POL00107189
POL00107189
Zoe Brauer
From: Andrew Parsons <!
Sent: 01 December 2019 16:48
To: Ben Foat
Ce: Emanuel, Catherine; Rodric Williams; Zoe Brauer; Victoria Brooks; Rachel Scott
Subject: RE: Plan for historic claims [WBDUK-AC.FID26896945]
Ben
The high-level legal principles are set out below. Each of the claims engage a different combination of these points.
1. Where an SPM is claiming not to be liable for a shortfall:
a. PO needs to have evidence that the root cause of the shortfall was caused by the SPM or their
assistant. They cannot rely on the BTS in proving this. The evidence will either be:
i. A positive explanation of the root cause based on accounting records or information from the
SPM. This route is more likely to be used where there is a single, small shortfall caused by a
specific transaction or incident.
li. A process of elimination ruling out that the shortfall was caused by Horizon or PO's actions
(eg. TCs), leaving the only explanation as an error in branch. This is more likely to be used
where there have been multiple issues and the shortfall is an aggregated amount caused
over several days, weeks or months.
b. If PO cannot reach the evidential threshold in (a) then it will need to compensate the SPM for the
shortfall.
c. If PO can reach the evidential threshold in (a) and the SPM is still in post then it may then need take
a decision on whether to terminate (see 4 and 5 below).
2. Where an SPM wants their suspension to be lifted:
a. POvwill need to revisit the grounds for each suspension. For the suspension to remain in place, PO
must show:
i. areasonable and proper cause for the suspension (eg. a reasonable suspicious of
impropriety by the SPM); and
ii. that PO is not in breach of contract itself. This could take many forms but will mainly focus on
PO failing to reasonably investigate shortfalls (being a requirement under the implied terms).
b. Good faith also requires PO to consider the length of the suspension. Post Office must act
promptly. If PO has not promptly investigated the circumstances of a suspended SPM then PO will
be in breach and the suspension will have to be lifted.
3. Where an SPM is seeking compensation for not being paid when suspended:
a. PO will need to pay the SPM for any ongoing period of suspension and any back-period of
suspension. This applies regardless of whether the suspension was justified or not (ie. regardless of
2 above).
b. Ifa historic suspension was unlawful in the first instance, or carried on for longer than was lawful,
compensation may be due. But because pay during suspension is now always required (see (a)
above), the level of compensation may not be substantially more than PO is already required to pay.
4. Where an SPM is claiming that they have been unlawfully terminated for breach:
a. POvwill need to show that the SPM committed a repudiatory breach of contract. The following should
amount to repudiatory breach (this list is non-exhaustive but covers most circumstances):
i. Theft by the SPM.
fi. False accounting by the SPM (unless there are extenuating circumstances).
iii. A significant value of shortfalls have been suffered AND they have shown to have been
caused by the SPM (see 1 above).
b. If there has been a repudiatory breach, then no compensation is due.
c. If there has not been a repudiatory breach, then compensation is due for the failure to give sufficient
notice (see below).
5. Where an SPM is claiming to have been given insufficient notice:
a. Togive notice to termination, Post Office must:
i. establish a reasonable and proper cause for the termination (eg. a material / repeated
operational failing by the SPM);
POL00107189
POL00107189
POL00107189
POL00107189
ii, establish that PO is not in breach of contract itself. This could take many forms but will
mainly focus on PO failing to reasonably investigate shortfalls (being a requirement under the
implied terms); and then
ili. set the length of the notice period in good faith (noting that Fraser J indicated that it was
unlikely that PO would be required to give more than 12 months' notice).
b. If PO has given unlawful or insufficient notice to terminate, then compensation will be required.
The above legal principles reflect the CIT judgment and set a framework for when compensation is due. The CIT
Judgment does not determine how much compensation is due — this is the subject of the FIT. Assuming the case
settles, a policy will need to be developed by the business on what Post Office would offer in each of the above
circumstances because there is not a clear legal answer (as can be seen from the parties contested positions in the
FIT). That policy would need address at least the following:
« Length of notice period (12 months? 26 months? 12 years? To retirement? — my suggestion would something
not exceeding 18 months)
Whether to make deductions from PO remuneration compensation to reflect SPM business expenses?
Whether to include retail losses?
Whether to include capital losses?
Whether to include stigma losses?
Whether to pay interest on compensation?
Kind regards
Andy
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP
Sign up for legal updates, e-newsletters and event invitations
_-S>
}) WOMBLE womblebonddickinson.com
BOND
DICKINSON ® G)
To: Andrew Parsons
Cc: Emanuel, Catherine
Brauer F
Subject: RE: Plan for historic claims [WBDUK-AC.FID26896945]
Rodric Williams <.
Hi Andy
I really need the legal principles (even at a high level). In what circumstances would we pay; what wouldn’t we pay;
etc Can someone please send them to me. We have sat on these for 6 months there must be some view as to the
legality of the claim? Id like a high level understanding before 11;30 tomorrow as I have GE and will need to
communicate it.
Thanks
Ben
POL00107189
POL00107189
POL00107189
POL00107189
oe
Ben Foat
Group General Counsel
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
This email and any attachments are confidential and intended for the addressee only. If you are not the named recipient, you
must not use, disclose, reproduce, copy or distribute the contents of this communication. If you have received this in error, please
contact the sender by reply email and then delete this email from your system. Any views or opinions expressed within this email
are solely those of the sender, unless otherwise specifically stated.
POST OFFICE LIMITED is registered in England and Wales no 2154540. Registered Office: Finsbury Dials, 20 Finsbury Street,
London, EC2Y 9AQ.
From: Andrew Parsons i
Sent: 29 Novem!
To: Ben Foat! GRO
Subject: Plan for historic claims [WBDUK-AC.FID26896945]
Ben
As discussed.
* Split the 33 historic claims into two buckets. Claims that arise out of events after late 2018 onwards ("new
claims") and those that arise out of truly "historic" events. The line in the sand of late 2018 has been selected
to reflect when new ops processes went live / HNG-A was live.
e New claims sit with Julie's new team under her new investigation processes.
e Historic claims to be investigated by Angela's team. Lawyers then to input with final decisions to be escalated
to a decision group (members TBC) for approval.
e Probably need to wait until January / February next year before making final decisions to avoid risk of setting
precedents in case there is a flood of claims off the back of the HIT judgment. This is to be balanced against
the need to crack on and get these claims resolved.
« Angela and others are speaking on Monday morning to discuss further. Angela will then update you.
lll do you a separate note on the legal issues involved.
Kind regards
Andy
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP
womblebonddickinson.com
O®
POL00107189
POL00107189
POL00107189
POL00107189
Please consider the environment! Do you need to print this email?
‘The information in this e-mail and any attachments is cont
this e-mail and any attachments. If you are not ben.foat”
Unauthorised use, dissemination, distribution, publicatioit
use personal data is in our Privacy Policy on our website.
be legally privileged and pyotected hy. Jaw. ben foat! nly is authorised to access
iplease notify andrew.parson,_ as soon a8 possible and delete any copies.
is communication or attachmeiits is prohibited and may be unlawful. Information about how we
Any files attached to this e-mail will have been checked by us with virus detection software before transmission. Womble Bond Dickinson (UK) LLP accepts no liability for
any loss or damage which may be caused by software viruses and you should carry out your own virus checks before opening any attachment.
Content of this email which does not relate to the official business of Womble Bond Dickinson (UK) LLP, is neither given nor endorsed by it.
This email is sent by Womble Bond Dickinson (UK) LLP which is a limited liability partnership registered in England and Wales under number 0C317661. Our registered
office is 4 More London Riverside, London, SEI 2AU, where a list of members’ names is open to inspection. We use the term partner to refer to a member of the LLP, or an
employee or consultant who is of equivalent standing. Our VAT registration number is GB123393627.
Womble Bond Dickinson (UK) LLP is a member of Womble Bond Dickinson (International) Limited, which consists of independent and autonomous law firms providing
services in the US, the UK, and elsewhere around the world. Each Womble Bond Dickinson entity is a separate legal entity and is not responsible for the acts or omissions
of, nor can bind or obligate, another Womble Bond Dickinson entity. Womble Bond Dickinson (Intemational) Limited does not practice law. Please see
swww,womblehonddickinson,com/legal notices for further details,
‘Womble Bond Dickinson (UK) LLP is authorised and regulated by the Solicitors Regulation Authority.
RAR AB a ae a ee a ee eK eR ae ae ee a ae ae eo oo oa oo oe ae eo a teak a a aa a took ak
I This email and any attachments are confidential and intended for the addressee only. If you are not the
I named recipient, you must not use, disclose, reproduce, copy or distribute the contents of this
communication. If you have received this in error, please contact the sender by reply email and then delete
this email from your system. Any views or opinions expressed within this email are solely those of the
sender, unless otherwise specifically stated.
POST OFFICE LIMITED is registered in England and Wales no 2154540. Registered Office: Finsbury
Dials, 20 Finsbury Street, London EC2Y 9AQ.
HS HS Io ioiioiok soi icicioi ik iainioi iii a icicicick ainioick disisick ackicik ak iediok ik dee ak eabskok ok
“Post Office Limited is committed to protecting your privacy. Information about how we do this can be
found on our website at www.postoffice.co.uk/privacy”
POL00107189
POL00107189