18 October 2024 – Benjamin Foat
Hide video Show video
(9.00 am)
Mr Blake: Good morning, sir.
Sir Wyn Williams: Good morning, Mr Blake. Before you begin today’s evidence session, in my haste to publicly announce the revised arrangements for today’s hearing, I inadvertently omitted to thank Mr Bartlett for providing two detailed witness statements and giving oral evidence during the course of the whole of yesterday. So I’d like to repair that omission by thanking him publicly now.
Mr Blake: Thank you very much.
This morning we’re going to hear from Mr Foat remotely. (Pause)
Ah, either Mr Foat is on silent, or there is nothing in the room.
The Witness: Good morning.
Mr Blake: Ah, there we go.
Benjamin Foat
BENJAMIN ANDREW FOAT (affirmed).
Questioned by Mr Blake
Mr Blake: Thank you very much, can you state your full name, please.
Benjamin Foat: My full name is Benjamin Andrew Foat.
Mr Blake: Thank you very much, Mr Foat. You have produced a very large number of witness statements throughout the course of this Inquiry. I’m not going to take you to each one individually but I’ll just go through each of them to confirm that they are all true to the best of your knowledge and belief.
The first witness statement is POL00114188ds, that is dated 23 March 2023.
The second is dated 21 June 2023 and has a URN of POL00118164ds. That one, in fact, you have sworn on your last appearance.
The third witness statement is WITN09980300, dated 22 August 2023.
The fourth is WITN09980400, dated 3 May 2024.
The sixth is dated 8 October 2024, and has a URN of WITN09980600.
There are also a number of interim disclosure statements. The first of those is POL00114170ds, dated 27 May 2022.
The second is POL00114173ds, dated 18 October 2022.
The third is POL00114176ds, dated 30 November 2022.
The fourth is POL00114177ds, dated 12 January 2023.
Are you able to confirm that your signature appears on all of those statements?
Benjamin Foat: It does.
Mr Blake: Can you confirm that all of those statements are true to the best of your knowledge and belief?
Benjamin Foat: That is correct.
Mr Blake: Thank you very much.
Mr Foat, all of those statements will be uploaded to the Inquiry’s website in due course. You are a qualified solicitor; is that correct?
Benjamin Foat: Correct.
Mr Blake: Before joining the Post Office, you worked in a number of different firms in Australia and also in England.
Benjamin Foat: That’s correct.
Mr Blake: You joined the Post Office in August 2015 as Head of Legal for Financial Services –
Benjamin Foat: Correct.
Mr Blake: – and you became Legal Director in 2016 and worked in that role until 2019?
Benjamin Foat: Correct, in August 2016 I was appointed Legal Director.
Mr Blake: Thank you. During that period Jane MacLeod was General Counsel?
Benjamin Foat: That’s correct.
Mr Blake: You then became General Counsel from May 2019?
Benjamin Foat: Correct.
Mr Blake: You have been on a leave of absence for health reasons since April 2024; is that correct?
Benjamin Foat: Well, a mixture of time to focus on the Inquiry, I was due to give evidence in Phase 5 and 6 and, again, for Phase 7. So it’s a mixture.
Mr Blake: Thank you very much.
Today will be in two halves. The first will address issues relating to Phases 5 and 6, and that deals with, for example, the Group Litigation, the CCRC, et cetera. The second half will address Phase 7, so the current practice at the Post Office. Each of those will probably last around an hour each and we will have a break in between the two, and we will see how we go in terms of timing. It may be that we take a third break as well.
To start with, knowledge of Horizon issues. You refer in your witness statement to being told that Horizon was robust. I think you’ve said like an air traffic control system. Can you assist us with who told you that and how you were told?
Benjamin Foat: So upon joining Post Office when I was working in the Financial Service area of the business, I think the Panorama episode had aired and there was a communication that was issued to employees that set out Post Office’s position in relation to the matter, and over the – and that set out that Post Office thought that the system was robust.
In terms of the comment about the air traffic control, that was a statement that I heard on a number of occasions from people. I don’t recall specifically the individual who said it but it was a phrase that was used. I suspect it came from someone in the IT Department, given the nature of it. But that was – it was a comment that I remembered that phrase, because it seemed like an unusual comparison.
Mr Blake: You also say that you knew very little of the Post Office’s role in prosecuting subpostmasters when you joined. Was the Panorama programme the first time that you became aware of that role?
Benjamin Foat: Correct.
Mr Blake: Was the prosecution of subpostmasters something that was discussed in the Legal Team in the early years of your time at the Post Office?
Benjamin Foat: In 2015, not that I recall. At that point, I was very much focused on coming up to speed of what was needed in my Head of Legal Financial Services role, specifically the establishment of the Banking Framework Agreement, establishing the Post Office Insurance Intermediary business.
So Post Office established, for the first time an insurance intermediary that was regulated by the FCA, and I sat on the Risk and Compliance Committee of that, and the Executive Committee. So I don’t really recall much discussion about the Group Litigation. It was clearly something that the organisation was involved and there were general communications, but it wasn’t my focus at that point.
Mr Blake: In terms of the Head of Legal for Financial Services, did any matters relating to prosecutions come up in that particular role?
Benjamin Foat: No.
Mr Blake: No. How about the Legal Director role?
Benjamin Foat: No, when I was appointed to Legal Director, I had a discussion with Jane MacLeod about what she wanted me to do. It was a newly established role, so the role didn’t exist prior to me doing so. She said, in terms of the division of labour, that she would focus on the Board issues and the Executive, and what she wanted me to focus on was managing the Legal Team of this circa 20 lawyers and that she wanted me to focus on improving the legal operations of the business because there, to put it frankly, there wasn’t much by way of legal operations.
So that was the division of labour.
Mr Blake: What do you mean by legal operations, briefly?
Benjamin Foat: Legal operations is the controls and policies that a Legal Department can put in place in order to not just help the Legal Department but also help the business. So that might include a central repository of contracts, it would include contract framework agreements, it would include legal manuals, so trying to make sure that the company understood all of the legal matters that it actually has, understand where they come from in the business, so that the company can have a more mature approach to the management of legal risk.
Mr Blake: Thank you. I’m going to take you to a document from 2017 that touches on matters relating to prosecutions.
Could we bring up on to screen POL00357840. For your assistance that’s at E41. It’s an email chain from, as I say, June 2017. If we scroll down to the bottom of the first page, we can see it’s an email that begins from Alisdair Cameron to you and he says as follows, says:
“The guidance yesterday was that we should not attempt to prosecute any cases where the losses had arisen from or were identified via trading and Horizon rather than a straight theft, until two things happen. Firstly we complete the Deloitte work on systems reliance. Secondly the CCRC opine. The former is fine and I gather we are close. The second I want us to make as a formal judgment with Paula engaged because it is a big deal, with an open timetable and a strong sense that this is now costing us blood.
“My preference would be to do the Deloitte work and then seek a prosecution relying on Horizon in a single sympathetic case – admission, good evidence, not too sympathetic a postmaster, not part of the GLO etc. And then we will know.
“In the meantime I have a specialist team setting up prosecutions that will never happen. We can get them doing other stuff for now but I need to lay them off if the prospects aren’t there?”
If we scroll up, we can see a response from Jane MacLeod. Halfway through that second paragraph, she says:
“Since security operations transferred out of LRG …”
Can you assist us, what does LRG mean?
Benjamin Foat: LRG is Jane MacLeod’s team, so the “L” stands for Legal, “R” stands for Risk, and “G” stands for Governance, which in effect is meant to be secretariat.
Mr Blake: Thank you:
“Since accurate operations transferred out of LRG last September, we have discussed only one case that could potentially be subject to prosecution. Most of the prosecution team – including the necessary legal resource, left the business 2 years ago under the wave 1 redundancy programme.
“So one of the factors to be considered would be whether we want to undertake our own prosecutions with the likely increased cost, or whether we refer them to the police and provide the necessary support.”
Can you assist us with why, in June 2017, you were sent emails or copied into emails relating to the potential resumption of prosecutions?
Benjamin Foat: Yes, certainly. So I sat on Al’s property Board meeting and so, in the course of that meeting, he happened to speak to me – well, it was actually after the meeting – and he expressed the desire to resume agent – what was referred to as agent debt recovery, and I think you can see from his email that he illustrates that.
And so, because he had spoken to me, he wrote the email to me, but then you see, of course, that it’s actually Jane who responds to him because the way that it was structured in terms of the Group Litigation is that Jane and Rod Williams, who was the Head of Legal for Dispute Resolution, was in a working group and a programme to manage the Group Litigation. And that had a SteerCo and obviously a Board subcommittee. So that’s why Al raised the question with me but it’s why Jane actually responds.
Mr Blake: Did you have a view in respect of Mr Cameron’s proposal?
Benjamin Foat: I didn’t have a firm view. I felt I was a bit too removed from the issue to be able to opine on it and Jane had answered the question, had responded in the email.
Mr Blake: Thank you. I think you do take some action following this. If we could turn to POL00249526, that’s your E70. I think you forward this chain to Rodric Williams and ask him to do some further work on it. You say:
“Can you do a [background] note on this area …
“The questions that need to be answered including:
“The time limit on bringing a prosecution;
“The different reasons for not pursuing prosecutions …
“What categories of loss should be pursued …
“Whether the prosecutions team help with the civil investigations that need resource …”
Can you assist us, at this point in time, where did Rodric Williams fall within line management: were you managing him?
Benjamin Foat: Yes, so I managed Rod holistically in terms of all of his remit. However, the way that it works at Post Office is that, in this particular case, because the GLO programme wasn’t a BAU matter, Rod reported directly to Jane MacLeod on the issue. So that’s why, for instance, I’m not involved in the working groups, I’m not involved in instructing counsel, I’m not involved in the GLO steering committees or attending the Board on the Group Litigation.
I think what this email shows is that I obviously don’t know enough of the context of what’s being discussed and I’m trying to get up to speed. One of the things I had asked Rod to do was, although I wasn’t involved – and indeed, I had actually asked to be involved, but if Rod could keep me up to date just on the milestones of the GLO.
Mr Blake: Did you work in an office with Rodric Williams?
Benjamin Foat: Correct.
Mr Blake: Did you meet regularly; did you have team discussions?
Benjamin Foat: Yes, I had one-to-one discussions usually on a monthly basis with all of my Heads of Legal. Rod predominantly worked on the Group Litigation. However, he also was responsible for a number of other matters, as well, and so – and importantly, given my focus was on legal operations, I was keen to make sure that, for him as Head of Legal for Dispute Resolution, that he was looking at a claim protocol, for instance, so that if claims are served on Post Office branches, how do we make sure that we actually get to see those claims in the Legal Department?
So there are a number of different operations that I was requiring the Heads of Legal to undertake, for instance making sure that all matters that they had conduct of were set out, so that we had a central repository, and also making sure we understood where the accountable owners were in the business, and also giving some estimate of time, so that we could better understand where the risk – the legal risk of the business sat.
So Rod was heavily involved in the GLO but he did have number of other obligations, which I was particularly interested in making sure continued.
Mr Blake: Was one of his roles related to matters relating to criminal matters?
Benjamin Foat: Correct. Though I understand that Rod had a firm called Cartwright King and that he would engage those matters. I wasn’t involved in those matters, but I understand he reported to Jane on those.
Mr Blake: Would he have been your principal, go-to person within the team for matters relating to criminal prosecutions?
Benjamin Foat: During my tenure, yes, that’s correct.
Mr Blake: Thank you. I’d like to take you to a document that you will not have seen at the time it was produced. It’s POL00315631, that’s your E45. This is a document that’s well familiar to the Inquiry. You may have seen it in previous phases. It’s an advice from Cartwright King, dated 27 March 2015. It addresses what we know as Project Zebra, the investigation relating to remote access. I’d just like to read to you a few passages from this note. They say, “Note: Deloitte Report – Questions for [the Post Office]”.
I’ll start at paragraph 2. They highlight at paragraph 2 that, within the Deloitte report, it:
“… identifies a method of posting ‘Balancing Transactions’, that is, the post of ‘… additional transactions centrally without the requirement for the transactions to be accepted by the subpostmasters …’ The paragraphs goes on to indicate that, ‘Whilst an audit trail is asserted to be in place over these functions, evidence of testing of these features is not available …’”
There are also later extracts in that report that are reported to be of concern. The first is:
“‘For balancing transactions … we did not identify controls to routinely monitor all centrally initiated transactions to verify that they are all initiated and actioned through known governed processes …’
“‘Controls that would detect when a person with authorised privileged access used such access to send a fake basket into the digital signing process could not be evidenced to exist’.”
Then Cartwright King say this:
“This material is potentially disclosable in cases where a convicted defendant had raised, as a part of his defence (either expressly or by implication), the suggestion that:
“[The Post Office] or some other third party had manipulated, interfered with or otherwise compromised Horizon; or
“Horizon was created or was the victim of a system generated but inexplicable loss/entry/transaction(s); or
“The defendant simply had no idea how the relevant loss arose.”
Reading this, the Zebra report had identified a number of pieces of information relevant to the issue of remote access and the discussion is as to the disclosability of that to those who had been convicted.
Moving on to paragraph 6, it refers there to a telephone conference with Rodric Williams of the Post Office and Andrew Parsons of Bond Dickinson, who were:
“… informed that the Deloitte Report was correct where it identifies a method of posting of ‘Balancing Transactions’.”
It says:
“We were instructed that it was possible to ‘inject’ a transaction unilaterally into a branch’s accounting records without the consent, approval or indeed knowledge of the [subpostmaster] …”
Was this issue, so remote access, potential disclosure, in criminal cases, those who had been convicted of criminal offences, was that ever brought to your attention by Rodric Williams?
Benjamin Foat: No, and I think this document is a document before I was employed at –
Mr Blake: Absolutely, yes. During your time though, I mean, you had some involvement in the Group Litigation, for example, and we’ll get to that in due course. Did Rodric Williams ever bring up this knowledge that we see in this document?
Benjamin Foat: No.
Mr Blake: No. Looking back, what is your view of Mr Williams’ competence and credibility?
Benjamin Foat: My observation that I had was he was a very experienced litigation lawyer. I recall that I think he commenced his legal career in New Zealand. He was also admitted to the New York Bar. He had also practised in the United States, and he had also practised here for number of years, all specialising in commercial litigation. I found him to be a very diligent and passionate lawyer. I didn’t have issues around his technical competence; in fact, I found his technical competence to be sound.
Mr Blake: Do you have any reflections on that now or is that still your view?
Benjamin Foat: Well, I understand that Mr Williams has identified that there are areas that were missed and, of course, with that in mind, obviously any lawyer, you know, would be incredibly mindful of missing such pertinent information, which particularly in the circumstances of where it can lead to such devastation, and I know that that has played on Mr Williams.
But my genuine observation of working with him is that he is a person of integrity and he’s tried to do his best in the circumstances, but I acknowledge that clearly issues have been missed.
Mr Blake: I’m going to take you to a number of emails regarding document retention that were sent by Mr Williams. Can we start, please, with POL00255859. That’s your E47.
Benjamin Foat: Thank you, sir.
Mr Blake: This is an email of 20 April 2016. We can see near the bottom of the distribution list you were a recipient of this email.
If we scroll down, please, it says:
“As you may be aware, 91 mostly former postmasters have issued a High Court claim against Post Office Limited advancing allegations about the Horizon IT system and the Post Office’s engagement with them. A list of the 91 claimants is attached, and we have been told that others may join the claim in due course.”
This email is 20 April 2016. Were you aware of the Group Litigation before this email?
Benjamin Foat: Yes, I would have been. At this point of time, I was Head of Legal for Financial Services but I – even upon joining Post Office, I was made aware that there was this matter. Indeed, I think I received communications from the business in a relatively short time, having commenced at Post Office. During this period, though, for the reasons I’ve given before, I wasn’t particularly focused on this and I didn’t supervise Rod at this juncture.
Mr Blake: Thank you. A number of instructions. The first is:
“You must not destroy or delete any documents which may be relevant to the claim …”
The second:
“You must not meant any existing documents that may be relevant to the claim.”
It’s the third that I’d like to focus on, which is:
“You must recognise that any documents that you create from now on may have to be disclosed to the other side in the case. If in any doubt, think about whether you would be happy for the email or document to be read out loud in court.”
To what extent, at this point in time, were you live to that third issue?
Benjamin Foat: I mean, I would clearly have received the email. I don’t particularly recall reading the email, but I understand – I mean, in some respects, this is a general email that would be sent to make sure that the – any organisation, when it’s in receipt of legal proceedings, that it makes sure it tells the business that it needs to retain its documentation.
Mr Blake: Do you see any issue with the third point or, in your view, is that standard wording?
Benjamin Foat: I think what Rod is – and it’s perhaps an informal expression, but what he’s articulating to the business here is for them to be mindful that obviously when you commit information to writing, of course that is – that can be disclosable and it’s just reminding people of email usage.
Mr Blake: Was legal professional privilege more broadly something that was well understood within the Post Office at this time?
Benjamin Foat: I don’t think it was well understood – and, forgive me, this is going back several years. Legal professional privilege was an area that I think training was actually provided to certainly the Legal Department, to make sure the lawyers understood, and I think – there was training and particularly when we had what we referred to internally as the “legal academy”, we issued I think an advice or guidance note on what is legal professional privilege.
I don’t really recall specifics about it, other than, I mean, generally the maturity of – or the business’s knowledge about such legal matters would have been very limited.
Mr Blake: From your interactions with, for example, the Executive and the Board level, as you progressed through your career, what was your view of their appreciation and understanding of legal professional privilege?
Benjamin Foat: I think they perhaps had a misguided understanding. So, for instance, I think people thought that the mere fact that you include a lawyer in correspondence, that that may make a document become privileged. That’s not correct. Legal professional privilege is set out in the Three Rivers decision under English law, and so, you know, basically it’s twofold: one, it arises under litigation; and/or the provision of legal advice. And that’s the only two bases upon which – and I’m over-simplifying the topic area, of course, but that is the two bases upon which legal professional privilege applies.
Mr Blake: Jane MacLeod has provided a witness statement to the Inquiry where she says that often documents were marked as privileged when they weren’t, in fact, privileged; was that your experience?
Benjamin Foat: I don’t think I was involved, in terms of the disclosure parts of the Group Litigation, because it was essentially before my time. But as a general point, I could imagine that that is the case: that people – certainly if it’s done by business colleagues – though query why business colleagues would be writing the word “Privileged”, that is something that a lawyer would write.
Mr Blake: Ms MacLeod has also highlighted that from April 2016, when the business was informed that Freeths had filed a claim, she was more sensitive about confidentiality and privilege issues, given the risk that the litigation was imminent, and some updates were therefore given verbally only from that point. Is that something that you experienced?
Benjamin Foat: Well, I – as said, as Legal Director, I really wasn’t involved in the Group Litigation programme but I was aware of the fact that Jane would give verbal updates to the Board. I think – and this is probably some time later, probably in, I think, 2018, but she was particularly concerned around the disclosure of information between Post Office and the shareholder and/or UKGI. And so one of the areas that she had highlighted to Rod – and I think I was included in that – was the need for a litigation protocol or a document protocol between the respective organisations, so that, if there was what’s called common interest privilege, that that could be maintained.
Mr Blake: Do you think that that impacted in the level of information that was shared with UKGI?
Benjamin Foat: I really don’t think I could comment because I simply wasn’t there.
Mr Blake: I’m going to return to the circular email from Rodric Williams, I’ll take you to another version of the same email. It’s POL00245909. That’s your E49. We’re now on 23 November 2016.
If we scroll down or zoom out, we can see it’s exactly the same email that we’ve already looked at, in terms of the 1, 2 and 3. If we scroll up we can see it’s sent by Rodric Williams to Rob Houghton and Jeff Smyth; do you know who they were?
Benjamin Foat: Yes, so Rob Houghton was the Chief Information IT Officer of the company between – and forgive me if the dates aren’t quite precise – but I think between 2015 or 2016 and 2019, and Jeff Smyth became the Chief Information Officer in or about 2022 onwards.
Mr Blake: Thank you. He highlights there:
“Point number 3 in the email highlights the need for care when creating documents.”
Are you aware of a concern within the Legal Team focusing in particular on the creation of documents and the need, for example, for things not necessarily to be written down?
Benjamin Foat: No, I was not.
Mr Blake: The same email chain is sent in May 2017. We can have a look at POL00415520, that’s your E50. There are other examples that I could take you to but I don’t think we need to because what’s relevant really is just the point in time. If we scroll down to page 2, we see there the same email sent in May 2017. By this stage, were you supervising Mr Williams?
Benjamin Foat: In May 2017, yes, I – Rod reported into me generally but not in relation to this matter.
Mr Blake: No, but generally, and from your observations of Mr Williams – because we’ll see there were a number of other occasions where the same email is forwarded – was he somebody who struck you as particularly concerned about the recording or not recording of particular information in light of legal professional privilege concerns and in light of the litigation?
Benjamin Foat: I wasn’t aware of that concern. I’m not disputing what you’re saying but I personally wasn’t aware of that concern.
Mr Blake: If we could please turn to POL00293080, that’s your E57. Moving on in time slightly in the summer of 2017, we’re now in August 2017, this is a letter to the registrar of the Criminal Appeals Office on Post Office headed paper sent by Mr Williams. If we scroll down, we can see he’s the author of this letter. That middle paragraph says:
“Royal Mail Group and Post Office became separate organisations on 1 April 2012 … and we are currently establishing whether Royal Mail Group or Post Office hold material in relation to this case.”
So there is an appeal to the Court of Appeal in the case of Mr Butoy, and Mr Williams appears to be dealing with that matter. You were, by this stage, his line manager; is that correct?
Benjamin Foat: Correct.
Mr Blake: Did you see or were you kept informed of these kinds of developments?
Benjamin Foat: No, as I said, matters that were pertaining to the Group Litigation, that was something that he would have separate conversations with Jane MacLeod directly on. She would quite regularly come down to the floor, take him into a meeting room, have conversations with him on the matters that related to the Group Litigation.
I think, subsequently, I had seen that there – as part of trying to make sure that there’s good legal operations in the company, that it was noted – in a – I used to try to get the team to get monthly reports up to Jane MacLeod, and I have subsequently seen that there was a reference – I think there’s a sentence in relation to this matter – but I was not involved in this appeal at all and I didn’t give any advice or any decisions in respect of it.
Mr Blake: Your references to the Group Litigation – this is obviously separate, this is an appeal to the Criminal Court of Appeal – was that also being kept separate from your role and responsibilities?
Benjamin Foat: Correct, because they were inherently linked and so I did not have any involvement in that.
Mr Blake: At this point in time, was there any consideration given in your department to expertise in criminal law, somebody who is well familiar with criminal disclosure, for example?
Benjamin Foat: At this point, my understanding was that Rod would interact with Womble Bond Dickinson, Cartwright King and I think there were counsel that were involved. But we did not have a criminal lawyer and I think that part of the reason was that, at this point, and since I had been Legal Director, Post Office did not undertake criminal prosecutions. But I accept your – I accept your point. I think you may be suggesting that it ought to have had its own criminal lawyer but my understanding was that, because Post Office wasn’t undertaking criminal prosecutions, it therefore didn’t have a criminal lawyer, and we had a fairly tight inhouse Legal Team.
Mr Blake: Do you think you had sufficient expertise within the department to be able to be dealing with, for example, the Criminal Cases Review Commission?
Benjamin Foat: As I said, I mean, that is a matter again that Rod worked with Jane on. I understand he did have support through Cartwright King, who I understand are criminal law specialists, and that he had counsel, and I never heard from him that he felt unsupported in that way. My observation was that there wasn’t that much, in terms of any criminal law issues, at that time, but I’m clearly removed from the details of all of this. So I wouldn’t have had the best – I wouldn’t have been in the best position to have made such observations.
Mr Blake: If we could turn to POL00257831. That’s your E54. This is an appeal chain that you’re not copied into, and I’m just going to really, by way of timeline, if we scroll down to the bottom we’re now in October 2018. This is an email from Mr Williams to individuals at UKGI. He says:
“The purpose of this email is to let you know that on Thursday, 11 October 2018 the Criminal Court of Appeal will hear an application from a former postmaster seeking permission to appeal …”
If we scroll up, we can see that is relating to the case of Mr Butoy, who we saw a letter in relation to just before. It says:
“Mr Butoy’s application for permission to appeal was refused earlier today.”
Then in the next paragraph it says:
“In response to Tom’s enquiry from earlier this morning, Mr Butoy has not applied to the Criminal Cases Review Commission for a review of his conviction, ie he is not one of the 33 Post Office prosecutions currently being reviewed by the CCRC.”
Were you aware at this stage of the significant number of Post Office prosecutions that were being reviewed by the CCRC?
Benjamin Foat: No. My understanding at this stage – I was aware that the CCRC had been involved in the Group Litigation. I think my understanding at this point was the CCRC was waiting to understand what was happening with the Group Litigation. I mean, I had a very limited understanding around the process around the CCRC at this point.
Mr Blake: As somebody who managed Mr Williams, why is it that so much is taking place between Mr Williams and Ms MacLeod, rather than Mr Williams discussing these kinds of matters with you?
Benjamin Foat: Because she’s the General Counsel and it was her decision to divide the work in this way, which I don’t think is necessarily unreasonable, in the sense that the Group Litigation was a significant matter and, as the General Counsel now, I think she wanted to have the Subject Matter Expert – which internally within the team was Rod – and she wanted to work in that way that she had that direct access.
Moreover, there were a significant number of legal issues other than the Group Litigation that also needed to be managed, which was my focus, and so that was the basis upon which she divided the labour.
I did actually ask twice to – I offered my services to help on the Group Litigation but she said that that wasn’t necessary.
Mr Blake: What was your understanding as to why that wasn’t necessary?
Benjamin Foat: Because she said we already had a lot of lawyers involved in the matter.
Mr Blake: If we could please turn to POL00259733. That’s your E23. This is an email chain from 29 November 2018. If we scroll down to the bottom, we can see it’s an email from Grove Road Post Office, sent to a number of people including Paula Vennells.
If we scroll down, we can see the author says:
“I have not left my position as postmaster for Hope Farm Road and Grove Road post offices. I still hold a valid contract for both branches. I am however precautionarily suspended from my duties at the moment due to your client’s perception of circumstances that I have, as yet, not been given the opportunity to have a dialogue with your client’s representative to put my side of the story to your client. I have a meeting arranged for 4 December 2018 to discuss this.
“I dispute that I owe your client the sum of [£35,000] in fact I am currently making repayments towards this figure from my remuneration albeit under duress and without prejudice.”
It then says:
“To this end I have registered as a secondary claimant to the Group Litigation Order currently being dealt with by the High Court in the matter of Bates & Others …”
If we scroll up, we can see a response, it’s forwarded, I think, to you by Jane MacLeod. She says:
“Please get someone to deal with this.”
If we scroll up above we see your response:
“We are on it and I’ll revert back with a note to you on how it is being managed.”
By November 2018, had you become more involved in matters relating to the Group Litigation?
Benjamin Foat: Not the Group Litigation programme itself but I think at that stage the issues around the contracts and agent debt had been raised, and so I think, in this respect, it would have been either the Head of Legal for Retail because the – it’s a current postmaster, I think, at that point, and/or it would have gone to Rod.
Mr Blake: Is it fair to say that by November 2018 you were aware of issues concerning the resumption of prosecutions, those first documents that we saw, and you were also, to some extent, involved in matters touching on the Group Litigation?
Benjamin Foat: I don’t think I was aware of the resumption of prosecutions.
Mr Blake: Involved in discussions relating to the resumption of prosecutions?
Benjamin Foat: I was not involved in resuming any criminal prosecutions.
Mr Blake: Involved in discussions relating to those: the emails that we saw when we started today?
Benjamin Foat: Sure but I was not involved in any discussions relating to that matter. I did not instruct Cartwright King. I did not make any decisions on that. So whilst it may be in a document that I have been copied into, I was not involved in that matter whatsoever.
Mr Blake: In relation to the GLO, by November 2018, is it fair to summarise as some involvement on the sidelines?
Benjamin Foat: Well, I may have been copied into matters that related, if you want to say “on the sideline”, but to be clear, I did not attend the Working Group, I was not involved in instructing any external lawyers, I was not involved in attending the SteerCo, in which decisions were made, and I did not attend the Board subcommittee that made the decisions in respect of the matter.
It’s not to say that I didn’t have any information about it and I absolutely was aware of the major milestones. So, of course – and, indeed, I actually asked Rod to keep me up to speed on the major issues.
Mr Blake: Thank you. 15 March 2019, so moving on a little, that was the Common Issues Judgment, and I’d like to look at an email of the same day, that’s POL00023809. That can be found at your E9. If we start at the bottom of page 3 into page 4. If we scroll up slightly we can see it’s an email from Jane MacLeod and you’re copied in at this stage:
“Please see attached a first draft of the ‘more detailed’ briefing to go to UKGI … tomorrow … on the detail of the judgment.”
If we scroll up, please. Mr Beabey, where did he fit within your team?
Benjamin Foat: So because Jane had said to me that Rod was spending, understandably, a lot of time on the Group Litigation, she – and, of course, I needed him to do other litigation work, we came to the view that we needed an additional litigation lawyer to be part of the inhouse team. So he became involved in supporting the litigation areas within the Legal Department.
I think – actually, no, I don’t recall which law firm he may have come from.
Mr Blake: He says:
“I know there’s a framework around information sharing with UKGI – my immediate thought concerns the status of the document when it goes across in terms of privilege and restrictions from subsequent disclosure by them under [the Freedom of Information Act]?”
If we scroll up, we can see an email from Amy Prime, junior solicitor at Womble Bond Dickinson. She’s responding to him, so the “Ben” referred to there is him. She says:
“It would be easier to maintain privilege over an advice note to [the Post Office] that is being shared with UKGI, rather than a note to UKGI. The problem with a note to UKGI is that they are not the lawyer’s … client and so legal advice privilege does not apply. We think this would be a document prepared for the purpose of litigation, and therefore attract litigation privilege, but it’s not 100% clear cut.”
If we scroll up, there’s a response from Mr Underwood, Mark Underwood. He says:
“Amy – please see attached. Presumably, similar problems arise re privilege and [Freedom of Information Act]. Is there a way to navigate our way through those in relation to the attached briefing which Patrick has prepared for UKGI/Ministers?”
The response is the first email on the page. Ms Prime says:
“Yes, the same problem arise [for] this document.
“For UKGI, is necessary to produce a separate paper to Jane’s briefing note which is being shared under the protocol?
“For BEIS, it is not 100% clear cut that litigation privilege would apply to this document …”
She says below that:
“We would therefore recommend that the document does not contain any information that would be awkward or damaging to Post Office if it was publicly released.”
Now, that’s an email chain that you’re copied into. I think you’ve already explained some concerns within the Department or from Ms MacLeod relating specifically to UKGI. Were there concerns at this point in time in the business with sharing certain information with UKGI because of privilege issues?
Benjamin Foat: Yes. I think Jane had concerns and I think it may have even predated this document, but I – my recollection generally is that she did have concerns about information, the way it could be communicated to UKGI and the Government Shareholder. I think her concerns were whether a privilege would be lost or, if information does go to a Government department and it’s then on-forwarded or shared further, the – of course, as lawyers will know, that then undermines or creates a risk that you lose confidentiality, you lose the privileged status that is attached to the document.
Mr Blake: Thank you. That can come down.
The 9 April 2019 was the recusal judgment. Were you in any way involved in that matter?
Benjamin Foat: No, but I was made aware of the recusal. I remember Jane – I remember having a conversation with Jane and she said – she informed me that recusal application was going to be made in the Group Litigation. I expressed surprise. I made the – I actually remember the comment saying that, “Oh, I thought it would be a high bar”, and she said, “No, actually, it’s” – and then she articulated what the legal test was to me.
So for some reason that’s really the only bit that I remember, but I was aware that the recusal application was going to be made but, again, I didn’t appoint any of the barristers – Lord Neuberger, Lord Grabiner, I wasn’t involved in their appointment – and I wasn’t involved in the Board meetings.
Mr Blake: One of your areas of responsibility as Legal Director was managing legal risk. Do you think you were sufficiently informed by Ms MacLeod, by those involved in that litigation of the legal risks involved at that stage?
Benjamin Foat: It’s Ms MacLeod who, as the General Counsel, ultimately manages and supports the business to manage legal risk. So I reported to Jane MacLeod. She was my boss and she is an admitted solicitor and she was managing the Group Litigation. So I – as an independent regulated solicitor, I didn’t think it’s unreasonable for the General Counsel to take ownership of the matter and she had a different role in the Group Litigation, in that she would – she attended the Common Issues trial, I think almost every day, and she attended the Horizon Issues trial. So that was her decision to resource the legal matters in that way.
Mr Blake: We’re going to look at one last document before we break and it relates to Ms MacLeod stepping down. Irrespective of the fact that it was her job to manage the overall risk, do you think, at this stage, you had been given sufficient information, sufficient updates, sufficient briefings, relating to matters such as the Group Litigation and the CCRC?
Benjamin Foat: No, because although I, from my own pro-activeness, asked for updates, I wasn’t involved in any of the Working Group meetings, I didn’t instruct counsel, I didn’t attend the Executive SteerCo that oversaw this matter from an Executive position in the company, and nor did I attend the Board subcommittee, which made all of the decisions in relation to the matter.
The General Counsel ultimately has responsibility for supporting the business to manage its legal risk and so there is no higher person, and that was her decision to manage it in that way. And she was supported. I think it’s important to note that she was supported by several QCs because when I offered my support – not just once, twice, I recall offering it – she was supported by multiple Queen’s Counsel, now King’s Counsel, as well as a number of barristers and a law firm.
Mr Blake: Thank you we’ll just go to that document. It’s POL00359988, it’s at your E42. It’s an email from Ms MacLeod to herself. I think she sends it to her personal email account from perhaps her work email account – or certainly two of her own accounts. It’s subject is “Update”:
“Monday
“Meeting 15/4/2019”, with Mr Cameron.
I’ll just read to you a few passages from that. She says there:
“Al then said ‘I’m going to say something that will make you angry’
“Then informed me that ‘we’ weren’t happy with the litigation” –
Benjamin Foat: I’m sorry to interrupt. I think the connection dropped out. If you’re able to – I got the beginning of the document.
Mr Blake: Thank you. So it’s an email from Ms MacLeod to herself. She records a meeting from 15 April 2019 with Mr Cameron and she sets out there in the fourth bullet point that Mr Cameron said to her “I’m going to say something that will make you angry”:
“[They] informed me that ‘we’ weren’t happy with the litigation, and wanted to bring in …”
Is that Herbert Smith?
Benjamin Foat: Correct. That’s what I presume, yes.
Mr Blake: “… to run it.”
So what was Herbert Smith’s role before this?
Benjamin Foat: Herbert Smith was not involved at all.
Mr Blake: Do you know who made the decision for them to be brought in?
Benjamin Foat: I understand subsequently that the Chairman – or, sorry, obviously the former Chairman, the Chairman at the time, Tim Parker, the Government Shareholder representative, Tom Cooper, together with Al Cameron who was the interim CEO and, of course, the subsequent CFO, they approached two law firms one of which was Herbert Smith, and they appointed Herbert Smith.
Mr Blake: Thank you. That’s consistent with the bullet point below. It then says that:
“[Mr Cameron] was vague about role (taking it over, independent or just replacing me).
“I expressed concern about the timing vis à vis current process.
“I asked whether change that immediate effect – it did.
“I Asked if [Herbert Smith] were expecting to be instructed this week – they were. I asked whether he wanted me involved in briefing [Herbert Smith] – he did and asked me to meet with them that day …”
Can you assist us: what was the feeling within the company, within the senior levels of the company, at this stage, towards the way the litigation had been handled?
Benjamin Foat: Well, when the Common Issues Judgment was handed down and was communicated, I think it came as a great shock to the organisation and I think that people such as Al, and some members of the Board, were very disappointed in the legal advice, in the sense that the legal advice was simply not borne out in the judgment.
Mr Blake: If we scroll down, there’s mention of speaking to you to give you the heads up of the proposed changes; do you recall that conversation?
Benjamin Foat: Yeah, I recall she asked me to go to her office and I went into her office and she appeared upset and she said that HSF were, in effect, replacing her role.
Mr Blake: If we scroll down, was it clear to her that she was being replaced more broadly than just in relation to Group Litigation?
Benjamin Foat: Oh, yes, that, in effect – I don’t recall if these words were used, it’s hard to remember the actual conversation – but I think it was she felt redundant.
Mr Blake: She then refers to another conversation with Mr Cameron around 9.20, and it’s just a passage I’d just like to ask you about, it’s the fourth bullet point:
“I asked who would instruct [Herbert Smith]/to whom would a secondee report to? Al was unclear on this and asked my view – I said it was either Ben (lower than my current accountability) or a [Group Executive] member, but no one else was close to the issues.”
Was it ultimately you –
Benjamin Foat: In – sorry, in what sense?
Mr Blake: – who would instruct Herbert Smith or who would be the direct liaison with Herbert Smith?
Benjamin Foat: So when I became General Counsel, so obviously the Board had made a decision to appoint HSF, and so there’s obviously an engagement letter that needs to be signed off the back of it. But, yes, as General Counsel, I would then, and did so, liaise with HSF.
Mr Blake: As someone who was lower than Ms MacLeod’s accountability, did you feel comfortable taking on that role?
Benjamin Foat: Well, it was a step up, if that’s the question. So yes, I obviously was the Legal Director, and I would be – not that I think I knew at this point but, subsequently, Al had a conversation with me and he said that he would like to appoint me as General Counsel.
Mr Blake: What was your view as to whether that was a good opportunity, something that you were qualified and experienced for, or something that you weren’t sufficiently experienced for?
Benjamin Foat: I knew it would be a challenging role. I have had the benefit of having excellent previous experience, whether it’s as a senior associate in private practice or teaching law at university, or publishing as well as working in an inhouse role as – for corporate lawyer for a major financial services institution and, indeed, by that point I’d also been on subsidiary executive committees and also risk and compliance committees, and so I’ve had the benefit of extensive experience but I accept the point that it was my first General Counsel role.
Mr Blake: Thank you.
Sir, that might be an appropriate moment to take our first morning break.
Sir Wyn Williams: Yes, by all means.
Mr Blake: Can we come back at quarter past?
Sir Wyn Williams: Yes, by all means.
Mr Blake: Thank you very much.
(10.06 am)
(A short break)
(10.15 am)
Mr Blake: Thank you, sir.
Mr Foat, could we move on now to 11 May 2019. If we could turn to POL00023233, and that’s at your E8. The Court of Appeal had refused permission to appeal in relation to the recusal application. If we turn over to page 2, we can see Mr Parsons providing an update on that at the bottom of page 2. If we scroll down slightly, he says:
“Please find attached the Court of Appeal’s decision refusing permission to appeal …”
Then we have your response on page 1, at the bottom of page 1. You say:
“Thanks both – we will need to explain the CEO and the Board why we received advice that is again contrary to the outcome. Can we summarise the [Court of Appeal’s] conclusions and what was it that caused there to be a different conclusion from the advice that was given. I am concerned that credibility is being lost so let’s be clear on how this is to be positioned.”
To what extent were you involved in the decision to appeal to the Court of Appeal in respect of the recusal application?
Benjamin Foat: So the decision to appeal was already taken by the Board on 20 March, so in the Board resolution – I only know this subsequently, of course – but if you look in the minutes of the Board resolution, they had made the decision to recuse, at first instance, and should Lord Justice Fraser now not grant permission, that the Board authorise that recusal appeal be made. So the Board, I understood had made that decision on 20 March.
Mr Blake: Thank you. In respect of the refusal of permission, how was that received within the business?
Benjamin Foat: This is Lord Justice Fraser’s refusal on the permission in the –
Mr Blake: No, I think this is appeal, isn’t it? The Court of Appeal refusing permission. If we scroll down, sorry, over the bottom of page 2 into page 3?
Benjamin Foat: Sure. So I think the business was disappointed and it was disappointed because, understandably, the Board had taken advice from Lord Neuberger, Lord Grabiner and David Cavender QC, and I think – importantly, I think it was in April that HSF was appointed and so I think, from the Board’s perspective, the Board was given legal advice that suggested the Post Office had good merits in making the application to appeal, or making the recusal application and the appeal, and so the Board was, again, disappointed like they were disappointed in the Common Issues Judgment, which is why I make the point about being concerned of the Legal Department losing credibility.
Mr Blake: Could we turn to POL00042675, please. That’s your B13. If we could start on page 3. So the recusal application having been lost and Court of Appeal having refused permission, there’s an email chain shortly after, 15 May, and it says as follows, from Mr Mitchell – who was Mick Mitchell?
Benjamin Foat: I think it’s someone in the IT Department.
Mr Blake: He says:
“Rob
“We have reached out to an independent test company Ten10 to review our current and test strategies, focusing on the Horizon/[Fujitsu] estate. We anticipate the review will produce outputs around mid-June. We will keep you informed and I will ask Isabel to circulate the [Terms of Reference] for the work. If we need to be more specific on Horizon then happy to accept the feedback.”
We can see on page 1 where this all leads to, and it’s advice from Mr Parsons from Womble Bond Dickinson, yes, in May 2019 now, 17 May. He says:
“The work below makes me nervous. If the report flags any risk in Horizon, we will be obliged to disclose it to Freeths. The report landing in mid-June would be terrible timing as it might land when Worden is giving evidence or just as we are preparing closing submissions. I would advise against conducting this work whilst the Horizon trial is live.
“We will have an ongoing duty of disclosure all the way up to the Horizon judgment being handed down (and potentially beyond that). If we disclose the report after the Horizon trial closes but before judgment, there is a risk that Freeths will seek to put in extra submissions to the judge.
“In an ideal world from a litigation perspective, this work would not happen until after the Horizon judgment given is. I appreciate however that there is a need to balance litigation risk against normal business activity.”
You respond above, saying:
“Thanks Andy – very helpful.”
Was that work undertaken?
Benjamin Foat: The test?
Mr Blake: Yes.
Benjamin Foat: Yes, I understand it was in August.
Mr Blake: So was it undertaken after the trial?
Benjamin Foat: That’s correct.
Mr Blake: Yes, and was that intentionally so, in light of Mr Parsons’ advice?
Benjamin Foat: I’m not aware of that.
Mr Blake: Is this another example of concern within the business about creating material that would be disclosable in litigation?
Benjamin Foat: I think the point of this was just making sure that – it’s joining the – as General Counsel, I’d say joining the dots across the organisation. So it was just making sure that the business – if they don’t need to do something and there’s no obligation to do something and that can create risks, well, then normally lawyers will advise the accountable business owner of that. That’s not to say, if there are adverse documents that have to be disclosed, then they will be disclosed.
But I think it’s just making sure that there was coordination between the IT Department and the Legal Department. My understanding is that the test did go ahead and, if there was anything adverse, then that would have been disclosed.
Mr Blake: The kind of advice given by Mr Parsons there, do you think that is appropriate, in the circumstances where the Post Office is owned by the Government and also in circumstances where the Post Office has historically prosecuted people?
Benjamin Foat: At the relevant time, I think I was in as General Counsel for about two or three weeks, I’m not sure I would necessarily have quite understood all of the context of the question you just put but I think – I mean, I simply asked for the legal advice and this is legal advice that came back, and I think what they’re saying here is that looking at it, as he says, from a litigation perspective, if you don’t have to do something, and therefore he’s saying not to, but what I’d be very clear is – and indeed, I think it’s implicit in his point, that there is an ongoing duty of disclosure, and so, if something does happen, it will need to be disclosed.
Mr Blake: Irrespective of your state of knowledge at that particular time, you were subsequently General Counsel for a fair amount of time, looking at your role and looking at the Post Office, do you think it is appropriate for that kind of a position to be taken by the Post Office, in light of its Government ownership and in light of its historic prosecution function?
Benjamin Foat: I am not aware of any specific rules of why it wouldn’t. My understanding is that this is legal advice, it’s litigation legal advice, and so it would follow the normal course, which is –
Mr Blake: Irrespective of the advice that’s being given, though, in terms of a position, so let’s say that advice was adopted by the company, do you think it is appropriate for the Post Office to adopt that position?
Benjamin Foat: That’s ultimately a question for the decision makers. They would need to factor in or consider the legal advice but they, as – whether as Board Directors or whether as other accountable business owners, they need to have regard number of considerations. That would include, for instance, the criteria or additional elements that you have put forward, but the role of the lawyer is to advise on the legal risks.
But you’re right: there are other considerations that a decision maker ought to take into account.
Mr Blake: If you were the decision maker, what would your view be?
Benjamin Foat: I’m not the decision maker.
Mr Blake: But if you were the decision maker what would your decision be?
Benjamin Foat: It’s not the role of the General Counsel to be the decision maker.
Mr Blake: But if you were the decision maker what would your decision be?
Benjamin Foat: I don’t have a view on it. It is not my role.
Mr Blake: Can we turn to POL00021556, please.
This a Board meeting of 28 May 2019, if we scroll down we can see you are in attendance as General Counsel. How often would you attend Board meetings?
Benjamin Foat: I would attend for the relevant section of the Board meeting that would be – would pertain to me. So when I became General Counsel, I would attend in respect of the Group Litigation.
Mr Blake: Is it right that throughout your time as General Counsel, the role was somebody who would attend the Board but would not be a member of the Board?
Benjamin Foat: That’s correct. The General Counsel is not a Board Director and so, therefore, it’s not a member of the Board. It will only attend upon the invitation by the Board and, in Post Office’s case, the General Counsel doesn’t sit through the entire Board meeting. It only attends in relation to specific agenda items.
Mr Blake: In your view, is that usual or unusual?
Benjamin Foat: I’m aware from an industry perspective there are different models. My personal perspective is that it does make my role more difficult not to be attending the Board – not a member because I’m not a Board Director – but not to attend the Board makes it more challenging because you don’t actually get to hear all of the other agenda items. You don’t get to hear, for instance, you know, what is discussed about NBIT or what is discussed about other topics, and so it just makes it a little bit harder for that.
Mr Blake: Do you feel that, during your time as General Counsel, you were given sufficient information as to what was going on at Board level?
Benjamin Foat: In relation to what? Sorry.
Mr Blake: Broadly: was your level of information regarding the company sufficient for your role?
Benjamin Foat: From time to time, I don’t think it was adequate. There are a number of occasions where certain documents I asked for and I wasn’t provided with. The model that Post Office has does make it more difficult, unlike my predecessor, who was both the General Counsel and the Company Secretary, had the benefit of being able to sit throughout the entire Board meeting and, personally, I do think that is a more helpful model.
Mr Blake: Thank you. If we go over the page we see there reference to:
“… a number of attacks on the [Post Office] brand through the Group Litigation and with the Horizon trial about to resume; the Daily Mail campaign to ‘Save our Post Offices’; continued opposition in some quarters to franchising … and, the case brought by 123 postmasters on employment rights. We needed to undertake a review of postmaster remuneration which provided sustainable solutions. Ideally, an announcement would be made in November 2019 for introduction in April 2020, however, this might need to be fast tracked depending on publicity and disquiet sounding the Horizon trial.”
Were you aware from within the business of consideration being given to essentially provide good news to counteract what was going on in the Horizon trial?
Benjamin Foat: Not specifically. We – Post Office has a communications department. I assume that is probably where that – comments are coming from.
Mr Blake: Can we turn, please, to page 4, which is where the Group Litigation update is provided and I think that’s the agenda item for which you attended. It says there:
“Alan Watts introduced the paper and he and Ben Foat updated the Board on recent developments. We had 21 days to make an application to the Court of Appeal for leave to appeal”, and then it refers to new counsel.
There’s a paragraph below on the recusal costs being around £300,000.
It then goes on to say a number of points were raised, and it’s the second bullet point that I’d like to ask you about. It says:
“Whether there was anything further we could do to influence the outcome of the Horizon trial? It was reported that Fujitsu’s witnesses had not been strong, while [the Post Office’s] had been satisfactory. Only the expert witnesses has yet to provide evidence and it was important that they did not renege on their previous position that Horizon was a robust system. It was critical that Horizon was seen as a robust system today. It was likely that the expert witnesses would say that the system had bugs. This was not in dispute but the issue was the degree to which it was a robust system that could be relied upon and that there was nothing in the judgment that suggested the system was unfit for purpose today. We had looked at the evidence of the system and what the issues had arisen over the period of time covered by the case.”
The suggestion there that the expert witnesses – if we scroll up – may renege, do you recall a concern of that sort?
Benjamin Foat: No, my recollection, albeit this may be a subsequent recollection, was – there was a question mark as to whether or not the experts had come up to proof in the sense – and I think what was communicated, in the nicest possible way, perhaps both of the expert witnesses had not put their best foot forward.
Mr Blake: Was there a concern within the business?
Benjamin Foat: Pertaining to?
Mr Blake: That the experts would renege on their previous position that Horizon was a robust system?
Benjamin Foat: I think there was a general concern about the conclusion that would be reached about Horizon. Horizon is an essential system to the provision of the Post Office services.
Mr Blake: Yes. Can we move on to POL00091437. That’s your E13. It’s 10 June 2019, an email from Rodric Williams. It’s summarising the cross-examination of the claimant’s expert, Mr Coyne. It identifies his evidence in relation to bugs. He said:
“Mr Coyne’s evidence on this seemed confusing, ranging from 13 to 22 bugs.”
Was it clear in your mind at this stage that Horizon had bugs and those bugs were at least 13 to 22, as suggested here?
Benjamin Foat: I’m not entirely sure, but I thought I probably had the view that the question was not so much about the bugs itself but the impact of bugs and I – tangentially, I remember a reference about that there was very little bugs given the broader context, but I wouldn’t have necessarily have known much more than that.
Mr Blake: Given your previous understanding in terms of the air traffic control system, the robustness of Horizon, did there come a point at which you started to question the line that had been taken by the business and, if so, at what point was that?
Benjamin Foat: I think it became evident only in the trial itself that – querying whether or not the witnesses came up to proof, and I think it was the reporting back to the Executive and the Board about the witnesses and the evidence.
Mr Blake: If we could turn, please, to POL00136421. That’s your E18. If we could start on page 7. We’re now into June 2019. At the bottom of the page, it’s an email from Tim McCormack to Mr Cameron, and he emails Mr Cameron about another computer error. We see there, if we scroll down slightly, he says:
“I don’t know what they have brought to your attention recently but the single-most important piece of information you should be dealing with right now is a new error in your computer systems that, as it stands, cannot be introduced into the current trial but should be.”
If we scroll up, we can see Mr Cameron asks for more detail. If we keep on scrolling up, Mr McCormack says that:
“The error in question is serious. Details of it are being treated as confidential …”
There is then, if we scroll up, Mr Cameron wants to speak to Mr McCormack. He says:
“[For your information] I will speak to him.”
If we keep on scrolling up, there is a message from Mr Mark Davies, the Director of Communications, slightly above, at the bottom of page 5, please. He says:
“My advice is to wait before speaking to him so that we can brief you. But if you are speaking today, please be aware that as you do it is a direct line to likely public comment/journalists. I’m uneasy about saying more on email. I suggest you read this blog … in some depth before speaking to him. I also suggest giving Angela a call: she has dealt with him on many occasions over the last seven years.”
If we keep on scrolling up, please, to page 3 – perhaps the bottom of page 2, actually – it seems that all the correspondence with Mr McCormack has been kept on file “including Rod’s letters to him when he was regularly emailing Paula”.
Was there at this time, June 2019, a caution within the business in relation to looking further, in relation to bugs, errors and defects? We saw that Ten10 email and the testing and the concern about carrying out further testing at that stage. Were there wider concerns within the business about looking too deep into current bugs, errors and defects in the Horizon system?
Benjamin Foat: No, I don’t believe that’s so. My understanding – and a lot of this I’m not actually necessarily involved directly but it – my understanding of this email chain was concerned that the Comms Team were raising with Al about discussing, had Al been the interim CEO at the relevant time, having a conversation with Tim McCormack. I understood that there was a long history, the details of which I wasn’t involved, but I think that’s the concern that’s been raised by the Comms Team.
Mr Blake: Was there, though, more broadly, a concern within the business, or perhaps a lack of reflection within the business, as to the extent of the problems with Horizon?
Benjamin Foat: At that point, Post Office’s position was still that the system was robust. It had received advice saying that the witnesses had not come quite up to the proof that was expected, but I don’t think anyone was suggesting that they wouldn’t look into bugs, errors or defects.
Mr Blake: Could we please turn to POL00280270, that’s your E33. It’s an email from Al Cameron, the Interim Chief Executive at that time of 2 August 2019. He says as follows:
“Ben, I have been made very uncomfortable about an issue at Little Milton Post Office … They approached me recently because they had been asked to pay a significant amount … to us. Kim Abbotts got involved but could not explain what had happened remotely. At my suggestion an audit was held and the belief now seems to be that there was no loss, just misbooking of stock and mis-remming of cash. However, Kim has not yet been able to explain things to my satisfaction.
“Could you please work with Kim while I am away to understand what has happened and answer two questions.
“1. Is our understanding of what is happening in branch sufficient for us to be able to ask for money or suspend postmasters – it doesn’t feel like it.
“2. Secondly, should there be any implications for our defence of the GLO.
“Given our shareholder’s focus on a rapid settlement, I would rather you looked at the questions without it being clear I am asking – I haven’t used the whistleblowing process to protect privilege but I am asking for that confidentiality and protection. You do not therefore have my permission to discuss this elsewhere, other than talking to Kim about the specifics.”
A few questions on this. First of all, the reference there is, “the shareholder’s focus on a rapid settlement”; can you assist us with what that meant as at August 2019?
Benjamin Foat: I think that was part of the change of strategy that had been discussed by the Board with the shareholder, which was, as opposed to what had happened in the Common Issues Judgment, when Al was appointed as interim CEO and after the Horizon Issues Judgment, I think there was a concerted effort to re-examine the approach that had been taken. Obviously the comments by Lord Justice Fraser, both the tone of which and his findings, came as a shock to the organisation and so there was a change of approach to make sure that the company understood that and, in particular, that there’d be a focus on mediation or resolving the matter, rather than just through litigation.
Mr Blake: We see an email on the same day, POL00327569. That’s your E39, from you. You forward the concern to Norton Rose and ask for advice. I think the suggestion in there is that it may have been raised by Mr Cameron because he had been unsuccessful in his application to become the CEO. What was your view of the concerns that were being raised by Mr Cameron?
Benjamin Foat: I remember the way that I treated this was to treat it with what – I would say a straight bat, so I treated it as if it was a potential whistleblowing matter and, because it provided an unusual set of circumstances that this was the CEO purporting to make a potential Speak Up, in circumstances where it was his own area of responsibility, so the – at this point, he was responsible for the operations, where he – the issues around stamps and Little Milton occur. So it was a unique situation of someone whistleblowing for which they are themselves accountable for the work.
I was also mindful of the fact that, as the General Counsel, I reported in to the interim CEO, and then I was also mindful of the different hats that, at that point, I was wearing because I inherited Jane’s work, and so I was both the whistleblowing officer but also the General Counsel.
And so it put me in a unique and difficult position and so I sought external legal advice.
Mr Blake: Irrespective of the difficult position because of Mr Cameron’s role, do you have any concern about the difficulties in getting to grips with apparent shortfalls?
Benjamin Foat: I specifically raised – it’s not to NRF, but to Herbert Smith, it was specifically raised with them, to make sure that that was looked into.
Mr Blake: Was there a concern in the business at that stage that there may be wider problems that hadn’t really been identified?
Benjamin Foat: At that stage I think they were trying to work out what actually happened at Little Milton and, of course, it was somewhat problematic, in that we had to sort of proceed obviously with not mentioning Al, but I was able to have a conversation with a relevant person in the Operations Team. As I said before, HSF were actually appointed to look into the specific issue and then, subsequent to this issue, the issue around remming in and stamps, et cetera, was looked into.
Mr Blake: You’ve said that during this period, the summer of 2019, there was a movement towards settlement –
Benjamin Foat: Correct.
Mr Blake: – and it’s settlement and some advice that was received in that respect that I’d just like to look at now. Could we please turn to POL00042755, that’s your E11. We’re going back in time only slightly. We’re in June 2019, if we scroll down, please, we can see advice from Andrew Parsons of Womble Bond Dickinson. He says:
“All
“We spoke couple of weeks ago about a plan for moving forward settlement in the Group Litigation. In simple terms, this was to ask Freeths to provide better claim valuation information either alongside or as a precondition to mediation. Has that plan changed following the Board subcommittee last week?”
He says at the bottom of that second paragraph:
“Either way, we may wish to write to Freeths sooner rather than later about settlement.
“If we’re still following the same path, I think that HSF were preparing a first draft of a letter to Freeths? In the meantime, we have now received advice from Brian Altman QC on settling with convicted claimants – attached.”
Scroll down, please:
“His conclusion is:
“‘In my opinion, there is some risk to including convicted claimants in any settlement agreement or package. At this stage, and in the abstract, I am unable exactly to define or quantify the risk. While it has to be a matter for others to advise and decide how far the Post Office should go in progressing a differential approach among the convicted Claimants and the rest, my advice must be that reaching any settlement agreement with the convicted Claimants should be a red line for all the reasons given above’.”
What did you understand by the risk that had been identified by Mr Altman?
Benjamin Foat: My understanding was that it – and I’m not sure if my understanding is based on that or other advice on the point. My understanding is that it was contrary to public policy that you can’t compensate people while they have the conviction. So that was, I think, the conundrum with the settlement, which is: how do we settle the claims that the original 555, a number of which did have criminal convictions? The vast majority did not but there were some that did, and so I think, in the end, the settlement agreement settled holistically with the – with everyone, including the convicted criminals. But it didn’t include compensation around the overturning of their criminal convictions because that had not yet occurred.
Mr Blake: Did you have any concerns in respect of the advice that had been given by Mr Altman?
Benjamin Foat: I don’t have any recollection of this particular point specifically.
Mr Blake: That can come down, please. In terms of the settlement and the legal costs, were you aware that a substantial proportion of any settlement would go to pay the costs and litigation funders on the part of the claimants?
Benjamin Foat: Correct, yes.
Mr Blake: How early were you aware of that situation?
Benjamin Foat: From memory, I think there was discussions with HSF around, I would say August, perhaps? August to September? And certainly going into mediation, we understood that the challenge would be around litigation funding. I remember asking about whether or not it was a recoverable head of loss.
Mr Blake: I want to move on to tactics more broadly in the Group Litigation. Can we please turn to POL00276474. If we start on page 2. That’s your E29. I won’t read out this email because it’s an email that we’ve seen, we dealt with it in depth with Mr Parsons. He there sets out, essentially, why it was that an opinion on the merits in the litigation hadn’t been provided or obtained originally, and it sets out there the strategy that had been adopted.
What was your view on the strategy as set out here and the fact that there wasn’t an overall opinion on the merits?
Benjamin Foat: I do apologise. Which document is this one?
Mr Blake: E29 of your bundle. It should end 6474.
Benjamin Foat: Thank you.
Mr Blake: Page 2 is the email from Mr Parsons. He sets out there that the strategy was to contest the Common Issues trial and he sets out the thinning the herd strategy, and he says that:
“The strategy was never to seek an outright win through the court process [because] that would mean ultimately defending 500 plus individual claims …”
He explains:
“I hope this helps explain why there hasn’t been an overall opinion on the merits of the litigation in general.”
If it assists, if we turn over the page to the first page, you say there:
“It does leave the Post Office in a difficult position. I remain surprised that no overall assessment on merit has been undertaken when we are two trials in.”
You also say that you should point out that “Al”, I think that’s Al Cameron:
“… was particularly disappointed on learning that the claimants had in fact provided a Schedule of Information in relation to quantum. Like him, [you] had heard numerous people advise that the claimants had not provided anything on quantum …”
Briefly, can you assist us with what your view was in respect of how the litigation had originally been approached?
Benjamin Foat: So as I think Andy is explaining there, I think Post Office took a very technical and legal approach to the matter and so, yes, it was setting out to me what had previously occurred in the Common Issues Judgment, which I understood took place in November 2018.
Mr Blake: Were you concerned by the fact that there wasn’t, for example, an advice, an overall opinion on the merits of the litigation?
Benjamin Foat: Yeah, I think at this point because the strategy had changed, it even – it changed even in respect of the Common Issues appeal, to narrow it down, to make sure the tone was right, to make sure that we were looking at mediation rather than a technical litigation defence. I think the strategy clearly had changed in June 2019. I think what Andy is explaining there was a look-back, if you like, at what the previous litigation was.
Mr Blake: If we please turn to POL00276883, that’s your B68. If we scroll down, please, it’s on the same theme. It’s an email from you raising concerns in relation to the lack of information regarding quantum that had been provided. It seems as though there was an email, one and a half years ago but since, notwithstanding that email which had been forwarded to you in the chain below, you say:
“… even I have constantly heard since becoming involved that the claimants have not provided us anything on quantum.”
It appears, in fact, that they had provided some figures.
In what way did that, in your view, delay the settlement of the case, the lack of information that appeared in the business regarding the quantum of the claim?
Benjamin Foat: I’m not sure it necessarily delayed settlement, in the sense that, for me – and, again, I’m sure others may have a different opinion – but from where I was standing, it seemed to me that the catalyst for change was the handing down of the Common Issues Judgment and the failed recusal application. That – because that was a shock and that was really the crystallisation of change.
But what I’m saying in this particular email is that there are things that the way that the previous lawyers, or Womble Bond Dickinson in this case, had taken, although they didn’t – I didn’t think that they were doing it intentionally, I think they were making generalised statements and, unfortunately, sometimes those generalised statements can be misinterpreted, and so I was just picking up the point that I had observed, or been indeed told, that the claimants hadn’t particularised their claim when, in fact, what in reality was, was that they had provided some information about their claim, albeit it wasn’t particularly particularised as it ought to be in a legal claim.
So I guess what I was saying to Andy here is, “You need to be more precise with your language because it could mislead”, and I’m conscious, obviously, as the then General Counsel, I’m conscious to make sure that my lawyers, you know, don’t leave a false impression or mislead the Board, notwithstanding any – of course, no intention to do so.
Mr Blake: Thank you. The final topic before we move to Phase 7 and the final topic also before our next break is records management. Could we please have a look at POL00401613, that’s your E58.
You have previously given evidence in respect of disclosure to the Inquiry and this is a similar topic. This is a Risk and Compliance Committee meeting in which you were present on 10 September 2020 and it’s page 2 of those minutes that I’d like to look at. If we scroll down, please, there’s the section there on “GLO/Freedom of Information Request/GDPR”. It says:
“… the team remains stretched responding to Historic Shortfall Scheme and related/linked [Freedom of Information] requests … Following receipt of 41 [Freedom of Information] enquiries considered vexatious from one journalist, 31,000 boxes of data (previously unknown) have now been identified in storage. These are being reviewed by legal, [Herbert Smith Freehills] and Peters & Peters and a separate paper for [the Audit and Risk Committee] will be prepared regarding this issue.
“The Committee recognised the need for improved data retention/management training across the group and in the retail network.”
Can you briefly assist us with the 31,000 boxes and how it is that they were identified?
Benjamin Foat: So my understanding was that, in the course of mapping out the relevant data repositories, that documents that I understand came from the retail part of the business was discovered and it hadn’t otherwise been indexed, or at least there was an issue around the indexing of the documents, and that it hadn’t been captured in the previous reviews. And so I was extremely mindful of the fact that – and not just for this matter – sorry, and I mean the Group Litigation, but in respect of other legal matters as well. It was critically important that we have a data universe and that we understand what that data universe is and that the business is complying with our document retention policy and the document preservation notices.
Mr Blake: Thank you. Can we please turn to POL00021462 and that’s your E59. The issue is then raised on 22 September at the Audit and Risk Committee. If we scroll over to page 5, into page 6, please, the same topic:
“The team is extremely busy dealing with requests related to Historic Shortfall Scheme and related/linked FOI requests.”
If we can scroll down please, it says:
“Of serious concern and Committee discussion, was the discovery of 31,000 boxes previously unknown to the wider organisation, which are being reviewed … The Committee questioned whether management had a handle on data management controls such as archiving, and remarked on the lack of accountability within [the Post Office].
“NR [I think Mr Read] remarked that this was an unacceptable incident and that he did not expect this to be brought to the Committee’s attention by compliance. A paper on data controls is expected at [Group Executive] for discussion.
“The Committee recommended a data amnesty …”
There is one more document that I’d like to take you to and that’s POL00167390. That’s your E60. This is a Board meeting, 22 September 2020. We see, if we scroll down there, there’s the Committee report from the Audit and Risk Committee:
“Carla Stent provided a brief overview of the topics discussed at the ARC Committee meeting held earlier in the day including the pensions assurance update and the identification of 31,000 boxes …”
By this time, so we’re September 2020, the Post Office had been involved in the Group Litigation since 2016. Did the Post Office have a sufficient grip on its own records, in your view, by this date?
Benjamin Foat: No, it did not.
Mr Blake: Who do you consider is responsible for that?
Benjamin Foat: Well, data had sat with the CFOO, there had been a data director in the company who reported to Al Cameron. Data then transferred to the IT Department but, to be fair, the accountability for data was something that was raised, or rather the accountabilities generally, of which data was one, was raised as an area that needed resolution.
I wasn’t aware of the state of the organisation’s data until this issue around the 31,000 boxes and then, subsequently, all the remediation work that needed to be undertaken. But I had raised clarity around accountabilities at a broad level and, certainly, when I became aware of Post Office’s data, and the state of its data, specifically the data universe, I repeatedly raised it to both the RCC, the ARC and Nick Read.
Mr Blake: I don’t think I need to take you to it, but there’s an ARC meeting on 12 November 2020, that’s POL00423519, it’s your E61, but I think we can deal with that without looking at the document. By that stage, sampling still hadn’t taken place in respect of those boxes, so we’re a couple of months later.
Do you think sufficient priority was being given within the business to assessing that data, given that the appeals were, at that point, going to be heard in March 2021?
Benjamin Foat: I think it’s yes and no. So there were aspects where we were encouraging all the business to make sure that they have provided all data, to make sure that we understood what the data universe was. At this time, Mr Salter had a Head of Data that was in his team and, in the end, I actually shifted some of my resources, such as my Compliance Director and my Operations Director, to support the accountable business owners to map out the data universe to make sure – and I personally went down to the archiving unit, and I also went up to Chesterfield. I walked thorough every room, together with a third party.
I was particularly concerned from this point onwards about the state of the data and whether or not the organisation had got to grips on it, and I devoted more resource from my team to facilitate that.
Mr Blake: Do you think the company is now properly on top of its records?
Benjamin Foat: I think considerable effort has now been made. I obviously, as you will have seen undoubtedly in the ARC and RCC minutes, raised the legal risk around failure to have our historical data properly managed and the legal risks that that creates.
A substantial work and Remediation Programme has taken place. There’s now – (audio disruption) – of a data director, which – there has been establishment of a data counsel.
Mr Blake: Sorry, I think you cut off briefly.
Benjamin Foat: Oh, I apologise. So in short, in short, a number of remediation steps have occurred with a data director, a data counsel, a lot more – because of the frankly embarrassing and unacceptable issues around disclosure, that the Inquiry is well aware, the company is far more cognisant about its data management and a lot more resource has been put in place.
Mr Blake: Thank you very much.
Sir, we’re going to move on to Phase 7 issues. Perhaps that is a convenient moment to take a 10-minute break.
Sir Wyn Williams: Of course.
Mr Blake: Could we come back at 11.15?
Sir Wyn Williams: Okay.
(11.08 am)
(A short break)
(11.17 am)
Mr Blake: Thank you, sir. Can you see and hear me?
Sir Wyn Williams: Yes, thank you.
Mr Blake: Can we begin our Phase 7 examination by turning to POL00289903. That’s E39 of your Phase 7 bundle.
Benjamin Foat: Thank you.
Mr Blake: This is correspondence, if we scroll down, of 7 September 2019, with Mr Watts. Was he a solicitor at Herbert Smith Freehills?
Benjamin Foat: Mr Watts is the partner.
Mr Blake: Partner, thank you. He says in this email:
“Again, we do not want to hear anything more from them other than an appropriate offer and settlement deed wording. We aren’t going to have sessions with them in Chesterfield or wherever. Frankly I don’t think there is anything more to be said. As for Nick and I, we need to focus on the other 10,000 postmasters who are running the Branch Network [sorry, this is from you] and serving customers over the busy December period. Hopefully that gives you enough clarity to pass on to the other side.”
Is this a point in time where you’re discussing settlement and providing instructions to Herbert Smith?
Benjamin Foat: Correct. I think this was day 9 or day 10 of the mediation.
Mr Blake: Thank you. The reference there to needing to focus on the other 10,000 postmasters, was it your view, at this stage, that the focus of the business needed to be reset onto existing postmasters rather than historic matters?
Benjamin Foat: No, it wasn’t as broad as that. What this email relates is that the original settlement and mediation had been set down for two days, I think the parties had an extensive negotiation and settlement. Post Office had provided a lot of additional information. Amanda Jones, the Postmaster Director at Post Office, had met with those in attendance at the mediation. Julie Thomas, the Operations Director, had met. They’d explained the improvements that they were making.
Post Office also accepted to meet with the claimants for the following year to update them on progress.
My concern at this point, and this is an email between lawyers in the matter, is that the mediation had gone a lot longer than it had been intended and, of course, although the Group Litigation is clearly one of my, you know, key matters, I am General Counsel for all the other matters as well and I am – I guess this is some frustration that I’m expressing on Saturday about trying to balance all of that.
Mr Blake: Can we turn to POL00290399. That’s your E40. If we have a look on page 2 it’s a circular that was sent by Mr Read on 11 December within the organisation. He says there:
“We are committed to a reset in our relationship with postmasters, placing them alongside our customers at the centre of our business. As we agree to close this difficult chapter, we look forward to continuing the hard work ahead of us in shaping a modern and dynamic Post Office …”
Mr Read’s evidence to the Inquiry was to the effect that you presented the issue of prosecutions to him as a historic issue; would you agree with that?
Benjamin Foat: I did see Mr Read’s evidence. I categorically deny that I told him not to dig into the past. I would not have said that. Indeed, I don’t think any General Counsel would. But I couldn’t have said it because I am clearly on record in the documents saying that, even with the Horizon Issues trial being undertaken, once the judgment is handed down, the issue around criminal convictions would need to be looked into.
And that’s well documented that I said that in SteerCos, and to the Board, and I said that before Mr Read started and I said it after Mr Read started.
So for me to have said anything contrary to that is very odd.
Mr Blake: You’ve said in your statement that there came a time at which you became more removed from the Board: you’ve used words such as “increasingly sidelined”. When did that happen and what happened to your relationship with Mr Read?
Benjamin Foat: So I was appointed as a temporary sponsor for the GLO and Inquiry programmes but, increasingly, my direction and advice on matters were not being taken up and I wasn’t included in meetings that I asked to be included, such as meetings with Herbert Smith, such that it was making it increasingly difficult for me to maintain the veneer of the title of temporary sponsor. And I raised this in March 2023 with Mr Read, again in April and, ultimately, in July I said to Mr Read that I would not continue to be the temporary sponsor of those programmes in those circumstances.
Mr Blake: Where does this originate from, in your view?
Benjamin Foat: I made a number of recommendations and I raised a number of concerns to Mr Read and to – obviously I raised them, as well, with the Board, and I just wasn’t getting the traction and so I didn’t feel it was appropriate for me to remain having that title when it didn’t reflect the reality.
Mr Blake: You’ve referred elsewhere in your statement to prioritisation of costs management over quality and speed. To what extent does that feed into that issue?
Benjamin Foat: It is part of the issue, particularly when I did a review of the HMU and Inquiry programmes, when Declan Salter, the previous director, left and just prior to the appointment of the two new directors, and I made the observation that there was too much focus on cost management. Even, indeed, when the two directors were in the role, both if them expressed the concern that 40 per cent of the time was to do with managing costs, rather than the delivery of the programme.
Mr Blake: Putting compensation and redress to one side because we’ll address that as a separate topic, how has that focus on cost impacted on, for example, addressing the concerns raised by Lord Justice Fraser?
Benjamin Foat: I would say that there is genuine desire by the business to get things done. I think the Retail Team – I haven’t been able to watch all of the evidence with apologies, but you will have heard from Tracy Marshall and Mel Park, I believe, and I think they have tried to progress matters as quickly as possible. My view is that they, like other parts of the organisation, have been stretched and, with constant restructures and constant cost reduction exercises, it has necessarily meant that reprioritisation has had to be undertaken in their areas, as indeed my own area.
Mr Blake: Focusing now on compensation and redress, what was your formal role in relation to compensation and redress as at the beginning of 2020?
Benjamin Foat: I was the General Counsel. At the beginning of 2020, we would have had – the Horizon Issues Judgment had landed, the settlement of the original 555 had occurred, and the establishment of the – what we called the post-GLE – sorry, my apologies, the post-GLO programme, and that programme was chaired by Nick, and the purpose of that was to manage all of the implications that were arising from the Common Issues Judgment appeal, ie the Post Office was not successful in terms of the Common Issues Judgment, and so, for – and therefore to ensure that it incorporated all of the components of the Common Issues Judgment and that they were operationalised across the business.
It included, similarly, the implications that arose from the Horizon Issues Judgment, and so that’s where you will have seen that Peters & Peters and a series of counsel teams are appointed in respect of the criminal work. There was also a number of workstreams, including the settlement conformance.
So there were a number of obligations that were set out in the settlement agreement that Post Office needed to comply with. So it was a broad programme of work.
Mr Blake: I’d like to ask you about the overall business’s attitude towards compensation and redress, as at that period. If we could turn to POL00155397. That’s your E10. It’s an email that the Inquiry has already been looking at. At the bottom of page 1, it’s an email from Mark Underwood to Rodric Williams and you. Scroll down, please. He emails saying:
“Hi Rod,
“Some comments for your consideration …”
This is about setting up the Historic Shortfall Scheme.
If we scroll down to the bottom, we can see the section on fees. He says as follows:
“My strong view is that you cannot seek payment from applicants – however small and regardless of the rationale behind it.”
Were you aware of consideration being given at that stage to charging fees to applicants?
Benjamin Foat: I think there was reference made in a legal advice note. My understanding was it was in relation to the escalation process.
Mr Blake: Can you assist us with what you mean by that?
Benjamin Foat: So my understanding in that email – certainly – well, my view to Alan at the time was there should be no fees. My understanding was that there was – I think it was UKGI who raised the issue generally around that in schemes, you need to make sure that there’s fraud controls within it, and then there was a subsequent dialogue and legal advice that Post Office obtained.
And I think what Mr Underwood is saying here is that he wouldn’t have an application fee but what he was suggesting is a nominal fee for the – for claims that were not resolved by the independent claim, that it was for the – if they wanted to pursue it to a mediation, which was part of the dispute resolution process.
Mr Blake: He then continues:
“Optically, this would be extremely challenging and would be a position that I believe the business would struggle to maintain under political and media pressure. I think you can achieve the same desired outcome [that must be ‘through’] having a very tight and communicated set of eligibility criteria and requirements in terms of the documentation applicants have to provide in order to be accepted into the Scheme.”
One reading of that is that a plan is being devised to make it more challenging for applicants to apply to the scheme; what’s your view on that?
Benjamin Foat: In reality, that isn’t the case, if you read the eligibility scheme. So the eligibility scheme for the HSS – firstly, the HSS, just for context, was actually part of the settlement. It was suggested by the claimants that they thought having such a scheme was important for other postmasters that weren’t included in the original 555. They also made the point that it was important that such a scheme not require legal representation because the original 555 had had to have legal representation because, obviously, it went through the court process.
So with that in mind, Post Office established the scheme. The eligibility criteria for the scheme just required that you were, in fact, obviously a postmaster, that you say you have shortfalls and that, as per the Horizon Issues Judgment, your shortfalls arose under what was called HNG-X or previous versions of Horizon, such as Legacy Online Horizon.
So in those circumstance, there is not a hurdle or challenge to applying to the HSS.
Mr Blake: There has been suggestion that the original forms were complicated. Who was responsible for that original documentation?
Benjamin Foat: Herbert Smith Freehills drafted the original scheme documents. Obviously, Post Office is not a claims management company, in that it sought advice from HSF as to the establishment of the scheme. I am mindful of also this Inquiry’s previous consideration in respect of the issue and I accept, of course, I think with the benefit of hindsight being able to make things clearer, being able to put things in more plain English, I think are entirely fair observations.
Mr Blake: If we scroll up, we can see that this email chain, it’s sent to you but also to Rodric Williams. Mr Underwood says there:
“Hi Rod and Ben,
“Further to the below and purposely just to you – I am not sure the workstream leads set out in Appendix 1 are set in stone yet. For example, I am not sure Nick wants me to lead the Historical Claims workstream owing to my prior involvement in the Complaint & Mediation Scheme, Chairman’s Inquiry and the GLO.”
Rodric Williams, that’s obviously a name that we’ve been seeing from the very beginning of today and it’s somebody that the Inquiry has already heard from. Had there been any prior discussion about people like Rodric Williams, who have a history in the underlying matters, being involved in any of those matters going forward, given their past role?
Benjamin Foat: Yes, there had been. The challenge – and I particularly felt this quite acutely – which is this was a very complex, longstanding matter that had been running for years and trying to get up to speed with everything, trying to understand where all the documents are, trying to get across the huge breadth of issues and detail was very difficult, and so, on the one hand, it was important to be able to have corporate memory, and be able to have people like Rod and others support us; equally, there needed to be a counterbalance to that.
So I felt the fact that when, obviously, Rod was working on these matters, he was heavily overseen by external lawyers and, indeed, the function of HSF was overseeing the litigation, that that brought the counterbalance.
Indeed, the external lawyers themselves actually advised that it would be very difficult for them to do their work if they didn’t have access to those people.
Mr Blake: Do you have a view as to whether the process that was set up was too confrontational?
Benjamin Foat: I don’t think it was intended to be confrontational. As I said before, it was a well-intentioned scheme, in the sense that we were acting on feedback from the original GLO 555. We sought to make a scheme whereby they didn’t need to have legal representation, like the original 555 had had. We were directly acting on that feedback. The scheme itself was one where we would have an external, independent – I think it was three representatives that would assess the claims. It provided a dispute resolution procedure and, in fact, the structure of it had been provided to the original 555 claimants, that that would – there would be that escalation procedure.
I think the fact that we understood that from an evidential standard, that obviously it wouldn’t be the same bar as one would employ in terms of litigation, and so I think it was well intentioned but, at the same time, I do recognise, of course, that there are things that could have been done better.
Sir Wyn Williams: Can I just ask, I’m obviously aware that there have been changes to the scheme – that’s the HSS scheme – over time. Are all those changes the work either of Herbert Smith or some other outside firm of solicitors?
Benjamin Foat: Yes, there’s – we’ve had a number of advisers, not just HSF, but there has also been a number of Queen’s Counsel that have also opined on matters.
Sir Wyn Williams: The only point I’m seeking to make is that each change to the form or criteria, or anything of that nature, has been drafted by outside lawyers not by POL inhouse?
Benjamin Foat: Indeed. But I would add that those documents did go through governance, it did go through the Board steering committees, and UKGI and our Government Shareholder.
Sir Wyn Williams: So the process is, if there’s to be a change, outside lawyers draft it and then it’s approved by the appropriate people within the Post Office?
Benjamin Foat: Correct. I would add that, at this point, there were number of inhouse lawyers as well supporting the external lawyers to do so, but the work – I think if I understand your question, the work itself was undertaken directly by the external lawyers.
Sir Wyn Williams: Yes, I’m not suggesting that there wouldn’t have been conversations with internal lawyers but the actual end result is the result of work by external lawyers and then approved by the Board or whoever, to whomsoever the Board has delegated that function?
Benjamin Foat: Correct, sir.
Mr Blake: There’s been a suggestion in the Inquiry that the view at the Post Office was that the scheme should be run by the Department for Business and Trade. Was that view ever expressed to you?
Benjamin Foat: Yes, if I could perhaps – what was expressed to me wasn’t necessarily that it would be BEIS or UKGI. I think, initially, what was discussed was whether or not it was appropriate for Post Office to run the schemes. My understanding is that Post Office raised that issue with UKGI and the Government Shareholder. There was a strong observation back to the Board that the Government Shareholder would not allow – that the matter had to stay with Post Office and that Post Office had to administer the scheme.
Once that was understood, the Board then made the decision that, if that was the case, then it would separate these – the compensation matters into a separate business unit from what we call the BAU business.
Mr Blake: In respect of Mr Read’s views, were you aware of his views as to whether it was appropriate or not for the business to be running the scheme, as opposed the Government?
Benjamin Foat: I think number of representatives, including Mr Read, including Al Cameron, advised that – they raised the question of, putting it in frank terms, whether the perpetrator, so to speak, should be administering the compensation. It was a point directly raised.
Mr Blake: Raised with whom?
Benjamin Foat: The Government Shareholder and UKGI.
Mr Blake: Is it your evidence that the Government Shareholder and UKGI were not open to that possibility?
Benjamin Foat: Correct.
Mr Blake: Thank you.
Sir, I’m going to move on from compensation unless you have any further questions?
Sir Wyn Williams: No, thank you.
Mr Blake: I’d like to deal with the Pineapple email, as we know it, that’s POL00448302. I’m not sure what your reference is for that particular document but I’m sure it will be one that you’re well familiar with, as are we. If we scroll down further over the page, please.
So this is the Project Pineapple note from Mr Staunton to himself. It’s a note of the conversation he had with the two Subpostmaster Non-Executive Directors on 14 January 2024. You’ll be familiar with paragraph that addresses yourself, if we scroll down. It says:
“Equally, Saf and Elliot are FED UP WITH THE AMOUNT OF POWER WIELDED BY FOAT. He and other members of the senior team act as if [postmasters] ARE GUILTY UNTIL PROVED INNOCENT (‘as per my experience’ they both said).”
Just pausing there, is that something that you have said?
Benjamin Foat: I have never said that people are guilty until proven innocent. I have maintained the view throughout my entire tenure at Post Office that we need to adhere to the Common Issues Judgment, the Horizon Issues Judgment and Hamilton, that people are innocent until proven guilty, that is one need not be a senior lawyer to know that point, and I am on record repeatedly saying due process needs to be done but absolutely people are innocent until proven guilty.
Mr Blake: They continue:
“WHILST FOAT IS AT THE HELM, NOTHING WILL CHANGE.”
What do you think went wrong here between you and the Non-Executive Director Subpostmasters?
Benjamin Foat: I think this came off the back of an issue with Mr Staunton. After this email was given to me I received an apology from the two Postmaster NEDs. They were in the apology to me – it was a meeting. They said that Henry had whipped up this issue and I said to them – and I went through this email with them because I wanted to explain to them that the observations/allegations that were made in this email were false, so that, for instance, the power that I was wielding as a result of the Inquiry could not be right, given that I stopped being the sponsor of the Inquiry, and I was conflicted, and I did not attend the Inquiry SteerCos from July 2023.
So for half a year, I’d not been involved in the Inquiry and yet here is an email suggesting I am, in capitals, “WIELDING POWER”, as a result of my work in the Inquiry.
So I explained that to them. I also explained that the reference to Steve Bradshaw was incorrect because Steve Bradshaw and the investigators in that team had never reported to me. They are not part of the A&CI team, which wasn’t created until 2022 and so, any conflation between what previous investigators may have done with my team was not right and was unfair.
And the other issues around – I think there’s a reference to me “pushing Phoenix into the long grass”, I told them that I would show them the emails that, when I was involved in terms of the particular investigation, that I had, in fact, done the opposite, which was to ask my team to strategically prioritise it, to ask my team to progress it and, indeed, it was the actual – the then Inquiry Director who had overridden that direction.
And so I went through this email with the Postmaster NEDs explaining why this was not a factually accurate observation, and which they apologised to me for it, and I have had seen part of their evidence, and I noted that they did row back from – I think clearly in this email they mentioned “Foat”, and I think in their oral evidence they talk about “Legal” rather than myself specifically.
Mr Blake: Two follow-up questions from that. The first: Stephen Bradshaw and Project Phoenix, why was it taking so much time?
Benjamin Foat: So Project Phoenix was established as a result of the Inquiry response tracker. This was an operational process that I put forward for the Inquiry Team to do, so that we could track all issues that were coming from the Inquiry. It actually wasn’t just the Inquiry, it was also as a result of lawyers as well, and that the business, the relevant accountable business owners, could address it.
Part of that response tracker included allegations that had been made by certain people and, at the time, I think the A&CI team was relatively newly established. They had very little resource. We did communicate with the Executive Board about the lack of resource. But I was very clear in 2023 to JB, Sarah and Diane Wills, to say that Phoenix had to be strategically prioritised and, even, I think, in an email in March 2023, I directed the Legal Director, who oversees the A&CI Director, to even take other lawyers off if necessary to make sure that Phoenix was addressed and was given the priority that it ought to.
To be fair to the team, I do want to say they did repeatedly raise the fact that they needed more resource and support to the Finance Team, and to the Executive, which I supported them in doing so.
Mr Blake: Was there difficulty obtaining the funding for that?
Benjamin Foat: Yes, they asked for it three times and it was denied twice, and then, in the end, they did secure additional resource towards – I think it was August, from memory.
Mr Blake: Who, in your view, was responsible for the delay?
Benjamin Foat: I think in part it was multifaceted. I would have thought that, had there been more resource, more funding, that would have enabled the A&CI team to complete its part of the work and then, of course, it’s then handed over to HR, who then has the panel discussions, which were, I believe, set up in October ‘23.
So I don’t necessarily think it is one individual person. At the time I think one has to also acknowledge that the HR department, you know, Karen McEwan only started in October 2023, so I think it was difficult for the HR team, as well, prior to that time.
So I don’t think there’s one individual but I do think a significant part of the delay was the fact that the A&CI team was a new team and had not been adequately resourced, despite the fact that they did ask for that.
Mr Blake: We heard from Mr Bartlett yesterday in respect of the resourcing. Why do you think it is that they are not sufficiently resourced in both yours and Mr Bartlett’s view?
Benjamin Foat: I think, at the time, when – and this is – this is, like many things, including in other organisations, when you start a new function and then you start to lift rocks, you start to try to make improvements, you try to remediate, examine the issue and address the issue, the workload increases. And I think, in part, it wasn’t fully understood just how many different types of investigations would be needed from the A&CI team.
Mr Blake: Why didn’t those investigations or why wasn’t the mechanism put in place far earlier? So I think you’ve mentioned that it was in response to the Inquiry. Why wasn’t it before then? Why were people still working in roles and why was there no investigation into those people prior to it being raised as a matter relating to the Inquiry?
Benjamin Foat: I think – well, certainly in respect of my team, I had considered the issue. I had raised the issue with Nick Read. We had looked at a number of people in roles, and this balance between corporate memory but also making sure that there was the counterbalance of having external people, so I can’t speak more broadly for the organisation, but I had worked on that issue in respect of my team.
Mr Blake: Thank you. Before I pass over to Core Participant questions, do you have any reflections in respect of the role of General Counsel, the role that it plays within the business, how it might be improved?
Benjamin Foat: Yeah. I think it’s fair to say that being the General Counsel in this period of Post Office’s history was and is a challenging role. One needs to be able to challenge Board Directors, Executives but also be able to coach your team, be able to liaise with other parts of the business. I think having a mindset of embrace lifelong learning, which is a value – a personal value and a corporate value of a previous company that I worked at – having that mindset, but also leading from the front, in terms of making sure that people understand that legal conformance is a licence to trade.
It’s not optionality, it’s mandatory and making sure that the business understands it at all levels, that complying with the law is essential to good business practice.
Mr Blake: Thank you very much.
We have some questions from Core Participants. We’re going to take a break at 12.15 but perhaps we can deal with – Mr Stein isn’t currently in the room. Are there other questions or is it just Mr Stein?
Yes, Mr Henry and Mr Moloney, perhaps we can hear from them first.
Sir Wyn Williams: Yes, by all means.
Questioned by Mr Henry
Mr Henry: Mr Foat, can I understand your evidence about the compensation forms, in particular the HSS. You said that you didn’t consider them to be, as it were, over-technical or unfair. Am I right in thinking that?
Benjamin Foat: I’m not sure I did say that. I think I acknowledged that, in hindsight, they could have been clearer. And I’m obviously mindful of the issues that the Inquiry has already identified, in particular around consequential loss.
Mr Henry: Yes. I’m going to deal with those in submissions because that is what the Chairman invited me to do when I was putting that to Mr Read. But let me concentrate on the issue of contemporaneous documents. The guidance in the appendix which was drafted, as you say, by Herbert Smith Freehills, uses the term “contemporaneous” ten times. You acknowledge, don’t you, that historically subpostmasters were put in incredible difficulties by being deprived access to contemporaneous documents?
Benjamin Foat: Yes, I understand that to be the case.
Mr Henry: Yes. I mean, because although this happened historically, it was referred to in the Common Issues Judgment –
Benjamin Foat: Sure.
Mr Henry: – and you remember that?
Benjamin Foat: (The witness nodded)
Mr Henry: So that, of course, would have been nine months old, the Common Issues Judgment, when these forms were being discussed and when these forms were being drafted, wouldn’t it?
Benjamin Foat: I imagine so, yes.
Mr Henry: Yes. So, therefore, at 3.2.2 of the form, it says:
“Greater weight will be attached to contemporaneous evidence, loss of earnings. This will require evidence, preferably contemporaneous, that the subpostmaster was suspended …”
This is 5.22.
“… or had their contract terminated without sufficient notice.”
Further references to “contemporaneous correspondence” being required in relation to loss of earnings.
Further requirement for contemporaneous documents in respect of loss of profits, and it goes on.
I don’t think I need to go through all ten instances. But you accept don’t you that subpostmasters were at a disadvantage in providing contemporaneous documents relating to matters which may have been, by that time, decades old?
Benjamin Foat: Yes, and I understand your point. I think it’s helpful to note that, in terms of the scheme, that the evidential bar was not going to be on a litigation standard and that, of course, it is helpful if the postmasters do happen to have documents but it’s not saying that they – that only reference is to be had to that. It’s, of course, if that documentation does exist and they have it, that it would be helpful to provide it.
Mr Henry: Moving aside now from the Historic Shortfall Scheme but, so far as compensation is concerned, it ought not to be an adversarial process, do you agree; it was never designed to be an adversarial or litigation process, was it?
Benjamin Foat: Yes, it’s – yes, correct. It’s different from litigation in a court. So if I understand the purpose of your question, it is different from the court litigation process.
Mr Henry: Yes. So, therefore, I mean, in the case of Janet Skinner, for example, she has been asked to provide a fifth expert report. You obviously can’t comment on the circumstances of her case but that suggests, does it not, an exacting standard being advanced on behalf of the Post Office by its representatives?
Benjamin Foat: I’m not aware of the specific details. I could suggest that having five expert reports – oh, sorry, you are frozen on my screen.
Mr Henry: Am I frozen?
Benjamin Foat: Can you still hear me?
Mr Henry: I can still hear you very well. Can you still hear me?
Benjamin Foat: Yes, I can hear you. In fact, apologies, you are back now, sorry.
Mr Henry: Right.
Benjamin Foat: So just in respect of, as a general observation, I would – it would seem that five experts would seem a lot but I don’t know the particulars of the claim as to why that’s been required. Obviously, I think Mr Salter – sorry, Mr Recaldin is going to be before the Inquiry on Monday, but I can take that away if you would like me to look into.
Mr Henry: Thank you. Final thing. You accept, do you not, that in these negotiations over compensation the Post Office must act with the utmost good faith, and not indulge or transgress into any sharp practice. That goes without saying, does it not?
Benjamin Foat: Correct, sir.
Mr Henry: Thank you very much.
Mr Blake: Thank you.
Sir Wyn Williams: On the issue of compensation, you will probably have realised that, in every progress update and in my interim report, I have been careful to quote what both the Government and Post Office have said on a number of occasions, namely the aim is to provide compensation which is full and fair, all right? Forget the prompt side of it for the moment.
When I asked questions of both Mr Staunton and, I think, Mr Cameron in the recent phase, that is in Phase 7, they appeared to be acknowledging that, nonetheless, there was a balance to be struck between the compensation payable to the postmaster and the fact that it was coming from public funds, in other words, public money had to be protected.
As far as you’re concerned, Mr Foat – and I appreciate you may not be directly concerned in individual cases in the compensation schemes which the Post Office is administering – do you think that there is a balancing exercise taking place, or do you think that the panels or negotiators or whatever the correct terminology may be, are seeking to fulfil the commitment to full and fair compensation?
Benjamin Foat: Thank you, sir. I think I do understand your question. With respect to my colleagues, I think they are conflating two separate issues. One is to do with an overarching financial envelope that the Government Shareholder may have set aside, as distinct from the individual assessment of claims. The individual assessment of claims is done with reference to three external panel members, one being a QC (sic), one being an accountant, one being a retailer representative.
They are then assessed with respect to principles and, indeed, at the requirement of Government, we also needed to do test cases, and they are with reference to well-recognised established heads of loss. So, you know, that would include general damages, past and economic loss, special damages, et cetera.
So I don’t see that managing public monies, although that is a separate legal obligation on Post Office generally, that does not pertain directly to the individual claims assessment in these cases.
Sir Wyn Williams: Thank you.
Mr Blake: Thank you, sir, if we could have questions from Mr Moloney before we take a ten-minute break.
Sir Wyn Williams: Certainly.
Questioned by Mr Moloney
Mr Moloney: Thank you, sir.
Mr Foat, can I take you back to the start of your evidence this morning, or certainly the early part, when Mr Blake was drawing your attention to the repeated messages sent by Mr Williams, and cascaded through the business about matters of privilege in respect of GLO, ultimately.
Benjamin Foat: Sure.
Mr Moloney: Mr Blake focused on the instruction that was given in relation to the creation of documents and your evidence was that, while you wouldn’t have been supervising Mr Williams in this work, you would have seen this as standard practice in civil commercial litigation?
Benjamin Foat: Yes, so there is a standard process around what we call a document preservation notice and when – not just for this matter but when there are any – which I think the legal test is anticipated legal proceedings, it is appropriate for a company – or indeed a party – to issue a document preservation notice as part of – I think, later when I became Legal Director, I established a central repository of precedence, and I understand that the document preservation notice, although not necessarily Rod’s, but subsequently there is a – what one might say is a more enhanced document preservation notice.
Mr Moloney: Thank you, Mr Foat. Can we just look very quickly again, please, at one of the documents that Mr Blake showed you this morning, which is POL00415520.
Benjamin Foat: With apology, what’s the bundle reference number?
Mr Blake: It’s E50 of your Phase 5/6 bundle.
Mr Moloney: I’m grateful to Mr Blake and I apologise to Mr Foat.
Benjamin Foat: No, that’s all right.
Mr Moloney: Thank you.
Benjamin Foat: Yes, sir.
Mr Moloney: Thank you, Mr Foat.
The first page is simply an urging of all to read the email carefully. At page 2 of this document, we see the three crucial document rules which are the standard practice, Mr Foat, and you’ve been taken to those. I don’t need to go into those in any detail, but if we go on to the next page, we see, “What is a ‘document’?”, and, “What are ‘relevant’ documents?”
We see the definition of a document at number 1 but:
“Relevant documents are any document that could: either support or undermine the case of any party to the litigation.”
So the additional note includes advice on documents and duty to disclose documents which exist.
You told the Inquiry this morning that, as his supervisor, you said you knew that Mr Williams was relying on Cartwright King when it came to any criminal matters?
Benjamin Foat: That’s what I – yes, that’s what I understood the resource was that he was relying on.
Mr Moloney: Yes. There’s no mention in this email of the Post Office’s continuing duties as a prosecutor?
Benjamin Foat: That’s correct.
Mr Moloney: Yes. Would you have expected anyone to whom this email was being cascaded – and, by that, I mean people in the business working in other roles outside the Legal Teams – to be able to understand any relationship between litigation privilege in civil claims and the ongoing duties of the organisation as a prosecutor, from this email?
Benjamin Foat: No, I think you’re quite right, sir. I think this email was limited to a document preservation notice in reference to the High Court litigation. So the civil litigation, rather than a criminal matter.
Mr Moloney: Entirely. Just a question about your experience and perhaps quite complex experience here: this was a case involving civil litigation in a commercial context, brought in part by individuals who had been prosecuted by the business. So a rare species of litigation. Had you, at that point in your career, had experience of commercial litigation against a prosecuting organisation?
Benjamin Foat: No, sir.
Mr Moloney: As his line manager, did you know whether Mr Williams had had that unusual combination of experience either?
Benjamin Foat: I was aware that he had been handling this matter for some years, so I was aware that he had experience. Just to clarify, he wasn’t a criminal lawyer but he had experience of both areas of law, if I can put it in those terms.
Mr Moloney: Yes. Are you able to assist on whether, at any time during your supervision of Mr Williams and before the conclusion of the GLO, there was any message cascaded through the business clarifying that, privilege aside, Post Office may owe duties of disclosure to those who might have the basis for a criminal appeal?
Benjamin Foat: Not off the top of my head, sir, no. I don’t recall it. My vague recollection from 2019 was that there was a device that – and I think, actually, this was the same basis upon which the CCRC proceeded – was that it was awaiting the outcome of the Horizon Issues Judgment.
Mr Moloney: Yes.
Benjamin Foat: I take your – sir, if your point is that there is an ongoing duty of care of disclosure, that is correct, sir.
Mr Moloney: Thank you. Just one final thing, please, Mr Foat. In the autumn of 2020, lawyers were preparing for the criminal appeals hearings, which were to take place in February 2021.
Benjamin Foat: Correct.
Mr Moloney: To your knowledge, was the fact of the discovery of 31,000 boxes of materials ever revealed to the Court of Appeal Criminal Division?
Benjamin Foat: I think it was. It was flagged to HSF and Peters & Peters. There were what was called tranches of disclosure that was made and so there were a number of QCs, there were quite a number of junior barristers, who were conducting the exercise, and it occurred over several months – forgive me, I think it was around August and I think the last disclosure was around February.
Mr Moloney: To your knowledge, did all of that disclosure in the criminal appeal proceedings, did that follow examination of the 31,000 boxes?
Benjamin Foat: I would have thought so, sir, given that Peters & Peters were directly briefed on the issue and were a part of the resolution of that.
Mr Moloney: Thank you very much, Mr Foat.
Sir Wyn Williams: Thank you, Mr Moloney.
Mr Blake: Thank you, sir. Could we take a ten-minute break?
Sir Wyn Williams: Yes, by all means.
Mr Blake: Thank you very much, sir. 12.25, please.
Sir Wyn Williams: Yes.
Mr Blake: Thank you.
(12.14 pm)
(A short break)
(12.27 pm)
Mr Blake: Thank you, Mr Foat.
Mr Stein?
Questioned by Mr Stein
Mr Stein: Mr Foat, good afternoon. Can you see and hear me?
Benjamin Foat: Yes, I can thank you.
Mr Stein: I’m not going to be very long, I have two areas of questions to ask you about, so can I take you then directly to a document I think you’ll find in your module 7 bundle at E3, and on the screen, please FUJ00243199.
Mr Foat, this is a letter written by Mr Patterson of Fujitsu to Mr Read. The date you’ll see on the face of the document is 17 May 2024, and I’m going to take you to one particular part of this letter, which is at the bottom half of that first page, please, and then under the second point there, which is “Pursuit of Shortfalls from Postmasters”. I’ll just go through this:
“It seems that the Post Office may be continuing to pursue postmasters for shortfalls in their accounts using Horizon data. We would have expected that the Post Office has changed its behaviour in light of the criticisms and is appropriately circumspect with respect to any enforcement actions.”
Then Mr Patterson goes on to say:
“It should not be relying on Horizon data as the basis for such shortfall enforcement.”
Just as a reminder, Mr Foat, Mr Patterson is the European Director of Fujitsu, so a very, very senior figure within Fujitsu’s operations.
Now, my first question about this letter is that, bearing in mind the date, 17 May this year, when was it first brought to your attention?
Benjamin Foat: So I was on leave at the relevant time, so I wasn’t involved in this matter. I was due to give evidence previously and I returned to the office and the Interim General Counsel flagged to me this broad issue. I don’t necessarily know if I’ve seen this letter, other than I have seen that it has been raised in other witnesses.
Mr Stein: Right. So after 17 May, when you return from that period of leave, this letter was brought to your attention but you didn’t see a hard copy or a digital copy of it; is that what you’re saying it?
Benjamin Foat: I don’t recall. I recall the Legal Director – or, sorry, the now Interim General Counsel, flagging that there had been an issue between Post Office and Fujitsu and that there was correspondence between the CEO. I don’t know if I have the – all of the details of it but I am aware of this letter, if that’s your question.
Mr Stein: When it was brought to your attention at that time, on the basis of there’s been this issue between Fujitsu and the Post Office, was it brought to your attention on the basis of, well, this is a bit awkward, Fujitsu are not necessarily saying that you should rely upon the Horizon system to look at shortfalls – in other words that this is quite an important issue; was it brought to your attention in that way?
Benjamin Foat: Yes, it was raised with me that Post Office didn’t accept for Fujitsu to be saying that their system – and I think part of what Sarah said was that, you know, obviously Post Office is paying for a system and Post Office expects that it’s fit for purpose, and so – but she – the – the conversation that I had with her is she was reassuring me that there was this issue, it’s being looked into, that the Legal Team – and, I understood it, an external lawyer was involved in this correspondence. But I’m afraid I didn’t have any other detail in respect of it.
Mr Stein: Understood, Mr Foat. Let me press you a little bit further. We heard yesterday from Mr Bartlett, Mr Bartlett being the Director of Assurance & Complex Investigations, that’s John Bartlett. Now, his evidence included a reference to this particular document and he explained that advice had been taken, it seemed to be from outside of the Post Office advice, which allowed the Post Office not to disclose it to police investigations; are you aware of that step being taken, in other words advice being taken regarding this correspondence leading to the outcome, which is non-disclosure?
Benjamin Foat: I’m not aware of that, sir.
Mr Stein: Given the background history of this scandal, which in really short terms is about non-disclosure, it’s about not giving people the right information anywhere close to the right time, it does seem surprising that the Post Office still seems to be keeping back information that may be useful for the exercise of a police investigation; do you not agree?
Benjamin Foat: Sir, I’m not aware of that advice. I haven’t been given that advice. I can’t comment on that.
Mr Stein: Well, I wasn’t asking you about the details of that advice. I was telling you what Mr Bartlett said in his evidence, Mr Foat, which is the effect of his evidence is that they sought advice which led to this document not going out to police investigations. Don’t you agree that seems surprising, given the background to this matter and this scandal?
Benjamin Foat: I would want to see the advice before I comment.
Mr Stein: One of the concerns that might be said about what’s going on here is this is very much same old/same old: information that should go to the police, so that they can investigate either in one direction against an individual or to consider whether their information is correct, is being stopped at a bottleneck at the Post Office. Well, that sounds like history repeating itself, Mr Foat; do you agree?
Benjamin Foat: No, that’s absolutely not the ethos of the Post Office Legal Team or the A&CI Team. I don’t believe that that’s the case but it’s a bit difficult for me to comment on an advice I haven’t seen.
Mr Stein: Yes. In your current situation, are you able to look at such information and consider it and then consider whether it should be reviewed by the team supporting the Post Office before this Inquiry, and then consider that for disclosure purposes?
Benjamin Foat: Certainly, sir. I can take that away and revert back.
Mr Stein: My last question concerns something slightly different. Mr Moloney asked you some questions just before the short break regarding the lead-up period to the appeals in the Court of Appeal Criminal Division.
Now, at that time in the lead-up to the appeals in the Court of Appeal criminal division, we know that Brian Altman KC was leading on behalf of the Post Office, responding to those appeals in the Court of Appeal. We also know that Mr Altman had a very long-term involvement in matters touching upon issues that relate to this Inquiry, including at least being engaged on issues that relate to disclosure or indeed non-disclosure, and he’s admitted that he’s made a mistake in relation to dealing with the matters of disclosure himself.
Did he ever come to you or, to your knowledge, any other member of the Legal Team and say, “I’m worried about whether I should be, in fact, presenting matters on behalf of the Post Office”?
Benjamin Foat: No, he did not but it was the other way round.
Mr Stein: I was going to ask the other way round. Thank you very much. What was the other way round, Mr Foat?
Benjamin Foat: Thank you, sir. By that I mean it was Post Office that raised the fact of – obviously, Brian had been involved. Mr Altman is an extremely experienced senior criminal lawyer and, frankly, he had a lot of information and memory on issues, which someone like myself or indeed a lot of other people didn’t have, so he was valuable from that perspective. But the Board discussed the matter and the Board determined that Zoe Johnson QC, another very capable, experienced Queen’s Counsel, should be appointed as independent from Brian Altman and, in addition, the Board also appointed Sir David Calvert-Smith who would oversee and specifically advise the Board itself, separate from Brian Altman and Zoe Johnson QC.
So I think those measures or controls helped make sure that there was that counterbalance that I’ve referred to previously, that, even if someone had been involved in the matter that there was independent advice and expertise that sat independent from it and, indeed, that there was also Sir David Calvert-Smith.
Mr Stein: Right. To your knowledge, did Mr Altman say or express his own concerns that “I, Brian Altman, was part of the decision-making process and made an error in that process on disclosure issues”, and express his therefore concerns about whether he had a conflict; was that ever discussed with you?
Benjamin Foat: No.
Mr Stein: In the reverse, was that ever discussed with him, “Look, Mr Altman, you’re experienced, you’re valuable to us because you’ve done a lot of work on this”, did the Post Office ever say, “You were part and parcel of that history of non-disclosure, should you really be part of this”; was it ever really raised in that term?
Benjamin Foat: So the reverse – as I said before, the reverse is true. Post Office recognised that he had involvement. But just to be clear to your question, it was only until he gave evidence at the Inquiry that I understand he acknowledged that issue. Before that time, Mr Altman has never – well never to me or anyone else that I’m aware – has acknowledged that point, if that’s – if that’s the question.
Mr Stein: It’s part of it. Thank you, Mr Foat.
I’ll just check.
Nothing else. Thank you, Mr Foat.
The Witness: Thank you, sir.
Mr Blake: Sir, we have one small matter from Mr Moloney and then we have another small matter from Ms Allan.
Further Questioned by Mr Moloney
Mr Moloney: Simply this, and I’m obliged to Mr Foat.
Mr Foat may remember that I asked him the question about the 31,000 boxes and the extent to which they had been reviewed and material from them disclosed for the purposes of the criminal appeal proceedings before the Court of Appeal Criminal Division.
Sir, we’ve managed to make some checks during the time that Mr Foat gave his answer and, in fact, those documents were reviewed prior to the substantive hearing of the criminal appeals.
Sir Wyn Williams: Thank you, Mr Moloney. Ms Allan?
Questioned by Ms Allan
Ms Allan: Good afternoon, Mr Foat. My name is Christie Allan, and I ask questions on behalf of Core Participant Susan Sinclair, who was the first subpostmaster to successfully appeal her conviction in Scotland.
At paragraph 231 of your fourth witness statement, which I don’t propose to turn up, you refer to steps taken by the Post Office between 2019 and 2020 in relation to individuals who may have been affected by bugs, errors and defects with Horizon, especially those convicted claimants and those who had suffered historic shortfalls.
In that context, you describe liaising with external advisers and criminal law experts in terms of the Post Conviction Disclosure Exercise and as a result of ongoing communication from the CCRC.
Can you confirm any proactive steps that Post Office took, particularly in light of the Horizon Issues Judgment in 2019, to immediately seek to rectify the miscarriages of justice which had occurred in Scotland as a result of its failings in its duty of disclosure?
Benjamin Foat: So immediately after the Horizon Issues Judgment was handed down, legal advice was immediately obtained, setting out the potential implications to criminal convictions. Subsequent to that, then Peters & Peters was appointed and, as we’ve just heard through the questionings with Mr Stein, there were a number of other Queen’s Counsel and judge appointed to that process.
My understanding is that Peters & Peters also engaged with a Scottish criminal law firm and, I do apologise, I can’t recall the name of that law firm, but those issues were then communicated back through Peters & Peters.
Ms Allan: Perhaps I can maybe assist you with the name of that law firm. I think that might have been BTO Solicitors; would that be correct? Does that ring a bell?
Benjamin Foat: I don’t know but I understood that there was a Scottish law firm to advise under Scottish law.
Ms Allan: Thank you. Did or has the Post Office engaged with the Scottish Criminal Cases Review Commission or Crown Office in Scotland directly to seek to rectify its failings from the past and to identify those affected subpostmasters in Scotland?
Benjamin Foat: My understanding is that there has been a liaising between the Scottish CCRC and with Peters & Peters. I’m not across the detail but that is correct.
Ms Allan: Okay, thank you.
Sir Wyn Williams: Thank you, Ms Allan.
Mr Blake: Sir, before we finish, I remembered that when I read out the witness statement at the very beginning I read the first witness statement, second witness statement, third, fourth and sixth. I forgot the fifth witness statement, which is WITN09980500, dated 29 May 2024. Mr Foat, can you just confirm for us that your signature appears on that statement and that it is true to the best of your knowledge and belief?
Benjamin Foat: It does appear on this statement and it is in accordance with my belief. Thank you.
Mr Blake: Thank you.
Sir Wyn Williams: Thank you.
Well, first of all, thank you very much, Mr Foat, for providing all the witness statements to which you have attested. I am grateful to you for that. I am very sorry that in the summer, when you were ready to give evidence, that couldn’t take place. I am very grateful to you for giving oral evidence this morning and agreeing with arrangements for starting early in order to facilitate what I have to do this afternoon and, finally, I’m grateful to you for your oral evidence today.
The Witness: Thank you, sir.
Sir Wyn Williams: I would like to say publicly that I’m grateful to everyone who has cooperated with making today happen, starting very early and the hearing running very smoothly. So thanks to you all.
We now have, I think, a fortnight’s break and we resume on 4 November with Mr Recaldin, is it not, Mr Blake?
Mr Blake: That’s correct, sir, yes.
Sir Wyn Williams: All right. See you all then.
Mr Blake: Thank you very much.
(12.44 pm)
(The hearing adjourned until Monday, 4 November 2024)