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From: Cooper, Tom - UKGI[/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP
(FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=97888B27D7034E80AB21DE4583305D52-
THOMAS.COOP]
Sent: Tue 14/05/2019 4:29:28 PM (UTC)
To: Watson, Richard - UKGI!
Cc:
Clarke, Stephen -
Subject:
Thanks Richard. Makes sense
Sent from my iPhone
On 14 May 2019, at 18:20, Watson, Richard - UKGI!
i wrote:
Tom
Just spoke to Alan. I have to leave soon but a quick read out is that he is coming to the view that POL
should drop the procedural irregularities ground and certainly drop recusal lite. The concern is that
including either might result in Coulson J refusing permission.
Alan thinks Cavender remains hopeful that Fraser will be removed at some stage but that is not going to
happen. Alan is not really persuaded that dropping the procedural irregularity stuff is particularly
damaging to settlement prospects. The key is winning on the notice period and the duty of good faith.
Not getting permission to appeal at all would be very damaging to a reasonable settlement.
If possible they are going to try and keep the procedural irregularity door open pending getting new
counsel on board and a view from them but that is unlikely. Alan indicated that Lord N is more balanced
than Cavender or Grabiner and he thinks he is less wedded to the procedural irregularity point than the
other two.
Hope that helps. POL board are in an invidious position but I’m confident that Alan is giving sensible
advice in difficult circumstances. He can see where Fraser and Coulson are coming from on POL’s
complaints of procedural unfairness and if they are right it feels as though that line of appeal is not likely
to succeed even if permission is granted.
Kind regards
Richard
Richard WatsonI General Counsel
UK Government Investments
ISW1H OET
From: Watson, Richard - UKGI
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Sent: 14 May 2019 16:
To: Cooper, Tom - UKG
_u....1 Clarke, Stephen - UKGI
“Subjec RE: Legally privileged and confidential - GLO
Of course. Will try now
Kind regards
Richard
From: Cooper, Tom - UKGI
Sent: 14 May 2019 16:01 _
To: Watson, Richard - UKG
arké, Stephen - UKGI
‘é: Legally privileged and confidential - GLO
It would be great if you could speak to Alan
Sent from my iPhone o
On 14 May 2019, at 16:42, Watson, Richard - UKGI
Tom
Thanks. I’m not surprised Cavender has written in these terms. As Tom says there may be
an element of denial (and/or back covering) but he clearly feels he is under a duty to warn
his clients as to what he sees as the implications of their decision to remove all the bits
about procedural unfairness and findings of fact from the proposed appeal. It is not clear
to me what HSF’s advice is here. Also I’m not sure what Lord N has advised but note that
Cavender refers to it.
I can see that the change in approach is being driven by the recent Coulson judgment and
the concern that if Coulson sees a permission application which includes the procedural
irregularities stuff it will taint his view of the other bits of the appeal, which have real
merit, and risk him refusing permission outright. While I sympathise with Al’s anxiety I do
worry that might result in POL going too far in abandoning grounds that HSF previously
agreed should be pursued, albeit before they knew about the Coulson judgment.
It sounds as if the current tactic is to see how the procedural irregularities door can be kept
open pending advice from different counsel. I think that is probably best assuming it is
realistic.
The board are in a very difficult position and the timings are awful. On settlement I am not
convinced that abandoning the procedural irregularity stuff is necessarily going to result in
a much higher sum for the claimants. What will certainly do so is not getting permission to
appeal.
With the huge benefit of hindsight it seems it would have been better not to pursue the
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recusal appeal but instead pursue the procedural irregularities and “recusal light” points —
this does not sound dissimilar to an option that I think Alex Chisholm raised but which was
roundly dismissed by the counsel team.
Happy to discuss and/or speak to Alan about it
Kind regards
Richard
Richard Watson IGeneral Counsel
UK Government Investments
1 Victoria Street I London I SW1H OET
W: https://www.ukgi.org.uk,
From: Aldred, Tom - UKGI
Sent: 14 May 2019 14:58
rke, KGI
Legally privileged and confidential - GLO
‘Subje
Wow. It does make me think about what was said at the NED forum a few weeks
ago about helping Boards get through the 7 stages of grief: “shock and denial” are
typically the first stage
From: Cooper, Tom - UKGI
Sent: 14 May 2019 14:43
Idred, Tom - UKGI
Richard
Any thoughts on this?
Tom
Sent from my iPhone
Begin forwarded message:
From: Thomas Cooper
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Subject: Fwd: Legally privileged and confidential - GLO
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From: Watts, Alani
Sent: Tuesday, May 14, 2019 3:02:40 PM
To: Thomas Cooper; Tim Parker; Ken McCall1; Alisdair Cameron; Ben Foat
Cc: Massey, Kirsten
Subject: RE: Legally privileged and confidential - GLO
All,
We have received a revised grounds of appeal and skeleton from DCQC which
we are currently working through. However in the meantime I set out below
his covering email:
"1 Following yesterday’s telephone meeting (at which the PO Board sub-
committee dealing with the Group Litigation decided to excise from the
Common Issues appeal all issues that were not
“strictly necessary” as part of the appeal against the construction of the terms
of the contracts) I attach marked up copies of the amended Grounds of
Appeal and the “baby” skeleton in support of the application for permission.
2. As instructed, these have all the ingredients of procedural unfairness
and findings of fact removed. We have also removed the recusal light
direction — which I agree is best removed in the current circumstances. At the
end of the day the client must have the final say and we will of course support
that and do our level best to achieve the optimum result for any client —
particularly one like PO who has been sorely let down by the legal system and
is understandably shaken by it.
3. Nonetheless, it would be wrong for me to attach these documents,
on that basis, without formally expressing my views (largely set out in our
subsequent call with HSF) that whilst the client's instinctive view (following
receipt of Coulson U’s refusal on the recusal appeal) is perfectly
understandable — this approach, of not challenging the procedural unfairness
or perverse findings of fact, will be damaging to PO’s case and is one which is
high likely to result in them having to pay a significantly larger sum to settle
this case. I say this for a number of reasons:
(1) The complaints we make are right — and nothing Coulson LJ says
persuades me otherwise - and the Court of Appeal when they actually get to
look at the detail will likely agree. This will in and of itself undermine the
Judge in their eyes and make them treat his other findings on the law with
less respect. It will also give us a good chance of removing him for the future.
We should not give up now just because a single Judge of the Court of Appeal
(and his friend) on a cursory review agrees with Fraser J. In this Lord
Neuberger agrees. I think it would be useful if the client saw his analysis of
the two types of case he identifies and his careful thinking on this. Such a
view, from someone of his calibre, should not be lightly dismissed.
(2) If we do not have any grounds before the court on procedural unfairness
then there is no way that we can even make submissions to the effect that
the case should not be returned to Fraser J. This means that trials 3 and 4 will
be before him and which, save where his ingenuity cannot construct it, he will
likely make sure that PO will lose. If Mr.Abdulla is a honest and truthful
witness then PO stands little chance of fighting in the trenches on any of the
individual cases. This means, in effect, that PO will no longer have any
realistic strategy which involves taking the results of the Common Issues trial
and the Horizon trial to trials on breach. In effect, this means that PO will
have no choice but to settle. The Claimants will know this and drive a hard
bargain. This will result in PO paying much more than it ought to settle these
claims — as it will not have a realistic alternative. This puts PO in a very weak
position.
(3) Furthermore the criticisms of Post Office will go unchallenged — with the
consequence that an order of indemnity costs (which relies on such grounds)
becomes significantly more likely.
(4) Furthermore, the criticisms of Post Office witnesses will go unchallenged
— with the consequence that if they give evidence in future trials their
credibility will be set to naught.
4, On the downside, I consider:
(1) that applying to 3 LI’s to consider the papers whilst unusual is justifiable
in these circumstances- and the fact of making the application mitigates, to
an extent, the risk of the Court of Appeal refusing permission on the Common
Issues.
(2) That whilst it might annoy Coulson LJ that some of the points he has
dismissed arise again under the procedural unfairness banner — he cannot be
particularly surprised as we alerted this to him earlier when making
submissions about hearing the two applications together. This point (and the
overlap) would need to be dealt with in the skeleton argument in support
carefully and sympathetically. Further, I really do not think that Coulson U
would be so unprofessional as to refuse permission on the legal
/construction/good faith grounds because we had also added in procedural
unfairness. I say this generally — but more particularly given the degree of
interest shown in the Judgment by others- including other Judges.
Furthermore, to decide the points under the “procedural unfairness” banner
will require him to consider the detail much more closely — he will not be able
to hide behind impressionistic formula as to what an impartial 3rd party
might or might not have thought.
5. On the question of whether the skeleton argument (absent grounds
of appeal) is sufficient my experience is that when you have a complex matter
and particularly where there is a delay such as this that the court might well
expect draft grounds. In other cases where permission applications follow on
the heels of the handing down the rules clearly do not anticipate grounds
being provided — or time for them to be formulated properly. That said, I
cannot find any rule or practice direction that requires draft grounds to be
provided in any case. The email from the Judge today just referred to
sequential skeleton arguments- no mention of draft grounds. The nearest the
rule comes to grounds - is when dealing with an adjournment from the day
the decision is handed down- it mentions that might be necessary, “...to
enable the parties to formulate their grounds of appeal and their submissions
in support” (Notes to 52.3.6 — White Book page 1778 sub-para.(e). (emphasis
added)). Whilst I would be comfortable making the application on the basis
of the skeleton alone — for the reasons mentioned on the phone yesterday
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morning this could be criticised by the Claimants and the Judge. I am more
content with the position having expanded the skeleton slightly (and
ironically with the procedural unfairness/factual findings removed) — but
there remains an obvious risk of trenchant criticism of which the client now is
understandably growing tired.
6. That said, the prize, namely of preventing Fraser J getting hold of the
full grounds of appeal early —and writing a further judgment seeking to justify
and slightly alter/supplement his conclusions, is considerable. And keep in
mind our joint views that it is very likely that he is going to refuse permission
anyway — with the outside chance of permission on good faith — but only ona
narrow (and useless) basis."
We think that we may have persuaded him that we don't need to serve the
draft grounds in advance of next week's hearing but rather just the skeleton.
There is clearly a risk that Fraser may criticise us for not doing so (and the
other side will no doubt encourage him to do so) but I think we should live
with that as it is, in my view, more important to keep our powder dry and not
give Fraser and/or the other side more notice of the detailed grounds of the
appeal than we have to especially where we plan for Helen Davies QC to
review them and probably conduct the appeal itself. She may well have her
own views on how they should be presented. With that in mind (and
notwithstanding the discussion yesterday) we are looking to see whether
there is still some way to keep the procedural irregularities door open to at
least give us the chance to get her views on it. If she thinks the right thing to
do is drop it then we can obviously do so and if our position between the
hearing before Fraser and filing the grounds of appeal changes then that will
be understandable particularly if we have a new counsel team.
The aim is to work on the skeleton today and then circulate with a view to
having a call tomorrow (if necessary) with Al and any others that want to and
can join to make a final decision so we are ready in plenty of time before
Friday's deadline (which is the date Fraser has ordered us to serve the
skeleton by). If anyone wants to discuss in the meantime please feel free to
get in touch.
Regards
Alan
From: Thomas Cooper
Sent: 13 May 2019 13:20
To: Tim Parker; Ken McCalli; Alisdair Cameron; Watts, Alan; Ben Foat
Subject: Re: Legally privileged and confidential - GLO
Tim
I’m in agreement as well.
Tom
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From: Tim Parker { GRO
Sent: Monday, May 13,
To: Ken McCall1; Alisdair Cameron; Thomas Cooper; Watts, Alan; Ben Foat
Subject: Re: Legally privileged and confidential - GLO
Al, Iam in agreement that we need a different QC to lead the appeal, and
also your conclusions about where to go now, so I don’t think we need a call
at this stage, unless Tom feels differently.
Best
Tim
Tim Parker
Chairman
National Trust
20 Grosvenor Gardens, London, SW1W ODH
GRO I
Chairman
Post Office Limited
Chairman
Samsonite International SA
Westerring 17, B-9700 Oudenaarde, Belgium
GRO
From: Ken McCall1
Sent: Monday, May 13, 2019 10:35 am
To: Alisdair Cameron; Tim Parker; Thomas Cooper; Watts, Alan; Ben Foat
Subject: Re: Legally privileged and confidential - GLO
Al
Many thanks for your update email
lam in agreement with your line of thinking and indeed looking at another
QC to front
From Wednesday onwards I will be in the US but still fully contactable by
email
Best regards
Ken
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Sent: Monday, May 13, 2019 9:51am
To: Tim Parker; Thomas Cooper; Ken McCall1; Watts, Alan; Ben Foat
Subject: Legally privileged and confidential - GLO
Following the news at the weekend we met this morning. I have set
out below the outcomes of that conversation. If the sub-committee
wants to have a call arranged, please let me know. Kind regards Al
1. Mr Coulson has supported the logic of Mr Fraser’s position and
denied our appeal on the recusal.
2. The recusal argument is finished.
3. Our appeal on the common issues will go ahead.
4. We will see Mr Fraser this morning to support the claimamts’
request to delay the appeal hearing to 23" so they have more
time to prepare. We do need to adjust our position post the
Coulson findings and will be seeking to share grounds for appeal
this Thursday, giving the Claimants a week to prepare. Mr Fraser
could demand more urgency — we originally said today - which
would make life difficult but it would be odd if we didn’t want to
consider Mr Coulson’s judgement...
5. Assuming Mr Fraser turns the appeal down, it may well be Mr
Coulson who would adjudicate whether we can appeal on the
common issues trial. He might also be the presiding judge if an
appeal went ahead. We can and are likely to ask for three judges
to decide on whether we can appeal: this is unusual but within
our rights and not considered controversial. However, it is
unclear how that decision would be made and it may still be Mr
Coulson....While the legal teams are all convinced that the legal
interpretations are so new and important that we will be able to
appeal, I am anxious.
6. We are therefore re-writing the common issues appeal now to
strip out any “recusal lite” argument and to minimise the findings
of fact only to those things that directly support one of the
contractual interpretation arguments, to give ourselves the best
opportunity to be heard and to demonstrate to Mr Coulson that
we have listened.
7. This is against the advice of David Cavender who is advising us
to stick to our guns. He does not feel like the right person to be
fronting the appeal, which HS are reviewing — depending on the
timetable, another QC may front it with his support or there could
be a complete handover over time.
8. We are briefly communicating with our senior leadership team
but in the absence of any media coverage do not plan to
communicate further.
9. Our immediate focus, which we will discuss at May Board, will
be how we best prepare for a very bad Horizon verdict, which is
inevitable, both because the recual failed and because our
witnesses did badly in court before the pause. Our job is to
reassure Postmasters to carry on, business as usual, by
demonstrating that Horizon works today, communicating a more
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transparent process for managing new differences and separately
for managing historical claims. We are currently planning to
announce this before the judgement.
10. We are also working on how we put together a settlement
team and process for after the Horizon trail.
<image001.png> Al Cameron
Interim Chief Executive
20 Finsbury Street
London
EC2Y 9AQ
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