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From: Watson, Richard - UKGI[/O=HMT/OU=EXCHANGE ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=E8568E9D213F4097A7A65F3DA4F63CC1-
WATSON, RICHARD (RWA]
Sent: Wed 20/03/2019 8:13:56 AM (UTC)
To: Cooper, Tom - UKG!
Ce: Gareth.e'
(Legal){
Subject: Re: Fwd: Alternatives to recusal? CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. DO
NOT FORWARD
Tom
Thanks. Also copying in Gareth and Patrick.
I touched on alternatives in my discussion with Jane yesterday and I had understood they had been
through those but certainly good to raise this challenge. Effectively it seems another way of making a
recusal application so presumably raises the same presentational issues and risks, but tactically it
might be a better approach.
Kind regards
Richard
Sent from my BlackBerry — the most secure mobile device
From: Tom.Cooper: j
Sent: 20 March 2019
To: Alex.Chisholn{
Subject: Fwd: Alt
3 Richard.Watsot
recusal? CONFIDENTI UBJECT TO LEGAL PRIVILEGE. DO NOT FORWARD
FYI
Sent from my iPhone
Begin forwarded message:
From: Thomas Cooper!”
Date: 20 March 2019 at 07
To: "tom.coop' j
Subject: Fwd: Alternatives to recusal? CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. DO NOT FORWARD
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From: Thomas Cooper
Sent: Wednesday, March 20, 2019 6:43:43 AM
To: Jane MacLeod; Tim Parker; Ken McCall1; Carla Stent1; Shirine Khoury-Haq; Tim.Franklin1
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Cc: Alisdair Cameron; Paula Vennells; Veronica Branton
Subject: Alternatives to recusal? CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. DO NOT FORWARD
Jane
I’ve been asked to check with you and the legal advisers whether there might be an alternative to
recusal along the following lines:
1. inform the judge that the company is appealing on the law and unfair procedure
2. ask the judge to stop the Horizon trial until the outcome of the appeal is determined on the
grounds that if the unfairness claim is upheld it would also put the fairness of the Horizon trial at
risk
3. If the judge refuses 2, seek and order from a higher court to the same effect and ask the judge
at least to stop the Horizon trial until such an order can be obtained (or not)
If the remedy in 3 is sought but isn’t obtained we will at least have tested the relevance and
implications of unfairness issues on the second trial. And effectively a higher court will have told
us that any unfairness in the first trial would not impact the Horizon trial (obviously contrary to
POL’s view).
If the remedy in 3 doesn’t exist in law then recusal would be an alternative at that point. It seems
to me the judge’s refusal to agree to 2 would support a recusal application as he would be
unwilling to accept that if unfairness took place in the first trial the nature of it would necessarily
affect the conduct and fairness of the Horizon trial - a view which logically suggests bias as it is
absurd.
Tom
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From: Jane MacLeod
Sent: Monday, March 18, 2019 11:05 am
To: Thomas Cooper; Tim Parker; Ken McCall1; Carla Stent1; Shirine Khoury-Haq; Tim.Franklin1
Cc: Alisdair Cameron; Paula Vennells; Veronica Branton
Subject: Re: GLO Board Call at 10.30 am Tuesday 12 March CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. DO NOT FORWARD
All
Following Tom’s query this morning as to when we would address the questions flagged in his
email from 13 March (below), I wanted to update on how we see these questions being
addressed.
Tom has asked that we hear the new QC’s perspectives on the judgment including 4 specific
issues. As I flagged in my paper last night, we need to agree who will be advising Post Office on
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the appeal. I have recommended David Cavendar with additional input from Lord Neuberger. To
date Lord Neuberger has only had a high level briefing which was mainly focussed on the recusal
issues. To that end, I have requested that we confirm our views on representation on the call
tonight, and that we would then have an initial view presented at the Board meeting next week.
As you will have seen from Lord Neuberger’s opinion which I circulated last night, he does make
some very high level observations about grounds for an appeal, but as yet he has not had
instructions to go further than that.
At this stage there has not been any order as to costs, and this will depend on whether we appeal,
however we estimate that if an order for costs were to be made against us, it is likely to be of the
order of c£7.5 million which would need to be paid within 14 days. However there is a risk that
the Judge could order us to pay 100% of the Claimants’ costs relating to the Common Issues trial,
in which case the costs order could be as high as c £10m.
On the contract issues, we are still working through these implications.
Operations - we will get the requested information (a description of the processes and an example
of a Branch Trading Statement) to you. We have been working on simplifying processes across a
number of areas, and this work is being accelerated. As flagged in my covering email, we
anticipate providing the Board with an update on this at the Board meeting next week.
I trust this is helpful
Kind regards,
Jane
Jane MacLeod
Group Director Legal, Risk & Governance
From: Thomas Cooper
Sent: Wednesday, March 13, 2019 10:51 pm
To: Jane MacLeod; Tim Parker; Ken McCall1; Carla Stent1; Shirine Khoury-Haq; Tim.Franklin1
Cc: Alisdair Cameron; Paula Vennells; Veronica Branton
Subject: Re: GLO Board Call at 10.30 am Tuesday 12 March CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. DO NOT FORWARD
Jane
I wanted to follow up with some questions after yesterday’s call hopefully for discussion once the
team are ready. These are the immediate reactions to the judgement and the call yesterday so I’d
welcome comments. I know you and the rest of the team are already working on many of these
as flagged up in the Board note prepared for yesterday’s call:
Judgement
Hearing the new QC’s perspectives on:
- understanding the judgement, its legal basis and why it is so far away from expectations
- the legal implications of the positive comments from the judge of the Claimants statements about
the facts and witnesses and his criticism of Horizon, its associated processes and Post Office
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witnesses
- what the judgement suggests about the potential cost of the claim
- what options exist to challenge the judgement and what the realistic outcomes might be
Subject to the views of others, I’d suggest it would be appropriate to have a separate session to
discuss these questions as a Board with the new QC without the existing legal advisers present.
Contract
- how do the liability and termination provisions in the Post Office contracts for sub postmasters
compare to those for multiples?
- are there provisions in similar sectors (eg franchising and retail) that provide comfort that the
Post Office contract terms are not out of line with the rest of the business world?
- you’ve mentioned that some contract changes are now required eg because some clauses (such
as the liability clause in the NTC contract) have been struck out in the ruling:
- what are the risks that such changes face further legal and reputational challenge?
- how would the contract changes you identify play into a longer term business model options
(and associated contracts) for Post Office which presumably might involve some fundamental
changes to the current contract? (This is a big question and I don’t think it’s possible to answer
in any detail at this stage but it would at least help to understand potential directions of travel.)
Operations
- what are the current processes for notifying, recording and resolving discrepancies and disputed.
items between postmasters and Post Office (to the extent it’s different from that described by the
judge)? It would be helpful to see an example Branch Trading Statement and how discrepancies
are currently recorded and communicated between Post Office and postmasters
- what changes to procedures are proposed following the judgement and what additional
resources are needed?
Communications
- Mark has already shared a draft release this evening. Patrick and I are in touch about a written
briefing to share with BEIS when public. We are close to final on preparing for an urgent
question in Parliament - we’re aiming to align messages as far as we can in the context of the
litigation being an operational matter for the Post office
- We’re seeking time in diaries for a verbal briefing for Ministers and the Permanent Secretary if
required (this was already in train last week). I'll update you tomorrow. I’m happy to brief other
members of the Board as well of course
Tom
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From: Jane MacLeod
Sent: Monday, March 11, 2019 7:56 pm
To: Tim Parker; Ken McCall1; Carla Stent1; Thomas Cooper; Shirine Khoury-Haq; Tim.Franklinl
Ce: Alisdair Cameron; Paula Vennells; Veronica Branton
Subject: GLO Board Call at 10.30 am Tuesday 12 March CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. DO NOT FORWARD
All
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Please find attached a paper summarising the current position. On the call tomorrow we will address
the following, as well as providing opportunity for questions:
«View of the judgement and thoughts on appeal — David Cavender QC
© Operational impact and contingency planning — Alisdair Cameron/Jane MacLeod
e Next steps
You should have received a meeting invitation containing the dial in details, however these are also set
out in the attached paper.
Kind regards,
Jane
Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile numbe:
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