Putting privilege at the centre of things

A second post on Anthony de Garr Robinson KC's evidence. Someone want to put the Swift review in a box. We don't really know yet who that was, but Mr Robinson is asked to help. What happens?

I have misled you. Before I turn to the real temperature-raising exchanges of Mr Robinson’s evidence I want to deal with one other important element.

After the problems discussed in the last post, the Inquiry hearing turned to the way in which the Swift Review work was brought within the litigation, and some of it stopped or changed in nature. By way of a quick reminder, the Swift Review was work commissioned by Tim Parker, the incoming Chairman, at the suggestion of the PO Minister, to get on top of the potential problems with miscarriages of justice that were being alleged as the mediation scheme collapsed. Jonathan Swift KC’s report recommended a number of matters be looked at in greater detail, including further investigation of remote access.

It was something brought about by Andy Parsons (the Bond Dickinson solicitor leading on the Group litigation) who raises, “Tim Parker’s , “commitment to Baroness Neville-Rolfe (Minister at [the Department of Business, Innovation and Skills]) to follow through on the [Swift] recommendations unless he is presented with a persuasive case not to do so.”

“[The Post Office] are therefore looking to us (and quite frankly you with your magic QC seal!) to give them some reasons for why Tim completing the [Swift] recommendations would be ill- advised.

It is an interesting, cart-before-the-horse approach, not least given that Robinson had advised them, at his first meeting with the Post Office, that they would need to be honest about remote access.

Parsons has a number of ideas as to why doing the Swift work as envisaged would be ill-advised. The issues of remote access, investigating the suspense account, and reviewing the prosecutions for theft and false accounting, which the Swift follow-up work was supposed to be delivering, in Parsons's eyes, “plainly overlap with issues in the litigation.” And so would involve Swift work being duplicated, on a “different timetable to Tim [Parker, the Chairman]” and done more robustly in the litigation than would be the case under the Swift review work; the Swift work poses a “greater risk that this work is not privileged” (because they are not being conducted for the purposes of litigation, where litigation privilege would be likely to attach); and disclosure to the Minister would pose both privilege and freedom of Information risks.

“If we can give [Post Office] a piece of advice that says that [Parker] should shop any further work, [Parker] would then feel empowered to say to BIS that, on the basis of legal advice, he is ceasing his review. I’m conscious this feels somewhat unpleasant in that we are being asked to provide political cover for [Tim Parker]. However, putting aside the political background, shutting down [Tim Parker’s] review is, in my view, still the right thing to do.”

Mr Robinson agrees with Beer’s suggestion that privilege arguments mean that if such investigations produce negative results “it’s safe because they will be protected from privilege and we needn’t reveal them”:

Anthony Robinson: That’s what privilege means. That’s always the position with privilege. Privilege is quite a fundamental principle that protects the interests of parties in civil litigation and that is the effect of it, yes.

His answer begins with a bit of a misdirection to my mind. Litigation and legal advice privilege is granted so people can be properly advised, and can properly prepare for litigation, not so they can conceal unhelpful facts or render them safe. That privilege operates to allow the non-disclosure of unhelpful evidence is a corollary of, but not the meaning of, privilege. And here they are not just talking about preparing for litigation but diverting a separate investigation that is already underway.

It is suggested to Mr Robinson that the client’s interests extend beyond the mere protection of information. He accepts he was just looking at the client’s interest narrowly from the perspective of a civil litigator and accepts if there are “other perspectives, then other advice needs to be taken.” He has no idea if other perspectives were offered to the Company. It seems not to concern him.

Mr Beer: Would you agree that it’s an obvious point that what’s good for the Post Office in the litigation is not necessarily good for the Post Office or indeed thousands of subpostmasters, or the public, out in the real world?

Anthony Robinson: Yes, I suppose that’s probably right, yes.

Probably.

Beer also asks him if putting privilege at the centre of this is perhaps turning the world upside-down? Robinson dead-bats the question: his job was to preserve privilege in that claim. And, although he distances himself from any notion of providing political cover for Parker, Robinson provides them with legal cover.

The privilege argument, he tells a no doubt delighted Parsons, is “overriding”. The QC’s seal was applied.

Interestingly he seems to actively consider the risk that they might bring the Swift work into the litigation and then advise Post Office not to do it. What happens then, he asks? Does the Chairman have to have the work done anyway? Parsons says they will just have to accept the risk the litigation may mean it is not done (should they advise, for instance, not to do it on cost-benefit grounds).

Robinson indicates his view is that it would be very helpful for the litigation to have the work done.

But it is suggested to him that from the correspondence, it can be seen that Parsons was seeing the advice as shutting down the Swift work quite straightforwardly:

Anthony Robinson: Well, I suppose, yes, I see what you mean. The first sentence I completely – I would have agreed with. The second sentence, “This alone strikes me as a good enough reason to shut TP down”, that does sounding a bit political I suppose, yes, which I wasn’t – from this email, it’s clear I wasn’t interested in.

Mr Beer: I mean, given the significance of the recommendations and their object being potentially to uncover miscarriages of justice, shouldn’t they have been carried out, in any event, as quickly and as transparently as possible?

Anthony Robinson: That would be a matter – I’m sorry to look as if I’m trying to kind of deflect any kind of blame but that would be a matter for criminal lawyers, not something that was within my – within the scope of my instruction.

So it’s someone else’s problem. It is, to use Chris Aujard’s phrase from another session, not his pot. He does not need to think about it.

Mr Parsons proposes divvying up matters for investigation between Deloittes, WBD and Brian Altman QC, bringing further investigation of remote access within WBD, to save money it is said. They are now able to say that the basis for doing so is “strong advice” from its “external legal advisers” to bring the Swift related work within litigation privilege.

At the conference where this is discussed, Mr Robinson’s advice is reported as saying the Swift related work should cease and that he recommended only four of the steps in the original review be undertaken. He says to the Inquiry that he doubts he would have said that as it would not have made sense to bring work that you are not going to do within the litigation privilege umbrella.

Mr Beer: This records that, of the eight recommendations, you advised that only four of them should be taken forwards, and that they should be taken forwards in the context of, or within the aegis of, the Group Litigation?

Anthony Robinson: Yes, I see that said. As I say in my witness statement, I don’t quite understand it. I mean, the other four, to the extent that they hadn’t been done already, I don’t understand why I would say, in order to retain litigation privilege, don’t do this work, because the litigation doesn’t need it. I don’t understand what my thinking – what thinking would have resulted in my saying that.

So I’m – I find it difficult to understand – to reconcile what’s said here with my understanding of the 8 June email.

Mr Beer: Then, even in relation to these four, it’s put to the Post Office that you advised that they should be taken forward “to the extent they were required to advance the Post Office’s case”.

Anthony Robinson: Yeah, as –

Mr Beer: That puts a spin on it, doesn’t it?

Anthony Robinson: Possibly but, as I say, I can’t remember what was in the – what was said in this meeting, but I – I do know what Jane MacLeod said in the email you took me to previously, which has a different implication.

Mr Beer: Then another caveat or rider that, even those four, to the advance they are required advance the Post Office case, should be done as appropriately adapted to meet the needs of the litigation. There’s quite a lot of watering down going on here, isn’t there?

Anthony Robinson: I suppose you could say that. I wish I could remember what was said on 9 June. As I say, I find it difficult to – on the basis of what I understand from the emails that I’ve seen –

Mr Beer: Doesn’t really match this, does it?

Anthony Robinson: – I find it difficult to understand how I would have ended up saying those things.

Mr Beer: Within a day?

Anthony Robinson: Yes.

Mr Beer: This is a different presentation than the exchange of views in your email exchange of the 8 June, isn’t it?

Anthony Robinson: I – it seems to me that what I’m saying in those emails, the 8 June emails, are rather – a bit different, rather different, from what’s being said in this email, and I’m not sure –

Mr Beer: It’s a letter, sorry.

Anthony Robinson: – in this letter, and I’m not sure why. I mean, I make some suggestions in my witness statements as to why that might be. It may be that this isn’t a full account of what I said. It may be that the other four had been done already. I just don’t know.

Mr Beer: The letter concludes:

“This work should however be instructed and overseen exclusively by Post Office’s Legal Team (or by others instructed by Post Office’s Legal Team) so as to maximise the prospect of assert interesting privilege over this work and protect against the risk that material related to these actions could be disclosed to the claimants in the Group Action, undermining the Post Office’s prospects of success and/or negotiating position.”

I think that is consistent with the email exchange, isn’t it?

Anthony Robinson: Yes, that’s consistent with the principle of litigation privilege.

Mr Beer: Thank you.

I am not going to analyse further Mr Robinson’s handling of this matter. It is an example of how advantage appears to have been taken of legal privilege by the Post Office, by those advising Mr Parker more directly perhaps, on what he should do on Swift, and in which Mr Robinson has played a rather narrow, and some might suggest, rather unreflective role.

I do not suggest wrongdoing by him, although I do think it worth observing that I think one should not advise the diversion of an investigation in relation to other matters as being simply or narrowly a matter of protecting privilege. As Beer observes, it really is looking at matters the wrong way round. Context is vitally important. Had the decision to divert the Swift review been taken knowingly or recklessly for improper reasons, aided by an otherwise proper argument of legal privilege, then its narrowness would not save that advice.

It is also worth noting that Sam Stein KC, when examining Mr Robinson towards the end of the day, extracted a couple of important points. When advising on privilege Mr Robinson did not turn his mind to the question of whether the information he was advising had the necessary qualities to be privileged and, in particular, he did not consider whether the iniquity exception might apply. A sensible question given the Swift review related to miscarriages of justice with some suggestion of impropriety.

It was not a surprising admission, but it is not an unimportant one. An example of legal privilege deployed as a routine expedient rather than a professionally applied fundamental right. There are other far more serious examples, including arguably the role of others lawyers in this example, and it is such a recurring theme in the evidence, that I wonder what the Inquiry is thinking of saying in general about it.