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Message
From: Tom Beezer [/O=EXCHANGE-ORG/OU=EXCHANGE ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=179D9F227294473D81B50E72AACB0623-TOM BEEZER]
Sent: 17/03/2019 13:35:12 . _
To: Jane Macleod [jane.macleod@__ Redacted _ ; Andrew Parsons [/o=Exchange-Org/ou=Exchange Administrative
Group (FYDIBOHF23SPDLT)/cn: [9ed344815e47e4aaa3c0e7e1740919-Andrew Pars]
ce: Rodric Williams [rodric.williams@_ ]; Amy Prime [/o=Exchange-Org/ou=Exchange Administrative
Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=ab7222dda3a9453eaed5751238a59562-Amy Prime]
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-AC.FID26896945]
Attachments: Post Office - Recusal Note (003)tb. 17.3.19.docx
Now with attached note...
(thanks for spotting that Amy)
Jane ~ as the note is now with LGQC I am stepping out for 45mins. Andy P is on-line and around and can field any urgent
issue. Just so you know my whereabouts. Phone is on and with me. Back in 45..
rt
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: Tom Beezer
Sent: 17 March 2019 13:23
To: ‘Jane MacLeod’; Andrew Parsons
Cc: 'Rodric Williams'; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
dane
Note sent to OEC. See attached.
I have pushed for LGQC comments/OK to note today or early tomorrow am latest.
1am seeking to firm up the exact time of LGQC afternoon call.
lam seeking a “yes” to the LGQC 5.15pm Board call.
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I have floated the concept of DCQC on either cail BUT I have stressed the “new voices” point.
As soon as I hear back from OEC I will be in touch.
T
From: Tom Beezer
Sent: 17 March 2019 12:51
To: ‘Jane MacLeod’; Andrew Parsons
Cc: Rodric Williams; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Thanks Jane
I'll make those amends. Any issues then I'll call. I hope not to have to trouble you
Nl copy to you the version sent to LGQC.
l'l get DCQC lined up in a supporting role for tomorrow's call ~ I'll also chase Rob at OEC for a positive confirmation
LNQC can make 5.15pm tomorrow. I believe that to be the case, but I want a "yes"
Thanks
t
From:
Sent: 17 March 2019 12:44
To: Tom Beezer; Andrew Parsons
Cc: Rodric Williams; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Thanks All
Subject to resolving following, I think the note is good and should go across to LGQC.
Comments:
e ‘Introduction’ ~ final sentence. AS LGQC can’t make the call, we should delete final sentence. Consider replacing
for LNQC (?}
* ‘why would PO seek a recusal?’ ~ first 2 paras are duplicative (sorry) ~ please combine
e ‘Whatis the test for recusal’ — 1 would leave this in (other than words in square brackets obviously) as it helps to
demonstrate the types of facts that would establish a ‘real possibility’ of bias.
e ‘Prospects of success’ — clearly subject to LGQC comment (and I note his email saying that he agrees with LNQC}
Appendix ~ I’m happy with these ~ there’s a substantial degree of overlap with mine (fortunately!}
Inote the suggestion that DCQC should be on the call as well — yes, but the Board will want to hear from a fresh voice, so
DC will need to be clear that he is (on this occasion) the ‘supporting act’ not the main event.
Ym around all afternoon if a call would help.
Jane
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Jane MacLeod
Group Director of Lega’, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number!
From: Tom Beezer [mailto:tom.beezer!
Sent: 17 March 2019 10:47
To: Jane MacLeod <jane.macleo: indrew.parsons <andrew.parsonsi...
Cc: Rodric Williams <rodric.william: ; Amy Prime <amy.prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-AC.FID26896945]
Jane
A further version of the note attached. [Amy, please note this is not on Filesite - can you save “in” ]
Points to note:
- There are some few sections in highlight. We need to take decisions over those. The highlight is really just a
placehoider,. We will be able to finalise those parts when I hear from Rob at OEC as to support from LGQC to
recusal (or otherwise) and confirmation of call timings etc. I am in touch with Rob at OEC and when I hear
back substantively I will revert to you, I know that Rob has already asked LGQC to respond today.
- Your note 1:1 have deleted the “largely unfair” comment as it does not further the note generally and to get
into a qualitative assessment of certain of the judicial quotes would be long and not help the Board in this
circumstance. The quotes are what they are, and you'll see I have selected some into an Appendix "A". Whilst
writing, I have got you selection of quotes. We can use yours or mine as "A". I don’t mind which. Your call.
- Your note 2: I have deleted that first sentence about the effect of recusal. A debate as to what is struck out of
the CIT Judgment or not is a side show as Bates et ai have the CIT Judgment as it currently stands. It exists
as a document in their hands already and if there is any judicial “strike through” (and I don’t think there would
be — in reality there would be replacement findings from the CofA) then where does that lead, as certain
SPMs already have the offending CIT Judgment as it currently stands.
- Your note 3: done.
- Your note 4: agreed, it is really an appeal point not recusal but the sentence is helpful for the wider purposes
of the note.
- Your note 5: I have deleted reference to comment in the Horizon trial as the real answer is we don’t know. We
are picking up signals, but that is subjective. There is no judgement yet that we can point to.
- Your note 6: I have clarified the text. I think the Judge would refuse to recuse himself and also refuse to
adjourn the Horizon trial. That trial would press on whilst we rushed to the CofA.
Next Steps:
- As soon as I hear from OEC as to the chances of a view from LGQC today I'll let you know. Once we finalise
the note (or even just the next iteration), I could send to OEC to see if we could get LGQC "OK" on the draft.
- We can look to finalise the note if you are happy.
- If LNQC is to be on a Board cail on Monday should DCQC be on hand too as the central repository of facts
and info to him? LNQC may wish that to occur anyway. In my speaking to Andy today (he calls me after I
send e mails on this...) he reminds me how much I don't know about this matter. For exampie Andy reminds
me that the comments we are making on Procedurai Unfairness are wider than I had described ~ for exampie:
© 1) the Judge set up a whole process that was unfair in that the sequencing of trials has produced this
situation, that is a structural unfairness point rather than a finding point and
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© 2) that much of the judge's criticism of POL witnesses is based on their assumption that Horizon works
and he (the Judge) says at times it does not, and at that point the Horizon trial had yet to even start.
The point here is that this a multi-faceted piece of litigation and LGQC/LNQC (and indeed me) will only have a
certain scope of view, and LNQC may need to be supported on any call by DCQC.
Other comments:
- Andy tells me that Gideon did the BA Peter Smith recusal stuff. He was at the sharp end for BA on that.
- Owen and LGQC are in the Supreme Court in some few weeks about a bias case. I learnt that today too — so
LGQC must be fully up to speed on bias issues just now.
Kind regards
Tom
Tom Beezer
Partner
Wombie Bond Dickinson (UK) LLP.
Join us for Disrupting Disputes 2.0
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From: Jane MacLeod [mailto:jane.macleod
Sent: 16 March 2019 18:14
To: Tom Beezer; Andrew Parsons
Cc: Rodric Williams; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Tom
As discussed, I have made a number of comments and re-sequenced the draft paper ~ attached.
One key piece of work is to pull out some of the more egregious comments that the Judge has made ~ most of the Board
will not have read the judgment, so it’s worth putting these in an Appendix. 1’fl pull out my ‘favourites’ tonight and send
them through.
Very happy to discuss the changes/comments.
Kind regards,
Jane
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Jane MacLeod
Group Director of Lega, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number}
From: Tom Beezer [mailto:tom.beezer'
Sent: 16 March 2019 13:31 a
To: Jane MacLeod <jane.macleod _ indrew.parsons <andrew.parson:
Ce: Rodric Williams <rodric.williams “ke; Amy Prime <amy.prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-AC.FID26896945]
Jane
I have now had more input & comment from DCQC and Andy.
I attach:
- aciean Word Doc' of the current draft of the note (you'll see one comment from Andy in highlight, so this is still
- sep ane. PDF which shows at a glance the additions that have been made from the version of the draft
note that I sent you earlier.
All comments welcomed. If you would like a version w/o the highlight question (or section questioned) then let me know.
Kind regards
Tom Beezer
Partner
Wombie Bond Dickinson (UK) LLP.
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From: Tom Beezer
Sent: 16 March 2019 11:03
To: ‘Jane MacLeod’; Andrew Parsons
Cc: Rodric Williams; Amy Prime
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Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Jane
As you have an important call shortiy I attach the note as it currently stands.
The draft note picks up some of your bullet points, but not ail. it will need to be added to over the course of today (all
comments gratefully received).
{am tied up for an hour now but will be around this afternoon, just after 12.30.
I hope sending on the draft now is a helpful step.
t
From: Jane MacLeod [mailto:jane.macleod
Sent: 16 March 2019 10:55
To: Tom Beezer; Andrew Parsons
Cc: Rodric Williams; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Many thanks — I have a call at 12.15 with our Chairman, Al Cameron and our Minister Kelly Tolhurst (and others},
although I don’t believe recusal will be part of the discussion. I have been advised by the UKGI GC that ‘government’ will
not express an opinion on recusal as they will not want the ‘executive’ to be seen to be criticising the judiciary’.
This will put more pressure on our Board, and the Chairman is acutely conscious that such an application will not sit well
with the perception that PO is arrogant, whereas we are trying to edge towards ‘contrition’.
That effect of that is that we need to be very clear what the risks will be of not proceeding with the application, which I
imagine include:
* Impact on evidence given by PO witnesses (especially Angela) in the current Horizon trial, and the impact of
that on our case;
* Extent to which this detracts from the ‘procedural unfairness’ grounds for appeal;
® impact of delay - if we didn’t bring the application ‘now’ and then decided that the Horizon judgement also
demonstrated ‘prejudice’ —- would we be able to use that also in an appeal on the Common issues judgement
{which almost certainly will be after the HIT judgment);
@ Would result in (l assume?) only appeal grounds as being incorrect interpretation (and application) of the
law. Although LNQC opinion seemed to suggest we had reasonably good grounds?
Vil look forward to receiving the draft, and will let you know if I need a call later today to discuss.
Kind regards,
Jane
e Jane MacLeod
Group Director of Lega, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
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From: Tom Beezer [mailto:tom.beezerq.. -
Sent: 16 March 2019 09:54 r
To: Jane MacLeod <jane.macleod¢ ; andrew.parsons <andrew.parsonsé
Ce: Rodric Williams <rodric.will I
; Amy Prime<amy.prime GRO ;
Subject: RE: URGENT: Litigation Options - AL AND SUBJECT TO LEGAL I 7 [WBDUK-AC.FID26896945]
Jane
A short e mail as to timings. We will be sending you a draft “Board friendly” (I hope...) recusal note on or before lunchtime
today.
I hope that works for you.
One of us will send over the draft in a short while.
t
Tom Beezer
Partner
Wombie Bond Dickinson (UK) LLP.
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From: Jane MacLeod [mailto:jane.macleod:
Sent: 15 March 2019 15:34
To: Tom Beezer; Andrew Parsons
Cc: Rodric Williams
Subject: FW: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
Importance: High
Tom, Andy
As discussed, set out below is the email I sent this morning to the Chairman and Tom Cooper setting out the proposal for
the recusal application. We are setting up a board call for 59m Monday, and I will need to issue a ‘plain English’ paper to
the Board over the weekend to get them familiarise with the issue. in particular that will need to address:
« Why we are considering a recusal application
@ What the application (if successful} will achieve
* — Risks of not proceeding
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* Prospects of success: what advice have we received, who from (LNQC but given speed with which it was
produced - is it fully considered?; Will LGQC have read in sufficiently by then to also be able to offer an
ion? ‘why we should believe them?’)
© = Process & timing
in addition, the following Monday (25) we have a scheduled Board meeting and I will need to be able to brief in more
detail on an appeal, recognising that it will still be a work in progress. However as we don’t have another scheduled
Board until end May, it is likely that we will need the Board to endorse the appeal strategy at end March, with a further
approval meeting/call once the appeal grounds are finalised and we can assess ‘risk’.
As mentioned I think that as part of the initial Appeal discussion, the board will want to understand the scale of the
financial risk of:
(a) not appealing (and therefore how many existing & historic contracts will be affected by the judgement?)
(b) appealing and losing {same as above?)
(c) appealing and winning — restores contracts to pre-judgement position
Recognising in each case that the consequences apply not just to the claimant group but to all postmasters on those
contracts types, and potentially, all those on other contract types but who have substantially the same provisions.
I will task one of my team to start looking at the modelling to support the legal analysis.
Kind regards,
Jane
e Jane MacLeod
i Group Director of Legai, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number:
From: Jane MacLeod
Sent: 15 March 2019 08:19
To: Tim Parker <Tim.Parkeri Dn
Cc: Alisdair Cameron <alisdair.cameror;
Subject: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
Importance: High
Dear Tim and Tom
As flagged on the board call on Tuesday, we have sought further advice on appeals and as to whether we have grounds
to request the judge to recuse himself on the grounds of bias.
Advice
We sought advice from Lord Neuberger who stepped down last year as the President of the Supreme Court (and as such
was the highest judge in the U.K.). We sought his views as to whether the draft judgement demonstrated the following
grounds for appeal:
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- Whether the Judge has correctly interpreted and applied the law as to construction of a document or
application of a principle of law;
- Whether there are grounds to argue that findings have been made as a result of serious procedural irregularity
(which goes to the admission of, and reliance on, among other issues, inadmissible evidence), and
- (most urgently) Whether Mr Justice Fraser demonstrated grounds on which we could apply for him to recuse
himself.
The test for recusal is ‘whether the fair-minded and informed observer, having considered the facts, would conclude
there is a real possibility that the [Judge] was biased’.
Attached is Lord Neuberger’s preliminary advice (Please note, in paragraph 11 he refers to ‘the Note’ — this is a note put
together by David Cavendar QC summarising the key extracts of the judgement and trial transcript). As you will see, in
paragraph 5 Lord Neuberger states that although he has only looked at the issues very cursorily, “at least some of them
raise quite significant points on which the PO has a reasonable case, and at least on the face of it, some points on which
the PO has a pretty strong case.”
Further however, he suggests (para 19) that if we wish to rely on the ground of procedural unfairness at an appeal, then
‘PO has little option but to seek to get the Judge to recuse himself at this stage” and in para 20 that if we fail to act
promptly during the Horizon trial we “risk being held to have waived [our] rights, or at least weakened our position on
the recusal issue.”
Timin
I have set out below the proposed process and timetable. This suggests that we should make the decision urgently -
preferably not later than Monday with a view to making the application early to mid next week.
Risks
The risks with seeking for the Judge to recuse himself are:
a) The application is successful and the Horizon Trial is adjourned (and probably has to be re-heard by another judge);
we proceed with an appeal on the Common Issues Trial (timing to be determined) and a new judge is put in place for
remaining aspects of trials.
b) The application is unsuccessful (at first request and in the Court of Appeal) then it is likely that the judge is further
antagonised, however he will be aware that the Common Issues appeal is progressing which includes the
“procedural unfairness" assertion. Possible impact in that scenario is the Judge is more cautious as to behaviours to
(possibly) POL's benefit.
c) The theoretical downside to a recusal application is that it fails and that Fraser remains the judge at Trial 3 which will
require multiple findings of fact which are more tricky to appeal.
We should also not proceed with this course of action unless we are prepared to appeal a decision by him not to recuse
himself.
In the meantime I propose today to brief a further senior silk today (probably Lord Grabiner) to act on the recusal
application. Should the Board decide not to proceed, then we can withdraw the instructions; however as he will need
reading in time, this parallel track will minimise delay.
Next steps
Tim, this is clearly a board decision and we would need to give the Board time to consider the options, however we
would like to convene a call over the weekend or on Monday at the latest to discuss this proposal. Lord Neuberger is
available for a conference call to discuss his views, although he is in Argentina, so there are some time
considerations. Once he has read in, and assuming he agrees with Lord Neuberger, I expect Lord Grabiner would also be
available for a call.
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Tom, you have previously counselled us that any appeal should be discussed with the shareholder - please advise how
we progress this as amateur of urgency?
Would we be able to talk today to consider the way forward?
Kind regards,
Jane
© Jane MacLeod
Group Director of Lega’, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobife number
LITIGATION PROCESS & TIMETABLE FOR RECUSAL APPLICATION
1) POL engage with the QC who is likely to be instructed to make recusal application ASAP (if one is made) to get QC
“warmed up" to application, arguments to be deployed and (potentially) to speak to POL Board if needed, as the
person who would in fact be the mouthpiece of POL. Timing: Friday for choice of QC and delivery of papers.
2) Assuming a QC is to be "warmed up" David Cavender QC to brief on background as fully as possible. Timing:
Friday.
3) POL to decide if it is to make a recusal application. Timing: By (say) Monday.
4) POL Board may wish to speak to Lord Neuberger as part of their decision making process. The Clerks at OEC have
confirmed that is possible and have contact numbers for Lord Neuberger as needed. Please NOTE Lord Neuberger is
in South America (Argentina).
5) As soon as decision to make application has been made (if that transpires) Freeths & Judge to be put on notice.
Suggested "appropriate" notice period is one day (or more if decision made earlier than early next week). Freeths put
on notice by letter from WBD (or possibly Counsel to Counsel) and the Judge by a note between the Clerks ? Timing:
early next week once decision to proceed made.
6) Gideon Cohen (at One ESSex Court and already part of the Counsel team) to be instructed to be Junior to chosen
QC. Timing: Friday, if "warm up" route followed.
7) QC & Gideon prepare Application Notice and Skeleton for recusal application. This work could start now if we follow
the "warm up" route.
8) Application is made first half of next week at 10am during the Horizon trial. Thereafter there are variables:
a. Judge may agree. Unlikely but possible. HIT trial is adjourned there and then and POL appeals the CIT
findings and (if successful) we re-list CIT & HIT.
b. Judge may pass matter to another judge to hear. Unlikely.
c. Judge refuses (likely) and POL takes that refusal to Court of Appeal asap. That could be same day (possible
but unlikely) or at that same week at some point if CofA recognise urgency.
d. CofA may agree with recusal application. If so, POL appeals the CIT findings and (if successful) we re-list
HIT.
e. CofA may refuse recusal application in which case HIT rolls on.
Please note in any scenario where HIT is adjourned then there will be possible increased costs consequences for
Claimants that POL could bear if it is ultimately unsuccessful.
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® Jane MacLeod
Group Director of Lega’, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
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