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From: Jane MacLeod
Sent: Fri 15/03/2019 1
To: Jane MacLeodf.
Subject: Fwd: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
Dear Tim and Tom
As flagged on the aboard call on Tuesday, we have sought further advice on appeals and as to whether we had
grounds to request the judge to recuse himself on the grounds of bias.
We sought advice from Lord Neuberger who stepped down last year as the President of the Supreme Court (and
as such he was the highes t judge in the U.K.). We sought his views on:
- appeal options (including grounds), and whether Mr Justice Fraser Common Issues judgement demonstrated
grounds on which we could apply for him tomrecuse I self.
The test for recusal is .....
As you will see, while there is further work to be done on appeal, Lord Neuberger comments favourably on
appeal prospects, and states that he believes we have reasonable grounds do to seek a recusal decision, and
further suggests that by not doing so, we may adversely impact our prospects to argue (prejudicial concoct)
Thave set out below the proposed process and timetable ....this suggests that we should make the decision
urgently - preferably jot late than Monday .
The risks with this strategy are:
In the meantime I propose today to brief Lord Grabiner to act on the recusal application. Should the Board
decide not to proceed, then we can withdraw the instructions, however he will need reading in time, so this
parallle track will minimise delay.
Tim, this is clearly a board decision and we would need to give the Board time to consider the option, however
we would like to convene a calla over the weekend or on Monday at the latest to discuss this proposal. Lord
Neuberger is available for a conference call to discuss his views, although he is in Argentina, so there are some
time considerations. Once he has read in, and assuming he agrees with Lord Neuberger, I expect Lord Grabiner
would also be available for a call.
Tom, you have previously counselled us that any appeal should be discussed with the shareholder - please advise
how we progress this as amateur of urgency?
Lord Neuberger advice - which is focussed on recusal, but which briefly mentions appeal prospects, is attached.
Jane MacLeod
Group Director Legal, Risk & Governance
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Post Office
From: Alisdair Cameron! GRO
Sent: Thursday, March 14, 2019 16:54 pm _
To: Jane MacLeod
Subject: RE: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
I think that’s right, share this paper with Tom and Tim straight away and request a call. Thanks, Al
Alisdair Cameron
Chief Finance & Operating Officer
20 Finsbury Street
London
EC2Y 9AQ
From: Jane MacLeo
Sent: 14 March 2019 21:56
To: Alisdair Camerot
Subject: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
Al,
Apologies for the delay in getting this to you.
Attached is the opinion from Lord Neuberger, and set out below are the legal steps that we would need to go through
for an appeal on recusal grounds (this has been reviewed by the Counsel team). As you will see, it will take a few days
to get the application before the Court, so a governance timetable that facilitates a go/no go decision on Monday
(preferably) would be ideal.
In the meantime, I propose to instruct Lord Grabiner in the morning (Friday) on the recusal application. We can
withdraw the instructions if the Board/shareholder don’t wish us to proceed, however if we don’t get started with him
tomorrow, then we will lose time next week.
As you will see, we can set up a call with Lord Neuberger and/or Lord Grabiner, although ideally I would suggest this
will be easier to arrange if it is with the Board Litigation sub-committee rather than the full Board.
Subject to your thoughts, we should brief the Chairman and then Tom C tomorrow, so that we can get their steer on
whether we want to press ahead with this, and if so how we set up a board call over the weekend.
Given the time, let’s talk first thing.
Jane
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LITIGATION PROCESS & TIMETABLE FOR RECUSAL APPLICATION
1) [Optional but recommended] POL (through WBD) engage with the QC who is likely to be instructed to make
recusal application ASAP (if one is made) to get QC "warmed up" to application, arguments to be deployed and
(potentially) to speak to POL Board if needed, as the person who would in fact be the mouthpiece of POL. Timing:
Friday for choice of QC and delivery of papers.
2) Assuming a QC is to be "warmed up" David Cavender QC to brief on background as fully as possible. Timing:
Friday.
3) POL to decide if it is to make a recusal application. Timing: By (say) Monday.
4) POL Board may wish to speak to Lord Neuberger as part of their decision making process. The Clerks at OEC
have confirmed that is possible and have contact numbers for Lord Neuberger as needed. Please NOTE Lord
Neuberger is not in South Africa as we had understood, but in South America (Argentina) which is currently 3
hours behind us.
5) Assoon as decision to make application has been made (if that transpires) Freeths & Judge to be put on notice.
Suggested "appropriate" notice period is one day (or more if decision made earlier than early next week). Freeths
put on notice by letter from WBD (or possibly Counsel to Counsel) and the Judge by a note between the Clerks ?
Timing: early next week once decision to proceed made.
6) Gideon (at OEC) to be instructed to be Junior to chosen QC. Timing: Friday, if "warm up" route followed.
7) QC & Gideon prepare Application Notice and Skeleton for recusal application. This work could start now if we
follow the "warm up" route.
8) Application is made first half of next week at 10am during the Horizon trial. Thereafter there are variables:
a. Judge may agree. Unlikely but possible. HIT trial is adjourned there and then and POL appeals the CIT
findings and (if successful) we re-list CIT & HIT.
b. Judge may pass matter to another judge to hear. Unlikely.
c. Judge refuses (likely) and POL takes that refusal to Court of Appeal asap. That could be same day
(possible but unlikely) or at that same week at some point if CofA recognise urgency.
d. CofA may agree with recusal application. If so, POL appeals the CIT findings and (if successful) we re-list
CIT & HIT.
e. CofA may refuse recusal application in which case HIT rolls on.
Please note in any scenario where HIT is adjourned then there will be possible increased costs consequences for
Claimants that POL could bear if it is ultimately unsuccessful.
Possible outcomes of recusal application:
a) It is successful and HIT adjourned then appeal of CIT goes ahead and new judge is put in place for remaining
aspects of trials.
b) It is unsuccessful (at first request and CofA) then it is likely that Fraser is cross but he is also aware the CIT
appeal is progressing which includes the "procedural unfairness" assertion. Possible impact in that scenario is
Fraser is more cautious as to behaviours to (possibly) POL's benefit.
c) The theoretical downside to a recusal application is that it fails and that Fraser remains the judge at Trial 3 which
will require multiple findings of fact. Findings of fact are more tricky to appeal and this is a point to be cognisant of.
Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number
From: Tom Beezer
Sent: 14 March 2019 13:08
To: Jane MacLeod [
Cc: andrew.parsons ¢__ GRO
Subject: RE: QCs [WBDUK-AC.FID26896945]
Jane
Please see attached "recusal note" from Lord Neuberger.
This has just been received. I am reading it now.
T
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP.
GRO
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From: Tom Beezer
Sent: 14 March 2019
To: Jane MacLeod ¢
Cc: Andrew Parsons; Amy Prime
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Subject: QCs
Jane
A short e mail to check we are "at one" on forward facing actions. As I see it the running order is as follows:
* We get Neuberger QC recusal comment/advice this eve’
* If'a runner’ we need to decide between Grabiner QC & Mark Howard QC. That decision could be made
tomorrow or early next week. From e mails I sense that you are leaning towards MHQC
* We then instruct the QC who would "do" the recusal advocacy (assuming they too concur with the Neuberger
view of the world)
* Alongside the above work stream we will also get input from Neuberger QC over Common Issues appeal at
some point next week (I hope. That is the timeframe I'll push for)
* We then take decisions next week (post Neuberger QC advice) over steps in Common Issues appeal (as to
who/when etc).
No reply needed to this unless you have a different view.
T
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