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From: Andrew Parsons{
Sent: Sun 14/04/2019 11:59:54 AM (UTC)
To: Jane MacLeod{
Ce: Tom
— GRO!
Subject: Appeal - next steps and call on Monday? [WBDUK-AC.FID26896945]
Jane
I've put below the key emails from Lords Grabiner and Neuberger regarding next steps on the appeals (they've
become spread over several email chains so I've pasted them together to make them easier to read). In summary,
they believe that we should:
(i) Lodge the main appeal asap possible, sending it straight to the C of A and not via Fraser J.
(ii) PO should write the Court of Appeal early this week, confirming that the main appeal will be filed shortly
and that the two appeals should be considered together.
(iii) Nothing should be done at this stage about the coincidental connection between Coulson LJ and Fraser J.
Both Tony and David are around on Monday save for between 12:30 and 3pm. DCQC can also be around by phone.
Given that the above steps accelerate our previous timetable for decisions (ie. we didn't expect to do anything before
the board on 24 April), would you (or you and Al?) like to meet with Counsel on Monday?
Given that Freeths have until 25 April 2019 to lodge submissions against permission for the recusal appeal, that
creates a natural target date. Pulling these strands together, a plan might be:
(i) You, me [and Al] meet Counsel on Monday to get sign off to step 2.
(ii) PO writes to the Court of Appeal by no later than Wednesday to ask for the appeals to be heard together. If
possible, we confirm the appeal will be lodged by no later than [Thursday 25 April].
(iii) We hold the board meeting on Wednesday 24 April 2019
(iv) We file the appeal on [25 April]
The unknown factors that lead to dates being in[ ] above are (i) PO shareholder sign off and (ii) time to prepare the
skeleton for the main appeal (I've asked Counsel to confirm this).
The immediate question however is: do you want to meet Counsel tomorrow and if so who should be invited?
This might be easier to discuss. I'm around nearly all day so please do feel free to call.
Kind regards
Andy
From: David Neuberger <i
Sent: 14 April 2019 11:56
To: Andrew Parsons <i
n>; Gideon Cohen < ~~}; Anthony Grabiner
David Cavender <é
stephanie Wood
< Amy Prime
Subject: RE: A1/2019/0855 POST OFFICE LIMITED V BATES AND OTHERS
Dear Andrew,
I confirm that I would be available to talk tomorrow: I shall be working at home in the morning until 12.30 and shall
be in chambers from about 3.00 until about 5.30.
As Tony says, he and I have discussed the position, and we see things very much the same way.
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An appeal on the common issues aspect raises points which are legally very significant and, I believe, commercially
very important to the clients, and on which I believe that the judge has gone badly wrong in a number of ways. An
appeal on recusal aspect raises what I appreciate is a particularly sensitive issue for the clients both tactically and in
terms of possible public perception.
As Tony says, I consider that the two aspects are, at least potentially, connected, and, for that reason, as well as on the
individual merits of each of the two aspects, permission to appeal should in my view be given on both aspects.
However, it would be perfectly possible to appeal on the common issues and not on the recusal — and indeed vice
versa. I think that it would be quite remarkable if the PO did not get permission to appeal on the common issues
aspect (or at least most of the points we are proposing to raise on that aspect); it would be less surprising, but in my
view wrong, if permission to appeal on the recusal aspect was refused.
As to Tony’s point 4, I think that there is a danger that our justified belief, and consequent sense of grievance, that the
Judge has gone badly wrong may have made us over-suspicious of some sort of inappropriate collusion between the
Judge and the CA. It would be perfectly proper, indeed sensible, for the Judge to have warned the CA of a possible
forthcoming application which someone should look at urgently, although I cannot of course rule out the possibility
that more was said (but even if it was, that is not by any means necessarily sinister). Coulson LJ is the U responsible
for civil procedure, so it is not very surprising that the application ended up before him. The fact that he made an
instant decision with regard to a stay is also unsurprising because that was urgent, and the fact that he has asked for
the claimant’s response is a pretty good indication that he is considering the application on its merits, as one would
expect. My one point of concern is that he has ruled in effect that the common issues and recusal application are
separate: again, at least on the face of it, that is a perfectly rational view, although it is questionable whether he
should have expressed a firm view on that without raising it with us (but I have not seen our application, so that may
be unfair). At any rate, I think that that is a point which we should challenge in the reasonably near future if we are
proceeding with the recusal aspect.
Yours sincerely,
David Neuberger
From: Anthony Grabiner
Sent: 14 April 2019 11:19
To: Andrew Parsons <j
Ce: Gideon Cohen 4
<.
Beezer ¢ David Neuberger ¢.
Subject: Re: A1/2019/0855 POST OFFICE LIMITED V BATES AND OTHERS
David Cavender
; Tom
Thanks for that Andrew. David N and I are both available to speak at a time tomorrow which will be convenient for
Jane. Perhaps you would suggest a time? David and I are flexible.
As to the current thinking I’ve spoken this morning to David N, David C and Owain and I would add to the points I
made in my email on Friday as below.
1. Owain and Gideon should press on as quickly as possible with preparation of the paperwork for the CofA
application re the Common Issues judgment. This is a strong part of the case, it raises important questions of law and
needs to be pursued because of the remaining trials and disputes between the parties.
2. We cannot progress the recusal appeal without specific instructions from the clients. I’m happy to participate in a
conversation/conference with the client if that would be helpful. Ideally we would write a letter to the listing office
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pointing out the relationship between the two matters sooner rather than later but I think the timing is dependent on
the matters in para 1. and this para 2.
3. The recusal matters are in the same judgment as the Common Issues and the idea of splitting them seems to me to
be unrealistic. That said David N makes the point that even if the recusal claim is not pursued there is material in the
judgment which might persuade the Court that there should be a different judge for the remaining cases and that this
might be the result of a successful appeal on the Common Issues anyway.
4. I agree that the Fraser/Coulson axis does look a bit odd but we can’t assume there’s been some chicanery and we
mustn’t suggest it either.
Enjoy the weekend!
Tony
Lord Grabiner QC
One Essex Court
Temple
London, EC4Y 9AR
On 13 Apr 2019, at 08:50, Andrew Parsons:
wrote:
Tony. Thank you for your email.
I agree with the proposed strategy and flag a few further points to consider below.
1. Jane MacLeod, General Counsel at Post Office, has asked whether it is worth us speaking to the Cs about whether
they want the appeals heard together or separately. I can see pros (eg. cost saving) and cons (eg. better chance to
oppose permission on the recusal) for them taking either approach but if they do support the appeals moving
together that would, I presume, put more pressure on the C of A.
2. There is some reluctance inside PO to putting the appeals together and skipping over Fraser J for permission on the
main appeal. They are keen to avoid any step that looks aggressive or heavy handed. I believe that we should be able
to persuade them on both points, but we would need instructions before taking either step.
With the above in mind, are you and David Neuberger (copied) around on Monday to discuss this with Jane and me? If
so, please let me know what time would suit you and whether a call or meeting is easier.
David Cavender - you are welcome to join us but I appreciate you are on holiday.
Kind regards
Andy
From: Anthony Grabiner
Sent: Friday 12 April, 17:50
Subject: Re: A1/2019/0855 POST OFFICE LIMITED V BATES AND OTHERS
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To: Gideon Cohen
Cc: Owain Draper, Andrew Parsons, David Cavender, Stephanie Wood, Amy Prime, Tom Beezer, David Neuberger
Dear all,
I’ve been following the emails and have discussed them with David Neuberger.
1. The order made by Coulson U means that we have some breathing space because it asks for a response from the
other side on 25/4.
2. We think a letter should go from our solicitors to the CofA listing office asking the Court to take into account the
fact that an appeal application is being prepared in respect of the Common Issues judgment and that the Court should
deal with both matters together.
3. The preparation of the grounds of that appeal and the production of the supporting skeleton argument is extremely
urgent and needs to be done ASAP. There’s no point in bothering to ask Fraser J for permission to appeal. He’s bound
to refuse it and these days we’re entitled to go straight to the CofA.
4. We share the concerns expressed in the flurry of emails. It looks as if Fraser J has been speaking either to the listing
office or even to Coulson LJ. Otherwise it would be a remarkable coincidence that of all the L’s presented with the
papers they ended up by chance in front of the former TCC Judge although this is not a TCC case. I’ve asked Owain to
dig out the references from the transcripts of the recusal arguments and the judgment day because my recollection is
that Fraser J said on both occasions that the CofA was expecting an appeal application. Owain will circulate the
extracts.
5. If we make no progress we will have to consider communicating with the listing office and the Master of the Rolls
as to what has been going on here. In principle conversations about the merits as between the first instance Judge
and the Lord Justice who ends up ruling on the leave to appeal point would, I think, be most inappropriate but that’s a
serious allegation to be making. Also we couldn’t take that step without a detailed discussion with and instructions
from Post Office. This is a very delicate matter.
6. David N and I plan to meet on Sunday to draft a suitable letter to be addressed to the listing office on Monday.
7. All suggestions welcome either on the contents of the draft or the suggested strategy.
Regards,
Tony
Lord Grabiner QC
One Essex Court,
Temple,
London, EC4Y 9AR
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP
) WOMBLE
BOND
DICKINSON
womblebonddickinson.com
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