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Message
From: Jonathan Gribben [f
Sent: 14/11/2018 18:00:08
To: Anthony de Garr Robinson aS ]; ‘Simon Henderson’ _ _ al
cc: ins@wbd-uk.com]; Katie Simmonds Lucy Bremner
Subject: Catherine Hamilton [WBDUK-AC.FID27032497]
Attachments: _DOC_152719661(3)_Witness Statement of Catherine Hamilton 07.11.18.docx; FW: ARQ allowance [WBDUK-
AC.FID27032497]; _DOC_152606827(2)_Witness Statement of Tracy Mather.docx
Dear Tony,
Many thanks. My plan is to update this section of Steve's statement once we have had the call tomorrow morning to run
through the table. I may request Simon's help with the drafting if that's ok.
Please find attached two draft statements that you have not seen before. I'd be grateful for your comments generally and
your thoughts on the specific points raised below.
Catherine Hamilton
This statement sweeps up points made by Coyne that fall to be answered by Post Office. Catherine has only been there
since 2017 and some of the issues are not IT issues (e.g. reference data). To what extent do you think that it is
necessary to address these points? From speaking to Robert I know he is comfortable dealing with the cost/benefit
analysis point, for example.
Also, would the statement on reference data be better coming from the source of Catherine's information, Matt, or can we
just provide the document being discussed to Robert?
Tracy Mather
At the moment this statement deals with Coyne's point about Post Office using Credence data when investigating
issues. We are also attempting to deal with the suggestion that because Post Office had to pay after a certain number of
ARQ requests, this affected their appetite to investigate issues. I've attached an email which shows where we are
currently with that.
Kind regards
Jonny
Jonathan Gribben
Managing Associate
Womble Bond Dickinson (UK) LLP
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From: Anthony de Garr Robinson [mailto
Sent: 14 November 2018 14:35
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To: Jonathan Gribben; 'Simon Henderson’
Cc: Andrew Parsons; Katie Simmonds
Subject: RE: KEL analysis [WBDUK-AC.FID27032497]
Dear Jonny,
Tenclose our comments in the introductory text to the KEL table. You will see that we have changed the wording
considerably, to explain what (we think) has been done to produce the table, who it has been done by, why it has been
done and why it can be relied on as evidence.
We have also made a some comments, some of which are identified as important. As with Steve Parker’s draft statement
yesterday, we worry that, without some clarification or extra drafting, some of the statements contained in this draft
could be seized on by the claimants and used to undermine Robert’s expert analysis.
Simon is looking at the 50 page table now, so I’m just sending you the introductory text on its own.
I’m conscious how much you have on your plate at the moment. If there is anything more we can do to help, let us know.
Best wishes,
Tony
From: Jonathan Gribben
Sent: 14 November 2018 10:31
To: Anthony de Garr Robinson
Cc: Andrew Parsons
Subject: RE: KEL analysis [WBDUK-AC.FID27032497]
; ‘Simon Henderson' {~
Katie Simmonds:
Dear Tony and Simon,
Thank you for this. The table has been produced as a direct result of us asking FJ (we produced the table and asked FJ
to complete the blank columns). No new documents have come to light while producing it.
Please find attached the latest version of the table and the text that we are proposing to insert into Steve's statement. We
are also working on the high-level map below to help us complete the wording introducing the table (key points are
whether the issue was a software issue and whether it had a financial impact)/.
We are sending the table to FJ now too (you'll see that there are some queries for them to address). I suspect that there
will be a call to run through their comments. It may be worth one or both of you joining that call to discuss any comments
that you may have with FJ. Grateful for your thoughts.
Kind regards
Jonny
KEL Cause of issue Financial impact Summary / additional comments
1 Payment Mismatch
2 Software None
3 Potential unknown None
system problem
4 Software - Should be obvious to PM,
Dalmellington inancial impact possible,
could be resolved by TC
5 Software [Temporary impact
6 Software [Temporary impact
7
8 Reference Data None SSK
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9 Human error (POL) [Should be obvious toPM,I « Better explanation requested by Andy
inancial impact possible, Ie SSK
ould be resolved by TC
10 Potential unknown None
system problem
11 Reference data lone
12 Human error Should be obvious toPM,I « Flagged by Andy, in particular in relation to the detail
(branch) could be resolved by POL surrounding the balancing transaction and process —
issuing a balancing have updated with details from our call with Fujitsu.
ransaction e Even if done locally, would appear in the audit trail. If the
process was being followed, injected at the data centre
and authorised - however done would have ended up in
the audit trail. Data centre now in Belfast moved in 2009
13 lone e Better explanation requested by Andy
« SSK
14 Human error or lone
software
15 Human error or None
software
16 Human error Financial impact caused I Andy has suggested we include a better first explanation
(branch) py user error in branch and then use this for the later references
17 Human error None Better explanation requested by Andy of the failure to
(branch) recover the transaction
18 lone
19 Reference Data lone
20 Software Should be obvious to PM, I Better explanation requested by Andy to explain why SPMR
inancial impact possible, I not needing to pay
could be resolved by TC
21 Potential software lone
but not able to
replicate
22 Potential software Andy concerned RE this KEL and asked for a better
but not able to explanation
replicate
GJ has referred us to his comments on the £ KELs however
none appear relevant
23 Reference Data None
24 Potential software Potential Andy concerned RE this KEL being serious and asked for a
but not able to better explanation — I've included as much as I could from
replicate our call with Fujitsu
25 Hardware lone
26 Customer card None suggested
27 Hardware None suggested
28 Hardware None Better explanation requested by Andy
29 Reference Data lone
30 Communications Rectified by FJ
failure econciliation and . or TC
$0 no impact expected
31 Payment Mismatch lone
32 Withdrawn products None suggested Related to testing issue that was resolved, however, need to
expand further as there were 2 relevant live instances
33 Payment Mismatch None
34 Software Potential small
pccurrences
35 Software Potential small
pccurrences
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36 Human error es, caused by user error
(branch) and PM expected to be
liable
37 Software - Should be obvious to PM,
Dalmellington inancial impact possible,
could be resolved by TC
38 Test None
39 Hardware None
40 Software None (if correct recovery I Andy asked us to check that this isn't the Phantom
process followed) Transaction cited by Setpal Singh
FJ confirmed:
First raised in 2000 and last updated in Jan 2004
“Phantom sales' reported by users but items can only be
added to the sales stack if the screen or keyboard were
generating key sequences so implication that there was a
hardware issue so it was swapped out.
If items were added to the sales stack then these were
presumably more likely to be 'simple' items, such as a
stamp, rather than complex multi-step transactions. If these
‘simple’ items were settled without the user knowing then
when they came to balancing they would physically hold
more of these items than the system expected. A stock
adjustment of these items would then effectively cancel out
any 'phantom' sales of these items."
41 Unknown, None.
42 Software Should be obvious to PM,
inancial impact possible,
could be resolved by TC
43 Software Potential Better explanation requested by Andy
44 None
45 lone
46 lone
47 Reference Data Yes, caused by user error
and PM expected to be
liable
48 Reference Data lone
49 Local Suspense
Account
50 Software None (if correct recovery
process followed)
If not followed, TC can be
issued
51 Back-end POL None
reports
52 None
53 Coding error lone suggested
54 Payment Mismatch
55 None suggested
Jonathan Gribben
Managing Associate
Womble Bond Dickinson (UK) LLP
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From: Anthony de Garr Robinson [mailto:
Sent: 13 November 2018 11:37
To: Jonathan Gribben; 'Simon Henderson’
Cc: Andrew Parsons; Katie Simmonds
Subject: RE: KEL analysis [WBDUK-AC.FID27032497]
Dear Jonny
Thanks for this which Simon and I have discussed after I asked Simon to research some of the legal principles. Simon has
largely drafted this email, which sets out our joint thoughts.
We think that how this issue has been managed (i.e. how the request to create the table came to be made) is key. If the FJ
witness has taken it upon himself to ask his team to draw up the table, then it is difficult to see how any privilege
attaches. However, if the table has been produced as a direct result of WBD requesting FJ (a third party and not WBD’s
client), then that would be a request for a document to be produced for the dominant purpose of litigation — and so
privileged. Litigation privilege potentially applies both to lawyer-third party communications and to client-third party
communications (see Thanki @ 3.14).
This privilege should extend to discarded drafts ete. See Thanki at 3.28:
“The main practical scope today for a “materials for the brief” or a “materials for evidence” category of litigation
privilege would be preparatory documents generated by the client which do not embody communications with
third parties (such as a client’s working notes or internal documentary communications within a corporation for
the purposes of litigation, but which do not pass between a third party and the client or a third party and the
lawyer). For example, an external or in-house lawyer might ask employees to prepare draft proofs for the
purposes of prospective litigation; if for whatever reason these proofs are not actually sent to the lawyers or to
someone within the organization who could be classified as the client, there is no question that they would be
privileged if satisfying the dominant purpose test. Likewise, if they had come into existence for the dominant
purpose of use in litigation, there is no doubt that the preparatory material in issue in Three Rivers 5 would have
attracted litigation privilege.** As the Court of Appeal held in Three Rivers 5:
It is clear on the authorities that documents emanating from or prepared by third parties or employees of a party
are covered by the principle of ‘litigation privilege’ if prepared with the dominant purpose of use in existing or
contemplated litigation.”
We think that should be sufficient to cover drafts and working documents which were prepared for the purposes of this
exercise.
However, that is not the end of the matter. First, there is no privilege in the underlying data or facts which are being
investigated here i.e. the actual KELs ete or data relating to those KELKs. So if the investigation revealed, for example,
some KELs or data which are plainly relevant to the disputes (e.g. because they evidence losses to branch accounts) then
that material would become disclosable in our view. Further, the exercise is akin to the preparation of expert evidence
(ultimately it is for Robert’s benefit we think) and the witness could legitimately be asked about how he (albeit at the
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request of WBD) went about preparing this analysis. We therefore think that WBD/ FJ must be very clear about the scope
of the exercise and to ensure that they are fully aware who carried it out, and what was revealed in the course of it.
A key point is that even though the information is set out in a table and looks complete, the claimants will be entitled to
test it — amongst other things by asking how and by what processes the information was arrived at, what data/documents
were used as a source of information, what assumptions were made and what calculations were done on what figures etc,
and maybe even what corrections needed to be made to get them right. Also, the underlying data/documents would be
disclosable and we should assume the claimants will demand disclosure.
We cannot see that the way in which the table is presented (e.g. in an appendix) would make a difference. The witness
would still be saying that (i) he has procured the preparation of that evidence and (ii) he wants it to be accepted as part of
his evidence.
Best regards,
Tony
From: Jonathan Gribben <I
Sent: 12 November 2018 19:23
To: Anthony de Garr Robinson
Cc: Andrew Parsons
Subject: RE: KEL analysis [WBDUK-AC.FID27032497]
Katie Simmonds
Dear Tony and Simon,
Thank you for your email.
The analysis is being carried out for the dominant purpose of the litigation. Taking the Coyne KELs as an example, we've
produced a table which sets out Coyne's analysis and asked Fujitsu to provide their own analysis in response. We are
going through the process of polishing what FJ have provided and want to asset privilege over all but the final draft.
Andy wondered if it would make a difference if we annexed the table to the statement, rather than exhibiting it?
We note the risk involved with using Gareth as a witness and we are limiting Gareth's involvement as much as possible,
but he is Fujitsu's go-to person for many of our questions. If Torstein or Steve covered the bugs they would still need to
speak to Gareth (Torstein less so).
Kind regards
Jonny
Jonathan Gribben
Managing Associate
Womble Bond Dickinson (UK) LLP
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From: Anthony de Garr Robinson [mailto
Sent: 12 November 2018 14:00
To: 'Simon Henderson’; Jonathan Gribben
Cc: Andrew Parsons; Katie Simmonds
Subject: RE: KEL analysis [WBDUK-AC.FID27032497]
Dear Jonny,
Lagree with Simon’s views below. Two questions arise in my mind, though.
First, I would like to understand whether there is any particular category information in which you would like to retain
privilege. If we are adducing evidence of any analysis undertaken of any data available, I don't see how it would be
possible to assert privilege either in what the analysis involved (what assumptions were made, what judgments were
formed, what calculations were done, etc) or on the information/data on which it was based. If we want to rely on the
conclusions of the analysis, we have to be open about its elements; otherwise, the claimants would not be able to
challenge it, which would not be fair to them. But is there some specific category of information you want to protect
which they might not need in order to be able to challenge it? If so, let us know what it is.
Second, I see that Gareth Jenkins is part of the team doing the analysis. We all know the reasons why we have decided
not to have Jenkins as a witness. They are also reasons for not having him as a source of evidence — i.e. as a source of
information for our witnesses and/or as a person providing analyses on which our witnesses will rely. Where he is acting
as a source the Claimants will know this and they will waste no time in arguing (1) the fact that we have not called such a
natural witness demonstrates that he is not a reliable witness, (2) we recognise this fact and want to protect him from any
cross examination and (3) if he is not a reliable witness, he can’t be a reliable source of evidence, either and (4) as the
claimants are being prevented from cross examining him the information he provides to other witnesses is even less
reliable than a witness statement from him would be. This argument will undermine the evidential value of any witness
statements that are based on information that Jenkins has provided.
It follows that we should limit Jenkins’ involvement as a source of evidence as much as possible, essentially to those areas
where there is no alternative source of information. However, the man seems to be popping up on ever technical question
—as a source of information for Torstein Godeseth and now as a member of a team providing analysis for Steve Parker. I
appreciate his unique position and that there may be some areas where we have no alternative but to use him as a source
of information. But are we sure that we are limiting his involvement as much as possible? I entirely recognise the need to
be realistic about the sort of evidence we can get from Fujitsu in the time available to us. But I need to make clear the risk
we could be running of adducing evidence which turns out not to be very useful to us.
On the same theme, I see from your email of 9:52 am that Steve Parker will not be covering the known bugs in his witness
statement. You say that Godeseth is better placed to deal with those bugs, but my understanding is that he has no personal
knowledge of the bugs or the processes by which they were identified, investigated and fixed: this was not his
department. In his last statement, he seems to be doing little more than repeating information provided by others (others
such as Jenkins). The claimants may choose not to challenge this evidence, but if they challenge it I’m unclear how
Godeseth will be able to defend it. Again, I recognise the need to be realistic but also need to make clear the risk involved.
Best wishes,
Tony
From: Simon Henderson <_
Sent: 12 November 2018 1
To: Jonathan Gribben
Cc: Andrew Parsons
Subject: RE: KEL analysis [WBDUK-AC.FID27032497]
Anthony de
Katie Simmonds:
Jonny
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I haven’t had a chance to discuss this with Tony but my view is that the overall approach i.e. recording that he has asked
his team to do the work, is fine but that it is very likely that privilege (if indeed there is any privilege) will be waived. This
is an exercise which a third party witness is saying he has asked his team to perform i.e. it is not something which, at
least on the fact of the ws, PO’s lawyers have asked for — and even if they have, by including the output of that exercise
in a ws, I think any privilege e.g. in how the exercise was carried out, is likely to be waived. It certainly cannot be
assumed that we can pick and choose what we present (since that could plainly be misleading) and more generally I
think it will have to be assumed that the way in which the investigation is carried out and the detail of its findings, will be
disclosable.
Best
Simon
From: Jonathan Gribben [mailt
Sent: 12 November 2018 09:47
To: Anthony de Garr Robinson >; Simon Henderson
Subject: KEL analysis [WBDUK-AC.FID27032497]
Dear Tony and Simon,
As you know Fujitsu are in the process of analysing: (1) the KELs referred to in Coyne's report; and (2) Robert's sample of
50 KELs.
The analysis is being carried out by several people in Steve Parker's team plus Gareth Jenkins. It would not have been
possible for Steve to review all of the KELs himself in the time available and by his own admission he has been in
management since 2010 so his technical knowledge is not as it once was.
Our plan is to introduce the analysis in Steve's statement by saying something like "/ have asked my team to analyse
certain KELs and their output is at [page X]." We'd be grateful for your thoughts on that approach and. in particular,
whether there is any risk of privilege over how the analysis was carried out being waived?
Kind regards
Jonny
Jonathan Gribben
Managing Associate
Womble Bond Dickinson (UK) LLP.
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