set out in appendix A?

Christopher Jackson: Yes.

Mr Beer: That appendix appears to be constructed from a list of people that the Inquiry sent to the Post Office at its request, identifying those witnesses who might need to have their legal representation funded by the Post Office.

Christopher Jackson: Yes, several tens of Post Office individuals, yes.

Mr Beer: As opposed to the Inquiry’s witness list?

Christopher Jackson: Yes. I don’t – and I stand to be corrected – I don’t think we’ve got sight of the latter one, so it’s not knowledge that we have and we couldn’t design anything around that because we don’t have it.

Mr Beer: So it would – it is proposed to be a custodian-based and focusing on custodians who are going to be called to give evidence?

Christopher Jackson: Yes. If there is a wish to look at other individuals we – of course, we can do that but other than some very, very obvious names – and for example Mr Jenkins, who in my understanding has already been looked at in the work that HSF has done – we would be making educated guesses about what those other – who those other individuals would be.

Mr Beer: Again, can you help us as to why this approach is being proposed to be adopted by the Post Office, rather than doing what you did after you became instructed, which was simply apply Rule 9 requests and Section 21 notices to the whole dataset by reference to search terms specifically designed to turn over relevant material? It’s just an accident in timing, isn’t it, that means a different approach is being taken to the past?

Christopher Jackson: Not quite because the whole dataset is the Exchange dataset, which is not a litigation system. So one can’t run search terms against an email system, effectively. To run search terms, one has to decide who the custodians are that you’re taking into Relativity and then take those in. So a judgment has to be made as to which of those have to come in, and that – we – the discussion proposed, and it is very much discussion proposal, was to start with those individuals who we know about so that can be done.

With the Rule 9s and Section 21s that we’re talking about, where we have done the other alternative, we know what the parameters of that are and, to the best sensible judgement we can make, the individuals that it needs to capture, whereas we don’t know that for beyond the – effectively, the list is – that you’ve given us is the best information we have.

Mr Beer: So why not add the Exchange/365 material to the document universe and rerun Rule 9s and the Section 21s over it?

Christopher Jackson: Because the Exchange/365 is with the whole of the Post Office, which I don’t know but it would be extraction – Microsoft extraction of Exchange data is a slow and difficult and clunky process, and it – I’m not – and this is where I get to the very boundaries of my technical knowledge, but it’s quite difficult, even for limited numbers of people, which is one of the drivers for the disruption that I think is being seen at the moment.

If one was to do it against hundreds or thousands of people, the time and technical implications of that would be very, very significant. So one has to start, I understand, with a judgement as to which custodians.

Mr Beer: But you could, for example, not just limit it to the people who are being called; you could extend it to the people from whom a witness statement is to be sought?

Christopher Jackson: We could but we would need – and, obviously, we would welcome that information, would hold it in confidence and we could work on that basis.

Mr Beer: It wouldn’t include, as you said already, searches for information about Gareth Jenkins, Anne Chambers, Penny Thomas, anyone outside the Post Office who doesn’t have a Post Office account?

Christopher Jackson: One could do a party-based search. My understanding – but our understanding is that you would have got that from Fujitsu as one of the other – or whoever – whichever Core Participant it was that would logically provide that data. Also, my understanding from the correspondence – I’m not close to it operationally – is that exercise has been done within POL’s email system against Mr Jenkins. But I don’t know –

Mr Beer: Mr Jenkins and only Mr Jenkins?

Christopher Jackson: I don’t know, it’s not – that’s Phase 4 issue and we haven’t been doing those searches.

Mr Beer: Okay. Finally on this topic then, what about Phase 6; when are we going to hear about the proposals for Phase 6?

Christopher Jackson: Well, Phase 6, as I say, hopefully does not need remediating because Exchange data is being factored in to – is within – is being searched on any new requests that are coming in and including the Phase 6 related requests we’ve already had.

Mr Beer: You said “hopefully” in that sentence, which may get hackles up.

Christopher Jackson: There was no intent –

Mr Beer: I’d prefer not to base things on hope.

Christopher Jackson: My full understanding is that we don’t need to remediate Phase 6. All it was intended to signify is that we will keep testing that understanding.

Mr Beer: Thank you. Can we move to the second topic, please, Mr Bradshaw.

I just want to look at what happened in relation to the disclosure of documents concerning Stephen Bradshaw who, of course, gave evidence yesterday.

I’m doing so, I should say, to obtain your evidence as to: why disclosure is still currently being given in relation to our witnesses with significant volumes of documents being disclosed right up to when the witness gives evidence; why a significant proportion of the documents that are being disclosed are internally duplicative so the so-called new material that we are getting contains two, five, ten or more documents that are materially the same but it being described as “new material” being found on Microsoft Exchange/365; and why it’s duplicative of material that we’ve already got, again described as “new material”, but it’s another copy or another two, five, ten copies of a document that the Post Office has already given us 10, 20, 30 or sometimes 50 times in the past.

So I’ve gone through witnesses and I look on our system and find that I’m given ten copies of documents that are materially the same. I look on the system and see we’ve already been given it 50 times previously by the Post Office, so it’s to explore why that is still happening.

Now, Mr Bradshaw was due to be giving evidence back in November last year and on 4 November last year his evidence was pulled from the timetable because of the disclosure of what was said to be substantial new documents, very shortly before he was due to give evidence.

Can we look, please, at what has happened since that time, and start, please, with INQ00002016, a letter from the Inquiry dated 14 December headed “Continued late disclosure by [the Post Office]: Phase 4 hearings and witnesses”.

If we skip over paragraphs 1 to 4 and go straight to 5:

“[Post Office] must disclose any additional documents by the following deadlines:

“(a) Any … documents said to be related to Stephen Bradshaw by 4.00 pm on 20 December …”

All other persons in an annex by 4.00 pm on 10 January. Okay? So Inquiry deadline 20 December 2023 at 4.00 pm.

Move forwarded, please, to POL00329552. So the Inquiry’s letter was dated 14 December with a deadline of 20 December. This came in on 19 December – I think this is one of those late at night ones – from Herbert Smith Freehills:

“We enclose a note prepared by Peters & Peters … This note refers to the Inquiry’s letter [of] 14 December …”

If we go over the page, please, Peters & Peters are assisting the Post Office. The note has been provided by Peters & Peters, it rehearses the deadline. Paragraph 3:

“As confirmed in Herbert Smith Freehills’ letter to the Inquiry date 24 November [that should be ‘2023’], the current exercise of reviewing and producing material relating to Stephen Bradshaw is complete.”

Paragraph 4 is about something else.

Paragraph 5 and paragraph 6 are about something else. So Post Office saying on 19 December, the day before the deadline: disclosure is complete.

Over to POL00329553. 27 December we’re at now. If we scroll down:

“We enclose a note prepared by Peters & Peters. This … refers to the Inquiry’s letter [of] 14 December.”

Over the page, please. Paragraph 3 – sorry, paragraphs 1 and 2 set out the background. Then we’ve got an update. So we’ve been told that the exercise was complete but we’ve now got an update for Mr Bradshaw:

“On 19 December … [Herbert Smith Freehills] wrote to the Inquiry enclosing a note prepared by Peters & Peters explaining that the current exercise of reviewing and producing material relating to Stephen Bradshaw had finished. However, there are two further matters relating to Stephen Bradshaw’s data that [the Post Office] wishes to bring to the Inquiry’s attention.”

First one, I’m going to skip over, is audio taped transcripts. Then if we go down to paragraph 7. We are now told:

“Material relating to Stephen Bradshaw is being considered by Peters & Peters for a Crown Office and Procurator Fiscal Service disclosure exercise owing to his involvement in one of the Scottish cases … Since [the 19 December letter] the Peters & Peters [Procurator Fiscal Service Team] has begun some additional checks to ensure that all Stephen Bradshaw material has been caught. From the investigations into the MS Exchange 365 issues, potential additional material addresses and display names have been identified … and checks are underway to ensure that material has already been captured.”

Not quite as complete as the 19 December letter said.

INQ00002017, please. Email at the top of the page. So the letter we’ve just looked at and the note from Herbert Smith Freehills and Peters & Peters respectively was 27 December. This is a reply from the Inquiry on 27 December:

“We note the update position regarding potential new documents for Mr Bradshaw. As Mr Bradshaw is scheduled to give evidence on 11 January … please provide all outstanding material … by no later than … Friday, 29 December …”

POL00329554, 29 December, so deadline day, second deadline day. Scroll down, please. We can ignore paragraph 1 which narrates the history. Paragraph 2:

“Post Office is conducting ongoing disclosure related exercises …”

Paragraph 3:

“Searches have been conducted across all ongoing review exercises to locate documents which refer to Mr Bradshaw, and/or which were sent to or received by Mr Bradshaw … the searches were not limited to reviews specifically relating to Mr Bradshaw … Based on these searches, KPMG have identified 21 documents which refer to Mr Bradshaw, copies of which are enclosed with this letter.”

Over the page:

“Due to various pre-production checks and other steps that are required prior to upload to Egress [that’s a disclosure system], a formal production onto Egress will not be possible until the week [commencing] 2 January …”

Therefore they are informally producing the 21 documents relating to Mr Bradshaw.

Then 7, a warning:

“As ever, it is possible that documents relating to Mr Bradshaw may be identified through other review exercises, including reviews which have not yet been commenced.”

POL00329555. I think that’s just an email on a Friday evening at 9.34 pm attaching the transcripts. So we can skip to INQ00002018, inquiry email of the New Year, Wednesday, 3 January, remembering that the Post Office said that it was going to produce formally the 21 documents in the week commencing 2 January:

“Please … provide an update on the formal production by … no later than end of day …”

POL00329556, email from Herbert Smith to Inquiry solicitors at 11.09 pm on the Wednesday night, remembering a request had been made for the 21 documents to be provided by end of day. Second paragraph:

“… all [21] documents are on track to be formally produced to the Inquiry this week …”

So not by the end of 3 January as requested by the Inquiry.

POL00329558. Next day, Thursday, 4 January, a letter from Herbert Smith to the Inquiry. Again, paragraphs 1, 2 and 3 narrate the background. Then paragraph 4, “Review exercises”:

“Peters & Peters are assisting [the Post Office] with its disclosure in relation to the Criminal Case Studies …”

Over the page, paragraphs 5, 6 and 7 are not that relevant but paragraph 8, in the third line:

“[The Post Office] has also produced 72 additional documents on the basis that they are either:

“(a) documents which appear to be within the same families of 9 of the 21 documents”, that were going to be informally produced, or children of those relevant families.

The tranche upload is 93 documents today.

Then paragraph 16, over the page, please:

“Of the 93 documents being produced today, KPMG have informed us that 74 of them are exact duplicates of previously produced documents …”

Just stopping there, why does the Post Office produce exact duplicates of documents previously produced?

Christopher Jackson: In that – it’s not a letter I know about. I don’t know, in this context.

Mr Beer: “… and a further 7 [of them] are near duplicates.”

So 12 are new, okay? If we carry on, please, just to complete this before lunch. 5 January, we’re now up to Friday, POL00329560.

Herbert Smiths saying:

“We enclose a note prepared by Peters & Peters …”

So they don’t do what they’ve done previously, which is adopt some of the information into their own letter. They’re just saying, “Here is a Peters & Peters note”.

Over the page, please. 5 January, this note is dated, we can see at the foot of the page. Top of the page, please:

“In its email dated 27 December … the Inquiry requested that all outstanding material relating to Stephen Bradshaw be provided by … 4.00 pm on 29 December …”

In fact, as you’ll remember from the correspondence, that itself is an extension. We had directed that any additional documents be disclosed by 20 December.

Paragraph 2:

“In our notes … we informed the Inquiry that additional checks were being undertaken … Those additional checks have now been completed and [the Post Office] has identified 942 documents …”

So this is the Friday of the week before Mr Bradshaw gives his evidence:

“… 942 documents … that fall to be produced as a result of review work. [Post Office] has today arranged for these documents to be produced … via Egress …

POL is endeavouring to do its utmost to identify duplicative material to the Inquiry. Of the 942 documents, 420 have been identified as being MD5# duplicates or 98-100% textual near duplicates of documents previously produced to the Inquiry.”

Again, do you know why the Post Office was saying “We’ve got 942 documents but you’ve had 420 of them already”?

Christopher Jackson: I don’t no.

Mr Beer: “… Peters & Peters believes a substantial number of the remaining 522 documents … also appear to be [textual near duplicates].”

Paragraph 4:

“Relevant information from KPMG’s analysis is provided in the production index …”

Paragraph 6:

“[The Post Office] apologises that it has been unable to identify fully all duplicates in time for this production. [It’s] endeavouring to provide an updated analysis … as soon as possible.”

Do you know why, appreciating this isn’t the work of your firm, either because it was undertaken by Peters & Peters and/or Herbert Smith Freehills, why the Inquiry had been informed on 19 December that disclosure relating to Stephen Bradshaw was complete and then the week before he was due to give evidence, late on a Friday, we were told that there were 942 additional documents?

Christopher Jackson: I don’t know, I’m sorry.

Mr Beer: Would you agree that is suboptimal?

Christopher Jackson: Yes.

Mr Beer: On that note, can we break for lunch, please.

Sir Wyn Williams: Now, that I’ve successfully unmuted myself, the answer is yes.

Mr Beer: 2.00, please, sir. Just to help you, sir, I only have about 20 minutes more and there are no questions to be asked by Core Participants.

Sir Wyn Williams: I’m sure Mr Jackson will be glad to hear that and I’m glad that you’re asking the questions, not me, Mr Beer.

Mr Beer: Thank you, sir.

(12.57 pm)

(The Short Adjournment)

(2.00 pm)

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

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

Mr Beer: Thank you very much.

Just before we start – and good afternoon, Mr Jackson – two points of correction or clarification. Firstly, I think I suggested that an email of 19 December from Herbert Smith Freehills was sent in the evening. It was, in fact, sent at about 9.00 am in the morning. It was one of the early ones.

Secondly, I suggested that we hadn’t heard proposals from you on remediation of Phase 6 searches. I am told that, in fact, although there wasn’t a letter, there was an email –

Christopher Jackson: Yes.

Mr Beer: – from an associate at your firm saying essentially what you told us today, that it’s not currently assessed by Post Office, that that remediation is necessary because of the timing and content of the Rule 9 and Section 21 notices relating to Phase 6?

Christopher Jackson: Yes, I was aware of that exchange between our colleagues, yes.

Mr Beer: Thank you very much.

Just to complete the Stephen Bradshaw run of correspondence, I think we had reached the Friday before he was due to give evidence. Can we look, penultimately, please, at POL00333345. This is an email sent on Wednesday this week at 11.00 in the morning from Herbert Smith Freehills to the Inquiry:

“Peters & Peters are assisting [the Post Office] with the review of documents relating to Stephen Bradshaw [so this is the day before he gives evidence].

“We refer to the note prepared by Peters & Peters, which was provided to the Inquiry on Friday [that’s where we left off] regarding the 942 documents produced to the Inquiry that same day. In that note, Peters & Peters explained that as part of [the Post Office’s] efforts to identify duplicative material to the Inquiry, KPMG have run a duplicate analysis over those 942 documents. Of the 942 documents, KPMG identified 420 as being MD5# duplicates or 98-100% textual near duplicates (TNDs) of documents previously produced to the Inquiry. However, Peters & Peters believed that a substantial number of the remaining 522 ‘new’ documents … also appearing to be [textual near duplicates] of documents previously produced to the Inquiry. These included [record of taped interviews] and investigation reports [of Question 42 of Rule 9(14) cases] which have been produced to the Inquiry on multiple occasions.

“KPMG has therefore investigated why those documents were not identified as part of its original duplicates analysis … conclusion was these documents were not flagged as [textual near duplicates] because they fell below the requested textual similarity threshold of 98%. KPMG explained that whilst documents Peters & Peters had highlighted do appear to be textually similar, small variations may have cause the documents to fall below the 98% similarity requirement. KPMG therefore broadened its … analysis from 98-99% to 90-99%. The results of that broader … analysis indicated 578 documents in [the] production were duplicates of documents previously produced to the Inquiry.

“KPMG’s most recent analysis indicates that Friday’s production contains 364 ‘new’ documents. This remains contrary to the feedback from Peters & Peters review team, who have indicated that a very large volume of the material from Fridays production was duplicative of documents previously produced to the Inquiry. Peters & Peters has therefore begun a further manual review of the 364 ‘new’ documents to determine whether on their face they appear similar to material previously produced to the Inquiry. It is apparent from the preliminary findings of that manual review there is still [textual near duplicates] of previously produced material within the 364 ‘new’ documents. For example, Peters & Peters has seen multiple [Post Office] legal memos regarding Hughie Thomas’ court hearings, Hughie Thomas’ mediation application and mediation report, and multiple copies of Hughie Thomas’ audit report, all of which have [been] produced to the Inquiry previously. [Post Office] has therefore asked KPMG to investigate these examples urgently to understand why these documents have not been caught … In parallel, Peters & Peters is conducting a full manual review of the 364 ‘new’ documents from Friday’s production.

“Following its further investigation, KPMG has been able to confirm that the additional examples were not identified as [textual near duplicates] as the duplicates previously produced to the Inquiry were produced by another firm and transferred to KPMG. [Post Office] understands that these duplicates contain ‘junk’ characters at the end of the extracted text file, causing them to have significant textual [variations] to the documents in Friday’s Bradshaw-related production … even though it appears that several of the items within the ‘new’ 364 documents … have been produced to the Inquiry as many as five times before, they have not been picked up in KPMG’s duplicate analysis. This may explain why KPMG’s analysis does not correspond with Peters & Peters’ view that the ‘new’ documents contain numerous duplicates. In addition, [the Post Office] understands from KPMG that [textual near duplication] analysis is often not effective when analysing Excel files … this might further explain why potential duplicates have not been picked up …

“As [the Post Office’s] further investigations will take some time to complete, [the Post Office] arranged for a new overlay to Friday’s production preparing by KPMG to be uploaded to Egress so that the Inquiry can see which documents have been identified as duplicates … However, [the Post Office] will endeavour to update the Inquiry on the results …”

So this is all before a witness who has been adjourned for over a month to give evidence was due to give evidence?

Christopher Jackson: Yes.

Mr Beer: Your firm is not responsible for any of this?

Christopher Jackson: No.

Mr Beer: But you’re here to speak, I think, to the Post Office’s disclosure to the Inquiry, including in Phases 4 and following?

Christopher Jackson: I can’t speak as to Phase 4. Prior to 1 December, when I submitted my witness statement, the exchange that we had with the Inquiry was said that I would endeavour to draw together the threads, I think, as I put it, but I would set out what I could answer to and that which I could not, and the Inquiry would effectively come back to us if you wanted to hear from anyone else.

Now, obviously, in timing, this is recent so that could not have been picked up but I can’t answer to operational detail of Phase 4, not because I wouldn’t wish to, but simply because I don’t have the knowledge to do that.

Mr Beer: The last document in the train of documents is a note received, either whilst Mr Bradshaw was giving evidence or after he gave evidence yesterday, from Peters & Peters which said that the additional checks that were undertaken in respect of Mr Bradshaw’s Mimecast data were as following, and that the Post Office understands from Peters & Peters that none of the potentially new documents produced to the Inquiry on 5 January contained any materially new information. Do you know anything about those two things?

Christopher Jackson: No, the only thing I’m aware of in that – in relation to that note was I understand that, in an attempt to drive some of the numbers of duplicates or near duplicates down, a degree of controlled item level deduplication was done after the production stage, so at a sort of safe stage of it. That’s the only thing I’m aware of because KPMG updated me on it.

I could –

Mr Beer: I’m interested, in particular, in the suggestion that this was material obtained from Mimecast, whereas this should all be about Exchange/365?

Christopher Jackson: I simply don’t know, I’m sorry.

Mr Beer: Mimecast is the thing that ought to have been interrogated months if not years ago?

Christopher Jackson: Mimecast has been used as the main basis for searches, yes.

Mr Beer: Yes, and this note suggests that the additional checks were undertaken in respect of his Mimecast, Mr Bradshaw’s Mimecast data. Do you know why anyone was looking again at Mimecast and coming up with 942 documents last Friday?

Christopher Jackson: I don’t, I’m afraid.

Mr Beer: Would you agree that, just looking at the correspondence, reading the correspondence, that it doesn’t make for happy reading in that the Inquiry was told back on 19 December that Bradshaw disclosure was complete and then it was said that 924 documents, including lots of duplicates were to be produced last Friday?

Christopher Jackson: Absolutely. It goes back to the point, really, that you took me to, I think in my initial witness statement, is nobody would wish to continue to have anything other than a sort of more conventionally controlled and managed and critical path approach to hearings and –

Mr Beer: The email that we’ve just read about the involvement of another company providing services to KPMG, and that being the cause of an underestimation of the number of duplicate documents, is that anything you know about?

Christopher Jackson: I know what I think it is but I would qualify this because I am speaking from what I would understand that to be, not because I know but because I’m reading it is, and why I’m hopeful that, certainly the issues around duplicates, whilst they are still difficult, will improve going into Phase 5 and –

If I may take it in two parts, I think what is being referred to, but I do not know, is the point that Paul Tombleson made when he gave evidence on the 5th – and I touch on in my witness statement – which is the current Relativity database has been built up effectively in layers on data that has come in from various sources at various places in different ways. So I think what is being talked about is not somebody who is a contractor to KPMG, but a previous provider to Post Office.

So the – this is one of the reasons why some of the techniques cannot be used, the computer techniques that were talked about, because the data quality is variable.

The reason I am hopeful, but I don’t want to overstate it because I don’t know fully, about Phase 5, is that there has been a – we, for Phase 5, 6, 7 are working in a new – in a different bit of the database, which has had the data reprocessed into it and, therefore, does not suffer from the same, or at least not so many of, these problems.

I mean, duplicates and near duplicates, for all the reasons in 20 pages of my witness statement, are a real conundrum but that is exacerbated if the underlying data from which they’re drawn is of variable quality from various places at various times.

Mr Beer: That conundrum is compounded if you get a series of letters and emails in the day before and the three days before, giving different figures, and assertions as to what is a duplicate and what isn’t, and explanations as to whether documents are truly new or not; would you agree? I mean, reading it, would it appear that this information, this run of correspondence, is rather chaotic?

Christopher Jackson: I don’t know what lies behind it and, therefore, I’m loath to step in from outside and criticise because I simply don’t know. But it’s – I think you used the phrase before the lunch break “suboptimal”, and it is clearly that and it must be frustrating deeply for the Inquiry and for witnesses, and I suspect also for those at the other end who are trying their best to get it right, but I simply don’t know beyond that.

Mr Beer: So that takes me to what assurances in relation to Phase 5 and 6 you’re able to give, that the kind of – sorry, that document can come down – that the kind of episode that we’ve seen played out in the Bradshaw correspondence and I think, if I can say it with a degree of understatement, he’s not the only witness in respect of whom it has happened and, for a period, it was every witness, every day of the week, twice on Sundays.

What assurances can you give that this will not happen in relation to Phase 5 and 6 witnesses?

Christopher Jackson: I can give some assurances and I’ll set out, if I may, what I think they are.

Mr Beer: Yes, thank you.

Christopher Jackson: I’ll start with a qualification, which is deduplication and complex disclosure is ferociously difficult and there will be glitches and we will find things because that is the nature of it. But the assurance I can give is that we will use every bit of our professional skill, and I know that Post Office is absolutely of this mind also, to reduce that to the absolute minimum that we can.

The other parts of the structural assurance are, as I say, we have the benefit of data that has been, to a large extent, reprocessed in terms of the material that is already in there and, as a separate and further point, the Inquiry will be aware that we’ve written, on a number of – in a number of letters, we’ve been sort of exercising our minds as how one can square the circle between potentially excluding something which is a material difference – so the example I give is if – so that you don’t want to texturally near duplicate out something that changes a “shall” to a “shall not”, for example, but, equally, one does not want to be burdened, the Inquiry or witnesses, by things which just have minor differences in the footer, or so on.

So we’ve been giving thought to that, and have written to the Inquiry about additional load files, ie extra data which can be used to sift into wheat and chaff and then circle back round to look at a particular document if one – if the Inquiry wants to look at the details of that.

I started with a caveat and, with apology, I have to finish with this answer with a further one, which is Exchange is an email system, and therefore the transference of data is slow and difficult and clunky, and we will do – and I believe KPMG and Post Office will do all they can to eliminate that.

The timescales are – there is a challenge between the timescales because it isn’t just obviously about the start of the hearings, it is about the lead-up to those hearings. All involved which to get to a smooth procession to that. I wish I could give an unqualified assurance but the sheer practicalities of complex disclosure, duplicates and Exchange mean that I have to stay somewhere short of that.

Mr Beer: In paragraph 88 of your witness statement, which is on page 77 – if that can be displayed, please – in the third line you say:

“Post Office started in June 2023 the exercise to identify the full extent of Post Office’s electronic data universe.”

Why was it that it was only in June 2023 that Post Office started the exercise to identify the full extent of its electronic data?

Christopher Jackson: I don’t know.

Mr Beer: That’s a couple of years into the Inquiry, isn’t it?

Christopher Jackson: It is, yes.

Mr Beer: Are the problems we’re now facing in part caused by the Post Office only starting to identify the extent of its electronic data in June 2023?

Christopher Jackson: I’ve commented on this on paragraph 84. I wonder if it will be possible just to turn back?

Mr Beer: Absolutely. That’s the previous page, page 76.

Christopher Jackson: Yes. It picks up on – the previous paragraph picks up on the work that we’d initiated in June and July but I say, and it is absolutely the position, it would not be fair, or fair inference, to sort of view the structural review as an indication that things hadn’t been done before.

There had been – we weren’t around at the time but from what we have since learnt – quite a bit of investigative work and – to find out what there was and where it was and so to do that work. It hadn’t been done on a single overarching model but a lot of work had been done and you will see quite a few of the answers to that work in the first, second, third and fourth disclosure statements.

Mr Beer: So I think you’re answering to say you shouldn’t think that no work had been done to identify the extent of the Post Office’s data universe, correct?

Christopher Jackson: Correct. A very large amount of work had been done, but it hadn’t been – it had been done by various people at various times, in various ways, using various exercises, rather than it being done as a comprehensive (unclear) exercise, sir.

Mr Beer: Which takes us to the third topic, the structural review. This is part of the structural review?

Christopher Jackson: I’m sorry, what is part of the structural review?

Mr Beer: Identifying the full extent of the electronic data universe?

Christopher Jackson: Yes, the model that we talked about earlier is effectively you identify, you preserve and you collect – or you collect as you need.

Mr Beer: You describe in paragraph 82, if we go back, please, to page 74, the elements of the structural review. You say it’s not directed at a single phase or multiple phases, and the main activities – and you divide them into three:

An exercise to identify the full extent of the data universe to validate assessments of all data sources as to whether they are reasonably likely to contain data that might be relevant to the Inquiry’s terms of reference, whether any such data has been preserved and, as appropriate, collected and processed for review.

Secondly, the structural review involves a consolidation of Relativity workspaces to reduce time and operational complexity when responding to requests from the Inquiry.

Thirdly, an exercise to validate custodian data mapping to facilitate an assessment of whether further identification work is required.

Can you explain what that is because it’s not obvious on its face: “custodian data mapping”?

Christopher Jackson: Essentially, who would have held what type of data, amongst those individuals or custodians who are of likely relevance or known relevance to the Inquiry.

Mr Beer: So identify people or job positions, job titles, who are assessed to hold data?

Christopher Jackson: I’m hesitating because I – colleagues are involved in the exact detail. I don’t know whether it is named people or whether it is job titles but I can – we can update further.

Mr Beer: You set out timelines in appendix 3 to this document, your witness statement.

Christopher Jackson: Yes.

Mr Beer: But they have essentially been superseded by the third of the Tuesday letters; is that right?

Christopher Jackson: That’s correct.

Mr Beer: So can we go, as our last task, to the third of the Tuesday letters, POL00333344. I’m going to ignore the first three paragraphs and go straight into the content. You split the letter into three strands, essentially. Strand one, ESI, that’s electronically stored information on electronic media?

Christopher Jackson: Yes.

Mr Beer: Topic 2: electronically stored information excluding emedia?

Christopher Jackson: Yes.

Mr Beer: Then, thirdly, hard copy documents. So can we take those three in turn?

Christopher Jackson: Yes.

Mr Beer: Go back to page 1, please, “ESI stored on emedia”, and I think this has got four elements to it, each of which is underneath an underlined heading?

Christopher Jackson: Yes.

Mr Beer: The first of which, element 1 or strand 1 “Investigation of five servers and twelve back-up tapes located at Chesterfield”. I think it was identified by the Post Office that it had servers and back-up servers in Chesterfield and this was revealed to the Inquiry in November, I think. You set out in this letter the position, server by server.

Christopher Jackson: Yes.

Mr Beer: Scanning across paragraphs 1.1 and 1.2, is the position that three servers have been excluded, two remained further to be investigated, and the 12 back-up tape servers have been restored in recent days?

Christopher Jackson: I’m not sure about the last point. Yes, the three servers have been excluded. All of these categories in this letter, for context, are – or many or most of them are what would one would ordinarily say is at the far end of what would normally be done in terms of any search in a litigation case or inquiry, for good reason, given the circumstances that you outlined earlier that then all of the corners are being searched, and this is the furthest corners, if you like.

And so some of these servers, as we’re seeing are – well, one doesn’t know what they are when they start being examined but they’ve sat in a dusty corner for many years.

Mr Beer: So if we go over the page to paragraph 1.12, so three servers excluded, two left, 12 – sorry, if we just go up, please – 12 back-up tapes. The reason I said 12 back-up tapes have in recent days been restored is because that’s what it says in paragraph 1.11. Then 1.12 is where it’s all brought to a head. You say:

“We will continue to update the Inquiry on Post Office’s work to examine [the two servers] and the twelve [back-up] tapes.”

Then this:

“… progressing those investigations may take a material period.”

Which is a delightfully enigmatic phrase. Can you tell us what it means?

Christopher Jackson: Yes. It means that some very technical people who can decode things which may be five or ten or 15 years old and, therefore, old technologies which are no longer supported, and those are – obviously back-up tapes are things which are run on a server so you don’t lose the data if the server fails, and they often overwrite themselves or they duplicate because, if you’re taking a record at a particular point in time, then that point in time will also contain material from earlier.

So the reason I hesitated was, yes, they had been restored but they haven’t been examined. The technical people who can do this sort of thing now have to take them into another dark room and do something with them and it’s not knowable in advance how long that takes, and it’s unfortunately.

Mr Beer: So how do the Inquiry plan for the commencement of the Phases 5 and 6?

Christopher Jackson: This effectively comes back to the issue of case management and the point in the Inquiry’s protocol about fair and reasonable in all the circumstances. This is – there’s effectively two routes – well, three, I suspect. One is to take a view that these things are unlikely to be relevant because they are at the extreme ends of relevance –

Mr Beer: How –

Christopher Jackson: – and take a view –

Mr Beer: On what actual material could a view be formed that these two servers and 12 back-up tapes are in the very corner of the corner that you described?

Christopher Jackson: No, it can only – that can only – that has to be assumption or presumption, rather than anything else. One doesn’t know until one looks.

Mr Beer: On what building blocks might you draw the inference that you have just outlined, ie on what firm factual foundation might a person be able to say, “I’m willing to commence Phases 5 and 6 or list Phases 5 and 6 without any insight into when the material from these 14 data sources is likely to be available to me”?

Christopher Jackson: Well, if I may come back to the other two options as well, because they were going to tie back into this point as well. If it is possible, and I don’t know technically whether it is, the starting point logically will be to look at the – as the first – before one looks at the content of the data, to look at the dates of it and then extrapolate from that whether it is likely to be of relevance to Phases 5 and 6, because there is obviously – 5 and 6 does go back in time but not so far as, say, 5 or – 2 or 3.

And then, secondly, if one can get an insight into the type of data, if – let’s say, for example, it was financing or accounting data, as opposed to documents or other evidential material that the Inquiry would tend more to focus on, then that would inform you, but the basis we don’t –

The Inquiry does not have and Post Office does not have to give to the Inquiry, those initial evidential basic blocks but the three options would be to effectively take an assumption when knowledge builds, the second, which is the more – I was setting out the two extremes – is to effectively take a long pause until everything would be held to be within the fair and reasonable search and look at everything but that would be – involve a delay, or –

Mr Beer: You wouldn’t know how long the period was?

Christopher Jackson: You wouldn’t –

Mr Beer: You’d have to say, “I’m going to adjourn for a material period”?

Christopher Jackson: It would be a material period and that would be the second option.

The third would be to list but effectively engage in a case management discussion as to the prioritisation of witnesses and types of information, which would itself be informed by trying to find some early stage information about type of data, dates of data, and so on. But those are the three, as I would see them.

Mr Beer: The existence of this material was revealed to the Inquiry in November. How long have the Post Office known about it?

Christopher Jackson: I don’t know.

Mr Beer: Can we turn to element 2, please, “Confirmation of understanding relating to the NAS Drive data”. Can you explain in a crisp sentence or two what the NAS Drive data is?

Christopher Jackson: The NAS Drive data was, as I understand it, a capture of a particular set of data that was known about at the time or just after the GLO and prior to the 2020 work. So it was a snapshot of a very large amount of data at a point in time. What this section – sorry, you’re probably going to come on to ask me about this next section but the NAS Drive, effectively, was a data capture at a point in time which, from memory, was 2017 or 2018.

Mr Beer: You had, you tell us in paragraph 1.14, intended to update us before today, and you tell us in 1.15 that the Post Office is seeking to establish how long investigations are going to take. I take it today you don’t know how long the investigations are going to take?

Christopher Jackson: I’m afraid not. This is – the NAS Drive is something that was captured and is known. What this section relates to is a – I think it’s a server or system called either Accenture FileShare or, more accurately, Post Office FileShare and there had been a couple of previous letters to the Inquiry.

The first one said this has just emerged and we think the Post Office FileShare is something you need to know about but we’re investigating.

There was a second letter that said emerging conclusions are that it is just duplicative of NAS Drive but we need to make very, very sure and it has not, as I understand it, been possible, so far, to make very sure that there was not new things going onto the Post Office FileShare.

Mr Beer: So you’re not able, the Post Office is not able to tell us how long the investigations will take? Are you able to tell us when you’re going to be able to tell us how long the investigations will take?

Christopher Jackson: Because these are technical not legal issues, I cannot. There is pressure, as you would understand, being applied by Post Office and by those who – we represent them, to get it completed as soon as possible with but they’re technical investigations.

Mr Beer: Bottom of the page, “Validation”, that’s the third element. I’m going to skip over that because there is a timescale included. Over the page, please, to element 4 of strand 1, “Review of custodian disclosure questionnaires to establish whether further connection of eMedia is required”.

Then paragraph 1.18:

“[The] Post Office wants to ensure the Inquiry is aware of decisions Post Office has made relating to the collection of data … Post Office has not identified (after investigations of users, including questionnaires that have asked custodians to provide details of their WhatsApp usage) repositories of WhatsApp messages reasonably anticipated to be responsive as substantive evidence to the Inquiry’s Terms of Reference and Completed List of Issues, so has not collected [from their devices].”

Can you just explain what that means, that very long sentence?

Christopher Jackson: Yes.

Mr Beer: We haven’t asked people to provide their WhatsApp usage and we haven’t looked on their phones; is that it?

Christopher Jackson: Because – we have tested whether it would be needed to be done by seeing what – by asking them questions as to what they – do they use WhatsApp and what do they use it for? And the response is, as I understand it, come back effectively that it’s administrative, what dates are this and what – so not the situation, as we understand it, based on the questionnaires, where people will be having substantive discussions of the kind that are being canvassed in other inquiries at the moment –

Mr Beer: So –

Christopher Jackson: – as we understand. But if that changes or we have a reason to believe it changes, then we would revert.

Mr Beer: So if Paula Vennells was intending to attend a meeting and was going to discuss with Angela van den Bogerd beforehand what to say and what not to say, she wouldn’t have used, on your understanding, WhatsApp do so?

Christopher Jackson: Based on the information we have gathered, no, she wouldn’t. As we understand it, there may have been liaison in terms of who is free on particular – what date, but – and, as we understand it, not substantively.

Mr Beer: How wide or how big is the pool of people that you have asked?

Christopher Jackson: I think it relates to all the key custodians but I will verify that and we will write.

Mr Beer: What does the key custodians mean?

Christopher Jackson: Those who have been named in – the short answer is I don’t know which individuals we’re talking about but certainly all those would have been named and are still current employees.

Mr Beer: Ah, so there’s a limitation that the person remains in Post Office?

Christopher Jackson: I will – I don’t know, so I will check and we will come back to you.

Mr Beer: It may be a surprise to a member of the public that nobody in the Post Office used WhatsApp to discuss issues of substance relating to the Horizon system?

Christopher Jackson: That is our understanding but we are keeping it under test.

Mr Beer: Strand 2, “ESI excluding emedia”. This is from paragraph 2 onwards and, again, there are a number elements to the strand:

“Identification of the extent of [the] data universe.”

At 2.3, you tell us it’s been commenced, and you told us in your witness statement that was back in June. It’s materially progressed but is ongoing; several further weeks to complete this work. Does that mean by the end of the month?

Christopher Jackson: Again, I don’t know, because finding the information is, it’s easier to find some information than others. So I don’t know.

Mr Beer: Over the page, please, Element 2. We’ve addressed that already.

Element 3, “Validation of historic preservation activity across other ESI data sources”. Can you explain what that is, please? This is paragraph 2.11 to 2.15.

Christopher Jackson: So this is looking back, so the previous section deals with what is currently in place. This is looking back in time as to what was in place previously in the GLO litigation, or otherwise. We haven’t been able to establish so far what technical holds were in place. We understand and we’ve seen what was in the interim disclosure statements and that we’re told various holds in 2014, 2016 and 2020, but the position, because of the situation in paragraph 2.14, is difficult.

The people who did it are often not around and the records are not, therefore, available. So we’re still looking.

Mr Beer: The next element, I think, Element 4 within Strand 2, “Review of [electronically stored information] received in the past from third parties to establish whether further collection … is required”. I think if we go over the page to paragraph 2.19, in the second sentence, you tell us:

“It’s anticipated that material work will continue beyond January 2024 [and] will continue to update the Inquiry.”

Can you assist us as to what volume of the work will have been completed by the end of this month and what will remain outstanding?

Christopher Jackson: To put it in context, this is going back to all – particularly the third party legal advisers but some other advisers in particular – to say you were asked previously to provide all key advices, because that is the things that are under control, but, as part of the structural review, it is not always clear – it is not clear to us as incoming advisers what was provided. So we’ve said what effectively looking at what have you – what have you given us, what have you not given us, and then testing what we have been given.

So we’re working steadily through the different advices. I don’t know precisely where we’ve got to. Obviously, it depends on when they come back to us, as well, and when it was asked. It’s all of these things, we’re trying to retrofit an understanding, and it’s an ongoing process.

Mr Beer: “Hard Copy Documents” is Strand 3. Can you help us: overall, what is outstanding?

Christopher Jackson: Can I just look at the paragraph? These are exercises that we didn’t and don’t have conduct of. So we’re report – effectively, this is the work done by Innovo. As I understand it, but I am taking this from the Innovo witness statements that were submitted to the Inquiry, their work on hard copy has been completed, as has the re-indexing.

Mr Beer: The third task is outstanding, which is looking back at questionnaires to see whether hard copy documents require to be collected from other repositories.

Christopher Jackson: And, again, it’s not something that we are doing, but we are told that it will be completed by the end of the month.

Mr Beer: Thank you very much.

Mr Jackson, they are the only questions I ask you. Thank you very much.

The Witness: Thank you.

Mr Beer: Sir, there are no questions from Core Participants, in particular because we said that all questioning of Mr Jackson, as in previous disclosure hearings, would be conducted by Counsel to the Inquiry.

Sir Wyn Williams: Yes.

Well, first of all, Mr Jackson, thank you very much for your detailed written evidence and thank you very much for the clarity of the answers you’ve given to Mr Beer during the course of the day.

As is my custom following hearings of this type, I don’t make instant announcements, that being fraught with danger. Rather, I propose to reflect upon what’s been said and anything that I regard as important to say I will say in the course of the coming days or weeks in writing. Any further directions which I propose to give relating to disclosure will be contained within that same written statement.

Clearly, I want to reflect upon the state of affairs which you describe where there are options, if I can put it in that way, as to how best to proceed.

So that’s as much as I propose to say today.

That brings us to the end of today’s proceedings, does it not, Mr Beer?

Mr Beer: It does. We’re back at 10.00 am on Tuesday, sir.

Sir Wyn Williams: All right. Well, we’ll adjourn until then.

Mr Beer: Thank you very much, sir.

(2.46 pm)

(The hearing adjourned until 10.00 am on Tuesday, 16 January 2024)