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19 July 2018 Womble Bond Dickinson (UK) LLP
Oceana House
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Southampton
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Freeths LLP oo
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By email only Our ref:
AP6/AP6/364065. 1369
Your ref:
Email: james.hartley, GRO _I imogen.randall GRO I
Dear Sirs
Post Office Group Litigation
Inadmissible Evidence
We write in advance of the service of witness statements.
Your clients’ Individual Particulars of Claim, served on 13 April 2018, traversed a large number of matters
which were apparently irrelevant to determination of the Common Issues. These included extensive
pleading on various matters alleged to have occurred after entry into the relevant contracts, including
complaints as to the training received by the Claimants and their assistants, the Claimants’ experiences
of Post Office’s Helpline, the introduction and withdrawal of products or services to be offered in the
relevant Post Office branches, and the Claimants’ experiences of shortfalls, suspension and termination.
At the hearing held on 5 June 2018, Leading Counsel for Post Office highlighted Post Office's ongoing
concerns that your clients would serve extensive evidence relating to the performance of Post Office and
the Lead Claimants after a contract was agreed and alleged breaches of contract. The Learned Judge
observed that Post Office had made this point “four different times over a period of many months”
(Transcript, p.57).
For the avoidance of doubt, the Learned Judge underscored that both evidence of “what is said during
the negotiation of the contracts’, and of “the subsequent conduct of parties’, would be inadmissible
(Transcript, p.61).
Our letter to you dated 27 June 2018 asked for confirmation of your clients’ acceptance that “evidence of
matters that occurred only after the entry into the contracts will be inadmissible for the purposes of
construction’.
No reply to this letter has been received.
Instead, on 6 July 2018, your clients’ Individual Replies were served. These Replies amplified Post
Office’s concerns. Taking Mr Bates’ Reply as an example, it stated:
a. At paragraph 4.1, that all of the post-contractual matters identified by Post Office would be relied
upon in relation to the Common Issues;
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b. At paragraph 61.8, that Mr Bates would rely on “the experience of each of the other Lead
Claimants’ (in respect of training and support provided by Post Office);
c. At paragraph 61.9, that the difficulties which Mr Bates allegedly experienced with Horizon are
retrospectively relevant to whether terms should be implied.
In sum, the Claimants’ approach appears to be that anything occurring after the contracts were entered
into is potentially relevant. That approach is contradicts the Learned Judge's guidance and the clear law
that what occurs after an agreement was entered into is inadmissible: see, for example, Arnold v
Britton [2015] A.C. 1619 at [21] per Lord Neuberger.
Post Office therefore puts down again the following marker: anything that was not known (or at least
knowable) to a person in the position(s) of the parties at the time of contracting cannot be admissible
matrix of fact.
It follows that nothing which happened after entry into the relevant contracts can be admissible evidence
for the purposes of the Common Issues trial. The only three relevant (narrow) possible exceptions to this
rule are as follows:
a. Your clients’ case is that the parties’ ‘true agreement’ as to termination was made manifest after
the relevant contracts were entered into. In principle, evidence going to this could be admissible
— although it remains unclear, on your clients’ own case, what that evidence could be.
b. Insofar as any contract term was varied, the factual matrix relevant to construing that term, as
varied, will be that obtaining at the time of variation. That is the proposition set out, for example,
at paragraph 4.4 of Mr Bates’ Reply. Post Office agrees. However, for this exception to be
relevant the Claimants (or any of them) would have had to (a) plead a relevant variation, (b) set
out the respects in which the factual matrix existing at the time that the variation was made was
different from that existing at the time of entry into the contract, and (c) set out the way in which
those differences in factual matrix are said to have a bearing on construction of the varied term.
They have not done so.
c. Some, very limited, evidence of post-contractual behaviour may be relevant to the question of
agency. It is, however, difficult to see how individual evidence from particular claimants (as
opposed to general evidence of practices persisting over time) could assist.
There is therefore little or no scope for any evidence premised on these exceptions. Evidence on the
Claimants’ personal experiences of training, the Helpline, products and services, shortfalls and
suspension will be inadmissible in toto. Evidence on their personal experiences of termination will also be
largely or wholly inadmissible.
It appears plain, from your clients’ Replies, that they will not adhere to these principles. As well as being
wrong, that approach will mean that the Common Issues trial risks becoming unmanageable. The
inadmissible evidence would likely take up most of the trial; or, if Post Office adduces evidence in reply,
all of the trial.
Accordingly, we intend to invite the Learned Judge at the CMC on 25 July to set aside a two-day hearing,
in mid-September, at which he can, if necessary, go through your clients’ evidence and strike out those
parts which are inadmissible and/or irrelevant and/or provide other directions as to the evidence to be
heard at trial. As you will recall, this was the course of action mooted by the Learned Judge at the
hearing on 5 June 2018. We believe it prudent to enquire about securing this time now given that
witness statements will be served over the Summer vacation and the close proximity of the trial.
Of course, if your clients clearly state that they will pull back from the stance taken in their Replies, and
curtail their evidence accordingly, it may still be possible to avoid the need for this hearing, at which point
the hearing dates may be vacated.
Even if your clients do not agree with the substantive points in this letter, we invite them to agree to the
listing of a hearing in September.
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Yours faithfully
Nnbete Borel Dukirtr (ve) LLP
Womble Bond Dickinson (UK) LLP
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