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womblebonddickinson.com
y WOMBLE
(( BOND
\ DICKINSON
20 March 2018 ‘Womble Bond Dickinson (UK) LLP
Oceana House
39-49 Commercial Road
Freeths LLP aan
Floor 3
100 Wellington Street
Leeds
LS1 4LT
By email only
Our ref:
APG/AP6/364065.1369
Your ref:
1FR/1803/212876/1/ER
Email: james.hartley;_
Dear Sirs
The Post Office Group Litigation
Potential Lead Claimants and Factual Matrix
We refer to your second letter of 2 March 2018 enclosing the Claimants’ draft factual matrix statement
(‘Draft Statement”).
Having reviewed the Draft Statement, we are concerned that it is not consistent with the guidance given
on two occasions by the Managing Judge, and that the scope of the evidence you propose to lead is far
wider than that admissible for the construction of the agreements and determination of the Common
Issues.
The Draft Statement seeks to introduce evidence outside the required scope and on matters that cannot
be matrix of fact because they relate to the operation of the parties’ agreement after it was made, rather
than what was agreed between them. For example only:
« “...Claimants who contacted the Helpline were in any event required to settle any disputed
amounts centrally...” (entry 19);
e "...0n occasion the Defendant has detected that Horizon generated errors which caused the
appearance of shortfalls...” (entry 40)";
e “... the Defendant effected, recorded and managed the reconciliation of transactions effected by
the Claimants” (entry 41);
* “The Defendant in fact sought recovery from Claimants for apparent shortfalls” (entry 45).
Further, the factual matrix should contain only facts agreed by the parties or positively asserted by one
side and disputed by the other. We note that 26 out of the 46 matters included in the Draft Statement are
not statements of fact but questions or issues: for example, "whether any Subpostmaster has ever been
able to establish to the Defendant's satisfaction that an alleged shortfall was the result of a Horizon bug
or error” (entry 39). Even if this were material to the construction of the relevant contractual terms (which
is not accepted), the Claimants must have a positive case on this issue for it to be admissible matrix of
fact for the construction of the parties’ agreements, not least because the alleged fact has to have been
known to the Claimants at the relevant time for it to be material to the construction of the agreements.
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womblebonddickinson.com
WOMBLE
BOND
DICKINSON
We will therefore be producing a draft factual matrix statement which we believe to be consistent with the
Managing Judge’s guidance and the orthodox positon on admissible matrix of fact evidence for the
construction of agreements. To assist the production of this draft, and hopefully also avoid the need for
further judicial assistance on this issue, could you please revisit your Draft Statement in light of our
comments above, and provide for our consideration a revised version by 4pm on Tuesday 27 March
2018.
Yours faithfully
W om sve Bond DICKINS oN (ur) LLY?
Womble Bond Dickinson (UK) LLP
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