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From: Thomas P Moran
To: Andrew Parsons Jane MacLeod
GRO +, Mark Underwood1
: Rodric Williams Amy Prime ¢
}, Jonathan Gribben < ~~ "Lucy Bremner"
GRO.
Subject: RE: URGENT: CMC on Friday [BD-4A.FID26896945]
Date: Mon, 16 Apr 2018 15:44:59 +0000
Importance: Normal
Inline-Images: image001.png; image002.png; image003.png
Andy
Thanks for this. A very clear summary of what’s a very complex issue.
On the basis of the information set out, I fully support your recommendation.
Items 1, 2 and 4 seem to me to be further applications of the principles we have established through the SG,
albeit implicitly, of being constructive, helpful and reasonable.
Item 3 is different. I would be completely opposed to the request under Item 3 for the reasons you have
outlined below but also because, to a non-expert, this feels far more to me like the kind of activity that would
be done by either the police in investigating a crime, or in court once people are called as witnesses. It would
be disrupting and unsettling to our business and the people involved and, as you say we are justified in
disputing it, I agree we should.
I’m hopeful that my views will be consistent with others and we can therefore instruct you on this basis.
Mark — please can you let me know asap if not as we would need to have an urgent discussion if so.
Regards
Tom
From: Andrew Parsons [mailto:
Sent: 16 April 2018 14:55
} Thomas P Moran
ark Underwood 1 + GRO
Ce: Rodric Williams { 7 GRO Amy Prime + _GRO
ext
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Jonathan Gribben {~~ - 5 Lucy Bremner {
Subject: URGENT: CMC on Friday [BD-4A.FID26896945]
Jane, Tom, Mark
We have a CMC scheduled for Friday that is principally focused on whether any further Orders are needed for the
Horizon Issues trial. This email sets out our proposed plan of action, as already discussed with Mark. I apologise but
this requires your urgent input.
Decision
Do you support the approach below?
Background
The starting point is to note that POL does not need any further Court Orders in relation to the Horizon Issues trial —
we can give our expert, Robert, whatever he needs from POL and FJ voluntarily. It is the Cs who need further Orders
to compel POL to handover information. The CMC on Friday is therefore very much about further Court Orders against
POL.
Last Wednesday, we met with the Cs expert, Jason Coyne, to discuss what further documents and information he
needed. Prior to this meeting, we had heard nothing from Freeths on the further Court Orders they wanted. We spent
about 5 hours going through each of the Horizon Issues, with Jason setting out the lines of enquiry that he would like
to explore. This was actually quite useful, although it highlighted the extremely wide approach the Cs are adopting. It
was agreed that Jason would produce a matrix setting out his lines of enquiry and what documents / information he
would like in relation to each of them. At the meeting, both sides thought that a CMC on Friday would be premature as
there was a sensible way forward on the table that might be agreed if given a little more time. It was agreed that we
would to take instructions on adjourning the CMC for 4-6 weeks.
On Friday, we received the attached letter from Freeths, in which they changed their position, did not provide the
agreed matrix and made various requests for information and documents. It now looks as if the CMC will go ahead on
Friday.
Options
POL's options are:
1. Refuse all requests for documents / information. Not recommended — its overwhelming clear that further
information on Horizon is needed, it's a question of how much and how to deliver it.
2. Seek to adjourn the CMC — Not recommended — our judge does not like delay and this will look obstructive.
3. Provide what is reasonable — Recommended — POL provides what it considers reasonable in the
circumstances and stands it grounds on the unreasonable requests.
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Freeths position v our position
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CMC Issue
Freeths position
Our recommended position
1. Freeths want more documents
from POL
Wide requests for lots of documents
Re-draft the requests so that they
are narrower following the strategy
adopted at previous CMCs and then
agree to give those narrower
classes of document.
Only oppose requests that are
plainly unreasonable.
2. Access to FJ systems
Freeths want access to the "PEAK"
system and FJ's "change
management" systems
Agree to this so long as it is done in
controlled circumstances. This is
similar to the access we provided
previously for the Known Error Log.
Position to be confirmed with FJ.
3. Access to people / further
information
Freeths want to gather further
information by interviewing POL
and FJ staff.
This should be opposed.
Instead, POL should offer to
respond in writing to any
reasonable requests for information.
See further below.
4. Information from Claimants
Freeths do not want to provide any
further information from the
Claimants.
Seek an Order that the Cs need to
explain the general trends of
problems they encountered with
Horizon so to narrow future
requests for documents /
information to targeted issues.
The key issue is number 3 above — giving Freeths direct access to FJ and POL employees.
Freeths will say that direct interviews are the most efficient way to proceed.
We believe this approach creates a major risk for POL. Allowing FJ to speak freely to Freeths would give us (i) no
control over the message and (ii) allow Freeths to go on an uncontrolled fishing expedition. In my experience, FJ will
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(accidentally) say something unhelpful.
This request is quite unusual. Typically, further information is provided in writing, either by way of further documents
or witness statements. Indeed, there is a Court rule that expressly deals with providing further information in writing to
experts. That said, Freeths request is not so unreasonable that it would be automatically dismissed by the Court.
We suspect that this issue will be highly contentious and will make it impossible to reach any agreement before the
CMC on Friday. There is a serious risk that Freeths will paint POL as being obstructive (particularly as we will be
giving Robert direct access to FJ). Nevertheless, the dangers of allowing FJ and POL staff to talk to Freeths is very
high. Our recommendation is that POL contests this access, even if it puts us offside with the Judge.
To try to counteract the impression that POL is being obstructive, we would recommend that POL generously (but
within sensible bounds) discloses more Horizon documents and gives the Cs expert direct access to certain systems
(but not people).
Next steps
The CMC is on Friday. We will need to file skeleton arguments by cob on Wednesday. We therefore need to respond
to Freeths by midday tomorrow at the latest, hence we need instructions asap.
Counsel has approved the above approach and so has our expert. We are speaking to FJ at 10am tomorrow.
Please do feel free to call with any questions. If you would like a con call to discuss, please let me know.
Kind regards
Andy
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP
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