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UKGI / Post Office Limited Information Sharing Protocol
BACKGROUND
A.
UK Government Investments (“UKGI”), on behalf of the Secretary of State for Business,
Energy and Industrial Strategy (the “Secretary of State”), oversees Her Majesty’s
Government’s 100% shareholding in Post Office Limited (“POL”).
POL is the Defendant in the “Post Office Group Litigation”, Bates & Others v. Post Office
Limited, High Court of Justice, Queen’s Bench Division, Claim No’s HQ16X01238,
HQ17X02637, HQ17X04248 (“Group Litigation”). POL is also assisting the Criminal Cases
Review Commission investigate a number of cases where former Post Office agents
(most of whom are claimants in the Group Litigation) claim to have been wrongly
convicted of a criminal offence prosecuted by POL (the “CCRC Investigations”, together
with the Group Litigation, the “Postmaster Complaints”).
The Secretary of State and UKGI share with POL a common interest in understanding
the matters in issue in the Postmaster Complaints, POL’s positon on them, and the
exposures they present to POL’s operations, finances and reputation. This common
interest is based (among other grounds) on the Secretary of State/UKGI’s ownership of
POL, the investment they make in POL’s activities to support the important public and
social purpose POL serves, and the accountabilities the Secretary of State/UKGI have for
that ownership and investment to Parliament and to the public.
Consistent with that common interest, POL wishes to share with the Secretary of State
and UKGI information about the Postmaster Complaints. That information may include
material which is confidential and/or covered by legal professional privilege, and it is
expressly agreed by the Secretary of State, UKGI and POL that it is in their common
interest to maintain any and all such privilege and confidentiality.
This protocol therefore sets out the basis on which information about the Postmaster
Complaints will be shared with the Secretary of State and UKGI so as to promote their
common interest and preserve privilege and confidentiality.
SHAREHOLDER REPRESENTATIVE
The Secretary of State has appointed a shareholder representative (Tom Cooper) to
POL’s Board of Directors who, in his capacity as a director, will receive all information
submitted to POL’s Board about the Postmaster Complaints.
The Secretary of State/UKGI’s shareholder representative has been appointed a
member of the “Postmaster Litigation Advisory Board Subcommittee” established by
the Board to receive legal advice on the Postmaster Complaints, and will receive all
information submitted to the Subcommittee about the Postmaster Complaints.
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The shareholder representative may share all information described in paragraphs 1
and 2, including legally privileged and confidential information, with the Secretary of
State/UKGI. Where the shareholder representative shares or proposes to share legally
privileged and confidential information, he shall only do so in accordance with the
relevant safeguards set out in Appendix B.
Transmission of information to the shareholder representative in this manner shall not
be deemed to be reporting or notifying any of the matters concerned to the Secretary
of State/UKGI as described in paragraphs 5, 6, 7, 8 and 9.
REPORTING
Following any meeting of POL’s Board at which the Postmaster Complaints are
discussed, POL will provide written updates to the Secretary of State/UKGI’s nominated
legal advisors (the “Legal Advisors”) which address as fairly as possible the material
issues and risks (financial and non-financial) in the Postmaster Complaints.
Meetings of POL’s Board and Subcommittee have been scheduled around the “Group
Litigation Timetable” attached as Appendix A to this Protocol. The Group Litigation
Timetable may change as a consequence of further case management directions from
the court or other developments in the Group Litigation.
POL shall promptly inform the Legal Advisors of any significant changes to the Group
Litigation Timetable or status of the litigation, including but not limited to notifying
promptly BEIS/UKGI of any:
a. change of hearing dates;
b. interlocutory or urgent hearings;
c. potential press coverage of which POL would reasonably be expected to be
aware; or
d. case developments which POL reasonably considers could have a significant
reputational impact.
The Secretary of State/UKGI may request through the Legal Advisors an additional
written update report to reflect revisions to the Group Litigation Timetable.
The Secretary of State/UKGI may request through the Legal Advisors information and
assistance to enable them to respond to any ad hoc queries made to the Secretary of
State/UKGI about the Postmaster Complaints. POL agrees to use reasonable
endeavours to respond to such ad hoc requests as soon as possible.
CONFIDENTIALITY and PRIVILEGE
10. Information shared between POL, the Secretary of State and/or UKGI about the
Postmaster Complaints is likely to include material which is covered by legal
professional privilege or is otherwise confidential. POL, the Secretary of State and UKGI
11.
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each agree to treat such information so as to promote the preservation of that privilege
and/or confidentiality.
Legally privileged and confidential information will be marked as such by POL and
treated by the Secretary of State, UKGI, their employees and their agents in accordance
with the “Obligations in Relation to Legally Privileged and Confidential Information” set
out in Appendix B to this Protocol.
Dated 11 June 2018
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Appendix A - Group Litigation Timetable
Date Trial Activity Whom
12.06.2018 I NA PLSG Call NA
15.06.2018 I CIT File and serve Louise Dar's Defence Defendant
15.06.2018 I CIT File and serve document summarising matters to be discussed at Costs Management Conference Both Parties
Defendant to arrange for both parties’ IT experts to jointly be given 2 days access to inspect
15.06.2018 I HIT Fujitsu's systems known as (i) Peak and (ii) TFS. Defendant
19.06.2018 I CIT Costs Management Conference Both Parties
22.06.2018 HIT IT experts to have commenced meetings and discussions Both Parties
25.06.2018 NA PLSG SteerCo Meeting NA
Parties’ IT experts to compile a list of error codes used by Horizon or Horizon support staff. The
26.06.2018 I HIT Error Codes List is to be jointly provided to Fujitsu by the parties’ solicitors by this date. Both Parties
Parties’ IT experts are to compile a list of information which they consider they require in order
26.06.2018 I HIT properly to opine on the Horizon Issues. Both Parties
26.06.2018 I NA Board Meeting Away Day NA
27.06.2018 I NA Board Meeting Away Day NA
29.06.2018 I HIT Defendant to provide Stage 3 Disclosure documents which have been collated to date Defendant
06.07.2018 I CIT Lead Claimants to file and serve Replies to Defences by 4pm Claimants
17.07.2017 NA PLSG SteerCo Meeting NA
17.07.2018 I HIT Defendant to provide Claimants with remaining Stage 3 Disclosure documents Defendant
17.07.2018 HIT Claimants to provide Defendant with documents they wish to rely on at HIT Claimants
20.07.2018 I CIT File an agreed Statement of Facts in respect of Common Issues by 4pm Both Parties
24.07.2018 NA PLSG SteerCo Meeting NA
Claimants to serve provisional / outline document setting out the nature of the allegations in
27.07.2018 I HIT relation to Horizon Claimants
31.07.2018 I NA Board Meeting NA
01.08.2018 NA PLSG SteerCo Meeting NA
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08.08.2018 NA PLSG SteerCo Meeting NA
10.08.2018 I CIT File and serve Witness Statements in respect of each Lead Claimant and Common Issues by 4pm Both Parties
17.08.2018 HIT IT experts to have produced first joint statement Both Parties
13.09.2018 NA PLSG SteerCo Meeting NA
14.09.2018 I CIT Updated Merits Opinion NA
14.09.2018 I HIT File and serve Witness Statements for HIT Both Parties
28.09.2018 I HIT Claimants to serve expert Report Claimant
19.09.2018 I HIT CMC for outstanding pre Horizon Trial issues NA
21.09.2018 I HIT File and serve Witness Statements in response for HIT Both Parties
25.09.2018 I NA Board Meeting NA
30.10.2018 I NA Board Meeting NA
16.11.2018 I CIT Defendant to serve expert report Claimant
05.11.2018 I CIT Common Issues Trial (listed for 20 days) Both Parties
23.11.2018 I CIT End of Common Issues Trial Both Parties
27.11.2018 I NA Board Meeting NA
14.12.2018 I HIT Parties shall meet to hold preliminary discussion about their reports Both Parties
18.01.2019 HIT Exchange supplemental expert reports Both Parties
29.01.2019 I NA Board Meeting NA
20.02.2019 I HIT Parties experts to have produced second joint statement Both Parties
22.02.2019 I HIT Pre Trial Review Both Parties
11.03.2019 I HIT Horizon Trial (listed for 20 days) Both Parties
26.03.2019 I NA Board Meeting NA
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1.2
1.3
1.6
APPENDIX B - OBLIGATIONS IN RELATION TO LEGALLY PRIVILEGED AND CONFIDENTIAL
INFORMATION
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“Privileged and Confidential Information” means any and all legally privileged and
other confidential information relating to the Postmaster Complaints provided by Post
Office Limited (“POL”) in any form or by inspection or observation, whether supplied
or received before or after the date of this Protocol, and wherever or however stored,
compiled or memorialised, together with any copies of and notes made in respect of
such information.
“Purpose” means understanding the matters in issue in the Postmaster Complaints,
POL’s positon on them, and the exposures they present to POL’s operations, finances
and reputation, all of which are of common interest to POL, the Secretary of State and
UK Government Investments (“UKGI”). This common interest is based (among other
grounds) on the Secretary of State/UKGI’s ownership of POL, the investment they
make in POL’s activities to support the important public and social purpose POL serves,
and the accountabilities the Secretary of State/UKGI have for that ownership and
investment to Parliament and to the public.
Strategy
1.4 UKGI and the Secretary of State (each a “Receiving Party”) will:
“Secretary of State” means the Secretary of State for Business, Energy and Industrial
1.4.1 treat and safeguard the Privileged and Confidential Information as private and
confidential;
1.4.2 not use or disclose any of the Privileged and Confidential Information for any
purposes other than the Purpose;
1.4.3. ensure proper and secure storage of the Privileged and Confidential Information;
1.4.4 handle, preserve and protect such Privileged and Confidential Information
using a high degree of care and at least the same degree of care as the
Receiving Party affords its own confidential information of like sensitivity and
importance;
1.4.5 permit access to the Privileged and Confidential Information only to such of its
executives, officers, employees and professional advisors, and those of the
Secretary of State (together “Individual Recipients”), as reasonably and
necessarily require access to the same in respect of the Purpose and then on
ly
on condition that each such Individual Recipient is made aware of the
privileged nature of the Privileged and Confidential Information and agrees to
comply with the obligations imposed on the Receiving Party under thi
Protocol.
1.5 The Receiving Party shall retain up to date records of all Individual Recipients.
is
The Receiving Party will ensure that such Individual Recipients are aware of the
relevant obligations under clause 1.4 of this agreement not to disclose any Privileged
and Confidential Information except in accordance with this Protocol.
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1.8
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The Receiving Party shall:
Lado,
1.7.2
ensure that all its executives, officers and/or employees, professional advisors
and those of the Secretary of State who work with the Individual Recipients
are aware that the Individual Recipients are required to keep the Privileged
and Confidential Information confidential and that if such executives, officers,
employees, professional advisors and/or those of the Secretary of State should
obtain any Privileged and Confidential Information, that they too shall keep it
confidential and keep it secure in the same way as the Receiving Party secures
its own confidential information;
promptly and in any event not less than three working days after becoming
aware notify POL in writing where any unauthorised use or disclosure of any
Privileged and Confidential Information has taken place;
to the extent that any Privileged and Confidential Information is proprietary to
any third party other than POL, the Receiving Party shall ensure that all
Individual Recipients shall only use such Privileged and Confidential
Information for the Purpose unless POL expressly advises otherwise in writing.
These obligations of confidentiality do not apply to any information which in the
reasonable opinion of the Receiving Party:
1.8.1
1.8.2
1.8.3
1.8.4
1.8.5
1.8.6
was known to the Receiving Party before the Privileged and Confidential
Information was provided or made available by or on behalf of POL and was
not held under an obligation of confidence to POL whether directly or
indirectly;
is subsequently received from any third party legally in possession of the
Privileged and Confidential Information and who was not restricted from
disclosing it;
is in or subsequently comes into the public domain (other than by breach by
the Receiving Party of its obligations under this Protocol);
is subsequently authorised to be used or disclosed as non-confidential
information with the prior written approval of POL;
is independently acquired by an employee, consultant, contractor or
professional advisor of the Receiving Party in a manner which does not
constitute a breach any obligation of confidence;
is required to be disclosed by applicable law or by any court of competent
jurisdiction, the rules and regulations of any body or any enquiry or
investigation by any governmental, parliamentary, official or regulatory body
which:
(a) has the power to compel disclosure of the Privileged and Confidential
Information from the Receiving Party or any of the Receiving Party’s
officers, employees, advisors or consultants; or
(b) is otherwise lawfully entitled to require any such disclosure,
subject always to the Receiving Party complying with Clause 1.10; or
1.9
1.10
1.41
1.12
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1.8.7 is requested by supervisory or regulatory authorities, to whose jurisdiction the
Receiving Party reasonably believes itself to be subject, in connection with
their examination or supervision of the Receiving Party, subject always to the
Receiving Party complying with Clause 1.10.
Without prejudice to the generality of Clause 1.8.3, Privileged and Confidential
Information will not be deemed to be in the public domain by reason only that it is
known to only a few of those people to whom it might be of interest, and a
combination of two or more portions of the Privileged and Confidential Information
will not be deemed to be in the public domain by reason only of each separate portion
being so available.
If the Receiving Party is required pursuant to Clause 1.8.6 or 1.8.7 to disclose any
Privileged and Confidential Information, the Receiving Party will: (i) endeavour, to the
extent permitted by law, to provide POL with prompt written notice of such
requirement so that POL may assert such interest as it has in the Privileged and
Confidential Information, and (ii) ask the court or regulatory authority to treat the
Privileged and Confidential Information as confidential.
The parties acknowledge that the Freedom of Information Act 2000 (FOIA) and the
Environmental Information Regulations 2004 (SI 2004/3391) (EIR) potentially apply to
Privileged and Confidential Information disclosed by POL to the Secretary of
State/UKGI. If the Secretary of State/UKGI receives a request for the disclosure of
information that includes within its scope Privileged and Confidential Information, it
shall:
1.11.1 promptly, and in any event within three business days of receipt, inform POL’s
Legal team of the request; and
1.11.2 allowa reasonable period for representations to be made by POL as to whether
prejudice to its interests would occur were the Privileged and Confidential
Information to be disclosed, provided that POL shall make such
representations within 5 business days from the date of the notification by the
Secretary of State/UKGI.
The Secretary of State/UKGI will consider any representations it receives pursuant to
Clause 1.11.2 but it retains sole discretion as to whether any Privileged and
Confidential Information falls to be disclosed under FOIA or EIR.
END