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Witness Name: Benjamin Andrew Foat
Statement No: WITN09980300
Dated: 22 August 2023
THE POST OFFICE HORIZON IT INQUIRY
THIRD WITNESS STATEMENT OF
BENJAMIN ANDREW FOAT
1, Benjamin Andrew Foat, of 100 Wood Street, London EC2V 7ER, say as follows:
Introduction
1. I have been employed by Post Office Limited ("POL") as its Group General
Counsel ("GC") since 1 May 2019.
2. This witness statement has been prepared in response to a request made by
the Post Office Horizon IT Inquiry ("the Inquiry") pursuant to Rule 9 of the
Inquiry Rules 2006, dated 31 July 2023 ("the Request").
3. The facts in this witness statement are true, complete and accurate to the best
of my knowledge and belief. It should be noted that given my role as GC a
substantial component of knowledge and the information that I have about
these matters has been provided to me by others (either colleagues at POL or
POL’s external lawyers).
4. I have been assisted in preparing this witness statement by the Burges
Salmon Fieldfisher team who are instructed on behalf of POL in relation to the
Inquiry. Farrer & Co, who act for me in a personal capacity, have also had
input into the preparation of the statement.
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I have previously given two corporate witness statements about disclosure to
the Inquiry on 23 March 2023 and 21 June 2023 and four interim disclosure
statements (dated 27 May 2022, 18 October 2022, 30 November 2022, and
12 January 2023). I attended a hearing about disclosure at the Inquiry as a
corporate witness on 4 July 2023.
The Request identifies the following points to be addressed:
“4, Please explain the events which led to the three disclosure issues that
have been identified, explaining in detail all relevant decisions and
communications that led to the errors, and identifying those involved.
2. Please set out:
a. When the errors were discovered, by whom and in what
circumstances. I
b. Where you consider responsibility for the errors lies.
c. What steps have been taken since to remediate the errors.
3. Please explain the systems and processes in place to ensure the
disclosure will be provided and to avoid future issues of a similar nature.”
Following the evidence session on 4 July 2023, Sir Wyn Williams made
directions dated 6 July 2023 in relation to late disclosure from POL. At
paragraph 5 of those directions, Sir Wyn noted the three issues which are
understood to have resulted in POL’s failure to disclose the ‘Identification
Codes’ document to the Inquiry prior to 30 May 2023, namely:
(a) search terms;
(b) family documents; and
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(c) de-duplication.
8. Where the Request refers to "the three disclosure issues that have been
identified", I understand these refer to the three issues identified in the 6 July
2023 Directions.
9. In my capacity as GC, my role involves me providing advice to the Board, its
Group Executive ("GE") and POL generally about matters relating to the
Inquiry. POL has previously waived legal privilege for the purposes of this
Inquiry in the terms set out in its Note of 15 November 2021, but that waiver
does not extend beyond February 2020, so I am unable to disclose certain
information or the specific advice I have given.
Background
10. As GC, I am responsible for supporting POL to manage its legal and regulatory
obligations through the legal, compliance and company secretary teams
(though I am not the Company Secretary) and, more recently, the assurance
team. Specifically, my role is to support and facilitate the business to manage
and comply with its legal and regulatory obligations through (second line of
defence) operational processes, the drafting of legal instruments and the
provision of legal and regulatory advice. In addition to those duties, I am the
Chairman of First Rate Exchange Services Limited, which is joint venture
travel currency business between the Post Office and the Bank of Ireland.
11. When the Inquiry was established on a non-statutory basis, Declan Salter was
Director of the Historical Matters Unit ("HMU") (now known as the
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12.
13.
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Remediation Unit), which at that time was responsible for delivering
compensation under the Historic Shortfall Scheme and to Postmasters whose
convictions are overturned as well as delivering POL's support to the Inquiry.
Declan Salter had decision-making authority, and dual reporting lines into
POL's CEO and the Chairman of its Board. The purpose of this was to
separate the compensation and Inquiry from the Business Areas Units
("BAU") part of Post Office.
In accordance with the terms of s.15 Inquiries Act, the Government gave
notice to convert the Inquiry into a statutory inquiry under the Inquiries Act
2005 on 1 June 2021.
After Declan Salter left POL in July 2021 the Board decided to separate the
functions previously undertaken by the HMU into what is now known as the
Remediation Unit and, separately, the Public Inquiry Team. New directors
were then appointed for each programme and were authorised to make day
to day operational decisions by virtue of their appointments with some matters
reserved to the GE and the Board. Fintan Canavan was appointed as Director
of the Public Inquiry Team in October 2021. In December 2022, Diane Wills
was appointed to lead the Public Inquiry Team with effect from January 2023.
Simon Recaldin was appointed as Historical Matters Director from 10 January
2022. I was the GE sponsor of the Inquiry programme from September 2021
until June 2023. This role was to be the executive representative of the
programme reporting to the CEO and the GE and to provide line management
of Fintan Canavan and Diane Wills. This was always a temporary role.
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14,
15.
16.
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In or around mid-June 2021, I took on a caretaker role until the appointment
of the Inquiry Director but material decision making remained with GE Inquiry
Steering Committee (known as SteerCo or ISC) and Board. As part of a
review of the Inquiry programme recommendations were made including:
14.1 Formal acknowledgement that disclosure needed to be on time and in
accordance with Inquiry protocols (being part of POL’s success
criteria for the programme);
14.2 Strengthening of governance with terms of reference and delegation
authority between board, GE, SteerCo, and the Inquiry programme
team;
14.3 Approval of an Inquiry Director to take decisions and Chair the
SteerCo;
14.4 Additional FTE approved including appointment of Head of Legal and
additional legal roles as well as other operational roles; and
14.5 Workstreams would include document management, information
requests, and legal workstreams.
The approach to disclosure at that time required POL to ensure that all
relevant documents be provided without delay and that providers of
documents conduct comprehensive, thorough and rigorous searches in
response to a request for documents.
It was anticipated that POL would receive more document requests from the
Inquiry once it had finalised the Provisional List of Issues. Herbert Smith
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17.
18.
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Freehills ("HSF") and POL undertook an exercise to identify the ‘document
universe’ of repositories and types of documents that POL holds that may be
responsive to the Inquiry’s areas of interest. I understand that regular weekly
calls on the disclosure workstream (also known internally as ‘information
requests’ and Rule 9 requests) were commenced and attended by HSF, POL
Legal, and POL’s disclosure and data protection team, KPMG and other
parties. There was also a separate document management workstream, with
a data workstream lead.
Under Fintan Canavan’s leadership, the Inquiry Team expanded further and
refined operational processes. This included having a process for the
management of Rule 9 requests. At Annexure 1 of this statement
[WITN09980302] I include a diagram titled 'Inquiry High-Level Process Flow
(v5 2023)', which depicts an overview of the current workflow process.
However, it is important to note that the process has evolved over time and
will continue to evolve. Given his previous role as Director of the Public Inquiry
Team, I anticipate Fintan Canavan will be better placed to talk to the details
of those matters. An Inquiry Operations Director also commenced in role in
October 2022.
SteerCo is a GE Subcommittee, previously chaired by Fintan Canavan now
chaired by Diane Wills, and comprises multiple GE members myself included
(although I do not have voting rights). This committee is authorised to make
certain types of decisions, such as approving plans for each phase of the
Inquiry and approving recommendations to the Board in respect of matters
reserved to the Board. Its terms of reference have been reviewed and
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expanded as the Inquiry has progressed. The current version of the terms of
reference is appended at Annexure 2 [WITN09980301]. Ultimately, the Board
of POL has authority over the most material matters, for example on the
question of waiver of legal privilege or change of legal representation, which
would be outside the scope of the day-to-day operational decision-making
authority of POL Inquiry Director and SteerCo. Delivery of POL's day to day
responsibilities for the Inquiry sits with the Public Inquiry Team.
How the errors were discovered (Request 2(a))
19. Throughout my involvement, I have explained the importance of Post Office
complying with its legal obligations and that disclosure obligations should be
considered mandatory and were important to the success of the Inquiry
programme.
20. On 11 May 2023, I received an email from POL's Senior Information Rights
Manager, concerning a request made to POL under the Freedom of
Information Act 2000 (the FOIA request"). That email explained a request
had been made in the following terms: “Please can you disclose documents
which detail the Quality and Compliance Assurance processes for
Investigations which were implemented by the Post Office Security Team
2008-2011. Please include reports which evidence any improvement in the
quality and professionalism of investigation standards eg Investigations
Standards Audits.”
21. That email contained documents that were to be disclosed in response to the
request.
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22.
23.
24.
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The email raised that the identification codes contained in document
‘Appendix 6 — Identification Codes' ("Appendix 6") used what was described
as unacceptable language. When I received that email, I replied on the same
day copying in the Public Inquiry Team noting that it would be helpful to
crosscheck the documents being disclosed in response to the FOIA request
against what had been disclosed to the Inquiry.
One of the Heads of Legal at POL then emailed HSF to make those enquiries
and it was subsequently discovered that those documents had not been
disclosed to the Inquiry. I understand those documents were then disclosed
to the Inquiry on 30 May 2023.
POL (via HSF) received a request pursuant to Rule 9 of the Inquiry Rules
2006, dated 5 June 2023, seeking a witness statement from an appropriate
person within POL to provide responses to 5 questions concerning the late
production of the documents. In response to that request, I was asked to
provide a corporate witness statement, (ultimately the one dated 21 June
2023), which was prepared with the assistance of HSF and counsel.
Individuals from POL and HSF briefed me about the technical aspects of the
disclosure process and what had happened in respect of the failings to
disclose those documents via a series of briefing meetings before the hearing
on 4 July, using the information that was known and available to them at that
time. This was done to enable me to try to explain the issues to the Inquiry in
my capacity as a corporate witness for POL.
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26.
27.
28.
29.
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The preparation of the corporate statement and these briefing sessions was
the first point at which I became aware of these three issues. Through being
briefed and reviewing the draft witness statement I became clearer on the
issues as they were understood at the time, but I should note for completeness
that, as the three firms involved in the disclosure process — HSF, Peters &
Peters and KPMG — have been carrying out further investigations following
the 4 July hearing, more information about the errors has come to light which
I understand is being communicated to the Inquiry.
More generally, the three disclosure issues are highly technical and detailed.
I did my best to understand what the problems were and have continued to
ensure I keep up to date with what the external firms consider to be the issues
and the steps to remediation.
The process of facilitating disclosure to the Inquiry has evidently been
complex and, notwithstanding the preparation I undertook before giving
evidence, there were still points of technicality and detail during my evidence
which I could not fully speak to. Following the hearing, both the GE and Board
were given advice and kept up to date on the status of the issues and
remediation work.
The content of my second witness statement reflected the understanding of
those involved in the disclosure process of the issues at that point. To the best
of my knowledge, save for the points which have been communicated
separately to the Inquiry, that witness statement remains an accurate
explanation of the disclosure issues.
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The events which led to the three disclosure issues (Request 1)
30. Due to the scale of documentation that may be relevant to this Inquiry, fulfilling
POL's obligations to the Inquiry required specialist expertise in the
management, identification and disclosure of relevant documents.
Accordingly, POL instructed three principal firms of external advisers to
facilitate it fulfilling its obligations to the Inquiry, namely: Peters & Peters,
KPMG and HSF.
31. Peters & Peters is a law firm with expertise in business crime, investigations
and fraud. They have supported in respect of disclosure that relates to the
criminal issues.
32. KPMG have been formally instructed by POL since 2021 to provide
eDisclosure services on behalf of POL in relation to the Inquiry.
33. I have had no direct involvement with KPMG regarding the work being
undertaken by them. Within POL, the Operations & Strategy Director of POL's I
Public Inquiry Team is responsible for the Public Inquiry Team's relationship
with KPMG. I understand updates are provided to Diane Wills on key strategic
issues.
34. POL first instructed HSF to act for it in respect of specific tasks relating to the
Inquiry on 11 November 2020. On 8 September 2021, following a decision
from the Board, POL formally instructed HSF as its appointed legal
representative of POL in the Inquiry. HSF is an international law firm which
specialises in, amongst other matters, complex litigation and therefore has
significant experience of managing large-scale disclosure exercises.
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35.
36.
37.
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The responsibility for liaising with external law firms in relation to Inquiry issues
such as Rule 9 disclosure is a matter for the Public Inquiry Team, primarily the
Inquiry Director but also POL Inquiry lawyers working under Diane Wills or,
when he was in post, Fintan Canavan.
In my capacity as GC, I have responsibility for POL's overall legal, compliance
and company secretary teams. This necessarily spans a wide range of issues
and as such it is neither possible nor appropriate for me to be directly involved
in granular issues concerning disclosure.
In general, I am not sighted on all of the specific requests that come from the
Inquiry and the discussions between the Inquiry team and HSF. I was not
involved in either advising or giving approval on the:
(a) search terms used in order to respond to disclosure request from the
Inquiry;
(b) approach taken to family documents; or
(c) approach to deduplication.
In broad terms, my understanding is that (a), (b) and (c) were decided by
POL's external advisers. As stated above, I was briefed on the events which
led to the disclosure issues following the discovery of the issues. Accordingly,
I am able to explain what led to the discovery of the problems namely, the
FOIA request, but as to the nature of the problems and how they arose, I am
dependent on what I have been told by others. I understand that HSF and
KPMG will be in the best position to discuss in granularity the events which
led to the three disclosure issues.
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Steps take to remediate the errors (Point 2(c))
39.
40.
41.
42.
My impression from the updates that I receive, is that everyone directly
involved, has taken (and continues to take) all steps they can to get to the
bottom of the issues and to remediate the errors. I am not personally involved
in remediation work but, upon being informed, have provided support to the
GE and Board in my capacity as GC. POL has not waived and does not waive
any legal professional privilege in this respect.
Following the identification of the disclosure issues, POL has engaged on
multiple fronts with HSF, Peters & Peters and KPMG on the disclosure
processes that are ongoing and already undertaken, quality assurance and
remediation. As part of that continuing process and prior to the Request of the
Inquiry, POL requested these advisers to provide initial reports on disclosure
aspects including, but not limited to, the three disclosure issues. Reports or
draft reports were received which have in part fed into POL's understanding
of the current position and ongoing review of wider disclosure matters. HSF
and KPMG have been asked to give evidence to the Inquiry directly on the
relevant issues. POL does not waive any privilege in respect of the HSF and
Peters & Peters reports.
I understand meetings between POL’s CEO and the respective CEO/Senior
Partner of HSF and KPMG have taken place but I was not present at those
meetings.
After I gave oral evidence on 4 July 2023, I requested regular updates to be
provided to track progress on remediation, which remain ongoing, and
reporting to GE and Board has been taking place. I have been told, based on
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information provided by HSF, that the ‘family document issue’ is now fully
remediated and additional significant work is being undertaken by POL and its
advisors to address the other disclosure issues, including reviewing
resources, processes and systems. I understand Diane Wills' statement will
provide further information on these aspects.
Systems and processes in place to ensure the disclosure will be provided and
to avoid future issues of a similar nature (Point 3)
43. In a high-level way, I understand that the respective firms are reviewing their
approaches to these issues and seeking to agree new guidelines between I
them. Others with more direct knowledge and technical information will be
able to explain the specific remediation steps in more detail and the systems
and processes in place to ensure the disclosure will be provided and to avoid I
future issues of a similar nature.
44. Adisclosure remediation programme has been undertaken. Although I am not
directly involved in the detail of that programme, which is overseen by Diane
Wills, I understand that significant resource is being devoted by all parties to
remediate the issues.
45. POL's new solicitors instructed in relation to the Inquiry, Burges Salmon and
Fieldfisher, are additionally providing support and advice to POL in relation to
Phase 4 remediation issues as necessary, although remediation work itself is
being led and carried out by HSF, Peters & Peters and KPMG.
46. A Group Assurance Director was appointed to continue the assurance review
of key Public Inquiry Team operations for the remainder of the Public Inquiry
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47.
48.
49.
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Team programme. It is my understanding that POL is considering what audits
should be conducted over this exercise for additional comfort that these
matters have been appropriately remediated. I understand that POL's
Enterprise Cloud & Data Transformation and Assurance Directors have also
been involved in providing additional support to this process.
The GE and Board have recently approved additional legal and operational
resource within the Public Inquiry Team throughout the Inquiry programme,
which should help in assisting in the remediation of these issues.
Where responsibility for the errors lies (Point 2(b))
Ultimately, POL is accountable for its disclosure to the Inquiry. Post Office has
invested significant resource and time in supporting the Inquiry to achieve its
terms of reference. It fair to say that the Post Office’s approach has evolved
as the Inquiry has evolved including conversion from non-statutory to
statutory, expansion of terms of reference, and the maturity of the POL Inquiry
programme.
POL appointed leading global specialists to carry out disclosure and other
activities on its behalf to the Inquiry and has a dedicated team within the POL,
headed up by an Inquiry Director, who are responsible for the Inquiry. The
SteerCo and Board provided oversight generally and in respect of Rule 9
disclosure at a high level, as well as any material decisions where needed.
As I understand it, a Rule 9 process was put in place in which HSF and KPMG
carried out most components of the disclosure exercise. Others with more
direct involvement in those processes will be better placed to comment on the
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51.
52.
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granularity of the systems employed to facilitate disclosure and these specific
remediations.
In relation to the 3 specific issues, I did not give instructions, and I am not
aware of any person at POL giving such instructions, that Peters & Peters,
HSF or KPMG should adopt the approach that was taken in respect of the
search terms, family documents and deduplication that resulted in the non-
disclosure of Appendix 6 and related documents.
The use of search terms, along with the approach to family documents and
deduplication were all matters which POL reasonably considered were
matters for the expert firms it had appointed working with the POL Public
Inquiry Team. I am happy to assist the Inquiry in any way I am able to, but
each firm will be able to give more detailed evidence in response to the
Inquiry's Rule 9 Requests, as they have much more direct knowledge and
involvement in the issues than I do.
Since the issues have been discovered, the focus of POL and its external
advisers has been on ensuring the disclosure of relevant documents to the
Inquiry. This is still a work in progress. To the question of where responsibility
for the errors lies, I do not feel it is possible for me to adjudicate where
responsibility lies. However, I acknowledge that in terms of assuring the
Inquiry that its requests for disclosure of documents from POL are being met,
this ultimately rests with POL. POL is however, given the scale and complexity
of the task, necessarily reliant on the support, advice and processes of its
expert outsourced providers.
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54. I would like to convey my sincere apologies again to Sir Wyn Williams, the
Inquiry and the other Core Participants, for the disruption which the disclosure
issues have caused to the Inquiry. It has always been the corporate position
of POL, and myself, that the Inquiry must be given all relevant documents.
55. Finally, as other witnesses are giving evidence also on the same topic in the
forthcoming hearing, I should reserve my right to respond to any points raised
by them that relate to me or my role and which may require a response from
me, by way of a further witness statement to the Inquiry.
Statement of Truth
Lhelieve.the content of this statement to be true.
GRO
‘Benjamin Anarew Foat
Date: 22 August 2023
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Index to Third Witness Statement of BENJAMIN ANDREW FOAT
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No. URN Document Description Control Number
1. I WITN09980302 Inquiry High-Level Process
Flow (v5 2023)
2. WITN09980301 _—s=iIf Post Office Inquiry Steering
Committee Terms of
Reference dated 16 June
2023
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