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From: Cooper, Tom - UKGI[/O=HMT/OU=EXCHANGE ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=8D968D43E33749AE9E59F9C9350E69D5-
COOPER, THOMAS (TCOO]
Sent: Wed 20/03/2019 12:41:04 PM (UTC)
To: Alex Chisholm)
Ce: Watson, Richard - UKG'
Subject: Re: Postmaster Litigation - Recusal ; Confidential and subject to legal privilege
Copying Alex
Very strong advice from Lord Grabiner just now including “if there were any other options I would have told
you about them”
Also a strong recommendation to seek recusal.
Tom
Sent from my iPhone
On 20 Mar 2019, at 11:43, Jane MacLeod. wrote:
Richard
In accordance with the Agreed Protocol, please find below an exchange of emails responding to Tom’s
question this morning as to whether there was an alternative route to recusal.
Kind regards,
Jane
<image002.png> Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number:
Jane
As requested, Counsel team response below:
Dear Tom,
This proposal does not work. Indeed, if made, this application would make matters
(even worse). Even if PO decide not to seek to recuse Fraser J 1 would advise strongly
against the proposed course. I say this for the following reasons:
(1) The immediate (and likely irreversible) prejudice PO are suffering is the effects
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of the apparent bias Fraser J showed in the CIT upon his current handling of the
Horizon issues trial. There is also the future prejudice of him handling the
breach trial in November 2019.
The only way of seeking to deal with the prejudice is to seek his recusal on an
urgent basis.
Seeking to appear before him indicating that PO is going to appeal against his
CIT judgment on grounds of procedural unfairness — will assuredly not result in
him adjourning the Horizon trial. He will not do so because the unfairness in the
CIT trial itself does not infect the Horizon trial. It is the apparent bias of Fraser J
that infects the Horizon trial. The only remedy for that is recusal.
If, on this proposal, Fraser J’s refusal to adjourn the Horizon trial is then
appealed to the Court of Appeal — they would assuredly not adjourn that trial
and would not recuse him- because there would not application before them to
do so.
(5) Furthermore, an appeal against a refusal to recuse is much more likely to come
on as an urgent appeal — than an appeal against the refusal of a judge to
adjourn a trial on the basis that he showed procedural unfairness in an earlier
trial between the same parties. Indeed the latter appeal is very likely to come on
after the Horizon trial is completed and the Judgment handed down. This fact
would make it more unlikely the Court of Appeal would intervene.
And, if all this comes to pass (as it most assuredly would) is the proposal that
then PO applies to the judge to recuse himself ? And then appeal him if he does
not ? This make no sense- and would all come too late to be effective to deal
with the prejudice in (1). Indeed, this course of action would look very much as
if PO were seeking to delay matters and behave badly- in the manner presently
charged by the Judge.
(7) If there are good grounds for a recusal (and clearly there are) and good
prospects of success (as advised) then the Court of Appeal would expect PO to
apply to the Judge to recuse himself and then appeal him if he did not. There is
no middle ground here.
(2
(3
(4,
(6
Best,
D.
David Cavender Q.C. <image001 jpg>
One Essex Court
Temple
London EC4Y 9AR
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: Jane MacLeod [mailto:jane.macleod!
Sent: 20 March 2019 07:14
To: Tom Beezer
Cc: Andrew Parsons; Rodric Williams
Subject: recusal
Tom
I have been asked to see whether an approach along the following lines (as an
alternative to recusal) would be possible procedurally:
“4, 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.”
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Could we please test this with the Counsel team?
Thanks,
Jane
Jane MacLeod
Group Director Legal, Risk & Governance
Post Office
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