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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 9:48:47 AM (UTC)
To: Cooper, Tom -
Ce: J; Kilgarriff, Patrick
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Thanks both
Kind regards
Richard
Sent from my BlackBerry — the most secure mobile device
From: Gareth.Evansi.
Sent: 20 Marc
To: Tom.Coopt
Ce: Alex.Chishol
Richard
Yes. Clearly the Minister should be given an opportunity to understand POL’s decision but it is for the Board to decide
whether to apply for a recusal (or the variant described by Tom) guided by their officials and Counsel and there should
not be a situation where the Board takes a decision subject to endorsement or otherwise by the Minister. This should
be a decision that is taken by the Board, on the merits of the litigation advice
Gareth
Gareth Evans
Deputy Director — Industry, Investments and State Aid Team
BEIS Legal Advisers
Government Legal Department
www.gov.uk/gld
From: Cooper, Tom - UKGI
Sent: 20 March 2019 09:33
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To: Watson, Richard - UKGI
Ce: Chisholm, Alex (BEI
Evans, Gareth (BEIS)
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Kilgarriff, Patrick (Legal)
I have no intention of engineering such an outcome of the Board meeting.
Tom
Sent from my iPhone
wrote:
All
Are we agreed that we should not try to engineer a position today whereby if the board decides
to proceed with recusal the Minister is given a chance to object i.e some sort of conditional
board approval. As shareholder I don't consider she has the legal power to prevent this even if
it was an appropriate thing for her to express a view on, which I think we agree it isn't but
instead is properly a matter for the board.
It is of course proper for the Minister to understand POL's decision and why their position might
have changed since her call with the chair on the weekend. I understand that might be the
subject of a call with the Minister later today
Kind regards
Richard
Sent from my BlackBerry — the most secure mobile device
From: Richard.Watson’
Sent: 20 March 201:
To: Tom.Cooper: .
Cc: Alex.Chisholm; GRO; patrick.kilgarriffi Gareth.Evans:
Subject: Re: Fwd: Recusal CONFIDENTIAL AND LEGAL PRIVILEG
Tom
Thanks. Alex sums up my view perfectly. I am copying in Patrick and Gareth who I think share
the same view
Kind regards
Richard
Sent from my BlackBer:
From: Tom.Cooper}.
Sent: 20 March 2019
To: Richard.Watson
Cc: Alex.Chisholm;’
Subject: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
— the most secure mobile device
Richard
I told Alex that you would agree with this but feel free to comment further
Tom
Sent from my iPhone
Begin forwarded message:
From: "Chisholm, Alex (BEIS)" <__
Date: 19 March 2019 at 22:00:
‘ooper, Tom - UKGI"
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Fair comment? What does UKGI legal say?
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From: Chisholm, Alex (BEIS)
Sent: Tuesday, March 19, 2019 9:23 pm
To: Cooper, Tom - UKGI
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Very helpful.
I 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
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risks - I 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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From: Cooper, Tom - UKGI 4.
Sent: Tuesday, March 19, 2019 7:11 pm
To: Chisholm, Alex (BEIS)
Subject: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
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.
lll be off the train at around 8.
Tom
Sent from my iPhone
Begin forwarded message:
Subject: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Will need your help with this
Tom
Sent from my iPhone
Begin forwarded message:
From: Thomas Cooper
Date: 17 March 2019 at 22:
To: "tom.cooper¢ ‘
Subject: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO 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
Cc: 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:
¢ Draft paper from me (‘Recusal 2019-3-18’) which
recommends the recusal application and retained counsel;
¢ 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 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 . lam
available during most of tomorrow (Monday) should anyone
wish to discuss these ahead of the Board call.
Kind regards,
Jane
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