POL00124444
POL00124444
DAC beachcro
Confidential emo
To: Rodric Williams and Chris Aujard
From: Stephen Hocking
Office/Location: London - Fetter Lane
Extension
Date: 10 June 2014
Matter: Complaints review and mediation
A bullet point summary of the key points from our discussion yesterday:
e Option 3 is relatively high risk, both for a finding that POL is governed by public law, and for a
finding that option 3 is unlawful. The key risk is "legitimate expectation", je, that POL will be
held to promises made for reasons of fairness/good administration.
e This is not an ideal case to test whether POL is governed by public law. (1) the subject
matter of the case is network wide, and to do with fair determination of disputes, and (2) well
chosen claimants would be attractive to the courtywhiehmight then seek to stretch the law to
find them a remedy.
e The risk of option 3 being found to be unlawful will be much reduced if we run a stakeholder
engagement exercise first. This-does net reduce the:tisk that POL will be found to be subject
to public law, only that it would be*found toybe in breach.
e Option 2 should not give rise to a risk of (successful) challenge, as it is working within existing
promises. JFSA will have to come close to alleging bad faith. So long as we have evidence
based reasons for our position recorded at the time, this will be very difficult for them.
¢ If robust enforcement of option 2:causes JFSA to walk away from the scheme, we would have
a much freer hand to introduce option 3. We would be able to argue that JFSA had made this
necessary, and'that POL cannot be held to promises that have become unworkable due to
the actions of others: