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From: Andrew Parsons
To: David Cavender
Ce: Gideon Cohen } Amy Prime {
Subject: Re: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. [WBDUK-AC.FID26896945]
Date: Sat, 16 Mar 2019 11:22:16 +0000
Importance: Normal
Inline-Images: imagef33231.PNG; imaged93d43.PNG; imageaa3e04.PNG; image9fc102.PNG;
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I agree with David about offering a recommendation and would support his recommendation.
There is now an almost constant doubt hanging over how to conduct the Horizon litigation because we feel
that we are always a whisker away from the Judge attacking us.
I think we should add a point to the risk section that making the application may reinforce the ‘arrogance’
attack on PO but that attack has already been made and it may well be made again, so there is no
guarantee that staying quiet will protect POs brand from repeat attacks.
Also, I think we should add in the timing section that a recusal application might encourage the C of A to
move quicker on the main appeal. These issues are all interconnected and the C of A is unlikely to want to
leave a recusal application hanging over the litigation. David, do you agree?
And also that the above point on timing may limit the amount of operational change PO needs to undertake
in the short term to comply with the judgment, which may be wasted cost if the judgment is overturned on
appeal.
I'll be back home in 30 mins.
A
On Sat, Mar 16, 2019 at 11:07 AM +0000, "Tom Beezer" ¢
wrote:
Thanks David
Will review
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: David Cavender [mailto:
Sent: 16 March 2019 11:05
To: Tom Beezer; Andrew Parsons
Cc: Gideon Cohen; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Importance: High
Both,
I attach a copy of AP's version of the Note with some suggested tracked changes.
Tom - you say in your email: below that if there is no recusal that we will not appear on procedural
unfairness. This is not how I see it. The Judge was wrong to find those facts in that trial. And, he was
wrong to use those facts in determining the issues of law: (a) because of the procedural unfairness in
finding them (2) because they were irrelevant.Therefore, the procedural unfairness points will be pursued
in any event.
On the issue of giving PO a steer, I understand the sensitivity but I hink that advisers should advise and not
simply leave it to the board to come to their own untutored view. Surely we should be setting out the
options but making our recommendation ?
Happy to discuss.
Best,
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From: Tom Beezer I GRO
Sent: 16 March 2019 04:37
To: Andrew Parsons; David Cavender
Ce: Gideon Cohen; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. [WBDUK-AC.FID26896945]
Also...going back over some notes of my calls with Jane, the following may be relevant for this current
draft note and/or for any discussions that may ensue on Monday with the Board:
- Jane ponders how the recusal concept plays into the wider appeal strategy. That is covered in the LNQC
note and picked up in the AP note too. It is the "inconsistency" point. If procedural unfairness is to be put
forward with vigour as part of the appeal then the recusal issue is the other side of that same coin. We
cover that in the draft.
- Jane wonders "if there is no recusal application do we narrow the range of the appeal ?" Answer "yes".
We cover that.
- Jane also poses the question, for debate at the Board really, "what do we achieve by an appeal ?" Where I
think this is coming from is as follows:
o The current CIT Judgment causes POL to make contractual changes now on a reactive basis. Those will
be done before any appeal is finalised (says Jane).
o If changes consequential to the CIT Judgment have already been made, then what is the further possible
upside of future and uncertain appeal findings to POL ?
o Jane, of course, knows the 'macro' answers to this point, being we say it is not a relational contract and
no wide duty of good faith should be there etc, but I think her point is more of a practical one at the day to
day level of the business. I suppose it could be put this way — if POL has reacted to this adverse CIT
Judgement already and arranged it affairs so that it can continue on a day to day basis under the regime
suggested by the CIT Judgment then why have the trouble, risk and PR fall out from an appeal (and indeed
a recusal application) ? The answer to this lies both:
1) in the real world difficulties that may/will be encountered in seeking to manage contracts with SPMs
under that "new CIT regime"; and
2) the impact the CIT Judgment will have on trials 2, 3 and 4 and that lasting impact sounds in:
a. money (damages...and we don’t know (or at least I don’t think we know ?) what a max' downside could
be to POL); and
b. ongoing adverse judicial comment throughout the trial(s) already underway and yet to come. This is a
PR point.
I just thought it worth capturing the above musings so that we are all in a common position when we seek
to think about where the client is coming from generally.
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No specific answers needed to the above bullets but general thinking over the coming days would be
useful as we may be debating such topics on Monday evening.
T
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: Tom Beezer
Sent: 16 March 2019 03:59
To: Andrew Parsons; David Cavender
Ce: Gideon Cohen; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. [WBDUK-AC.FID26896945]
Nice ! Like it.
David — if you could whiz through AP's version (attached here again for ease of ref’) then I'll get a version
to Jane this morning.
As to recommendations...I am unsure. My current feeling is we simply set matters out and then let POL
Board discuss rather than pushing them one way (which the note already does to be fair, as it has to as we
have to point out the "inconsistency" risk etc) as we know there are competing views around the Board so
I don’t want us looking fully partisan.
I'll ask Jane about how far she wants us to go in making a recommendation in my covering e mail.
Cheers AP
From: Andrew Parsons
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Sent: 15 March 2019 23:47
To: Tom Beezer; David Cavender
Cc: Gideon Cohen; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. [WBDUK-AC.FID26896945]
Tom
I've had a good go at this. My version attached.
Did Jane want us to offer a recommendation on whether to do this or not? It seems like we are sitting on
the fence slightly, but sometimes she prefers that.
A
Andrew Parsons
Partner
Womble Bond Dickinson (UK) LLP
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From: Tom Beezer
Sent: 15 March 2019 20:46
To: David Cavender
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Cc: Gideon Cohen; Amy Prime; Andrew Parsons
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. [WBDUK-AC.FID26896945]
All
See attached.
I may be on Jane's wavelength — I may not be...
I took Jane's few questions verbatim and addressed them as best I could with the info know to me or that I
can ferret out. I limited myself to two pages.
All comments welcomed.
Andy, I followed Nick B's format and warning at the header of the doc. Normal ? Useful ?
All - be as harsh as you like. I am not proud.
I would like to get something out to Jane early tomorrow — 10am or earlier.
T hope I have broken the back of it for you and it is quick and easy to comment...
Cheers
T
Andy/Primer — note this is NOT a doc' on the system yet it is from my desktop...
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: David Cavender [mail
Sent: 15 March 2019 19:24
To: Tom Beezer
Cc: Gideon Cohen; Amy Prime; Andrew Parsons
Subject: Re: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
[WBDUK-AC.FID26896945]
Tom,
Many thanks for this. Sounds like a plan.
I can attend the board meeting if necessary.
Best
Dz.
Sent from my iPhone
On 15 Mar 2019, at 18:50, Tom Beezer } ___ GRO
wrote:
David, Gideon
The plan is that I cobble together a short note addressing Jane's points (see below — addressing the first set
of points anyway, perhaps not the financial impact questions on which I have no info’) and then send that
out to you & Andy P later tonight or early tomorrow morning.
Andy will be in the land of the living again tomorrow am and so will comment and make into the kind of
note we would actually send to POL (as I am new into all of this and kind of shooting blind) and it would
be great if you could cast your eve over it too. It won't be long as it needs to be really punchy and
accessible for non-legal Board members. Either AP or I will send to Jane by (say) 10am tomorrow. This e
mail is just to give you a heads up on that, and if you are around to review, then great. If not then no
worries.
David — there is talk of a POL Board Meeting on Monday afternoon at some point. 5pm has been
mentioned. Jane has not said it yet (and may not) but I can see the request coming that you (and perhaps
me too) join that meeting. If that request comes, are you free to do that ? I think this is the meeting at
which they decide yes/no on recusal application.
T have asked Rob at OEC (at Jane's request) to see if Lord Neuberger were available in theory to dial in.
T'll be in touch with a draft later.
Kind regards
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Tom Beezer
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Womble Bond Dickinson (UK) LLP
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From: Tom Beezer
Sent: 15 March 2019 15:52 .
To: Andrew Parsons; David Cavender! GRO. .
Cc: Amy Prime; Gideon Cohen} . ___.GRO dt
Subject: RE: URGENT: Litigation Option: ONFIDENTIAL AND SUBJECT TO LEGAL
PRIVILEGE. [WBDUK-AC.FID26896945]
Parson...lets discuss this when you surface at some point.
David — copied to you too as we may need some input from you as my bank of historic knowledge on all
this is thin to put it kindly !
Jane says:
We are setting up a board call for Spm Monday, and I will need to issue a ‘plain English’ paper to the
Board over the weekend to get them familiarised with the issue. In particular that will need to address:
* Why we are considering a recusal application
+ What the application (if successful) will achieve
+ Risks of not proceeding
+ Prospects of success: what advice have we received, who from
+ Process & timing
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In addition, the following Monday (25th) we have a scheduled Board meeting and I will need to be able to
brief in more detail on an appeal, recognising that it will still be a work in progress. However as we don’t
have another scheduled Board until end May, it is likely that we will need the Board to endorse the appeal
strategy at end March, with a further approval meeting/call once the appeal grounds are finalised and we
can assess ‘risk’.
As mentioned I think that as part of the initial Appeal discussion, the board will want to understand the
scale of the financial risk of:
(a) not appealing (and therefore how many existing & historic contracts will be affected by the
judgement?)
(b) appealing and losing (same as above?)
(c) appealing and winning — restores contracts to pre-judgement position
Recognising in each case that the consequences apply not just to the claimant group but to all postmasters
on those contracts types, and potentially, all those on other contract types but who have substantially the
same provisions.
I copy this to us all at this point to get us all thinking.
t
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