To: Gideon Cohen {
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David Cavender
}, Dave Panaech {
GRO
Subject: RE: Recusal application steps [DRAFT] [WBDUK-AC.FID26896945]
Date: Fri, 15 Mar 2019 15:07:28 +0000
Importance: Normal
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Tom, Gideon
Thanks and understood. We are starting work on this here now.
Many thanks
Amy
Amy Prime
Solicitor
Womble Bond Dickinson (UK) LLP
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From: Gideon Cohen [mailto,
Sent: 15 March 2019 14:42
To: Tom Beezer; David Cavender
Cc: Amy Prime; Andrew Parsons; Dave Panaech
Subject: RE: Recusal application steps [DRAFT] [WBDUK-AC.FID26896945]
Tom,
That is exactly my thinking too. We have picked out the ‘greatest hits' for the Note to Lord Neuberger, but
that was the product of a few hours of rushing through transcripts etc. We want to do a more thorough trawl,
and then include all key refs in the statement. I agree that this part of the statement will not involve any
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analysis.
The parts of the statement in which we identify what the judge has said in this judgment, and point out the
ways in which that is problematic either because (a) it prejudges future issues, or (b) it is so vitriolic as to
display apparent bias, arguably do involve a modicum of analysis, in that we will want to identify where and
how we say he has gone wrong. But that should be done with a very light touch - the Note should be a good
starting point in that regard. Obviously the more detailed analysis, by reference to the authorities, will come
in the skeleton argument.
In terms of timing, and as I indicated yesterday, my view is that we need to separate out the serving of the
application and the hearing of the application.
The application needs to be served as soon as possible. This witness statement would be served at the same
time, in support. There is obviously a balance to be struck - we want to be thorough and careful. But speed is
imperative too - we must serve the application (and witness statement) next week, and preferably in the
earlier part of the week. Hopefully Amy will find the Note a useful base for the bulk of the witness
statement.
That is also the stage at which we should propose adjourning the Horizon trial (although inevitably that will
not happen).
The timing of the hearing of the application is then somewhat out of our hands. We are obviously not going
in ex parte, so there will have to be time for the parties to prepare and exchange skeleton arguments.
Obviously we will push to get a hearing in as soon as possible, but speaking for myself, I do not think next
week is a realistic prospect.
Best wishes
Gideon
Gideon Cohen
Barrister
One Essex Court
Temple
London EC4Y 9AR.
WwWw.0eclaw.c k
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From: Tom Beezer} I
Sent: 15 March 2019 14:28
To: Gideon Cohen; David Cavender
Cc: Amy Prime; Andrew Parsons; Dave Panaech
Subject: RE: Recusal application steps [DRAFT] [WBDUK-AC.FID26896945]
Gideon
Many thanks for your e mail.
Timing will be all important here ! When do you anticipate that we'll deploy the statement ?
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If Lam on your wavelength what needs to be collated is:
- in chrono! order, every time we have told Freeths or the Judge (in particular) info on our perceived scope of
CIT and why his/their plan is wrong and the warnings given and answers received
- That will (I am told) go back to the dust-up over the GLO itself when some of these issues were predicted
- then through a load of correspondence with Freeths after that (to the extent those letters were shown to the
Judge (?))
- and into the Strike Out application and evidence and transcripts from that outing
to set out each time scope of CIT was aired.
So it is not a witness statement with any analysis in really — it is just a vehicle to contain the "who said what
to who & when" info! on scope of trial and admissibility of evidence around CIT.
Along the way (and I suppose mostly from the Strike Out in addition to CIT itself) we need to capture any
snide or adverse comment made by the Judge and set that out too.
Are we thinking along the same lines ? Then that historic stuff needs to be married up to info from the CIT
daily transcripts and the Judgment (largely done in DCQC note to LNQC).
As to who gives a statement, I am neutral. If it just needs to be one of us who say "I have seen documents
that say X, Y, Z" then could be me. If it needs to be someone who was there (as I was not), then one of the
others.
This is a large task and will require lots of trawling of electronic files. Amy will (I believe) be the centre of
that web and get people searching and cutting and pasting into a chrono’ order, and then you and Amy can
make that into a witness statement if more is needed, but I doubt it will be — for as I say this is not about
analysis — it is more a list of what has been said on relevant topics looking backwards.
Am I making sense............... vag
t
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: Gideon Cohen [mailto;
Sent: 15 March 2019 13:01
To: David Cavender
Cc: Tom Bee Prime; Andrew Parsons; Rodric
Williams I GRO Ben.Foatt GRO I Dave Panaech
Subject: RE: Recusal application steps [DRAFT] [WBDUK-AC.FID26896945]
Just following up on this - while, as I noted below, I think the actual hearing of the application will not be as
quick as originally planned (given the need for skeletons etc - NB there is a fair amount of law in this area),
we should certainly get in the application (and propose an adjournment of the current trial) as soon as
possible after we get instructions.
To that end, if possible we should start working up a supporting witness statement, including the material set
out in our Note (as referred to by Lord Neuberger in his Note), and adding in anything else which is helpful.
i.e. we should go through everything that was said, and set out in Orders, about the scope of this trial
(including the various warnings we gave at the trial about its scope), and then list the various objectionable
bits of the judgment (as handed down), which either (a) made findings of fact beyond the scope of the trial,
or (b) expressed unnecessary vitriol. Is that something we can start working up? If so, who is best placed to
do it? Let me know if it would be useful to discuss.
Best
Gideon
PS As soon as judgment is handed down, it would also be helpful to do a compare-write against the draft
judgment.
Gideon Cohen
Barrister
One Essex Court
Temple
London EC4Y 9AR
www.oeclaw.co.uk<http://www.oeclaw.co.uk>
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From: Gideon Cohen
Sent: 14 March 2019 19:09
To: David Cavender
Ce: Tom Bi ; Jane
Williams! :
Prime; Andrew Parsons; Rodric
} Ben.Foati GRO
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Subject: Re: Recusal application steps [DRAFT] [WBDUK-AC.FID26896945]
Only two comments. The first (perhaps unsurprisingly) is on point 6. I would suggest additionally instructing
Stephanie Wood, who has been assisting for the last week and is now familiar with the case. I will try to
clear my diary for next week, but even if I can do so there will be some very tight deadlines to meet.
The second comment is a query as to whether the timetable can be abbreviated quite this aggressively. We
should certainly put the application in as soon as we have instructions, but the application will be contested
inter partes. Do we not need to build in time for skeletons etc? Apologies if this ground has already been
traversed.
On 14 Mar 2019, at 18:28, David Cavender:
wrote:
Tom,
Many thanks for this. This all looks very sensible and reflects our recent discussion.
Best,
David.
David Cavender Q.C.
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One Essex Court
Temple
London EC4Y 9AR.
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Sent: 14 March 2019 18:07
To: Jane MacLeod}
All
My current view of steps to be taken in the recusal process (if triggered) are as follows (in time order so far
as I can predict):
1) [Optional but recommended] POL (through WBD) engage with the QC who is likely to be instructed to
make recusal application ASAP (if one is made) to get QC "warmed up" to application, arguments to be
deployed and (potentially) to speak to POL Board if needed, as the person who would in fact be the
mouthpiece of POL. Timing: Friday for choice of QC and delivery of papers.
2) Assuming a QC is to be "warmed up" David Cavender QC to brief on background as fully as possible.
Timing: Friday.
3) POL to decide if it is to make a recusal application. Timing: By (say) Monday.
4) POL Board may wish to speak to Lord Neuberger as part of their decision making process. The Clerks at
OEC have confirmed that is possible and have contact numbers for Lord Neuberger as needed. Please NOTE
Lord Neuberger is not in South Africa as we had understood, but in South America (Argentina) which is
currently 3 hours behind us.
5) As soon as decision to make application has been made (if that transpires) Freeths & Judge to be put on
notice. Suggested "appropriate" notice period is one day (or more if decision made earlier than early next
week). Freeths put on notice by letter from WBD (or possibly Counsel to Counsel) and the Judge by a note
between the Clerks ? Timing: early next week once decision to proceed made.
6) Gideon (at OEC) to be instructed to be Junior to chosen QC. Timing: Friday, if "warm up" route followed.
7) QC & Gideon prepare Application Notice and Skeleton for recusal application. This work could start now
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if we follow the "warm up" route.
8) Application is made first half of next week at 10am during the Horizon trial. Thereafter there are
variables:
a. Judge may agree. Unlikely but possible. HIT trial is adjourned there and then and POL appeals the CIT
findings and (if successful) we re-list CIT & HIT.
b. Judge may pass matter to another judge to hear. Unlikely.
c. Judge refuses (likely) and POL takes that refusal to Court of Appeal asap. That could be same day
(possible but unlikely) or at that same week at some point if CofA recognise urgency.
d. CofA may agree with recusal application. If so, POL appeals the CIT findings and (if successful) we re-
list CIT & HIT.
e. CofA may refuse recusal application in which case HIT rolls on.
Please note in any scenario where HIT is adjourned then there will be possible increased costs consequences
for Claimants that POL could bear if it is ultimately unsuccessful.
Possible outcomes of recusal application:
a) It is successful and HIT adjourned then appeal of CIT goes ahead and new judge is put in place for
remaining aspects of trials.
b) It is unsuccessful (at first request and CofA) then it is likely that Fraser is cross but he is also aware the
CIT appeal is progressing which includes the "procedural unfairness" assertion. Possible impact in that
scenario is Fraser is more cautious as to behaviours to (possibly) POL's benefit.
c) The theoretical downside to a recusal application is that it fails and that Fraser remains the judge at Trial 3
which will require multiple findings of fact. Findings of fact are more tricky to appeal and this is a point to
be cognisant of.
All comments on the above welcomed.
T
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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