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CartwrightKing
POST OFFICE LIMITED
ADVICE ON DISCLOSURE ISSUES ARISING OUT OF THE
CCRC AND SEPERATE CIVIL PROCEEDINGS
Background
1. Post Office Limited (POL) is presently engaged in litigation on two
fronts: it faces a class-action in the civil courts, brought by a
number of disgruntled former sub-postmasters and concerning
their contracts with POL; and it is engaged with the Criminal Cases
Review Commission (the “Commission”) in respect of convictions
obtained by POL on charges of theft, fraud and false accounting
committed against POL. There is a substantial degree of ‘crossover’
between the two fronts, largely because many of the civil claimants
were the subject of convictions now being considered by the
Commission.
Overview
The Civil Arena
2. The Overriding Objective (R.1 CPR) requires the full and frank
disclosure of material between parties both voluntarily and at an
early stage in the proceedings, although there is no requirement
to disclose documents or material which is subject to Legal
Professional Privilege.
3. Having said that I am essentially a criminal practitioner, so that
should specific advice be required relating to disclosure in civil
proceedings then the advice of a civil practitioner should be sought.
That being said, I am nevertheless able to advise on the specific
topic relating to the interplay between the requirements of the
Commission as against the general civil disclosure principles.
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The Commission
4.
Section 17 of the Criminal Appeal Act 1995 empowers the
Commission to require any person serving in a public body (here,
POL) to produce any document or other material in its possession
or under its control and which the Commission believes may assist
it in the exercise of any of its functions. It is important here to note
that section includes:
documents and other materia obtained or created during any
investigation or proceedings relating to the case in relation to which
the Commission’s function is being or may be exercised......... or any
other case which may be in any way connected with that case.....”
The Commission may require the production of material which
would ordinarily be protected by privilege. Section 25 of the 1995
Act provides that a public body from which information has been
obtained under s.17 may notify the Commission that disclosure by
the Commission to a third party should not be made without the
consent of the originating body, in this case POL, and that the
Commission must not disclose such material.
Thus all material required by the Commission must be produced to
them, although POL may require the Commission not to disclose
certain material to a third party.
Advice
Fis
Within the confines of the Commission’s purview, issues of
disclosure are no longer the concern of POL, but are solely for the
Commission to determine. Accordingly POL must provide to the
Commission all material in its possession and required by the
Commission under s.17 of the 1995 Act to be produced and may
not withhold material on the ground that it is or may be subject to
Legal Professional Privilege.
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With respect to material which is subject to Legal Professional
Privilege, POL should identify that material to the Commission and
require the Commission not to disclose it.
Issues relating to disclosure within the civil arena remain the
responsibility of POL. The following points should be noted:
i)
ii)
iii)
iv)
Where POL has disclosed material within the Civil arena, they
may not then withhold permission from the Commission to
disclose.
POL is not required to seek the permission of the Commission
before making any disclosure within the Civil process. It is to
be noted however that any material which falls to be
disclosed by POL within the Civil process will inevitably be
material which ought to have been provided to the
Commission in compliance with a s.17 request - see
paragraph 4 above.
Material which is the subject of Legal Professional Privilege
may be dealt with in the usual terms applicable to such
documents.
Material which did not meet the test for disclosure within the
criminal process, because it neither undermined the
prosecution case not could it have reasonably been expected
to assist that of the defence, is on the face it disclosable
within the Civil arena so long as the material meets the
applicable test: i.e. because it adversely affects POL’s case
in the Civil proceedings, or adversely affects another party’s
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case, or because it supports another party’s case (CPR
R.31.6).
10. I now turn to the proper identification of material which will be
subject to Legal Professional privilege so that it should be described
in the Disclosure Statement as such. The following documents are
privileged:
.- Documents (including correspondence) between POL and their
lawyers for the purposes of obtaining legal advice, e.g.
. Advices and opinions written or provided by lawyers on
the Merits, Charging, Evidence, process etc of any
criminal investigation or prosecution, whether those
lawyers be internal or external to POL;
. Any correspondence or other communication seeking any
such advice or opinion;
. Any correspondence internal to POL and communicating
or seeking any such advice, whether from an internal
lawyer or from outside lawyers;
. Any, notes, recordings etc. of any conference,
conversation or other communication where the subject
matter considered related to a criminal investigation or
prosecution.
11. The identification of such material should be a relatively
straightforward process - the question “Was a lawyer involved in
the production of the advice etc. or the relevant communication?”
being sufficient to determine the issue in most instances. Were the
answer to this question to be “Yes” then the document,
communication etc. may well be subject to privilege.
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12. For the avoidance of doubt the following material WILL be subject
to privilege:
. Advices on Charging
. Advices on Evidence
. Advices on Disclosure
. Any other advice provided by CK and other lawyers to POL in
respect of any criminal investigation and/or prosecution
~ Any letter, email or other communication seeking any of the
above
. Instructions to Counsel (to advise, prosecute etc.)
. Advices etc. provided by CK and other lawyers to POL in respect
of the Case Review Process conducted following the publication
of the Second Sight report (but NOTE that the report itself is not
subject to privilege).
Simon Clarke 20 December 2017
Senior Counsel, Cartwright King Solicitors
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