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

The Traders made submissions in relation to the witnesses who had not been called by the Authority to give evidence before this Tribunal, the information that would have been available to the Traders during the Relevant Period but which is no longer available or has not been disclosed to them and the time which has passed since the Relevant Period (more than 8.5 years by the time of the hearing). They submitted that the Tribunal should draw adverse inferences from the Authority’s failure to call witnesses, and that the delay and absence of information that would have been available to the Traders at the time was unfair and prejudicial to the Traders, particularly in circumstances where the Authority’s case was based on detailed trading activity within the Instance Pool and they were cross-examined on the reasons for placing particular orders within that Instance Pool.

We first set out a summary of the evidence which was produced, before then addressing these submissions and setting out the Tribunal’s approach to the evidence.

When considering the parties’ submissions in relation to the evidence the Tribunal keeps in mind throughout that in regulatory proceedings the Authority is not an ordinary litigant but is instead engaged in a “common enterprise” with the court in ensuring that the objects of the legislation are achieved and that public confidence is maintained in the integrity of the financial markets (Financial Conduct Authority v Seiler [2024] EWCA Civ 852 at [51]).