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Message
From:
Sent:
To:
ce:
Subject: Re: KEL issue
Thanks Kate. Very helpful. Many thanks for the call last night. Appreciate it.
Kind regards
Ben
Ben Foat
General Counsel
Post Office Limited _
From: Emanuel, Catherine 4
Sent: Monday, October 21,
Veronica Branton
ae andrew.parsons ¢
‘GRO
5 Tom Beezer i
{said last night I would write this morning on this. The contemplated audit raises extremely difficult issues. However, to
answer your questions:
1. You are correct that the risk of doing a mediurn or full review is that further damaging material comes to
light. In almost any document-heavy case, we would grade this as a red risk. The risk is exacerbated in this case
because of the complexity of the FJ material and because disclosure errors go to the substance of the dispute {it
is the Claimants’ case, supported by Common Issues, that Post Office has failed in its duty to disclose the
existence/risk of bugs).
2. There is, however, also a risk of not doing an extensive audit. Given the KEL failure, unless an audit is done and
concludes convincingly that everything that needed to be disclosed has been disclosed, Fraser J may simply draw
a series of adverse inferences against Post Office. This is also ared risk. Post Office would probably need to
notify Fraser J that it was doing the audit and request that the judgment is delayed until the audit is complete.
3. The rationale behind adopting a staged approach (i.e. narrow audit first) is that the results of that audit could
inform Post Office's decision-making. If the narrow audit confirms that the KELS have been comprehensively
extracted, Post Office might take some comfort from that. If, however, further material errors are revealed by
the audit, Post Office may consider a wider audit is required.
Kind regards
Kate
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From: Ben Foat {
Sent: 20 October 2 r
To: andrew.parsons I GRO } Emanuel, Catherine ;
Williams ¢ Ha eronica Branton ¢
Ce: Lerner, Alex! GRO ! Watts, Alan £77777
Sherrill Taggart <
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
Andy (Alan and Kate)
Thanks for the summary.
There is no level of risk (RAG status on the likelihood or impact) and the paper doesn’t give an answer/recommendation.
if we:
1. Doanarrow audit on the incident itself — there is a risk that we could be challenged around the limited scope
though our response to that would be we are only reviewing that part because that was where the issue
occurred — we aren’t going to review every issue within the trial.
2. Doamedium review around Court Support services — The risk is that we can then be challenged on the scope
and there is a risk that it could reveal large amounts of further damaging information which could result in more
delays
3. A full audit on the controls of FJ again it could produce damaging information which would need to be disclosed,
resulting in delay to the judgment, costs;
Delaying an audit after judgment is not acceptable because it could give the claimant's a right to appeal the judgment
depending on the findings of the audit.
How does Counsel / External Lawyers propose we respond to the Claimant’s questions and the provision of information
—can we not at least have a third party like Deliotte do that? It strikes me as perverse (and Im worried the Board will
agree) that we can do no checking of FJ when clearly there has been an error of this magnitude (even putting to side
that we have critical legal (upstream contracts), commercial, and operational reasons why we have to audit FJ’s controls
generally).
Could you advise me what is counsel’s recommendation if POL isn’t to conduct an audit. Im taking this to GE tomorrow
at 10am so would appreciate your thoughts before then.
Rod/ Veronica - This needs to go to the Board subcommittee on Tuesday for a decision.
Kind regards
Ben
Ben Foat
Group General Counsel
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile
From: Andrew Parsons {
Sent: 19 October 2019 14:25
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i 7
‘GROG
Ce: Lerner, Alex ;
Sherrill Taggart ¢_ __GR ‘enneth Garvey
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
Ben
Alan, Kate, Tony and I have just discussed this issue and we'll be circulating a revised update shortly.
I have answered the blanks in your email below in red.
Please also find attached a one page summary of Counsel's advice.
Kind regards
Andy
Andrew Parsons
Partner
Wombie Bond Dickinson (UK) LLP.
wombiebonddickinson.com
© BOND
DICKINSON
From: Ben Foat!
Sent: 19 October 2019 12:12
To: Emanuel, Catherine
Cc: Andrew Parsons ‘GRO
rner, Alex ¢_ I Watts, Alan
>; Sherrill Taggart I
Kenneth Garvey
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
Thanks Rod and Kate. Much appreciated.
Rod’s summary is much clearer than the summary that was contained in the table which is what we send to board so
could we have someone sense checking this before it is sent to me. Frankly it wasn’t good enough the version that was
sent to me at first instance.
KELs analysis
In short, we have taken a risk based approach in reviewing the 14000 scripts which were generated by FJ. We have now
completed the reviewed those KELs that were disclosable at trial ( 658) of which (94) were deemed to be in the 4 or 5
categories of adverse to POL’s position because (they contain material new information that could change the
Claimants’ or the expert's views on Horizon bugs discussed at trial) .Can someone fill in the sentence — the synthesis of
this is missing.
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Audit
I was still awaiting an executive summary of counsel’s opinion from WBD. Is this through yet? It should have been with
me yesterday. It needs to be then synthesised for the Board table. Again, Rod’s summary is more helpful that what was
currently drafted. In short, we can proceed with a limited scope of an audit to FJ support provided to date but that a
general audit /review could pose significant risks to GLO and therefore although a general audit must be completed at
some stage (given other legal, commercial, and operational requirements) it is not recommended at the present time.
Again, if someone could update the table to reflect that I would be greatly appreciated.
Rod — thank you for this email.
Kate/ Rod / Andy - Let me know when the table is finalised so I can send to Board and also GE.
All — can we also have a discussion about delivering at pace on this project. I appreciate it is a challenging matter but we
can only make it better by delivering against GE, Board and Shareholder expectations or managing them in advance.
Thanks
Ben
Ben Foat
up General Counsel
round Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
From: Emanuel, Catherine <
Sent: 19 October 2019 11:41
Kenneth Garvey
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
Ben,
There is one point that Alan, Andy and I want to iron out before the update and recommendations are circulated to the
Board.
l appreciate this may delay the update but we would rather be sure that the recommendations we give are right. We
are working as quickly as possible to get something to you.
Kind regards
Kate
From: Emanuel, Catherine
Sent: 19 October 2019 11:01
To: 'Rodric Williams'f~
Cc: andrew.parsons { GRO
+ -) rn: >; Ben Foat Q
Lerner, Alex L G RO nn
Sherrill Taggart <3.
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Kenneth Garvey: -
Subject: RE: KEL documents [WBDUK-AC.FID26896945]
Rod,
As promised I have been liaising with Alan this morning and we have a few comments.
Iwill send a revised draft shortly.
Andy ~ are you around for a brief word?
Cheers
Kate
From: Rodric Williams:
Sent: 19 October 2019 04:54
>; Lerner, Alex
andrew.parsons <
i Sherrill Taggart
Tom Beeze
Please find attached an updated Board update. Set out below are the key notes to address the points from your email
on “what would it take to get all of [the KEL review] done by next week”, and “what is the scope [of a Fujitsu audit] that
would diminish the risk [of creating documents that would then need to be disclosed to the Claimants]”.
External Lawyers — please comment/amend as necessary asap so that Ben can update the Board this morning!
Generally
- I have stressed (firmly) to the HSF and WBD teams the importance of this workstream. It is being escalated to
Alan Watts at HSF and Tom Beezer at WBD to make sure our Board’s requirements are met (both cc’ed).
- The key legal risk here is the ongoing duty in the GLO litigation to disclose adverse documents, which may not
exist (or which we may not have been aware of) but for taking the action now contemplated, especially in the
context of material we had not previously seen.
New KELs
- WBD are assessing the risk over the weekend of the 94 newly disclosed high-risk KELs. By the middle of next
week, Counsel will have reviewed these KELs in detail and given a view on whether they are likely to cause the
Horizon trial to be recommenced / the judgment delayed (the Counsel team being best placed to identify the
impact they may have on the trial they conducted).
- Inrelation to the other KELs not used at the trial (i.e. the majority of the c.14,000 new KELs), the key risk of
reviewing these is that the Claimants have not yet asked for the documents, so by reviewing them now we are
doing the Claimants' work for them.
- The legal advice therefore is that we should not review the 14,000 other KELs unless the Claimants ask for them,
or Counsel's review of the 94 high-risk KELs warrants a wider review.
- WBD and HSF will nevertheless confirm resources to deliver such a review as required.
By way if further background since the last update, having now considered the previously undisclosed KELs:
o Many (maybe up to 50%) could be duplicates of previously disclosed documents, but because the KEL is
a live database, the KELs could not be extracted in a way to avoid this duplication. This means a
manual/slower “de-duplication” review is required.
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o. If the new KELS are to be reviewed at pace (i.e. so that they are all reviewed by the end of next week),
the trade off will be quality/assurance. A paralegal team is less qualified than the smaller, elite team of
lawyers who ran the trial to assess the relevance of the new KELs to the matters in issue in the Horizon
Issues trial. Having paralegals undertake the review therefore creates the risk of inaccuracies in the
review process, which is compounded by the technical nature of the KELs.
Audit
- The best way to mitigate the risk of generating adverse/disclosable documents through an audit is to keep it
focussed on Fujitsu’s litigation support provided to date, with any operational audit to follow once the litigation
has been resolved and its associated disclosure duties concluded.
Please let me know if you need anything further.
Kind regards, Rod
2 eR 2 Re Fe 2 a ee 2 Fe 2 a 2 of of Fe oR 2 2 2 eo a a 2 fe 2 Fe 2 ae 2 a a fe a ake oe ea ae a ae ae
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