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From: Ben Foat{,
Sent: Fri 04/10/2019
To: Emanuel, Catherine} GRO
Subject: RE: Legally Privileged - Legal Advice - GLO Disclosure Incident
He did and thank you. Honestly, it meant so much when I received his email. I am dragged in all directions on so many
issues that its nice to hear that the quality of the work is still there.
Thanks again for all your help too! Its such a comfort to have you on this — I just wish you were on our panel on other
matters!
Have a great weekend.
Ben Foat
General Counsel
Post Office Limited
From: Emanuel, Catherine {__
Sent: Friday, October 4, 2019 6:
To: Ben Foat {~
Subject: RE: Legally Privileged - Legal Advice - GLO - Disclosure Incident
Ben, if Alan has not told you already, I should share his (and my) view that you have handled this impeccably!
From: Ben Foat
Sent: 04 October 2019 18:00
To: Tim Parker!
Tim.Franklin:
-5
Ken McCalli_
Watson, Richard - UKGI +
Alisdair Cameron
Cc: David Parry! ‘enneth Garvey
jes
Rodric Williams?
Sherrill Taggart’
Shikha Hornsey
Emanuel, Catherine!
Subject: Legally Privileged - Legal Advice - GLO™ Disclosure incident
Watts, Alan
All
Attached is our actions tracker which shows the progress we are making on GLO KELs Disclosure incident.
In summary:
1. we have made the necessary communication to the Court and Claimants solicitors in the terms discussed
yesterday. We have not had a response from them at this time.
2. Fujitsu (FJ) have commence extracting the KELs. The process is estimated to take 1 day, assuming no
technical issues are encountered through the extraction process. We have proceeded expeditiously with
extraction and disclosure and, if we feel it necessary to be sure we have provided everything, quality assure
independently of Fujitsu the KELs later, but make that clear in our communications with the Claimants. This
ensures disclosure is not delayed by any initial quality assurance exercise.
3. A review team has been stood up to review and assess the impact of the KELs when they are received from
FL.
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4. Weare finalising the CEO to CEO script and reserved rights letter to FJ complaining about this incident. This
will cover our request for audit as agreed by Board yesterday. This should be ready by Monday.
5. External GLO lawyers are examining how the KEL disclosure, and FJ’s involvement more generally,
could be addressed in the existing GLO proceedings. In addition, the legal team will provide advice w/c
7 Oct on any potential claim POL may have against FJ (contractual or otherwise) flowing from FJ’s
mishandling of the KELs disclosure.
6. The horizon contingency planning team have been made aware and Comms preparations are underway with
Mark Davies’ team.
7. The IT team are engaged on this issue and we will work with IT to support them in any necessary governance
and management control review and will, in due course, report back on what further controls could be
introduced in respect of FJ.
8. The insurance position for the GLO as a whole is being considered by POL’s broker Lockton. However, given
that this event arises out of POL’s conduct of litigation rather than its normal business operations, it seems
unlikely that insurance cover will be available for it (assuming it gives rise to any quantifiable loss to POL) but
we will confirm the position.
Please do let me know if you have any queries.
Finally, thank you for your time yesterday. Have a lovely weekend.
Ben Foat
General Counsel
Post Office Limited
From: Ben Foat
Sent: 03 October 2019 15:48. 7
To: Tim Parker; Carla Stent/Tim. Franklin HThomas Cooper; Watson, Richard - UKGI;
Tom.Aldred@ {Alisdair Cameron; Nick Read; David Parr
Ce: David Parry; Rodric Williams; Kenneth Garvey; Sherrill Taggart; Mark R Davies; Shikha Hornsey
Subject: Legally 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
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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;
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. 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;
2. 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.
3. 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;
4. 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);
5. 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
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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.
6. 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.
7. 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.
8. 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
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
Mobile
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