UT/2023/00014 - 17 - [2025] UKUT 00197 (TCC)

There are a number of aspects to the question of what is fair to the parties.

In this context, Mr Weller and the Applicants have raised a question of why the Authority did not make this application at CMH 1. It is not clear to me why the Authority did not apply to summons Mr Weller as its witness in the alternative to inviting the Tribunal to call Mr Weller as its own witness. Directions had been given by Judge Jones on 16 October 2023 in relation to potential witnesses and required the parties to notify the Tribunal by 26 January 2024 what directions were being sought in relation to those witnesses. Judge Jones made provision for the proposed directions to be considered at a case management hearing in March 2024 which was the CMH 1 hearing before Judge Herrington. There was clearly an opportunity for the Authority to ask the Tribunal to issue a witness summons to Mr Weller, in the alternative to their preferred course at that stage of Mr Weller being called as a witness by the Tribunal.

The Authority does now have the benefit of the decision of Judge Herrington, but that does not explain why the application could not have been made in the alternative.

The Authority says that Mr Weller had initially agreed to appear as a witness for the Authority but following CMH 1 he had declined to do so. That appears to put the matter higher than is merited. Mr Weller had stated in December 2023 that he was deeply reluctant to be involved in the proceedings but that he would attend as the Authority’s witness if the alternative was that he would be compelled to attend. His overriding desire was to play no part in the proceedings unless he absolutely had to. Mr Weller’s skeleton argument for CMH 1 made clear that he was not prepared to give evidence and be cross-examined both by the Authority and the Applicants when there were outstanding regulatory proceedings.

The Authority has since given Mr Weller the Reassurance in a letter dated 31 May 2024 following CMH 1. However, there was no reason the Reassurance could not have been given prior to CMH 1 or indeed during the course of that hearing. The Authority might have required time to consider its position, which could no doubt have been accommodated.

The Authority says that it now has the benefit of decisions of the Upper Tribunal in Barclays Plc and of the Court of Appeal in FCA v Seiler [2024] EWCA Civ 852 which support its reasons for making the present application. In fact, neither of those cases establishes any new principles relevant to the application. Barclays considered objections to a witness summons but was applying established principles. In Seiler, the Court of Appeal held that the Authority was not an ordinary litigant in ordinary proceedings. The Authority and the Upper Tribunal have a joint purpose of seeking to ensure that integrity and confidence in financial markets is maintained (see Fraser LJ at [77]). The Court of Appeal was endorsing propositions that had been established in previous Upper Tribunal cases.

The position of the Applicants at CMH 1 was essentially that the Authority was seeking to avoid the non-impeachment principle and ought to have been calling Mr Weller as its own witness. Mr Weller’s position was that he should not be called to give evidence. At [124] of CMH 1, Judge Herrington noted a submission on behalf of Mr Weller that if the Authority believed he had relevant evidence then it should seek to call him as its witness. I am satisfied that Mr Weller was not inviting the Authority to make the present application. The possibility of Mr Weller being called as the Authority’s witness was raised by the Authority in its oral submissions in reply at CMH 1. The transcript of the hearing shows the following exchange:

It is not suggested by anyone that the present application amounts to an abuse of process by the Authority in circumstances where it could have made the application in CMH 1. Mr Weller did submit that the Authority must identify a change in circumstances to justify making the present application. I do not accept that is the case. It is a different application to that being made at CMH 1. What I do accept is that there has been no real change in circumstances that would explain the present application and I would have expected the application to have been made in the alternative in March 2024. Having said that, I do not consider that the Authority’s failure to make the application at that time was in any sense tactical or deliberate. The position it took at the time was that the application was appropriate and Judge Herrington at [119] expressly made no criticism of the application. It seems more likely to me that the Authority failed to properly address the consequences of the Tribunal declining to call Mr Weller as a neutral witness.

These are circumstances I shall take into account when considering the overall balancing exercise. That includes Mr Weller’s point that he had reasonably assumed immediately following CMH 1 that he would not be required to give evidence in these proceedings.

I can also take into account that the Authority’s failure to make the present application in March 2024 has caused some inconvenience to the parties and the Tribunal, although not so as to endanger the hearing listed in September 2025. It has not been suggested that the failure has led to any specific prejudice, although it seems to me that it may well have caused the Applicants and Mr Weller to incur additional costs over and above what would have been required to deal with the application at CMH 1. No doubt the parties could be compensated for any additional costs they have incurred.

Overall, I accept that there would be a real risk of unfairness to the Authority if it is unable to call Mr Weller as a witness in support of its case. It would be deprived of evidence which is likely to be highly relevant to the issues on which it bears the burden of proof. I also take into account that whilst Mr Weller’s evidence is important to the Authority’s case, it does not consider that Mr Weller’s evidence is essential.

Fairness to an applicant may require the Authority to call a witness who does not support its case theory, or at least draw the attention of the Tribunal to that witness. That is not this case. None of the Applicants considers that Mr Weller should be called as a witness. However I do not detect any unfairness to the Applicants if Mr Weller is required to give evidence.