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CONFIDENTIAL AND LEGALLY PRIVILEGED
POST OFFICE GROUP LITIGATION WOMBLE
BOND
Steering Group Meeting: 3 November 2017 DICKINSON
NOTING PAPER: UPDATE ON CMC AND FUTURE WORK STREAMS
This Paper provides an update on the CMC held on 19 October 2017, the directions ordered by the Court
and future work streams. This paper is for noting only.
1. SUMMARY
At the CMC on 19 October 2017, Post Office obtained most of the orders that it was seeking. It secured
its preferred issues for trial and avoided (for now) the Claimants requests for massive disclosure of
documents from Post Office.
The two areas where we were unsuccessful were that (i) the Court re-opened the litigation to new
Claimants and (ii) it refused to order the Claimants to give further information on limitation and settlement
issues.
The full Directions Order is attached. The general thrust of the directions is as follows:
. There will be a Trial in November 2018 regarding the enforceability and fairness of Post Office's
standard contracts. To provide a structure for the evidence to be heard at trial, the parties will
select 6 Lead Claimants. A limited amount of documents with be disclosed in relation to the
Lead Claimants and in relation to certain discrete "generic issues". The Lead Claimants will then
present their claims and Post Office will submit defences to them. The parties will then attempt
to agree a Statement of Agreed Facts for use at trial, failing which each party shall submit its
own evidence by way of witness statements. There will be a further procedural hearing in
September 2018 to check on the preparations for Trial 1.
. There will be a second Trial in March 2019. The parties will submit proposals for the scope of
Trial 2 at the end of July 2018 and the Court will decide on that scope at the procedural hearing
in September 2018. Further directions will then be made for the preparation for Trial 2 through
the period October 2018 to March 2019.
. In parallel with the above, the parties will continue to discuss whether further documents should
be disclosed. There will be disclosure hearings in January / February 2018. These may
indirectly shape and change the scope and preparations for Trials 1 and 2.
. Various other incidental orders were made that were generally advantageous to Post Office.
Overall, the Court has set an intense timetable of actions and given a clear instruction that deadlines
cannot be missed. Although this is manageable, it will require prompt engagement from the business
and may require more PLSG meetings than previously.
2. COMMENTARY ON KEY DIRECTIONS
. Cut-off date: The Claimants asked the Court to re-open the window in which Claimants may join
the Group Action until 21 December 2017. The Judge decided that the Group should remain
open until 24 November 2017 and we expect that at least 70 more Claimants will join the
litigation (in addition to the current 510). During this period we would expect Freeths to carry out
further advertising.
Post Office's Counsel argued that the Group remaining open was disruptive to the litigation
process and Post Office's business and placed a marker that further extensions of the window
would be inappropriate. The Judge however believed that it is in the interests of justice to allow
as many Claimants into the litigation at an early stage as possible.
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. Trial 1: A 20 day trial of the Common Issues (see Schedule 1 of the Order) has been scheduled
for 5 November 2018.
The Judge agreed that "Common Issues" should be tried and substantively agreed with the list of
issues proposed by Post Office, which all relate to Post Office's standard contracts.
Prior to the CMC, Freeths conceded that NT Contracts should be considered alongside the 1994
Subpostmaster Contract and at the CMC the parties only had substantively differing views on 6
of the 26 Common Issues. The Judge reached a compromise position on the majority of these
and agreed that the third parties rights claim being brought by those Claimants who are
assistants should be included (an issue which was opposed by the Claimants).
. Pool of Lead Claimants: Going into the CMC, the Claimants were seeking a pool of 10
Potential Lead Claimants from which 6 Lead Claimants would be selected. Post Office sought a
pool of 20 from which to select 10 Lead Claimants. The Judge ordered a pool of 12 Potential
Lead Claimants and 6 Lead Claimants.
We remain concerned that 6 Lead Claimants may be insufficient to cover the Common Issues.
and this has been raised in correspondence with Freeths. Please see the separate paper on
Lead Claimant selection process and criteria for further details on this matter.
For the sake of clarity, the Court will not be making decisions on the merits of the claims of the
Lead Claimants. These Lead Claimants are simply vehicles for testing factual propositions to be
determined in relation to Post Office's factual contracts (eg. whether Post Office provided a full
copy of the terms to postmasters before the contracts were signed, etc.)
. Disclosure: The Judge agreed with the disclosure proposed by Post Office, namely disclosing
limited categories of information relating to the Lead Claimants, the documents returned by
Second Sight at the conclusion of the Mediation Scheme and access for the Claimants’ expert to
inspect the technical documents held by FJ.
The Judge did not order disclosure of the massive volumes of documents sought by Freeths.
However, the Judge did order that the parties complete an Electronic Disclosure Questionnaire
which will set out in detail the potentially disclosable documents which Post Office holds, the
locations of these and proposals for further disclosure.
Further hearings will be held in January / February 2018 to consider these proposals.
There is therefore still a live risk that Post Office may need to give large volumes of disclosure in
the future.
. Evidence: The Court has ordered that the parties attempt to agree a Statement of Facts to be
used at trial. These are the facts that will set out the background context against which the
Common Issues will be determined.
We are doubtful that the parties will agree this statement given Freeths difficult behaviour to
date. Full witness statements will therefore be needed for trial.
A major point of dispute is the breadth of evidence that is admissible at Trial 1. When
interpreting contracts, there are rules on what types of evidence a Court may take into account.
Broadly speaking, this is limited to evidence of facts that existed before a contract is signed.
However, Freeths are relying on post-contractual issues such as breach of contract by Post
Office and termination of contracts.
Post Office's Counsel set down several markers at the CMC about the importance of this point.
If all of Freeths' evidence is admitted, this would significantly increase the amount of evidence
needed for Trial and may delay the trial date.
. Further Information: The Judge ordered that the Claimants were required to provide further
information on the value of their claims.
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They were also ordered obtain their medical records to substantiate claims for personal injury.
Whilst the Claimants are not required to disclose these records, it is hoped that obtaining the
records will bring to Freeths' attention that the personal injury claims may well be unsustainable.
The Judge was not willing to order further information to be provided in respect of false
accounting, limitation or settlement agreements. We had hoped to secure this information in
order to setup a basis for striking out claims. He did however make clear that these were
important issues, but that he did not want to deal with them at this stage. There may be an
opportunity to revisit these matters at Trial 2.
3. CHRONOLOGY AND KEY DATES
A full chronological list of the actions ordered by the Court is set out at Schedule 1 to this paper. The key
dates are:
23 November 2017 Select 12 potential Lead Claimants for Trial 1 (POL get 6 and
Freeths get 6)
24 November 2017 Group is closed
19 January 2018 Parties to provided limited disclosure relating to Lead Claimants
January / February 2018 Further Court hearings regarding disclosing more documents for
Trial 1 and/or Trial 2
23 February 2018 Reduce pool of Lead Claimants to 6 (POL get 3 and Freeths get 3)
29 March 2018 Lead Claimants to file Particulars of Individual Claims
4 May 2018 Post Office to file Defences to Lead Claimants
27 July 2018 Parties to lodge proposals for scope of Trial 2
11 August 2018 Witness Statements for Trial 1 to be filed
19 September 2018 Further Court hearing to (i) finalise matters for Trial 1 and (ii) agree
scope and timetable of actions for Trial 2
5 November 2018 Start of Trial 1 for 4 weeks
11 March 2019 Start of Trial 2 for 4 weeks
4, ADDITIONAL WORK STREAMS
In addition to the above, there are a number of additional pieces of work to be undertaken outside the
scope of the Court ordered actions.
Live Postmaster Claimants. There will be continuing correspondence with Freeths in relation to
Claimants who are live postmasters (i.e. recovery of shortfalls, suspensions, terminations, access to
branches, etc). Please see the separate paper on this matter for further details.
Preparation of evidence. In order to be ready for pleadings in May 2018 and witness statements in
August 2018, we recommend that we being preparing that evidence now. This will involve interviewing
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witnesses across the business and potentially some who have left (e.g. Lin Norbury). We anticipate that
this may require interviews with between 30-50 Post Office staff. We will be preparing a list of witnesses
and a timetable of interviews, but would welcome support from across the business in making sure that
Post Office staff are available when needed.
Strike out of claims. Post Office needs to decide whether to strike out the claims of conspiracy and
contravention of human rights — please see the separate paper on this matter for further detail.
Strike out of Claimants. Under the GLO, Post Office has a right to object to any Claimant who does not
fall within the scope of the GLO. Post Office objected to approximately 50 Claimants on the basis that
Post Office was unable to identify them and verify they had a claim which falls within the parameters of
the Group Action. Further information on these Claimants is being sought from Freeths but if this
information is not forthcoming then consideration will need to be given as to whether to strike out these
Claimants. Updates will be provided on this topic as it progresses.
Horizon. Deloitte's work is nearing completion and they have generally reached positive conclusions
that Horizon is robust. However, Deloitte have not reviewed the whole of Horizon and during their work it
was suggested that there is a separate part of Horizon that is not under the control of Fujitsu. Further
work is ongoing to scope this area and then a pian will be presented to the PLSG for further
investigations if needed.
Merits Advice. Womble Bond Dickinson will be instructing Counsel to prepare a Written Advice on Post
Office's prospects of success at Trial 1. This will be produced in March 2018 once Lead Cases are
known and documents disclosed. It will be updated in September 2018 before Trial 1 but after all
evidence has been filed. This will allow commercial, legal and operational mitigations to be built around
any risk areas.
Settlement. Post Office should consider again whether there is merit in trying to settle this litigation. In
particular, there is an obvious window for a mediation in September / October 2018 to explore the
possibility of settlement before Trial 1 and in light of any risks flagged by Counsel's advice. We will
return to this point in a separate paper at a later PLSG meeting.
General resource planning. Following this PLSG meeting and the decisions on the papers presented,
a resource planning exercise needs to be undertaken, both in terms of internal staff resource at Post
Office and external legal costs. This will be brought back to the PLSG at a later meeting.
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SCHEDULE 1
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27 October 2017 Amendments to Claim Forms HQ16X01238 & HQ17X02637 I Claimants
to remove misfeasance in public office by 4pm.
3 November 2017 Defendant's to identify the names of Claimants who have Defendant
not provided an approximate value to points 8.1, 8.3, 8.4
and/or 8.5 in their SOI to Claimants’ Solicitors by 4pm.
10 November 2017 Generic Rejoinder and Reply to Defence to Counterclaim to I Defendant
be filed by 4pm.
10 November 2017 Application to strike out the claims of conspiracy and Defendant
contravention of the ECHR to be issued.
Date to be heard by Managing Judge to be fixed.
23 November 2017 Potential Lead Claimants (6 each) to be chosen for the trial Both parties
of the Common Issues by 4pm.
24 November 2017 Cut-off date for service of claim form extended until 4pm. Defendant
6 December 2017 Exchange E-Disclosure Questionnaires Both parties
8 December 2017 Claimants who have not provided an approximate value to Claimants
points 8.1, 8.3, 8.4 and/or 8.5 in their SOI to provide
amended form of SOI by 4pm.
8 December 2017 Deadline for entry on Group Register by 4pm. Claimants
14 December 2017 Bankrupt or Deceased Claimants to serve on Defendant the I Claimants
evidence which they intend to rely to show they have
standing to bring claim.
15 December 2017 Service of completed Schedule of Information by 4pm. Claimants
20 December 2017 Deadline to notify the Managing Judge whether a date fora I Both parties
disclosure CMC is required and if so suggesting 5 dates in
January and February 2018
22 December 2017 Electronic copy of updated Group Register to be served on Claimants
Defendant by 4pm.
19 January 2018 Individual Disclosure by 4pm. Both parties
25 January 2018 Disclose and make available Horizon architecture Defendant
documents (Schedule 2) by 4pm .
25 January 2018 Arrange for Claimant's IT expert to be given access to Defendant
inspect KEL and Schedule 3 documents by 4pm .
25 January 2018 Disclosure and inspection of all documents delivered to Defendant
Defendant by Second Sight by 4pm.
26 January 2018 Provide inspection of Individual Disclosure documents by Both parties
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Group Litigation (listed for 20 days)
Pi
2 February 2018 Claimants claiming P! damages in SOI must take necessary I Claimants
steps to request their existing relevant personal medical
records.
23 February 2018 Agreement of 6 Lead Claimants from Potential Lead Both parties
Claimants by 4pm
29 March 2018 Lead Claimants to file and serve Particulars of Claim by Claimants
4pm.
4 May 2018 File and serve individual Defences in respect of Lead Defendant
Claimants by 4pm.
1 June 2018 Lead Claimants to file and serve Replies to Defences by Claimants
4pm.
29 June 2018 File an agreed Statement of Facts in respect of Common Both parties
Issues by 4pm.
20 July 2018 Before this date, parties to seek to agree proposal for issues I Both parties
to be heard at trial in March 2019
27 July 2018 Deadline to lodge either a single set of proposed issues, or Both parties
a set of proposed issues on behalf of the Claimants and the
Defendant, at the Court by 4pm.
11 August 2018 File and serve Witness Statements in respect of each Lead Both parties
Claimant and Common Issues by 4pm.
14 September 2018 I Lodge Skeleton Arguments and draft Order(s) by 12pm Both parties
14 September 2018 I Agree documents for Second CMC hearing bundle and Both parties
lodge by 4.30pm.
19 September 2018 I Second CMC Both parties
5 November 2018 Common Issues Trial (listed for 20 days) Both parties
24 November 2018 End of Common Issues Trial. Both parties
11 March 2019 Further trial of substantive issues between the parties in the I Both parties
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THE POST OFFICE GROUP LITIGATION
IN THE HIGH COURT OF JUSTICE Claim Nos HQ16X01238 & HOQ17X02637
QUEEN'S BENCH DIVISION
BEFORE THE HONOURABLE MR. JUSTICE FRASER,
BETWEEN:
ALAN BATES & OTHERS .
Claimants
-and—-
POST OFFICE LIMITED
Defendant
ORDER
UPON the Court holding a Case Management Conference on 19 October 2017 and
restoring that Case Management Conference on 25 October 2017
AND UPON HEARING Leading Counsel for the Claimants and Leading Counsel for
the Defendant
IT IS ORDERED THAT:-
COMMON ISSUES TRIAL
1. There shall be a trial of common issues, to determine issues relating to the
legal relationship between the parties, to be listed for 20 days, commencing
Monday 5 November 2018.
2. The trial in paragraph 1 shall be of the issues set out in Schedule 1 to this
Order (for the purposes of this Order, “the Common Issues”).
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Potential Lead Claimants
By 4pm on 23 November 2017, the Claimants’ solicitors and the Defendant's
solicitors shall each select up to 6 potential lead Claimants (“Potential Lead
Claimants”), which will together form a pool of up to 12 Potential Lead
Claimants, for the trial of the Common Issues. Only Claimants who are
asserting claims as Subpostmasters (not including temporary
Subpostmasters) shall be considered for selection as Potential Lead
Claimants.
Individual Disclosure
4.
In respect of each Potential Lead Claimant, by 4pm on 19 January 2018:
(a) The Defendant shall disclose:
i. Any application to be a Subpostmaster submitted by the
Claimant to the Defendant.
ii. Any signed Confirmations of Appointment and/or signed
Preface between the Defendant and the Claimant.
iii. Records of any assistants employed by the Claimant recorded
in the Defendant’s HR database.
iv. Transaction and event data recorded on Horizon for the
Claimant's relevant branch(es) in respect of the period(s)
specified for that Claimant (subject to a limit of 400 months of
data in total and the parties will cooperate in selecting the
most relevant months, which shall include as a minimum,
where available, the last 3 months of each Claimant’s
appointment as a Subpostmaster).
v. Customer Account from POLSAP or Core Finance (as
vi.
vii.
viii.
xi.
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applicable) for each Claimant's relevant branch(es).
Records of Transaction Corrections issued to each Claimant’s
relevant branch(es) as recorded in POLSAP.
Written logs of calls to the Defendant’s NBSC helpline
recorded in either the Defendant’s Dynamics or Remedy
systems (as applicable) as having come from the Claimant’s
relevant branch(es).
Audit Reports in relation to the Claimant's relevant branch(es).
Any suspension letter and any attachment thereto sent by the
Defendant to the Claimant.
Any termination or resignation letter and any attachment
thereto sent between the Defendant and the Claimant.
Any hardcopy former agent debt file for the Claimant.
(b) The Claimants shall disclose:
iii.
Any application to be a Subpostmaster submitted by the
Claimant to the Defendant.
Any signed Confirmations of Appointment and/or signed
Preface between the Defendant and the Claimant.
Any correspondence appointing or terminating the
employment of an assistant of the Claimant.
Any accounting records held by the Claimant showing the
payment of a sum of money to the Defendant in relation to a
shortfall in relation to the Claimant's relevant branch(es).
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v. Any records of any calls from between the Claimant's relevant
branch(es) and the Defendant’s NBSC helpline.
vi. Any suspension letter sent by the Defendant to the Claimant
and any attachments thereto.
vii. Any termination or resignation letter sent between the
Defendant and the Claimant and any attachments thereto.
viii. Any letters of communications between the Claimant and the
Defendant regarding the recovery of sum in relation to any
shortfall.
5. The disclosure to be provided in accordance with paragraph 4(a) shall:
(a) be provided on the basis of a reasonable and proportionate search;
(b) shall be required only insofar relates to the branch(es) named by the
relevant Subpostmaster in his or her Schedule of Information and
during the period for which the Schedule of Information indicates he
or she was a Subpostmaster.
6. Inspection in respect of the documents at paragraph 4 above, shall be
provided by the parties by 4pm on 26 January 2018.
Lead Claimants
7. By 4pm on 23 February 2018 the parties shall seek to agree 6 Lead Claimants
from the pool of Potential Lead Claimants, and in default of such agreement,
the parties shall each select 3 Lead Claimants.
Individual Statements of Case
8. In respect of each Lead Claimant and in relation to the Common Issues:
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(a) the Lead Claimants shall file and serve individual Particulars of Claim
by 4pm on 29 March 2018;
(b) the Defendant shall file and serve individual Defences by 4pm on 4
May 2018;
(c) the Lead Claimants shall file and serve individual Replies by 4pm on 1
June 2018.
Agreed Statement of Facts
9. The parties shall, by 4pm on 29 June 2018, file an agreed Statement of Facts
in relation to the Common Issues.
Witness statements
10. In respect of each Lead Claimant and in relation to the Common Issues, the
parties shall file and serve witness statements by 4pm on 11 August 2018.
EARLY DISCLOSURE
E-Disclosure Questionnaires
11. The parties shall exchange e-disclosure questionnaires, in accordance with
paragraphs 10-12 of PD 31B, by 6 December 2017.
12. The parties shall notify the Managing Judge within 14 days of exchange of
the e-disclosure questionnaires whether a date for a disclosure CMC is
required and if so suggesting 5 dates in January and February 2018 (but
excluding the period 12 — 16 February 2018) for the CMC, time estimate of
half a day. In default of agreement by the parties as to a date, the Court will
fix a date before 28 February 2018.
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Initial Disclosure
13. By 4pm on 25 January 2018, the Defendant shall:
(a) Disclose and make available for inspection the documents regarding
the Horizon system architecture listed in Schedule 2 hereto.
(b) Use reasonable endeavors to arrange for the Claimants’ IT expert,
Jason Coyne, to be given access to inspect at the office of Fujitsu in
Bracknell of the Known Error Log and the documents listed in
Schedule 3 hereto.
(c) Give standard disclosure of, and make available for inspection, all of
the documents delivered up to the Defendant by Second Sight
Support Services Ltd (Second Sight) following the end of Second
Sight’s work in the Post Office Complaint Review and Mediation
Scheme, save where these are subject to legal advice privilege.
14. The disclosure/inspection provided for in paragraphs 13(a) and 13(b) above
shall be conditional on the Claimants’ IT expert first entering into a Non-
Disclosure Agreement with Fujitsu.
FURTHER DIRECTIONS
Extension to Cut-off Date
15. The cut-off date provided for in paragraph 37 of the GLO be extended to
4pm on 24 November 2017. The final date on which claims must be entered
on to the Group Register is 4pm on 8 December 2017. The Lead Solicitors
shall serve an electronic copy of the updated Group Register on the
Defendant by 22 December 2017.
16. All Claimants who, after the date of this Order, issue proceedings to which
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the GLO applies (by virtue of paragraph 1 of the GLO), shall serve on the
Defendant as soon as reasonably possible and in any event by no later than
4pm on 15 December 2017, a completed Schedule of Information in the form
set out in Schedule 3 of the GLO, such information to be provided to the best
of each Claimant’s knowledge and belief and be verified by a statement of
truth signed by or on behalf of each Claimant, without prejudice to the
Claimant seeking, and the Defendant agreeing (such consent not to be
unreasonably refused) any extension of time pursuant to paragraph 38 of the
GLO.
Rejoinder
17. The Defendant has permission to file a Generic Rejoinder and Reply to
Defence to Counterclaim by 4pm on 10 November 2017.
Expert Evidence
18. Each party has permission to rely on an expert in the field of IT in relation to
the operation and accuracy of the Horizon system (“IT expert evidence”).
Medical Records
19. By 2 February 2018, any Claimant who has served a Schedule of Information
identifying a claim for damages for personal injury, shall take necessary
steps to request their existing relevant personal medical records.
Bankrupt and Deceased Claimants
20. The Claimants identified in Schedule 4 and 5 (or their representatives) shall,
by 14 December 2017 serve on the Defendant the evidence on which they
intend to rely to show that they have standing to bring the claims they
advance in these proceedings.
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Quantum
21.
The Defendant do identify to the Claimants’ Lead Solicitors by 4pm on 3
November 2017 the names of Claimants that have not provided an
approximate value to points 8.1, 8.3, 8.4 and/or 8.5 in their Schedules of
Information. Those Claimants’ shall provide those details in the form of
amended Schedules of Information by 4pm on 8 December 2017.
Amendment to Claim Forms
22.
The Claimants shall amend Claim Forms HQ16X01238 & HQ17X02637 by
consent to remove the averment of misfeasance in public office by 4pm on 27
October 2017.
Application to Strike Out
23.
Any Application by the Defendant to strike out the claims of conspiracy and
contravention of the ECHR to be issued by 10 November 2017 and to be
heard by the Managing Judge on a date to be fixed.
ADR
24. At all stages, the parties must consider settling this litigation by any means
of Alternative Dispute Resolution (including Mediation); any party not
engaging in any such means proposed by another must serve a witness
statement giving reasons within 21 days of that proposal; such witness
statement must not be shown to the trial judge until questions of costs arise.
Costs Management
25. The parties shall regularly report their costs to each other and to the Court,
as they pass the following milestones: £500,000, £750,000, £1 million and any
increment of £250,000 thereafter.
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Part 36 and Costs
26.
In respect of any claims that are within the pool of potential lead claims
and/or are agreed or selected as lead claims in this Group litigation,
pursuant to paragraphs 2 and 5 of this Order or further order, and without
prejudice to the effect of any offers which may have been made prior to the
date of this Order, in relation to any offers to settle which are made by either
party after the date of this Order, the following approach shall be applied.
In considering whether it is just to make an order of the kind referred to in
CPR 36.17(3) or (4), the court will take into account, in addition to the
matters specifically identified in CPR 36.17(5), the extent to which pursuing
the case to a judgment has or may reasonably be expected to have assisted
the just and efficient disposal of other cases in the Group litigation.
Electronic Litigation Bundles
27.
The parties shall utilise the Magnum Opus II platform for the purposes of
the Common Issues trial and any other substantive hearing, in accordance
with the Guide to Electronic Trial Bundles and Electronic Presentation of
Evidence.
COSTS ORDERS
28.
29.
30.
31.
The costs of the Defendant's Application dated 26 July 2016, reserved by the
Consent Order dated 14 February 2017, are common costs in the case.
Costs of the Claimants’ Application dated 20 September 2017 for an
extension of time for filing the Generic Reply are common costs in the case.
Costs in respect those Claimants that have filed Notices of Discontinuance
identified at Schedule 6 are reserved.
Costs of this CMC are common costs in the case.
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SECOND CMC
32.
35.
The parties to seek to agree proposals for the issues to be heard at the
hearing in paragraph 34 below before 20 July 2018. Either a single set of
proposed issues, or a set of proposed issues on behalf of the Claimants and
the Defendant, to be lodged with the Court by 27 July 2018.
. There shall be a CMC listed for 1 day on 19 September 2018 (“the Second
CMC”) before the Managing Judge to consider any matters arising prior to
the Common Issues trial, to give further directions on any such matter as
may be required, and to order such further issues as may be agreed (or not
agreed) under paragraph 32 for the hearing referred to in paragraph 34
below.
. There to be a further trial of substantive issues between the parties in the
Group Litigation to be set down on to be listed for 20 days, commencing
Monday 11 March 2019.
The Claimants and Defendant to lodge skeleton arguments and draft
order(s) by 12pm, 2 clear days before the Second CMC, setting out what
order(s) are sought by them at the Second CMC.
. The parties to liaise with one another and co-operate regarding documents
that it will be necessary to put before the Court for the Second CMC, such
documents to be contained in a separate hearing bundle, and to be lodged by
4.30pm, 2 clear days before the Second CMC.
GENERALLY
37.
The parties to be permitted to extend, by agreement, the dates for any steps
ordered by the Court in this litigation with the exception of paragraphs 1
and 34 (trials of issues), paragraph 33 (the Second CMC) or paragraphs 35
and 36 (documents to be lodged at Court for the Second CMC). However,
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such extension by agreement to be subject to the following restrictions:
1. Any date may only be extended on one occasion;
2. Such extension is to be for a maximum extension of 5 working days;
3. Such extension must not prejudice any other dates, or steps, ordered by
the Court.
38. Any documents lodged by the parties with the Court for either the Second
CMC or any other hearing must be lodged in a paginated numbered bundle
in the same form to be utilised by the parties at the relevant hearing.
Documents are not to be sent by post to the Court. Any hard copy
documents that require insertion into the hearing bundles are to be provided
in hard copy by the parties or their solicitors and, if produced too close to the
hearing date (for unavoidable reasons) should be provided to the Court in
the quickest method practicable, bearing in mind that the Court cannot print
large and/or multiple attachments to e mails to the Clerk to the Managing
Judge.
39. The Defendant's application to vacate the trial date in November 2018 in
paragraph 1 for reasons of counsel's availability is refused.
LIBERTY TO APPLY
40. Liberty to apply.
Dated this day of October 2017
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SCHEDULE 1
COMMON ISSUES
References to Subpostmusters in this Schedule are to Subpostmasters who were subject to
either (1) the Subpostmaster Contract (“the SPMC”), or (2) the Network Transformation
Contract (local branch or main branch types) (“the NTC”).
(1)
2)
(3)
Relational Contract
Was the contractual relationship between Post Office and Subpostmasters a
relational contract such that Post Office was subject to duties of good faith,
fair dealing, transparency, co-operation, and trust and confidence (in this
regard, the Claimants rely on the judgment of Leggatt J in Yam Seng Pte v
International Trade Corp [2013] EWHC 111)?
[GPOC 63, Defence 103]
Implied terms
Which, if any, of the terms in the paragraphs listed below were implied
terms (or incidents of such implied terms) of the contracts between Post
Office and Subpostmasters?
(i) GPOC, para 64 [Denied at Defence, paras 104-106]
(ii) Reply, para. 96.1
(For the avoidance of doubt, the implied terms admitted at Defence para
105 are agreed)
If the terms alleged at GPOC, paras 64.16, 64.17, 64.18 and/or 64.19 are to be
implied, to what contractual powers, discretions and/or functions in the
SPMC and NTC do such terms apply?
12
(4)
6)
(6)
)
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Supply of Goods and Services Act 1982
Did Post Office supply Horizon, the Helpline and/or training/materials to
Subpostmasters (i) as services under “relevant contracts for the supply of
services” and (ii) in the course of its business, such that there was an
implied term requiring Post Office to carry out any such services with
reasonable care and skill, pursuant to section 13 of the Supply of Goods and
Services Act 1982?
IGPOC para 63A, Defence, para. 104]
Onerous or unusual terms
Were any or all of the express terms in the GPOC paragraphs listed below
onerous and unusual, so as to be unenforceable unless Post Office brought
them fairly and reasonably to the Subpostmasters’ attention?
(i) para 51.1 and 51.3 (rules, instructions and standards);
(ii) para 52.1 and 52.3 (classes of business);
(iii) para 54.1 and 54.3 (accounts and liability for loss);
(iv) para 56.1.a. and 56.2.a (assistants);
(v) para 60.1 and 60.3 (suspension);
(vi) para 61.1 and 61.3 (termination).
(vii) Para 62.1 and 62.3 (no compensation for loss of office)
[GPOC, para 66; Defence, para. 108]
If so, what, if any, steps was Post Office required to take to draw such
terms to the attention of the Subpostmaster?
IGPOC, para. 66; Defence, para. 108(2)]
Unfair Contract Terms
Were any or all of the terms at paragraph (5) above unenforceable pursuant
to the Unfair Contract Terms Act 1977?
(8)
(9?)
(10)
(11)
(12)
(13)
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IGPOC, paras. 67-68; Defence, para. 109; Reply, para. 49]
Liability for Alleged Losses
What is the proper construction of section 12, clause 12 of the SPMC?
What is the proper construction of Part 2, paragraph 4.1 of the NTC?
[GPOC paragraph 49 and 55; Defence, paras 93-94]
Agency and Accounts
Post Office as agent
Was Post Office the agent of Subpostmasters for the limited purposes at
GPOC paragraphs 82 and 83?
[Defence, paras 124-125]
If so, was the Defendant thereby required to comply any or all of the
obligations at GPOC paragraph 84?
{Defence, para 126]
Subpostmasters as agents
Was the extent and effect of the agency of Subpostmasters to Post Office
such that the principles of agency alleged at Defence 91 and 93(2) and (3)
applied as Post Office contends?
[Defence paras 90-91; Reply, paras 59-60]
Did Subpostmasters bear the burden of proving that any Branch Trading
Statement account they signed and/or returned to Post Office was
incorrect?
[Defence, paras 69(3) 183; Reply, paras 64 and 92]
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(14)
(15)
(16)
(17)
(18)
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Suspension and Termination
Suspension
On a proper construction of the SPMC and NTC, in what circumstances
and/or on what basis was Post Office entitled to suspend pursuant to SPMC
Section 19, clause 4 and Part 2, paragraph 15.1 NTC?
IGPOC, paras 32-3, 49, 60, 64.13 and 99; Defence, paras 66-72, 99 and 142]
Summary Termination
On a proper construction of the SPMC and NTC, in what circumstances
and/or on what basis was Post Office entitled summarily to terminate?
IGPOC, paras 34-37, 61, 64 and 99; Defence, paras 66-72, 100,104-106 and 142]
Termination on Notice
On a proper construction of the SPMC and NTC, in what circumstances
and/or on what basis was Post Office entitled to terminate on notice,
without cause?
[GPoC, paras 49, 61 and 64, Defence para. 100]
True Agreement
Do the express written terms of the SPMC and NTC between Post Office
and Subpostmasters represent the true agreement between the parties, as to
termination (in this regard, the Claimants rely on Autoclenz v Belcher [2011]
UKSC 41)?
IGPOC, paras 50, 69-71; Defence, paras 86, 110-112]
If not, was the “true agreement” between the parties as alleged at GPOC,
para. 71?
IGPOC, para. 71; Defence, para. 112]
(19)
(20)
(21)
(22)
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Compensation for loss of office
On a proper construction of the SPMC and NTC, where Post Office
lawfully and validly terminated a Subpostmaster’s engagement, on notice
or without notice for cause, was the Subpostmaster entitled to any
compensation for loss of office or wrongful termination?
[See GPOC, para. 62; Defence, para. 101]
On a proper construction of the SPMC and NTC, in what, if any,
circumstances are Subpostmaster’s breach of contract claims for loss of
business, loss of profit and consequential losses (including reduced profit
from linked retail premises) limited to such losses as would not have been
suffered if Post Office had given the notice of termination provided for in
those contracts?
IGPOC, para. 131; Defence, para. 171; Reply, paras 81-82]
Subsequent appointments
On a proper construction of the SPMC and NTC, what if any restrictions
were there on Post Office’s discretion as to whether or not to appoint as a
Subpostmaster the prospective purchaser of a Subpostmasters’ business?
IGPOC, para. 62; Defence, para 102]
Assistants
Did SPMC section 15, clause 7.1; NTC, Part 2, clauses 2.3 and 2.5 and/or any
of the implied terms contended for by the parties and found by the Court
purport to confer a benefit on Assistants for the purposes of section 1 of the
Contracts (Rights of Third Parties) Act, and if so which of these terms did
so?
[See GPOC, para. 74; Defence, para. 116; Reply, para. 92]
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(23) What was the responsibility of Subpostmasters under the SPMC and the
NTC for the training of their Assistants?
[See GPOC, para. 56; Defence, para. 95(4); Reply, para. 92]
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1)
2)
4)
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SCHEDULE 2
TECHNICAL DOCUMENTS
Horizon Core Audit Process dated 30 January 2014
Horizon Online Data Integrity for Post Office Ltd dated 28 November 2013
Horizon Data Integrity dated 3 December
High level architectural overview of Horizon Online reference document
(undated)
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SCHEDULE 3
FURTHER DOCUMENTS
The technical documentation regarding Horizon and Horizon Online identified
in paragraph 87 of the Fourth Witness Statement of Andrew Paul Parsons dated 9
October 2017.
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SCHEDULE 4
CLAIMANTS WITH BANKRUPTCIES
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Isabella Armstrong-Wall (No.9)
Manjit Kaur (No. 348)
‘Thomas Brown (No. 32)
Donna Marie Lanaghan (No. 359)
Deirdre Connolly (No. 45)
Martin Holgate Legat (No. 362)
Joanne Foulger (No.60)
Deborah Mann (No. 372)
Donna Gosney (No. 65)
Gordon Martin (No. 374)
Francis Maye (No.114)
Jacqueline McDonald (No. 377)
Dominic Savio (No. 160)
Lewis Lavern McDonald (No. 378)
Hughie Noel Thomas (No. 177)
Doreen Anne McQuillam (No. 384)
Elizabeth Barnes (No. 219)
Senapathy Narenthiran (No. 395)
Chris Dawson (No. 265)
Carl Page (No. 410)
David Charles Blakey (No. 225)
Suzanne Lesley Palmer (No. 412)
Gillian Blakey (No. 226)
James Richards (No. 440)
Lisa Brennan (No. 229)
Sandra Richardson (No. 441)
Lee Castleton (No. 240)
Balvinder Singh Gill (No. 473)
Julie Dell (No. 270)
Rita Threlfall (No. 498)
Lesley Dunderdale (No. 275)
Gail Lesley Ward (No. 506)
Tracey Ann English (No. 282)
Penelope Jane Williams (No. 511)
Richard Andrew Finlow (No.293)
James Withers (No. 514)
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SCHEDULE 5
DECEASED CLAIMANTS
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Claimant No 75 - Marion Holmes the personal representative of Peter Holmes
(deceased)
Claimant No 122 — Jacqueline Barr the personal representative of Enid Mummery
(deceased)
Claimant No 130 - Wendy Ann Owen the personal representative of John Owen
(deceased)
Claimant No 215 - Jasvinder Barang the personal representative of Rajbinder
Singh Barang (deceased)
Claimant No 195 — Karen Wilson the personal representative of Julian Wilson
(deceased)
Claimant No 296 - Menna Garland-Ellis and Jonathan Garland the personal
representatives of Mr Michael Garland (deceased)
Claimant No 477 - Janet Smith the personal representative of David Smith
(deceased)
Claimant No 488 - Sonya Sultman the personal representative of David Graham
(deceased)
Claimant No 497 - David Thornton the personal representative of Amy Thornton
(deceased)
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SCHEDULE 6
DISCONTINUED CLAIMANTS
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Conrad Chau (No.41)
Vijay Parekh (No. 132)
Sarah Javed (No.86)
Usman Kiyani (No. 101)
Mario Lummi (No. 109)
Dermot Lynch (No. 110)
Chelsea News Limited (No. 244)
Anil Kumar (No. 358)
Hums Group Ltd (No. 325)
Ling Ma (No. 368)
Nalin Patel (No. 418)
Potential Estates Limited (No.429)
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