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From: Permanent Secretary[/O=EXCHANGELABS/OU=EXCHANGE
ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=3109B3DC828545FFBF265AAB4
BEC9017-SECRETARY,]
Sent: Tue 19/03/2019 5:35:18 PM (UTC)
To: Chisholm, Alex (BEIS!
Ce: Permanent Secretary;
Subject: FW: Official Sensitive: Post Office Litigation Update
Attachment: FW: Update on Horizon Issues Trial - Post Office Group Litigation - SUBJECT
TO LEGAL PRIVILEGE - DO NOT FORWARD
Alex,
Please see below for the latest update on the litigation — POL are considering an appeal and appear
likely to make an application for the judge to take no further part in the litigation. The Board is
expected to make a decision on this tomorrow. Kelly is obviously concerned about this and has asked
to speak to Tim Parker and Al Cameron.
Kelly is going to sign the letter - she wanted reassurance that a new CEO will be in within 6 months
and that Al won’t be automatically appointed at CEO after the interim period.
Best wishes,
Sophie
de: Sophie Lewis
Department for
Business, Energy
& Industrial Strategy
1 Victoria Street, London, SW1H OET
www.gov.uk/beis I https://twitter.com/beisgovuk
From: Clarke, Stephen - UKG H
Sent: 19 March 2019 15:49
To: Tolhurst, Mpst (BEIS) <i
ooper, Tom -
fandini, Cecilia
Beckett, Richard (BEIS)
ing and Services)
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Official Sensitive and Subject to Legal Privilege — do not forward outside this distribution
Jess,
As discussed with Tom and Craig, see below an update for the Minister on POL's response to Friday’s
judgement. I also attach POL’s first report on the second (Horizon Issues) trial that started on 11
March.
“As you know POL have been considering possible grounds of appeal. One of those grounds is that the
judge has acted in a procedurally unfair way by making findings of fact which are not relevant to the
determination of the common issues trial and upon which there had not been full disclosure between
the parties, both of documents and witness evidence. Part of POL's argument on appeal is that the
judge has improperly allowed his findings on post contractual events to influence his ruling on what
the terms of the contracts were between POL and Postmasters. That is legally impermissible. Linked to
this unfairness issue is a real concern that the Judge made findings of fact in such a way as to betray a
prejudice to POL which means it would no longer be fair for the Judge to continue to hear the
proceedings in the current and any future trials. As you are aware, the judge is currently hearing the
second trial, which started on 11 March, and POL feel that the findings in the first trial may adversely
impact the fairness of the litigation. Given all the above, POL appear likely to make an application for
the judge to take no further part in the litigation (i.e. to recuse himself from proceedings).
Applications for recusals such as this are rare, especially in circumstances that do not involve a conflict
of interest on the part of the judge, but rather are based on procedural unfairness. If such an
application is made, it is likely to generate significant media attention. However, POL have taken
additional legal advice from very senior barristers who have not had any prior involvement in the case
and so have an independent viewpoint. While the legal advice could change, the current legal advice is
a clear recommendation in favour of seeking a recusal. Tom Cooper's feedback from the recent POL
board call on this topic is that the board are not enthusiastic about making this application but feel
there is no option given the additional legal advice received. This is particularly the case given that the
second trial is currently being heard by the same judge and includes testimony from witnesses who
have been discredited in the first judgment.
The advice from BEIS Legal and UKGI Legal is that BEIS officials/Ministers and the shareholder NED
should not be involved in POL’s formal decision-making on the recusal application, although they may
participate in discussions and hear the advice from POL’s legal team. A final decision on whether to
make this application is likely to be made on Wednesday 20 March. If POL decide to proceed we will
let you know and provide defensive lines. If you require further detail on the legal arguments
underpinning the application for recusal we can arrange a call to include Post Office.”
Stephen Clarke I Post Office Shareholder Team
UK Government Investments
Corporate finance and governance in government.
1 Victoria Street I London I SW1H OET
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