Uncertain materials

Bonusgate? Just imagine my surprise at the latest developments...

Part of the PO Senior Managers Schtick before the Business Select Committee on Tuesday was that we accept the sins of the past, and we have changed.

Most of that hearing focused on Bonusgate. The payment of bonuses in respect of a bonus metric that dealt with cooperation with the Statutory Inquiry. The Bonus was paid out on a metric that had mainly not been, and could not be, met because RemCo (its remuneration committee) had the discretion to award the metric in the spirit that it was intended: anything goes that the Post office had gone above and beyond/culture change necessary to hit the [notional, reimagined] metric of cooperation with the Inquiry. RemCo decided it had.

It’s worth returning to what the Post Office said about the problem in their letter to the Inquiry. When I say their letter, I mean the letter written to the Inquiry from their solicitors Herbert Smith Freehills. You may recall Herbies were canned recently for not providing value for money and because of the risk, they might have to give evidence in the later stages of the Inquiry. A problem foreseeable many, many moons ago.

The germane section of the letter is a response to this question from the Inquiry:

Question 2: Explain the basis upon which the assertions were made that Sir Wyn Williams (“and team”) has confirmed that (a) the Post Office has supplied all required evidence and information to the Inquiry on time; and / or (b) that the Post Office’s performance supported and enabled the Inquiry to finish in line with expectations; and

Question 3. Provide us with any supporting material evidencing such confirmation and explanation

Here is PO’s (on HSF letterhead) response:

POL understands that certain materials were reviewed by the then Group Chief People Officer, who relied on them in reporting to the Remuneration Committee that the target had been achieved.

The evidence considered by the author of the report, consisted of:

(a) Sir Wyn Williams' letters to: (i) Mr Read and Mr Salter of 16 November 2020; (ii) Mr Salter of 10 May 2021; and (iii) Mr Salter of 19 May 2021 (copies of which will be provided); and

(b) Sir Wyn Williams' announcement of 16 November 2021 in relation to privilege.

POL believes the author of the report also took into account other information relating to POL's cooperation with the Inquiry. POL is trying to identify the documents she relied on. In the time available before writing, POL has not been able to locate this material. However, we will revert to the Inquiry on this point further if and when POL locates the material.

Although the correspondence relied on contained expressions of Sir Wyn’s appreciation for the assistance and co-operation that POL had provided, POL recognises that the expressions did not obviate the requirement to obtain the confirmation from Sir Wyn in view of the metric. Indeed, POL accepts that the metric as drafted (referring as it did the completion of the Inquiry) could not have been achieved by February 2022 as by that date the hearings were only just starting and accepts that the wording of the target should have been adjusted.

POL apologises for the fact that, by recording the metric as drafted as having been "Achieved", POL thereby implied that Sir Wyn Williams had provided his confirmation that (a) the Post Office has supplied all required evidence and information to the Inquiry on time; and / or (b) that the Post Office’s performance supported and enabled the Inquiry to finish in line with expectations. POL intends to issue a public statement correcting the position. That statement will be included on the Post Office website and we will inform you when that has been done. Were the Inquiry to wish to see the wording of that statement before it is issued POL would be happy to share that with the Inquiry.

POL is reviewing how the circumstances in this letter came to occur and is taking steps to ensure that in future its approach to co-operation with the Inquiry is stated accurately in its public statements.

We now have a bit more clarity on what has happened. The evidence from Tom Cooper (former shareholder director at the Post Office) and Lisa Harrington (former chair of RemCo) to the Business Select Committee was that a crucial report was used to validate the idea that the Inquiry related metric had been met (in spirit).

Go on. Three guesses. Who do you think they said wrote the document?

1.       The document that Herbert Smith did not mention in their letter, and did not disclose (at that point in any event, unless Mr Salter is a solicitor at HSF and not a director at the Post Office).

2.       The document which is presumably a significant part of “certain materials” about which Herbert Smith said, on their client’s behalf you understand, the PO “took into account,” and

3.       The document which the Post Office is “trying to identify” but struggling to find, recall, or describe.

Well identify it they did, if Cooper and Harrington are right. Because the document, or one of them,  was, according to them, written by Herbert Smith Freehills. Solicitors who are, as Jackson LJ opined in Wingate and Evans, obliged to be, “even more scrupulous about accuracy than a member of the general public in daily discourse.”

Funny who certain language suddenly looks so uncertain. Unfunny, from where I am sitting, how often that uncertain certainty drops from a lawyer’s lips.

I may report back as further details emerge.