BL-2022-002117 - [2025] EWHC 2794 (Ch)

On 13 December 2016, the anticipated meeting took place between Sir Peter and Ms Forton (SFA), Mr Mapp (3AAA) and Mr Cohen (Trilantic). There is no note of the meeting but it is clear that Sir Peter painted a bleak picture to Trilantic. Joe Cohen told Peter Marples after the meeting that Sir Peter had ‘spent most of the meeting trying to put off Mr Cohen from making the investment’, with words to the effect of ‘Why would you want to invest in this sector’. Mr Cohen left the meeting very concerned at the SFA’s lack of encouragement and support for institutional capital to enter the market. On 14 December 2016 he drafted an email to be sent to Sir Peter in which he pointed out the sector’s need for investment and he recorded the discouraging things he had been told by Sir Peter. In it Mr Cohen recorded Sir Peter as emphasising the uncertainty and risks, including that:

The draft email is the most contemporaneous record of what was said at the meeting and I accept it as a fair record, except that I accept Sir Peter’s evidence that he is sure he would not have said that there would be “no money”. The suggestion that there was a strong likelihood of substantially less money for such business, and a reference to the Non-Levy Cap of £5 million but not the expectation that additional funding would be available, were at odds with the comfort which Kirsty Evans had been providing to 3AAA and other providers that the SFA was looking to maintain existing volumes on non-levy new starts notwithstanding the cap in 2017-18 (although there were no guarantees) and that the £440 million figure allocated was driven by that purpose. Ms Evans’ comments were only in relation to the first year after the introduction of the levy, but Sir Peter’s comments were not. Nor were his comments about what money would be available to 3AAA, but what money would be available for the market. In respect of future years there was real uncertainty as to the funds which would be available for the SME market, and the SFA’s expectation was that the SME market would contract. Nevertheless it is clear, if only by Sir Peter not referring to the lack of anticipated disruption in the short term, that Sir Peter was painting a deliberately pessimistic scenario.

The draft email indicates that Mr Cohen thought the SFA was discouraging private capital from entering the market, and he was concerned that it would be difficult for Trilantic and others to risk investing in the sector in such circumstances. Mr Cohen was eventually dissuaded from sending the draft email to Sir Peter by Peter Marples.