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17 April 2018 ‘Womble Bond Dickinson (UK) LLP_
Oceana House
39-49 Commercial Road
Third Letter Seon
For the Attention of Mr J Hartley
Freeths LLP
Floor 3
100 Wellington Street
Leeds Ourret:
LS1 5LT AP6/JGSX/364065.1369
Your ref:
By email only JXHI1684/2113618/1/MA
Email
Dear Sirs
Post Office Group Litigation
Horizon Issues Trial
41. We refer to your second letter of Friday, 13 April 2018.
2. The meeting between us and our respective clients’ IT experts at your offices on 11 April 2018
was held pursuant to paragraph 11 of the Third CMC Order, which requires the parties to attempt
to agree:
° the scope of any further information or documents required about the Horizon system;
and
. a process for inspecting the Horizon system (if needed).
3. Your clients’ expert Jason Coyne very helpfully led the meeting by setting out the lines of enquiry
that he would like to explore in relation to each of the agreed Horizon Issues. He did this by
reading from a prepared list with sequentially numbered items. That list was not provided to us in
advance nor in writing at the meeting, but from our notes we estimated that there were around 60
lines of enquiry set out by Mr Coyne. We and our client's expert, Robert Worden, then
commented on those lines of enquiry as much as we and he could, given that we were
addressing these points as we heard them. The parties also discussed at a high-level what
further documents, information or inspection may be required to address each of Mr Coyne's
enquiries.
4. At the meeting Mr Coyne agreed to update his list of intended lines of enquiry by identifying the
documents, information and inspection that he is would like to see in relation to each enquiry so
that our client and Mr Worden could properly consider these requests. We had understood that
the document would be provided last week, but you now anticipate that it will be provided "early"
this week. We and Mr Worden agreed to comment on Mr Coyne's document with a view to the
parties reaching an agreement and avoiding the need for a further CMC in relation to the Horizon
Issues (or significantly reducing the scope of a further CMC). On that basis we all agreed,
subject to instructions, that a CMC on 20 April would be premature and an adjournment of around
4 weeks would be sensible.
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5. You now appear to have changed your mind about adjourning the CMC, unless an Order can be
agreed. In your 13 April letter you express concern that there is a risk of limited progress being
made between now and the re-listed CMC. However, you go on to say that "it ought to be
possible for the parties to agree a Consent Order in advance of 20 April, so as to enable progress
to be made by [your] Expert immediately" and you have provided a draft Consent Order on the
basis of which you would agree to the CMC on 20 April being vacated.
6. We are surprised by this change of tack and do not think that it is either helpful or efficient to be
requiring consent orders to be made at short notice before Mr Worden has even seen Mr Coyne's
list of lines of inquiry and associated document requests. Rather than continuing the constructive
discussions that are already underway, we are now having to spend time taking urgent
instructions and preparing for a hearing that should not be necessary. However, in the interests
of pragmatic cooperation and with a view to avoiding the necessity of incurring time and costs
preparing for that hearing, we enclose a draft order that our client is able to agree at this stage.
The draft order contains a schedule which in column 2 sets out the disclosure which you have
proposed and in column 3 sets out either the disclosure that our client can give or briefly explains
our client's difficulties with your proposed disclosure. We hope that this order can be agreed so
as make it unnecessary to proceed with a contested hearing on Friday.
7. Our client accepts that the experts require further information and documents, and that they may
benefit from inspecting aspects of certain systems. It is important however to keep each of these
matters separate as the applicable requirements and protections are different in each case.
8. We note that in the ordinary course of litigation the allegations that require expert opinion would
be pleaded, then directions for disclosure and witness evidence would follow. That would then
set the factual foundation on which to draw expert opinions. Due the lack of specify in the
Claimants’ pleadings so far, it has been necessary for the experts to engage at an early stage to
try to scope the Claimants’ allegations. This does not however give the Claimants license to
conduct a roving interrogation into Horizon in general, nor does it circumvent the rules on
disclosure and evidence.
Inspection
9. In paragraph 4 of your draft Order, you seek a direction for inspection of certain aspects of
Fujitsu's systems. As we explain below, our client is willing to facilitate an inspection of those
systems. However, the directions you seek include a requirement that employees of our client
and Fujitsu who have knowledge of the system dating back to 2000 should be present for at least
four days. It may be your intention that these individuals should be available, not just to explain
how to access and navigate those systems being inspected, but to answer unspecified questions
about what might be found, including questions about how Horizon worked 18 years ago. As you
may appreciate, if this were your intention, it would cause our client serious concern. In effect,
your clients would have the ability to interrogate potential witnesses about all manner of issues of
which our client would have no warning and over which it would have no control.
10. A further issue with conveying information via meetings is that, without a transcript of the entire
process, there is likely to be no definitive evidence in the event that there is a dispute about what
was said or what was meant in relation to particular points or the context in which points were
made. in the longer term, we believe that this may cause further disputes and delays.
41. We doubt that it is your intention to seek an order that raises these problems and we have
redrafted paragraph 4 of your Order in a way that avoids them. For this purpose, we have
tracked the wording used in paragraph 13(b) of the First CMC Order, providing for inspection of
the Known Error Log. When the KEL was inspected, personnel were on hand to explain how to
access and navigate it and to deal with basic questions in that regard, insofar as this was
necessary to enable the inspection to take place. Our client will ensure that this precedent will be
followed in this case also. No express wording is required for this purpose, just as it was not
required for the purpose of the KEL inspection.
12. Fujitsu have confirm that it is possible to inspect the Peak system. However, it does not have a
dedicated "Horizon Change Control and Release Management system". Its change control and
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release processes are a combination of policies and processes, rather than a specific system that
may be inspected. Many of the relevant documents in this regard will be in the Technical
Documents from the Dimensions system that are being disclosed as part of Stage 2 Disclosure.
There is one other system, known as TFS, that Fujitsu believes might be relevant. If that is the
case, then Fujitsu should be able to facilitate inspection of that system. We are waiting for
confirmation from Fujitsu on this point.
Information
Regarding the provision of information more generally, at last week’s meeting Mr Coyne
requested access to Fujitsu personnel on the basis that he believes that it "would be an effective
means by which information could be communicated". Mr Worden's view is that information is
best provided in writing and in this regard we refer you to CPR 35.9 which provides that:
“Where a party has access to information which is not reasonably available to another party, the
Court may direct the party who has access to the information to —
(a) prepare and file a document recording the information; and
(b) serve a copy of that document on the other party."
In Mr Worden's view, and ours, a preferable approach would be for your client to make written
requests for information and, where those requests are reasonable, proportionate and within the
scope of CPR 35.9, our client will provide answers to those questions in writing. A suggested
mechanism is included in our client's draft order.
As we noted at the meeting it is disappointing that Mr Coyne's lines of enquiry have not been
framed by reference to the nature of your clients’ Horizon complaints and we understand that Mr
Coyne has not spoken to the Claimants about their experiences of Horizon. It is a feature of this
litigation that, by your own admission, you are looking for issues that can be tied back to the
individual claims rather than working out whether there are any patterns in the issues complained
of that merit investigation.
Horizon is a large system and it would be benefit everyone if we could target inquiries at certain
alleged problem areas. It would help if you could therefore draw from the Claimants’ complaints
the key issues that they experienced whilst using Horizon. For example, if a large number of
Claimants encountered problems with a particular function within Horizon or product transaction,
then enquiries could focus on that subject, rather than potentially wasting time in areas that did
not affect any Claimants.
In response to this point, you will no doubt say that the Claimants cannot possibly know what
“bugs" there may be in Horizon. However, they must have experienced the (alleged) effects as
end-users for them to be able to bring their claims and they must have valuable information to
provide. We note that if there are no common trends among the Claimants then this in itself is
probative evidence about Horizon and may well be useful for future case management.
We are giving further thought to whether more information needed from the Claimants in relation
to the Horizon Issues and have therefore made the mechanism for requesting information under
CPR 35.9 mutual to both parties. More generally, we would welcome a discussion with you
about a process whereby an analysis of their actual experience of Horizon can be produced in
parallel with our client providing information about Horizon.
Documents
Regarding the disclosure of further documents, Model C disclosure continues to apply such that
requests must to be tied to a particular line of enquiry and sufficiently narrow. Having reviewed
your requests, they repeat the difficulties that were encountered when trying to agree the classes
of documents for disclosure in relation to the Common Issues Trial. In particular, the requests.
are often very wide and imprecisely worded, and they are not limited to specific individuals or by
date ranges. In many cases, they do not describe a class of documents, but identify an issue or
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21.
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type of information that is to be found in a document. As we have said before, this is not what
was intended by Model C disclosure.
Where possible our client's draft Order has re-cast your requests to make them sufficiently
narrow for Model C disclosure to be given. Please note that it has also removed all your loose
references to "information" in Schedule 1, on the basis that information requests — once properly
formulated — should be dealt with in accordance with the procedure discussed above.
Timing
We propose bringing forward the disclosure of the Known Error Log (which formed part of Stage
2 disclosure) from 18 May to 4 May 2018. We are also exploring whether it will be possible to
bring forward disclosure of the c.80,000 Technical Documents (also part of Stage 2 Disclosure),
which would otherwise be disclosed by 18 May 2018. This will be at least 80,000 documents for
the experts to consider and they can review these whilst we action the above requests for further
documents and information.
As you know, this is an extremely busy period for our client. It has the CMC on Friday 20 April,
the Security for Costs hearing on 30 April and by 18 May it needs to serve its Defences to the 6
Individual Particulars of Claim and give Stage 2 Disclosure, which will extend to more than
100,000 documents. Although our client has committed substantial resources to this litigation, it
does not have the manpower to take on a further parallel disclosure exercise in this period. The
earliest date by which it can give further disclosure is 1 June 2018.
Some of the topics that your expert raised at the meeting were quite complex and, assuming that
these are reflected in your information requests, it could take some time to collate any properly
formulated responses, but our client would hope to provide this information by no later than 29
June 2018 and it will provide it sooner if possible.
We believe that the above reflects a reasonable and achievable timetable, in contrast to your
request for disclosure and information to be given within two weeks (by 2 May 2018).
Our view remains that it would be sensible to adjourn the CMC in order to give the parties an
opportunity to reach an agreement once we are in receipt of Mr Coyne's document. If you are
not prepared to agree to this we enclose a draft Consent Order for Friday's CMC. The key
differences between our client's Order and your Order are:
(a) Post Office's Order deals with requests for documents separately from requests for
information.
(b) Those disclosure requests that are appropriate have been agreed where possible or re-
cast in narrower terms where drafted too widely. We have also limited these to
electronic documents only as these are more likely to hold relevant information and are
more cost effective to locate than hardcopy documents.
(c) Post Office will facilitate access to Fujitsu's systems as described above. We confirm
that, as with the KEL, Fujitsu personnel will be available to explain how to access and
navigate the systems being inspected and to answer any appropriate questions in that
regard.
(d) The Order provides a mechanism for reasonable and proportionate requests for
information under CPR 35.9.
We agree to your two variations to the Third CMC Order, although we note that by bringing
forward these dates this may limit the time available to provide documents and information,
meaning that requests will need to be limited appropriately or information provided after these
dates have passed.
We hope that, on a pragmatic basis, the parties can agree this order, or something very like it,
while discussions between the experts proceed. Please provide your comments on these
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proposals by 12 noon on 18 March 2018. If an agreement cannot be reached, then we propose
that skeletons are filed and exchanged by 10.30am on 19 March 2018.
Yours faithfully
Womb. Borel Dickirsn (ie) LLE
Womble Bond Dickinson (UK) LLP
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