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www.bonddickinson.com
21 March 2017 Bond Dickinson LLP
Oceana House
39-49 Commercial Road
Southampton
S015 1GA
Freeths LLP
100 Wellington Street
Leeds
West Yorkshire
LS1 4LT
F Our ref
By email only GRM1/AP6/364065.1369
Your ref:
JXH/1684/211361/KL
Email: james.hartley
Dear Sirs
Bates & Others -v- Post Office Limited
Claim number: HX16X01238
Second Sight
We write further to your letter of 17 March 2017 regarding Second Sight and various disclosure requests.
4. Your requests
1.4 Before addressing each of your requests for information and documents, it is important to place
these requests in context.
12 Your firm has now been engaged for over 15 months but you are yet to provide our client with a
single document in support of your clients' claims. Indeed, you have not even set out the
substance of any particular claim made against our client. We have requested that you do this
on numerous occasions and you have refused.
1.3 No order for disclosure has yet been made, nor could one indeed be made given that the claims.
against which disclosure would be given have not been particularised, either in correspondence
or Court documents. Despite this, you continue to press our client to undertake full-scale
disclosure exercises.
14 Moreover, the claims have not been valued. We anticipate that once the claims are properly
valued, having been stripped of inflated and unsustainable figures, their true value will not justify
the extensive disclosures that you are seeking.
1.5 You make much of the Master Fontaine's wish for the parties to cooperate but you and your
clients have not shown any cooperation, in that you have not provided our client with the
information it has sought from you time and time again (e.g. in relation to security for costs and
the 5 occasions on which we requested the same confirmation on the position of Therium).
1.6 All of this is taking place in a context where the majority of the claims are bound to fail as they are
time-barred and/or being brought by Claimants who have already been found guilty of
dishonesty.
1.7 In such circumstances, our client is quite correctly being prudent about incurring substantial costs
for arguably negligible benefit and will therefore continue to weigh carefully any requests for
information and documents.
Bond Dickinson LLP is a limited liability partnership registered in England and Wales under number OC317661. VAT registration number is
GB123393627. Registered office: 4 More London Riverside, London, SE1 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. Bond Dickinson LLP is authorised and
regulated by the Solicitors Regulation Authority.
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1.8 In terms of the timings of your requests:
1.8.1 since 26 January 2017 (at the GLO hearing) it has been known to you that the Generic
Particulars of Claim (GPOC) would be due on 23 March 2017;
1.8.2 however, following the GLO hearing, the matter of access to Second Sight was not
raised again until 24 February 2017; and
1.8.3 prior to this the last we had heard from you on the matter was in James Hartley's
Second Witness Statement on 12 January 2017 (which merely set out the previous
correspondence between the parties and did not provide any proposals or seek to
progress the matter).
1.9 In the lead up to the deadline for the GPOC, there has been no urgency by you to deal with this
matter. As such, you have caused any time pressures which you now face in drafting the GPOC.
This pressure should not be shifted to our client via unreasonable demands for quick responses
and requests for swathes of documents, which we can only view as prelude to a request for an
extension of time for the filing of the GPOC.
1.10 Notwithstanding the above, in the interest of providing a response prior to the GPOC being
served, we write to you as requested by close of business today. You will appreciate that our
client is not able to provide a full response to all of the matters raised given the limited time
available.
2. Access to Second Sight
24 Thank you for setting out for the specific topics that you wish to discuss with Second Sight. We
note that we requested this information in our Letter of Response and additionally on 18 August
2016, 31 August 2016 and 10 March 2017. Subject to agreeing how to protect privileged
material, Post Office agrees these are relevant topics which could be discussed with Second
Sight.
2.2 There is also further agreement between the parties that Post Office's privileged information must
be protected. As explained in our letter of 30 November 2016, it would not be suitable to place
on Second Sight the burden of filtering out privileged material given that they are not lawyers and
we would be surprised if they were prepared to take on such a heavy burden. As such, we invite
you (again — we refer to our letters of 18 and 31 August 2016) to put forward any proposals you
have for how you might engage with Second Sight regarding your proposed topics in a way that
protects privilege.
2.3 Our client's Protocol seeks to put in place a workable form of engagement by which Post Office's
privileged material is protected through ring-fencing high-risk areas. We note that your proposed
topics would not be precluded by the Protocol nor would they obviously fall within one of these
ring-fenced areas. Had you accepted the Protocol several months ago when it was first
proposed, you could therefore have engaged with Second Sight on your chosen topics far in
advance of the GPOC deadline.
24 You have yet to explain why the Protocol is "entirely unreasonable” (as per your letter of 15
December 2016). Your latest letter merely pointed us to the Second Witness Statement of
James Hartley on 12 January 2017 which as you stated only "summarises the correspondence
regarding access to information from Second Sight". \t does not explain why the Protocol is
unworkable or unreasonable.
25 What we are struggling to understand is why you will not agree to the Protocol as it would allow
you access to Second Sight at least on the core topics you have identified. Instead, you have
adopted the dogmatic view that you should be allowed entirely unfettered access, without offering
any hint of compromise, or alternative form of engagement, even though that stance places our
client's privileged material at risk.
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26 In the absence of any proposed alternative method by which to protect privilege, we maintain that
the Protocol represents a reasonable way to proceed and would allow you to discuss the topics
that you have raised.
3. Working Group documents
3.1 Our letter of 10 March 2017 did not refuse to provide access to Working Group documents (as
you allege) but rather asked you to confirm:
3.4.1 the specific classes of Working Group documents of which you seek disclosure; and
3.1.2 how these documents are relevant to the claims which you are asserting, given that
they are primarily about the operational mechanics of the Mediation Scheme.
3.2 You have not provided this information. Instead, and rather regrettably, you have chosen to
make inaccurate complaints about our client's conduct. Please therefore respond to the above
points.
4. Documents returned by Second Sight
44 In relation to your request that we provide the index of the 35,844 documents which were
returned by Second Sight, we are unable to do so since this index itself contains reference to
privileged material.
4.2 In any event, undertaking a review of 35,844 documents outside of a normal disclosure exercise
would be unreasonable and disproportionate. We invite you to explain why these documents
should be reviewed and, where appropriate, disclosed at this early stage of the litigation process.
If you say these documents are essential to the preparation of the GPOC, please also explain
why it is only now that you are raising this matter and, for example, why it was not raised with the
provision of the revised draft GPOC on 23 January 2017 or at the GLO hearing on 26 January
2017. At both of these stages it ought to have been known that further information was required.
5. Documents provided to Second Sight
6.1 We will provide an update in due course in relation to the encrypted hard-drive.
6. Other Disclosure requests
6.1 Our letter of 13 October 2016 explained in detail how locating the documents you have sought
would require an extensive disclosure exercise, one which in particular could not be completed
within the 4 day deadline which you now set.
6.2 Many of the requests made in your letter (as set out below) are repeats of previous ones with no
attempt made to explain why the documents are needed to finalise the GPOC, to narrow the
request, or to explain why the request for documents is only being made now (when the need for
these documents ought to have known when the revised draft GPOC were prepared).
6.3 As previously stated, a full disclosure exercise would be required to locate many of the
documents you have requested, a very substantial undertaking which at this stage is not
reasonable nor proportionate, particularly when no value has been placed on the Claimants’
claims. We address each request below.
/No, I DocumentRequest _-—_—+I Response :
1 Schedule of Horizon updates, We refer to our letter of 13 October 2016, which
modifications and software responded to the same request.
versions since installation and the
issues which each of the versions
addressed
A full disclosure exercise would be required to locate
these documents and no explanation of why it would be
reasonable and proportionate to undertake and provide
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No. Document Request Response
early disclosure of these documents has been provided.
2 Post Office internal notes, We refer to our letter of 13 October 2016, which
memoranda, correspondence, responded to the same request. I
emails and briefing documents This request appears to have been narrowed slightly to
regarding errors, bugs or . .
i i require disclosure of the documents which relate to
problems in Horizon, which Post tpi :
‘being a cause or potential cause of discrepancies or
Office had identified as being a hortfalls in branch ions.” Hi
cause or potential cause of shortfalls in branch accounts or transactions." However, I
discrepancies or shortfalls in a full disclosure exercise would still be required to locate
branch acount or transactions these documents as the only way to identify the required
information would be a manual review of documents.
3 Helpline documents for Choudry, We do not understand how this category of documents
Andre and Adedayo will assist with drafting the GPOC so we assume that this
request is not time sensitive.
Mr Choudry and Miss Andre were both applicants to the
Mediation Scheme and would have received their
Helpline logs during the course of this. Please confirm
that you have made enquiries of your clients for these
documents.
We are making enquiries into Mrs Adedayo.
4 Known Error Log You have not explained the need at this stage for
I disclosure of this document or how it will assist with
finalising the GPOC. If this document is instead required
to identify issues in individual branches then these claims
should be set out before disclosure is sought.
5 Documents relating to Post We refer to our letter of 13 October 2016, which
Office's disclosure to Second addressed this request. We have also already provided
Sight that, in 2011 and 2012, it documents relating to this request on 31 August 2016.
had discovered defects” in A full disclosure exercise would be required to locate
Horizon online that had impacted further di d f . f why i Id b
76 branches ‘urther documents ant no exp! janation of why it would be
reasonable and proportionate to undertake and provide
early disclosure of these documents has been provided.
I In addition, Second Sight addressed this matter in their
I July 2013 Interim Report (to which you have access).
6 2008 Fujitsu and Post Office To be discussed following a decryption of the hard drive
emails (if possible).
7 Emails disclosed to Second Sight I To be discussed following a decryption of the hard drive
(if possible).
8 Documents referred to in Protocol « NDAs for the individuals at Second Sight - each
of which contains confidentiality provisions and
cover the first phase of Second Sight's work
before the Mediation Scheme commenced.
e Privileged material side letter dated 19 October
2012 which made clear the basis on which
privileged material was being provided to Second
Sight, namely that such material should remain
confidential.
e Engagement letter (provided to you on 31 August
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Document Request
Response oo I
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2016), Side letter dated 1 July 2014 and the I
Agreement to Complete Work dated 15 April 2015!
which set out Second Sight's scope of work in I
relation to the Mediation Scheme. These
documents include further confidentiality
obligations. I
64
We are concerned by the wide-ranging requests for substantial disclosure to be provided 2 days
before you are due to file the GPOC.
In circumstances where were we have been
corresponding on this claim for 15 months and the revised draft GPOC was provided 2 months
ago, there has been plenty of opportunity to address the disclosure of documents before now.
Yours faithfully
‘Bok Usevanson Li?
Bond Dickinson LLP
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