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From: Chisholm, Alex (BEIS)\-corcwrnoret RQ wonngerrend
Sent: Wed 20/03/2019 11:25:13 AM (UTC)
To: Watson. Rit JKGIIR’ Cooper, Tom -
Cc: Evans. Gareth creccnn
“th Permanent Secretary[F onmoanuncounnuneeurergovuny
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
In my view we should not so engineer a position - that would make the Department into a directing
force in the litigation, which is neither correct nor prudent.
A
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From: Watson, Richard - UKGI <ri
Sent: Wednesday, March 20, 2019
To: Cooper, Tom - UKGI
Cc: Chisholm, Alex (BEIS); Kilgarriff, Patrick (Legal); Evans, Gareth (BEIS)
Subject: Re: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
1am
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
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From: Richard.Watsort.
Sent: 20 March
To: Tom.Coope! . - ~
Ce: Alex.Chishol ; patrick.kilgarriff. Gareth.EvansGouaSR Pune
Subject: Re: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Tom
Thanks. Alex sums up my view perfectly. I am copying in Patrick and Gareth who I think share the
same view
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Kind regards
Richard
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From: Tom.Cooper¢,
Cc: Alex.Chisholm__
Subject: Fwd: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
Richard
I told Alex that you would agree with this but feel free to comment further
Tom
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Begin forwarded message:
From: "Chisholm, Alex (BEIS)" < “GRO k>
Date: 19 March 2019 at 22
To: "Cooper, 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, 201:
To: Cooper, Tom - UKGI
Subject: Re: Recusal CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE
pm
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).
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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 nota
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 - 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 <ti
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.
I'll be off the train at around 8.
Tom
Sent from my iPhone
Begin forwarded message:
From: <Tom.Cooperheememorss :
Date: 17 March 2019 at-22:55:01
To: <Richard Watson Genie PRO, crn-!
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 <l
Date: 17 March 2
To: "tom.cooper¢
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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 McCaltoiCarla Stentox Thomas Cooper; Shirine Khoury-
Haq; Tim.FranklinGRO} =
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:
e Draft paper from me (‘Recusal 2019-3-18’) which recommends
the recusal application and retained counsel;
e Lord Neuberger’s preliminary advice (‘4852001.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
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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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