POL00274899
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FREETHS
Womble Bond Dickinson (UK) LLP Direct dial:
DX 38517 Southampton 3 Dire
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Email: james. hartle
7 May 2019
Third Letter
By email only: Andrew.parsong
Our Ref: JXH/1684/2113618/1/NP
Your Ref: AP6/364065/1369
Dear Sirs
Alan Bates and Others v Post Office Limited
Claim No: HQ16X01238, HQ17X02637 and HQ17X04248
Further Supplemental Report of Dr Worden
We write in response to your Second and Third Letters of Friday, 3 May 2019, and following our
Second Letter of today’s date.
Your letter presents an immediate difficulty by (a) referring to the exercise which Dr Worden says he
has undertaken in his draft report, which he communicated to Mr Coyne on a without prejudice basis,
whilst simultaneously (b) stating that you are not waiving privilege in the draft report. The difficulty
which this presents must be obvious, particularly as to how we are to respond to your request that
we should “share with [you] [our] views on how these matters should be handled and [our] reasoning
for that pending the next expert meeting.”
What we are able to say is that we are extremely concerned by what you propose, for reasons which
would require us to spell out in open correspondence matters which you claim not to be waiving
privilege on.
Horizon Issue 1
We note that as regards whatever Dr Worden might wish to say on Horizon Issue 1, you yourselves
recognise “the work that might be required in relation to this analysis and the potential adverse impact
on both the Claimants and the Horizon Issues trial” and are not therefore “currently minded to apply
for permission to rely on the Peak based analysis” on that issue.
It would be helpful for you to spell out with clarity what you and your expert positively will be inviting
the Court to consider and to find. This is obviously necessary. It is also more acute given the position
in which the Court found itself at the Common Issues Trial, at which on one view, there was a lack
of clarity as to the Defendant's position in those respects. The present position is materially unclear.
At this stage, well after the Horizon Trial was due to have completed, this is unsatisfactory.
Freeths LLP a ined laity partnership, registered in England and Wiles, partnership number OC304868, Regblered Offce: Cumberiand Court, 80 Mount Steet, Nottngham NG1 6HH,
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Horizon Issue 12 and 13
Again, for the reasons identified above, we cannot properly respond without referring to the content
of the draft report.
However, at the resumed Horizon Trial (Day 12) our Leading Counsel made it plain to the Court that
the approach which was ventilated before the Court by your Leading Counsel would amount to the
Court determining what happened in individual Claimants’ cases, for every single Claimant, but
without disclosure in relation to each of their cases — the very exercise which your client claimed the
Court had wrongly and unfairly undertaken at the Common Issues Trial.
The Horizon Issues were specifically formulated, agreed and ordered by reference to the system as
a whole, as a proportionate approach to determine an important aspect of this litigation. Post Office
repeatedly objected to disclosure sought by the Claimants on that very basis, for example in two
responses on 8 August 2018, as follows:
(1) D’s response to Coyne RFI 26 June 2018 — 8 August 2018 {C5/21}
“It also appears to be an attempt to obtain documents containing information that
could potentially be tied to individual cases. That is not the purpose of the Horizon
Issues trial.” at {C5/21/6}
“It also appears to be an attempt to obtain documents containing information that
could potentially be tied to individual cases. That is not the purpose of the Horizon
Issues trial.” at {C5/21/8}
“Further, Post Office remains of the view that this appears to be an attempt to obtain
documents containing information that could potentially be tied to individual cases,
which is not the purpose of the Horizon Issues trial.” at {C5/21/8}
(2) D’s response to Coyne email of 20 July 2018 — 8 August 2018
“Post Office objects to this request.
Mr Coyne is seeking documents relevant to specific Claimants, but the Horizon Issues
Trial will not be considering the circumstances of individual Claimants. Post Office's
Solicitors requested an explanation for this in a letter dated 1 August, but no response
has been received.” at {C5/22/2}
Indeed, Post Office also made wider objections to disclosure of OCPs, OCRs and MSCs, in response
to Mr Coyne’s first request made by email on 20 July 2018 {C5/16}, as stated in its response at (2)
above, as follows, at {C5/22/2}:
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‘Authorised and regulate by he Saletors Regulation Author. A hillstof the members of Freeths LLP is avalablefornspecton atthe reisteresoffce
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“Post Office objects to this request.
Fujitsu has advised that it would be necessary to carry out a retrospective analysis to
attempt to answer this question as the information has not been pooled or collated as
part of ordinary working practices.
Further:-
+ there are in excess of 36,000 MSCs and OCPs combined; and
* OCRs would not be used for any such change (OCRs were used minor support
changes that did not required the full approval process that was needed for OCPs).
Additionally, Post Office does not understand what is meant by ‘financial impact’.
Clarification was sought on this point but not provided before the date of this
response.”
So yet again, Post Office seeks to adopt inconsistent positions likely to create difficulties for both the
Court and the Claimants in relation to the proportionate and proper determination of issues in this
Group Litigation, here the Horizon Issues.
Furthermore, it has been a long-standing concern of the Claimants that Dr Worden has set out to
disprove the claims of the particular Claimants in this litigation, rather than to answer the Horizon
Issues as formulated and ordered. What was announced to the Court as Dr Worden’s new approach
only serves to heighten the Claimants’ concerns in this respect, particularly given the blanket refusal
of disclosure above and Post Office assertions about individual claims which were prayed in aid to
justify it.
Leaving aside the timing of Dr Worden’s change of tack and to what extent it follows from how the
Defendant's fact evidence came out at trial, there is a further reason why this development at this
stage is extremely unsatisfactory. For many months, Dr Worden insisted upon confining his
investigation and analysis to the KELs, which Mr Coyne regarded as providing a very incomplete
dataset. We do not address the history of this here, but the genesis of these matters may well be
relevant to any decision which the Court is called upon to make in relation to the admissibility or
fairness of Dr Worden’s new (possible) approach.
Post Office disclosed “a tranche of OCRs” between 28 August 2006 and 31 January 2011 very late,
on 24 January 2019, with some OCPs at that time too. We then received the secondary set of OCR
disclosure on 18 April 2018 with a supporting letter from you stating in summary, that metadata
overlays had been placed on the documentation and you were “in the process of liaising with Fujitsu
the provenance and status of these OCRs and will revert to [us] once these investigations are
complete.”
Despite your Third Letter, we remain concerned about the layout and content of this further
disclosure, and particularly need clarification of precisely how the content and metadata in these
documents have been derived. This is still unclear to us, long after the trial was due to have
completed in relation to documents the relevance of which is now positively asserted by Post Office
and/or its own expert. We will consider this further with our expert and revert thereafter.
Freeths LLP i alinted laity partnership, registered in England and Wiles, partnership number OC304868, Registered Offee: Cumberland Court, 80 Mount Street, Notingham NGH 6H,
‘Authorised and regulate by he Saletors Regulation Author. A hillstof the members of Freeths LLP is avalablefornspecton atthe reisteresoffce
$1 4LT DX 310016 L
www.freeths.co.uk LLP, Floor 3,
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Please provide your response as soon as possible.
Yours faithfully
rocshns
Freeths LLP
Freeths LLP i alinted laity partnership, registered in England and Wiles, partnership number OC304868, Registered Offee: Cumberland Court, 80 Mount Street, Notingham NGH 6H,
‘Authorised and regulate by he Saletors Regulation Author. A hillstof the members of Freeths LLP is avalablefornspecton atthe reisteresoffce
www.freeths.co.uk Fri LLP, Floor 3, 100 Wel
eds, LS1 4LT DX 310016 Leeds Park Square