POL00026685
POL00026685
MINUTE
Working Group for the Initial Complaint Review and Case Mediation Scheme
16 September 2014
MATRIX CHAMBERS
Attendees
Sir Anthony Hooper (Chair)
Alan Bates (JFSA)
Kay Linnell (JFSA)
Ron Warmington (Second Sight)
lan Henderson (Second Sight)
Chris Holyoak (Second Sight)
Kim Evans (Second Sight)
Chris Aujard (Post Office)
Belinda Crowe (Post Office)
Angela Van Den Bogerd (Post Office)
Rodric Williams (Post Office)
David Oliver (Post Office)
Andy Parsons (Bond Dickinson)
Agenda
1. Cases for decision
2. CEDR paper
3. Howe & Co correspondence
4. Letter to all applicants and advisors re: confidentiality (JFSA)
5. Post Office paper on Suspense Account
6. Standing case agenda (Items 6 — 13)
Including:
e Second Sight schedule delivery
¢ Post Office schedule
POL00026685
POL00026685
1. Cases for Decision
The Chair opened the discussion of the cases for decision by the Working Group. JFSA restated
its position that where Second Sight had made a recommendation for mediation the Working
Group had no role. The Chair explained that the matter of the role of the Working Group in
deciding whether a case should be mediated had been decided — he had heard representations
and made his ruling that the mere fact that an application had been accepted is not determinate of
the fact that it would be mediated and Working Group’s role was to decide.
JFSA registered a standing vote to mediate all cases where Second Sight so recommended and
declined to participate in discussions on those cases.
The Chair asked JFSA to assist him in discussions by offering a view and Post Office expressed
the view that there were important issues that would benefit from discussion in all of the cases on
the agenda and that input from all Working Group members would be welcome.
The discussion then moved to the cases:
Mo02
The Chair summarised the case in the Second Sight Review and the Post Office Investigation
Report. In discussion the following points were made:
« Post Office was concerned that the case was old and lacked sufficient content on which
mediation could be based.
e Post Office pointed out that the Scheme documentation made it clear that old cases or
those lacking information might not proceed to mediation.
« Second Sight explained that there were a small number of areas where further information
had come to light which they felt meant the case was worth mediating as they hoped that
mediation may achieve some form of closure.
e JFSA supported mediation in this case and did not feel that the absence of
evidence/information (destroyed by Post office under its retention policies) should lead to
an applicant being penalised, especially as they did not consider that Post Office
investigated the case properly at the time.
e JFSA considered that consequential losses flowed from the failure to investigate and
justified mediation.
e Post Office agreed, with reservations, to mediate the case so that if mediation is not
successful as a result of lack of information that could be fed back to the Working Group (in
a way which did not breach confidentiality) to inform future decisions on suitability for
mediation in cases where there is an absence of evidence/information.
ACTION: Case M002 to proceed for a half day mediation.
moog
The Working Group agreed, after a brief discussion that this case was similar to M002 in terms of
age and availability of information and should therefore be treated the same.
ACTION: Case M009 to proceed for a half day mediation.
POL00026685
POL00026685
M015
Second Sight presented its findings on case M015. In discussion the following points were made:
* Second Sight noted that it was a weak case for mediation and there was no dispute that the
Applicant had committed false accounting.
¢ Second Sight noted the clear articulation of consequential loss in this case.
e Second Sight also raised an issue of a “Second Black Ops team” within Post Office—
referred to as “Thematic 18” — which was allegedly incentivised to bring about the cheap
closure of branches and who had been involved in the improper transfer of branches to
other parties. Second Sight offered no evidence or information and the idea was dismissed
by Post Office in “the strongest possible terms”.
e Second Sight concluded that, in common with a number of other ‘false accounting’ cases
they had no idea what caused the loss. If the Applicant had not falsely accounted the
losses would have shown up earlier and would have been easier to investigate.
¢ Post Office raised the handling of consequential losses — explaining that where it was not
possible to identify the cause of a loss in branch, it was not possible to determine who was
responsible for any resultant consequential loss. On this basis, the existence of
consequential loss alone was not a ground for putting a case through to mediation.
« JFSA commented that Post Office had destroyed the evidence and that as a matter of
courtesy the case should be mediated to explain to the applicant where the money had
gone.
« Post Office set out that the key issue was that the applicant’s husband had committed false
accounting which was a breach of the applicant's contract and that the facts of the case are
the same facts that a charge of false accounting relies on.
¢ Post Office noted that the case had been investigated thoroughly and it had also sought
advice from external advisors. The investigation has identified no evidence which suggests
that the prosecution is unsafe, and Post Office has real concerns about whether it would be
possible to mediate the case as it cannot consider any facts which have already been
determined as part of the false accounting charge and therefore did not support the
recommendation to mediate.
The Chair exercised his casting vote in favour of a half day mediation. He expressed the view that
this was a classic case for mediation, there was no evidence of theft and that the cause of the
losses was unknown. In those circumstances, and with the significant sum of money involved, he
considered the case suitable for mediation.
Post Office noted the Chair's decision but expressed concern as to whether it would be possible to
mediate this case given that it rests on the same facts upon which the prosecution relied.
M019
Second Sight introduced the case as a weak case for mediation and that the applicant had no
Professional Advisor but noting the large lottery related losses. In discussion:
e The Chair noted that if Second Sight considers a case weak because it has not been put
together by a Professional Advisor that point should be made in the CRR.
¢ Post Office noted that the applicant had repeatedly admitted to falsifying his accounts and
was claiming an excessive level of consequential loss of hundreds of thousands of pounds.
On this basis Post Office struggled to see how mediation could be constructive.
POL00026685
POL00026685
¢ Post Office also noted that they had been told that applicants have been encouraged to put
in high claims, allegedly by members of the Working Group and that this was hindering the
ability to engage constructively with applicants.
¢ The Chair exercised his casting vote in favour of mediation.
ACTION: Case M019 to proceed for a whole day’s mediation.
M030
Second Sight introduced the case noting that it was clear that the applicant's grasp of how to carry
out routine transactions was seriously inadequate and that they were either incompetent or had not
been provided with adequate training. They highlighted that the Applicant accepted that she had
committed false accounting but now denies theft despite previously admitting to, and being
convicted of, theft of £94k.
At this point JFSA strongly objected to the approach that Post Office was taking as it set out why it
did not wish to mediate cases. JFSA said that they would leave the meeting. Post Office rejected
the JFSA position noting that their behaviour and the manner of their challenge was inappropriate.
Following this the discussion of the case resumed and JFSA remained in the meeting.
The Chair questioned if there was any new information that might cast the plea into doubt. Post
Office clarified that there was not, and noted that all cases were reviewed once the investigation
had been completed to check if the prosecution was still sound and if there was a need for
additional disclosure. Given this and the fact that the applicant is seeking to have their conviction
overturned Post Office asserted that mediation was not the appropriate route to resolve the
Applicant's complaint.
The Chair decided to reserve judgement on the suitability of this case for mediation and would
provide a written decision with reasons.
M039
Second Sight introduced the case noting that the Applicant was muddled and the issues were well
explained in the Post Office investigation report. Second Sight further noted that this was another
weak candidate which was very old. It also shared with other cases already discussed issues
around false accounting to conceal losses. The Chair noted that Second Sight's investigation into
hardware and telecommunications failures was still ongoing in this case and on that basis decided
that the decision on this case should be deferred until Second Sight had completed their
investigation and in particular the issues set out at Para 5.3 of the CRR.
ACTION: Second Sight to resubmit the case when they have resolve the matters set out at
Para 5.3 of the CRR.
M057
Second Sight introduced the case and in discussion the Chair confirmed that Second Sight
believed that the applicant was responsible for the loss and that there was no new information that
would change this position. On that basis and given paragraph 4.5 of the CRR the Chair exercised
his casting vote against mediation.
ACTION: Secretariat to draft a letter for the Chair to M057 informing the applicant of the
Working Group’s decision that it should not progress to mediation.
POL00026685
POL00026685
M062
Second Sight introduced the case noting that it was again a weak case and old. Second Sight
noted that the applicant had made good the losses and accepted a caution for false accounting -
she was not looking to have that set aside. Second Sight explained that they did not know the
cause of the loss in this case as again false accounting had effectively masked the underlying
transactions and therefore they were not able to identify the transactions that gave rise to the loss.
In discussion it was noted that some points of both the CRR and how it reflected Post Office’s
position as expressed in the meeting could be set out more clearly. On that basis the Chair
requested that Second Sight revisit the CRR and resubmit it before the Working Group considers
whether it is suitable for mediation.
ACTION: Second Sight to revisit the CRR in case M062
M076
Second Sight set out the background to the case setting out the loss and that on the balance of
probabilities they did not believe that Post Office was responsible for the loss.
The Chair exercised his casting vote against mediation on the basis of the conclusion set out in
paragraph 4.6 of the CRR.
ACTION: Secretariat to draft a letter for the Chair to M076 informing the applicant of the
Working Group’s decision that it should not progress to mediation.
At the conclusion of the case review Post Office reminded the Working Group that it would need to
run all of the decisions through an internal process so as to filter the cases with regards to the
factual matrix upon which the case rests, specifically where the case involved a criminal conviction
and thus whether it is appropriate for Post Office, as a party, to mediate.
2. CEDR letter
There was a brief discussion of the CEDR letter. The Working Group accepted the CEDR
explanation and proposal for appraising the Working Group of mediation outcomes.
3. Howe &Co (and Aver) correspondence
The Working Group briefly discussed the Howe & Co correspondence. It addressed the following
outstanding issues in the correspondence:
« Whether mediation should be a 2 stage process — The Working Group agreed that this
proposal misunderstood the nature of mediation and rejected it.
« Whether further funding should be provided — The Working Group agreed that no
further funding should be provided.
« Whether all cases should have their mediation delayed until the Part Two Report was
finalised — The Working Group agreed that it should not delay sending cases for mediation
and should Howe & Co wish to do so this was a matter for CEDR and the parties.
5
POL00026685
POL00026685
e Whether Post Office should be allowed to contact Howe & Co clients directly — The
Working Group agreed that it was a matter for Post Office but noted that direct contact
between the parties is a necessary part of mediation.
e Whether Howe &Co should be granted more time to consider cases — the Working
Group agreed that should Howe & Co require more time to consider specific cases they
could request an extension to do so.
ACTION: Secretariat to draft a letter to Howe &Co (and Aver) from the Chair.
4. JFSA letter about confidentiality reminder following the reporting of the Part Two
Report in the media
JFSA had not drafted a letter and explained that they would prefer to remind applicants and
advisors of the need for confidentiality via one of their routine circulars to applicants rather than
drafting a letter from the Chair.
ACTION: JFSA to circulate wording on confidentiality
5. I Suspense account paper
Post Office explained that they had provided Second Sight with the paper (now uploaded to
Huddle) several weeks ago and had received no substantive feedback on the paper only a request
for the underlying data. Post Office explained that this request was too broad and they could not
see how it linked to any case that Second Sight investigating. Second Sight undertook to provide
their further specific question(s) in writing to Post Office.
ACTION: Second Sight to write to Post Office with specific questions on the suspense
account.
Standing Agenda
6. INew Case Questionnaire Responses
Case No. Status
144 Post Office to confirm scheduling at next call.
7. Priority cases
Case No. I Status
Moos Approved for mediation 19 August.
M052 Part Two sent to applicant 26 August. SS Final report due 11 September.
M073 Overdue case see agenda item 10 (ii)
M086 Investigation has been prioritised — report due 17 November
M119 Investigation has been prioritised — report due by 9 October.
M143 Part Two sent to applicant 26 August. SS Final report uploaded 14 September.
6
POL00026685
POL00026685
8. Bankruptcy cases
Case No. I Status
Mo01 Part Two sent to applicant 26 August. SS Final report due 11 September.
Mo15 Final report received 05 September. With WG to decide whether it goes to
mediation.
M019 Part Two sent to applicant 26 August. SS Final report uploaded 14 September.
M029 Draft CRR & Part Two sent to applicant 02 September. SS Final report due 17
September.
M030 Part Two sent to applicant 26 August. SS Final report uploaded 14 September.
M032 Passed to SS 28 August, Draft CRR due 17 October
M036 PO investigation on-going, report due by 22 September.
M069. PO investigation on-going, report due by 10 November.
M081 PO investigation on-going, report due by 8 December.
Mos9 PO investigation on-going, report due by 10 November.
M100 PO investigation on-going, report due by 20 October.
M118 PO investigation on-going, report due by 13 October.
M122 PO investigation on-going, report due by 6 October.
M128 PO investigation on-going, report due by 22 December
M150 PO investigation on-going, report due by 8 December.
9. Post Office Investigation Progress
The Working Group discussed Post Office’s schedule that it had agreed several weeks ago. The
Working Group reconfirmed that schedule and noted that it was important that the investigations —
particularly
Kay Linnell
information
those into cases with criminal convictions were thorough.
commented that she did not believe the reports were thorough and had seen
that would undermine the Post Office prosecutions. The Chair commented that if she
had such information it must be disclosed to Post Office as the prosecutors. Post Office endorsed
the Chair’s comments and confirmed this should be done as a matter of urgency.
i) New scheduling to note
N/A
ii) Overdue cases
NIA
10. Cases with Second Sight to review Post Office Investigation
i) New scheduling to note
Case No. Date passed to SS SS planned scheduled delivery date
M077 12 September 14 November
ii) Overdue cases
POL00026685
POL00026685
Case Date passed to I SS planned scheduled SS revised scheduled delivery
No. ss delivery date date
M011 23 May 12 September
M017 12 May 05 September Delivered on 16 September
M018 27 May 05 September Delivered on 16 September
M021 08 May 05 September Delivered on 16 September
M058 29 July 12 September
M065, 25 July 12 September
M072 27 May 12 September
M073 01 August 05 September
M126 06 June 05 September
Second Sight said they would deliver their outstanding overdue reports within the next seven days.
Post Office expressed concern about Second Sight’s productivity as they had not been delivering
three reports a week despite telling the Working Group on 11 September that they were doing so.
Second Sight does not recognise Post Office’s description of the assurances give to the Working
Group.
Post Office expressed concern at the productivity levels and that, in its view, Second Sight had
misled the Working Group about the numbers. Post Office considered that the length of time and
rate of delivery was unacceptable given the very significant amounts of money that Second Sight
had invoiced so far. Post Office will write to Second Sight.
Second Sight accepted the figures and noted that they were behind in their production of reports
and currently had a 7 week backlog but maintained they had been transparent with the secretariat
about scheduling data. There were a number of reasons for the delays, notably the production of
the Part Two Report. Second Sight also noted that they were not contractually committed to
produce three reports a week although they accepted that they had repeatedly committed to do so
to the Working Group. Second Sight explained that they were now in a position to reduce the
backlog and they expected in future to produce 4 reports a week and definitely no less than three.
The Working Group noted the rate of productivity with some concern given its impact on the
applicants and the length of the Scheme and agreed that the table of Second Sight’s weekly
productivity should be maintained and discussed at each Face to Face meeting.
11. Cases that Second Sight have reported on
Case SS draft Deadline for SS final report wee Sent to
No. report issued comments completed / due WG decision CEDR
Moo1 17 July 2014 04 Sept2014 11 Sept 2014 - -
Mo02 18 July 2014 04 Sept2014 14 Sept 2014 Mediate ‘2 day* -
Moos I 30June2014 I 05 July 2014 I 04 August 2014 Mediate ae
POL00026685
POL00026685
Moog 28 July 2014 I 06 August 2014 I 20 August 2014 I Mediate ‘2 day*
Mo14 I 28 July 2014 7 August 05 Sept 2014 Mediate
MO15 I 28July2014 I GAugust2014 I O05Sept2014 I Mediate % day*
M019 I 08 Aug 2014 I 04Sept 2014 I 14 Sept 2014 nai
Mo29 I 27Aug 2014 I 10Sept2014 I 17 Sept 2014 -
Chair to
Mo30 I 31 July2014 I 04 Sept2014 14 Sept2014 I provide written
decision*
M035 I 11 Aug 2014 I 04Sept2014 I 11 Sept 2074 -
Decision
deferred
Mo39 I 27 Aug2014 I 05 Sept 2014 14 Sept2014 Ging further
SS enquiries.*
M052 I 28July2014 I 04Sept2014 I 11 Sept 2014 -
M054 I 29 May 2014 06 June 2014 11 June 2014 Mediate
M057 I 04 July2014 I 01 Aug 2014 08 Aug 2014 Not Mediate
Second Sight
Mo62 I 20 June 2014 I 22 July 2014 31 July 2014 I to revisit the
CRR.*
M066 I 11Aug 2014 I 04Sept2014 I 14 Sept2014 Mediate
M076 I 06 June 2014 17 June 2014 20 June 2014 Not mediate*
M079 I 20 Aug 2014 I 04 Sept 2014 14 Sept2014 Mediate
M143 I 29 July2014 I 04Sept2014 I 14 Sept 2014 Mediate
See decisions set out in agenda item 1 above.
12. Any other queries raised by Applicants / Advisors
N/A
13. AOB
Next face to face meeting on 17 October at Matrix Chambers.