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POST OFFICE LIMITED
THE POST OFFICE GROUP LITIGATION
CRIMINAL CASES
1. EXECUTIVE SUMMARY
The 61 GLO claimants with criminal convictions for fraud, theftand/or false accounting (‘Convicted
Claimants") present significant challenges in the litigation, in particular for the settlement efforts.
Whether the Convicted Claimants’ claims have any value depends on whether the Claimants in
question are successful in their criminal appeals. If they are unsuccessful, the claims will likely be
worth nothing. If, however, all the criminal convictions are overturned, the Convicted Claimants’
claims will be substantial — our estimate the total realistic exposure to be between £10.4m and
£44.6m. These numbers could be understated as the Court is baind to have sympathy with a
claimant who is found to have been wrongfully convicted, partiailarly in cases involving custodial
sentences.
There is no clear solution to the problem of how to approach settlement with the Convicted Claimants;
all the options carry risk. This paper aims to articulate the options and advantages and
disadvantages of each. The right approach is not simply a legd matter but our recommendation
would be to approach settlement at the mediation by making glotal offers to the Claimant Group
which make no allowance for Convicted Claimants’ claims. Therewould then be nothing to stop the
Claimants from apportioning the global sum between the membersof the wider Claimant Group as
they consider fit.
The Board Subcommittee is asked to note the contents of this paper and approve the strategy for
the Convicted Claimants ahead of the forthcoming mediation.
2. BACKGROUND/CONTEXT
241 Settlement with the Convicted Claimants raises particular challenges. The Convicted
Claimants, who are Post Office's most vocal critics, are likelyto form a core component of
the Claimant committee at the mediation. If Post Office were b take an inflexible position
that their claims cannot be considered as part of the mediation process, there is a high risk
that the mediation will not get off the ground. Post Office is also likely to be subject to
trenchant external criticism, as happened at the time of the oiiginal mediation scheme in
2013.
2.2 However, settling with the Convicted Claimants is problematic:
2.2.1 Itis not a principled way of proceeding. If a Claimanthas been properly convicted,
it is in the interests of justice that the conviction stands. From our review, it appears
that a number of the Convicted Claimants admitted that they (or family members)
stole (or "borrowed") money from Post Office.
2.2.2 Any settlement could be portrayed as admission of failures on the part of Post
Office in the exercise of its prosecutorial powers, which is a serious matter, with
potentially very significant consequences.
2.2.3 Brian Altman QC's advice is that offering the Convicted Claimants anything at all
would enhance the prospects of the claimants succeeding in their appeals
(confidentiality over the settlements could not be maintained).
2.2.4 It also risks unravelling the numerous other prosecutions where Post Office acted
as prosecutor.
2.3 The Board has previously received advice from HSF dated 13 September 2019 on the
proposed strategy for the upcoming mediation on 27 and 28 November 2019. Given the
particular sensitivities around the Convicted Claimants and Bran Altman QC's recent advice,
we have been asked to provide the Board further advice specifically covering:
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2.3.1 A global quantum view that incorporates the Convicted Clamants; and
2.3.2 Further advice on strategy, including an assessment of the advantages and
disadvantages of commissioning an internal "non-legal" review of the convictions
to identify cases which Post Office may not have prosecuted toaly and offering
such claimants appropriate compensation.
GLOBAL QUANTUM VIEW
3.1 Subject to the outcome of the Horizon Issues judgment, Brim Altman QC's view is that the
Convicted Claimants are unlikely to succeed in their criminal appeals because they face two
substantial hurdles: (a) those who pleaded guilty will need toestablish a basis for withdrawing
their guilty pleas (for example by alleging incompetent legal representation); and (b) they will
then need to persuade the appeal court that they were wrongfully convicted.
3.2 Brian Altman QC acknowledges, however, that his assessment might change in light of
findings made in the Horizon Issues judgment. The Criminal Case Review Commission (the
"CCRC"), which has been asked to review 34 of the 61 criminal cases, has also suggested
that the Horizon Issues judgment is likely to be material to how it proceeds.
3.3 In light of that background, there are a wide variety of pdential quantum outcomes to the
Convicted Claimants’ claims:
3.3.1 If, ultimately, the convictions stand, the Convicted Claimants’ claims are likely to
be worth little or nothing. That is because the claims made wil, for the most part,
involve a collateral attack on the judgments of the criminal courts and such claims
are liable to fail as an abuse of process.
3.3.2 If, however, particular convictions are overturned, theaffected claimants will likely
have significant claims. Such claimants would likely have enhanced prospects of
recovering stigma damages (assessed as a multiple of earnings 6r the duration of
the period that the Claimant's earning capacity was diminishedas a result of having
a criminal conviction) and be entitled to enhanced damages for distress-related
personal injuries and harassment. Claims for malicious prosecu tion may also lie if
the Claimants are able to establish malice.
3.3.3 The cumulative value of such claims will depend on the number of claimants who
successfully overturn their convictions. The fact-patterns across the criminal cases
are different so it may not be the case that all the Convicted Claimants will stand
3.3.4
1 This figure is based on information as verified by Post Office and excludes any damages for post-
termination losses (save for notice pay losses), personal injury, harassment, malicious prosecution and
stigma damages.
2 This figure excludes any damages for personal injury, harassment, malicious prosecution and/or stigma
damages but includes post-termination losses as stated by the Convicted Claimants in their Statements
of Information schedules.
3 This figure includes recoverable costs to date (£15m less £5m costs order paid).
4 The interest calculations are merely indicative. They are calculated based on the average number of
days from the mid-point between the Claimant's First Date of Service and Last Date of Service (where
this information is available) to 30 November 2019.
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3.5 These figures could be understated as a claimant who can establish that their life
has been ruined as a result of a wrongful criminal conviction $ bound to attract the
sympathy of the Court.
POST OFFICE'S LEGAL OBLIGATIONS
From a technical legal perspective the correct course for he Convicted Claimants is to
pursue their grievances through the CCRC and/or the criminal appeals courts, not the GLO,
until such time as their criminal convictions have been overtumed.
The only proactive duty Post Office has is to ensure that he appropriate disclosures are
made to each convicted individual. In that regard, it may wellbe that, as a result of the
Horizon Issues judgment, findings are made that require Post Office to make fresh
disclosures which convicted parties might then be able to rely upon to found a criminal
appeal. Brian Altman QC has advised that, if fresh disclosures are required, an individual
case-by-case review will need to be conducted to determine the appropriate approach in
each case. Steps are being taken now to prepare for such a review.
STRATEGIC APPROACH
In light of the complications which the Convicted Claimantsraise for mediation, Post Office
will need to take a strategic decision as to whether to take astrict legal approach to these
cases or offer something more. None of the options offer a whdly satisfactory solution. The
advantages and disadvantages are summarised below:
5.1.1 Exclude Convicted Claimants _from__the _mediation/settlement__discussions
altogether:
(A) Legally sound approach;
(B) Risks derailing the mediation process from the outset and making
settlement impossible to achieve;
(C) Will generate adverse publicity.
5.1.2 Offer to fund criminal appeals:
(A) Brian Altman QC advises that any gesture of this type will jeopardise the
safety of the conviction and also, potentially, that of Post Ofice's other
historic convictions.
5.1.3 Make a global settlement offer to the entire Claimant graip — Although it would
need to be specified that no amount in the lump sum settlementamount has been
attributed to the Convicted Claimants, it would be a matter forthe Claimant group
to apportion that sum between themselves:
(A) Would give the Convicted Claimants a prospect of recovering something
from their co-claimants as a result of the mediation process;
(B) If settlement can be achieved, those Convicted Claimants wiv are satisfied
with their financial outcomes may be less inclined to pursue matters
through the CCRC or criminal appeals process;
(C) Risks splintering the Claimant group by putting the onus onthem to resolve
the issue themselves, which may make obtaining a full and finalsettlement
overall harder to achieve;
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(D) Notwithstanding careful positioning, the Claimants may present the
position as Post Office having made offers to the Convicted Claimants.
Commission an internal, non-legal review of the ConvictedClaimant prosecution
files in light of Post Office's current approach to prosecutiors and compensating in
appropriate_cases: This could enable the reviewer to identify particularly
problematic cases, instances where Post Office could have acted unreasonably
when viewed through the lens of its current approach to prosecitions, where there
were significant extraneous circumstances involved, or where Past Office took a
decision it would not take now when faced with the same circumstances. This
approach:
(A) Would show Post Office taking a "human" approach to resolving the issues
which have arisen, painting Post Office in a positive light;
(B) Would demonstrate to the wider SPM population that Post Office cares;
(C) It would, however, be very extremely difficult to draw the line between
deserving and undeserving cases, or to do so consistently, especially after
the passage of time.
(D) Those Convicted Claimants who fall on the wrong side of the line would
be aggrieved, exposing Post Office to criticism and potential legal
challenge around its neutrality and decision-making; confidentality could
not be maintained;
(E) Other convicted SPMs (both in the GLO and outside it) are ikely to rely on
the actions taken as an implicit admission that Post Office ithas exercised
its prosecutorial powers wrongly or oppressively in the past, wth the
associated risks of further adverse publicity, additional challenges to past
prosecutions and increased claims for compensation.
5.2 The appropriate way forward is a matter for the Board but aur view is that the approach
outlined at 5.1.3 offers the least-worst option. The position should, however, be kept under
review in light of the findings.
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