The history by which Parliament was (I think) misled bears investigation. It begins with Tim Parker reportedly telling the relevant government minister (Baroness Neville-Rolfe) close to the time the report is delivered,
“the QC is about to report. He had found no systemic problem. TP thought the issue might have passed it [sic] peak interest”[1]
This suggests, and we should bear in mind it is a civil servant’s note of a meeting not Parker’s actual words available to us, that Parker has been briefed on the report before he had it and that the briefing and/or his summary of it downplays the report significantly. Presumably Swift and/or the Post Office legal team had a hand in briefing him: raising questions about the nature of that briefing and Parker’s interpretation of it.
He also writes a more revelatory letter to the Minister which provides quite a full, if still somewhat watered down, account of the Review.[2] A point of particular note is that no mention is made of the point that Parliament has been deliberately or otherwise misled on the issue of remote access.
How Parker reports the more serious matters to the Minister in his letter is interestingly bland. He says this:
Further work is also underway to address suggestions that branch accounts might have been remotely altered without complainants’ knowledge. In particular the security controls governing access to digitally sealed electronic audit store of branch accounts over the life of the Horizon system, will be reviewed.
This is at best a limited rather than full and candid description of the Review’s findings and is potentially misleading. There is no mention of the need to address disclosure problems associated with remote access to convicted (and sometimes jailed) defendants, an obvious and central concern given the genesis of the Review. A very switched on reader, familiar with the history of the matter, as some of the civil servants should have been, might perhaps spot the significance of what is being said in the letter but dialling down and removing of some of the report’s key points is concerning.
Those familiar with the uses of independent reviews in corporate life will recognise the tendency for carefully phrased accounts of problems to be further editorialised outside the Review itself. It is one of the reasons authors of reviews need to be very clear about summarising, describing and marking adverse findings with appropriate weight lest their reports not be used to sanitise wrongdoing. Given the nature of the Review and its subject matter, we would anticipate Post Office lawyers having been involved in drafting Parker’s letter to the Minister. This is something which requires investigation in our view. We should note that it is possible that further work might have been done between the Review’s report in February and April which might justify some of the differences in the letter and the Review.[3] The most likely candidate for this happening is further legal advice on matters of disclosure, which Swift suggested might be sought from Brian Altman QC.
As Tom Cooper, Director of UKGI since October 2017 and Non-Exec Director of the Post Office since 27 March 2018[4] observed in UKGI/BEIS discussions about Parker’s failure:[5]
“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 where it was described to the Minister in the letter he wrote updating her on progress.”
Neville-Rolfe is not fully satisfied with the letter[6] yet her own civil servants quell her disquiet by downplaying the significance of the work the Review advises needs to be done, saying, “all of these areas have previously been explored by Post Office’s own team and advisors, including independent legal advisors.”[7] This is wrong, and one wonders where the basis of this statement originated.
Interestingly it appears the civil servants did not ask for, or at least, see, the report in 2016. According to the Post Office, the Review was first disclosed to the government (in the person of UKGI) on 16 March 2020, in anticipation of a Select Committee hearing.[8] Astonishingly, but perhaps relatedly, we are told Parker did not share the Review document with his Board, and he appears to blame legal advice for this (see below). It’s worth emphasising here that they get the report in the same month as the misleading statement to Parliament is made. Either the statement was made with knowledge of the reports contents or it was made and then not corrected. They took the time to tick Parker off, as we shall see, but do not appear to have addressed this problem.
If the letter Parker sends is misleading and if any solicitors were involved in its drafting, they would be at risk of having been complicit in misleading others if they contributed significantly to the letter’s content by commission or omission. The SRA Code of Conduct Rule 1.4 requires solicitors:
…do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).
(Why) was the PO Board kept in the dark?
Putting to one side the concerns about Parliament, the Review is a document that presented matters of serious concern. The Post Office needed to act on them. And yet, Tim Parker reportedly did not show the Review to the Board. We do not know if the CEO saw it, or asked to see it, although she was aware the Review was being conducted. It suggests the Board may have been kept in the dark as to the precise content of the report.
Parker is reported as offering an explanation for this; that he was advised against disclosing the report to the Board by the Post Office’s General Counsel at the time, Jane Macleod, on the basis it was privileged and given the prospect of litigation from the Justice for Sub-Post Masters Alliance (the JFSA).
Discovery of this leads to Parker being chastised for not challenging the legal advice he had received. The BEIS permanent secretary’s (Sarah Munby’s) letter to Parker states,
“we understand that you were advised at the time by the Post Office’s general counsel that for reasons of confidentiality and preserving legal privilege the circulation of the report should be strictly controlled.”[9] [And also this,] “as a rule, we think it quite difficult to envisage any circumstances where issues of legal privilege or confidentiality should prevent relevant information from being shared with a company’s board.”[10]
In the background to this letter UKGIs General Counsel, Richard Watson, had advised that, whilst there might be situations, such as a conflict of interest with a Board Member,[11] that such a report would not be disclosed, “There is no risk of the company’s legal privilege being lost or confidentiality being breached simply by legal advice it has received been disclosed to the board.”[12] Tom Cooper (UKGI Director and Non-Exec in Post Office) says Parker, “made a significant error of judgement in accepting legal advice that the QC report and, as a consequence the follow-up work, should not be shared with the board.”[13]
We agree with the UKGI view on privilege. Were such advice given, it might have sprung from a misunderstanding of the effects of Three Rivers which places limits on the privilege that attaches to communications from and to people who do not represent the client for the purpose of giving advice.[15] There can be little if any doubt that Parker, as Chairman of the Board, seeking advice on what the Company should properly do, is acting as an agent of the Company. Similarly, and given that Parker is the Company’s agent in this regard, it would be extraordinary if the Board was not seen as capable of receiving and acting on the advice as the client.[14])
It is,[16]
“well-established that it [Legal professional privilege] covers, …any communication (again, whether written or oral) passing on, considering or applying that advice internally (Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Limited (The Good Luck) [1992] 2 Lloyd's Rep 540 (“The Good Luck”) at pages 540-1 per Saville J, and USP Strategies Plc v London General Holdings Limited [2004] EWHC 373 (Ch) (“USP Strategies”) at [19(c)] per Mann J).”
Suggesting that communicating the advice to the Board would lead to privilege being abandoned is thus a very odd suggestion. If Parker has accurately recorded the advice from Post Office’s General Council then it is advice which was almost certainly ill- or under-considered and wrong or advice given for another motive. It is not in my view entirely uncommon for lawyers to assert legal professional privilege thoughtlessly or inappropriately, partly because, as Hickinbottom LJ discusses with approval in a recent leading case, legal advice privilege is hard,[17] and partly because it is convenient and easier to assert privilege over information one would like to remain secret than it is to think clearly about the matter.
Another reason for thinking the advice to keep the report away from the Board, if given and properly described, would have been ill-considered is that if the advice was to Parker and not the Company, then all the communications with the Review that did not come through Parker would have not been privileged following Three Rivers (No5).[18] Moreover, the General Counsel would not be in a position to advise on privilege in such circumstances: there would be what should have been a clear and obvious conflict of interest. The General Counsel acts for the Company and if Parker is not an agent of the Company for these purposes, she cannot advise him.
Privilege is a jealously guarded principle identified by the courts as essential to the rule of law. Here we get an example of how the principle’s inappropriate application can lead to real problems. It is part of the causal matrix leading to partial reporting of the Review. As too may be legal advice drawing the sting of Swift’s most serious findings. We do not know if such advice was given or by whom. We can, I think, have at least moderate confidence Parker’s letter had the benefit of some legal input. How much and of what import time will tell.
[1] ‘Note of a Meeting with Tim Parker, 26th January 2016’ <https://www.whatdotheyknow.com/request/823579/response/2099393/attach/html/4/Information%20for%20release%2013.pdf.html> accessed 18 September 2022.
[2] ‘Letter from Tim Parker to Barroness Neville-Rolfe, 4 March 2016’ <https://www.whatdotheyknow.com/request/823579/response/2099398/attach/html/3/Information%20for%20release%2015.pdf.html>.
[3] Although this seems unlikely, there is some discussion of follow-work having been carried out, Email 16 September 2020 entitled “POL Litigation/Governance – Confidential"
[4] https://www.ukgi.org.uk/careercs/tom-cooper-director/ and
https://corporate.postoffice.co.uk/en/governance/our-structure/our-board/
[5] ‘Cooper Email to Senior Civil Servants in UKGI/BEIS, “Re: Highly Confidential.POL Litigation/Governance” 27 August 2020’.
[6] Neville Rolfe email 10 March 2016, https://www.whatdotheyknow.com/request/823579/response/2099402/attach/html/3/Information%20for%20release%2016.pdf.html
[7]Mem from ShareEx to Neville-Rolhe, 9 March 2016 https://www.whatdotheyknow.com/request/823579/response/2099402/attach/html/4/Information%20for%20release%2017.pdf.html
[8] ‘Letter to from Sarah Munby (Permanent Secretary, BEIS) Tim Parker, “Post Office”, 7 October 2020’.
[9] ibid.
[10] ibid.
[11] There was no suggestion there as such a conflict here
[12] ‘Richard Watson Email to Senior Civil Servants in UKGI/BEIS, “Re: Highly Confidential. POL Litigation/Governance” 27 August 2020’.
[13] Email 16 September 2020 entitled “POL Litigation/Governance – Confidential"
[14] Moreover, Parker tells Government he has been advised against showing the Board the report but nonetheless, at a similar point in time it seems, provides Government with a detailed, if flawed, summary (a step more likely to vitiate privilege; although not, we think, actually likely to do so).
[15] Three Rivers Council v the Governor and Company of the Bank of England (no 5) [2002] EWHC 2730 (Comm).
[16] R (on the application of Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 [45].
[17] ibid 1.
[18] Three Rivers Council v the Governor and Company of the Bank of England (no 5) [2002] EWHC 2730 (Comm) (n 44).
Richard, on the privilege point, I agree with your observation in fn14 about the approach being contradictory. There is a broader impression of it being all a bit convenient as well. However, trying to reconstruct how the law was understood some 6+ years ago (i.e. early 2016), I can at least envisage how it might have been thought that there was a real risk of losing privilege, thanks to the uncertainty of the law at the time.
1) The starting point is that the Swift report does not appear to have been for the dominant purpose of either the Bates litigation or for 'actual or contemplated' criminal litigation. So I can envisage the adviser concluding that it's 'legal advice privilege' (LAP) territory i.e. not the (stronger) 'litigation privilege.'
2) The key decision is that of the CA of Three Rivers No. 5 (3R5) [2003] EWCA Civ 474, limiting LAP to communications for the purpose of legal advice between the lawyers and the 'client' - with the latter defined narrowly as the people tasked with instructing the lawyers. The CA did not envisage that communications to boards or senior executives would be an exception to this principle - indeed, they distinguish the narrow 'client' in that case (the BIU) from "any single officer however eminent he or she may be."
So, to sum up so far, I think it could have been envisaged that there was a real risk of losing privilege given that the Swift report's opening words identify the POL Chair as, in effect, 'the client' (in the 3R5 sense).
3R5 was widely criticised, but the HL refused leave to appeal in that case. And when a different point went to the HL in 3R6, it refused to overrule 3R5. This issue received huge attention in law firm briefings etc and would probably have been on the POL GC's radar.
3) The third point is this. There was a first instance decision of Mann J shortly after 3R5 in which he distinguished it by ruling that it only applied to information gathering for the purpose of legal advice, not to the circulation of legal advice. That's the USP Strategies case, [2004] EWHC 373 (Ch). In early 2016, however, I'm not aware of other authorities on that point, and it may well have been thought that there was a risk of it being rejected by the CA on the basis that the 3R5 applied to LAP generally, not just to a sub-category of LAP material. In the much later case of Jet 2 [2020] EWCA Civ 35, the CA approved Mann J's decision, but acknowledged at para 56(ii) that the law is 'out of line' because of the tension between Mann J's rule and the original rule laid down in 3R5. The CA in 2020 can live with that, however, because it clearly thinks that 3R5 was wrongly decided and should be overruled by the Supreme Court when the opportunity arises.
But the simple point for present purposes is that someone trying to figure this out in early 2016 might well have concluded that there was a real risk of the 3R5 rule being interpreted consistently i.e. treating advice the same as info-gathering for the purpose of advice.
One could certainly argue the toss on all the above. Since early 2016, the law has been clarified on point 3, and there have also been a series of CA decisions casting doubt on 3R5 more generally and distinguishing it where possible (though, to date, I believe it still stands, technically). One can also say with hindsight that the GC should have sought an independent opinion (e.g. from Swift's junior).
And one can also say the Chair should have accepted the risk anyway, or insisted on a second opinion.
So, lots of important points that can still be made in support of your critique.
But I think the legal position on privilege at the time was a little messier than perhaps the blogpost suggests.