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Angela Van-Den-Bogerd
From: Jane Macleod
Sent: O9 July 2018 18:31
To: Tim: Parker: Ken McCali{” Cooper, Tom - UKGE Paula
Vennelis; Alisdair Cameron
ca ica Branton; Andrew Parsons; Rodric Willams; Mark Unclerwood
Subject: i Litigation Subcommitiee CONFIDENTIAL AND:
LEGE. DO NOT FORWARD
Attachments: DRAFT Contingency Pi. - Draft Risk Assessment Table for Board Litigation
Subcom 16.07. docx
importance: High
All
isk assessment ich we has
With apologies for the late circulation, attached is the dr: repared to assist
tomorrow’s briefing on contingency planning. This is still a work in progress and we will fake you through:
6 Our roach to t
vk th 5 been undertaken on potential m!
» Issues and timetable.
K assessment
ef
ing actions
heduled to update the Board on thi ¢ the end of july, and have also been
id Andrew
iber. To that end, it
Please note that we are s
requested to provide an update on co:
Griffiths MP (Minister responsible for Post Office) wh: currently sch
would be heipful to get your thoughts on the proposed approach,
wo!
to Alex Chisolm (Permanent Secretary of GEIS)
d for 10 Septe
Hard copies will be available for those at the mr
ting.
Kind regards,
Jane
G Jane MacLeod
Risk & Gov
Mobile number:
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Angela Van-Den-Bogerd
From: Jane MacLeod
Sent:
To:
Subject:
ency Planning ~ CONFIDENTIAL & SUBJECT TO
my speaking notes for the Con
ney plan
jece today.
Jane MacLeod
Group Director Legal, Ri
Post OF
& Governance
Fro} od
Sent: Monday, July 9, 2028 10:46:36 PM
To: Jane Macleod
Subject: Speaking Notes - Contingency Planning - CON)
ENTIAL & SUBJECT TO LEGAL PRIVILEGE
Following receipt of Counsel's preliminary Merits Opinion in early May, we have been locking at the risks
of the litigation.
At the heart of the litigation are two key principles:
» isthe contract between agents and Post Office a relational contract?
« should additional terms be implied into that contract?
PO has proposed that 2 additional terms should be implied. Claimants have requested a further 21,
although these break down into parts,
Nothing we do now can reduce the retrospective impact. Accordingly the contingency planning is to
prevent further claims being made in respect of the current/future situation. Key question is cos¥&
complexity of implementation of change. There are legal risks of making some changes (eg contract
changes} ahead of litigation. Operational improvements need to be carefully considered to ensure they
can be independently justified.
Contingency is to look at likelihood {legal interpretation) and impact (business assessment) of each of
these terms being implied. in parallel and using lessons learned during mediation process, we are
reviewing a wide range of operational aspects of our interaction with agents.
Input required:
« while we will review all claims and develop contingency plans, those that we should be most
concerned about have both reasonable probability and reasonable impact (both =3 and above}
s will do more work and bring this back to Board at end of July
» update to UKGI/BEIS on 11 September - how to proceed?
4
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elincod
Z terms @ 5 (certain):
» our 2 proposed terms
« theirs - exercise of power :
© relating to (i) contract variation and (ii) withholding remuneration dui
honestly and for purpose intended/created to achieve
not capriciously or arbitrarily
ne suspension.
rernuneration durt
susper . We are reviewing how decisions are made, what guidance is
provided and what the general practice is.
2 terms @ 4 (likely ta lose}
ing - duty to provide adequate training and support and in particular where new working
i ntroduced, new ems introduced and where new services required to be delivered.
Risk - pravide enhanced training. We are
purpase.
ewing the training currently offered to ensure
it is fit for
Suspension - not without reasonable and proper cause; and not when PO has breached Its duties
ded and
Risk - We are reviewing how decisions are made, what guidance is prov at the general practice
is.
3 terms @3 (50/50)
° PO to supply support servi
Reasonable skill & care
© accounting, helpline, train
etc) to agents with
Risk -
@ are reviewing how se!
ces how provided to ensure they are of suitable standard.
» if any of the standard clauses in the contract were found to be onerous and unusuai, the
unenforceable unless PO had specifically brau:
« includes lia
y would be
= them, to the agents attention.
lity for losses, postmaster
master; suspension (as above)
agent, in some limited cases PO as agent for the
* assistants ~
rights?
hat responsibility did
he agent
ave to train assistants?
sistants have 3rd party
is more work to do on each of the
being implied into the contract is
e, however o
2rall we beli
ly to be manageable.
the impact of these clauses
impact
dterm @ 5 {certain}
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. shortfalls (no 12)
< rev current responsi
mitigations options (Angela)
* IT changes
» contract changes
* process changes
More work to be dene on this ane. however likelihood is low
term @ 4 {certain}
» ‘relationship’ (11)
12 term @ 3 (material impact, could be detrimental}
« exercise of powers
« quality of Horizon
® communication of problems in horizon
* communication of problem in branches
* communication of information about shortfalls
« training
e supply of services with reasonable care & skill (Sale of Goods Act)
* onerous or unfair terms
* subpostmaster as agent; agents bear burden f proof
* termination requires reasonable cause
* 12 months notice for termination for cause
e training of assistants
« therefore there are only 3 that are both at least 50/59 likelihood and have a matertal impact/could
be detrimental (highlighted in yellow)
Jane MacLeod
Director of Lega! Risk & Governance
Post Offic
wo
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