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Information Sharing Protocol between Post Office Limited, the UK Government
Investments, the Secretary of State for Business and Trade and the Chancellor and Under-
Treasurer of Her Majesty's Exchequer
BACKGROUND
A.
UK Government Investments (“UKGI”), on behalf of the Secretary of State for Business,
and Trade (the “Secretary of State for DBT”), oversees His Majesty’s Government’s 100%
shareholding in Post Office Limited (“POL”).
POL was the Defendant in the “Post Office Group Litigation”, Bates & Others v. Post Office
Limited, High Court of Justice, Queen’s Bench Division, Claim Nos HQ16X01238,
HQ17X02637 and HQ17X04248 which was settled under the terms of a confidential
settlement deed dated 10 December 2019 (the “Settlement”). POL is currently
implementing the terms of the Settlement including the operation of a scheme to assess
historical shortfalls that have arisen in Post Office branches (together with any such work
arising directly or indirectly from the Settlement being the “Post-GLO Implementation”).
POL is also assisting the Criminal Cases Review Commission investigate a number of cases
where former POL postmasters/former employees of postmasters (many of whom were
claimants in the group litigation) claim to have been wrongly convicted of a criminal
offence prosecuted by POL and a number of these cases have been referred by the
Criminal Cases Review Commission to the criminal appellate courts with a number still
under investigation (“Conviction Appeals”). Where these convictions are overturned, POL
is currently operating a scheme to compensate these individuals (“Overturned
Convictions"). The High Court’s Horizon Common Issues judgment found that certain
aspects of Post Office’s contractual provisions were unlawful and that some of its policies
breached its duty of good faith. POL subsequently conducted an extensive review of its
contracts and policies to identify aspects which could give rise to potential detriment to
Postmasters and is now compensating for these (“Postmaster Detriment”). (“Postmaster
Detriment” together with the “Post-GLO Implementation”, “Conviction Appeals”, and
“Overturned Convictions”, are the “Postmaster Claims”).
The Secretary of State for DBT, UKGI and the Chancellor and Under-Treasurer of His
Majesty's Exchequer (the "Chancellor of the Exchequer") share with POL a common
interest in understanding the matters in issue in the Postmaster Claims, POL’s position
on them, and the exposures they present to POL’s operations, finances and reputation.
This common interest is based (among other grounds) on the Secretary of State for DBT’s
ownership of POL, the investment they make in POL’s activities to support the important
public and social purpose POL serves, the accountabilities the Secretary of State for
DBT/UKGI have for that ownership and investment to Parliament and to the public and
the accountabilities the Chancellor of the Exchequer has to Parliament and the public
regarding oversight of departmental budgets and expenditure.
Consistent with that common interest, POL wishes to share with representatives of the
Secretary of State for DBT, UKGI and the Chancellor of the Exchequer information about
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the Postmaster Claims. That information may include material which is confidential
and/or covered by legal professional privilege, and it is expressly agreed by the Secretary
of State for DBT, UKGI, the Chancellor of the Exchequer and POL that it is in their common
interest to maintain any and all such privilege and confidentiality.
E. This Protocol therefore sets out the basis on which information about the Postmaster
Claims will be shared with the Secretary of State for DBT, UKGI and the Chancellor of the
Exchequer so as to promote their common interest and preserve privilege and
confidentiality.
SHAREHOLDER REPRESENTATIVE
1. The Secretary of State for DBT has appointed a shareholder representative (Ms Lorna
Gratton) to POL’s Board of Directors who, in their capacity as a director, will receive all
information submitted to POL’s Board about the Postmaster Claims.
2. The shareholder representative may share all information described in paragraph 1,
including legally privileged and confidential information, with the Secretary of State for
DBT/UKGI who may in turn wish to share such information with the Chancellor of the
Exchequer. Where the shareholder representative shares or proposes to share legally
privileged and confidential information, he shall only do so in accordance with the
relevant safeguards set out in Appendix A.
3. Transmission of information to the shareholder representative in this manner shall not be
deemed to be reporting or notifying any of the matters concerned to the Secretary of
State for DBT/UKGI as described in paragraphs 4, 5 and 6.
REPORTING
4. POL shall promptly inform the Secretary of State for DBT/UKGI’s nominated
representatives (the “Nominated Representatives”) of any significant changes associated
with the Postmaster Claims, including but not limited to notifying promptly the Secretary
of State for DBT/UKGI of any
a. potential press coverage of which POL would reasonably be expected to be aware;
or
b. developments which POL reasonably considers could have a_ significant
reputational impact.
5. The Secretary of State for DBT/UKGI may request through the Nominated Representatives
additional written update report in respect of any other specific areas relating to the
Postmaster Claims in which it has an interest.
6. The Secretary of State for DBT/UKGI may request information and assistance to enable
them to respond to any ad hoc queries made to the Secretary of State for DBT/UKGI about
the Postmaster Claims who may in turn wish to share such information with the
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Chancellor of the Exchequer. POL agrees to use reasonable endeavours to respond to
such ad hoc requests as soon as possible.
APPROVAL PROCEDURES
7. If, the context of the Postmaster Claims, POL wishes to utilise the approvals procedure set
out at Articles 8.2 and 8.3 of POL’s Articles of Association dated 1 April 2020 (the
"Articles"), the Secretary of State for DBT hereby:
a. nominates Ms Lorna Gratton and/or Miss Lucie Lambert (or such other individuals
as may be notified to POL in writing from time to time) as the person(s) to whom
any notice under Article 8.3 (A)(i) must be addressed; and
b. gives consent, as required under Article 8.3 (A)(ii)(c) for any such notice to be
delivered by email to the following email addresses (or such other email addresses
as may be notified.to.PAl_in.writing.from time to time):
Lucie.Lambert GRO i
Lorna.Gratton;
GRO. I
CONFIDENTIALITY and PRIVILEGE
8. Information shared between POL, the Secretary of State for DBT, UKGI and/or the
Chancellor of the Exchequer about the Postmaster Claims is likely to include material
which is covered by legal professional privilege or is otherwise confidential. POL, the
Secretary of State for DBT, UKGI and the Chancellor of the Exchequer each agree to treat
such information so as to promote the preservation of that privilege and/or
confidentiality.
9. Legally privileged and confidential information will be marked as such by POL and treated
by the Secretary of State for DBT, UKGI, the Chancellor of the Exchequer, their executives,
officers, employees and their professional advisors in accordance with the “Obligations in
Relation to Legally Privileged and Confidential Information” set out in Appendix A to this
Protocol.
Dated November 2023
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APPENDIX A - OBLIGATIONS IN RELATION TO LEGALLY PRIVILEGED AND CONFIDENTIAL
INFORMATION
at “Privileged and Confidential Information” means any and all legally privileged and
other confidential information relating to the Postmaster Claims provided by Post
Office Limited (“POL”) in any form or by inspection or observation, whether supplied
or received before or after the date of this Protocol, and wherever or however stored,
compiled or memorialised, together with any copies of and notes made in respect of
such information.
1.2 “Purpose” means understanding the matters in issue in the Postmaster Claims, POL’s
position on them, and the exposures they present to POL’s operations, finances and
reputation, all of which are of common interest to POL, the Secretary of State for
Business, Energy and Industrial Strategy (the "Secretary of State for DBT"), UK
Government Investments (“UKGI”) and the Chancellor and Under-Treasurer of Her
Majesty's Exchequer (the "Chancellor of the Exchequer"). This common interest is
based (among other grounds) on the Secretary of State for DBT/UKGI’s ownership of
POL, the investment they make in POL’s activities to support the important public and
social purpose POL serves, the accountabilities the Secretary of State for DBT/UKGI
have for that ownership and investment to Parliament and to the public and the
accountabilities the Chancellor of the Exchequer has to Parliament and the public
regarding oversight of departmental budgets and expenditure.
1.3 The Secretary of State for DBT, UKGI and the Chancellor of the Exchequer (each a
“Receiving Party”) will:
1.3.1 treat and safeguard the Privileged and Confidential Information as private and
confidential;
1.3.2 not use or disclose any of the Privileged and Confidential Information for any
purposes other than the Purpose;
1.3.3. ensure proper and secure storage of the Privileged and Confidential Information;
1.3.4 handle, preserve and protect such Privileged and Confidential Information
using a high degree of care and at least the same degree of care as the
Receiving Party affords its own confidential information of like sensitivity and
importance; and
1.3.5 permit access to the Privileged and Confidential Information only to such of its
executives, officers, employees and professional advisors, and those of the
Secretary of State for DBT, UKGI and the Chancellor of the Exchequer (where
applicable) (together “Individual Recipients”), as reasonably and
necessarily require access to the same in respect of the Purpose and then
only on condition that each such Individual Recipient is made aware of the
privileged nature of the Privileged and Confidential Information and agrees
to comply with the obligations imposed on the Receiving Party under this
Protocol.
1.4 The Receiving Party shall retain up to date records of all Individual Recipients.
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15 The Receiving Party will ensure that such Individual Recipients are aware of the
relevant obligations under clause 1.3 of this agreement not to disclose any Privileged
and Confidential Information except in accordance with this Protocol.
1.6 The Receiving Party shall:
1.6.1 ensure that all its executives, officers, employees and/or professional advisors
and those of the Secretary of State for DBT, UKGI and the Chancellor of the
Exchequer (where applicable) who work with the Individual Recipients are
aware that the Individual Recipients are required to keep the Privileged and
Confidential Information confidential and that if such executives, officers,
employees and/or professional advisors and/or those of the Secretary of State
for DBT, UKGI and the Chancellor of the Exchequer (where applicable) should
obtain any Privileged and Confidential Information, that they too shall keep it
confidential and keep it secure in the same way as the Receiving Party secures
its own confidential information;
1.6.2 promptly and in any event not less than three working days after becoming
aware notify POL in writing where any unauthorised use or disclosure of any
Privileged and Confidential Information has taken place;
1.6.3 to the extent that any Privileged and Confidential Information is proprietary to
any third party other than POL, the Receiving Party shall ensure that all
Individual Recipients shall only use such Privileged and Confidential
Information for the Purpose unless POL expressly advises otherwise in writing.
17 These obligations of confidentiality do not apply to any information which in the
reasonable opinion of the Receiving Party:
1.7.1 was known to the Receiving Party before the Privileged and Confidential
Information was provided or made available by or on behalf of POL and was
not held under an obligation of confidence to POL whether directly or
indirectly;
1.7.2 is subsequently received from any third party legally in possession of the
Privileged and Confidential Information and who was not restricted from
disclosing it;
1.7.3 is in or subsequently comes into the public domain (other than by breach by
the Receiving Party of its obligations under this Protocol);
1.7.4. is subsequently authorised to be used or disclosed as non-confidential
information with the prior written approval of POL;
1.7.5. is independently acquired by an employee, consultant, contractor or
professional advisor of the Receiving Party in a manner which does not
constitute a breach any obligation of confidence;
1.7.6 is required to be disclosed by applicable law or by any court of competent
jurisdiction, the rules and regulations of any body or any enquiry or
investigation by any governmental, parliamentary, official or regulatory body
which:
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(a) has the power to compel disclosure of the Privileged and Confidential
Information from the Receiving Party or any of the Receiving Party’s
executives, officers, employees and/or professional advisors; or
(b) is otherwise lawfully entitled to require any such disclosure,
subject always to the Receiving Party complying with Clause 1.9; or
1.7.7 is requested by supervisory or regulatory authorities, to whose jurisdiction the
Receiving Party reasonably believes itself to be subject, in connection with
their examination or supervision of the Receiving Party, subject always to the
Receiving Party complying with Clause 1.9.
1.8 Without prejudice to the generality of Clause 1.7.3, Privileged and Confidential
Information will not be deemed to be in the public domain by reason only that it is
known to only a few of those people to whom it might be of interest, and a
combination of two or more portions of the Privileged and Confidential Information
will not be deemed to be in the public domain by reason only of each separate portion
being so available.
1.9 If the Receiving Party is required pursuant to Clause 1.7.6 or 1.7.7 to disclose any
Privileged and Confidential Information, the Receiving Party will: (i) endeavour, to the
extent permitted by law, to provide POL with prompt written notice of such
requirement so that POL may assert such interest as it has in the Privileged and
Confidential Information, and (ii) ask the court or regulatory authority to treat the
Privileged and Confidential Information as confidential.
1.10 The parties acknowledge that the Freedom of Information Act 2000 ("FOIA") and the
Environmental Information Regulations 2004 (SI 2004/3391) ("EIR") potentially apply
to Privileged and Confidential Information disclosed by POL to the Secretary of State
for DBT,UKGI and/or the Chancellor of the Exchequer. If the Secretary of State for
DBT,UKGI and/or the Chancellor of the Exchequer receives a request for the disclosure
of information that includes within its scope Privileged and Confidential Information,
it shall:
1.10.1 promptly, and in any event within three business days of receipt, inform POL’s
legal team of the request; and
1.10.2 allowa reasonable period for representations to be made by POL as to whether
prejudice to its interests would occur were the Privileged and Confidential
Information to be disclosed, provided that POL shall make such
representations within 5 business days from the date of the notification by
the Secretary of State for DBT, UKGI and/or the Chancellor of the Exchequer.
The Secretary of State for DBT,UKGI and/or the Chancellor of the Exchequer will
consider any representations it receives pursuant to Clause 1.10.2 but it retains sole
discretion as to whether any Privileged and Confidential Information falls to be
disclosed under FOIA or EIR.
END
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