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From: Rodric Williams{{~
Sent: Thur 03/10/2019
2 PM (UTC)
To: andrew.parsonsf.
Catherin
Subject: FW: Legally Privileged - Legal Advice - GLO - Disclosure Incident
Fyi.....
From: Ben Foat
Sent: 03 October 2019 15:48
To: Tim Parker
; Kenneth Garvey
Mark R Davies
¢ GRO Shikha Hornsey —
Subject egally Privileged - Legal Advice - GLO - Disclosure Incident
Importance: High
All
A meeting has been put into your diary for 4pm today.
The purpose of the meeting is to inform the Board and UKGI that a disclosure incident has arisen in respect of the GLO
proceedings and to advise you of how we are managing the issue. The Board is asked to note the incident and to
approve the approach which will be discussed on the call (which is broadly set out below).
In short, it appears that Post Office failed to disclose potentially relevant documents in the GLO proceedings
(specifically in respect of the Horizon Trial). You will recall that we are currently awaiting the Court’s judgment in
respect of those proceedings.
Context
Fujitsu had previously informed Post Office that the “Known Error Logs” (KELs), which were key documents in the
Horizon Issues trial because they documented, for helpline staff, the known issues in Horizon with the work around
and fixes, were overwritten when updated such that no previous versions were kept and only current versions could
be disclosed. Post Office relied on that information when completing the Electronic Disclosure Statement which was
subsequently communicated to the Claimants in December 2017. However, Fujitsu has now advised Post Office this
week that past versions of the KELs do, in fact, exist. Consequently, the scope of disclosure as represented and
provided was inaccurate.
issue
1. Concealment and Procedural Breach - Post Office’s credibility and the perception around Post Office’s
approach to managing the litigation will likely be criticised (ie Claimants’ previous overarching criticism of
Post Office not being transparent, seeking to conceal and not providing full disclosure); and
2. Potential Impact to the Court’s findings - Whether the previous KELs (the volume is not yet known) could
cause the experts to change their evidence and/or impact the substance of the case before the Court. You
may recall that the Claimants have advanced a case theory of “tip of the ice berg” which suggests that there
are more errors than is fully known. However, it may be that the further disclosure of the previous KELs does
not impact the evidence or the substance of the matter before the Court but we are unable to advise on this
until the disclosure of the previous KELs is made by Fujitsu;
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Actions/ Next Steps
Post Office is obliged to notify the Claimants of the error. This is likely to result in the Claimants notifying the Justice
Fraser as part of their overarching criticism of Post Office’s disclosure. The GLO Legal team (externals and in-house
lawyers) are, together with the CIO and her team, have notified the Claimants solicitors and the Court of the error and
explained that it arose from incorrect information from FJ.
Management next steps:
1.
6.
Communication to relevant parties: we have written to the Claimant solicitors and the Court today advising
them of the issue. In that communication, Post Office has made it clear clear that it relied on FJ when it made
its inaccurate disclosure statement and has offers to provide the previous KELs to the Claimants upfront;
Disclosure of the KELs: FJ has already been instructed to provide the previous KELs to us which we will need
to assess and disclose to the Claimants. This process is not as simple as it is not a matter of drop and dragging
files across but rather the data needs to be specifically extracted from their systems. Consequently, it may
take some time given the volume. We have asked FJ for an ETA on this but suggest that this be escalated by
the CEO.
Analysis of the KELs: We need to have an understanding of whether the KELs (the scale of which is to be
determined) would likely affect the evidence that was provided at Trial. We may wish to instruct our Court
expert to assist us with this analysis;
Impact to the Trial: Justice Fraser may reconvene the Court and seek further evidence from the experts as to
whether previous KEL versions would have affected their evidence. If this occurs Post Office may be liable for
the costs of the hearing (for both sides);
POL response to FJ:
a. CEO escalation: irrespective of the Legal analysis below, this matter should be escalated to the CEO
at FJ ona reserved rights basis to express POL’s disappointment with this incident and to remind FJ of
their ongoing obligation in respect of Court Case Support Services and indeed the previous the
discussion between Duncan Tait (FJ board director) and the previous POL CEO Paula Vennells in which
she flagged a serious concern about the fragility of FJ witness statements which had either been
disproved and or changed. I will forward an email from PV that refers to this conversation which I
received earlier today. This escalation should be followed with a letter which reserves Post Office’s
legal rights in respect of this incident.
b. Legal advice: Legal is preparing an advice on:
i. POL’s potential right of action against FJ in these circumstances though we appreciate that
the issue needs to be considered in a broader context (supporting the future GLO case;
broader commercial impact; business continuity gap / alternative provider etc). One of the
areas that we have already been considering is whether FJ should be joined to the
proceedings depending on the outcome of the Horizon Judgment which is a separate
question.
ii. POL’s unilateral right to exercise audit and/or appoint a third party to review and test FJ
evidence to date. There is a right to appoint a third party to audit the Court Case Support
Services obligation.
Impact to the Judgment / Horizon Contingency Planning: The Horizon Contingency Team will factor in the
likely adverse comments that Fraser J may make as a result of this issue and what specific findings he could
make around POL processes in respect of Horizon and its processes in respect of this issue.
Stakeholder management: we will notify and continue to update the Board and UKGI on the incident via
email. The POL Comms Team has been made aware of the issue (as the Claimants are likely to complain to the
Court and if Court is reconvened, there is a risk that the issue could become public. A Comms statement will
be prepared as appropriate.
Lessons Learnt / Controls over outsourced arrangements: I have asked the team to ascertain what Post
Office did to assure itself that the information provided by FJ (its outsourced supplier) was accurate and what
controls were/are in place to provide such assurance. One of the areas that we have already been considering
is whether FJ should be joined to the proceedings depending on the outcome of the Horizon Judgment.
Input Sought
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Board is asked to note the incident and approve the approach outlined above and/or to make any further
recommendations.
I will continue to update on the progress of the matter by email after the call.
Please do let me know if you have any queries in the meantime.
Ben Foat
Group General Counsel
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
This email and any attachments are confidential and intended for the addressee only. If you are not the named recipient, you
must not use, disclose, reproduce, copy or distribute the contents of this communication. If you have received this in error, please
contact the sender by reply email and then delete this email from your system. Any views or opinions expressed within this email
are solely those of the sender, unless otherwise specifically stated.
POST OFFICE LIMITED is registered in England and Wales no 2154540. Registered Office: Finsbury Dials, 20 Finsbury Street,
London, EC2Y 9AQ.
From: Ben Foat
Sent: 02 October 2019 22:31
To: Nick Read
Mark R Davies
Ce: Shikha Hornsey <¢
Taggart $7
+; Sherrill
- 5}
Subject: GLO - Disclosure Incident - Legally Privileged
Hi Nick, Al, and Mark
A disclosure issue has arisen in respect of the GLO Horizon trial for you to be aware. It appears that Post Office failed
to disclose potentially relevant documents in those proceedings. You will recall that we are currently awaiting the
Court’s judgment in respect of those proceedings.
Context
Fujitsu had previously informed Post Office that the “Known Error Logs” (KELs), which were key documents in the
Horizon Issues trial because they documented for helpline staff the known issues in Horizon with the work around and
fixes, were overwritten when updated such that no previous versions were kept and only current versions could be
disclosed. Post Office relied on that information when completing the Electronic Disclosure Statement which was
subsequently communicated to the Claimants in December 2017. However, Fujitsu advised Post Office yesterday that
past versions of the KELs do, in fact, exit. Consequently, the scope of disclosure as represented and provided was
inaccurate.
Issue
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1. Post Office’s credibility and the perception around Post Office’s approach to managing the litigation (ie
Claimants’ overarching criticism of Post Office not being transparent, seeking to conceal and not providing full
disclosure); and
2. Whether the previous KELs (the volume is not yet known) could cause the experts to change their evidence
and/or impact the substance of the case before the Court
Actions/ Next Steps
Post Office remains under a disclosure obligation and therefore is required to notify the Claimants of the extra KELs
urgently. This is likely to result in the Claimants notifying the Justice Fraser as part of their overarching criticism of
Post Office’s disclosure.. The GLO Legal team (externals and in-house lawyers) are, together with the CIO and her
team, drafting the appropriate disclosure.
There are a number of next steps:
1. We will write to the Claimant solicitors tomorrow advising them of the issue and updating the Electronic
Disclosure Statement — the Legal team recommends explaining Post Office relied on FJ when it made its
inaccurate disclosure statement and offering to provide the previous KELs upfront;
2. FJ have been instructed to provide the previous KELs to us which we will need to assess and disclose to the
Claimants;
3. We need to have an understanding of whether the KELs (the scale of which is to be determined) would likely
affect the evidence that was provided at Trial.
4. Justice Fraser may reconvene the Court and seek further evidence from the experts as to whether previous
KEL versions would have affected their evidence. If this occurs Post Office may be liable for the costs of the
hearing (for both sides);
5. Stakeholder management — the Board and UKGI should be advised of this development though we still need
to finalise some of the investigation so that we can properly brief them. Mark Davies / Comms should be
made aware (especially if the Claimants do complain to the Court and Court is reconvened where this issue
could become public).
6. Horizon Contingency Planning — factor in the likely adverse comments that Fraser J may make as a result of
this issue and what specific findings he could make around POL processes in respect of Horizon and its
processes in respect of this issue.
I have also asked the Legal Team to advise on POL’s prospects in respect of a right of action against FJ in these
circumstances though I appreciate that the issue needs to be considered in a broader context (supporting the future
GLO case; broader commercial impact; business continuity gap / alternative provider etc). In addition, I have asked
the team to ascertain what Post Office did to assure itself that the information provided by FJ (its outsource supplier)
was accurate and what controls were/are in place to provide such assurance. One of the areas that we have already
been considering is whether FJ should be joined to the proceedings depending on the outcome of the Horizon
Judgment.
Input Sought
Please do let me know if you would like to discuss or see the Disclosure Letter tomorrow before we send it across to
the Claimants solicitors.
I will continue to update on the progress of the matter. Please do let me know if you have any queries in the
meantime.
Kind regards
Ben
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Ben Foat
Group General Counsel
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile
This email and any attachments are confidential and intended for the addressee only. If you are not the named recipient, you
must not use, disclose, reproduce, copy or distribute the contents of this communication. If you have received this in error, please
contact the sender by reply email and then delete this email from your system. Any views or opinions expressed within this email
are solely those of the sender, unless otherwise specifically stated.
POST OFFICE LIMITED is registered in England and Wales no 2154540. Registered Office: Finsbury Dials, 20 Finsbury Street,
London, EC2Y 9AQ.