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From: Jane MacLeod GRO
Sent: Wed 20/03/2019 10:26:49 AM (UTC)
To: Tom Beezerf!
Subject: RE: recusal [WBDUK-AC.FID26896945]
Thanks Tom
The question will be put — if not this, then is there any other alternative to recusal?
The Board will want to know that there are no other options.
Thanks
jane
Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number:! — G
From: Tom Beeze'
Sent: 20 March 201
To: Jane MacLeod <
Ce: >; Ben Foat
“+ Dave Panaech ¢
Subject: RE: recusal [WBDUK-AC.FID26896945)
Jane
As requested, Counsel team response below:
Dear Tom,
This proposal does not work. Indeed, if made, this application would make matters (even worse).
Even if PO decide not to seek to recuse Fraser J I would advise strongly against the proposed course. I
say this for the following reasons:
(1) The immediate (and likely irreversible) prejudice PO are suffering is the effects of the
apparent bias Fraser J showed in the CIT upon his current handling of the Horizon issues trial.
There is also the future prejudice of him handling the breach trial in November 2019.
(2) The only way of seeking to deal with the prejudice is to seek his recusal on an urgent basis.
(3) Seeking to appear before him indicating that PO is going to appeal against his CIT judgment
on grounds of procedural unfairness — will assuredly not result in him adjourning the Horizon
trial. He will not do so because the unfairness in the CIT trial itself does not infect the Horizon
trial. It is the apparent bias of Fraser J that infects the Horizon trial. The only remedy for that
is recusal.
(4) If, on this proposal, Fraser J’s refusal to adjourn the Horizon trial is then appealed to the
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Court of Appeal — they would assuredly not adjourn that trial and would not recuse him-
because there would not application before them to do so.
(5) Furthermore, an appeal against a refusal to recuse is much more likely to come on as an
urgent appeal — than an appeal against the refusal of a judge to adjourn a trial on the basis
that he showed procedural unfairness in an earlier trial between the same parties. Indeed the
latter appeal is very likely to come on after the Horizon trial is completed and the Judgment
handed down. This fact would make it more unlikely the Court of Appeal would intervene.
(6) And, if all this comes to pass (as it most assuredly would) is the proposal that then PO applies
to the judge to recuse himself ? And then appeal him if he does not ? This make no sense- and
would all come too late to be effective to deal with the prejudice in (1). Indeed, this course of
action would look very much as if PO were seeking to delay matters and behave badly- in the
manner presently charged by the Judge.
(7) If there are good grounds for a recusal (and clearly there are) and good prospects of success
(as advised) then the Court of Appeal would expect PO to apply to the Judge to recuse himself
and then appeal him if he did not. There is no middle ground here.
Best,
D.
David Cavender Q.C. o™
, ONE ESSEX COURT
One Essex Court
Temple
London EC4Y 9AR
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP.
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From: Jane MacLeod
Sent: 20 March 2019 07:14
To: Tom Beezer
Cc: Andrew Parsons; Rodric Williams
Subject: recusal
Tom
I have been asked to see whether an approach along the following lines (as an alternative to
recusal) would be possible procedurally:
“4. inform the judge that the company is appealing on the law and unfair procedure
2. ask the judge to stop the Horizon trial until the outcome of the appeal is determined on the
grounds that if the unfairness claim is upheld it would also put the fairness of the Horizon trial at
risk
3. If the judge refuses 2, seek and order from a higher court to the same effect and ask the judge at
least to stop the Horizon trial until such an order can be obtained (or not)
If the remedy in 3 is sought but isn’t obtained we will at least have tested the relevance and
implications of unfairness issues on the second trial. And effectively a higher court will have told us
that any unfairness in the first trial would not impact the Horizon trial (obviously contrary to POL’s
view).
If the remedy in 3 doesn’t exist in law then recusal would be an alternative at that point. It seems to
me the judge’s refusal to agree to 2 would support a recusal application as he would be unwilling
to accept that if unfairness took place in the first trial the nature of it would necessarily affect the
conduct and fairness of the Horizon trial - a view which logically suggests bias as it is absurd.”
Could we please test this with the Counsel team? It may have the outcome that the judge is asked
to recuse himself, but not necessarily. And seems to assume that we could get an appeal quite
quickly, which must be uncertain. I’m also not sure that the logic in 2. holds up, and 3 means
arguing procedural unfairness without (necessarily) arguing mis-application of the law etc.
Thanks,
Jane
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Jane MacLeod
Group Director Legal, Risk & Governance
Post Office
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