The normal silencing and softening of litigation?

Post two in this mini-series.

A large part of the evidence Andrew Parsons focuses on the evidence that passed Mr Parsons’ desk when he advised the Post Office on its mediation scheme and the Bates litigation. In particular, why, whether, and how problems are disclosed to the Post Office’s opponents and the CCRC.

First up is the crucial Rose report. This report, in 2013, recorded potential problems with how the Post Office/Fujitsu had been “using ARQ logs as evidence in court,” which had the potential to mean, “we would not be giving a true picture” when giving such evidence.

It also records that, “I know you are aware of all the Horizon integrity issues”. ‘You’ is Gareth Jenkins, to whom the report is addressed. 

Crucially though, when this report was disclosed to convicted sub-postmasters, Mr Jenkins’ name was redacted for data protection reasons. They could not see to who Helen Rose thought was aware of all the Horizon integrity issues.

It was a crucial decision because it prevented anyone reading the Rose report from identifying Jenkins, who had, of course, given written ‘expert’ [yep, scare quotes] evidence in various cases (and, in Seema Misra’s case, oral evidence).

Mr Parsons was asked to advise when the redaction was queried in the context of the mediation. At the time he gave his view in an email as:

“…I don’t understand Howe+Co’s complaint that there is substantial missing material. ….[A]n unredacted version of the report as (i) this is not necessary and (ii) we do owe some duty of privacy to the individuals involved. Instead, it is recommended that [the Post Office] maintains its current position and simply explains the redactions to the report.”

To the Inquiry, he offers a couple of reasons for not picking this up at the time. One is that it was a matter dealt with by the criminal lawyers, Cartwright King, and he was a mere conduit for their decision. The second is that he would have been concentrating on the ARQ point, not the Jenkins point, as that was more germane to his concern about transactional reversals (remote access), which he was working on at the time. This would help explain how he could say at the time that he did not understand Howe and Co’s complaint.

He perhaps ought to have understood their complaint because that same email of 8^th April 2014 contains this paragraph.

Just for background information, the material part of the Helen Rose report has nothing to do with her comments about reversal data. …The concern was not with the data's accuracy but that the presentation of the data could be misleading if its limitation were not fully understood. Putting this issue aside, the real (and confidential) reason that the report was disclosed was because Helen's comment at the bottom of page 3 suggests that it was widely known that there were problems with Horizon. This statement (regardless of whether it is correct) could have been used to attack Gareth Jenkin's credibility as POL's Horizon expert as he had previously stated that there were no problems with Horizon.

Nevertheless, in another email dated 17 June 2014, Mr Parsons points out that Howe and Co are, “starting to make the link between (1) the fact that the [Helen Rose] Report makes it clear that [Gareth Jenkins] knew of issues with Horizon and (2) the fact that [Gareth Jenkins] never mentioned these issues in his prosecution evidence (see paragraph 53 …).” And: “This line of inquiry draws into question the credibility of [Gareth Jenkins’] evidence.” He recommends, “minimising or ignoring entirely the [Helen Rose] Report when responding to CQRs.”

Another example comes when asked to review letters refunding shortfall losses to some SPMs. Here he advises, “disclosing any form of an error in Horizon could become problematic if it ends up in the hands of the [JFSA].” And he agrees he tones down the letters:“I think it’s a fairly ordinary thing for lawyers to do to soften wording in letters.”

He also advises against giving an apology,

“in apologising we are admitting some degree of culpability. I think we should maintain a more cold, procedural approach to correcting what is effectively an accounting irregularity.”

He concedes later that the letter contained some admission of culpability. This rather undermines his reason for not giving an apology and is perhaps an interesting sign of how the lawyerly treatment of apologies is not always consistent with the facts and that advice not to give them may not be well-founded or in the client’s interests.

The toning down he engages in down includes dealing with, “a dangerous admission”, which suggests, “a cornerstone principle” of accounting integrity has been violated. “Although this has happened and is completely explainable, I don’t think we ever want to expressly document this.” He is asked:

Mr Blake: Was a concern that you had that, if you documented it, it would then become disclosable in other matters?

Andrew Parsons: I don’t believe I gave it that level of thought.

Mr Parsons also said it would be possible for them to work out the integrity problem but accepts he was making it less clear. And he rejects the suggestion that other parts of the letter are intentionally ambiguous.

It is suggested that letters to another set of sub-postmasters give them the impression they were the only ones affected by the discrepancy. He concedes, “You might get that impression,” but doesn’t believe that was done intentionally.

A third example, and one central to the shredding allegations in 2013, is derived from the minutes of the Horizon calls set up to manage disclosure in the aftermath of the Clarke advice.

A minute of one of these meetings attributes to Andy Parsons advice on, “the need to limit public debate on the Horizon issue as this may have a detrimental impact on future litigation.” And then, with regard to disclosure, “Spoke about emails, written comms, etc … If it’s produced it’s then available for disclosure, if it’s not then technically it isn’t.”

He is asked, “Is that accurate?”

Andrew Parsons: I don’t believe this minute is a verbatim record of what was said and so I suspect some of the context or wider language used has been lost somewhere. I don’t think it would be unsurprising for me to have given Post Office advice on what its civil disclosure duties might be, and that’s what’s being given there.

Mr Blake: Do you see the civil disclosure duty to be, if it isn’t produced, it’s then available for disclosure; if it’s not, then technically it isn’t?

Andrew Parsons: This is talking about the fact that in – civil rules of disclosure are attached to documents, which is information that’s recorded.

Mr Blake: Can you see that it might be interpreted as advice that people shouldn’t be writing things down?

Andrew Parsons: No.

Mr Blake: Martin Smith has given evidence to this Inquiry and he said that you also spoke at the beginning of the meeting, after Rob King, and you raised concerns about difficulties which could arise following circulation of minutes. Do you recall advising of concerns about the circulation of minutes?

Andrew Parsons: I don’t recall advising on minutes at all in these meetings. These calls were set up by the criminal lawyers and they were driving the process.

As close followers of the story will recall, his quote about being produced versus being not minuted pops up in Simon Clarke’s shredding advice. It was part of the justification offered for a decision by John Scott (who in turn blames then GC Susan Crichton) not to minute the calls and to call in written notes of the meeting.

Parsons tries to downplay the suggestion that they have somehow relied on his advice on the basis that “the wording is different between the two documents…. [and] To be clear, I never advised Post Office that they should not minute those calls….”

Mr Blake: There is a body of evidence that the Inquiry has seen that suggests that your advice to the Post Office was not to keep a paper trail?

Andrew Parsons: I disagree. I did not advise Post Office against minuting those meetings.

Mr Blake: There is some evidence that you advised caution in minute taking; do you agree with that?

Andrew Parsons: In the context of this, I did not advise Post Office not to minute those calls.

Mr Blake: Do you think that those who were present at meetings with you could have got the impression, from the advice that you were giving at those meetings, that they should be careful about writing things down?

Andrew Parsons: I think they would have got the impression that they would be subject to disclosure duties, which is what I’d advised them. Had I said something to the effect that could have been interpreted to mean that they shouldn’t be taking minutes, I would have expected Martin Smith, from Cartwright King, who was on those calls, to have said something, and nothing was said.

Mr Blake: That can come down. Thank you. Do you think that you gave advice to the Post Office that they shouldn’t write things down because they would be disclosable?

Andrew Parsons: No.

Having denied he did it in that context, he gets taken to another context where it is clear he did just that. It relates to insurance.

The PO Board, concerned in part at the risk of being sued personally, decided they needed to alert their insurers. Parsons advises on the draft notification:

“The risk of notification is that it would look bad for [the Post Office] if it ever became public knowledge that [the Post Office] that notified its insurer.

“To reduce this risk, it is recommended that the rather than sending a formal written notification, [the Post Office] speaks to Chartis (renamed AIG) and verbally notifies them so as not to leave a paper trail. In our experience, AIG may be prepared to accept a verbal notification.

“[The Post Office] should make expressly clear to AIG that the notification is subject to litigation privilege (this should help protect disclosure under [the Freedom of Information Act]).”

The email goes on to set out the reasons why they can claim litigation privilege even though, as I read it, there is some likelihood it does not apply:

However, litigation privilege only applies where "litigation" is actually contemplated, not where there is just the risk of a hypothetical claim. In the context of claims against a director, we have arguably not yet reached the stage of contemplated litigation, rather we are just dealing in hypotheticals.

Nevertheless, we would rely on Alan Bates' comment that he is aware of SPMRs lining up claims against POL's directors as evidence of contemplated litigation.

You cannot claim litigation privilege, I do not think, just based on hypotheticals, but perhaps he is suggesting Bates’ claims render the prospect imminent than hypothetical.

Although his initial advice is for PO to notify their insurers verbally, a written notification to the insurers is drafted.

He is taken to the notice which is written as coming from his firm. He agrees it doesn’t give any advice but is marked legally privileged in various ways. He rejects the idea that it was designed to look like legal advice asserting that there is an arguable claim for litigation privilege. Perhaps mindful of his hypotheticals remark, he agrees that such a claim could be challenged, but claims there was a reasonable argument that it was subject to litigation privilege (read this if interested in some of the potential complexities of the argument).

It is suggested to him that the content of the notice itself underplays concerns about Gareth Jenkins: It says he “may have failed to disclose certain historic problems on the Horizon system,” and his failure to disclose “may have undermined a prosecution case.” We are told an earlier version of the note contained “quite a lot more” about Gareth Jenkins and did not refer to a single case.

As regards the single case point, by this stage, hundreds of cases were being reviewed by Cartwright King, and mediations were brewing.

Parsons says he doesn’t recall the change, accepts with hindsight the suggestion that it was, in Julian Blake’s words “crying out for more detail”, but does not remember considering that at the time:

Mr Blake: Were you concerned when drafting this about the potential disclosability of the information that’s provided and, therefore, seeking to minimise those problems?

Andrew Parsons: I was concerned about the disclosability of the document, which is why we considered it to be a privileged document. In terms of its content, though, the version I produced was candid about the issues, I felt.

In another document he drafted briefing the CEO on the criminal review process, he defends himself against the absence of any discussion of the Gareth Jenkins issue on the basis that he understood, “everybody had been briefed on the Gareth Jenkins issue,” and he told them to run the briefing past Jarnail Singh and Cartwright King.

There is some interesting collateral support for what it was Vennells understood from that briefing at the time from an email to Perkins:

“My concern re Sparrow currently is our obligations of disclosure re an unsafe witness (the representative from Fujitsu made statements about no bugs, which later could be seen to have been undermined by the [Second Sight] Report). We do not think it is material but it could be high profile. Martin E is briefed if you want more detail. This is just in case.”

He’s asked if this misunderstanding might be related to his advice not to put damaging things in writing. He says he wasn’t responsible for any of the briefing of the CEO on this:

Mr Blake: Could the obsession with covering things, blanketing things, in legal professional privilege have been responsible for that lack of understanding at Board level?

Andrew Parsons: Not as far as I was aware.

As we have already begun to see, Parsons is taken repeatedly to the apparent centrality of privilege claims to much of the advice and behaviour. As noted above, the insurance notification was drafted to enable an arguable, but rather speculative, assertion of litigation privilege.

He is taken to a Project Sparrow presentation that describes privilege as “vital to success”.

He tells the Inquiry:

keeping that type of advice confidential is of paramount importance, and I think that is the sort of advice that any lawyer would give to a client in those circumstances.

And he is probably right about that but it is the shield provided to facts, not advice, or as a pre-emptor of fact generation, that is really what is important to the story.

One such example was advice not to conduct a lessons learned review to examine how PO, or in the Board’s mind, Susan Crichton, had mishandled Second Sight’s interim report.

Parsons advises not to do it because the review would not be privileged; it may reveal concerns about Horizon and accounting that would be disclosable under criminal rules; and any recommendations for change could be seen as highlighting historic problems. It is one of a series of examples of how thinking about privilege for tactical advantage, legitimate or otherwise, seems to poison decision-making.

There is a further important example relates to remote access. He is approached for advice on what to do when a sub-postmaster, unconnected it seems to any litigation/mediation, is subject to a shortfall which needs correcting remotely.

“I think we (the legal team) need to take charge of this process. Whatever documents are produced are likely to be disclosable and I would like as far as possible for this to be covered by privilege or have controlled their content.

…

“I understand that this is going to cause operational problems and risks in this branch, but if not handled properly this could be disastrous for the Group Litigation.”

Doesn’t this take us back to where we began today at the very beginning: that your advice to the Post Office is “Let’s blanket this in privilege”? This is a technical issue with a branch, not a claimant’s branch, a random branch that is affected that needs a correction and your advice is, “Let’s cover this in privilege because it could be disastrous for the Group Litigation”. Just as, in the very early years, you were advising in respect of, for example, the notification to the insurer, “Let’s not write that down; let’s deal with it, cover it in privilege as far as we can”?

Andrew Parsons: I think in the context here and as I’ve said a number of times, I think all of these decisions are context specific. We are in the middle of a large piece of litigation, an issue has arisen that is related to one of the key issues in that litigation. I think it’s appropriate for any organisation to avail itself of legal privilege to investigate that issue. To be clear, that is not to say the issue wouldn’t be brought to light. I think it’s possible for an organisation to investigate something under privilege and then to make decisions later, when it has the full facts, as to how that then gets disclosed through the litigation process.

Mr Blake: But here we have, “Hold off making that correction to a branch, unrelated branch, because of the impact on the Group Litigation”. Do you think that was an appropriate approach to take?

Andrew Parsons: I do think that was an appropriate approach to take.

Whether it is or is not an appropriate approach is a really interesting and important question.

Without the lawyer’s intervention, it seems the correction would have been made and then should have been disclosed. Is it legitimate to divert that process into privileged territory for tactical advantage (or disaster avoidance) in the litigation? If it is proper, Parsons is right; if it is not proper it is, I think, professional misconduct and potentially criminal.

I should make plain here, and not simply out of fairness to Mr Parsons, I am absolutely not suggesting an answer either way. This might be viewed as simply a wicked problem created by legal privilege rights or it may be an example of an (arguably) normal, but improper, practice.

As an aside, there is an extended and very interesting section of the evidence where Mr Parsons is taken through how closely he understands the significance of remote access and how keen the business is not to disclose their own failings having asserted false positions on what was possible, and known, about remote access. The kindest thing that one case say about this is that their minds were rather clouded by their own beliefs that remote access was not used in practice and so was unlikely to explain the levels of problem being alleged by SPMs.

Tony Robinson (KC) suggested at the time of the defence in Bates being drafted the Post Office had no excuse for not researching the problem properly before they said remote alteration is not possible. Parsons is asked who he thinks bears responsibility for that failure and there is a rare acceptance of some blame here:

My view is it primarily sat with Fujitsu. I think there may – there’s probably some underlying problem with Post Office not understanding the Horizon system in enough detail across its organisation and I also, to some degree, accept an accountability on my part, because I feel I should have pushed harder on this issue during the scheme.