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Confidential and privileged legal advice
Do not disclose, forward, scan or copy WOMBLE
BOND
DICKINSON
DRAFT Contingency Planning: Risk Assessment Table
This document summarises in Counsel's Opinion on the Common Issues. By its very nature, it is simplistic and should not be relied upon in lieu of a careful
reading of Counsel's Opinion. The legal arguments in this case are complex, with often several permutations of outcome. This risk assessment describes the
main rust of each issue and the key risks faced. It does not exhaustively set out every permutation of outcome at the Common Issues Trial.
Where we have offered a view on the impact on Post Office, this an initial view based on our working knowledge of the Post Office business. Our understanding of the
Post Office business is not comprehensive and we have not sought to set out an exhaustive list of impacts. We also note that the Common Issues are not discrete
topics and there will be interplay between them. Success or failure on some points may lead to success or failure in other areas. If multiple common issues are lost,
they may have a compound effect greater than the risks identified below.
In preparing this risk assessment, we have not yet considered any mitigating actions that may be taken.
c n S
Post Office is very likely to lose the issue / The proposed term is A significant adverse impact on the business that could threaten
very likely to be implied. its existence.
Post Office is more likely to lose than win the issue / proposed
term will more likely than not be implied.
A major adverse impact on the business that will have
considerable long-term commercial harm.
50/50 A material impact on the business that will cause some
commercial detriment / increased costs.
Post Office is more likely to win than lose the issue / The
proposed term will likely not be implied.
Some impact on the business but the additional burdens / costs
will be manageable.
Post Office is very likely to win the issue / It is very unlikely that
the proposed term will be implied.
Negligible impact on the business.
Relational Contract
Was the contractual relationship between
_ Post Office and a 3
subject to duties of good faith, fair dealing
/ oe co-operation, and trust and
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Summary: Counsel is satisfied overall that Post Office is likely to succeed on this issue.
Detail: There is some risk on this issue for Post Office due to:
A) This area of law being in a state of development;
B) The way each party is dependent on the close cooperation of the other, which puts a query
over how the Subpostmaster relationship operates in practice;
C) An imbalance of bargaining power and level of sophistication between Post Office and the
Subpostmasters; and
D) The SPMC and NTC having several characteristics of relational contracts, and the SPMC in
particular not being particularly well drafted.
If the court were to find that they were relational contracts, this does not necessarily mean that a
"good faith term" should be automatically implied. Counsel's view is that it would be wrong to
imply a term as to good faith into the SPMC and NTC.
There is also a significant question mark over what good faith actually means. It could be limited
to whether Post Office acts honestly or the meaning could be taken further to mean putting
Subpostmaster's interests above Post Office's interests.
Impact (WBD):
. Post Office will be required to carry out more checking of its decisions to make sure
they align with the "relational contract”, and will need to ensure its process adheres
to that standard, which will require time and have a cost.
. Post Office may need to balance acting in own best interests against
Subpostmaster's interests. This would fetter Post Office's ability to run and evolve
the business in the way it sees fit.
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2 Implied terms Summary: There is a high threshold for the Claimants to reach to be able to imply terms into the
Which, if any, of the 21 terms proposed by contracts. There are some terms which are more risky than others.
the Claimants should be implied into the Detail: The Claimants are attempting to imply 21 terms into the contract. They are grouped below
contracts between Post Office and in themes rather than setting out all 21 specific terms.
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Subpostmastors? To dissuade the court that the 21 implied terms need incorporating into the contracts, Post Office
has admitted two implied terms, which in Counsel's opinion largely render the additional implied
terms unnecessary (the Stirling v Maitland Term and the Necessary Cooperation Term).
However, there are no guarantees about how the Managing Judge will address each and every
implied term.
As matters stand, there are some arguments on the implied terms which are finely balanced. For
example, the court may think it a small step to agree to a mutual duty to maintain trust and
confidence in a business to business, agency relationship.
If some of the implied terms are accepted, these may have a practical effect on requiring Post
Office to do things which are not currently required by the contracts.
Impact: See below.
IMPLIED TERMS
3. Implied term (admitted): Impact (WBD):
Cooperation . These terms apply a low threshold (eg. necessary cooperation) to all Post Office's
Post Office and Subpostmasters would not activity in all areas that touch postmasters.
take steps which would stop the other from . We would expect Post Office to be meeting these standards in most areas but we do
complying with the contract. not have a holistic view of Post Office's business to say this with certainty.
Post Office and Subpostmasters would : There two terms may have similar effect to some of the Claimants' implied terms eg.
cooperate with the other as was necessary both will require Post Office to provide Subpostmasters with some degree of training.
to enable the other to carry out their
obligations as set out in the contract.
4. Implied term: Note: This issue has been split into two parts because it depends on which express terms are
Exercise of powers 1
{In relation to (i) contract variations and (ii)
withholding Subpostmaster remuneration
during suspension ]
being considered.
Post Office has a high degree of freedom when deciding to (i) vary the Subpostmaster Contracts
and (ii) withhold Subpostmaster remuneration during suspension. Counsel has advised that the
Court is likely to place some restrictions on these discretionary powers, namely that these powers
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Post Office would exercise any power (under
the contracts or generally) honestly and only
for the purpose the power was created to
achieve.
Post Office will not exercise a power
arbitrarily capriciously or irrationally.
should not be used arbitrarily, capriciously or irrationally.
Impact (WBD):
. Post Office will need to pro-actively consider and document in every case whether
remuneration should be withheld during a period of suspension. This could lead to
significant back-claims for withheld remuneration where this has not happened.
Going forward this could be remedied with a process change to approve and
document these decisions.
. It is consider unlikely that Post Office would vary the Subpostmaster Contracts
without careful consideration and so this implied term should have negligible
impact. More effort may be required to document these decisions in more detail.
5. Implied term: Counsel is satisfied that Post Office's other powers under the Subpostmaster Contracts (eg.
Exercise of powers 2 power to terminate) are unlikely to be fettered by these implied terms.
{All other terms of the contracts] Impact (WBD):
Q . If this implied term does apply to other powers under the contracts (eg. right to
Post Office would exercise any power (under terminate) this may slow down decisions and actions (eg. delay suspensions) and
Bie en aes Or Bea) POneeey ane ay therefore cause losses to increase in branches.
for the purpose the power was created to "
achieve. . It would give Subpostmasters wider grounds on which to challenge many decisions
: on Post Office.
Post Office will not exercise a power
arbitrarily capriciously or irrationally. . Post Office would need to document decisions better so to prove that they are not
arbitrary or irrational. It should be noted that the threshold for irrationality is very
high — a decision needs to be completely perverse for it to be classed as irrational.
The greater risk is that the decision looks arbitrary or capricious because Post
Office is not able to point to any audit trail on its decision making.
6. Implied term: Impact (WBD):
Quality of Horizon
Post Office would provide a system which
was reasonably well suited to its designated
purpose, including:
A) error repellency
B) error prevention
C) error detection/ identification
. If Horizon meets these standards already, then this implied term will have minimal
impact.
. If Horizon does not meet these standards, Post Office would need to liaise with
Fujitsu as to whether changes to Horizon are possible and if so, the cost of
implementing them.
. If changes to Horizon are made, Post Office may need to roll out a training
programme to Horizon users.
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D) a way to report errors to the Horizon user
The system should be able to deal with
errors both at the:
1) data entry level; and
2) system level.
The system should be able to carry out:
i) data processing;
ii) carrying out the relevant transaction; and
iii) reconciling transactions.
The system should also record any error
issues as listed in points A — D above.
1. Implied term: Impact (WBD):
Communication of ability to alter branch . This is probably a one off communication to Subpostmasters with some new
data internal training for staff. There may be some minor changes to day to day working
Post Grice would nak hide fram aS tree so co ensure that a consistent message is given about the
Subpostmasters its ability to: y .
A) alter data remotely;
or
B) alter transactions which fed into the
calculation of the branch accounts.
8. Implied term: Impact (WBD):
Communication of problems in Horizon
Post Office would:
A) communicate known problems, bugs or
errors in or generated by Horizon; and
B) not hide/ fail to tell Subpostmasters of
known problems, bugs or errors in or
generated by Horizon which might have
financial or other implications for
. This would create an ongoing duty to inform Subpostmasters about problems in
Horizon. Potentially this would extend to any bug, no matter how small. These
communications would be onerous to prepare, taking considerable time and effort.
. Subpostmasters may have a reduced level of confidence in Horizon as a result of
regular updates about issues — this could lead them to "blame the system".
. Post Office would need to take steps to understand the system more fully than it has
had to previously. This could require obtaining technical advice on a frequent basis
from Fujitsu, which would have a cost.
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Subpostmasters
9. Implied term: Impact (WBD):
Communication of problems in branches + The business would need to consider the structure, the frequency and level of detail of
Post Office would communicate and not the communication, all of which would require additional effort and cost.
hide/ fail to tell Subpostmasters the extent to + Communication would have to be balanced against data protection and privacy issues.
WG eet Sab pes asters Ware ag: + Subpostmasters may have a reduced level of confidence in Horizon as a result of
i) issues relating to Horizon; and regular updates about issues — this could lead them to "blame the system".
i) the generation of discrepancies and + It could increase the amount of time the business requires to deal with complaints about
shortfalls. Horizon, discrepancies and shortfalls as more issues may be questioned.
10. Implied term: Impact (WBD):
Reasonable skill and care
Post Office would supply its support services
to Subpostmasters (eg. back-office
accounting, the Helpline, training, etc.) with
reasonable skill and care.
Post Office would take reasonable care in:
A) performing its functions; and/or
B) exercising its functions within the
relationship
especially where the functions could affect
the:
1) accounts.
2) business
3) health and
4) reputation of the Subpostmasters
+ We do not have a holistic view of Post Office's business to provide an exhaustive
comment, but those parts of the business we have studied have generally operated with
reasonable skill and care.
+ Any areas requiring improvement would incur costs of change.
+ Atpresent, any failure to exercise reasonable skill and care is a commercial problem
only. If this term is implied, each failure is a breach of contract that could lead to claims
by Subpostmasters for any losses caused to them.
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41. Implied term: Impact (WBD):
Relationship . Post Office would need more safeguards in place to evidence that it was not taking
Post Office would not take steps which steps which undermine the relationship.
would undermine the relationship of trust . Post Office would have to balance acting in own best interests against
and confidence between it and the Subpostmasters' interests. This may fetter Post Office's ability to run and evolve
Subpostmasters. the business in the way it sees fit.
12. Implied term: Impact (WBD):
Shortfalls . This would reverse the current responsibilities between Post Office and
Post Office would: Subpostmasters in relation to losses.
A) produce, keep and maintain accurate
records of all transactions carried out using
Horizon;
B) be able to explain all relevant
transactions; and
C) use the records to explain any shortfalls.
Post Office would co-operate in trying to:
A) identify the possible or likely causes of
any shortfalls without any input from the
Subpostmasters and/or
B) work out whether or not there was any
shortfall by carrying out a formal
investigation
C) prove as a result of the investigation that
the shortfall was properly attributed to the
Subpostmaster under the contract.
Post Office would not seek recovery of any
shortfalls from the Subpostmasters unless
and until:
A) it had complied with its duties (which
. Post Office would need to put processes in place to enable it to explain all
transactions and shortfalls.
. This would make recovery of losses in branches very difficult if not impossible in
many cases.
. This may give rise to significant historic claims by Subpostmasters to recover
money paid to Post Office in respect of losses in branches.
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include the duties in the implied terms);
B) it had shown that the shortfall was a
genuine loss to Post Office
13. Implied term: Impact (WBD):
Communication of information about + The business would need to consider the structure, the frequency and level of detail of
shortfalls the communication. This could be quite onerous given the size of the network.
Post Office would fully and honestly tell * Communication would have to be balanced against data protection and privacy issues.
Subpostmasters in general about the se
i + Subpostmasters may have a reduced level of confidence in Post Office as a result of
Possible causes of stiortialls. regular updates about issues.
+ It could increase the amount of time the business requires to deal with complaints
about Horizon, discrepancies and shortfalls as more issues would be questioned.
14. Implied term: Impact (WBD):
Training + If Post Office already provides adequate training and support, these additional terms
; i! pale will have minimal impact. It should be noted that the admitted term of "necessary
ee Provide adequate taining cooperation" will likely require Post Office to provide adequate training and support.
: / i + If more is required from Post Office, this could require more trainers and training
li eld baad laid, sessions, a greater amount of more detailed training material, consideration of the form
a 9 PP if of training and a way to track whether the training provided had been properly instilled
A) new working practices were introduced; into the audience aimed at.
B) new systems were introduced; or + The impact would be further increased if this training was also required for
C) where Subpostmasters were required to Subpostmaster assistants.
provide new services. + Additional in-house training may be needed to ensure face to face contacts are giving
Subpostmasters consistent advice.
END OF IMPLIED TERMS.
15. Supply of Goods and Services Act 1982 Summary: The Claimants have failed to identify the relevant provisions in the contracts which
Did Post Office supply Horizon, the Helpline
and/or training/materials to Subpostmasters
show that the parties have agreed, in exchange for something else (such as a fee), to provide a
service to and for the benefit of the Subpostmaster. This therefore weakens the Claimants’
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(i) as services under “relevant contracts for
the supply of services” and (ii) in the course
of its business, such that there was an
implied term requiring Post Office to carry
out any such services with reasonable care
and skill, pursuant to section 13 of the
Supply of Goods and Services Act 1982?
position on this point.
Detail: Contracts will only fall within the Supply of Goods and Services Act if they involve one
party selling a service to another party.
The key question is whether Post Office had a contractual obligation to provide Horizon, the
Helpline and training as "services".
The Claimants have not identified any specific contractual provision in which they say Post Office
assumed an obligation to provide a service. However, there is scope for an argument on this
point.
The key concern is with the NTC, in which there is a possible provision that the Claimants could
say means that Post Office had an obligation to provide the Helpline.
Impact (WBD):
. Post Office is probably already complying with the implied term in many areas of its
business. If Post Office was required to act beyond its current practice, it would
need to assess the impact of any decisions regarding the "services" when making
any changes to the provision of "services" or the content of the services.
. Post Office would face issues if it was under an obligation to provide the "services" if
there was an outage with Horizon or if access to the training/materials or the
Helpline was unavailable due to a glitch, as Post Office would be liable for making
sure Subpostmasters had access to these services.
Onerous, unusual or unfair terms 3 3 I Summary: It is unlikely any clause will be classed as "unfair" so long as Post Office has provided
Were any or all of the express terms in the the Subpostmaster with a copy of the contract before they entered into it.
GPOC paragraphs listed below onerous and It will be a more difficult argument if the Subpostmaster did not have chance to consider the terms
unusual, so they would be deemed before signing.
HOSriCreeapie diese cet Onis ayGUBE If the terms are found to be "unusual or onerous", Post Office will need to show that it brought
Peminny ang eoreny fone these terms to the Subpostmaster’s attention, if it wants to rely on those terms. Some problematic
Subpostmasters’ attention? . een
terms include the right to suspend, to suspend without pay and to terminate on 3 months' notice.
Whether this is an issue for Post Office will mostly be on a fact specific basis for each
Subpostmaster, as generally the practice seemed to be that contracts were provided to
Subpostmaster before the agreements were entered into.
Impact (WBD):
. If terms are "unusual or onerous", they would be unenforceable against
Subpostmaster. If this applied to business critical terms such as termination,
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suspension and loss recovery then this would have a critical impact on the
relationship with Subpostmasters, albeit likely limited to those Subpostmasters who
never saw their full contract terms before becoming a Subpostmaster.
. Going forward, Post Office needs to improve its contract origination processes, with
clear evidence of Subpostmasters being given access to, and time to understand,
their contract terms.
17,
Liability for Losses
What is the proper construction of section 12,
clause 12 of the SPMC?
Clause 12 states "The Subpostmaster is
responsible for all losses caused through his
own negligence, carelessness or error, and
also for losses of all kinds caused by his
Assistants. Deficiencies due to such losses
must be made good without delay."
What is the proper construction of Part 2,
paragraph 4.1 of the NTC?
Para 4.1 states: "The Operator shall be fully
liable for any loss of or damage to, any Post
Office Cash and Stock (howsoever this
occurs and whether it occurs as a result of
any negligence by the Operator, its
Personnel or otherwise, or as a result of any
breach of the Agreement by the Operator)
except for losses arising from the criminal
act of a third party (other than Personnel)
which the Operator could not have
prevented or mitigated by following [Post
Office's] security procedures or by taking
reasonable care. Any deficiencies in stocks
of products and/or resulting shortfall in the
money payable to [Post Office] must be
made good by the Operator without delay so
that, in the case of any shortfall, [Post Office]
is paid the full amount when due in
accordance with the Manual."
Summary: Post Office is likely to succeed on the major issues arising out of the construction of
these clauses.
See also the comments above in relation to implied terms regarding shortfalls.
IT IS STRONGLY RECOMMENDED THAT COUNSEL'S OPINION IS CAREFULLY REVIEWED
ON THIS TOPIC AS THIS IS THE CRITICAL QUESTION IN THIS LITIGATION. ITIS
COMPLEX, WITH SEVERAL PERMUTATIONS OF POSSIBLE OUTCOMES.
The major challenge on these clauses is whether for a "loss" to be recoverable it needs to be a
real financial loss to Post Office or whether it can be an accounting loss in a branch accounts.
The difficulty with the former is that Post Office would need to track the loss in a branch accounts
and show how that loss caused it real financial detriment. This would require a significant forensic
accounting exercise, tracing a loss through all Post Office's back-office accounting systems.
Impact (WBD):
. Losing this point would make it very difficult for Post Office to recover losses without
significant effort and detailed investigation into every loss in every branch.
. It also has the effect of shifting the burden of proof onto Post Office to show the root
cause of the loss. In many cases, this will be impossible to discharge.
. It may give rise to substantial claims for repayment of losses to Subpostmasters
dating back many years.
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18. I Post Office as Agent Summary: The contracts make it clear that Subpostmasters are agents of Post Office, not the
Post Office as acent other way around.
i Counsel considers that it will be a steep challenge for the Claimants to succeed on this Agency
fo ho uinted panes ot Fea alba issue, as it will be difficult for them to reverse the relationship so that the Post Office
82 and 83? Eure Pelagray subordinates its interests to the Subpostmasters' interests.
If so, was Post Office required to comply any or. Impact (WBD):
all of the obligations at GPOC paragraph 84, . This would reverse the current responsibilities between Post Office and
which include that Post Office would: Subpostmasters, making recovery of losses from Subpostmaster very difficult if not
a) properly and accurately to effect, execute, impossible.
record, and/or maintain and keep records of all . See other comments above.
transactions which the Claimants initiated
using Horizon or for which the Claimants were
potentially responsible;
b) to render and make available to the
Claimant accounts (in accordance with
paragraph 84 (a); and/or
¢) a where the Defendant alleged shortfalls to
be attributed to the Claimants, to comply with
the duties the Claimants have said they are
owed in relation to Horizon.
19. I Subpostmaster as Agent Summary: Counsel's overall opinion is that Post Office is likely to win on this argument, that
Was the extent and effect of the agency of
Subpostmasters to Post Office such that the
principles of agency applied as Post Office
argues?
Did Subpostmasters, as agents, bear the
burden of proving that any Branch Trading
Statement account they signed and/or
returned to Post Office was incorrect?
Subpostmasters owed duties to Post Office, that they were bound by their accounts and that if
they made false accounts, they are also bound by them.
Detail: It is clear that Subpostmasters are agents of Post Office. There is more scope for
argument about what agency duties apply to Subpostmasters. Post Office asserts that the
following agency duties apply.
(a) As its agents, Subpostmasters owed fiduciary duties to Post Office and a duty to account to
Post Office;
(b) Where an agent renders an account to his or her principal, he is bound by that account unless
and to the extent that he discharges the burden of demonstrating that there are mistakes in the
account that he should be permitted to correct; and
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(c) Where an agent deliberately renders a false account to his or her principal, in relation to the
matters covered by that account the court should make all presumptions of fact against that
Subpostmasters as are consistent with the other facts as proven or admitted.
Counsel does not consider that the Claimants' arguments, even if they had any real substance,
could lead to the total exclusion of the principles Post Office relies on as listed above. It will be
more difficult to apply the general principles on a case specific circumstances where a
Subpostmaster has submitted an account which he/she has said is in dispute or has sought to
qualify his/her approval in any way.
It may be possible on a case by case basis for a Subpostmaster to show the accounts were
inaccurate or that he/she was not responsible for the shortfall.
Impact (WBD):
+ — Losing this point would make recovery of losses more difficult as Post Office could no
longer rely on the above assumptions.
+ Post Office would have to prove that Branch Trading Statements were correct before/
after they were signed off by a Subpostmaster which would limit Post Office's ability to
recover losses.
+ Anew process may need to be introduced for signing off the accounts where the
outcome of disputed shortfalls have not been concluded.
20.
Suspension
On a proper construction of the SPMC and
NTC, in what circumstances and/or on what
basis was Post Office entitled to suspend
pursuant to SPMC Section 19, clause 4 and
Part 2, paragraph 15.1 NTC?
Note: the Claimants also seek an implied
term in relation to Suspension.
Post Office would not to suspend Claimants:
A) without reasonable and proper cause;
and/or
B) when Post Office had breached its duties to
the Subpostmasters.
Summary: There is a real risk that the court will find that there is an implied term that Post Office
would only suspend a Subpostmaster where there was a reasonable basis for suspension on one
of more of the grounds listed in the express clauses.
Detail: The Claimants say these clauses act in a more limited way than the way Post Office has
historically applied them. They seek to limit the circumstances in which Post Office can suspend
Subpostmaster.
For the most part, Counsel thinks the Claimants arguments are weak. However, there is a risk that
the court could instead decide that although it will not imply a "reasonable basis" for the
suspension, it may instead treat the right to suspend as a discretion which cannot be exercised
arbitrarily, irrationally or capriciously by Post Office.
Impact (WBD):
. Post Office could still suspend but may need to take more care before exercising the
right to suspend.
. Ability to make quick decisions could be hindered.
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Concern for Post Office's reputation if it is required to keep a questionable
postmasters in their position whilst investigations are carried out.
Risk to assets whilst decisions made and documented.
21. I Summary Termination Summary: Counsel considers it unlikely that the Claimants will be able to persuade the court to
On a proper construction of the SPMC and apply the limitations they propose on Post Office's power to terminate, either by way of an implied
i erm or as a matter of construction.
NTC, in what circumstances and/or on what
basis was Post Office entitled summarily to Detail: The Claimants are seeking to limit the circumstances in which Post Office can end their
terminate? agreement with a Subpostmaster without giving any notice period where the Subpostmaser is in
Note: the Claimants also seek an implied breach.
term in relation to summary termination. Counsel does not think the Claimants are likely to persuade the court of their version of how this
Post Office would not terminate contracts: Power should, in their view, operate.
A) without reasonable and proper cause; Impact (WBD):
and/or . Post Office could not terminate when it had committed even a trivial breach of
B) when Post Office had breached its duties to poate would allow many Subpostmasters to contest the validity of their
the Subpostmasters. :
22. I Termination on Notice Summary: On the face of it there is no legal reason why the 3 (SPMC) and 6 month (NTC) notice
On a proper construction of the SPMC and
NTC, in what circumstances and/or on what
basis was Post Office entitled to terminate on
notice, without cause?
Note: the Claimants also seek an implied
term in relation to termination on notice.
Post Office would not terminate contracts:
A) without reasonable and proper cause;
and/or
B) when Post Office had breached its duties to
the Subpostmasters.
periods should be construed any differently than as they are set out in the contract, as the words
are plain and clear.
Detail: Counsel does not consider that the court will read in a requirement, as requested by the
Claimants, that Post Office must "conscientiously consider what period of notice to give".
However, Counsel is concerned with the 3 month notice period in the SPMC, as this is a very
short notice period for agreements of this kind. The Judge may have some sympathy with the
Claimants on this point and may seek to moderate the contract in some way on this point eg. by
extending the notice period.
Counsel is less concerned with the 6 month NTC notice period.
Impact (WBD):
Post Office could not terminate when it had committed even a trivial breach of
contract. This would allow many Subpostmasters to contest the validity of their
terminations.
The Claimant's proposed implied term would prevent Post Office from terminating on
notice unless a Subpostmaster was in breach of contract. This would limit Post
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Office's ability to restructure its business by moving on agents who were no longer
financially viable or in line with future business requirements.
23. I Termination - Minimum 12 Months’ Notice Summary: This is the Claimants’ alternative formulation for its arguments in relation to termination
rights. In essence, the Claimants are saying that the standard Subpostmaster Contracts are a
Do the express written terms of the SPMC and "
NTC between Post Office and Subpostmasters sham and should be ignored. Instead, Post Office should not be able to terminate on less than 12
represent the true agreement between the .
parties, as to termination (in this regard, the Counsel thinks Post Office will win this point. Counsel's view is that Post Office is likely to
Claimants rely on Autoclenz v Belcher [2011] succeed on the true agreement issue because:
2
URSG a a) the Autoclenz principle is of limited application as the dispute does not focus on employment
If not, was the “true agreement” between the status;
it 7
Cees eae ee b) the Subpostmaster contracts are "ordinary" or "commercial" agreements, made business to
Paragraph 71 alleges that the “true business and so the Autoclenz principle shouldn't apply;
agreement" was that termination had to be on . \ . .
reasonable notice (which was never less than c) the Claimants haven't stated any new express terms on termination;
12 months). d) there is no conduct to suggest that the "true agreement" is what the Claimants allege;
e) it is difficult to see how the Claimants can argue on the one hand that the termination
provisions do not represent the "true agreement", but the rest of the contract does.
Impact (WBD):
: See comments above in relation to Summary Termination and Termination on
Notice.
24. I Compensation for loss of office From the latest Individual Particulars of Claim, this issue no longer arises.
On a proper construction of the SPMC and
NTC, where Post Office lawfully and validly
terminated a Subpostmaster's engagement,
on notice or without notice for cause, was the
Subpostmaster entitled to any compensation
for loss of office or wrongful termination?
25. I Compensation for loss of office From the latest Individual Particulars of Claim, this issue no longer arises.
On a proper construction of the SPMC and
NTC, in what, if any, circumstances are
Subpostmaster's breach of contract claims for
loss of business, loss of profit and
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POL00103463
consequential losses (including reduced profit
from linked retail premises) limited to such
losses as would not have been suffered if
Post Office had given the notice of
termination provided for in those contracts?
26.
Subsequent appointments
On a proper construction of the SPMC and
NTC, what if any restrictions were there on
Post Office's discretion as to whether or not to
appoint as a Subpostmaster the prospective
purchaser of a Subpostmasters' business?
There is no construction issue here. Instead the Claimants will try on rely on the implied terms
addressed above.
27.
Assistants
Did SPMC section 15, clause 7.1; NTC, Part
2, clauses 2.3 and 2.5 and/or any of the
implied terms contended for by the parties
and found by the Court purport to confer a
benefit on Assistants for the purposes of
section 1 of the Contracts (Rights of Third
Parties) Act, and if so which of these terms
did so?
What was the responsibility of
Subpostmasters under the SPMC and the
NTC for the training of their Assistants?
Summary: There is some risk that assistants may have directly enforceable rights against Post
Office in relation to training.
Post Office accepts that it was required to provide Subpostmasters with training materials which
allowed them to train their assistants, but its insists that assistants are trained by Subpostmasters.
It denies that it had any duty to train assistants or that assistants could directly enforce such rights
against Post Office.
Counsel's view is that Post Office is unlikely to be required to train assistants and that this duty
rests with the Subpostmaster.
Impact:
+ — Significant additional costs would need to be incurred to train all assistants in the
network.
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