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FREETHS
Bond Dickinson LLP
DX 38517
Southampton3
By email: andrew.parsonsi
17 March 2017
Second Letter
Our Ref: JXH/1684/2113618/1
Your Ref: AP6/364065.1369
Dear Sirs,
BATES & OTHERS -V- POST OFFICE LTD
Claim No: HQ16X01238
SECOND SIGHT
We write in response to your letter of Friday, 10 March 2017, in which you responded to our letters
of 24 February 2017 and 6 March 2017, regarding access to information from Second Sight and
related documents.
For a number of reasons, we do not accept your characterisation of the correspondence between
us so far. In particular, your revised protocol, which you are again asking us to agree, did not
meet our previously expressed concerns. Your letter of 10 March 2017 baldly states that “the
revised protocol [sent on 30 November 2016] has been rejected with no reason provided as to why
it is not suitable”. That is not true. Paragraph 23 of our letter of 15 December 2016 stated:
23. We do not accept your revised Protocol. We acknowledge you have made
amendments to the document in light of points made in our Letter of Reply, but
fundamentally we do not agree that we as a firm should be party to any type of
contractual obligation of this nature, and significantly your proposals in relation to
the restriction in relation to matters which shall not be discussed remains
unchanged. These restrictions are entirely unreasonable for the reasons set out at
paragraph 218.5 of our Letter of Reply. There is no reason why any material other
than genuinely privileged material should be excluded.
Furthermore, we refer to paragraphs 100 to 112 of the second witness statement of Mr Hartley
(dated 12 January 2017) which summarises the correspondence regarding access to information
from Second Sight. At paragraphs 100 and 111, Mr Hartley states as follows:
Freoths LLP is aiid laity partnership, registered in England and Wales, partnership number OC304688. Registered ice: Cumberand Court, 80 Mount Steet, Notingham NG1 SHH
‘Ruorsed and regulated by the Solcore Regulation Aushory, ful Ht ofthe members of Freethe LLP is available or inspection atthe registred fic,
www.freeths.co.uk Freeths LLP, Floor 3, 100 Wellington Street Leeds, LS1 4LT DX 310016 Leeds Park Square
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110. On 13 October 2016, Post Office proposed, and enclosed, a tripartite
protocol (“SSP1") which would set out the terms of access by the Claimants to
Second Sight. However, that protocol was unworkable, as expressed by the
Claimants’ Letter of Reply at paragraphs 218-219 and accordingly the Claimants
again proposed a straightforward release by Post Office (other than in respect of
privileged material) and asked for Post Office’s cooperation.
111. Post Office’s response to this on 30 November 2016 [JLH2/43-49], was
to propose a revised Protocol (“SSP2"). However, as the Claimants expressed on
[15] December 2016, there remained fundamental problems with Post Office’s
proposal, and significantly, the restrictions in relation to matters which Post Office
had required not to be discussed remained unchanged. This included at clause
3.1.3(b), an exclusion in respect of “information concerning any actual or
contemplated civil proceedings and any information relating to investigation,
internal decisions of Post Office or other steps taken by Post Office in relation to
these proceedings’, which is incredibly broad and obviously unreasonable. Such
information should only be excluded to the extent that it is privileged, as Post
Office’s conduct in relation to this issue clearly falls within the scope of these
proceedings.
Our letter to you on 24 February 2017 was clearly aimed at obtaining relevant information prior to
finalising the Generic Particulars of Claim, by facilitating such access as your client would allow to
information from Second Sight and relevant documents from your client. We asked for a reply by 1
March 2017, in circumstances where the date for service of the finalised Generic Particulars of
Claim is 23 March 2017.
Your reply of Friday, 10 March 2017, is not only late but proceeds on the tendentious basis set out
above. This is extremely unhelpful, particularly in the circumstances.
We specifically asked you to identify what categories of information your client will authorise
Second Sight to discuss with us (in advance of service of the Generic Particulars of Claim) and
referred expressly to the comments of Master Fontaine as to the need for mutual co-operation
between the parties.
You have offered nothing in your letter — other than the revised protocol, which we have addressed
above. It appears to us that your client is seeking to leverage its information advantage to try to
get our clients to enter into an agreement that no party on an equal footing would ever consider
consenting to.
We specifically addressed an obviously relevant category of documents to which privilege would
not attach and which we considered to be likely to be uncontroversial between the parties, namely,
documents generated by or for the Working Group in the Mediation Scheme (on p.2 of our letter).
Your refusal even to provide these documents is particularly unhelpful.
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For the record, we also have serious doubts as to the reality of your proposed review of documents
returned by Second Sight. You state that such a review will take at least 2 months and cost “at
least £100,000”. This is very surprising, not least since Bond Dickinson have acted throughout and
will doubtless have been alive to issues of privilege during that period. If privileged material was
provided (e.g. in prosecution files) those particular files would be readily identifiable to any solicitor
without reviewing all 35,844 documents and without spending the round figure of £100,000 or any
figure of that order. In the spirit of cooperation, please provide us with a copy of the index or list of
files that comprise the 35,844 documents, which may enable us to narrow the scope of documents
which may cost-effectively be produced at this stage.
We look forward to hearing what progress you have made regarding the decryption of the hard
drive and repeat our disappointment that such progress has not been made earlier given the
obvious relevance of the documents on it for the purposes of disclosure, or at least many of them.
In the Schedule of 25 August 2016 (at point 25 in the Schedule), we specifically asked you who
encrypted the hard drive and what steps are necessary to de-encrypt it. We also asked “Please
confirm that you are taking appropriate steps in this respect.” \t is disappointing that you are only
now, in March 2017, in discussions about this. Please also confirm the date upon which the hard
drive was encrypted, or, if you are unable to confirm the exact date, please confirm more generally
if it had been encrypted before, or at the point of, it being sent to Second Sight for their review.
Subject to the timing of the encryption, please confirm whether Second Sight were required to un-
encrypt the hard drive, in which case would it not be straightforward to seek their assistance to
access it now?
Against this very unsatisfactory background, we invite you to agree that we may discuss the
following topics with Second Sight and provide the following categories of documents without any
further delay:
Topics - for discussion with Second Sight
) System architecture;
2) The installation and implementation of Horizon, and Horizon Online, and the variation
between, and capability of, the two;
3) Horizon updates, modifications and software versions since installation
4) Transaction corrections;
5) The functionality and capability of Post Office helpline and the technical helpline operated
by Fujitsu;
6) Hardware problems;
7) The Management Information System or Services and ability of the Horizon system to
report on reconciliation;
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8) Errors, bugs, fixes, issues and ‘peaks’ including, but not limited to, those three known errors
in the system listed in Schedule 6 of your letter dated 28 July 2016 (Calendar Square /
Falkirk, payments mismatch, Suspense Account Bug);
9) The ‘known error log’ document(s);
10) The extent of error repellency in the Horizon system;
11) The reduced reboot clause in Schedule B4.4 of Post Office’s agreement with Fujitsu;
12) Post Office's access to transaction information and its agreement with Fujitsu in respect of
provision of such information.
In the event that you are only prepared to agree to some of the topics requested, please do so
rather than agreeing to nothing.
Categories of Documents to be provided
1. Horizon documents: Schedule of Horizon updates, modifications and software versions since
installation, and the issues which each of the versions addresses. You stated in your letter dated
13 October 2016 that some of these documents may be held by third parties. You will no doubt be
aware that if they are Post Office generated or owned documentation, these are within the remit of
your client's disclosure obligations.
2. Post Office documents: Post Office internal notes, memoranda, correspondence, emails and
briefing documents regarding errors, bugs or problems in Horizon, which Post Office had identified
as being a cause or potential cause of discrepancies or shortfalls in branch accounts or
transactions.
3. Helpline documents: Helpline logs in relation to the following claimants:
. Mr Haji Nadeem Abbas Choudry
. Mrs Oyeteju Adedayo
. Miss Dionne Andre
We originally made this request in relation to all of the Claimants. You stated in your letter dated
28 July 2016 that we would be able to obtain these documents from our clients, but that if we
required further documents, then you would consider such a request. We have now refined our
request such that it only relates to three Claimants, in the first instance. Please provide your
client's copies of these documents.
4. Known Error Log: The ‘Known Error Log’ kept by Fujitsu — you stated in your letter dated 13
October 2016, that the Claims particularised concern errors with the Core Audit Log. As you are
aware, at the very latest upon receipt of the Draft Generic Particulars of Claim on 1 December
2016 (ie, after the date of your letter), the claims are not limited to errors with the Core Audit Log,
therefore, please provide a copy of this document which you have confirmed exists.
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5. 2011-12 Horizon defects documents: Documents relating Post Office’s discovery in 2011
and 2012, of “defects” in Horizon online that had impacted 76 branches, as Post Office disclosed to
Second Sight.
6. 2008 Fujitsu and Post Office emails: Email correspondence between Fujitsu and Post Office
in 2008, as requested by Second Sight (following the decryption of the hard-drive referred to
above.)
7. Emails disclosed to Second Sight: Copies of the email data supplied by Post Office to
Second Sight in May 2013 (referred to at paragraph 50 of the Executive Summary to Post Office
document entitled “Complaint Review and Mediation Scheme” (following the decryption of the
hard-drive, referred to above)
8. Documents referred to in your draft protocol: Copies of the following documents referred to
and defined in your draft protocol of 19 October 2016:
e the First Engagement Letter dated 1 July 2014;
e The Second Engagement Letters dated 15 April 2015;
¢ The Non Disclosure Agreements between lan Henderson dared 31 May 2012 and Ron
Warmington dated 1 June 2012; and
e The Side Letter dated 1 July 2014
In the event that you are only prepared to provide only some of the documents requested, please
do so rather than providing nothing.
Please provide:
(a) the confirmation sought above in relation to access to Second Sight by return;
(b) documents above by no later than 4pm 21 March 2017 (save those encrypted, if still
unavailable); and
(c) an update as to the position on decryption of the hard drive, also by 4pm 21 March
2017.
The obvious relevance of this information to drafting of the Generic Particulars of Claim has been
drawn to your attention on a number of occasions. We will refer to this correspondence in the
event that it is necessary to do so, both as to any consequential applications or amendments and
on the issue of costs.
Yours faithfully
fred ke?
Freeths LLP
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