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2017
Protocol governing Second Sight’s interaction with Freeths for the
purposes of the Claim
Freeths LLP “)
Post Office Limited ® and
Second Sight Support Services Limited ®
DATE
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PARTIES
(1)
(2)
(3)
Freeths LLP (Company No. OC304688) (in their capacity as solicitors for the Claimants) of 80
Mount Street, Nottingham, Nottinghamshire, United Kingdom, NG1 6HH (Freeths);
Post Office Limited (Company No. 02154540) of Finsbury Dials, 20 Finsbury Street, London,
EC2Y 9AQ (Post Office); and
Second Sight Support Services Limited (Company No. 06844000) of 7 Canon Grove, Yarm,
TS15 9XE (Second Sight).
BACKGROUND
(A)
(B)
(C)
(D)
(E)
(F)
A group litigation action has been brought by a number of former and current postmasters and
others (the Claimants) against Post Office under Claim Number HQ16X01238 (the Claim). As
part of the Claim, the Claimants wish to approach and seek information from Second Sight. The
Claim is the subject of a Group Litigation Order dated 22"4 March 2017 (the GLO).
Post Office engaged Second Sight in June 2012 to investigate Horizon and the issues being
raised by a number of Postmasters. Second Sight's work involved (1) an original inquiry
investigating Horizon from a general perspective, which work concluded in July 20143; and (2)
investigating the circumstances of individual complaints through the “Complaint Review and
Mediation Scheme”, which work concluded in July 2015.
Second Sight’s engagement was recorded in a letter dated 1 July 2014 (the First Engagement
Letter) which required Second Sight to maintain confidentiality (clause 6) and not to publicly
discuss its work (clause 8) (the Confidentiality Obligations). The subsequent engagement
letter dated 15 April 2015 (the Second Engagement Letter, together with the First Engagement
Letter, the Engagement Letters) restated the Confidentiality Obligations.
In addition, non-disclosure agreements were entered into between Post Office and key personnel
at Second Sight, including the NDAs between lan Henderson dated 31 May 2012 and Ron
Warmington dated 1 June 2012 (the NDAs). Second Sight also undertook and agreed in
October 2012 that certain material was provided to them without waiver of privilege (the
Privilege Undertaking).
Post Office and Second Sight obtained material from Postmasters that is or may be the subject of
confidentiality obligations owed to those persons and/or covered by data protection law. None of
the parties observing this Protocol thereby makes any admission or concession as to the scope
or enforceability of such obligations arising thereunder or under the First Engagement Letter.
The purpose of this protocol is to maintain any such confidentiality or privilege in the material held
by Second Sight, save as expressly otherwise provided in this Protocol. This protocol governs
the agreed basis on which Post Office agrees that Freeths can access Second Sight and sets out
the basis on which Second Sight is released from the Confidentiality Obligations, obligations
under the NDA, and Privilege Undertakings so as to enable them to do so.
AGREED TERMS
1.
4.4
1.2
DEFINITIONS
Unless otherwise defined in this protocol, capitalised terms have the same meaning as they have
in the Letter of Response from Bond Dickinson dated 28 July 2016.
“Document” means anything in which information of any description is recorded including but not
limited to emails and other communications, word processed and electronic documents, and
databases, as well as copies of Documents.
1.3
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3.1
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“Information” has its natural meaning and includes any knowledge communicated by Second
Sight to Freeths (or anyone).
COMMENCEMENT AND DURATION
This protocol shall commence on the date when it has been signed by all the parties and shall
continue until the end of the Claim unless terminated in accordance with clause 8.
ACCESS TO SECOND SIGHT AND RELEASE
Subject to the provisions of paragraphs 3.1.1 to 3.1.5, Post Office hereby releases Second Sight
from the Confidentiality Obligations and obligations under the NDAs solely for the purposes of
discussing with Freeths (and Counsel or Expert(s) engaged by Freeths) the work undertaken by
Second Sight to the extent required for the purposes of the Claim.
3.1.1 Freeths shall not request and Second Sight must not provide Freeths with any
Documents. Any requests for Documents must be addressed to Post Office's
solicitors, Bond Dickinson LLP (Bond Dickinson).
3.1.2 The discussions shall only be between Freeths, Counsel or Expert(s) engaged by
Freeths, Alan Bates and lan Henderson and Ron Warmington of Second Sight.
3.1.3 Subject to paragraph 3.1.5, the topics for initial discussion with Second Sight (the
Initial Topics) pursuant to this protocol (and as agreed by Bond Dickinson’s letter
dated 218 March 2017) shall be as follows:
e System architecture;
e The installation and implementation of Horizon, and Horizon Online, and the
variation between, and capability of, the two;
* Horizon updates, modifications and software versions since installation;
¢ Transaction corrections;
e The functionality and capability of Post Office helpline and the technical helpline
operated by Fujitsu;
e Hardware problems;
* The Management Information System or Services and ability of the Horizon
system to report on reconciliation;
¢ Errors, bugs, fixes, issues and ‘peaks’ including, but not limited to, those three
known errors in the system listed in Schedule 6 of Bond Dickinson’s letter dated
28 July 2016 (Calendar Square / Falkirk, payments mismatch, Suspense
Account Bug);
e The ‘known error log’ document(s);
e The extent of error repellency in the Horizon system;
« The reduced reboot clause in Schedule B4.4 of Post Office’s agreement with
Fujitsu; and
I
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3.2
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4.2
5.1
5.2
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* Post Office’s access to transaction information and its agreement with Fujitsu in
respect of provision of such information.
3.1.4 The parties agree to co-operate in identifying and agreeing further relevant topics for
discussions to be permitted under this protocol.
3.1.5 Notwithstanding any other paragraph in this protocol, Freeths and Second Sight shall
not discuss the following categories of Information unless Bond Dickinson's prior
written consent is obtained:
(a) Information concerning any actual or contemplated criminal prosecutions
conducted by either Post Office, Royal Mail, the Procurator Fiscal or Public
Prosecution Service for Northern Ireland and any Information relating to the
security investigations, internal decisions of Post Office or other steps taken by
Post Office in relation to these prosecutions;
(b) Information concerning any actual or contemplated civil proceedings and any
Information relating to the investigations, internal decisions of Post Office or other
steps taken by Post Office in relation to these proceedings;
(c) Information which relates to postmasters who are not Claimants;
or
(d) any Information which is (and/or Second Sight believes may be) privileged.
3.1.6 In the event that it is unclear to Freeths whether Information would fall within the above
categories, Bond Dickinson's clarification should be sought prior to the Information
being discussed. Post Office will ensure that Bond Dickinson provide reasonable
cooperation in relation to providing such clarification.
For the avoidance of doubt, Second Sight is also released, to the extent necessary and only for
the purposes of this protocol, from their obligations in the First Engagement Letter that they
would not act for former or current subpostmasters against Post Office.
USE OF INFORMATION
The Information provided by Second Sight to Freeths shall be kept confidential and shall not be
used otherwise than for the purpose of the Claim and the Claimants and Freeths shall treat the
Information as if it had been derived from documents disclosed pursuant to standard disclosure
(that is to say, subject to the restrictions in CPR 31.22).
This clause 4 shall also apply to any Documents provided by Second Sight to Freeths in breach
of this protocol.
PRIVILEGED MATERIALS
If Second Sight or Freeths become aware that privileged Documents or Information have been
handled in a way not in compliance with this protocol, Bond Dickinson should be informed
immediately.
If, contrary to and in breach of its obligations hereunder, Second Sight provides or supplies
Documents and/or privileged Documents or Information to Freeths:
5.2.1 this shall not amount to a waiver of the privilege which subsists in any Documents or
Information in which privilege shall apply; and
5.2.2 Post Office reserves its position to prevent privileged Documents or Information being
relied upon or adduced as evidence in Court.
6.1
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8.1
8.2
9.1
10.
10.1
10.2
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SECOND SIGHT'S COSTS
Post Office is not responsible for any fees, costs or expenses incurred or charged by Second
Sight in connection with this protocol.
DATA PROTECTION
In relation to any personal data passed from Second Sight to Freeths, Second Sight and Freeths
shall each be acting as data controllers in their own right.
TERMINATION
In the event that Freeths or Second Sight breach the terms of this protocol by (including but not
limited to):
8.1.1 Freeths requesting or Second Sight providing Documents;
8.1.2 Freeths requesting or Second Sight providing Information which falls within the
categories set out in clause 3.1.5 above; or
8.1.3 Freeths or the Claimants using the Information other than in accordance with clause 4
above;
then Post Office may terminate this protocol with immediate effect by giving written notice to
Freeths and Second Sight.
In the event that this protocol is terminated:
8.2.1 the permissions and releases provided in clause 3 above will cease to have effect and
any discussions between Second Sight and Freeths will stop;
8.2.2 the obligations under clauses 4 and 5 will remain in force insofar as they relate to
Information and Documents provided prior to termination; and
8.2.3 clause 6 will remain in force.
RESOLUTION OF ISSUES ARISING UNDER THIS PROTOCOL
Any issues, disputes or matters for resolution or determination relating to this protocol shall be
referred to the Managing Judge or the Managing Master nominated to manage the GLO.
GENERAL
This protocol shall not have contractual force other than between Post Office and Second Sight
to the extent necessary for this protocol to be effective.
Any variation of this protocol shall be in writing and signed by each party.
Signed by , James Hartley, partner, for and on
behalf of Freeths LLP
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Signed by [name] for and on behalf of Post Office
Limited
Signed by [name] for and on behalf of Second
Sight Services Limited