Upper Tribunal Tax and Chancery Chamber

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

Fecha: 10-Jul-2024

What the Authority knew

What the Authority knew

119.

At the time of the 2013 Interview, the Authority knew the following facts:

(1)

from the Prospectus, that Barclays had entered into an ASA with the Qataris;

(2)

from the Interview Bundle provided to Mr Kalaris for the hearing, see §115, that the Qataris were seeking a “fee of 3.75%”; and

(3)

from the ASA, that it had been entered into on 25 June 2008, the same day as Barclays launched the capital raising exercise.

120.

It was part of Saranac’s case that, at the time of the 2013 Interview,“everybody” including the Authority, knew the ASA and the capital raising were connected, and that this could be seen from the Prospectus. Mr Winter said:

“We are not dealing with stupid people reading prospectuses. They would have known, as is obvious, that Qatar was being paid for the provision of advisory services…”

121.

However, we have already found as facts that:

(1)

The Prospectus simply recorded that the ASA had been entered into; there were no details, and the ASA was not disclosed as a material contract.

(2)

Although the Authority had a copy of the ASA, this consisted of a single page with no reference to the capital raising.

(3)

None of the emails in the Interview Bundle explained that the ASA and the Qataris contribution to the capital raising formed a “single package” or that the two were “connected”, see §115.

122.

Mr Winter also relied on the Memorandum, submitting that “the Authority had made clear that it was investigating whether the ASA was a sham or a cover for what was actually an additional payment for participation in the capital raisings, in breach of the Listing Rules”. However, the Memorandum said that the Authority was investigating (our emphasis):

“fees payable to Qatar Holding LLC under [the ASA] which may have related to the capital raising and which were not referred to in the announcements, a circular and prospectuses.”

123.

It is of course true that the context of the Authority’s investigation was Barclays’ possible breach of the Listing Rules, but at the time of the 2013 Interview, the Authority plainly did not know that the ASA did relate to the capital raising: that was the very issue they were investigating. Neither Mr Kalaris nor Mr Winter identified any evidence to which the Authority had had access before the 2013 Interview which would have enabled it to know the two were connected. Mr Beauchamp did not say, at any point during the 2013 Interview, that the Authority knew that the ASA and the Qataris’ contribution to the capital raising were “connected”, that they were a “package” or that the Authority knew the Qataris would not have participated in the capital raising had Barclays not met the “value gap”.

124.

We therefore find as facts that at the time of the 2013 Interview the Authority was investigating whether the ASA was linked to the capital raising and did not know:

(1)

that the ASA and the Qataris’ contribution to the capital raising were “factually connected” because they formed a “package” under which the ASA filled the “value gap” between the 1.5% and the 3.5% required by the Qataris; or

(2)

that Qataris would not have participated in the capital raising had Barclays had not met that value gap.