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Message
From:
Sent:
To: Tom Beezer [/o=Exchange-Org/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=179d9f227294473d81b50e72aacb0623-Tom Beezer]
ce: Andrew Parsons [/o=Exchange-Org/ou=Exchange Administrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=ad9ed344815e47e4aaa3c0e7e1740919-Andrew Pars]; Rodric Williams
i GRO 4; Amy Prime [/o=Exchange-Org/ou=Exchange Administrative Group
€ s/cn=ab7222dda3a9453eaed5751238a59562-Amy Prime]
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-AC.FID26896945]
Attachments: EXTRACTS FROM THE JUDGMENT THAT DEMONSTRATE BIAS.docx
All
Attached is my summary of statements that might demonstrate ‘bias’ and I have highlighted the most obvious. Reading
through these again, it is clear that they need to be understood in the context of a decision that was not supposed to be
about the factual evidence. Absent that lens, many of them are strong statements, however one would normally expect
a trial judge to form a view as to the reliability of witnesses.
So the bias argument hangs on the argument that the evidence should have been inadmissible. If for any reason the
contention that this evidence was inadmissible is not upheld, then these findings of fact and credibility must surely
stand?
To that extent the views on appeal and the strength of the argument about procedural unfairness is key. We would not
be considering the recusal application if procedural unfairness were not seen as a ground of appeal. To what extent
would our appeal chances be lessened if we did not rely on procedural unfairness? Is this something we are ready to
discuss yet?
ideally, I would like to know today whether Grabiner is supportive of the recusal application, and if so, to what
extent. Are we able to get any insight on that? Provided that he is, then we should stand up Neuberger for the Board
call, and I will also be able to feedback the outcome of the meeting with Grabiner. (which could be any time from 1.30
onwards that suits him).
Thanks
Jane
® Jane MacLeod
Group Director of Legai, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number}
From: Tom Beezer [mailt GRO
Sent: 16 March 2019.18:
To: Jane MacLeod ¢ GRO
Amy Prime
~_}>; Rodric Williams
Subject: Re: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-AC.FID26896945]
Jane
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On timings for Monday I have heard from Rob at OEC.
Lord Grabiner can make 1pm or after on Monday for a pre call. But Rob says:
He has another appointment at 5.25 that he cannot cancel. He can speak earlier or from 6.30.
Thanks
Jane, thoughts on which QC in light of the above ? Thoughts on timing of meeting ?
T
On 16 Mar 2019, at 18:17, Jane Macleod<I GRO...—s,
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. ll pull
out my ‘favourites’ tonight and send them through.
Very happy to discuss the changes/comments.
Kind regards,
Jane
<image00i.png> jane MacLeod
rector of Legal, Risk & Governance
‘ound Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile numb:
Tom Beezer
Partner
inson (UK) LLP
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» WOMBLE womblebonddickinson.com
' BOND
DICKINSON
From: Tom Beezer [mailto; GRO H
Sent: 16 March 2019 13:31
To: Jane MacLeod
Ce: Rodric William
Subject: RE: URGEN
AC.FID26896945]
indrew.parsons.
GRO ___P; Amy Prime <i _ GRO
Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
Jane
I have now had more input & comment from DCQC and Andy.
I attach:
- aclean Word Doc’ of the current draft of the note (you'll see one comment from Andy in
highlight, so this is still draft), and
- a'compare' 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
Womble Bond Dickinson (UK) LLP
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From: Tom Beezer
Sent: 16 March 2019 11:03
To: ‘Jane MacLeod’; Andrew Parsons
Cec: 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 shortly 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 (ail 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:
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;
e 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 (I assume?} only appeal grounds as being incorrect interpretation (and
application) of the law. Although LNQC opinion seemed to suggest we had reasonably good
grounds?
Vit look forward to receiving the draft, and will let you know if I need a call later today to discuss.
Kind regards,
Jane
<image001i.png> Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
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LONDON
EC2Y 9AQ
Mobile numb«
From: Tom Beezer [mai
Sent: 16 March 2019 0
To: Jane MacLeod <
Ce: Rodric Williams ¢
Subject: RE: URGENT: Litigation Op Options - CC CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Jane
Ashort 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; _
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 cail for 5pm Monday, and I will need
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to issue a ‘plain English’ paper to the Board over the weekend to get them familiarised with the issue. In
particular that will need to address:
e Why we are considering a recusal application
e What the application (if successful} will achieve
« — Risks of not proceeding
* 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 opinion? ‘why we should believe them?’)
e risks
* 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.
{ will task one of my team to start looking at the modelling to support the legal analysis.
Kind regards,
Jane
<image001.png> Jane MacLeod
Group Director of Legal, Risk & Governance
und Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile numberi
From: Jane MacLeod
Sent: 15 March 2019 08:19
To: Tim Parkeri._
Cc: Alisdair Cameron ¢
Subject: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
Importance: High
; Thomas Cooper:
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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:
- 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.
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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.
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
<image001.png> Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 94Q
“GRO
Mobile numbers
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.
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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.
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.
a
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.
<image001.png> Jane MacLeod
Group Director of Legai, Risk & Governance
G id Floor
20 Finsbury Street
LONDON:
EC2Y 9AQ
Mobife numb:
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