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From: Munby, Sarah (BEIS)
Sent: 27 August 2020 11:48
To: Creswell, Carl (Services Directorate); Cooper, Tom - UKGI; Watson, Richard - UKGI;
Mark Russell; Donald, Charles - UKGI
Cc: Permanent Secretary
Subject: RE: Highly confidential. POL Litigation/Governance
OFFICIAL-SENSITIVE
Am in same camp as Richard that we will want to probe — was the advice “this looks all ok so you don’t need to feel
you need to share it with the Board” or was it genuinely “legally you shouldn’t share this with the Board”. And in
either case why wasn’t it challenged.
From: Creswell, Carl (Professional Business Services, Retail & Post Directorate)
Sent: 27 August 2020 10:35
To: Cooper, Tom - UKGI I; Watson, Richard - UKG! <j 1ark
Russell ; Donald, Charles - UKGI -—tti(‘i‘i;i;‘;‘;:é‘CSr Munby, Sarah (BEIS)
Cc: Permanent Secretary
Subject: RE: Highly confidential. POL Litigation/Governance
OFFICIAL-SENSITIVE
Sounds very sensible, Tom. I know that Sarah may not be able to make it given the pressures on her
diary, but I can always update her separately if that is the case.
Many thanks,
Carl
Pd Carl Creswell
— Director, Professional & Business Services, Retail and Post
Business, Energy Orchard 2, 1 Vict Street, London SW1H OET
. rchard 2, 1 Victoria Street, London
& Industrial Strategy www.gov.uk/beis I https://twitter.com/beisgovuk
From: Cooper, Tom - UKGI
Sent: 27 August 2020 10:28
To: Watson, Richard - UKGI 5; Mark Russell <i ; Donald,
Charles - UKGI ; Munby, Sarah BEIS) ; Creswell, Carl
(Professional Business Services, Retail & Post Directorate) <I
Subject: RE: Highly confidential. POL Hinctanlnenane
Richard - I don’t see how, even with rose coloured specs on, anyone would see a green light in the QC’s report,
although it’s possible that is how it was presented to Tim given way it was described to the Minister in the letter he
wrote updating her on progress.
Unless others disagree, I'll asifito set up a call as suggested by Richard.
Tom
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From: Watson, Richard - UKGI ir siCSY
Sent: 27 August 2020 09:30
To: Russell, Mark - UKGI ; Cooper, Tom - UKGI ; Donald,
Charles - UKGI Munby, Sarah (BEIS) ; Creswell, Carl
(Professional Business Services, Retail & Post Directorate)
Subject: RE: Highly confidential. POL Litigation/Governance
Thanks Tom
I think a further discussion would be helpful.
In terms of Tim’s explanation of why he did not disclose the advice to the board clearly the QC’s report was
confidential and legally privileged but that in itself does not explain why it should not be disclosed to the board.
There is no risk of a company’s legal privilege being lost or confidentiality being breached simply by legal advice it
has received being disclosed to the board. So I am really struggling to understand why Jane Macleod gave that
advice.
At the risk of coming at this with the great benefit of hindsight I would like to think that if a company Chair was told
by the company’s general counsel that they should not disclose something to the board because of confidentiality
and/or legal privilege concerns they would strongly challenge that advice if they otherwise felt that the board should
be aware. There might be cases where, for example, individual board members were conflicted (or perhaps
implicated) which might be a reason not to share something with them but the general principle is, as you know,
that the board acts collectively.
I wonder if what actually happened in this case is that Tim was comforted by the QC’s report (which he read as
effectively giving a green light to everything POL had done) and together with the advice Jane gave him and the fact
of the litigation he came to the view that there was no need to share the QC’s report with the board.
Kind regards
Richard
Richard Watson I General Counsel
UK Government Investments
ctoria Street, London, SW1H OET
From: Russell, Mark - UKGI I
Sent: 26 August 2020 11:32
To: Cooper, Tom - UKGI jonald, Charles - UKGI F tstsi—‘i‘CSCS Munby,
Sarah (BEIS) Creswell, Carl (Professional Business Services, Retail & Post Directorate)
EE 21500, Richard - Ux
Subject: RE: Highly confidential. POL Litigation/Governance
2
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Thanks, Tom. Out of Scope
If we are considering what action, if any, is taken against Tim then don’t we/BEIS need a view in addition
to the SID — probably a legal view? Was it reasonable, at the time, for Tim to rely solely on Jane’s
guidance?
Richard W is probably best qualified to opine!
From: Cooper, Tom- x! ia
Sent: 26 August 2020 10:17
To: Donald, Charles - UKG! {jn Viunby, Sarah (BEIS
Creswell, Carl (Professional Business Services, Retail & Post Directorate) }; Russell, Mark.
- UKGI ——— Watson, Richard - UKGI
Subject: Highly cor n POL Litigation/Governance
An update on our previous discussions about Tim Parker’s role in commissioning, and following up on, the QC’s
recommendations that were made shortly after Tim was appointed Chairman of POL.
Since we last spoke: Out of Scope
Tim was asked about the QC’s report and why it wasn’t
discussed with or disclosed to the Board. Tim said that he was guided by Jane Macleod, the company’s
counsel at the time, who gave advice that the document needed to be kept confidential because of the
upcoming litigation and also raised privilege issue. He said he relied on this advice.
- I have spoken to Ken McCall, POL’s SID, and Carla Stent, who is the other NED who was on the Board at the
time. Ken has yet to finally conclude on this but his current view is that the legal advice was flawed and Tim
made an error of judgement in relying on the advice. But in Ken’s view it would be unfair to sanction Tim
given he was relying on legal advice.
- Interms of next steps, Ken plans to speak to Carla and possibly some of the other NEDs. He would be willing
to report in to BEIS on his findings if we want his views formally.
Please let me have your thoughts on this. I should mention that if BEIS wants to take a different view and take some
action, the window for doing so is closing. The review into Horizon lessons learned (which will include an account of
the past actions of the management, Board and shareholder) will probably be announced in September. Once that
is underway, I expect it will be difficult to make any unscheduled changes to the —
Tom Out of Scope
Tom Cooper
Director
UK Government Investments
1 Victoria Street I London I SW1H OET
a
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