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Message
From: Jane MacLeod: GRO
Sent: 18/12/2017 06:5:
To: Thomas P Moran C GRO
cc: Andrew Parsons [/o: inistrative Group
(FYDIBOHF23SPDLT)/cn=Recipients/cn=ad9ed344815e47e4aaa3c0e7e1740919-Andrew Pars]
Subject: Re: PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
Will do.
Andy, the various responses have been very helpful.
Kindcregards,
Jane
Jane MacLeod
Group Director Legal, Risk & Governance
: Thomas P Moran
Sent: Sunday, December 17, 2017 11:09:47 PM
To: Jane MacLeod
Cc: Andrew Parsons
Subject: FW: PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
Jane (cc Andy)
Hi, wearing my formal Steering Group Chair hat, I am happy for you to report to Paula that the SG has collecting
endorsed the proposal as set out in the paper, with the very clear steer that all correspondence and related documents
must emphasise the mutual benefits of the proposed approach and set out why other possible options are less
attractive.
tam in branch all day tomorrow and don’t plan on checking emails at all. If there is anything really urgent please call my
mobile — and I will be available from 7-8.45 in the morning, or after 18.00.
Thanks
Tom
From: Patrick Bourke
Sent: 17 December
To: Thomas P Moral
Parsons
Andrew
‘Mark Ellis
5 Victoria Br
:Angela Van-Den-Boge!
I 'Rodric Williams <i
i G RO «>; Tom Wechsler !_ _ GRO
; Jane MacLeod
"#; Mark R Davies
jelanie Corfield
PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
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Andy
Thanks for the paper and the further detail in your email. I also agree to the suggested way forward, noting that
there will be quite a premium on positioning it such that it is clearly seen to be a genuine attempt to expedite the
litigation in the interests of all participants.
Best wishes
Patrick
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From: Thomas P Moran
Sent: Sunday, December 17, 2017 9:59:22 PM
To: Stuart Nesbit; Andrew Parsons; Mark Ellis
Cc: Amy Prime; Victoria Brooks; Jane MacLeod; Angela Van-Den-Bogerd; Mark R Davies; Patrick Bourke; Rodric Williams;
Melanie Corfield; Tom Wechsler; Nick Beal
Subject: RE: PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
Andy
’'m confirming i'm happy with the proposed approach having seen your responses to mine and others’ questions. In
particularly I think your setting out of the other options and their drawbacks is very helpful. As discussed, my biggest
concern is the judge, claimants and/or public seeing Post Office as seeking to delay the litigation. Obviously you are the
experts on the finer points of this but my non-expert advice is that we bring out this point as strongly as possible to the
extent that we are proposing this course of action as what we see as the best way to progress this trial.
Thanks
Tom
From: Stuart Nesbit
Sent: 17 December 2017
To: Andrew Parsons;
k>
Thomas P Moran
Angela Van-Den-Bogerd
4; Patrick Bourke
I; Melanie Corfield
I Nick Beal
Q@
A
Oo
,
Subject: RE: PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
Thanks Andy,
This is a very useful reply.
tam happy with this proposal.
Thanks
Stuart
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To: Mark Ellis <!,
Cc: Amy Prime
Tom Wechsler
Subject: RE: PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
Thanks Tom and Mark.
Your questions principally focus on the alternative options and why these are not the preferred route. I've therefore set
out more detail on this below.
At present, neither Freeths nor the Court have set out their views on what they think should happen in March 2019 or
thereafter. We want to get our proposal on the table first whilst we have a blank canvass so that we can shape the
direction of the conversation. Freeths have so far shown little appetite to set out a grand plan for this litigation (despite us
asking for one from the outset) and they have largely agreed with our proposais (it should be remembered that it was our
idea to focus the first trial on the contractual issues, not Freeths).
The way we intend to do this is a letter that floats the Lead Cases Trial as an idea for discussion as the long term pian,
whilst also discussing what to do in March 2019. The letter will have a tone suggesting ways forward rather than making
a firm proposai and will ask Freeths for their ideas. We do not intend to expiain why the alternatives do not work (which
was one of your questions Tom) because we do not want to set a negative tone that suggests we are blocking ideas or
being difficult. if Freeths present an idea that has merit, we should consider that in good faith. Our letter will not
therefore commit Post Office to a course of action, and will leave scope to change direction if a better route opens up or
we encounter major resistance.
My prediction is that Freeths will not have thought very far ahead. From conversations with them, they are struggling with
the pace of this litigation and that leaves them little time to do long term planning. I also predict that their strategy will be
to try to get as many documents as they can from Post Office as soon as possibile, and then come up with a long term
route forward based on the most attractive option arising from those documents. If they were forced to pick a route now,
my guess is that they may be attracted to a Lead Cases Trial and / or they may want to focus on Horizon as a discrete
issue in March 2019 (see further below).
The alternative to a Lead Cases Trial is to break down the litigation by topic. This would result in several trials like the one
we have in November 2018 on the contract. Each "Common Issue" trial would take roughly 9 ~ 12 months. There are
dozens of topics that could be covered, and so this would likely lead to 3 ~ 4 trials on 3 ~ 4 groups of similar topics. At the
end of that process, however, we will have only addressed a number of key issues and not yet tackled a single Claimant's
case in full. We would therefore end up still having to hold some form of Lead Cases Trial, albeit the grounds for dispute
will have been reduced and the Lead Cases Trial would be ea / shorter. Even if we were to overlap the trial
preparation (eg. running trial 1 whilst preparing for trial 2) I believe that this would take 4 - 5 years. This is why we believe
that this route would ultimately take longer and cost more.
in terms of possible topics that could be pulled out for discrete determination, there are many superficially attractive
options, but all run into similar problems. I set out below a few examples to illustrate this:
« Training. We could hold hearings on whether Post Office's training was adequate. The question is then what
exact training are you testing in Court. If we look at the initial training offered when becoming a postmaster, this
will have changed considerably over the 17 years Horizon has been in place. The training also changes
depending on the branch and the postmaster ~ an experienced postmaster moving to a smal! new branch will
need little training, whereas as a new postmaster taking on a converted Crown will require much more
support. Moreover, many of the complaints about training are not that the training was inadequate, but that Post
Office did not spot the need to train a particular postmaster. This question turns on the wider factual background
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to a case and whether there are circumstances that should have alerted Post Office to the need for further training
(if indeed it has such a duty at all — that is a question for the November 2016 trial). Very quickly you can see how
the issue of training is not a general question affecting ail postmasters, but highly fact specific and one that
needs to be considered in the context the Claimant's overail claim. it is unlikely that a trial focused just on training
would reach general conclusions that would apply to and materially determine lots of Claimant's cases on training,
as each case could be distinguished on its facts.
e Helpline advice. Much like training, the advice for the helpline turns very much on a particular claimant's unique
position and needs to be considered in the context of their wider claim. it is also a good example of our second
problern — the need for duplicate evidence. Even if one could prove that helpline advice was wrong, a Claimant
then needs to show that the incorrect advice caused a sequence of events that resulted in a loss / their
termination. A discrete hearing on the quality of the helpline would not extend as far as causation
questions: those questions would then need to be heard at a separate hearing. However, the facts going to the
quality of advice and the causation of loss will materially overlap. This might then require the Court to hear the
same evidence twice at two separate triais. Duplicate evidence causes a variety of problems: wasted Court time,
double costs in re-covering old ground, criticism of witnesses where evidence changes over time, new information
coming to light in a later trial that then undermines the decision in an earlier tral.
e Horizon. We've given very careful thought as to whether we could pull out Horizon as a discrete topic, but
believe this would be difficult. The Claimants accept that there is no fundamental problem with Horizon that
affects ail branches. Instead, their case is that Horizon poses a risk of suffering intermittent defects that may or
may not arise on a case by case basis. The allegations around Horizon therefore fall into the same factually
sensitive trap as training and support.
Moreover, the Claimants have not identified a specific problem with Horizon in their claims so far. It is not
therefore possible to structure a trial around the idea that there are, say, 5 alleged problems with Horizon that the
Court could review, analyse and decided upon. If Horizon was put forward as a topic, it could not therefore be
considered through either the prism of particular cases (as they are factually sensitive) or particular issues (as
these have not been alleged by the Claimants). It would require a generai question, something like "Is Horizon
reliable?”. General questions of this nature could be extremely broad and difficult to determine.
Post Office would also have to give up the high ground. The Claimants face the burden of proof in showing
Horizon is defective. This means that the Court starts frorn a loose presumption that Horizon works, and then the
Claimants need to show that it doesn't by alleging specific problems. {f we tried to tackle Horizon generally (and
without any alleged specific problems) Post Office would end up trying to prove that there are no problems in the
whole system, Proving a negative like this is very difficult. Also, as there are known problems in the system, Post
Office will need to admit this generally which is unattractive.
I hope this helps explain why we don't believe that there is an obvious way for dealing with this litigation on a topic by
topic basis. As said above, if Freeths do come up with a solution to this, then we should give it due consideration and our
letter will be designed to draw them out on this.
Kind regards
Andy
Andrew Parsons
Partner
Wombie Bond Dickinson (UK) LLP.
womblebonddickinson.com
OND
DICKINSON v ©
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From: Mark Ellis—
Sent: 16 December 201
To: Andrew Parsons
Cc: Amy Prime; Victoria Brooks; Thomas P Moran; Jane MacLeod; Angela Van-Den-Bogerd; Mark R Davies; Stuart Nesbit;
Patrick Bourke; Rodric Williams; Melanie Corfield; Tom Wechsler; Nick Beal
Subject: RE: PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
Andy,
{agree in principle with the recommended approach. However, as Tom indicates, I would like to understand in greater
detail why we believe structuring hearings to resolve issues on a topic by topic basis is likely to be more time consuming
and costly than the recommended approach. Surely the topics in each case will dictate how we segment and group
cases in the future? How many possible categories of cases could be have based on the issues within each claim, or is
each claim unique in some way?
Regards,
Mark
® Mark Ellis
Network Operations Director
Finsbury Dials
20 Finsbury Street
From: Thomas P Moran
Sent: 15 December 20: a ce
To: Andrew Parsons ¢ GRO E
Re,
Jane MacLeod ¢ ; Angela Van-
p; Stuart
“>; Rodric Williams
; Tom Wechsler $; Nick Beal
; Victoria Brooks 4,
jon required by 12noon on Monday 18 December [BD-4A.FID26896945]
Subject: RE: PLS
Dear All
Hi, my comments are on the attached. With apologies for the urgency, I would be really grateful if SG members could
come back with comments including a clear ‘agree/disagree’ for first thing Monday as we need to brief Paula on this
before confirming the position with Andy.
For the record, while I have various questions about the details I agree with the recommendation.
Have a good weekend, all
Tom
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From: Andrew Parsons.
Sent: 15 December 2017 10:17
ngela Van-Den-Bogerd /°
Stuart Nesbit —
“3; Rodric Williams
; Mark Ellis
; Tom Wechsler
Ce: Amy Prime ¢
Subject: PLSG - Decision Paper - Decision required by 12noon on Monday 18 December [BD-4A.FID26896945]
All
Please find attached an urgent decision paper on which I should be grateful for your comments. We need a decision by
12noon on Monday (so that we can action this before Freeths are able to submit their own proposal on this subject).
I hope the attached is self-explanatory but if you have any questions, please do feel free to call or email me.
Kind regards
Andy
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP
e: andrew.parson:
womblebonddickinson.com
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andrew parsons! GRO
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