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Message
From: Andrew Parsons f GRO
Sent:
To:
i; Ben Foat {
4; Rodric Williams
ce:
Rachel Lawrie
Subject: cope of FIT - harassment and costs [WBDUK-AC-FID26896945]
I agree with Kate ~ in crude terrns, I would equate this to at least a 60% chance of success (1 could be persuaded to go
higher). But we would need to re-assess this once the Cs have properly set out their position.
A
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP
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' BOND ;
DICKINSON
From: Emanuel, Catherine 7
Rodric Williams
Cc: Watts, Al
Sushma MacGeoch
Rachel Lawrie
E: Scope of FIT - harassment and costs [WBDUK-AC.FID26896945]
This is not a claim that has to our knowledge ever been raised before in a litigation context and our preliminary view, per
our earlier advice, is that the Claimants will face an uphill battle.
Given the Fraser J factor, we are looking at it more closely (both from a merits and strategic perspective) with a view to
sharing more concluded views and will liaise with Helen Davies (while Tony Robinson is working on other aspects}
From: Ben Foat j
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Subje Scope of FIT - harassment and costs [WBDUK-AC.FID26896945]
Thanks Andy - what’s the level of risk that the claimants could succeed in recovering their funding costs ( I’ve
never seen it done and thought it was against public policy but would be helpful in having a broad
understanding on the likelihood ie 20%, 40%, 50%, 60%, 80% etc. )
Kind regards
Ben
Ben Foat
General Counsel
Post Office Limited
Ben.foatf’
From: Andrew Parsons
Rodric Williams ¢
anuel, Catherine
GR
cope of FIT - harassment and costs [WBDUK-AC.FID26896945]
Ben, Rodric
Last week we received letters from the Cs about the scope of the Further Issues trial in relation to two points: harassment
and litigation funding costs. The legal team met on Friday and below is the combined view of Counsel (HDQC and
TRQC), WBD and HSF. We should be grateful for instructions to respond to these matters as proposed below. We
should respond to the Cs by close of business tomorrow and so could discuss this on our call at 4pm today.
Harassment
The Cs wish to extend the scope of the FIT to include a limited question around liability for harassment (as distinct from
questions around the measure of loss that might arise from a harassment claim, which already properly form part of the
trial). They are seeking for the Court to confirm that Post Office sending debt letters to SPMs can, in theory, amount to
harassment. This would require an extension to the scope of the FIT as it would not fall within the Court's current Order.
The legal team's view is that this should be opposed.
e First, harassment is a highly factually sensitive topic and the Court needs to understand the full circumstances of
a case to form a view on whether conduct can amount to harassment. At present, the FIT should be proceeding
on assumed (uncontested) facts, with no witness evidence.
e Second, the formulation of this question by the Cs sets the bar very low. Post Office would have difficult task in
disproving this "in theory" case as nearly any conduct can amount to harassment if taken to an extreme, and
indeed there are precedents where debt recovery processes have been found to amount to harassment. This
could lead to a decision that is of little legal utility (as the question of harassment would still turn on its own facts in
each case) but a judgment against Post Office on this theoretical point could be misunderstood by the public as a
finding that Post Office has harassed SPMs.
e Third, the Judge has already expressed dim views about Post Office's debt recovery procedures in the CIT
judgment and so this is an unsafe area for us.
Recommendation - that Post Office should oppose the inclusion of this liability question in the FIT. That may then
provoke Cs to apply for it to be added and that point may be heard by the Judge at the CMC on 7 November. If the Cs
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make a formal application on this topic that would the expose Post Office to a costs risk (c.£50k based on previous
figures) should the Judge agree with the Cs.
Litigation funding costs
The Cs have asked whether Post Office agrees that it can recover its litigation funding costs as a head of costs in the
litigation. If Post Office does not agree this point, the Cs may then try to recover their litigation funding costs as damages
and put that as a point to be decided in the FIT. We do not know what their litigation funding costs are but they are
estimated in the tens of millions of pounds.
The legal team's view is that Post Office should, at this early stage, contest the recoverability of litigation funding costs:
e There is no precedent for litigation funding costs to be recovered as costs in litigation. Indeed, as a matter of
public policy changes were made to the CPR to exclude their recoverability. This would be a novel point for the
Cs torun. It would also be outside the scope of the FIT as currently defined.
e We have not yet found any precedent for being able to recover litigation funding costs as damages. We cannot
however stop the Cs pleading out this head of damage in their claims due at the end of week. Therefore, if the Cs
wish to include this point in the FIT, Post Office cannot stop that.
e Weare also concerned that the Cs are using this a vehicle to highlight to the Judge that the funder may be taking
a large share of the Cs damages. This may make the Judge more sympathetic to agreeing in principle to higher
damages on more orthodox heads of loss so to ensure that the Cs get to walk away with some compensation.
Recommendation - that Post Office denies that litigation funding costs can be recovered as a head of cost in the litigation
but stays silent on the recoverability of litigation funding costs as damages until the Cs plead out that claim. If they do
plead out a damages claim, further advice can be provided at that point.
Kind regards
Andy
Andrew Parsons
Partner
LLP
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