Foat in Blunderland

Ben Foat talks about leading from the front and what it takes to make a GC.

What did we learn from Ben Foat’s oral testimony before the Post Office Inquiry last week? Again a few quick notes…

Jane Macleod the GC managed up and, when she was there, Mr Foat was the legal ops guy. He managed the team:

“she would focus on the Board issues and the Executive, and what she wanted me  to focus on was managing the Legal Team of this circa 20 lawyers …  …frankly, there wasn't much by way of legal operations.”

In June 2017 the issue of the PO doing prosecutions was still live. Alisdair Cameron was keen to prosecute “a single sympathetic case” if they could “And then we will know” if Horizon could still stand up prosecutions.

This was not Ben’s domain, he said, it related to the “Group Litigation”. Macleod and Rod Williams, as “Head of Legal for Dispute Resolution” looked after that. Ben managed “Rod holistically in terms of all of his remit,” but, “Rod reported directly to Jane MacLeod” on the GLO issues. He was the, “go-to person within the team for matters relating to criminal prosecutions”

There is a discussion about “an advice from Cartwright King, dated 27 March 2015” about “Project Zebra, [A Deloitte investigation] investigation relating to remote access” that Cartwright King, contains important information on remote access being, "potentially disclosable in cases”; a telephone conference with Rodric Williams of the Post Office and Andrew Parsons of Bond Dickinson, who were told Deloittes were "... correct in identifying various concerning things about remote access including the possibility of 'injecting' “a transaction unilaterally into a branch's accounting records without the consent, approval or indeed knowledge of the [subpostmaster] ..."

Asked if that was ever brought to his attention by Rodric Williams, Mr Foat says no.

A litigation hold email issued by Williams dated 20 April 2016 is discussed. It includes the phrase, "You must recognise that any documents that you create from now on may have to be disclosed to the other side in the case. If in any doubt, think about whether you would be happy for the email or document to be read out loud in court."

Foat makes the point that this is fairly standard practice. He’s asked about legal privilege (with the Inquiry in essence looking at whether it has been abused):

Q. Was legal professional privilege more broadly something that was well understood within the Post Office at this time?

A. I don't think it was well understood -- and, forgive me, this is going back several years. Legal professional privilege was an area that I think training was actually provided to certainly the Legal Department, to make sure the lawyers understood…

…generally the maturity of -- or the business's knowledge about such legal matters would have been very limited.

Q. From your interactions with, for example, the Executive and the Board level, as you progressed through your career, what was your view of their appreciation and understanding of legal professional privilege?

A. I think they perhaps had a misguided understanding. So, for instance, I think people thought that the mere fact that you include a lawyer in correspondence, that that may make a document become privileged.

We know this was a tactic suggested by a Royal Mail Group lawyer before Post Office separated from them, so it’s a misguided understanding that may have originated from (and been reinforced by) the lawyers.

Somewhat surprisingly by October 2018 he says he was not aware of the significant number of Post Office prosecutions being reviewed by the CCRC. He says it was Macleod working with Rod Williams on this:

there were a significant number of legal issues other than the Group Litigation that also needed to be managed, which was my focus, and so that was the basis upon which she divided the labour. I did actually ask twice to -- I offered my services to help on the Group Litigation but she said that that wasn't necessary.

Q. What was your understanding as to why that wasn't necessary?

A. Because she said we already had a lot of lawyers involved in the matter

He says:

It's not to say that I didn't have any information about it and I absolutely was aware of the major milestones. So, of course -- and, indeed, I actually asked Rod to keep me up to speed on the major issues

After some discussion of the ill-fated recusal application, which Macleod is painted as being slightly blasé about, he is asked.

Q. One of your areas of responsibility as Legal Director was managing legal risk. Do you think you were sufficiently informed by Ms MacLeod, by those involved in that litigation of the legal risks involved at that stage?

In essence his answer is that this was Jane MacLeod’s call as General Counsel. She, “ultimately manages and supports the business to manage legal risk.” but no he had not had sufficient information.

When Macleod was managed out he became General Counsel but he says HSF took over Macleod’s role on the litigation. He’s asked if he was really up to it. I confess to dying inside a little bit when I read this next bit:

I knew it would be a challenging role. I have had the benefit of having excellent previous experience, whether it's as a senior associate in private practice or teaching law at university, or publishing as well as working in an inhouse role as -- for corporate lawyer for a major financial services institution and, indeed, by that point I'd also been on subsidiary executive committees and also risk and compliance committees, and so I've had the benefit of extensive experience but I accept the point that it was my first General Counsel role.

There’s various stuff on the fall out from the Common Issues judgment and then a discussion of advice from Andy Parsons (Womble Bond Dickinson) 17 May 2019 .

This is probably the most important of several disclosure issues that are put to Mr Foat. Parson’s advice is about a report to be done on Horizon by a test company called “Ten 10”

"The work below makes me nervous,” says Parsons.

“If the report flags any risk in Horizon, we will be obliged to disclose it to Freeths. The report landing in mid-June would be terrible timing as it might land when Worden [PO’s expert] is giving evidence or just as we are preparing closing submissions. I would advise against conducting this work whilst the Horizon trial is live.”  

Foat thanks him for his helpful advice, and is asked about what happened:

Q. Was that work undertaken?

A. The test?

Q. Yes.

A. Yes, I understand it was in August.

Q. So was it undertaken after the trial?

A. That's correct.

Q. Yes, and was that intentionally so, in light of Mr Parsons' advice?

A. I'm not aware of that

Q. Is this another example of concern within the business about creating material that would be disclosable in litigation?

A. I think the point of this was just making sure that -- it's joining the -- as General Counsel, I'd say joining the dots across the organisation. So it was just making sure that the business -- if they don't need to do --- something and there's no obligation to do something and that can create risks, well, then normally lawyers will advise the accountable business owner of that. That's not to say, if there are adverse documents that have to be disclosed, then they will be disclosed.

But I think it's just making sure that there was coordination between the IT Department and the Legal Department. My understanding is that the test did go ahead and, if there was anything adverse, then that would have been disclosed

In case you missed it: he does not answer the question put.

Q. The kind of advice given by Mr Parsons there, do you think that is appropriate, in the circumstances where the Post Office is owned by the Government and also in circumstances where the Post Office has historically prosecuted people?

A. At the relevant time, I think I was in as General Counsel for about two or three weeks, I'm not sure I would necessarily have quite understood all of the context of the question you just put but I think -- I mean, I simply asked for the legal advice and this is legal advice that came back, and I think what they're saying here is that looking at it, as he says, from a litigation perspective, if you don't have to do something, and therefore he's saying not to, but what I'd be very clear is -- and indeed, I think it's implicit in his point, that there is an ongoing duty of disclosure, and so, if something does happen, it will need to be disclosed

They circle round this for a bit.

Q. Irrespective of the advice that's being given, though, in terms of a position, so let's say that advice was adopted by the company, do you think it is appropriate for the Post Office to adopt that position?

A. That's ultimately a question for the decision makers. They would need to factor in or consider the legal advice but they, as -- whether as Board Directors or whether as other accountable business owners, they need to have regard number of considerations. That would include, for instance, the criteria or additional elements that you have put forward, but the role of the yellow): lawyer is to advise on the legal risks.  But you're right: there are other considerations that a decision maker ought to take into account.

Q. If you were the decision maker, what would your view be?

A. I'm not the decision maker.

Q. But if you were the decision maker what would your decision be?

A. It's not the role of the General Counsel to be the decision maker.

Q. But if you were the decision maker what would your decision be?

A. I don't have a view on it. It is not my role

He said earlier his role was to join the dots. In a little while he might be telling us he leads from the front.

There’s some going over of his unhappiness with not being able to attend the Board, some apparent attempts to frustrate one or two positive things Al Cameron was trying to do being treated as Cameron being difficult and treated as a whistleblower (join them dots, Einstein), then something about Brian Altman’s advice against settling with convicted claimants, and what a shambles the GLO strategy might be said to be. This leads to a bit of a discussion that suggests some thought Womble Bond Dickinson were not briefing accurately on the case.

There are some important points about disclosure problems during the Inquiry and before. Mr Foat says the Post Office did not have a sufficient grip on its own records and as to whether sufficient priority was given within the business to it in readiness for the Hamilton appeals Foat thinks, “it's yes and no.”

Now?

Q. Do you think the company is now properly on top of its records?”

A. I think considerable effort has now been made….

So that’ll be a no, I believe.

He denies Nick Read's claim, “to the effect that you presented the issue of prosecutions to him as a historic issue” categorically pointing out he was, “clearly on record” in various places saying “once the judgment is handed down, the issue around criminal convictions would need to be looked into”.

There’s a long discussion about the genesis of the HSS scheme (HSF/UKGI dipped in the blood of that), why PO as the “perpetrator” were running it (the Government insisted), and why some involved in past problems remained involved (corporate memory was useful [*splutters*]).

He is asked if he has any reflections in respect of the role of General Counsel, the role that it plays within the business, and how it might be improved.

It gets a bit. Well. It get’s a bit LinkedIn.

A.     Yeah. I think it's fair to say that being the General Counsel in this period of Post Office's history was and is a challenging role. One needs to be able to challenge Board Directors, Executives but also be able to coach your team, be able to liaise with other parts of the business. I think having a mindset of embrace lifelong learning, which is a value -- a personal value and a corporate value of a previous company that I worked at -- having that mindset, but also leading from the front, in terms of making sure that people understand that legal conformance is a licence to trade. It's not optionality, it's mandatory and making sure that the business understands it at all levels, that complying with the law is essential to good business practice.

I am going to note, with a little acidity I am afraid, that he was not willing to lead from the front when he gave his I have no opinion opinion on disclosure above.

Tim Moloney KC (counsel for one of the core participant teams) asked a further question about disclosure worth noting:

Q. Yes. Are you able to assist on whether, at any time during your supervision of Mr Williams and before the conclusion of the GLO, there was any message cascaded through the business clarifying that, privilege aside, Post Office may owe duties of disclosure to those who might have the basis for a criminal appeal?

A. Not off the top of my head, sir, no

And Sam Stein KC (another core participant Silk) asks this about Brian Altman’s involvement:

Now, at that time in the lead-up to the appeals in the Court of Appeal criminal division, we know that Brian Altman KC was leading on behalf of the Post Office, responding to those appeals in the Court of Appeal. We also know that Mr Altman had a very long-term involvement in matters touching upon issues that relate to this Inquiry, including at least being engaged on issues that relate to disclosure or indeed non-disclosure, and he's admitted that he's made a mistake in relation to dealing with the matters of disclosure himself. Did he ever come to you or, to your knowledge, any other member of the Legal Team and say, "I'm worried about whether I should be, in fact, presenting matters on behalf of the Post Office"?

A. No, he did not but it was the other way round…

[He is encouraged to go on]

…By that I mean it was Post Office that raised the fact of -- obviously, Brian had been involved. Mr Altman is an extremely experienced senior criminal lawyer and, frankly, he had a lot of information and memory on issues, which someone like myself or indeed a lot of other people didn't have, so he was valuable from that perspective. But the Board discussed the matter and the Board determined that Zoe Johnson QC, another very capable, experienced Queen's Counsel, should be appointed as independent from Brian Altman and, in addition, the Board also appointed Sir David Calvert-Smith who would oversee and specifically advise the Board itself, separate from Brian Altman and Zoe Johnson QC. So I think those measures or controls helped make sure that there was that counterbalance that I've referred to previously, that, even if someone had been involved in the matter that there was independent advice and expertise that sat independent from it and, indeed, that there was also Sir David Calvert-Smith

Q. Right. To your knowledge, did Mr Altman say or express his own concerns that "I, Brian Altman, was part of the decision-making process and made an error in that process on disclosure issues", and express his therefore concerns about whether he had a conflict; was that ever discussed with you?

A. No.

Q. In the reverse, was that ever discussed with him, "Look Mr Altman, you're experienced, you're valuable to us because you've done a lot of work on this", did the Post Office ever say, "You were part and parcel of that history of non-disclosure, should you really be part of this"; was it ever really raised in that term?

A. So the reverse -- as I said before, the reverse is true. Post Office recognised that he had involvement. But just to be clear to your question, it was only until he gave evidence at the Inquiry that I understand he acknowledged that issue. Before that time, Mr Altman has never -- well never to me or anyone else that I'm aware -- has acknowledged that point, if that's -- if that's the question.

So the Post Office spotted a possible conflict of interest and rather than deal with it directly, rather than lift that rock so to speak, they got someone to provide further advice (two people in fact). Layer upon layer of the stuff.

We should not be surprised. The same thing happened with Cartwright King. The Post Office genius was to bring in, um, Brian Altman KC, when they were warned CK might have messed up.

To say I am baffled by this approach is putting it mildly. If anyone in practice thinks this normal, or makes sense, can they please drop me a line?