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Private & Confidential — Subject to Legal Privilege
Meeting with Baroness (Lucy) Neville Rolfe, Parliamentary Under Secretary of State - Tuesday 19
July 2016
Background
1.
You most recently met the Minister on 27 April 2016. During this meeting you provided an update
on the progress made in respect of your Review. You also noted that given legal proceedings had
been issued against POL, it was only right that POL considered what implications these may have
‘on the shape of any output from the Review.
POL has since received a Letter of Claim and expects the claim to be formally ‘served’ before the
10 August deadline. Further, you have received very strong advice from Leading Counsel that the
work being undertaken under your Review should come to an immediate end. It is also likely that
similar points will be addressed through the litigation process.
The Minister’s office have confirmed that they understand (and indeed anticipated) the need for
prioritising the litigation and therefore, that work would cease on your Review.
The Minister has been briefed by her officials. Our understanding is that she does not wish to
challenge this decision, but would like to better understand the reasons underpinning the legal
advice received (see 13 below).
Subsequent to the meeting on Tuesday we intend to send the Minister the drafted letter
previously shared with you, which will formalise your decision. Further, it has been proposed that
the POL legal team should provide a briefing to BIS lawyers, and we are happy to facilitate this.
Speaking Notes
6.
My original undertaking was to review whether POL’s handling of the complaints made by
Applicants to the Complaint Review & Mediation Scheme had reasonably considered
postmaster's clams and appropriately defended Post Office's own position..
POL appointed Jonathan Swift QC to conduct an independent assessment of the work that had
been done and provide advice as to whether anything more could now reasonably be done to
address these complaints.
My letter of 4 March 2016, set out further information about the approach to the Review, the
scope of the work undertaken and Jonathan Swift QC’s initial findings. It also set out my plans for
bringing this piece of work to a conclusion. Good progress had been made in all areas, despite it
being complex, inherently costly, and time consuming — particularly the technical testing of the
Horizon system itself.
However, in April POL was notified that proceedings had been commenced against it, in the High
Court, on behalf of 91 named claimants. Further, there are suggestions that there are at least as
many further claimants keen to join a ‘class action’ who have not done so to date.
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10.
11.
12.
13.
14.
15.
Though at this stage there is still no information available as to the quantum of the claims or the
basis on which the quantum could be estimated, the background to the claim covers a very wide
scope of issues — including those which were being addressed through my Review.
The business is, naturally, having to take these Court proceedings extremely seriously. We have
engaged one of the most eminent Leading Counsel (Anthony de Garr Robinson QC) in the
preparation of our defence, supported by a firm of solicitors with detailed knowledge of the
matters since they have acted for us since the first complaints began to be received.
I have received very strong advice that the work previously being undertaken under my Review
should come to an immediate end and, instead, be carried forward under the scope of the
litigation.
Once litigation is contemplated, confidential investigations and work done for the dominant
purpose of furthering the litigation will be covered by litigation privilege. Any work going forward
should therefore be driven by the needs of the litigation and not for other reasons, such as my
Review, so to maximise the protection of privilege. If work is not covered by privilege, this may
force Post Office to disclose sensitive material to the Claimants, undermining Post Office's
position in the litigation.
Given my duties to POL as a director and its Chairman, I believe I must act in accordance with this
advice. I have therefore instructed that the work being undertaken pursuant to my Review
should now be stopped.
However, the extent to which this work will cease is essentially one of form rather than substance.
Further, I do think it is important to note that:
- The work undertaken to date remains valuable and valid and will likely be continued,
albeit in a different context;
- The claim against the Post Office is explicit, and records the actual detail (rather
than our educated appreciation) of the complaints against POL, enabling us to
address the precise grievances being made;
- The claim covers the same ground, and much other, as that envisaged by my
Review, providing reassurance that the process will surface a much wider range of
the issues to a much fuller extent;
- ACourt process, by definition, offers the parties to it the ultimate assurance of
independence in the examination of evidence and the determination of liability in a
way that no other forum or process can; and
- The proceedings will lead to a final determination of these matters, which is the
interest of all parties, and has so far eluded us, despite our best efforts.
- The parties to the litigation include the high profile cases of which parliamentarians
and other stakeholders (such as Lord Arbuthnot) are aware. It is therefore
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incumbent on those Stakeholders to accept that those postmasters have elected to
pursue their claims through the courts and the Board of PO believes that this is now
the appropriate forum through which the Postmasters’ concerns should properly be
determined.
The Minister may ask whether POL would consider re-opening the Review, should the Claim not be
‘served’ or fall away. If it is raised, our view is that such a commitment should not be made and
below are some speaking notes to that effect.
16.
17.
18.
19.
20.
My Review was begun on the basis that it might provide Post Office with an assurance that it had
reasonably considered postmaster's claims and appropriately defended its own position.
If the litigation were discontinued by the Claimants, this would be a clear indication that they
(and their legal team) do not believe their claims have merit. It should be noted that the
Claimants have a third party source of funding so they have had the benefit of full legal advice
and the litigation will not be blocked on cost grounds.
It is also clear from the litigation, and echoed in the interviews I undertook and reports in the
media, that my Review, albeit conducted at relative arms’ length from the business, would still
be viewed as an essentially ‘internal’ exercise. There seems therefore little benefit in re-engaging
in an expensive and time consuming exercise which would be of materially less value to
postmasters than the independent investigations and advice they will have received from their
own legal team through the litigation steps taken to date.
In any event, the 26 cases now under consideration by the CCRC (18 of which are named claimants
in the Group Litigation) would continue. The CCRC's role is to consider whether any of these
cases could have been subject to a miscarriage of justice and so this avenue of investigation will
take place come what may.
Further, it is worth noting that as a result of the issues raised through the investigation of cases
as part of the Scheme, many changes have been made to improve POL’s operating practices,
including in relation to training and the type of support offered to Postmasters. We also monitor
branch performance more closely with a view to identifying earlier problems that Postmasters
are having, so that where possible, issues do not escalate. We would expect any equivalent
learning arising from the litigation to be similarly addressed.