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Claim Nos. HQ16X01238, HQ17X02637 & HQ17X04248
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
The Post Office Group Litigation
BETWEEN:
ALAN BATES & OTHERS
Claimants
and —
POST OFFICE LIMITED
Defendant
SKELETON ARGUMENT FOR POST OFFICE
CMC ON 2 FEBRUARY 2018
Suggested pre-reading (2 hours): (1) Skeleton Arguments, (2) Mr Parsons’ 6" Witness
Statement dated 29 January 2018 (“Parsons 6").
References to the Case Management and Hearing Bundles are in the forms
[CM/Volume/Tab/page] and [HB/Tab/page], respectively.
A: __Introduction
1. This is the Skeleton Argument for the Defendant (“Post Office”) for the CMC on Friday, 2
February 2018.
2, The Group Litigation has progressed in accordance with the Order made at the last CMC (19
and 25 October 2017, “the First CMC Order” [CM/Vol 2/G7]). The parties have also been
able to make substantial progress in reaching agreement, subject to the Court’s approval, as
to the future conduct of the Group Litigation.
3. The Managing Judge ordered the present CMC for the consideration of issues as to
disclosure: para, 12 of the First CMC Order, For the reasons set out below in Section D, Post
Office will respectfully invite the Court to also make case management directions for the trial
of the Lead Cases that the parties agree should be tried after the Common Issues. In short,
Post Office contends that such directions should not wait until the next CMC in September
2018 or, worse, after the resolution of the Common Issues in early 2019.
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4. Post Office seeks an Order in the form of the draft at [HB/2] (the “Draft Order”).
5. In this Skeleton Argument, Post Office addresses:
a.
the background to the present CMC = Section B;
disclosure — Section C;
other case management matters, including proposed directions as to the selection of Lead
Claimants and progress towards a trial of Lead Cases~Section D.
Background to the present CMC
6. The Court will recall the outline of the issues in this Group Litigation. The parties are
working towards the trial of Common Issues that was ordered in October 2017, which trial is
set down for 20 days commencing in November 2018, The Common Issues, which are at
Schedule I to the First CMC Order [CM/Vol 2/G7/67], are almost all issues of contractual
construction, although there are also issues that touch upon the nature of the legal
relationship between the parties more generally,!
7. Since the CMC in October 2017, the parties have made good progress:
a.
The parties exchanged E-Disclosure Questionnaires on 6 December 2017. Post Office’s
EDQ is at [HB/6] and runs to 86 pages. It reveals the substantial work that Post Office
has already done to put itself in a position to provide such disclosure as is appropriate at
each stage of this Group Litigation. It also reveals the huge scale of the universe of
documents in Post Office’s possession or control and, it is submitted, the potential for
delay and disproportionate expense should an unfocused approach be taken to disclosure,
The parties have selected Potential Lead Claimants for the purposes of the Common
Issues trial in accordance with para. 3 of the First CMC Order.
Post Office has provided the disclosure required in relation to such Potential Lead
Claimants under para. 4(a) of the First CMC Order. This amounted to 1,391 documents,
The Claimants provided 498 documents in accordance with para. 4(b).
' See, in particular, Common Issues 1, 10, 17 and 18.
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d. Post Office has provided the Horizon-related disclosure required by para. 13 of the First
CMC Order, including having reviewed and given disclosure of 28,263 documents from
Second Sight, The Claimants’ IT expert has spent approximately a day at Fujitsu’s
offices, where he has inspected the Known Error Log?
e. As to further disclosure, the parties had a constructive inter-solicitors meeting on 22
December 2017. Since that meeting, there are have been further telephone and video
conferences, and the parties have exchanged detailed correspondence and draft orders.
The parties have agreed a disclosure protocol and are agreed, in outline terms, on a
process of staged disclosure, with the disclosure at each stage being that necessary for the
resolution of the issues at play in that stage of the Group Litigation, applying the
principles in the draft Practice Direction produced by the Disclosure Working Group: see
paras 5-9 of the Draft Order. A good measure of agreement has been reached on the
scope of such staged disclosure, largely in accordance with the proposals that Post Office
set out in advance of the disclosure meeting,? although substantial differences remain as
to, in particular, the “Stage 2” disclosure required for the Common Issues trial in
November 2018.
8. There has since the October CMC been improved practical cooperation between the parties’
respective legal teams. The tone of the correspondence has been more constructive. For its
part, Post Office has put forward pragmatic compromise where differences of principle have
proven incapable of resolution: see, for example, para. 2.9 of the letter dated 26 January 2018
at [HB/10/426}].
9. As regards the next steps in the Group Litigation, the parties have reached agreement on the
following points, subject to the Court’s views:
a. Following the resolution of the Common Issues, the parties should proceed to the trial of
Lead Cases on all issues. It will be necessary to have a relatively large number of Lead
Cases to account for the breadth of factual and legal issues arising across the Claims. Post
he Court may recall that this database is not within Post Office’s possession or control but was made
available for the Claimants’ inspection with Fujitsu’s agreement,
> See the letter that Post Office sent on 18 December 2017 in advance of the disclosure meeting [HB/10/
380).
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Office proposes 20 potential Lead Claimants for the purposes of initial disclosure and
pleadings and that this be reduced to 16 for the purposes of further disclosure, witness
evidence, expert evidence and trial: see paras 14 to 33 of the Draft Order [HB/2/24].
b. In this context, the parties are unable to identify any issues that could realistically be
ready for trial in March 2019, and they accordingly invite the Court to vacate the trial
presently listed. The Claimants propose that a similar period in early 2019 be used
instead for a stay for the purposes of mediation. Post Office is of course willing to
participate in efforts at ADR and can see the sense of such efforts taking place after the
resolution of the Common Issues. It nonetheless opposes any stay for ADR. The parties
can and should pursue ADR, including a mediation, while also making fast progress
towards the determination of Lead Cases.
Cc
Disclosure i
10, The parties agree that initial disclosure for the purposes of the Common Issues trial should be
provided by 28 February 2018 and have agreed (subject to the Court’s approval) the scope of
such disclosure, including the keywords to be used: see Schedule 1 of the Draft Order,
referring to “Stage 1” disclosure.’ This reflects in large part a proposal that Post Office first
put forward in its letter of 18 December 2017, but there has been substantial give-and-take
and effective cooperation.
11, The parties are also agreed that there should be a further round of disclosure for the purposes
of the Common Issues trial and that such disclosure should be provided in May 2018, which
is referred to as “Stage 2” disclosure. The parties have sought to agree the scope of such
disclosure in correspondence and discussion, but there remains a substantial disagreement
between them. There is a fundamental difference of approach.
12. It is common ground that the disclosure for the purpose of the Common Issues trial should be
designed to assist the parties and the Court in resolving the Common Issues. It follows, in
Post Office’s submission, that Stage 2 disclosure should not extend beyond that which can be
expected to provide relevant evidence on those issues, As noted above, the Common Issues
‘4 The parties have reached a compromise under which further custodians that the Claimants wished to
include in Schedule I will be included in Part I of Schedule 2 and so form part of Stage 2 disclosure.
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are largely matters of contractual construction, although certain of them may require a
slightly broader consideration of the nature of the legal relationship between the parties. The
parties must therefore keep in mind the fairly limited scope of factual evidence that will be
admissible at the trial of the Common Issues and the effect that this has in terms of limiting
the disclosure that is necessary and proportionate. The Court will not, in resolving issues of
contractual construction (including whether terms are to be implied into the agreements*), go
beyond admissible matrix of fact evidence.
13. Post Office remains concerned that the Claimants have not taken on board the limited scope
of evidence (and therefore disclosure) that will be admissible in relation to the Common
Issues. Post Office pointed out in submissions at the October CMC that the Claimants had
not identified with any clarity the matrix of fact on which they proposed to rely, arguing that
this was likely to pose a problem for the trial of the Common Issues. The position has not
changed, despite Post Office having pressed the issue in correspondence. Specifically:
a. Most of the Claimants’ alleged implied terms appear at para. 64 of the Amended Generic
Particulars of Claim [CM/V1/B3/35] (“AmGPoC”). Such terms are put forward “in the
context of the factual matrix”.
b. Para. 46 of the AmGPoC provides a clear example of the problem with the Claimants’
approach. The Claimants refuse in that paragraph to limit themselves to the matrix of fact
that they have identified clearly in the pleading, which leaves Post Office in the position
of not knowing what facts the Claimants may seek to prove and rely on for the purposes
of construing the agreements.
c. Post Office made an RFI of this paragraph. Unfortunately, the response to RFI
aggravates the situation. In para, 8.1 of the Response dated 16 May 2017 [CM/V1/E6/7],
the Claimants state that they will rely on “all facts pleaded’ as matrix of fact. Despite
invitations to revisit this remarkable assertion, it remains the Claimants’ pleaded case. It
is fair to point out that, in para. 8.1 of the Response, the Claimants do also identify
specific paras of the AmGPoC, but many of those paras plead facts that are not even
arguably matrix of fact for the construction of the contracts (or even, to the extent this is
5 The Claimants advance over 20 implied terms.
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different, facts that may be relied upon in determining the nature of the legal relationship
between the parties). See, for example, paras 14, 19, 22-27, 29-30, 32, 34-35 and 38-39 at
[CM/V 1/B3]. Many of these paras do not relate to the content of the parties’ agreement or
even to facts and matters that were known to the parties at the time of contracting and
which might in principle be admissible background for the construction of the
agreements; they relate instead to what in fact happened after the contracts were entered
into. Many of them are advanced in support of allegations of breach, rather than duty.
d. It appears unlikely that Claimants can in reality intend to rely on all the pleaded facts for
the purposes of construing the agreements, But the Claimants have not felt able to go any
further in identifying the true scope of the factual disputes that may require determination
at the Common Issues trial.¢
14. The Claimants’ unwillingness to identify the facts on which they rely for the purposes of
construing the agreements is of a piece with the stance that the Claimants have taken as
regards the disclosure that they say Post Office should provide in Stage 2. The Claimants
have in correspondence described Stage 2 disclosure as “Common Issues Trial — Generic”
but seek disclosure under Model D7 and have provided an “Indicative Table of Documents”
for such disclosure that reveals the great breadth of the search and review process that would
be required.
15. The Claimants propose a vast disclosure exercise. The search and review processes required
for Stage 2 disclosure on the Claimants’ proposals would, in practical effect, be very similar
to those that would be required under an order for standard disclosure across most of the
generic issues, which is something that the parties have agreed would be inappropriate and
which would, as Parsons 6 makes clear, be impracticable in the time available. The Court
may recall the argument at the last CMC on this point and, in particular, the evidence from
Post Office as to the disproportionate cost and delay of adopting an unfocussed approach. It
should follow from the parties’ agreement to proceed by way of individually pleaded Lead
® Post Office invited the Claimants to provide an early draft of the Statement of Facts ordered at the last
CMC to inform the parties’ consideration of what is likely to be in issue as regards matrix of fact, which
would in turn allow the parties to narrow the dispute as to disclosure, The Claimants have refused to
provide any such draft.
7 Model D is the most similar of the Extended Disclosure models to standard disclosure.
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Cases that the parties can avoid the huge cost of standard disclosure across the issues in the
generic pleadings.
16. Mr Parsons explains in Parsons 6 that the Stage 2 disclosure proposed by the Claimants
would require Post Office to host, search across and review many millions of documents,
covering the bulk of its operations over the period since 1999. The language used in the
Claimants’ Indicative Table of Documents reveals the breadth of the process that the
Claimants propose, describing the sources of potentially disclosable documents in terms that
would be consistent with standard disclosure against broad and unfocussed issues: see, for
example, the following entry in relation “Audits, enquiries and investigations”:
“Internally & Externally generated notes, minutes of meetings, memoranda,
correspondence, emails and briefing documents, reports, financial management
information and other documents relating to postmaster/branch audits, enquiries and
investigations, including but not limited to:
e PO's policies and procedures for initiating and progressing audits, enquiries or
investigations, and
issues, problems or financial consequences associated with such matters, and
© necessary or recommended improvements to systems.”
17, This would cover, amongst other things, all Post Office emails from between 1999 and 2018
from which “issues” or “problems” in relation to audits, enquiries or investigations may be
discerned.* The Claimants state in the table that searches for such documents would have to
cover every Post Office team identified in the EDQ from 1999 onwards that had “direct or
indirect involvement’ in audits and/or enquiries and/or investigations. The table contains
similar entries for practically all of the areas of Post Office’s operations that are put in issue
by the generic pleadings, and the teams within Post Office are identified in every case as
including those with only “indirect” involvement in the operations at issue. On the
Claimants’ proposals, Post Office’s searches would also have to cover its financial
management systems and the 24 TB of data that they contain. As a useful rule of thumb, 1
5 The term “investigations” is extremely broad in the context of Post Office’s operations: see Amended
Generic Defence, paras 63 to 64.
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TB of data will typically represent around 5 million documents (depending, of course, on file
type). If one assumes 50 documents per ring-binder, each TB would give 100,000 bundles,
18. In a letter dated 29 January 2018, the Claimants seek to justify their insistence on broad
Stage 2 disclosure by arguing that evidence will be required in the November trial as to
“what actually happened’ in practice:
“As to the documents which you have identified in Part 2 of Schedule 2, our main
concern is that your proposals are essentially limited to documents referring to what
ought to have happened rather than to what actually happened. This is effectively to
parse the factual matrix in an unrealistic way, which will not provide the necessary
context for the resolution of the Common Issues, Indeed, it presents the real likelihood of
revelations after the resolution of the Common Issues which may call into question the
factual picture upon which those Common Issues were determined. This would be
unfortunate as well as unfair to our clients. It is plainly desirable that the court should be
in a position to resolve the Common Issues on a realistic assessment of the relevant
factual matrix, as opposed to a selective and unrepresentative one, We think that this
necessarily flows from the pleaded issues between the parties, which will of course be
further clarified by your client's provision of the Further Information sought, for the
second time, in our RFI of 29 December 2017.” (emphasis added)
19. The Claimants’ approach to matrix of fact evidence, as revealed by that paragraph, is
2
21.
Ss
fundamentally misconceived, for the following reasons.
. First, the purpose of the Common Issues trial is to determine the content (and, to a lesser
extent, the nature) of the parties’ legal relationship, principally the express and implied terms
of the contracts between them. It is a trial of issues as to legal duties or, in the Claimants’
words, “what ought to have happened’.
Secondly, for the purposes of construing the express terms of the agreements and/or seeking
to imply terms into the agreements, evidence as to “what actually happened” necessarily
post-dates the agreements and will be inadmissible. Such evidence cannot be matrix of fact
because it cannot be “background” to the agreement in the sense in which that term is used in
Investors Compensation Scheme vy West Bromwich Building Society [1998] 1 W.L.R.
896. This is clear from the ICS case and more recent authority:
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a. “Interpretation is the ascertainment of the meaning which the document would convey to
a reasonable man having all the background knowledge which would reasonably have
been available to the parties in the situation in which they were at the time of the
contract” (per Lord Hoffmann in ICS at p. 912; emphasis added)
b. “The fifth point concerns the facts known to the parties. When interpreting a contractual
provision, one can only take into account facts or circumstances which existed at the time
that the contract was_made, and which were known or reasonably available to both
parties. Given that a contract is a bilateral, or synallagmatic, arrangement involving
both parties, it cannot be right, when interpreting a contractual provision, to take into
account a fact or circumstance known only to one of the parties’ (per Lord Neuberger in
Arnold y Britton [2015] A.C. 1619 at [21]; emphasis added).
22. Thirdly, insofar as any broader factual enquiry may be justified by the inclusion of Common
Issues 17 and 18, such enquiry is limited to evidence going to the “true agreement’? between
the parties in relation to the circumstances in which Post Office could lawfully terminate the
agreements: see paras 69-71 of the AmGPoC [CM/V1/A3/39]. It cannot justify opening up
the question of “what actually happened” in relation to the provision of training, the conduct
I
of audits, enquiries and investigations, the operation of suspense accounts, etc. I
I
23. In this context, Post Office submits that the Stage 2 disclosure sought by the Claimants is
inappropriate:
a. First, as noted above, the main burden of the disclosure sought by the Claimants would
be aimed at the investigation of post-contractual facts that were known only to Post
Office, e.g. Post Office’s contemporaneous knowledge of any supposed deficiencies in its
training processes that may be revealed by internal emails etc. Documents of this kind
might ultimately be relevant to liability issues, which are to be determined in the Lead
Cases, but they cannot provide material for the construction of the contracts in the
° Post Office’s position is that the exceptional principle in Autoclenz v Belcher [2011] UKSC 41 has no
possible application to business-to-business relationships of the kind at issue in these proceedings,
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Common Issues trial.!° The Common Issues trial is limited to questions of contractual
construction and the identification of the legal relationship between the parties.
b. Second, the Claimants’ proposed disclosure would be inconsistent with the focussed
approach to disclosure that the parties have agreed is appropriate, seeking to reflect the
principles espoused by the Disclosure Working Group: see the Draft Disclosure Pilot at
(HB/7/263].
c. Third, it would not be possible to provide the disclosure sought by the Claimants within
any timescale that would allow the Common Issues trial to proceed in November 2018:
see Parsons 6 at para. 23.!! This is, at least in large part, the result of applying disclosure
Model D, rather than Model C (which allows for searches to be limited to identified
classes of document). Post Office will resist strongly any suggestion that the trial be put
back to allow for broad Model D disclosure to take place.
d,. Fourth, there is no good reason to expose Post Office (or even the Claimants) to the huge
costs of disclosure of this kind when it is common ground that matters going to breach
and liability can and should be addressed through Lead Cases to be determined after the
resolution of the Common Issues. It would deprive the parties of much of the practical
benefit of this Group Litigation to impose on them disclosure costs of the scale that
would arise if the Claimants had all sued individually. i
e. Fifth, the disclosure exercise that the Claimants propose would inevitably overlap with
disclosure exercises to be undertaken at later stages in the proceedings (by which time the I
searches can sensibly be limited to documents that may touch upon the issues in the Lead
Cases). Post Office should not be required to cover the same ground twice, and it should
not be required to spend many hundreds of thousands of pounds in data hosting fees
alone in relation to documents that are extremely unlikely to contain any evidence that
would assist in the resolution of the Common Issues.
'0 Tnformation that was necessarily known to only one of the parties cannot be matrix of fact: see the
quotation from Arnold y Britton above.
"The Claimants have indicated in correspondence that they do not accept the account given by Mr
Parsons.
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24, Post Office has put forward a pragmatic compromise proposal: see Part 2 of Schedule 2 to
the Draft Order. Even under the compromise proposal, Post Office will inevitably review and
even disclose a great many documents that will not be admissible at the Common Issues trial.
Nonetheless, the use of Model C and searching across classes of documents selected to
reflect the Issues for Disclosure that may arise on the Claimants’ pleas as to background facts
and factual matrix is intended to provide a practical way forward (and is proposed without
prejudice to Post Office’s position on admissibility). Post Office has invited the Claimants to
propose any additions to Part 2 of Schedule 2.
Further Case Management Directions
25. Post Office proposed in mid-January 2018 that the parties make a joint approach to the Court
to seek a longer CMC to allow time to address case-management issues other than disclosure. '
The rationale for this proposal was that questions as to what disclosure is appropriate at any
given stage in the proceedings are most sensibly dealt with alongside a consideration of the
progress of the proceedings more generally. Under the staged approach to disclosure, it is
important to understand how the proposed disclosure fits into the relevant stage and, in
particular, why it is appropriate at that stage, taking into account the issues that require
determination, Unfortunately, no agreement was reached and Post Office did not wish to
burden the Court with a dispute in advance of the CMC.
26. Post Office nonetheless invites the Court to make the further case management directions set
out in its Draft Order. The Claimants agree that some (much more limited) case management
directions should be given. Most notably, it is common ground that it would be appropriate at
this stage to order that there be a trial of Lead Cases. The dispute between the parties is
relatively narrow but is important. Specifically:
a. Post Office seeks a listing for the trial of the Lead Cases and directions in relation to that
trial, allowing the parties to make some progress in that regard in 2018 and prior to the
determination of the Common Issues.
b. The Claimants oppose the making of any directions at this stage, proposing that a listing
be obtained at the CMC in September 2018 and that directions be given at a later stage.
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The Claimants nonetheless seek “Stage 3” disclosure (relating to issues that may be
determined in the Lead Cases) by October 2018.
27. If the Court does not consider it appropriate to resolve the dispute between the parties at the
present CMC, it may nonetheless assist the parties for there to be some discussion of these
matters at the hearing to assist the parties in narrowing the dispute.
28. If the Court is willing to resolve the dispute as to future case management directions, Post
Office respectfully submits that its proposals are the more likely to promote the fair and
efficient resolution of the issues in the Group Litigation:
a.
First, there is no good reason to wait until September 2018 to list the trial of the Lead
Cases and give directions. The parties will be in no better position in September 2018
than they are now in terms of understanding the likely issues in the Lead Cases and how
best to select potential Lead Claimants, and months will have been lost. Indeed,
September 2018 will be a particularly bad time to start to focus on the Lead Cases, given
that the parties’ efforts will by then be focussed intensely on preparations for the
November trial of the Common Issues.
Secondly, it would be nonsensical to proceed to disclosure for the purposes of the trial of
Lead Cases without even identifying potential Lead Claimants. It would put the cart
before the horse to require disclosure for the purpose of resolving claims that have not yet
been selected, and it would deprive the parties of much of the practical benefit of Group
Litigation and the selecting of Lead Cases. Given that it is agreed that there should be
extensive disclosure of documents material to the Lead Cases after those claims have
been selected and pleaded, it makes no sense to require Post Office to also conduct a
similarly expansive disclosure process in advance of the selection. The selection and
pleading of the Lead Cases will draw out the factual disputes between the parties and will
bring the focus that is presently lacking. It will provide a sound basis on which disclosure
in relation to liability issues can properly and efficiently be given: see paras 23-25 of the
Draft Order in relation to “Stage 4” disclosure.
Thirdly, in the meantime, some disclosure can still be given in preparation for the Lead
Cases trial. Once an initial pool of Lead Claimants has been selected, it will be possible
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29,
30.
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to search for and disclose documents that refer directly to those Lead Claimants by using
the Claimant’s name and other personal identifiers but without the need for the Claim to
be pleaded or the issues in the Claim to be otherwise identified with precision. Post
Office proposes that this initial disclosure for the Lead Cases take place as “Stage 3”
Disclosure: see para. 17 of the Draft Order.
d. Fourthly, if the parties wait until the resolution of the Common Issues before making
progress towards a trial of the Lead Cases, there is no realistic prospect of a trial of such
claims in 2020.
On this last point, the Claimants have argued that, even if the parties take no steps (other than
“generic disclosure”) in relation to the Lead Cases until after the resolution of the Common
Issues in early 2019, the parties could still be ready for trial in early 2020. It is, in Post
Office’s submission, unrealistic to suggest that the parties could go from zero to a trial of 16
Claims in around 12 months. It is difficult to see how the Claimants can have reached that
view unless they have not yet addressed their minds to the scale of the task of preparing the
Lead Cases for trial.
On Post Office’s proposals (which benefit from work commencing this year), the Lead Cases
could be ready for trial commencing in May or October 2020. Post Office’s proposed
directions are at paras 12 to 33 of the Draft Order. It is respectfully submitted that those
directions would provide a challenging but realistic timetable to a 12-week trial in 2020. For
instance, on the timetable for a trial in October 2020 (shown in green in the Draft Order):
a. The parties would benefit from having selected the pool of Lead Claimants in the course
of 2018 (by reference to Lead Cases Issues as agreed or ordered — para 14 of the Draft
Order).
b. The Claimants would have to file and serve 20 individual Particulars of Claim by 29
March 2019 (within around 2 months of the anticipated receipt of the Judgment on the
Common Issues).
c. Post Office would then have less than 3 months to produce 20 individual Defences (due
on 28 June 2019).
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32.
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d. Pleadings would continue over the Long Vacation and close by 23 August 2019.
e. Disclosure for the finally selected 16 Lead Cases for trial would be completed by mid-
October 2019, less than 2 months after the close of pleadings.
f. The Lead Claimants and Post Office would have around 3 months (until 24 January
2020) to take into account the disclosure and produce witness evidence for trial,
g. Expert reports in the 16 Lead Cases would be filed in April 2020 (Claimants) and June
2020 (Post Office), within 2 and 4 months, respectively, of the service of any
supplemental witness statements in February 2020.
. The Court will note that, even on Post Office’s accelerate timetable (shown in red in the
Draft Order), the parties would not be ready for trial until May 2020. It is respectfully
submitted that this would be the tightest realistic timetable for a 12-week trial of 16 Lead
Cases.
If, by contrast, the parties were to follow the Claimants’ preferred approach and wait until
2019 to commence work on the selection of Lead Claimants, there is no realistic prospect of
the parties being ready for trial in 2020. Post Office submits that the Claimants’ approach
would likely lead to a Lead Cases trial in mid-2021, around a year later than could be
achieved on Post Office’s timetable. Post Office’s timetable can however only be achieved if
work begins now.
There are two further matters to mention:
a. As noted above, Post Office opposes the Claimants’ request for a stay for ADR in March
2019. Post Office proposes instead that there be a mediation after the resolution of the
Common Issues and that the parties have a liberty to apply for a stay should it become
apparent that this would assist: see para. 34 of the Draft Order.
b. The Court should be aware that Post Office intends to issue an application for security for
costs. It has been trying for several months to resolve through correspondence the serious
concerns that it has in relation to the Claimants’ ATE policy and the extent to which it
can have practical recourse for costs against the Claimants’ off-shore litigation funder,
Therium.
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If no further progress is made in this regard, the application will be issued by no later
than 16 February 2018. In Post Office’s respectful submission, it may be appropriate to
set aside time for a one-day hearing of the application now, in order to prevent any delay
resulting from listing difficulties.
DAVID CAVENDER QC
OWAIN DRAPER.
One Essex Court,
Temple
30 January 2018
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Claim Nos. HQ16X01238, HQ17X02637 & HQ17X04248
IN THE HIGH COURT OF JUSTICE
The Post Office Group Litigation
BETWEEN:
ALAN BATES & OTHERS
Claimants
—and —
POST OFFICE LIMITED
Defendant
SKELETON ARGUMENT FOR POST OFFICE
CMC ON 2 FEBRUARY 2018
Solicitor for Post Office:
Andrew Parsons
Wombl
le Bond Dickinson (UK) LLP
C8.3/2/16 I