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POL00003414
FREETHS
Andrew Parsons
Bond Dickinson LLP
DX38517 Southampton 3
13 September 2017
Third letter
Our Ref JXH/1684/2113618/1
By email only
Dear Sirs
BATES & OTHERS v POST OFFICE LIMITED —- GROUP ACTION
CLAIM NO: HQ16X01238
INSPECTION OF KNOWN ERROR LOGS
We write in relation to the Known Error Logs and further to our letter of 6 July 2017, our second letter
of 3 August 2017 and your second letter dated 1 September 2017.
Summary
We first requested sight of the Known Error Logs in our Letter of Claim dated 28 April 2016 and have
repeatedly requested them since, including in our letter of 6 July 2017, in which we identified this as
an urgent matter, stressing that the Known Error Logs were necessary for our clients’ Reply. They
are obviously of central relevance.
The reasons for your client’s refusal to provide the Known Error Logs have changed from time to
time. We do not accept any of those reasons as good reasons.
Your client referred to the Known Error Logs at paragraph 50(4) of its Defence, served on 18 July
2017. Our client may therefore inspect that document: CPR 31.14(1)(a). We formally requested
inspection of the Known Error Logs, in our letter of 3 August 2017, on this basis and referred you
expressly to CPR 31.14(1)(a).
You have not responded to that request, despite addressing the Known Error Logs in your letter of
1 September 2017. In any event, the content of your letter would not justify Post Office’s refusal to
Frocths LLP is alimtedlabtity parinership, registred in England and Wales, partnership number OC304688, Registered Offce: Cumberand Court, 80 Mount Steet, Notingham Nt GH
‘Authorised and regulated bythe Sliatars Regulation Author. A ul lit of he members of Frees LLP ie avaiable fr inapecton al the registered oc.
www. freeths.co.uk
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allow inspection of such plainly important documents. The Claimants obviously need access to the
electronic documents recording errors in Horizon, which we understand to be the Known Error Logs.
We now require Post Office to provide inspection of the Known Error Logs, failing which we will issue
an application for an order that you do so, without further reference to you.
Please confirm by 5pm on Friday, 15 September 2017, that Post Office will provide inspection of the
Known Error Logs by 5pm on Friday, 22 September 2017.
A. Recent Correspondence
For convenience, we briefly summarise the most recent correspondence to which we have referred
above.
1. 6 July 2017 — On 6 July 2017, in anticipation of service of the Generic Defence and the CMC
listed on 19 October 2017, we wrote to you proposing sensible directions for the CMC and
highlighting the “urgent matter of disclosure of the Known Error Log(s)”. We stated that the
case obviously involved whether there were errors associated with Horizon that impacted
upon branches, as well as what Post Office knew of them; the refusal to provide the Known
Error Log to the Claimants prevented them from setting out any detailed particulars of bugs,
errors or defects in the Generic Particulars of Claim. We emphasised that we needed to be
in a position to give these issues careful consideration well in advance of the CMC, and in
any event when considering our clients’ Reply. We invited provision of the Known Error
Logs with your client's Generic Defence on 18 July 2017.
2. 18 July 2017 — On 18 July 2017, we were served with Post Office’s Generic Defence. The
Known Error Logs were not provided. Paragraph 50(4) of the Generic Defence expressly
referred to the Known Error Log in the following terms:
‘It is admitted that Fujitsu maintain a “Known Error Log”. This is not used by Post Office
and nor is it in Post Office’s control. To the best of Post Office’s information and belief,
the Known Error Log is a knowledge base document used by Fujitsu which explains how
to deal with, or work around, minor issues that can sometimes arise in Horizon for which
(often because of their triviality) system-wide fixes that have not been developed and
implemented. It is not a record of software coding errors or bugs for which system-wide
fixes have been developed and implemented. To the best of Post Office’s knowledge
and belief, there is no issue in the Known Error Log that could affect the accuracy of a
branch’s accounts or the secure transmission and storage of data.” [emphasis added]
Froeths LLP sa limited tabilty partnership, reysteredin England and Wales, partnership number OC304588. Registered Office: Cumberland Court, 80 Mount Street, Nottingham NGt SHH
‘Authorised and reguated by the Solctors Regulation Author. ful lt ofthe members of reas LP is avalabe fer inspection a he registred fee,
www.freeths.co.uk /
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3. 3 August 2017 — As noted in the Summary above, we wrote to you and specifically requested
inspection of the Known Error Log pursuant to CPR 31.14(1)(a) on the basis that the Known
Error Logs were mentioned in Post Office's Defence. We also made the point that the
Schedule 1 to your letter of 13 October 2016 stated that a review of the Known Error Log
had been undertaken (by Fujitsu, apparently at Post Office’s behest) —directly contradicting
the pleading in the Generic Defence, as to control.
4. 1 September 2017 — Your final correspondence on this issue failed to acknowledge or
engage with the request in our letter of 3 August 2017 and changed tack yet again, now
asserting:
“Access to the Known Error Log (KEL) can also be considered as part of these wider
disclosure issues. The KEL is not a document, but a live and proprietary database with
approximately 4,000 entries. Since the KEL is a constantly rolling document, the current
version in use has evolved over time and may not reflect the version in place at time (sic)
which is relevant to the Claimants’ claims. Providing “disclosure” of it is therefore not
easy to do and prone to being a disproportionately expensive exercise if not handled
carefully. Addressing whether and, if so, how your client should have access to the KEL
therefore needs to be considered in the context of any wider directions that are made.”
[emphasis added]
B. Post Office’s Objections
We address below the objections which we now understand Post Office to rely upon.
Not a Document
Your contention that “The KEL is not a document” is unsustainable and obviously wrong for two
reasons:
1. First, CPR 31.4 expressly provides that “In this Part — ‘document’ means anything in which
information of any description is recorded.”
2. You have repeatedly referred to the Known Error Logs as being a document in
correspondence (e.g. in the letter of 1 September above) and have pleaded that ‘the Known
Error Log is a knowledge base document”: Defence, paragraph 50(4), above.
Froeths LLP sa limited tabilty partnership, reysteredin England and Wales, partnership number OC304588. Registered Office: Cumberland Court, 80 Mount Street, Nottingham NGt SHH
‘Authorised and reguated by the Solctors Regulation Author. ful lt ofthe members of reas LP is avalabe fer inspection a he registred fee,
www.freeths.co.uk /
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Not in Post Office's Control
As we set out in our letter of 3 August 2017, it is clear from Schedule 1 to your letter of 13 October
2016 that the Known Error Logs are in Post Office’s control. You have not responded to that. Indeed,
your letter of 1 September 2017, that you are no longer advancing this argument.
CPR 31.8(2) provides that: “a party has or has had a document in his control if —
(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it.”
We have sought express confirmation from you, by Requests 30 to 33 in our Request for Further
Information, that Post Office has, at the very least, a contractual entitlement to data derived from the
known error log. We regard it as inconceivable that Post Office does not have any contractual rights
to obtain or inspect the Known Error Logs or data derived therefrom.
Difficult and disproportionate disclosure
Paragraph 1.5 of your 1 September 2017 letter states contends that there is a great difficulty in
disclosing the Known Error Log in a relevant form given that the current version “has evolved over
time” and “has approximately 4,000 entries”. You have been expressly on notice of your duty to
preserve documents since our letter of 16 December 2015 and, given the sensitivity and seriousness
of the issues raised in the Mediation Scheme, we would have expected you to have preserved all
relevant documents from that time in any event.
More specifically, the Known Error Log was a document which we specifically requested in our Letter
of Claim and have consistently pursued thereafter. We also consider it significant that in your letter
to us on 6 May 2016, you stressed the need ‘to ensure that all metadata in any electronic documents
are preserved” and asked us to confirm that we had “advised four] clients on a method of making
mirror copies of documents that preserves the metadata”.
At present we do not believe that there should be any difficulty in providing inspection, as required
by the CPR, such as would justify the objection which Post Office advances. It is inconceivable that
there is no sensible and proportionate way in which inspection can be given in usable form.
C. Conclusion
Our client is entitled to inspection of the Known Error Log.
Froeths LLP sa limited tabilty partnership, reysteredin England and Wales, partnership number OC304588. Registered Office: Cumberland Court, 80 Mount Street, Nottingham NGt SHH
‘Authorised and reguated by the Solctors Regulation Author. ful lt ofthe members of reas LP is avalabe fer inspection a he registred fee,
www.freeths.co.uk /
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se" EREETHS
Please confirm by 5pm on Friday, 15 September 2017, that Post Office will provide inspection of
the Known Error Logs by 5pm on Friday, 22 September 2017, failing which we will issue an
application under CPR 31.14 for inspection.
Yours faithfully
Freeths LLP
Please respond by e-mail where possible
Froeths LLP sa limited tabilty partnership, reysteredin England and Wales, partnership number OC304588. Registered Office: Cumberland Court, 80 Mount Street, Nottingham NGt SHH
‘Authorised and reguated by the Solctors Regulation Author. ful lt ofthe members of reas LP is avalabe fer inspection a he registred fee,
www.freeths.co.uk fre:
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