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Message
From: Jane MacLeo
Sent: 18/09/2018 19:
To: Rodric Williams
cc: Mark Underwood §, Andrew Parsons
Subject: Re: Group Litigation - Draft Update re: CMC on 19.09.18 - SUBJECT TO LEGAL PRIVILEGE
Thanks Rod, I’m happy with this. If you send to UKGI, I’ll send to Paula & Al.
Jane MacLeod
Group Director Legal, Risk & Governance
From: Rodric Williams
Sent: Tuesday, September 18, 2018 6:05:26 PM
To: Jane MacLeod
Cc: Mark Underwood1; Andrew Parsons
Subject: Group Litigation - Draft Update re: CMC on 19.09.18 - SUBJECT TO LEGAL PRIVILEGE
Jane —I set out below a draft briefing note on tomorrow’s hearing for our stakeholders. Please let me know if you have
any comments.
I assume once finalised that you will send this to Paula, Al etc as you consider appropriate, and I will send to UKGI, but
please let me know if you’d like to do something different.
Thanks, Rod
DRAFT BEGINS
Post Office Group Litigation - SUBJECT TO LEGAL PRIVILEGE - DO NOT FORWARD
We will be in court tomorrow before the Managing Judge Mr Justice Fraser for a Case Management Conference, at
which the following matters will be dealt with:
1. Post Office’s Application for Security for Costs
- As previously reported, the dispute between the parties concerns:
© the amount of security (i.e. £2.5m offered on costs of £9m to the end of the November 2018 trial, as
opposed to £6.7m sought); and
o the form in which it should be provided (i.e. the insurance policy offered by the Claimants, which
could be set aside by the insurers, or a bond as sought so that the security is “as good as cash”).
- Late last week, the Claimants offered to provide security by way of a bond, which largely resolves the
dispute over form.
- As to amount, the Claimants advance a number of arguments to support their position that no more than
£2.5m should be offered, including:
o Delay — the Claimants argue that no more security should be paid because of the time taken to hear
the application. Post Office’s position is that that argument is not supported by any legal principle,
and in any event the time taken reflected the progress of the litigation and was agreed to by both
the Claimants and the Court.
o Access to justice — the Claimants suggest that because the costs of providing security amounts to
“hundreds of thousands of pounds”, the Court must ensure it doesn’t “hamperI] access to justice”,
i.e. that it doesn’t place so high a price on this claim that it stifles it. The Claimants have not
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however said (or even intimated) that the third party fund paying their costs is unable to finance the
claim (including any security), which is typically required for a “stifling” argument to succeed.
o Post Office’s Counterclaim — the Claimants say that the £2.5m security they offer is reasonable
because Post Office has made a generic counterclaim in this case (for the recovery of any shortfalls
in the Claimants’ branches) which relies on the same issues advanced in their claim. Post Office’s
positon is that this is not material because the counterclaim is not responsible for any material part
of the costs for which security is sought.
- More generally, we anticipate the Claimants to run in support of their case their narrative that Post Office is
the “Big, Bad Corporate” which has treated the Claimant postmasters very badly, and that we are continuing
to treat them unfairly by asking them to provide security (even if it will actually be paid by their funder).
- Interms of outcomes, Post Office has on one view already been successful with its application in that it has
secured (by way of bond) security for £2.5m of its costs. Accordingly, a worst case scenario tomorrow is that
we do not better that sum, leading the Claimants to argue that tomorrow’s hearing was unnecessary such
that Post Office should pay its costs of the application (which they have stated to be £150k; cp. our costs of
£98k).
2. The Timetable for the November 2018 Common Issues Trial
- The main issue for consideration here is whether the Court timetable should accommodate the application
we have made to strike out the Claimants’ inadmissible evidence.
- Asreported last week, on 11 September 2018 the Court listed our application for hearing on 10 October
2018. Given how close that is to the beginning of trial on 5 November 2018, our barristers believe that it will
be a more efficient and proportionate use of the parties’ time and Court’s resources to deal with the
application at the end of the first week of trial, when the Managing Judge has said hearing time will be
available for applications.
- The Claimants’ position on this is that it is a question for the Court.
- Other issues which will be considered include the allocation of time between the for cross-examining
witnesses, how long closing submissions will take, and the sequencing of closing submissions.
I will provide a further update on the outcome of tomorrow’s hearing following its conclusion.
DRAFT ENDS
® Rodric Williams
Head of Legal - Dispute Resolution & Brand
20 Finsbury Street
London EC2Y 9AQ
2017 Winner of the Global Postal Award for Customer G RO !
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