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WOMBLE
CONFIDENTIAL AND LEGALLY PRIVILEGED BOND
POST OFFICE GROUP LITIGATION DICKINSON
DECISION PAPER: Proposal for the March 2019
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jal and a Long Term Strategy for the Group
Litigation
BACKGROUND
The Court has ordered a trial in November 2018 to deal with the Common Issues around the
standard subpostmaster contracts. The Court has also set aside (on its own volition) a 4 week
window in March 2019 for a further trial and it is up to the parties to formulate proposals on the
issues to be tried in that window. By July 2018 the parties need to have held discussions and
sought to agree those proposals, and in September 2018 the Judge will decide upon the matters
to be heard in March 2019.
WBD have a meeting with Freeths on 22 December 2017 which is primarily to discuss the
disclosure of further documents that should be given by Post Office. Following this, there is a
hearing on 2 February 2018 at which the Court will make disclosure orders, if the parties have
not agreed on disclosure.
The challenge is that the scope of the documents to be disclosed is tied to the purpose for which
disclosure is being given, and the purpose of the March 2019 hearing and any steps thereafter
have not yet been set. The meeting on 22 December 2017 and hearing on 2 February 2018 are
therefore likely to move beyond just issues about disclosure into a broader conversation about
the future of this litigation.
This paper therefore seeks Post Office's approval of WBD’s proposal for what issue should be
tried at the March 2019 hearing and, in addition, the long term strategy for this litigation so that
we may be on the front foot at our upcoming meeting with Freeths. It sets out our view from a
legal perspective on the best way to proceed but we would welcome the PLSG's views on the
commercial and operational impacts of this strategy.
FUTURE PLANS
As per the Court's directions, WBD and Counsel have given careful thought to the issues which
could be meaningfully tried in March 2019. As a result of the claims being so diverse, it has
been difficult to find a discrete "common issue" that could be prepared for trial in March 2019
and be of such impact that it would likely move this litigation materially close to an overall
conclusion. Having discussed this with Counsel, Jane, Rodric, Mark and Ben Foat, we are in
collective agreement that we should suggest using the March 2019 hearing to have those cases
with limitation issues or have been previously settled (through NT or the Mediation Scheme)
struck out. This would potentially reduce the number of Claimants by up to 50%.
Although this would be obviously advantageous to Post Office, the limitation and settlement
issues are not straightforward, turning on whether Post Office concealed problems with Horizon
and its operating practices, in particular whether it concealed "remote access" to Horizon.
Addressing these issues will require targeted disclosure, witness evidence and expert evidence.
We suspect that Freeths are already finding the level of work involved in this litigation
challenging and as such, it may be that they and the Court object to this proposal on the grounds
that there would be insufficient time to properly prepare for it (given that that preparation would
need to take place between September 2018 and March 2019 when the parties will already
preparing for the Common Issues trial in November 2018).
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However, it is remains our belief that this should, in the first instance at least, be tabled as a
possible proposal. It allows Post Office to observe the Court's directions whilst providing WBD
with an opportunity to shape the long term direction of the litigation in favour of Post Office,
through proposing for a more significant trial to take place in 2020. Such a proposal should also
illustrate to Judge Fraser as desire to manage this complicated piece of litigation constructively.
Although the CMC Order does not require the parties to submit proposals until July 2018 for the
future of this litigation beyond November 2018, we believe that the scope of the disclosure to be
agreed now should, with a view to maximising efficiency, be tied into the future course of this
litigation and that there may be advantages to setting that in motion now.
At some stage the Court will need to address questions of breach, causation and loss in order to
determine the claims being put forward by the Claimants and until it does so the parties will not
know where they stand on these matters. Rather than taking a piecemeal approach and
addressing each issue at a separate trial, we would like to tackle each issue at one large trial.
This would be achieved through trying and deciding around 16 Lead Cases.
Each of Claimant's cases are factually sensitive so it is unlikely that the 16 Lead Cases would be
sufficiently analogous to other cases in the Group such that they automatically determine (in a
legal sense) all of the Claimants’ claims. However, a clear decision on the Lead Cases should
give a strong indication to the parties of the likely outcome of other similar cases, thus creating
more common ground between the parties on which this litigation might be resolved without the
need for 562 separate trials or some other equally time-consuming process.
We believe that, following this “Lead Cases Trial”, it should be possible to put most of the claims
into sub-groups, with each sub-group being reflective of a particular Lead Case or issue heard at
the Lead Cases Trial. This would then allow the parties to see which claims could be
discontinued, conceded, settled or subject to further litigation, depending on their status and
prospects of success. This should move this litigation much closer to being concluded in the
most efficient manner.
A trial of this nature would be a significant exercise taking around 18 months to prepare for
(starting in earnest after the November 208 trial), the actual hearing will likely last for around 10-
12 weeks and it will come at a considerable cost. To ensure it is not delayed further, we would
propose beginning some of the preparations for it now and for it to run in parallel with any
matters that might be heard in March 2019. On this basis, it could be heard in October 2020 or
maybe, with Freeths' full cooperation, in May 2020.
RISKS AND ADVANTAGES
The Judge wishes to progress this litigation swiftly. At the last CMC, this caused him to book
hearing time in March 2019 without properly assessing whether anything meaningful, which
would advance this complicated piece of litigation forward, could be tried at this hearing. We
now suspect that he will be looking for a route that enables him ‘back track’ from this order
without embarrassment. The proposal above would allow him to do exactly this because, upon
proper consideration, a Lead Cases Trial would accelerate the overall resolution of this litigation
by getting the majority of the key issues before the Court as soon as possible.
The main alternative to this approach is to wait until after the March 2019 trial before addressing
the longer term strategy with Freeths and the Court. This would likely mean not hearing any
subsequent Trial until the end of 2021. Our plan therefore reduces the length of this litigation by
12 months, whilst also allowing for a hearing in March 2019 if a suitable topic for that slot can be
agreed.
Another alternative would be to try to continue to dissect this litigation topic by topic and hear
each topic at a separate hearing, on the assumption that each topic has some common effect on
all the Claimants. For the reasons stated above, we believe that this approach would overall
take longer, cost more and ultimately fail due to the diversity of the claims in this litigation.
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3.4 To mitigate the risk of the Court misunderstanding our proposal as being an attempt to delay this
litigation, we intend to write to Freeths setting out the proposal for a Lead Claimants Trial in very
gentle terms. We wish to draw out their views on this plan, whilst making clear that we are open
to all other reasonable options including a March 2019 trial. In doing so, we will be showing the
Court an impetus to get on with this litigation whilst also being flexible and cooperative with the
Claimants, which was the Judge's desire at the CMC.
3.5 Setting out a plan for a Lead Cases Trial will also assist us with disclosure. If we do not table a
long-term plan that includes disclosure at relevant stages then that might allow the Claimants to
push for full disclosure of everything up front (and at massive cost to Post Office) because there
is no alternative option.
4. RECOMMENDATION
41 It is our recommendation that WBD share with Freeths its proposals for the March 2019 trial and
for a Lead Cases Trial to take place in 2020.
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