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CONFIDENTIAL AND LEGALLY PRIVILEGED
POST OFFICE GROUP LITIGATION WOMBLE
BOND
DICKINSON
1.4
1.2
1.3
24
2.2
3.1
3.2
Noting paper: Appeal Process
BACKGROUND
The Common Issues Trial (CIT) concluded on 6 December 2018 and, as expected, Judgment
was reserved. The Judgment is expected to be handed down by the end of January 2019 with
the draft Judgment being released around a week before (please see our noting paper "Draft
Judgment" for more detail on this process and timings).
Once the Judgment has been handed down, Post Office will need to decide whether or not to
appeal. This decision will need to be made rapidly and the process should begin when the draft
Judgment is received.
This note is to explain the appeals process and timings in relation to the CIT Judgment (please
also see our previous noting paper "Events following the Common Issues Trial" and our briefing
note "Is an Expedited Appeal Possible?"). Whilst this note has been prepared on the basis that
Post Office will be considering whether it wishes to appeal, Post Office should note that the
Claimants may also be considering whether to appeal. It is possible that both parties will appeal
and likely that at least one will appeal.
WHAT CAN AND CANNOT BE APPEALED?
The CIT Judgment may contain both findings of law and findings of fact by the Judge. Although
almost all of the Common Issues in the CIT are points of law, the Judgment will presumably also
contain findings of fact (for example in relation to whether Lead Claimants received a copy of
their contract at or around the time of contracting).
Broadly speaking, Post Office will be able to appeal findings of law but will almost certainly not be
able to appeal findings of fact.
2.2.1 An appeal on a point of law would be on the basis that the Judge has reached the
wrong legal conclusion in his Judgment. WBD and Counsel will be able to advise Post
Office on the merits of such an appeal once the draft Judgment has been received.
2.2.2 An appeal on a point of fact would be more difficult and would need to be based on
showing a particular finding of fact was either “perverse” or was the result of procedural
unfairness. It is extremely difficult to appeal a well written judgment on the grounds of
perversity so ultimately Post Office would probably need to argue for procedural
unfairness in order to successfully appeal on a point of fact.
PERMISSION TO APPEAL
Whatever the appeal is based on, permission to appeal will be required. This permission can be
given by the CIT Judge or can be given by the Court of Appeal on application (please see the
flowchart in section 4 below).
Permission to bring an appeal will only be granted where:
3.2.1 The Court considers that the appeal would have a real prospect of success; or
3.2.2 There is some other compelling reason for the appeal to be heard (for example if the
case raises an important legal question such that a decision of the Court of Appeal on
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the matter would be in the public interest). This ground is much more rarely relied
upon.
4. THE APPEAL
44 Assuming that permission to appeal is obtained, the appeal itself will proceed as a review of the
legal correctness of the decision of the CIT Judge. Unless the Court orders otherwise, it will not
be a rehearing, and there will be no new evidence (or indeed reconsideration of conclusions
reached in relation to the existing evidence). The hearing will be legal argument presented by
counsel.
42 An appeal will only be allowed (i.e. successful) where the Court of Appeal finds that the decision
of the lower Court was, in one or more respects:
4.2.1 Wrong (i.e. an error in law or an error in the exercise of the lower Court's discretion); or
4.2.2 Unjust because of a serious procedural (or other) irregularity in the proceedings before
the lower Court.
43 Post Office's options for appealing will depend on the precise contents of the CIT Judgment.
However, based on the issues to be decided at the CIT the most likely scenarios for an appeal
are:
4.3.1 There is a finding of law in relation to one or more of the Common Issues which is
wrong in law; and/or
4.3.2 The Judge makes findings of fact or law that fall outside of the Common Issues to be
decided at the CIT and this constitutes a serious procedural irregularity that would
render the Judgment unfair.
44 Itis possible for Post Office to obtain permission to appeal and then to choose not to proceed
with the full appeal (please see the flowchart below which sets out the various decision points in
this regard).
45 The timings for the appeals process (see the flowchart below) are tight and strict. Decisions will
therefore need to be made rapidly by Post Office, particularly on receipt of the draft Judgment.
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5. APPEALS FLOWCHART
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51 The appeals decision-making process starts as soon as the draft Judgment has beenreceived.
The flow chart below sets out the main steps that must be taken and the decisions that need to
be made by Post Office at each stage in that process.
DRAFT JUDGMENT RECEIVED FROM
MANAGING JUDGE
from Managing Judge and/or Court of
Appeal (we suggest both — starting with
Managing Judge)
POL decision: to seek permission to appeal
i
Action: POL applies to Managing Judge at
handing down hearing for permission to nS
appeal and/or seeks adjournment to apply
for permission from the Managing Judge
and/or seeks extension of time to file
appellant's notice with Court of Appeal.
Timing: hand down is likely to be within
days / weeks of the draft judgment being
released.
Permission granted
¥
Action: POL to file appellant's notice with
Court of Appeal and/or apply for an
extension of time to file the appellant's
notice.
Timing: Must apply within 21 days of
judgment, unless Managing Judge has
granted an extension.
POL decision: to approve appellant's notice
Action: Claimants to file a
respondents’ notice (if so advised)
within 14 days of service of
appellant's notice or notification that
Court of Appeal has granted POL
permission to appeal.
Timing: 3 to 4 months after
judgment.
——_
Other procedural
steps to prepare for
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Action: POL may apply directly to Court of
Appeal for permission to appeal (by filing
appellant's notice) and/or for an extension of
time to file appellant's notice.
Timing: Must apply within 21 days of
judgment, unless Managing Judge has
granted an extension.
Permission Decision usually made on paper without oral
refused hearing but Court of Appeal may direct to
~ hear application orally, in which case it will
be listed within 14 days of the direction.
POL decision: to lodge appellant's notice
with Court of Appeal
Permission refused
Action: POL may apply for decision to be
reconsidered at an oral hearing.
Timing: Must apply within 7 days of
permission being refused.
Permission POL decision: to apply for reconsideration
granted
- I
Permission Permission refused
granted
4
NO APPEAL
Timing: 3 to 4
months after
judgment.
SUBSTANTIVE APPEAL
Timing: 12 to 18 months
after judgment.
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6. TIMINGS AND IMPACT ON OTHER TRIALS.
6.1 The flowchart above contains the timings and deadlines in relation to the appeals process. On
the assumption that the draft Judgment is received by mid-January 2019, the approximate
timings for an appeal are likely to be:
Mid-January 2019 Draft Judgment received.
31 January 2019 Judgment handed down.
21 February 2019 Deadline to apply for permission to appeal and
file appellant's notice.
March - April 2019 Respondent to file respondents’ notice within
14 days of appellant's notice to appeal or final
decision on permission to appeal if not already
granted.
Autumn 2019 — Spring 2020 Substantive appeal heard.
6.2 We would therefore not expect an appeal to be finalised until 12 to 18 months after the CIT
Judgment is received in January 2019. Although expedited appeals are possible (please see our
briefing note "Is an Expedited Appeal Possible?") it is not likely that the appeals process would
be much quicker than the timings set out above.
6.3 It is not at all clear what would happen to the rest of the litigation while an appeal of the CIT
Judgment is underway:
6.3.1 It seems likely that the Horizon Issues Trial will proceed as planned regardless of
whether or not there is an appeal; but
6.3.2 Any future trials are likely to be significantly impacted by the outcome of the CIT and
so it is less obvious what the merit would be in proceeding with the October 2019 “third
stage” trial in the event of permission to appeal being granted by the Court of Appeat
although the Managing Judge may be resistant to any suggestion thathis ambitious
timetable should be delayed. For this reason, consideration should be given to
seeking a stay of the October 2019 trial in any application for permission to appeal
whether before the trial judge or the Court of Appeal— as an order consequential on
the matters sought to be appealed.
Womble Bond Dickinson (UK) LLP
11 January 2019
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