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POST OFFICE LIMITED PAGE 1OF[ J
Board Litigation Sub-Committee
Postmaster Litigation
Meeting date: 24 Apri 2019
Executive Summary
CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Context
As the Committee is aware, the judgment in the Common Issues Trial was handed down
on 15 March 2019 and found against Post Office in a number of material respects. An
application was made to the Judge — Sir Peter Fraser, to recuse himself on the grounds
of apparent bias which was heard on 3 April 2019 and rejected on 9 April 2019. The
Application to the Court of Appeal to allow an appeal from that decision was filed on
Thursday 10 April 2019 (the “Recusal Appeal”).
The Committee is now requested to consider: whether an appeal should be made
against the decision in the Common Issues judgment itself (the “Common Issues
Appeal”); if so, the scope of the Common Issues Appeal; and whether Post Office should
seek to have the Common Issues and Recusal Appeals heard together.
Questions
° What was the strategy behind the litigation and is that still appropriate?
. Are there grounds on which the.Common issues judgment could be appealed?
° What is the timing and process for making the Common Issues Appeal?
. Are there any aspects of the Common Issues judgment that we should accept?
Conclusion
1. The legal team recommend:
- appealing. the Common Issues judgment;
- that the scope of the Common Issues Appeal focus on rejecting a legal duty
of good faith and therefore also the consequential terms implied into the
postmaster contracts by the Common Issues judgment. In addition, the
Common Issues Appeal should also appeal certain findings of fact extraneous
to the Common Issues. The rationale for this recommendation is set out in
paragraphs[ to ] and
- that Post Office seek to have the Common Issues Appeal heard together with
the already filed Recusal Appeal. The rationale for this is set out in paragraphs
[ to ].
2. There are significant risks attached to any litigation, and the risks in relation to
these recommendations are also discussed in the relevant sections. Decisions
made by the Managing Judge to date have been very critical of Post Office and as
a result, there is considerable concern around the tone of Post Office’s defence.
These concerns are understood by the external Counsel team. The tone of the
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legal strategy is however more relevant to the interaction with the Managing
Judge, as the Court of Appeal will look objectively and dispassionately at the
matters before it - these are about the application of the law, not how Post Office
conducts its business. Decisions about the scope of an appeal should be made
accordingly.
3. Along with the work being done to conduct the litigation and appeals, work has
begun to assess the range within which a settlement could be negotiated, and
details of this should be discussed with the Board sub-Committee at a future
meeting. However a range of £40-£80 million is not unrealistic. As set out in
paragraph [ ] mediation and settlement discussions could progress pending the
hearing of the Appeal(s).
4. The Committee should note however that while a settlement may bring the current
litigation to an end, it does not :
a) address the claims of anyone other than the Claimant group;
b) necessarily provide a repeatable framework for resolution of similar complaints
from postmasters outside the Claimant group;
c) address the findings in the Common Issues judgment as to the correct
interpretation of the Contract, and the operational impacts of those findings will
remain.
Input Sought
The Committee is requested to consider:
e appealing the Common Issues judgment and, if thought fit, approve the scope of
the Common Issues Appeal; and
. whether Post Office should seek to have the Common Issues Appeal heard together
with the already filed Recusal Appeal.
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The Report
What was the strategy behind the litigation and is that still appropriate?
5. The dispute between Post Office and a number of mainly former postmasters has
been ongoing for a number of years. Despite attempts to resolve these previously
without recourse to litigation, a claim was issued against Post Office in early 2016.
6. Post Office considered that absent litigation, the matters under dispute would
continue without resolution and that it was therefore in the interests of both Post
Office and the affected postmasters to bring matters to a conclusion. which would
provide a fair and repeatable basis for resolving issues arising from in-branch
losses. This basis would apply to both those claimants in the Group Litigation, and
to claims (current, legacy or future) arising outside the current litigation.
7. Post Office expected that the litigation would address the following issues (among
others):
. whether Horizon is ‘robust’, and whether it is likely to be the cause of in
branch losses;
. who bears the responsibility for demonstrating the cause of in-branch losses;
° if Post Office is determined to be responsible for in branch losses (from
whatever cause), but has previously held a postmaster accountable, what
liability does Post Office have to the postmaster and how is compensation
fairly calculated?
° does Post Office have a legal. liability to recompense all postmasters, or only
those who have raised/ notified their claims in accordance with the Limitation
Act (which would therefore exclude most claims arising before 2010)?
8. Additionally, there was concern that the lack of certainty around the contractual
framework, and the challenges to the robustness of the Horizon point of sale
system, operated as a disincentive to potential agents to contract with Post Office
and disputed business-as-usual activity, as well as causing concern to key
(government) stakeholders.
9. Other desired outcomes from the Group Litigation therefore also included
establishing with a reasonable degree of certainty the terms of contracts and ways
of working that are effective in supporting agents and defending Post Office’s
interests
10. It was also Post Office's view that Horizon, although not perfect or error-free, was
generally reliable. This was based on, amongst other matters, assurances from
Fujitsu and the findings of Second Sight that, there was no systemic problem in
the system. Further, Post Office was of the view that the legal position it had
adopted with its postmasters (including in civil and criminal court proceedings) for
over 20 years was broadly sound; this was reinforced by legal advice from a
number of sources including WBD and Linklaters during the mediation scheme and
latterly from Leading Counsel.
11. Post Office has always recognised that there are likely to be individual cases where
its treatment of postmasters has not met appropriate standards and/or it has acted
wrongly. In such cases, Post Office should acknowledge failures and the
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postmaster should be compensated. However, although some evidence has been
put forward, the court process mandated by the Judge should not have allowed for
those individual issues to be properly scrutinized until at least Trial 4 in 2020.
12. Permeating all decisions was a strong belief that any acknowledgment of past
failures should be balanced against the risk of opening up the floodgates to
demands for compensation from undeserving Claimants and encouraging more
historic claims from postmasters who were not yet Claimants.
13. Against the above objectives, it was recognised that litigation will always come
with risks and that an adverse finding against either the postmaster contracts or
Horizon could be seriously damaging to the business. Of particular concern was
that Post Office may be left in the position of not being able to recover shortfalls
in branch from postmasters, putting its cash and stock at risk.
14. Finally, there was a commercial objective to bring the litigation to a. close as quickly
and cost effectively as possible.
15. Having considered the above factors, Post Office decided to contest the first two
phases of the litigation, namely the legal framework of the postmaster contracts
and Horizon. Post Office would try to secure some positive Court decisions with
aim of either exhausting the Claimants' confidence and funding or building a
platform for settlement. Positive decisions could provide a narrative to explain a
modest settlement payment without that looking like a concession of liability that
would cause business disruption and a risk of more claims.
16. In light of the adverse findings in the Common Issues judgment, and Mr Justice
Fraser's very dim view of Post Office in general, consideration should be given to
whether the above objectives are still best served by continuing to contest the
litigation beyond the first two phases of the litigation (recognising that the second,
“Horizon Issues Trial” phase is currently part-heard before the Managing Judge in
the High Court).
17. Against this background, the first point addressed below is whether the Common
Issues judgment could, as.a matter of law, be successfully appealed, and then
consideration is given to whether this is an appropriate course of action and what
alternative options there are.
Are there grounds on which the Common issues judgment could be appealed?
18. As previously advised, the Common Issues judgment was formally handed down
on 15 March 2019. Since then, Post Office has engaged Lord Grabiner, one of the
most senior practising barristers in the country, and Lord Neuberger, the former
President of the Supreme Court, to advise on appealing the Common Issues
judgment. They have considered this alongside David Cavender QC who
represented Post Office at the Common Issues trial.
19. Post Office’s legal team (including the above Counsel) believe that it has good
prospects of successfully appealing large parts of the Common Issues judgment.
[[The basis for this belief will be set out for the Committee by the Counsel team
when it meets on 24 April 2019.]]
20. There are also strong business reasons for seeking the appeal. These include:
° While operational improvements and contractual changes may be
implemented to address the impact of the judgement going forward, the
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retrospective impact of the judgment can only be addressed through a
successful appeal.
The implication of a legal duty of ‘good faith’ creates significant uncertainty
around Post Office’s ability to make operational changes going forwards -
including changes to contracts and termination of agents, as Post Office must
now take into account the impact of such changes on specific agents as well
as agents generally, in reaching decisions. A more detailed summary of these
issues is set out in the attached advice from Womble Bond Dickinson and
David Cavender QC.
The implication of a general legal duty of good faith creates uncertainty as to
the scope of duties owed to postmasters historically such that.in any
particular case, it will be unclear whether Post Office has discharged that
duty.
The adverse findings in the Common Issues judgment make it significantly
more likely that Post Office will be found to be liable to'a larger number of
the Claimants and significantly increase the extent of its liability.
Post Office’s position in any discussions to try to.settle the litigation will be
improved by appealing the Common Issues judgment.
main areas where Post Office should consider appealing include:
The implied legal duty of good faith, whilst superficially sounding
uncontentious, poses significant difficulties to Post Office due to the
uncertainty of its meaning and application. In a business sense, good faith
is commonly understood to mean being honest; and that as a principle is
obviously not objectionable. However the Common Issues judgment has
gone much further than that, imposing a legal good faith duty that is defined
to require Post Office to subjugate its legal rights to the interests of
postmasters and take steps that are commercially onerous.
As part of this legal duty of good faith, the Judge has then imposed a further
20 specific duties which he states were necessary for “reasons of business
efficacy or as incidents of the contracts being relational contracts”. While a
number of these duties appear anodyne, legally it is difficult to accept certain
duties while rejecting others, or without undermining the challenge to the
general legal duty of good faith.
Post Office’s rights to terminate agency contracts (and indeed the rights of
agents. to terminate) on ‘not less than x months’ notice’ are subject to the
legal good faith obligation such that the period of notice to be given in any
particular case must be considered taking into account all relevant factors.
Not only is this interpretation contrary to normal commercial practice, but
imposes burdensome operational considerations on both Post Office and the
agent to take into account a range of other factors when deciding what notice
is reasonable in the circumstances. Similar considerations will apply to
suspensions.
The Managing Judge has determined that the Unfair Contract Terms Act
applies to the provisions of postmaster contracts which means that many of
them could be considered to be unreasonable and therefore unenforceable.
This applies irrespective of the type of agent - individual, multiple or
corporate.
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e There are a number of findings that address losses and the agents’ liability
for losses which make recovering losses much more difficult, if not
impossible. These different findings need to be considered together so as to
ensure that the outcome is consistent.
° The Managing Judge held that a disputed Branch Trading Statement is not an
‘account’ for the purposes of the agent's fiduciary duty to account to Post
Office as its principal. We believe that the judge has based this decision on
an incorrect understanding of how agents dispute transactions. He then
found on the basis of this that there is no obligation on agents to demonstrate
that Branch Trading Statements are wrong in respect of a disputed period.
22. The Counsel team have also reviewed whether there are any findings of fact in the
Judgment that should be appealed on the grounds that those findings are perverse.
Appeals of this nature are less common and more difficult, and should therefore
be used sparingly, both as a legal tactic and because it comes with a higher risk
of Post Office looking like an aggressive litigant. The recommendation is that the
following findings of fact should be challenged:
. Mr Bates: receipt of SPMC contract. This is a single issue. On its face this
may seem to be unnecessary, however it is a clear example where the Judge
has wholly ignored the documents to get to his desired conclusion and so it
should strike the appeal court as very odd.
° Findings adverse to Post Office's behaviour and witnesses. These findings
are unfair and are directly relevant, to the Claimants' claim for indemnity
costs. There are 6 of these. These overlap with some of the recusal grounds.
° Litigation conduct of Post Office. There are two of these. They are relevant
to indemnity costs arguments made by the Claimants.
23. Set out in the [Diligent] Reading Room is a detailed table setting out the specific
findings from the judgment and. the appeal recommendation in relation to each.
Are there any aspects of the Common Issues judgment that we should accept?
24. There are a number of legal grounds on which an appeal could be sought but given
the way the Common Issues Judgment has been constructed, it is difficult to
disentangle the various issues so as to be able to accept some points and not
others. In addition, the Managing Judge has expressed a number of findings ‘in
the alternative’ which mean that even if he was found to be wrong on one ground,
then there is at least another on which he also relies to achieve the same outcome.
In those. cases, it is therefore necessary to appeal against both findings.
25. Our Counsel team are of the view that ‘concessions’ should only be made in limited
circumstances, as even accepting a few clauses could suggest to the Court of
Appeal that the agency contracts are incomplete and open to further implied
terms. There is a need to mount any appeal in a legally coherent manner
otherwise the merits of the whole appeal could be undermined.
26. They therefore advise that the following 4 terms could be accepted (subject to
some drafting modifications) as incidents of the "necessary cooperation" term
rather than freestanding implied terms in their own right. This is still a concession,
although delivered in a way that runs less risk of undermining the wider legal
arguments on when terms should and should not be implied.
27.
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e “to provide reasonable training and support if Post Office imposed new
working practices or systems or required the provision of new services”
° “to ensure that the Horizon computer system was reasonably fit for purpose”
° “properly and accurately to effect all transactions using Horizon and to
maintain and keep records of such transactions for a reasonable time”
. “that Post Office take reasonable care in performing its functions under the
SPMC and NTC contracts which could affect the accounts of Subpostmasters”.
There are other points in the Common Issues Judgment that Post Office could
decide to concede, although it should be noted that the Counsel team: advise
against any such concessions::
. The finding that Post Office faces the burden of proving every loss in
every branch and that all losses must be real losses... Post Office will
always face some difficultly in trying to prove the root cause of a loss in a
branch because it has no first-hand knowledge of what has happened. That
difficulty is manageable if addressed at the time the shortfall arises when
information is freshly available and the cooperation of the postmaster can be
sought (and which the postmaster is required to provide under the mutual
duty of cooperation). The difficulty comes when a dispute is raised long after
the events in question or where a postmaster has been false accounting
(which by its nature means that the postmaster has been rendering
undisputed, albeit false, accounts). The Common Issues Judgment would
require Post Office to retrospectively determine what happened long after the
events in question. That is exactly what most of the Claimants are seeking
to do in this litigation. Post Office’s lawyers consider this to be unfair on Post
Office and wrong in law. The.case advanced by Post Office seeks to strike a
fairer balance between the parties. It allows postmasters to raise timely
disputes about shortfalls‘and put the onus on Post Office to investigate those
shortfalls at that time, whilst also holding postmasters to any undisputed
accounts, unless they can later prove there was no loss or it was not their
fault. These points are explained more fully in the Appeal Table in the
Reading Room.
. The various implied terms that require Post Office to pro-actively
communicate information about shortfalls and Horizon to the whole
network. Although these sound innocuous, in practice they would be difficult
to comply with. Conceding them would also contradict the core legal
argument that there should be no duty of good faith and terms should only
be implied where necessary.
e The implied terms and findings to the effect that Post Office's right
to suspend and terminate must be exercised in good faith and only
when Post Office is not in breach of contract. Conceding these would
contradict the core legal argument that there should be no legal duty of good
faith and terms should only be implied where necessary. From a business
perspective, the judgment erodes the certainty and scope as to when Post
Office can suspend and terminate postmasters, which is needed in order to
protect cash and stock in the network.
. The finding that Post Office must pay postmasters when suspended.
This is not recommended because it would expose Post Office to significant
historic claims for withheld remuneration. If Post Office wishes to change this
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practice going forward, it could do so through an operational change /
contractual variation.
28. It should be noted that it is not legally possible for Post Office to appeal generally
but concede a duty of good faith. The legal duty of good faith pervades the entire
judgment. A decision not to appeal the finding of a legal duty of good faith would
undermine nearly all other grounds of appeal. If Post Office wished to accept the
legal duty of good faith, this would require it not to appeal at all.
What are the risks of bringing the Appeal?
29. While the Counsel team believe that “Post Office has reasonable to strong
prospects of success on nearly all of the above recommended legal grounds of
appeal” (albeit some stronger than others), appealing against the Common Issues
Judgment is not risk free.
30. First, the mere act of appealing may be seen by some as.an aggressive step.
Appealing a decision on the interpretation of contracts is common place, and the
Common Issues Judgment states several times “in the event that I have got it
wrong” which language is not unusual where a judge anticipates that a point may
be subject to appeal. Further, having made a recusal application and appealed
that application, an appeal on the Common Issues Judgment is a lesser and more
ordinary step by comparison.
31. Second, Post Office may lose the Common Issues Appeal with the following
consequences:
° All Mr Justice Fraser's comments about Post Office will be vindicated, leading
to further negative publicity.
e Mr Justice Fraser will feel emboldened to treat Post Office even more harshly
in further hearings and trials.
° The Claimants will be in an even stronger negotiating position.
° Post Office will have incurred further legal costs and be liable for the
Claimants’ legal costs.
. Post Office will still have to implement the Common Issues Judgment but
after a 6-12 month delay (see further below on timing).
32. Third, even.if the appeal is successful, there is a further right of appeal open to
the Claimants to the Supreme Court. Getting permission to appeal to the Supreme
Court is more difficult, but the legal duty of good faith arguments are new law and
something that the Supreme Court may be prepared to hear.
What is the timing and process for making the appeal?
33. The Recusal Appeal was lodged with the Court of Appeal on 11 April 2019. Unless
we file the Common Issues Appeal rapidly and seek to have the two appeals heard
together (see below), the Court of Appeal will shortly consider the Recusal Appeal
as standalone question.
34. The Managing Judge has set aside time on 16 May 2019 to allow either party to
seek permission to appeal the Common Issues Judgment. Assuming the Managing
Judge allows an appeal, then Post Office has a further 21 days within which to file
its appeal. If permission to appeal is refused, then as with the recusal judgment,
we could apply to the Court of Appeal directly (again within 21 days). In either
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case, Post Office will lose its right to appeal unless the Appeal Notice is filed with
the Court of Appeal by 6 June 2019.
35. The Counsel team believe that it is unlikely that the Managing Judge will give
permission to appeal and therefore recommend making an application directly to
the Court of Appeal as soon as possible (which is a permitted way of proceeding
under the Court rules).
36. Assuming that permission is given for the Common Issues Appeal, in the absence
of the Recusal Appeal, there are limited grounds to argue for an expedited hearing
which means that it could be 6-12 months before the Common Issues Appeal is
heard.
37. Once both appeals are lodged (and assuming that permission to appeal is granted
in both cases), the Court of Appeal will then decide whether to hear them together
or separately. If separately, the Recusal Appeal will likely move. faster, perhaps
being heard within 1-3 months. The Common Issues Appeal, being more complex,
will likely take 6-12 months. If the two appeals are heard together, they will likely
move on the slower timetable but with more chance of being towards the shorter
end of that timetable.
Should Post Office seek to have the two appeals heard together?
38. The Counsel team believe that the two appeals should be heard together:
° The Recusal Appeal will require the Court of Appeal to form a view on whether
the Managing Judge has pre-judged issues outside the scope of the Common
Issues trial. It will therefore need to consider certain of the issues which
would be raised in the Common Issues Appeal in forming that view. It is also
the case that the findings of fact that Counsel recommend appealing in the
Common Issues Appeal.are the same findings that are the subject of the
Recusal Appeal. If the appeals are not heard together the Court of Appeal
would need to consider the same points twice. This is inefficient and there is
doubt as to whether the Lord Justice managing the appeal will allow this to
happen.
. The two appeals give complementary impressions. The extent of the errors
of law in the Common Issues Appeal reinforce that the Recusal Appeal is one
of substance not just form. The Common Issues Appeal makes clear that the
Managing Judge has not made a trifling error for which he should not be
recused, but lays out the full extent of the flaws in his reasoning and helps
justify (publicly and to the Court) why Post Office has sought the sanction of
recusal.
° This will be the most efficient use of resources. One hearing will always take
less work and cost less than two separate ones, which will benefit both parties
and be attractive to the Court of Appeal.
. Even if the Recusal Appeal receives the Court of Appeal’s permission and goes
forward separately and quickly, the litigation could not be fully re-started (if
re-started at all) before the Common Issues Appeal was determined.
. We anticipate that the Claimants may want the two appeals heard together.
Their principal argument against recusal is that the Common Issues
Judgment, and the Managing Judge's approach in it, was correct. They will
therefore want to argue that the Common Issues Judgment should properly
be the subject matter of the any appeal.
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39. A further benefit of joining the appeals is that not hearing a joint appeal before
the Autumn creates a window for mediation and settlement discussions. Although
settlement can be discussed at any time, the present litigation timetable is densely
packed with the Horizon trial due to continue in June and July and Trial 3 still
currently scheduled to start in November 2019. This will strain the Claimant’s
resources and may restrict their lawyers’ ability to engage in settlement
discussions. A combined appeal should (but this is not guaranteed) lead to all
other activity in this litigation being paused, freeing the Claimants up to focus on
settlement over the Summer. The Claimants appear to be open to this, having
sought to push further court activity (including completion of the Horizon Issues
trial) back until the Autumn (they have also previously refused to mediate where
that overlapped with their preparations for the Horizon Issues trial).
40. The alternative view is that Post Office does not proactively seek to have the
appeals heard together (which is in any event a case management issue for the
Court of Appeal to determine). Reasons why Post Office may want to hold the
appeals separately include:
. the Recusal Appeal concerns a very sensitive subject, which may influence
how the Court of Appeal approaches the otherwise more objective legal issues
in the Common Issues Appeal (the outcome of which is of greater operational
significance for Post Office);
° Post Office may be able to test how the Court of Appeal assesses its case and
conduct of the litigation in the Recusal Appeal, applying any “lessons learned”
to a subsequent Common Issues Appeal [[RW: I would like to hear what
Counsel has to say on this]];
° [[other?]]
41. The potential consequences of the Appeals being heard separately include:
a) if the Recusal Appeal is successful and the Managing Judge is recused, a
new Managing Judge will be appointed, but will be unlikely to make any
further directions for the subsequent conduct of the litigation until the
Common Issues Appeal is resolved, given its relevance to issues in dispute
overall; or
b) if the Recusal Appeal is rejected, the Managing Judge can be expected to
continue with the existing timetable for Trials 3 and 4 on the assumption
that his findings in the Common Issues judgment are correct, even though
many. of the issues in those trials will be affected by the outcome of a
Common Issues Appeal. The work done for those trials would therefore
be wasted if the Common Issues Appeal alters the Managing Judge’s
findings in the Common Issues judgment.
Options
42. Against the above background, Post Office has the following options for the future
conduct of this litigation.
(a) Appeal the Common Issues judgment so as to try to obtain a more
favourable judgment and then use that as a platform to settle — whether or
not through mediation (or potentially cause the Claimants to give up).
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(b) Appeal the Common Issues judgment and then look to settle before the
appeal is heard. The Common Issues judgment has put the Claimants in a
stronger negotiating position and appealing the judgment will put their
negotiating position at risk such that they may want to settle now.
(c) Do not appeal and offer the Claimants a very considerable settlement
payment to stop the litigation now, before the Horizon Issues trial continues
in June 2019, and then manage the impact of the Common Issues judgment
through operational and contractual change. However to close out the
litigation in that time frame would give Post Office no room to position or
negotiate the settlement. We estimate that a payment in excess of £75m?
would be required to settle the claims of the Claimants, however this’ will
not address the claims of disgruntled postmasters outside the Claimant
group, the size of which is unknown, but which could result in a similar
liability, and there would be no cover to dissuade future claims. There is
also no guarantee that a settlement could be achieved in this time period
(d) Do not appeal, wait for the judgment on the Horizon Issues and then seek
to settle. The merits of this approach will turn on the outcome of the Horizon
Issues trial. That trial should turns on the expert evidence which has not
yet been heard but, if the Managing Judge is not recused, Post Office has a
serious risk of another adverse judgment.
(e) Contest the litigation through further trials, until Post Office resolves all 557
individual cases or the Claimants' funding. collapses. This would take years
of further litigation, risk further adverse judgments and reinforce the
impression that Post Office is an overtly aggressive organisation. This is an
unattractive option but it is included for completeness.
Recommendations
43. The Post Office legal team.recommends Option A. In parallel, Option B should be
explored with the Claimants so to better understand the settlement range and to
keep open the possibility of an earlier settlement.
44. If Post Office does appeal the Common Issues judgment, it will also need to
consider the scope of the appeal and how it is progressed alongside the Recusal
Appeal. For the reasons stated above, it is recommended that the Common Issues
Appeal is conducted in a legally coherent manner, which would mean minimising
concessions:and seeking for it to be joined with the Recusal Appeal.
45. The Common Issues judgment made astringent criticisms of Post Office and left a
bad impression of the business. A successful recusal of the Managing Judge and/or
a successful Common Issues Appeal will mitigate some of that harm by showing
that Post Office was the recipient of bad judicial decision making. However, if the
appeals go against Post Office, it may reinforce the message that it is a
litigious/aggressive organisation. The legal team will therefore be instructed to
avoid polemic language wherever possible but ultimately an appeal is, by its very
nature, a criticism of a Judge's work.
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46. Post Office must therefore determine whether it is more important to achieve the
right legal outcomes in the interests of the business, as against the tonal risks of
being seen to be aggressive in the way it conducts the litigation or engages with
the Managing Judge going forward should he not be recused. Arguably these risks
have already crystallised in the Common Issues judgment and Post Office has
already taken the more emphatic step of seeking the Managing Judge's recusal.
In comparison, appealing the Common Issues judgment, if done with care and
sensitivity, is a reasonable course of action.
47.
The Board sub-committee is requested to:
a)
b)
c)
qd)
Approve the making of the application to appeal to the Court of Appeal. in
respect of the Common Issues judgment;
Approve the scope of the Common Issues Appeal as set out in the Appeal
Table in the Reading Room;
Approve the proposal that we request the Court of Appeal to hear both appeal
applications together.
Note the proposals to explore a settlement with the Claimants, subject to the
legal team reverting to a separate meeting with a more detailed outline of
the options.