UT (Tax & Chancery) UT-2023-000064 - [2024] UKUT 00394 (TCC)

This ground relates to the amendment at paragraph 162B the text of which is as follows:

“162B The Authority has sought an explanation as to why Mr Staley’s Reply was misleading, and none has been provided:

i.

Correspondence sent by the Authority on 9 May 2024 noted that “in August 2023 Mr Staley approved his Reply in these proceedings containing numerous assertions that he had had no contact with Mr Epstein since joining Barclays in December 2015. He did so in circumstances where he must have known that such assertions were inaccurate, having provided his Deposition in the US Proceedings during which he was questioned about the emails set out...above (and other matters) only two months previously.”

ii.

Mr Staley’s legal representatives responded to the 9 May 2024 correspondence on 17 May 2024 noting that “the Authority makes criticism of the Applicant which is unreasonable and unsupported by the law. The Applicant has not failed to comply with any legal obligation”, but not including any explanation as to why that was considered to be the case.

iii.

Correspondence sent by the Authority on 24 May 2024 noted that “Mr Staley is obliged to help the Upper Tribunal to further the overriding objective of dealing with cases fairly and justly. By filing a Reply which Mr Staley must have known was misleading in material respects and refusing to assist by producing documents which he knows undermine his case, Mr Staley is clearly in breach of that obligation.

iv.

Mr Staley’s legal representatives responded to the 24 May 2024 correspondence on 30 May 2024, but omitted to address the question clearly posed by the Authority as to the misleading nature of the Reply.

v.

Correspondence sent by the Authority on 26 June 2024 noted the “continued failure to address, let alone explain or apologise for the fact that your client has submitted a Reply which he must have known was material in misleading respects.”

vi.

Mr Staley’s legal representatives responded to the 26 June 2024 correspondence on 2 July 2024, and again omitted to address the question clearly posed by the Authority as to the misleading nature of the Reply.”

Mr Smith submits that the absence of engagement with the Authority in correspondence by Mr Staley’s legal representatives has no probative value and their introduction in the pleadings should be refused and the exercise of the Tribunal’s discretion. He submits that it is neither just nor fair for the Authority to be entitled to engage in correspondence with an opposing party’s legal advisers, what is a “live” issue in the proceedings, and then seek to invite the Tribunal to draw adverse inferences from the absence of engagement.

I can deal with this very shortly. For the reasons set out above, I have refused the amendment that would permit the Authority to rely on its allegation that Mr Staley’s Reply was misleading. Paragraph 162B engages solely with that issue in the context of the correspondence that the Authority had with Mr Staley’s lawyers on that issue. It therefore follows that I must refuse permission the amendment set out at paragraph 162B.