Upper Tribunal Tax and Chancery Chamber

UT (Tax & Chancery) UT-2022-0000150 - [2024] UKUT 00254 (TCC)

Fecha: 10-Jul-2024

The evidence on the capital raising issue

The evidence on the capital raising issue

45.

Our findings on the capital raising issue are based on the evidence given by Mr Kalaris, either in his witness statement or under cross-examination at this hearing, and on the following documentary evidence, none of which was in dispute:

(1)

the Prospectus for the capital raising, and the text of the Advisory Services Agreement (“ASA”) entered into by Barclays, both of which Mr Kalaris accepted he had seen before the 2013 Interview;

(2)

contemporaneous emails sent or received by Mr Kalaris;

(3)

the content of other contemporaneous emails, which Mr Kalaris accepted in oral evidence he had been aware of at the time of the 2013 Interview;

(4)

transcripts of contemporaneous conversations to which Mr Kalaris had been a party; and

(5)

the transcript of the 2013 Interview. An earlier version sent to Mr Kalaris and his lawyers had been returned with proposed changes, the majority of which were minor clarifications. Neither Mr Kalaris nor Mr Winter suggested that any part of the transcript was an incorrect record of what had been said.

46.

Both parties also referred to the judgment of Waksman J in PCP Capital Partners LLP and another v Barclays Bank plc [2021] EWHC 307 (Comm) (“PCP”), see further §108. Mr Stanley submitted that it was entirely reasonable for the Authority to have regard to the factual findings made by Waksman J. He cited Henton v FSA [2007] FIN/2006/0017 (“Henton”), in which Judge Brice had considered whether the Authority could put forward an earlier High Court decision (“Sphere Drake”) relating to the same applicant. She held at [48]:

“I bear in mind the legislative framework within which the Tribunal operates and that it is the task of the Tribunal to decide whether the Applicant is a fit and proper person within the meaning of section 56 of the 2000 Act. The legislative framework includes section 133 and Rule 19(3) as a result of which the findings in Sphere Drake may be put before the Tribunal by the Authority as evidence and the Tribunal is free to make such use of those findings as is proper in the circumstances. However, the Tribunal will also have regard to any other evidence which is adduced before it, including any evidence of the Applicant or of witnesses on his behalf. For example, if the Applicant wishes to adduce evidence to support his contention that what he did was the normal practice of the market then he may do so. The Tribunal will also have regard to any argument put forward by either party.”

47.

That summary of the legal position was endorsed in Barry Williams v FSA [2011] FIN/2010/0006 at [8], and we respectfully agree. In any event, Mr Winter did not challenge the admissibility of any of the factual findings made by Waksman J.