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womblebonddickinson.com
WOMBLE
BOND
DICKINSON
414 December 2017 Womble Bond Dickinson (UK) LLP
Oceana House
39-49 Commercial Road
‘Southampt
Mr J Hartley sonia
Freeths LLP
Floor 3
100 Wellington Street
Leeds
LS1 4LT
- Our ref
By email only ‘APEIAPSI364065,1369
Your ref:
IFR/1803/212876/1/ER
Email: james.hartley@ _
Dear Sirs
The Post Office Group Litigation
Disclosure and future case management
We have been reviewing your client's EDQs and giving thought to the future disclosure and general case
management orders that might be made in this litigation. We write to set out our client's views in
advance of our meeting on 22 December 2017. Please do not feel obliged to respond to this letter
before our meeting but we thought it might help if you had chance to consider the points below in
advance.
Underlying principles
Before addressing the detail of disclosure, we believe it would be helpful to try to agree some underlying
principles and our suggested ones are below. These can of course be discussed at our meeting.
First, the CMC Order envisages the possibility of further disclosure being given but does not mandate
further disclosure nor set out the nature or shape of that disclosure. The parties therefore have freedom
to agree any reasonable proposal, subject to the approval of the Managing Judge.
Second, as we explained in Parsons 4, the wide nature of the issues in the generic pleadings could lead
to vast amounts of disclosure being given by Post Office, at very high cost but potentially for little benefit.
Efforts should therefore be made to control the breadth of disclosure, and hence disclosure costs,
wherever possible.
Moreover, the breadth of documents held by Post Office and the complexity of accessing them means.
that it is difficult to predict at the outset the volume of responsive documents that may be returned by any
search. This may require the parties to adopt an iterative approach, where the scope of disclosure is
kept under review, discussed frequently between the parties and adjusted as needed to keep it
reasonable and proportionate.
Third, in contrast with the above, the EDQs of the Potential Lead Claimants indicate that your clients are
unlikely to hold as many documents as Post Office. The need for, and consequences of, disclosure from
and for both sides will be very different, and therefore each needs addressing separately. What might be
suitable for one party, may not be suitable for the other. Please note this is not an admission that there
is an asymmetry of information between the parties as you have previously suggested; it is the practical
consequence of our client being a large corporate and having retained more documents.
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Fourth, we have in mind the recent Briefing Note on the new approach to disclosure proposed by Lady
Justice Gloster. Although not part of the CPR yet, the Briefing Note (and its draft replacement for CPR
31) is based on the acceptance that disclosure needs to be more limited than that which is currently
undertaken. It concludes that standard disclosure is no longer the default option (paragraph 1 1(ii)).
Instead it provides that disclosure should be issue led, wherever possible targeting narrow classes of
documents relating to a specific issues.
Fifth, to assist with the preparations for the November 2018 trial, we believe that any extra documents
will need to be disclosed by the end of February 2018 so that you have time to review them before
pleading at the end of March 2018 and / or by the end of May 2018 to assist with the preparation of
evidence. If further disclosure is agreed, our client is prepared to volunteer this without a formal Court
order so to speed up the process. Likewise, a realistic assessment will be needed of what is possible in
the limited time available.
Taken together, we believe that these points weigh against ordinary standard disclosure and the
proportionality problems that come with it, and towards disclosure targeted at defined issues. We set out
below for your consideration how we believe that might be achieved in practice.
Disclosure process
If the above principles can be agreed then the process for disclosure could be as follows:
1. Identify issues for disclosure.
2. Identify the sources of documents and / or custodians that might hold documents relevant to
each issue for disclosure.
3. Agree the keywords and other search criteria that might be applied to each source / custodian.
4. Agree a protocol for providing documents (as per our letter of 14 November 2017).
We would suggest that there are two immediate groups of issues for which further disclosure needs to be
considered: documents that are needed for trial in November 2018 (Common Issues Trial) and
documents that might be needed for a further trial thereafter.
Common Issues Trial
For the Common Issues Trial, we believe the focus should be on further disclosure around the 12
Potential Lead Claimants. You will have seen in our EDQ that we are content with quite broad keyword
search terms (eg. Claimant's name, branch, etc.) so long as we can agree to narrow the scope of
sources of documents and custodians against which to apply those search terms. This will turn
materially on the approach adopted to factual matrix. If your client's very broad approach is adopted,
then a much larger number of custodians and sources will be needed and that makes giving further
disclosure very difficult (perhaps impossible) in the time available. If your client were to adopt a more
disciplined approach, limited to only admissible evidence, then only a narrower list of sources and
custodians are needed and further disclosure in a reasonable timeframe should be achievable.
You have refused to provide a draft Statement of Facts (as per your letter of 1 December 2017) which we
sought with a view to clarifying paragraph 46 of the GPOC in relation to the facts on which you intend to
rely at the Common Issues Trial. You say that this should be addressed in individual pleadings and of
course that is very important, but that will be too late to help scope disclosure. This approach is
unfortunate as it deprives the parties of an early draft of the Statement of Facts which would have been a
very useful document at our upcoming meeting. In particular, it would have helped identify the factual
disputes to be addressed at the Common Issue Trial and where further disclosure could have been
useful in determining them.
We would like this topic to be high on the agenda at our meeting and would also like to hear from you as
to how the parties might identify now the factual points of disputes at the Common Issues Trial about
which further disclosure is needed.
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In terms of the timing of disclosure for the Common Issues, we believe this could be given in two
tranches. In the CMC Order our client has already agreed to provide some preliminary disclosure on the
Potential Lead Claimants by mid-January. We think it should be possible to expand the scope of this
preliminary disclosure in a controlled way so that more disclosure could be given by the end of February
to assist with the pleading process. That would involve us agreeing a short list of sources and
custodians from our client's EDQ, pulling that data from our client's systems into an e-disclosure platform
and then keyword searching them for a Potential Lead Claimant's name and branch. We have done
some test runs on this and would estimate that this might generate around 200 — 500 relevant
documents per Claimant. This will be easier to discuss in person and so we have not set out further
details in this letter.
After this preliminary disclosure, there could be a further tranche of disclosure given by the end of May
2018 ie. before the Agreed Statement of Facts is filed at the end of June 2018. We believe that this
disclosure should be for specific classes of documents that go to the Common Issues (in same way that
we identified for the CMC that the technical documents held by Fujitsu were a class of documents that
could be readily disclosed). Again, this is something that could be usefully discussed at our meeting.
Future of this litigation
We appreciate that the CMC Order does not require the parties to submit proposals until July 2018 for
the future of this litigation beyond November 2018. However, we believe that the scope of the disclosure
to be agreed now should, with a view to maximising efficiency, be tied into the future course of this
litigation and that there may be advantages to setting that in motion earlier than July 2018. We therefore
set out below our client's views on the possible future of this litigation so that we might then explore
whether there are any issues on which appropriate disclosure could be given during 2018 in order to
prepare for hearings in 2019 and beyond.
The Court will at some stage need to address questions of breach, causation and loss in order to
determine the claims put forward by the Claimants. We have explained previously that the Claimants’
claims are diverse. Their heterogeneity means that finding "Common Issues" around breach, causation
and loss will be challenging. A plan will therefore be needed to address the fact that there are 562
claims each proceeding on subtly, but materially, different factual bases.
One way to tackle this would be the selection of "Lead Cases" for an "Omnibus Trial" which would
determine all issues of liability and quantum in a selection of Lead Cases. This would use the Group
Litigation model to the greatest effect and build upon the results of the Common Issues Trial in
November 2018. A GLO was recently used in this manner in “the Construction Blacklisting Group
Litigation” presided over by Mr Justice Supperstone in this Division where there were some 3,000 claims
and a trial of 20 Lead Cases was ordered.‘ All the issues in such cases would be determined, and in
doing so they may also help determine the following issues which are relevant to many of the claims:
1. Whether any defect in Horizon was the cause of a loss in a Claimant's branch?
2. Whether a Claimant or Post Office was at fault for the loss in a branch?
3. Whether a Claimant was inadequately trained or supported?
4, Whether a Claimant's claim is time-barred or settled?
5. Whether the termination of a Claimant's contract was unlawful?
6. Whether a Claimant's losses were caused by an unlawful act of Post Office?
‘We have now retained David Cavender QC onto our Counsel team - who was the lead silk for the
consortium of construction companies involved in that litigation and who has broad experience of Group
Litigation more generally.
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To be clear, we do not see these as true “Test Cases” as might be the case in a more classic Group
Litigation scenario such as a major accident or product liability claim. As each Claimant's case is so
factually sensitive, it is unlikely that any Test Case would be sufficiently analogous to other cases in the
Group such that it could create a binding precedent or automatically determine some key issue in a large
number of those other cases. However, many of the Claimants’ claims appear to follow similar patterns
of events, so a clear decision on a Lead Case (or group of Lead Cases) will give a strong indication to
the parties of the likely outcome of other similar cases, thus creating more common ground between the
parties on which this litigation might be resolved without the need for 562 mini-trials or some other
equally time-consuming process.
For example, following the Omnibus Trial, we would hope that it would be possible to put most of the
claims into sub-groups, with each sub-group being reflective of a particular Lead Case or issue that was
decided at the Omnibus Trial. That would then allow the parties to see which claims could be
discontinued, conceded, settled or subject to further litigation, depending on their status and prospects of
success.
The above list of issues is of course only the tip of iceberg when it comes to the breadth of the issues
that might be addressed. To be of maximum utility, the parties would need to agree on a list of issues
that are the most likely to advance the widest number of cases towards resolution and then carefully
select Lead Claimants that are, as far as possible, representative of the wider Group on these issues.
This, we believe, will require more and different Lead Claimants to the Lead Claimants selected for the
Common Issues Trial. We would envisage needing an initial pool of perhaps 30 Lead Claimants, with
that being reduced to around 16 Lead Cases which would be determined at a single trial. We also
suggest that 4 Lead Claimants are selected as “reserves” in case any of the chosen 16 suffer from
unforeseen difficulties.
An Omnibus Trial would require individual pleadings for each of the 20 Lead Claimants (the 16 chosen
cases and 4 reserves) - covering all aspects of breach, causation and loss. Those pleadings will be
particularly important as each of those 16 would, in effect be seeking to represent (in a broad sense)
some 35 claims. It would also require further disclosure, witness evidence and expert evidence. These
would need to build on the findings from the Common Issues Trial. Indeed, it should be easier to plead
out issues of breach, causation and loss once the contractual duties between the parties have been
established.
An Omnibus Trial of the type we have described above would be a significant undertaking but we believe
something like this will be the ultimate path for this litigation. We would therefore like to try to accelerate
the preparation for an Omnibus Trial (or some suitable alternative) where possible.
In our view, it should be possible to do some of the preparatory work for it during 2018, namely the
selection of Lead Cases and some preliminary disclosure on those Lead Cases. It may also be possible
to agree some discrete classes of documents that could be disclosed on obviously relevant issues that
can be sufficiently defined, like has been done with the technical documents for Horizon.
It would also be beneficial to prepare for the Omnibus Trial without waiting for any hearing that might
take place in March 2019 (being the hearing window currently being held by the Court). We would
suggest that the parties immediately start pleading the Lead Cases once judgment was given in the
Common Issues Trial (ie. from around January 2019).
This would mean that the Omnibus Trial would be either instead of, or run in parallel with, a hearing in
March 2019. As things stand, we are not opposed to a hearing in March 2019, but it is difficult to find a
discrete “common issue” that can be quickly prepared (from September 2018 onwards) and usefully
determined at a hearing in March 2019 — but we would very much welcome any ideas you might have in
that regard. Our current thinking is that the most viable topic (although it still faces some difficulties) for a
hearing in March 2019 would be limitation issues and perhaps determining whether those Claimants who
have settled may continue with their claims. We would welcome your thoughts on possible topics for
March 2019 so we can try and find some common ground well in advance of July 2018.
As can be seen from the above, we believe that it is important to start thinking about the long term
strategy for this litigation now because it may have short-term implications on the Court's orders for
disclosure at the hearing on 2 February 2018. We are also keen to make progress in finding a route to
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conclude this litigation, rather than dealing with it piecemeal. If the parties were to wait until the CMC in
September 2018 or until after the March 2019 hearing before addressing questions of liability and
quantum, this would add at least 12 months to the overall timetable for this litigation. We would therefore
welcome the opportunity to discuss the long term plan for this litigation with you. This could then be
discussed with the Court at the 2 February 2019 hearing and a long term strategy agreed upon.
Possible plan
Drawing all the above strands together, we tentatively suggest that a further case management order
could be drawn up along the following lines:
41. Additional preliminary disclosure on the Potential Lead Claimants for the Common Issues
Trial (scope to be agreed): End of February 2018
2. Disclosure of agreed classes of documents for the Common Issues Trial (scope to be
agreed): End of May 2018
3. Parties to select pool of 30 Lead Claimants for an Omnibus Trial (process for doing this to be
agreed): May 2018
4. Preliminary disclosure to be given on Lead Claimants for an Omnibus Trial (scope to be
agreed): July 2018
5. Parties to select 20 Lead Claims for the Omnibus Trial from the pool: September 2018
6. Statements of Case:
(a) Individual Particulars of Claim: March 2019
(b) Defences: June 2019
(c) Replies: July 2019
7. Selection of 16 Lead Claimants for trial from 20 cases: August 2019
8. Disclosure: October 2019 (to begin following submission of the individual Particulars so to
maximise the time available)
9. Witness statements: February 2020
10. Expert evidence:
(a) Reports: April 2020
(b) Reply reports: June 2020
(c) Joint statement: July 2020
11. Trial (10-12 weeks) starting 1 October 2020
We recognise and acknowledge that a trial in October 2020 looks like a long time away and is far from
ideal. We say this both generally and having regard to the indications given by the Managing Judge at
the CMC. The main reason for this date being so far off is that it cannot be expected that the parties start
pleading out the Lead Claims until the result of the Common Issues Trial is known and that will be
December 2018/January 2019 at the earliest. It will then take some 18 months from then to properly
prepare a complex trial of some 16 claims which (if carefully selected) will raise a multitude of issues.
That said we are very open minded about this — and about whether the time periods set out in parts of
this indicative timetable can be reduced to have a trial in, say, May — July 2020 which we recognise
would be preferable.
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Our meeting
We are prepared to discuss all of the above at our meeting but appreciate that there is a lot to consider in
this letter. We would therefore propose the following outline agenda for our meeting on 22 December:
e Underlying principles of disclosure
e Your suggestions for disclosure
e Disclosure needed for the Common Issues Trial
e Protocol for giving disclosure
Our client is not wedded to the proposals in this letter: they are just initial ideas to hopefully encourage a
constructive dialogue. We would welcome other ideas from your clients.
Yours faithfully
Womble Bond Dickinson (UK) LLP
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