Upper Tribunal Tax and Chancery Chamber

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

Fecha: 10-Jul-2024

The weekend of 14-15 December 2012

The weekend of 14-15 December 2012

239.

We have already found the following facts:

(1)

on Saturday 15 December 2012, Mr Roemer emailed Mr Kalaris saying that the Fed knew “an outside party” had been hired earlier in the year to assess culture and/or control and believed a report had been produced, and “view the delay in receiving the report as a red flag”.

(2)

Mr Kalaris forwarded that email to Mr Tinney without any comment.

(3)

He spoke to Mr Tinney on the phone over the weekend.

(4)

On 15 December 2012, he emailed Mr Roemer and said there were “two sets of consultants, one who produced working papers rather than a report and one that did not”.

(5)

On 16 December 2012, Mr Kalaris emailed Mr Harding and copied Mr Tinney, saying in relation to the “cultural look at BWA” that “we do not have a formal document”.

240.

During the 2014 Interview, the following exchange took placeabout Mr Kalaris’s conversation with Mr Tinney:

“Ms Yazdani: You forwarded it [the email from Mr Roemer] on…
Mr Kalaris: Yes, I did, yes.
Ms Yazdani: …to him without any comment.
Mr Kalaris: Yes,
Ms Yazdani: So I am just wondering if you talked about it.
Mr Kalaris: …I had a conversation with [Mr Tinney]…where he said to me that he had what he called, received working papers or he had working papers and he said that he’d received them. And that was the only conversation I had with him about this.
Ms Yazdani: How did the working papers come up in conversation, what was the context?
Mr Kalaris: He told me.
Ms Yazdani: As in, just out of the blue or you…
Mr Kalaris: It was in – as part of like a “what’s going on here” question. And that was the first time I was aware that there were even working papers, that he had something….
Ms Yazdani: Did he say how he came by the notes?...
Mr Kalaris: No. No, I don’t recall that at all.”

241.

Mr Kalaris’s witness statement says:

“Mr Tinney called me, and I asked him if he knew what was going on and he told me that he had previously received something to his home address from GenVen, in the form of ‘working papers’ and that he was going to share these with Mr Jonathan Peddie (who was the Group legal officer in charge of investigating the Whistleblowing Email at that time).”

242.

Under cross-examination, Mr Kalaris’s evidence was that this was the only conversation he had with Mr Tinney about Mr Roemer’s email; that following the call, he did not inform anyone at Barclays that Mr Tinney had GenVen “working papers”; and

“had no reason at this point in time to think that there was[anything]other than perhaps some carelessness when Andrew said to me, ‘I’ve got the working papers’.”

243.

Mr Stanley submitted that what happened over this weekend was inconsistent with Mr Kalaris being ignorant of the GenVen Report, and we agree. We have italicised particular points of emphasis:

(1)

Mr Kalaris received the email from Mr Roemer saying the Fed knew there was a report, and regarded this as a “red flag”, and heforwarded the email to Mr Tinney without any comment.

(2)

In the course of the subsequent phone call, Mr Tinney told Mr Kalaris that he had “working papers” but Mr Kalaris did not ask him anything about those “working papers”.

(3)

Mr Kalaris emailed Mr Roemer on 15 December and did not tell him Mr Tinney had “working papers”.

(4)

Mr Kalaris emailed Mr Harding on 16 December and did not tell him Mr Tinney had “working papers”.

244.

In assessing the credibility of Mr Kalaris’s evidence, we also take into account our earlier findings that:

(1)

it was not out of character for Mr Kalaris to have reacted angrily to the approach GenVen had taken to the audit;

(2)

he was aggressive during the meeting on 5 April 2012; and

(3)

he was furious when he received the email from the Whistleblower.

245.

Taking into account both the seriousness of the allegation made by Barclay’s regulator and Mr Kalaris’s personality, we find that had he not known about the existence of the GenVen Report before receiving the email from Mr Roemer on 15 December 2012:

(1)

He would have been surprised by the allegation in that email, and made some comment to that effect when he forwarded it to Mr Tinney.

(2)

He would have been shocked and angry when Mr Tinney told him he had “working papers”.

(3)

He would have asked Mr Tinney for details of the nature and content of those working papers, given that this issue was being regarded as a “red flag” by the Fed.

(4)

He would not have thought that Mr Tinney had been merely “careless” in withholding information and documents from him.

(5)

He would have informed Mr Roemer and Mr Harding that Mr Tinney had “working papers”.

246.

Mr Kalaris did none of those things. We agree with Mr Stanley that the actions he took are only consistent with Mr Kalaris already knowing about the GenVen Report, and they are not consistent with him being ignorant of its existence.