BEIS0000073
BEIS0000073
UK Government Department for
Business, Energy
Investments & Industrial Strategy
Date: 10 May 2019
Director General: Mark Russell
Lead Official: Tom Aldred
Lead Official Telephone: GRO
Recipient To Note / Comment To Approve / Decide
Kelly Tolhurst X
Permanent Secretary Xx
Special Advisors Xx
OFFICIAL SENSITIVE AND SUBJECT TO LEGAL PRIVILEGE
POST OFFICE LITIGATION: BRIEFING ON POL’S APPEAL STRATEGY
Summary
1. With a direct mandate from the POL Board to oversee the litigation, Herbert Smith Freehills
(HSF) have reviewed POL’s legal strategy. This note provides a summary of POL’s
approach to the Common Issues Appeal, which was signed off by the Board’s Group
Litigation Sub-Committee (GLO) on 9 May. You are offered additional verbal briefing from
HSF and POL. This note also provides an update on the Recusal Appeal, the constitution
of the Counsel team and the Horizon Issues trial, all of which form part of HSF’s wider
review.
Timing
2. POL will seek permission to appeal the Common Issues Judgment before Justice Fraser
on 16 May. Therefore, should you wish to have an additional oral briefing from HSF and
POL, we suggest this happens before 16 May.
Recommendation
3. To note the contents and to indicate whether you wish to have an additional oral briefing
from HSF and POL before the Common Issues hearing on 16 May.
Appeal of the Common Issues Judgment
4. POL is applying for permission to appeal before Justice Fraser on 16 May. Simultaneous
exchange of skeleton arguments for that hearing has been ordered to take place on 14
May, for which POL will provide only a high-level summary of the points that it intends to
appeal and not its actual Court of Appeal Grounds of Appeal (which need to be filed with
the Court of Appeal in early June).
5. Following the appointment of HSF to oversee the litigation with a direct mandate from the
Board, HSF has reviewed POL’s legal strategy. HSF presented their advice on the
proposed approach to the Common Issues appeal - see Annex A. This approach was
endorsed by the Board’s Group Litigation Sub-Committee on 9 May. In broad summary
POL will be appealing:
(a) The Judge’s interpretation of certain express terms of the contracts between POL and
its sub-postmasters;
BEIS0000073
BEIS0000073
UK Government Department for
Business, Energy
Investments & Industrial Strategy
(b) The Judge’s findings on terms that are to be implied into those contracts;
(c) Certain factual findings the judge made, on the basis that it was procedurally unfair of
him to do so in the absence of full disclosure and evidence from the parties; and
(d) A limited number of factual findings that the judge made, on the basis that he was
wrong about these.
Recusal Appeal
6. On9Q April, Justice Fraser handed down his judgment on the recusal application, rejecting
POL’s application for him to recuse himself on the grounds of ‘apparent bias’ and refusing
POL’s application for permission to appeal. In response, POL applied on 11 April directly
to the Court of Appeal for permission to appeal the judge's decision and for the second
“Horizon Issues” Trial to be stayed in the meantime. POL await a decision from the Court
of Appeal as to whether permission to appeal will be granted.
Constitution of counsel team for the appeals
7. HSF is also reconsidering the constitution of the Counsel team for the Recusal Appeal and
the Common Issues Appeal. In the meantime, the QC from the Common Issues Trial,
David Cavender QC of Womble Bond Dickinson, will handle the 16 May hearing.
The second (‘Horizon Issues’) trial
8. On 21 March, the Horizon Issues trial was adjourned on receipt of POL’s recusal
application. It resumed briefly on 11 April to hear the remainder of evidence from POL's
final witness, as ordered by Justice Fraser at the Recusal Hearing. The judge also set out
the calendar for the remainder of the Horizon Trial, commencing on 4 June. However, this
is subject to change because when POL filed its application to the Court of Appeal on 11
April it also requested to stay the Horizon Issues Trial pending this decision.
Future litigation strategy
9. HSF will be providing the Board with advice about the strategy for the litigation as a whole,
including on options for settlement and Alternative Dispute Resolution. We will provide
further updates on this in due course.
Contributors
10. UKGI Legal (Richard Watson) have been consulted and agreed the content of this
advice.
11. We consider there are no additional communications, financial and parliamentary
handling considerations to those covered in previous updates.
Annexes
A. HSF Briefing on Common Issues Appeal