UT (Tax & Chancery) UT-2022-000134 UT-2022-000135 UT-2022-000137 - [2025] UKUT 00214 (TCC)

Mr George referred to what he submitted were the various procedural shortcomings in the Authority’s investigation, and that the Authority had not explained why it had not sought to call any witness from its Enforcement Division to answer these matters. Mr George submitted that in circumstances where the Authority has offered no witnesses who can speak to these events, there can be no good reason for the excessive delay or the absence of relevant evidence in this case.

The Authority’s position was that there is no factual dispute over the investigation and it is impossible to see how such a witness would have materially assisted the Tribunal.

The Tribunal agrees that the factual chronology of the investigation is not in dispute, and it can itself identify the periods of time which have elapsed at various stages. During the course of the hearing it did become apparent to the Tribunal that there is a potential issue as to the steps which had been taken by the Authority to secure documentation and other evidence and review the evidence which it had obtained. This arises most obviously from Mr Bailin’s submissions in relation to the communications data, but a question could also be asked as regards the Authority’s acceptance of MHI’s explanation in relation to Voice RFQs and Bloomberg/Chat RFQs. However, whilst the Traders had in correspondence made requests for information, and such information had either been provided or refused with an explanation, the Tribunal does not consider that the Authority should reasonably have expected that it would have been of assistance to the Tribunal to call witnesses who could explain the evidence-gathering aspects of its investigation, particularly in the absence of an application for disclosure having been made.

In these circumstances, no adverse inference is drawn from the Authority’s decision not to call witnesses from its own Enforcement Division. That approach is not to ignore the potential significance of information which the Tribunal has already identified as not being available; rather that the Tribunal does not consider that issues arising from its absence should necessarily be resolved in favour of the Traders, or that evidence which supports their case should be assumed to have existed.