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From: Chisholm, Alex (BEIS):~
Sent: Wed 20/03/2019 6:54:12 AM (UTC)
To: Cooper, Tom - UKGIf.
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Good, thanks. The scope given to NR seemed a bit narrow to allow for that but maybe will evolve.
Keep us ‘posted’.
A
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From: Cooper, Tom - UKGI ¢_
Sent: Tuesday, March 19, 2019 11:10 pm
To: Chisholm, Alex (BEIS)
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
I thought you were writing the definitive tract on the topic!
Yes, I think your views are aligned with theirs. They would like to see written legal advice expressed in stronger
language - and have advised the company accordingly. But they see the logic of the chain that gets you to recusal
being the only option if we want to deal with the unfairness issue. In terms of the law they bow to the eminent
lawyers now involved and aren’t arguing.
Do you want me to confirm I’m the morning?
More generally I think whilst the recusal application may be the only way forward to try to make sure POL gets
a fair hearing we mustn’t lose sight of the bigger picture. POL has genuine issues to deal with here and I think
I’m finally being heard about the need to have a resolution strategy and not just plough on through the process of
all the hearings. The involvement of Norton Rose I hope can catalyse that discussion.
Tom
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On 19 Mar 2019, at 22:00, Chisholm, Alex (BEIS) <i wrote:
Fair comment? What does UKGI legal say?
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From: Chisholm, Alex (BEIS) <
Sent: Tuesday, March 19, 2019 9:
To: Cooper, Tom - UKGI
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Very helpful.
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T have now read all this legal advice.
Personally I find Justice Fraser in this case (as in the Magnox case) to be opinionated, exacting,
and rather inclined to personalise matters. But not (to my layman’s mind) obviously wrong or
biased.
I also share the concern that a recusal attempt risks further antagonising him (if unsuccessful) and
also positioning POL in public as aggressive and in denial about its shortcomings (which
impression would be consistent with the judge’s findings to date).
However my personal view of the case - formed from a rapid perusal of the judgement and all the
legal commentary you kindly provided - does not matter as (a) I am not a lawyer and, anyway (b)
the department is not controlling the case - that is properly a matter for POL and their advisors.
And I appreciate that POL have very properly decided this should be a matter for the Board to
decide (ie not the Executive alone) and that they have sought the best external counsel (not just
the current legal team) including from previously unengaged experts with unsurpassable
credentials (former President of the Supreme Court).
Their collective advice is that the judge has shown unfairness in his procedure as well as legal
errors in using post-contractual behaviours to inform his judgement of the nature of the contract
itself. They also think that his many critical remarks about POL show bias. Further that this
unfairness strikes so hard at the root of the case that it cannot be rectified other than by a recusal
(voluntary or enforced) of the judge himself.
The advice properly recognises that a recusal attempt is a high bar and presents significant risks -
T highlight the passages below.
“17. There are both legal and reputational risks of proceeding with the application for recusal.
The legal risks (an unsuccessful application, which would further antagonise the Judge, and
material costs) are described in the WBD paper.
18. However there are significant reputational and stakeholder risks and these need to be set
against the legal benefits. Challenging a judge for bias — particularly in these circumstances, will
be seen as very aggressive behaviour by Post Office and will play directly into the criticism that
Post Office is oppressive in its behaviour towards postmasters and in its conduct of the case, and
will be construed as running counter to the recent messaging following the judgment that ‘we are
listening’. It could potentially have much greater media coverage than the judgment; will be
heavily criticised by the CWU and vocal postmaster bodies, and will drive further parliamentary
activity from MPs of both parties.”
The advice also assesses the chances of success as reasonable - and the costs and risks of not
appealing as significant, especially as this first case rather over-shadows what will follow in the
three following.
Proceeding with the appeal and recusal attempt risks identifying the organisation’s leadership
today with the negative historic behaviours of which POL stands accused. But it is not obviously
mistaken or otherwise inappropriate.
The Board will want to reflect carefully on all these matters. For my part I am satisfied that the
POL Board is the right body to do this; and that it has been properly advised.
The Department should maintain its clearly distinct and detached position, so that it is free and
credible for dealing with the consequences as they unfold. Ministers may want to show
appropriate concern about the criticisms and may express a desire for POL to act appropriately
but should not comment substantively in ongoing litigation in which the department has a clear
interest but no direct involvement.
Alex
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Da
From: Cooper, Tom - UKGI
Sent: Tuesday, March 19, 21
To: Chisholm, Alex (BEIS)
Subject: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
p
Alex
Papers attached. We’re told that Grabiner is more bullish than Neuberger. We’re meeting him
tomorrow.
We’ve asked if the advice is being firmed up before a decision is taken.
POL has also now added Norton Rose to act as shadow and advise the Board. They are joining
the Board meeting tomorrow.
I'll be off the train at around 8.
Tom
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Begin forwarded message:
To: <Richard. Watson:
Subject: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE
Will need your help with this
Tom
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Begin forwarded message:
From: Thomas Cooper <tom.cooperl! _
Date: 17 March 2019 at 22:42:30 GMT
LEGAL PRIVILEGE
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From: Jane MacLeod
Sent: Sunday, March 17, 2019 10:40:35 PM
To: Tim Parker; Ken McCall1; Carla Stent1; Thomas Cooper; Shirine Khoury-
Haq; Tim.Franklin1
Ce: Alisdair Cameron; Paula Vennells; Veronica Branton
Subject: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
All
As flagged last week, the judgment in the Common Issues Trial was handed
down on Friday in substantially similar form to the embargoed draft. We
must now turn to the questions as to what are our legal options, and how do
we address the consequences of the judgment from an operational
perspective?
Board Timetable
We have arranged 2 board calls this week (Monday at 5.15 pm and
Wednesday at 12.30 pm) in addition to the scheduled Board meeting on 25
March. We propose that we discuss the ‘recusal option’ at the Board call
tomorrow (Monday) evening, as there are adverse consequences if we delay.
Wednesday had been proposed to discuss the operational impacts and
mitigating plans, however if thought appropriate, this discussion could be
addressed at the scheduled Board meeting next Monday.
Recusal
Attached are the following papers:
e — Draft paper from me (‘Recusal 2019-3-18’) which recommends the
recusal application and retained counsel;
e Lord Neuberger’s preliminary advice (‘4852 001.pdf’) as to appeal
and recusal received on Thursday 14 March; and
e Advice from WBD (‘Post Office - Recusal Note’), which has been
reviewed by David Cavendar QC and which Lord Grabiner has seen,
and verbally endorsed.
The Counsel team, with which I concur, recommends bringing an application
for recusal. As set out in the attached papers, this is not without risk.
However there are equally, risks of not bringing the recusal application (as set
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out in both my and WBD’s paper), and on balance my view is that the risks of
not bringing the application for recusal (predominantly the risk of an adverse
outcome in the current Horizon trial and the ‘third trial’ due to the Judge’s
decision that Post Office witnesses are ‘unreliable’) outweigh those of making
the application, although this is a finely balanced consideration, and the
Board may consider these risks differently.
Unfortunately Lord Grabiner has a prior commitment and cannot make the
5.15 board call tomorrow. At the time of writing I believe that Lord
Neuberger QC will be available to dial in to the Board discussion,
notwithstanding he is currently in South America.
I appreciate these are difficult decisions and the requirement for them to be
made in a truncated timetable is not ideal . I am available during most of
tomorrow (Monday) should anyone wish to discuss these ahead of the Board
call.
Kind regards,
Jane
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