L_GRO.
Subject: RE:
PRIVILEGE. [WBDUK-AC.FID26896945]
Date: Sat, 16 Mar 2019 11:03:17 +0000
Importance: Normal
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Andrew Parsons
, Amy Prime <
GENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL
Attachments: _DOC_154825881(1) Post_Office_-_Recusal_Note.DOCX
Inline-Images: image001.png; image002.png; image003.png; image004.png; imagee6f006.PNG;
imagecd9de9.PNG; image99bbed.PNG
Jane
As you have an important call shortly I attach the note as it currently stands.
The draft note picks up some of your bullet points, but not all. It will need to be added to over the course of today (all
comments gratefully received).
I am tied up for an hour now but will be around this afternoon, just after 12.30.
I hope sending on the draft now is a helpful step.
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: Jane MacLeod [mailto:
Sent: 16 March 2019 10:55
To: Tom Beezer; Andrew Parsons
Cc: Rodric Williams; Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE. [WBDUK-
AC.FID26896945]
Many thanks —I have a call at 12.15 with our Chairman, Al Cameron and our Minister Kelly Tolhurst (and
others), although I don’t believe recusal will be part of the discussion. I have been advised by the UKGI GC
that ‘government’ will not express an opinion on recusal as they will not want the ‘executive’ to be seen to
be criticising the ‘judiciary’.
This will put more pressure on our Board, and the Chairman is acutely conscious that such an application
will not sit well with the perception that PO is arrogant, whereas we are trying to edge towards ‘contrition’.
That effect of that is that we need to be very clear what the risks will be of not proceeding with the
application, which I imagine include:
Impact on evidence given by PO witnesses (especially Angela) in the current Horizon trial, and the impact
of that on our case;
Extent to which this detracts from the ‘procedural unfairness’ grounds for appeal;
Impact of delay - if we didn’t bring the application ‘now’ and then decided that the Horizon judgement also
demonstrated ‘prejudice’ — would we be able to use that also in an appeal on the Common Issues judgement
(which almost certainly will be after the HIT judgment);
Would result in (I assume?) only appeal grounds as being incorrect interpretation (and application) of the
law. Although LNQC opinion seemed to suggest we had reasonably good grounds?
I'll look forward to receiving the draft, and will let you know if I need a call later today to discuss.
Kind regards,
Jane
e Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
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Mobile number
Sent: 16 March 2019 09:
To: Jane MacLeod < GRO >; andrew.parsons
Ce: Rodric Williams + Amy Prime
Subject: RE: URGENT: Litigation Options - CONFIDENTIAL AND SUBIECT TO LEGAL PRIVILEGE.
[WBDUK-AC.FID26896945]
Jane
A short e mail as to timings. We will be sending you a draft "Board friendly" (I hope...) recusal note on or before
lunchtime today.
I hope that works for you.
One of us will send over the draft in a short while.
Tom Beezer
Partner
Womble Bond Dickinson (UK) LLP
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From: Jane MacLeod [mailto!
Sent: 15 March 2019 15:34
To: Tom Beezer; Andrew Parsons
Ce: Rodric Williams
Subject: FW: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
Importance: High
Tom, Andy
As discussed, set out below is the email I sent this morning to the Chairman and Tom Cooper setting out the
proposal for the recusal application. 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 (LNQC but given speed with which it was
produced - is it fully considered?; Will LGQC have read in sufficiently by then to also be able to offer an
opinion? ‘why we should believe them?’)
risks
Process & timing
In addition, the following Monday (25't) 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:
not appealing (and therefore how many existing & historic contracts will be affected by the judgement?)
appealing and losing (same as above?)
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
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provisions.
I will task one of my team to start looking at the modelling to support the legal analysis.
Kind regards,
Jane
e Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor.
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number
From: Jane MacLeod
Sent: 15 March 20
To: Tim Parker <_ Thomas Cooper <
Ce: Alisdair Cameron GRO 7}
Subject: URGENT: Litigation Options - CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE.
Importance: High
Dear Tim and Tom
As flagged on the board call on Tuesday, we have sought further advice on appeals and as to whether we
have grounds to request the judge to recuse himself on the grounds of bias.
Advice
We sought advice from Lord Neuberger who stepped down last year as the President of the Supreme Court
(and as such was the highest judge in the U.K.). We sought his views as to whether the draft judgement
demonstrated the following grounds for appeal:
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Whether the Judge has correctly interpreted and applied the law as to construction of a document or
application of a principle of law;
Whether there are grounds to argue that findings have been made as a result of serious procedural
irregularity (which goes to the admission of, and reliance on, among other issues, inadmissible evidence),
and
(most urgently) Whether Mr Justice Fraser demonstrated grounds on which we could apply for him to recuse
himself.
The test for recusal is ‘whether the fair-minded and informed observer, having considered the facts, would
conclude there is a real possibility that the [Judge] was biased’.
Attached is Lord Neuberger’s preliminary advice (Please note, in paragraph 11 he refers to ‘the Note’ — this
is a note put together by David Cavendar QC summarising the key extracts of the judgement and trial
transcript). As you will see, in paragraph 5 Lord Neuberger states that although he has only looked at the
issues very cursorily, “at least some of them raise quite significant points on which the PO has a reasonable
case, and at least on the face of it, some points on which the PO has a pretty strong case.”
Further however, he suggests (para 19) that if we wish to rely on the ground of procedural unfairness at an
appeal, then ‘PO has little option but to seek to get the Judge to recuse himself at this stage” and in para 20
that if we fail to act promptly during the Horizon trial we “risk being held to have waived [our] rights, or at
least weakened our position on the recusal issue.”
Timing
Thave set out below the proposed process and timetable. This suggests that we should make the decision
urgently - preferably not later than Monday with a view to making the application early to mid next week.
Risks
The risks with seeking for the Judge to recuse himself are:
a) The application is successful and the Horizon Trial is adjourned (and probably has to be re-heard by
another judge); we proceed with an appeal on the Common Issues Trial (timing to be determined) and a
new judge is put in place for remaining aspects of trials.
b) The application is unsuccessful (at first request and in the Court of Appeal) then it is likely that the judge
is further antagonised, however he will be aware that the Common Issues appeal is progressing which
includes the "procedural unfairness" assertion. Possible impact in that scenario is the Judge 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 which are more tricky to appeal.
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We should also not proceed with this course of action unless we are prepared to appeal a decision by him not
to recuse himself.
In the meantime I propose today to brief a further senior silk today (probably Lord Grabiner) to act on the
recusal application. Should the Board decide not to proceed, then we can withdraw the instructions; however
as he will need reading in time, this parallel track will minimise delay.
Next steps
Tim, this is clearly a board decision and we would need to give the Board time to consider the options,
however we would like to convene a call over the weekend or on Monday at the latest to discuss this
proposal. Lord Neuberger is available for a conference call to discuss his views, although he is in Argentina,
so there are some time considerations. Once he has read in, and assuming he agrees with Lord Neuberger, I
expect Lord Grabiner would also be available for a call.
Tom, you have previously counselled us that any appeal should be discussed with the shareholder - please
advise how we progress this as amateur of urgency?
Would we be able to talk today to consider the way forward?
Kind regards,
Jane
O Jane MacLeod
Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number
LITIGATION PROCESS & TIMETABLE FOR RECUSAL APPLICATION
1) POL 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.
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2)
3)
4)
5)
6)
7)
8)
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Assuming a QC is to be "warmed up" David Cavender QC to brief on background as fully as possible. Timing:
Friday.
POL to decide if it is to make a recusal application. Timing: By (say) Monday.
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 in South America (Argentina).
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.
Gideon Cohen (at One ESSex Court and already part of the Counsel team) to be instructed to be Junior to chosen
QC. Timing: Friday, if "warm up" route followed.
QC & Gideon prepare Application Notice and Skeleton for recusal application. This work could start now if we
follow the "warm up" route.
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.
S
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
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.
Jane MacLeod
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Py Group Director of Legal, Risk & Governance
Ground Floor
20 Finsbury Street
LONDON
EC2Y 9AQ
Mobile number:
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