POL00043154
POL00043154
Post Office Group Litigation WOMBLE
Legally privileged BOND
DICKINSON
One page summary of Counsel's Opinion on whether to audit Fujitsu
1. Inthe Horizon trial, the parties and the Court attached particular importance to the KELs and Peaks
that had been disclosed. Much of the evidence focused on the number and nature of bugs in
Horizon, as shown in these documents. On the basis of the KELs and Peaks, both experts identified
the Horizon bugs and discussed the likelihood of Horizon containing other unidentified bugs. The
KELs that had been disclosed were central to these issues.
2. It now appears that the KEL disclosure proceeded on an incorrect basis. Long before the
Horizon trial, Post Office's Electronic Disclosure Questionnaire (dated 6 December 2017)
stated that in relation to the KEL that "The previous entries / versions of the current entries
are no longer available.” That statement was based on information provided by Fujitsu and
that Fujitsu signed off on the EDQ. Recently, Fujitsu mentioned that previous versions of
KELs are retained on the system and thus the statement made in the EDQ was wrong. On
the basis of this statement, Post Office did not give any disclosure of any previous versions
of KELs. From the Court's perspective, it is a failure for which Post Office is responsible.
3. A substantial numbers of undisclosed KELs may ultimately persuade the Judge not to finalise his
judgment on the Horizon trial until all (1) the undisclosed KELs have been disclosed by the parties (if
that is what the Claimants want) and (2) the parties have then had an opportunity to put in further
factual and/or expert evidence on the new material. So one possible outcome is that judgment will be
delayed for a significant period, and another is that the trial will be resumed to address the new
material, with the result that judgment will be delayed for an even more significant period. Another
adverse consequence is that Post Office may well be ordered to pay the Claimants’ costs of doing
any further work needs to be done as a result of the late disclosure of these KELs. Post Office may
even be ordered to pay all the costs of the further evidence and the resumed trial referred to above,
regardless of their impact on the final Horizon judgment.
4. Against this background, Post Office is considering whether to carry out some sort of audit of Fujitsu’s
disclosure. At the outset, it should be noted that Counsel strongly suspect that the question whether
the audit is privileged is of little practical importance. If the report gives Fujitsu a clean bill of health,
Post Office will not want to assert privilege. If it does not, the Post Office will probably be required to
give yet more late disclosure of further categories of documents and/or to correct yet more false
information from Fujitsu that. It should also be noted that Counsel cannot predict the outcome of any
audit or identify the associated risks and assign probabilities to those risks.
5. One advantage of commissioning an audit would be that — if Post Office is open about what it is doing
— it could portray itself as doing ‘the right thing’, as opposed to reluctantly reacting to pressure exerted
by the Claimants or the Court. And if Deloitte were to give Fujitsu a clean bill of health, that would be
a major additional advantage.
6. Atthe other extreme, the audit may reveal that a large amount of further, damaging, disclosure needs
to be made — either because adverse documents are uncovered (which would then be known adverse
documents) or because further examples of categories of disclosed documents are uncovered (i.e.
KELs, Peaks, OCRs, OCPs, MSCs, TFS entries, audit reports, Dimensions documents and ARQ data)
or because Post Office has previously given the Claimants and/or the Court false information which
needs to be corrected. Moreover, if only a narrow audit is carried out (e.g. just regarding the KELs)
Post Office may find it difficult to justify its decision not to audit all the other categories of documents as
well
7. If audit's results only come out after the judgment is given, and there are things in the judgment the
Claimants do not like, they could seek to appeal the judgment on the basis of late evidence becoming
available. In that scenario, a retrial could be ordered which would be much more costly and (not least
because of the intervening appeal) involve much more delay than a further hearing. These
considerations underline the desirability of deferring the Horizon judgment until after any audit is
completed, which necessarily means informing the Court and the Claimants that an audit is underway
so that the judgment is not handed down in the meantime.
8. Inconclusion, although there are possible benefits to be gained from commissioning the proposed
audit, the risks of doing so are very serious. Moreover, Counsel doubt that Post Office will be able to
keep the fact, scope or outcome of any audit secret from the Claimants. It may be able to keep these
things secret until the audit report is produced, but keeping it secret until then would create some
serious risks of its own.
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