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Message
From: Mark Underwood . Oo. }
Sent: 15/10/2018 19:31:52
To: Rodric Williams [rodric.william: I; Andrew Parsons [/o=Exchange-Org/ou=Exchange Administrative
Group (FYDIBO! ad9ed344815e47e4aaa3c0e7e1740919-Andrew Pars]; Jane MacLeod
{iane.macleod,
ce: Dave Panaech [/o=Exchange-Org/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=0310835f6adc435ab 1b160664f370de9-Dave Panaec]; Victoria Brooks
[/o=Exchange-Org/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=7a2f6b0bed844154a96f5e67 1bcc4253-Victoria Br]; Amy Prime
[/o=Exchange-Org/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=ab7222dda3a9453eaed5751238a59562-Amy Prime]
Subject: Re: Strike out application [WBDUK-AC.FID26896945]
Ihave read it. I may be being overly simplistic / optimistic but I think it is important to remember why the application
was made in the first place - to prevent judgments in November going further than just the common issues and to
prevent the judgments on the common issues being polluted by prejudice.
Although we have taken a kicking to get there, I think the first objective has been achieved. Prejudice is a concern but at
least this judgment opens the door for David to cross examine on credibility points (false accounting etc) and there are
some useful points of detail included in the judgment, which I think can read into as being positive for POL e.g para 31.
We do need to consider how this judgment informs what we do with the claimants witness statements for the horizon
issues trial.
Mark
Mark Underwood
lio: Legal, Risk & Governance
To: Andrew Parsons; Mark Underwoo it Jane MacLeod
Cc: Dave Panaech; Victoria Brooks; Amy Prime
Subject: RE: Strike out application [WBDUK-AC.FID26896945]
All,
lam reading this now and have spoken to Andy. I'l send my comments later this evening.
Ihave however instructed Andy to ask counsel to again revisit their merits opinion, essentially “war garning” it in the
context of a judge who has formed a view that Post Office acts in a high-handed/oppressive manner towards its agents.
Rod
From: Andrew Parsons [mailto:andrew.parson!_ ~
Sent: 15 October 2018 19:03
To: Rodric Williams {SG
Jane MacLeod <jane.macleod,
Cc: Dave Panaech <dave.panaect.
POL-0019688
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<amy.prime.__
Subject: Strike out application [WBDUK-AC.FID26896945]
Rodric, Mark, Jane
Please find attached the strike out application judgment. Its not good news — Fraser refused to strike out the Cs
evidence.
e The Judge has approached this as a case management issue, rather than a trial issue. As a case management
issue, the Judge adopted the test that he cannot strike out evidence unless the evidence can "never be relevant"
to the issues at trial (para 22). This is a very high bar to clear and so he found that the Claimants' evidence must
remain live in the proceedings (para 53).
* However, he acknowledges that just because the evidence remains in the Common Issues Trial does not mean
that it is relevant to the Common Issues — he says that that question will be the subject of detailed debate at the
trial (para 25).
e He carefully avoids deciding whether the evidence is actually relevant to any of the Common Issues, but
expressly makes clear that he will not be making any findings on the Horizon Issues or issues of breach (para
52). This last point appears to be a contradiction in this judgment — if he does not intend to make any findings on
breach then how can large parts of the Claimants’ evidence be relevant?
e As aside note, Fraser also criticises both sides for “aggressive litigation tactics" (paras13 — 16). This section is
at odds with his comments at the other hearings in the run up to the strike out application in which he invited a
strike out application.
In substance, we do not believe that this Judgment moves Post Office backward or forward from its position before the
strike out application, but we are going to give this further careful consideration overnight.
The more worrying part of the Judgment is the final para where he refers to Post Office's termination correspondence to
Alan Bates back in 2003, calling it "undoubtedly aggressive and generally dismissive". \t is one thing to criticise the
lawyers as being aggressive (that criticism, although never welcomed, is a risk in all litigation) but it does not directly affect
the Judge's substantive view of the case. It is a different thing altogether if correspondence about Post Office's conduct of
a termination 15 years ago is starting to seep into his thinking.
David, Tony and I will be in touch tomorrow with further advice on how to proceed.
Kind regards
Andy
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP.
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