Chair's further statement on monitoring of Post Office disclosure issues – January 2024

Introduction and background

1. On 15 September 2023 (following a hearing held 5 September 2023), I made a statement and issued directions in relation to disclosure issues.  The directions provided (amongst other things) that I would convene a hearing on disclosure issues on a date to be fixed in January 2024 and that the Inquiry would notify the persons required to provide witness statements for that hearing by 31 October 2023.

2. On 31 October 2023, the Inquiry sent Mr Chris Jackson, who had been appointed as the Recognised Legal Representative for Post Office Limited (“the Post Office”) on 1 September 2023, a request under Rule 9 of the Inquiry Rules 2006 (“Request 1”). Mr Jackson was asked to provide a witness statement which, broadly speaking, addressed:

a) the Post Office’s approach to its ongoing disclosure obligations, including its resourcing for ongoing and future disclosure work; and

b) how the Post Office would seek to prevent the disclosure of material duplicates and how it proposed to identify documents previously disclosed to the Inquiry so as to avoid their unnecessary further disclosure.

3. The Inquiry requested that Mr Jackson answer Request 1 in a witness statement filed by 1 December 2023. In the event that Mr Jackson did not consider himself the appropriate person to provide a witness statement on all the issues raised in Request 1, he was asked to provide the Inquiry with the contact details for the relevant individual(s) by 1 November 2023.

4. On 2 November 2023 Mr Jackson sent a letter to the Inquiry in which he raised what has become known as “the Microsoft Exchange/365 Issue”. For the sake of brevity, I do not propose to describe that issue in this statement. Those readers who wish to acquaint themselves with the detail of the issue are referred to the transcripts of the hearings on 7 November 2023 and 12 January 2024. It suffices that I say that the issue raised required urgent consideration as to whether further disclosure failures on the part of the Post Office were such that witnesses scheduled to give oral evidence to the Inquiry in the week commencing 6 November and following should be re-scheduled to later dates.

5. On 3 November 2023, members of the Inquiry legal team held a meeting with representatives of the Post Office in which the Microsoft Exchange/365 Issue was discussed.  The Inquiry team stressed to the Post Office representatives the need to provide more information on an urgent basis about the issue so that a decision could be made about whether the witnesses scheduled for the week commencing 6 November 2023 could be heard. 

6. Late in the evening of Friday 3 November 2023, the Post Office disclosed 421 documents said to relate to Messers Stephen Bradshaw and David Posnett who were due to give evidence, respectively, on 7 and 8 November 2023. In a letter received at 8.29pm on Monday 6 November 2023, the Post Office confirmed that additional searches (known as ‘party-based’ searches) had returned a ‘very significant volume’ of material apparently relating to Mr Bradshaw.  The letter acknowledged that the material had not yet been processed by the Post Office and that it was anticipated that there might be new material (i.e. material not previously provided to the Inquiry). 

7. At the hearing on 7 November 2023 (on which date Mr Bradshaw was still due to give evidence) Mr Beer KC invited me to hear oral submissions from leading Counsel for the Post Office, Ms Gallafent KC, as to whether it was appropriate to proceed with evidence from for Mr Bradshaw and other witnesses scheduled to give evidence in the days and weeks following.  Following her submissions, I expressed the preliminary view that I should postpone the evidence of Mr Bradshaw and Mr Posnett. No representative of any Core Participant objected to that course of action and, accordingly, I directed that Mr Bradshaw and Mr Posnett should give evidence later during the course of phase 4 of the Inquiry.[1]

8. I then heard submissions relating to the Microsoft Exchange/365 Issue from Mr Jacobs, on behalf of the Core Participants represented by Howe + Co, Mr Moloney KC on behalf of the Core Participants represented by Hudgell Solicitors, Ms Page, on behalf of the Core Participants represented by Hodge Jones & Allen, and Ms Dobbin on behalf of Mr Gareth Jenkins. Mr Beer KC replied to those submissions. 

9. Having considered the submissions made at the hearing on 7 November 2023 I published a statement dated 8 November 2023 and entitled Directions issued to Post Office on ‘Microsoft Exchange’ disclosure failings. The statement consisted of directions with which the Post Office was required to comply by midday 9 November 2023. 

10. On 17 November 2023 and in light of further developments in relation to the Microsoft Exchange/365 Issue, the Inquiry sent Mr Jackson a second request under Rule 9 of the Inquiry Rules (‘Request 2’). Broadly speaking, Request 2 sought a witness statement on the following issues, also by 1 December 2023:

a) The Post Office’s understanding of the Microsoft Exchange/365 Issue including when the issue was discovered, by whom and in what circumstances, the cause of the issue, where Mr Jackson considered responsibility for the issue lay and the way in which it was being, or was to be, resolved; and

b) A “structural review” relating to disclosure which was being undertaken by the Post Office.

11. On 1 December 2023, Mr Jackson provided a draft witness statement and exhibits in response to both Requests 1 and 2. On 19 December 2023, Mr Jackson provided a final, signed statement and, shortly thereafter, the statement was disclosed by the Inquiry to Core Participants. The exhibits accompanying Mr Jackson’s witness statement included the Post Office’s proposals as to how to address the disclosure of duplicates (as contained in two letters to the Inquiry dated 15 December 2023). 

12. On 9 January 2024 and further to matters outlined in Mr Jackson’s statement, Burges Salmon and Fieldfisher LLP sent two letters that contained the Post Office’s proposals as to how to remediate the Microsoft Exchange/365 issue in relation to Inquiry Phases 2, 3, 5 and 6. 

13. Some weeks previously, I had listed a further disclosure hearing for 12 January 2024. 

The hearing held on 12 January 2024 and related submissions

14. At the hearing Mr Jackson gave oral evidence before me. In advance of the hearing, I directed that the questioning of Mr Jackson should be undertaken by Leading Counsel to the Inquiry.

15. Mr Beer KC questioned Mr Jackson on the matters identified in the sub-paragraphs immediately below:

a) the approach of the Post Office to its ongoing disclosure obligations to the Inquiry.  This line of questioning was set against the concerns which I had expressed in the statement which I had issued following the Disclosure Hearing on 5 September 2023 and the fact that the Post Office had disclosed 11,400 documents, approximately, in the days and weeks following that hearing. In the questioning and answers there was an energetic exchange of views about what constituted reasonable and proportionate searches for relevant documents given the vast number of documents which undoubtedly exist and the fact that many of such documents would be regarded as relevant.

b) the Post Office’s resourcing for ongoing disclosure exercises.  Mr Jackson’s evidence, in short, was that the Post Office’s resources had not decreased since the commencement of the Inquiry; rather, they had materially increased (although those resources would ‘flex’ according to what was demanded at the relevant time).

c) the Post Office’s understanding of the Microsoft Exchange/365 Issue, when it was discovered and who was responsible for the late discovery of the issue.  When answering questions on this issue, Mr Jackson was not prepared to commit himself as to who might be responsible for the later discovery of the issue.  He did not think it professionally proper for him to attribute blame to any individuals.  I am not convinced that this stance is helpful to the Inquiry. Nonetheless, I accept, of course, the responsibility for attributing blame to any institution or individual falls upon me. 

d) the Post Office’s proposals to remediate the Microsoft Exchange/365 Issues in relation to Phases 2, 3, 5 and 6 of the Inquiry.

e) the Post Office’s proposals to prevent or substantially diminish late disclosure and, in addition, the disclosure of duplicate (or near duplicate) materials to the Inquiry.  Mr Jackson accepted that late disclosure and disclosure of duplicates to the Inquiry created a state of affairs which was ‘sub-optimal’.  Mr Jackson was asked to provide an assurance that the Post Office would ensure that the late disclosure and the disclosure of duplicates would not continue throughout Phases 5 and 6.  Mr Jackson gave an assurance that “we [Post Office’s representatives] will use every bit of our professional skill, and I know that Post Office is absolutely of this mind also, to reduce that [late disclosure and disclosure of duplicates] to the absolute minimum that we can”.  As noted above, the Post Office’s de-duplication proposals were outlined in detail in two letters exhibited to Mr Jackson’s statement.

f) the work that had been completed to date (and work to be done) on the Post Office’s structural review.

16. On 15 January 2024, the Inquiry received an unsolicited written submission entitled “Submission on making an Interim Report” from Mr Edward Henry KC and Ms Flora Page on behalf of the Core Participants represented by Hodge Jones & Allen (together with an email from an IT specialist). I am conscious, of course, that those represented by Hodge Jones & Allen, together with many, if not all other Core Participants who are former sub-postmasters, are deeply suspicious of the Post Office and firmly of the view that it is deliberately withholding relevant information from the Inquiry. Mr Henry KC and Ms Page (and others) have warned me on more than one occasion that I cannot trust the Post Office to give appropriate disclosure to the Inquiry.

17. I have made no secret of my view that there is a need for me to proceed with considerable caution before reaching any definitive conclusions about the reasons for disclosure failures within the Inquiry given the disclosure failures in the criminal cases brought by the Post Office which are beyond dispute and the findings made about disclosure failures in the Group Litigation.      

18. Against the background set out above and notwithstanding that the same were unsolicited I feel constrained to deal shortly with the written submissions made by Mr Henry KC and Ms Page.

19. They contend that Mr Jackson’s written and oral evidence establishes the following:

a) The Post Office made misrepresentations about email servers in their Electronic Documents Questionnaire provided in the GLO, carried those through to their Disclosure Management Document prepared in the relevant Court of Appeal proceedings and it has now carried them through to this Inquiry.

b) Despite the previous disclosure hearings and my statements upon them, the Post Office has been “learning the wrong lessons, seeking to apply a wrong-headed approach to what is reasonable for it to undertake by way of disclosure”.

c) The processes of the Post Office failed to discover and disclose Appendix 6 (the Identification Codes document) and if a member of the public had not made the relevant Freedom of Information Act request, that document would not have been discovered and disclosed.

d) "When the disclosure exercise for the Inquiry began, 3 years ago, no map of the Post Office’s email servers or electronic domain was prepared, such that it had to be prepared for the first time at Burges Salmon’s instigation”.

20. Mr Henry KC and Ms Page submit, too, that the consequence of these failures is that disclosure of documents relating to Phases 2 and 3 of the Inquiry will need to be revisited and that there is a risk that that disclosure of documents relating to Phase 4 remains outstanding.

21. Additionally, they take issue with Mr Jackson’s view that ‘the principle of reasonableness in relation to disclosure to the Inquiry – even if operating at the more stringent end of the spectrum – does not, and cannot, require POL to leave every stone unturned.  Such a standard is impossible for POL to comply with’.  Rather, they submit that the Post Office ‘is not entitled to the benefit of the doubt’.  They state that Mr Jackson’s statement was critiqued by an IT specialist who claimed certain of the processes were questionable and certain passages inaccurate.  These criticisms were later provided to the Inquiry by email. 

22. In the light of their criticisms of the Post Office Mr Henry KC and Ms Page contend that I should deliver an interim report pursuant to section 25 of the Inquiries Act 2005 which recommends that ‘the Government use its role as sole shareholder of Post Office to take the firm action necessary to ensure that the remainder of the Inquiry is properly assisted by the Post Office’. 

23. Notwithstanding the criticisms levelled against the Post Office’s record relating to disclosure (many of which, as I have said repeatedly, are justified) I do not consider it necessary to deliver an interim report. In my Statement of 5 September 2023, I stated explicitly that there was a need for close monitoring of the disclosure process for the remainder of the Inquiry, especially as it relates to disclosure by the Post Office.  I observed that this was best done by me convening disclosure hearings at periodic intervals until I deliver my Report to the Minister. I propose to continue with that course of action by convening a disclosure hearing at an appropriate time in the coming months. In my view, there is at least a reasonable prospect of the Post Office complying with its disclosure duties during the remainder of the Inquiry by reason of close monitoring by the Inquiry and I do not consider a recommendation as formulated above or any variant upon the same would materially enhance the prospect of appropriate disclosure. I say that notwithstanding that I acknowledge that late disclosure continues to occur even now. In any event, HM Government collectively and UK Government Investments (“UKGI”) know full well of the disclosure difficulties which have arisen. I cannot believe that a recommendation from me is necessary to cause HM Government and UKGI to act appropriately so as to ensure, so far as they can, that the Post Office gives appropriate disclosure especially since HM Government and UKGI will be grappling with their own disclosure obligations over the coming weeks.  

24. I should also record that I was impressed by Mr Jackson’s grasp of the scale of the disclosure exercise which must be undertaken on behalf of the Post Office and his understanding of the processes necessary to achieve appropriate disclosure. I agree with the view that the Post Office must take reasonable and proportionate steps to discover relevant documents and that, thereafter, all relevant documents so discovered must be disclosed. However, a balance has to be struck between continuing searches for relevant documents and the imperative that this Inquiry concludes its evidence gathering during the course of this year. It should not be forgotten that the Post Office has already disclosed thousands of documents and that a substantial number thereof, on any view, make for embarrassing reading for the Post Office as an institution and many individuals which it employed. I have no reason to doubt, at the moment, that the Post Office and HM Government and UKGI will continue to assist the Inquiry by disclosing relevant material however embarrassing for the institutions and employees and officials thereof that turns out to be.

25. Since the hearing on 12 January 2024 there have been communications between lawyers acting for the Post Office and the Inquiry with a view to managing how best to remedy the disclosure failures of the recent past and the disclosure process going forward. I have authorised a meeting between lawyers for the Post Office and members of my legal team at which disclosure will be discussed. This meeting will take place in the coming days. I will ensure that proper minutes of that meeting are taken, agreed between the Post Office and the Inquiry and then made available to Core Participants.

26. By Friday 2 February 2024 I expect to be in a position to announce when the oral evidence for Phases 5 and 6 of this Inquiry will be heard. I would like to stress as strongly as I can, however, that the Post Office’s prompt discharge of its disclosure obligations is critical and central to the commencement of the next phases of the Inquiry and the efficient and effective conduct of the remaining phase thereafter.

Further directions

27. In light of the matters above I make the following directions.

A: A meeting shall be held between legal representatives of the Inquiry and the Post Office to discuss disclosure issues as soon as is reasonably practicable after the date hereof and in any event well before the commencement of oral hearings in relation to Phases 5 and 6 of the Inquiry. The meeting will be minuted and the minutes shall be agreed. Thereafter the same shall be disclosed to Core Participants. 

B: A further disclosure hearing shall be convened either before or during the course of Phases 5 and 6 of the Inquiry. 

 

 

 

 

 

Sir Wyn Williams

31 January 2024