Upper Tribunal Tax and Chancery Chamber

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

Fecha: 31-Ene-2025

Presentation of evidence by Mr Lopez

Presentation of evidence by Mr Lopez

546.

The Authority criticised Mr Lopez for his presentation of evidence in various ways:

(1)

Following the Eurex Letter Mr Lopez said he did not go back to look at his trading for occasions when the large orders overlapped with small orders.

(2)

As referred to at [116] above, in his email to HR of 19 October 2016 he had sought to offer an explanation for F174, saying he can provide “some details to the best of what I can remember”, ie presenting this as recollection and identifying an RFQ for a client selling bonds. But this RFQ was not received until later and could not have been the originating thought-process. This was pointed out to Mr Lopez in his interview with the Authority and he has subsequently identified different RFQs. The Authority submitted that this shows his efforts to find evidence to construct his case, rather than an honest account of what happened.

(3)

Mr Lopez had sought to reconstruct the rationale for his specific trading activity in his witness statement.

547.

We do agree that Mr Lopez has had every opportunity to obtain the evidence on which he wishes to rely in relation to F174. To the extent that the explanations now provided in relation to F174 are inadequate or unsupported by any evidence, this would seem to be a substantive deficiency in Mr Lopez’s explanation. The difficulty for Mr Lopez is that, having made a mistake about the timing of the RFQs which had been received by the Desk, which mistake he made after the Eurex Letter was received, or certainly in advance of the disciplinary interview with HR in October 2016, that mistake was not identified until January 2018, by which point it would, as with all of the Instances, have been harder for Mr Lopez to find supporting evidence beyond the details of cash bond transactions and Electronic RFQs.

548.

However, to the extent that the Authority makes a wider challenge about reconstruction based on available evidence, we consider such challenge is unfair (and this applies equally in respect of Mr Sheth’s reconstructions). It is the Authority’s case that all of the reconstructions are fabricated in any event; but the relevant point is that it would be impossible for the Traders now, and we consider even in October 2016, to be able to explain for any particular order they had placed the events that were happening at that time, whether market movements, RFQs or otherwise. The only exception would be if the event in question were a one-off, such that it might have an unusual background or explanation which they could recall (even then potentially still without details). The reconstruction is an attempt to demonstrate how decisions would have been taken; the question is then for the Tribunal whether we accept that explanation.