From: David Neuberger:
“Gi =] David Cavender
{Gideon Cohen GS, Owain Draper
Tom Beezer{ RO. FAmy Prime
Subject: RE: Group Litigation - recusal application - legally privileged and highly confidential
Date: Sun, 12 May 2019 10:03:47 +0000
Importance: Normal
Dear Andrew,
In addition to your emails, David's email and your draft note, I read the Coulson LI judgment yesterday evening,
and decided to digest it overnight and re-read it this morning, before replying.
In terms of substance, there is little I can add to what Tony and David have said, except that I do not think that
anything untoward will have taken place between Coulson Li and Fraser J. Nonetheless, given that judges are
humans, it would be unrealistic not to acknowledge that there is a risk of an appellate judge being subconsciously
affected by his relationship witha trial judge when considering an appeal/application to appeal against the trial
judge, especially when the appeal relates to the latter's conduct. Much depends on the individual judge: inevitably,
I would have more confidence in the natural impartiality of some judges than others.
‘The clients will naturally feel both disheartened by the judgment and bemused by the fact that the view taken by
an appeal court judge is entirely inconsistent with that of their legal advisers.
{sto being disheartened, the main appeal (on interpretation) is unaffected by the Coulson LI judgment, atleast in
any direct sense. n case the Coulson LU judgment is thought to be relevant to the main appeal, my experience over,
45 years shows that successive setbacks in litigation come in two categories: i) those which should make you
realise that you are on the wrong track, and (i) those which should stiffen your resolve. Itis of course normally
easy when it is all over to identify which category you were in, but harder to do this when one isin the middle of
the litigation. Having said that, on the main interpretation issues, I remain firmly of the view that we are a
category (i) case. The issues actually decided by Fraser J involve applying what I regard as well-established
principles of law, and in that connection think he has gone seriously wrong. The reasons for my view are all tobe
found in the recently prepared grounds of appeal and skeleton argument.
{sto being bemused, when it comes to the recusal appeal we are in a more nuanced area of judgement, and there
is, acknowledge, at least in principle, a greater risk of this being a category (i) case. That was my main reason for
leaving it to stew overnight. Having done that, I remain of the opinion that Fraser J should have been recused,
despite the fact that Coulson U and Fraser J disagree: neither their reasons nor thelr identity has caused me to
change my view.
So far as our approach to the PTA on interpretation is concerned, I have little to add to what David has said in his
email. am more neutral on the 3 L issue (as it can be said to suggest that this sa difficult PTA application to
resolve) but, particularly as Coulson LJ may be the sole judge and if he refuses PTA it might be difficult to explain
why we did not ask for 3 Us, Ido not disagree with David. It may be academic anyway, as we are, I believe, asking
Fraser fist.
Subject to two points, I think that our PTA grounds and skeleton do not require any significant amendments
(although I haven't gone through them specifically to check).
First, I think we have to remove the ful reference to recusal. We could still include some limited reference to it, But
that may be a mistake. It needs thinking about. Although somewhat artful, it might be better to drop recusal for
the moment, witha view to resurrecting it later ~ even at the hearing of the appeal if things are going well.
Secondly, there isa real isk that, if we retain our procedural unfairness grounds, they willbe refused for the sort of
rounds that were mentioned (to my mind, intemperately and unfairly) by Coulson LU. it can fairly be said that as a
‘matter of logi, we lose nothing by including them - at worst, they are removed. But I suppose that, particularly if
the tribunal was Fraser J or Coulson L, it could prejudice a court considering the PTA.
Subject to the points made above, there is nothing more I have to say about your draft note.
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Best wishes,
David Neuberger
From: Anthony Grabine’
Sent: 12 May 2019 09:53
To: Andrew Parsons j
Ce: David Cavender ea ‘avid Neuberger ae jGideon Cohen
aa Owain bravery a. ani BeeierI a TAmy
Prime
Subject: Re: Group Litigation -recusal application - legally privileged and highly confidential
Dear Andrew,
I agree with this note. I'm afraid the clients have been very poorly served by our legal system. I believe the
Fraser J judgment is deeply flawed. It's wrong in law and reveals an obvious apparent bias against Post
Oftice in all the respects we are familiar with. I do not believe Fraser J could approach any of the remaining
cases with an open and impartial mind because he has obviously pre-judged key matters which are yet to be
tried
am also disappointed and very unimpressed with the Coulson LJ judgment on the recusal appeal. It’s a very
superficial analysis and demonstrably bad. I am reluctant to conclude that this has all been cooked up
between Fraser J and Coulson LJ as former Chambers’ colleagues but the process we have been through is
not a happy one and there are grounds for suspecting that there have been inappropriate communications
between them,
{’m sure the clients are both puzzled and concemed by their experience in tis litigation so far. All I ean say
is that none of the judgments we have so far seen persuade me that the advice which has thus far been given
to Post Office is wrong or in any way misguided.
Regards,
Tony
Lord Grabiner QC
One Essex Court,
‘Temple,
London, EC4Y 9AR
On 1 May 2019, at 21:46, Andrew Parsons
Al
Further to below, please find attached a first draft of @ note tothe cient. All comments welcomed,
David C — ideally I would lke to put your name on this note so that PO know that you have inputted (do feel free to
change anything) and I would also ike to get this to PO by tomorow evening.
kind regards
‘Andy
From: Andrew Parsons.”
Sent: 11 May 2019 15:21
‘To: David Cavender ¢ RO. Anthony Grabiner: i. David Neuberger
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8. Gideon Cohen ai 3 Owain Draper { ca :
CaTam Beczer aa pain Pie oe!
Subject: Fwd: Group Utigotion -recusal application - legally privileged and highly confidential,
All
‘See below - requests for advice from the client. I think that David's email earlier today largely addresses
points 1 and 2 but I'd welcome any other input.
In the meantime, I'l prepare a draft note answering the questions below and incorporating David's views. i
Circulate that tonight for comments.
Thank you and sory this is landing over a weekend
kind regards
‘Andy
From: Ben Foat
Sent: Saturday 11 May, 15:00
Subject: Group Litigation - recusal application - legally privileged and highly confidential
‘To: Watts, Alan, Massey, Kirsten, Henderson, Tom, Andrew Parsons, Tom Beezer, Amy Prime, Rodric
Williams, Mark Underwood, Patrick Bourke
Ce: Alisdair Cameron, Diane Blanchard, Veronica Branton, Owen Woodley, Debbie.K Smith, Mohinder
Kang, Rob Houghton, Mark R Davies,
All
‘As you will know by now, we received the Court of Appeal's judgment in relation to Post Office's recusal
application earlier today.
Post Office has not been successful in appealing against the tral judge's decision not to recuse himself
The judgment is critical of Post Office's application and permission to appeal the trial judge's recusal
decision. At this stage there is litle media activity but that may change over the weekend.
There are a number of steps that need to be worked through over this weekend:
1. _ summary of the Court of Appeal's findings and our position (which can be adapted for various
purposes) [HSF/WBD];
2. Further consideration of our approach to the substantive appeal given the number of statements
Which Lord Justice Coulson has made about the approach taken by Post Office in respect of the Common
Issues trial. The Board subcommittee has approved the appeal approach last week but we need to advise
the Board subcommittee whether this judgment should cause us to reconsider our approach or otherwise
has any impact to the substantive appeal (not just the basis of the appeal ie the points of law; but the
approach and tone) and provide (if any) recommendations to change; [HSF/WBD]
3. Implications to the current timetable including the existing Horizon trial which will resume on 4 June
(ie this would continue) and also the hearing on Thursday 16 May (given the claimant's application for a
delay); [HSF/WED)
4, Costs consequences of this appeal; [WBD]
5. Comms statement (including internal comms position); [Patrick Bourke]
6. Updating the draft board paper which has already been prepared but will now need to be updated on
the position, setting out the implications, and clarifying timetable and next steps (ie as above). [Mark
Underwood! Ben Foat to liaise with HSF/WBD]
Could the above points be progressed over the weekend. I will reach out to you individually over the
weekend but may I suggest a call at 8.30 on Monday to discuss actions. Meeting invite and dial in details
will be circulated,
WBD — could you ensure that the Counsel team provide the necessary support here given 1 and 2 and the
short timeframe to file the relevant documents for the substantive appeal
‘Apologies for the urgency but given the materiality of the issue we need to support the business. Thank you
for your support in advance.
I you.want to discuss or have any questions, please contact me either on email here or my personal mobile
isi :
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Kind regards
Ben
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Ben Foat
Legal Director
Ground Floor
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Highly Commended for ‘Excellence In-house’ at the Law Society Excellence Awards 2018
Mobile number:
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‘Womble Bond Dickinson (UK) LLP
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