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From: Watson, Richard - UKGI[/O=HMT/OU=EXCHANGE ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=E8568E9D213F4097A7A65F3DA4F63CC1-
WATSON, RICHARD (RWA]
Sent: Mon 18/03/2019 5:10:
To: Cooper, Tom - UKGI
Subject: RE: POL judgement
Amended script as discussed:
A decision on whether to make a recusal application or not is properly one for the POL board. As HMG should not be
seen as questioning the independence and integrity of the judiciary I do not consider it would be appropriate for me,
as the shareholder appointed director, to participate in the actual board decision. However, it is perfectly proper for
me to highlight issues that I consider, in my role as a director, the board needs to have in its mind and to raise
appropriate questions and challenges before any decision is taken by the board.
If asked should POL be concerned about a decision to make a recusal application being regarded as HMG questioning
the independence and integrity of the judiciary the answer is NO. Obviously in law POL is a separate legal entity and
the shareholder is not involved in this decision.
Richard
Richard WatsonIGeneral Counsel
UK Government Investments
t I Lond
ISW1H OET
W: https://www.ukei.org.uk
From: Watson, Richard - UKGI
Sent: 18 March 2019 15:45
To: Cooper, Tom - UKGI <.
Subject: RE: POL judgement
Tom
How does this sound for a script:
A decision on whether to make a recusal application or not is properly one for the POL board. As HMG should not be
seen as questioning the independence and integrity of the judiciary I do not consider it would be appropriate for me,
as the shareholder appointed director, to participate in the actual board decision. However, it is perfectly proper for
me to highlight issues that I consider, in my role as a director, the board needs to have in its mind and to raise
appropriate questions and challenges before any decision is taken by the board.
The Board will be aware of the seriousness of the proposed recusal application and it is obviously not something they
should do lightly. As part of their considerations they should consider the impact on the shareholder (including the
potential financial impacts) and the difficulties of distinguishing in Parliament and the media between the
shareholders role in the organisations strategic direction and POL’s responsibility for operational matters. Such
considerations are only part of the relevant considerations that the board should have in its mind.
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I have discussed this with the BEIS Legal Director. I should be clear that the SoS does not have the power to direct you
not to participate in the actual board decision and I do not consider you have a conflict of interest. So in fulfilling your
role as a director you could properly reach the view that you should participate in the actual decision. However, the
reason we are suggesting that you follow something along the lines of the above script is because of the
presentational concerns that may arise if it transpired that the shareholder appointed director participated in the
actual board decision.
Happy to discuss
Richard
Richard WatsonIGeneral Counsel
UK Government Investments
W: https://www.ukgi.org.uk/
From: Cooper, Tom - UKGI
Sent: 18 March 2019 12:48
To: Watson, Richard - UKGI
Subject: RE: POL judgement
Thanks
Questions are good. But I also need a script on what BEIS position is if you and BEIS want to do so. The email
exchange on Friday with the legal team seemed clear that BEIS will want to make points before a decision is taken
(even if I don’t participate)
Tom
From: Watson, Richard - UKGI
Sent: 18 March 2019 12:41
To: Cooper, Tom - UKGI <”
Subject: POL judgement
Tom
Some initial thoughts from me on issues the board may want to get clarification about:
1. The link between the procedural unfairness issues and a recusal application. Is it the case that if successful on
the unfairness issue POL will ask the Court of Appeal to return the case to a different judge? This seems to
underpin Lord Neuberger’s conclusion that “POL has little option but to seek to get the judge to recuse himself
at this stage”.
2. The extent to which, because this a Group Litigation, the judge might be given greater leeway in
considerations around procedural fairness. Might any criticism of the judge be met by the court deciding that
given the nature of a group litigation action the judge’s approach was ultimately fair in order to help further the
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overriding objective of doing justice in a proportionate way in this group litigation. Might the normal rules be
applied differently in the context of a group litigation action.
3. At the heart of POL’s concern is that the judge made findings on issues where there had not been full
disclosure and where POL (at least) had not adduced all the evidence they would have had they known the
judge would make the findings he did. POL were expecting these issue to be the subject of detailed evidence at
a further trial — how confident can the board be that this additional evidence would have made a difference to
the judge’s findings given the views he has expressed based on evidence which even POL say was properly
admissible.
4. How confident are POL’s legal team that the judge should not have made what they say are irrelevant
findings. Clearly if the judge has allowed inadmissible evidence (in this case post contractual) to influence his
findings on the terms of the contract then that is a ground of appeal in POL’s favour but does not necessarily
mean there needs to be a recusal application.
5. How detailed has Lord Neuberger’s consideration been — what more legal advice might be appropriate for
the board to have, recognising the time constraints. Does Lord Grabiner concur with Lord Neuberger?
Will call you at lpm
Richard
Richard Watson IGeneral Counsel
UK Government Investments
1 Victoria Street I London I SW1H OET
W: https://www.ukgi.org.uk,