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From: "Parsons, Andrew" <; GRO p
To: Brian Altman < GRO
Ce: "Prime, Amy" < i>, "Porter, Tom"
<i GRO >, "Matthews, Gavin"
4 __.. GRO ig
Subject: RE: Letter of Response to the Group Litigation - subject to litigation privilege [BD-
4A.FID26859284]
Date: Tue, 26 Jul 2016 10:18:55 +0000
Importance: Normal
Inline-Images: image001 jpg; image002.jpg; image003.jpg
Brian
Thank you. It is striking quite how differently each prosecution was conducted and this makes it very difficult to see
any pattern that would suggest a policy of improperly prosecuting postmasters.
Before I send this to Post Office, I have one point of clarification and one request.
Point of clarification: Paragraph 22
In our Letter of Response we have said that POL is not bound by the Code, and therefore not bound by the sufficiency
of evidence and public interest tests. Nevertheless, we say, Post Office is not entitled to conduct a malicious
prosecution, meaning a prosecution must be based on "reasonable and probable cause" and have a legitimate (non-
malicious) purpose.
My reading of paragraph 22 is that not following the Code is not, in itself, grounds for an abuse of process. The abuse
comes when proceeding with a prosecution without sufficient evidence (regardless of whether that threshold of
evidence is judged against the standards of the Code or the standards of malicious prosecution).
The distinction is clearer when considering the motivation for a prosecution. On face value, the threshold for malicious
prosecution appears lower than the threshold for the Code ie. the Code requires a public interest motivation whereas
malicious prosecution simply requires a motivation that is not malicious.
My point of clarification is: are we ok to say in the Letter of Response that POL is not bound by the Code (whilst
maintaining that there was sufficient evidence and a legitimate reason for each prosecution) without creating a risk of
an abuse of process argument?
Request
Initially, Rodric commissioned your work off the back of Tim Parker's review. That review has now been closed down
and the work streams (ie. your report, the work by Deloitte, etc.) are now being conducted to support the defence of
the Group Action. Would you mind adding a paragraph to this effect?
I ask because if your review is for the purpose of assisting with the civil litigation, it attracts litigation privilege.
Litigation privilege in civil claims is wider than legal advice privilege and would cover any internal discussions at Post
Office about your advice (such discussions would arguably not be covered by Legal Advice privilege).
I have proposed some possible wording below that could be slotted in after paragraph 7 — please feel free to re-phrase
as you see fit:
"Since receiving these instructions, a civil claim has been filed against Post Office making allegations that are related
to the same subject matter as the recommendations identified by Messrs Swift QC and Knight. The review of Mr
Parker has subsequently been brought to a close and Post Office are actively defending the civil claim. I have
however been instructed to continue with the work requested by Mr Williams for the purpose of assisting Post Office's
defence of the civil proceedings."
Kind regards
Andy
Andrew Parsons
Partner
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Direct:
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Sent: 25 July 2016 11:48
To: Parsons, Andrew; Matthews, Gavin
Cc: Prime, Amy; Porter, Tom
Subject: Re: Letter of Response to the Group Litigation - subject to litigation privilege [BD-4A.FID26859284]
Dear Andy
Please find attached the final theft/false accounting review document. If you think there is anything in
it that requires change or correction, please do let me know as soon as you are able, and I'll happily revise
it and re-submit the review document.
Many thanks.
Best wishes,
Brian
Brian Altman QC
Chambers of William Clegg QC
2 Bedford Row
London WC1R 4BU
personal website: www.brianaltmangc-barrister.com
chambers website: www.2bedfordrow.co.uk
This message is confidential and intended solely for the person to whom it is addressed. It may contain privileged and confidential information. If you are
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From: Parsons, Andrew ¢
Sent: 22 July 2016 13:47
To: Brian Altman
Cc: Prime, Amy; Porter, Tom
Subject: RE: Letter of Response to the Group Litigation - subject to litigation privilege [BD-4A.FID26859284]
Yes of course.
A
Andrew Parsons
Partner
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From: Brian Altman
Sent: 22/07/2016 13:33
To: Parsons, Andrew
Ce: ime, Amy; Porter, Tom
Subject: Re: Letter of Response to the Group Litigation - subject to litigation privilege [BD-4A.FID26859284]
Andy
Thank you.
Last thing: will it be alright to deliver my review document to you on Monday which is the date Paul first
asked me to work towards?
Brian
Brian Altman QC
Chambers of William Clegg QC
2 Bedford Row
London WC1R 4BU
personal website: www.brianaltmanqc-barrister.com
chambers website: www.2bedfordrow.co.uk
This message is confidential and intended solely for the person to whom it is addressed. It may contain privileged and confidential information. If you are
not the intended recipient you must not read, copy, distribute, discuss or take any action in reliance on it. If you have received this information in error,
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From: Parsons, Andrew < GRO.
Sent: 22 July 2016 12:50
To: Brian Altman
Cc: Prime, Amy; Porter, Tom
Subject: RE: Letter of Response to the Group Litigation - subject to litigation privilege [BD-4A.FID26859284]
Brian
Thank you (and for your other comments on the LOR). Very helpful.
I'm not particularly worried about releasing the investigation guidelines - their content is pretty benign. I just wanted to
make sure that we were not waiving some form of privilege. In this regard, your advice is just what was needed.
Kind regards
Andy
Andrew Parsons
Partner
Follow Bond Dickinson:
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www.bonddickinson.com
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From: Brian Altman [mailto}
Sent: 22 July 2016 10:50
To: Parsons, Andrew
Cc: Prime, Amy; Porter, Tom
Subject: Re: Letter of Response to the Group Litigation - subject to litigation privilege [BD-4A.FID26859284]
Andy
I have realised you didn't call me about this yesterday. I am available for a chat today if you wish. It may
help however if I set out some thoughts here for you:
1. I do not think that investigation guidelines can attract privilege (advice or litigation) for the simple
reason that these are not communications between a client and his lawyer made under conditions of
confidentiality for the purposes of enabling the client to seek, or the lawyer to give, legal advice or
assistance in a relevant legal context, or advice or assistance given in the context of litigation.
If CK gave advice about "privilege" attaching to "investigative techniques" then I suspect they may
have been speaking about public interest immunity (PII). It was for this reason I asked for the source
of the advice.
In the criminal environment, disclosure is subject to the single test in s.3 of the CPIA which I set out
for you in my email this morning on the topic of the LOR. If the material doesn't pass the test then it
is not disclosable (subject to application being made by the defence and the judge ruling upon it).
If in civil litigation the test for disclosure is also, in effect, relevance/materiality to the issues in the
case, then challenging the relevance/materiality of such guidelines may, I suppose, be one way, pro
tem, of withholding disclosure of them.
Iam unsure if I have read the investigation guidelines you are referring to; it is possible I read them a
long time ago when advising about such guidelines in one of my 2013 review documents. Either
way I'd be surprised if in the criminal arena, if relevant and prima facie disclosable, they would be
regarded as so sensitive as to indicate that could be withheld from disclosure on grounds they
reveal matters relating to an important public interest, namely, POL's security team's investigative
techniques.
At all events, I seriously doubt that POL could make a PII application in such circumstances as the
first question that arises is whether a private prosecutor can invoke public interest immunity. I'd be
interested to know if POL has ever made a PII application in any case. Be that as it may, the issue is
really whether the material is so sensitive that disclosure would damage a public interest.
Lad
»
-
bad
a
lam sorry that this will not assist you in holding off a disclosure request for now by claiming privilege. But I
hope that my other thoughts about it may do so, such as asserting (if it is correct to do so in the civil arena)
that the guidelines are not material to any known or anticipated issue in the case.
Brian
Brian Altman QC
Chambers of William Clegg QC
2 Bedford Row
London WC1R 4BU
personal website: www.brianaltmange-barrister.com
o whom it is addressed. It may contain privileged and confidential information. If you are
discuss or take any action in reliance on it. If you have received this information in error
This message is confidential and inter
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From: Parsons, Andrew <
Sent: 18 July 2016 18:16
To: Brian Altman
Cc: Prime, Amy; Porter, Tom
Subject: RE: Letter of Response to the Group Litigation - subject to litigation privilege [BD-4A.FID26859284]
Brian
Apologies — forgot one point.
We've been asked to disclose "Post Office's investigation guidelines" which we presume to be a reference to any
investigation guidelines followed by the Security Team when looking into suspected criminal activity. I recall someone
(probably CK) saying that information about investigative techniques are generally privileged.
We are not obliged to give disclosure of documents at this stage. If the above understanding is broadly applicable, my
preferred approach would be to say that documents of this type might be be privileged and therefore we are not
disclosing them.
If you have 5 minutes at some point this week, please could we discuss whether such documents might be covered by
privilege?
Kind regards
Andy
Andrew Parsons
Partner
Follow Bond Dickinson:
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Sent: 18 July 2016 17:26
To: Parsons, Andrew
Cc: Prime, Amy
Subject: Re: Letter of Response to the Group Litigation - subject to litigation privilege [BD-4A.FID26859284]
Will do
Sent from my iPhone
On 18 Jul 2016, at 17:23, Parsons, Andrew < GRO > wrote:
Brian
As mentioned previously, would you mind reviewing our draft Letter of Response (LOR) that we have prepared for
the Group Litigation with the postmasters?
The LOR is long, so please do not review the whole thing. We have highlighted below all the references to
prosecutions or criminal law matters — please could you review these sections?
e 5(F): Factual Allegations: criminal investigations and prosecutions (paragraphs 5.48 to 5.79)
* 6(D): Misfeasance in public office (paragraphs 6.30 to 6.32)
— 6(E): Malicious Prosecution (paragraphs 6.33 to 6.42)
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* — 8(B): Barred claims: criminal cases (paragraphs 8.8 to 8.12)
* Schedule 4: Section 8: False accounting (8.1 — 8.6)
Some of these sections mention factual matters that are not within your knowledge so we're not asking for your sign
off of these sections. I should however be grateful if you could flag whether we've misstated any of the criminal law
concepts. All other comments of course welcomed.
Just in case you need it, I've attached the Letter of Claim to which our letter responds. No need to review the LOC
but you've got it just in case.
If possible, comments / amendments by the end of this week would be appreciated.
Kind regards
Andy
Andrew Parsons
Partner
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<_DOC_33380020(1)_ DRAFT Letter of Response 16 July 2016.docx>
<28.04.16 - Letter of Claim (8).pdf>
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