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From: Creswell, Carl (Better Regulation Executive
Sent: Fri 24/05/2019 9:02:01 AM (UTC)
To: —_
Ce:
Subject: RE: Post Office Group Litigation - SUBJECT TO LEGAL PRIVILEGE - DO NOT FORWARD -
OFF SEN COMMERCIAL
Thanks, Tom — and understood!
I'm in on Tuesday and have a fair bit of free time, so perhaps we could talk then if you're available.
Have a good weekend!
Carl.
we Carl Creswell
Director, Professional Business Services, Retail and Post
Department for T
& nd pone I ve oY Orchard 2, 1 Victoria Street, London SW1H OET
naustriaI rategy www.gov.uk/beis I https://twitter.com/beisgovuk
From: Cooper, Tom - UKGI !
Sent: 24 May 2019 09:59
To: Creswell, Carl (Better Regulation Executive
Cc: Watson, Richard - UKGI ~~ GR
Stephen - UKGI GRO
Subject: Re: Post Office Group Litigation - SUBJECT TO LEGAL PRIVILEGE - DO NOT FORWARD - OFF SEN COMMERCIAL.
Carl
Don’t worry. All good questions.
It’s best to talk through this face to face rather than over email. Should we catch up next week?
The judgement itself isn’t a surprise. If the court of Appeal turns it down that would count as a real setback- probably
the biggest so far by some margin.
Tom
Sent from my iPhone _
On 24 May 2019, at 09:19, Creswell, Carl (Better Regulation Executive) I
Hi Tom,
Thanks very much for sharing this all so promptly.
I suspect that this latest development will strengthen Ministers’ concerns about POL’s
approach to the litigation, so I’m trying to get around the scale of the implications.
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My reading of it is that the decision not to let them appeal and require going to the Court of
Appeal is completely straightforward and anything different would have been a surprise
(because it was the same judge). But the costs order is the worrying bit because it will
increase the liability for POL beyond any damages. Presumably that’s only for this first case,
but it might set a worrying precedent for the future. Hope that’s all right?
Do you think there’s an argument that it should change our assessment of whether it’s
desirable for POL to consider settling at this stage? I imagine the eventual liabilities will be
high enough for the claimants to want to keep pressing on, but at what point would POL think it
is better to cut their losses? I know we'll have to balance all sort of Accounting Officer issues
and might not be able to put pressure on them to settle early, but do we have any options
here? Even though the new lawyers seem to be saying that POL has a case, it feels to me like
this is going to run and run (and perhaps not end well, given what the judge has already said).
Sorry if this seems like I’m asking naive questions that people have been over already, but it
would help me get a better sense of our overall position on this issue.
Carl.
<image002.png><image003 jpg> Carl Creswell
Director, Professional Business Services, Retail
and Post
Orchard 2, 1 Victoria Street, London SW1H OET
www.gov.uk/beis I https://twitter.com/beisgovuk
From: Cooper, Tom - UKG'
Sent: 23 May 2019 20:43
Permanent Secretary
Creswell, Carl (Better Regulation Executive)
tson, Richard - UKGI
; Clarke, Stephen - UKGI }
UKGI¢
Subject: Fwd:
Please see below.
Tom
Sent from my iPhone
Begin forwarded messag:
From: Ben Foat;
Date: 23 May 2019 at 19:
Alisdair Cameron
Henderson, Tom
Subject: Post Office Group Litigation - SUBJECT TO LEGAL PRIVILEGE - DO NOT FORWARD
Post Office Group Litigation High Level Summary - SUBJECT TO LEGAL PRIVILEGE - DO
NOT FORWARD
Al,
We were in court today before the Managing Judge His Honour Mr Justice Fraser to seek
permission to appeal the Common Issues Judgment and determine how the costs of the
Common Issues trial should be treated. The Judge did not have to consider the costs of the
Recusal Application as these had been settled between the parties beforehand.
1. Permission to Appeal
As expected, the Judge did not agree there was a real possibility of Post Office successfully
appealing his Common Issues Judgment and did not give us permission to appeal any
aspect of it:
* On Errors of Law, the Judge believed he had correctly considered and applied the
law on “relational” contracts and obligations of good faith. The Judge did however
note that the Court of Appeal might be interested in these issues, but that that would
be for them to decide from the documents we file when seeking permission from
that Court.
© On Procedural Unfairness, the Judge felt he had addressed and rejected these
issues when he dismissed the Recusal Application.
* On Errors of Fact, the Judge did not consider he has made any findings on an issue
for which no evidence had been put before him, or where he had plainly
misunderstood the evidence which was before him, and therefore we had not
satisfied the test for an appeal on any facts.
The Judge initially indicated he would elaborate on these points in a written note to follow
today’s hearing. If the Judge does issue a written note on permission to appeal (and he is
not obliged to), experience suggests that he may use that opportunity to criticise Post
Office.
2. Common Issues Costs
The Judge exercised his discretion and awarded the Claimants their costs of the Common
Issues trial, rather than reserving this question until later in the litigation when the full
impacts of the Judgment would be determined.
The Judge found that the importance of the Common Issues to the litigation as a whole, the
long period of time and expense taken to get to the trial, and the length of time still
required before the case will be fully resolved, justified costs being awarded now. He
accepted Post Office’s submission that a discount should be applied although lower than
we sought. He applied a 10% discount to the Claimants’ costs, reflecting that Post Office
had been successful on some of the Common Issues, but not a greater discount because he
felt Post Office had unnecessarily contested some matters of fact.
Post Office was successful in arguing against the Claimants submission for their costs to be
assessed on the penal “indemnity basis”, which is used when a party is found to have
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conducted the litigation unreasonably.
A full assessment of the Claimants’ claimed costs of £7.7m will still need to be carried out.
However, the outcome of today’s hearing is that Post Office has been ordered to make an
payment on account of those costs of c.£5.5m within 21 days. The precise calculation of
this payment is being finalised with the Claimants.
3. Next Steps
The next steps in the litigation are:
* Review and file with the Court of Appeal the application for permission to appeal
the Common Issues Judgment once the approach has been determined. This must
be done by 13 June 2019.
* Continue preparations for the resumption of the Horizon Issues trial on 4 June
2019.
We will arrange a further Steerco and Board Subcommittee shortly but the necessary work
for the above continues.
I hope this is helpful. Please let me know of you need anything further.
Kind regards,
Ben
<image004.png> Ben Foat
Legal Director
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Highly Commended for ‘Excellence In-house’ at the Law Society Excellence Awards Mobile number:
2018
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