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

It is not necessary to set out in detail the evidence in relation to the issues where the Authority says that Mr Weller’s evidence is relevant. I have considered the parties’ submissions and the pleaded cases and I am satisfied that there is a real likelihood that Mr Weller would give evidence that would materially assist the Tribunal in determining the references. That is consistent with the conclusion of Judge Herrington in CMH 1 at [119] that Mr Weller would be able to give highly relevant evidence.

In finding that there is such a real likelihood, I take into account that there is no witness statement from Mr Weller. It is not at this stage possible to say what Mr Weller’s evidence would be at the hearing, but I shall assume his evidence would be in line with what I am told he has said in interview with the Authority.

I do not accept the Third Applicant’s submission that the Authority’s position in seeking to both commend and impugn Mr Weller’s evidence, or that any practical difficulties in adducing Mr Weller’s evidence, means that his evidence is unlikely to materially assist the Tribunal. In short, Mr Weller’s involvement in preparing the Presentation means that he would be an important witness as to the origins of the Presentation and the circumstances in which it came to be prepared. It is also likely that his evidence would materially assist in relation to subsequent events, including dissemination of the Presentation, the alleged cover-up after publication in certain media of ideas in the Presentation and the capacity in which various individuals were acting. It may be that his evidence as to dissemination of the Presentation and the alleged cover up would be of more limited relevance, but I am satisfied that it would be relevant.

I cannot at this stage make any assessment as to the credibility of any person’s account in relation to these matters and nothing I say in this decision should be taken as doing so. In the ordinary course, a Tribunal will wish to hear all relevant evidence on matters which are in dispute. It is only having heard all the oral and documentary evidence that the Tribunal will be able to make such an assessment. Some of the issues on which Mr Weller would give evidence involve oral exchanges between Mr Weller and the Second and Third Applicants where their evidence is diametrically opposed. What was said in alleged meetings is not necessarily reflected in any contemporaneous documents. There are issues where the Tribunal could not adopt the approach described in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), of placing more reliance on contemporaneous documents than on oral evidence.

In the absence of oral evidence from Mr Weller, the Authority intends to rely on what Mr Weller has previously said in interviews with the Authority. Such evidence will be hearsay and whilst it is prima facie admissible pursuant to section 174 FSMA, it is usually preferable to have direct evidence from the relevant witness. It appears that there may be a challenge to the admissibility of the interview evidence. I am not in a position to rule on the admissibility of that evidence. I have not heard full submissions from the parties and I have not been taken to the interview transcripts themselves. For present purposes I shall assume that the interview transcripts are admissible. In those circumstances, whilst Mr Weller’s oral evidence may be described as important to the Authority’s case, it cannot be described as essential. Indeed, it is not the Authority’s position that Mr Weller’s oral evidence is essential to its case. If I refuse the application for a witness summons then that would no doubt be relevant in considering any issue as to the admissibility of the transcripts.

I recognise that the Authority would be in a difficult position in relation to Mr Weller’s evidence, in the sense that it could be inviting the Tribunal to accept some of his evidence but to reject other aspects of his evidence on the basis that it is untrue and/or self-serving. However, I do not consider that the non-impeachment principle described in R v Smith (Jordan) means that the Authority should not be entitled to rely on Mr Weller’s evidence.

There are various issues where the Authority does not accept what Mr Weller has previously said in interview. It does not seek to adduce his evidence in relation to those issues, but of course that does not mean that the other parties could not cross-examine Mr Weller. Subject to general case management, they would be entitled to cross-examine Mr Weller on all issues where he can give relevant evidence, including the Bank’s case that Mr Weller and the other individuals involved were not acting in the course of the Bank’s business. Cross-examination may also include matters going solely to credibility, such as the alleged demand for payment referred to by the Second Appellant.

Judge Herrington considered the non-impeachment principle in CMH 1, but at [125] he could not see that the Authority did not regard Mr Weller as being a witness of truth. At that stage it was being argued that the Authority was seeking to avoid the non-impeachment principle by inviting the Tribunal to call Mr Weller as a neutral witness who could be cross-examined by the Authority.

It does not seem to me that the non-impeachment principle described in R v Smith (Jordan) is engaged in the present circumstances. The Authority is not seeking to adduce any previous inconsistent statement of Mr Weller and it is not now seeking to cross-examine Mr Weller.

The principles described in R v Smith (Jordan) were based on an earlier Court of Appeal case of R v Cairns [2002] EWCA Crim 2828. In that case, the issues arose in the context of a challenge to the prosecution’s decision to call a witness on certain matters who it was said the prosecution could not have regarded as a witness worthy of belief. That was because the prosecution did not accept the witness’ evidence on certain other matters. The defendants had applied at trial to exclude that evidence on the basis that the prosecution had unreasonably or perversely exercised their discretion to call the witness. Alternatively, that the Judge should have exercised his discretion to exclude the witness’ evidence pursuant to section 78 Police and Criminal Evidence Act 1984 on the basis that it would adversely affect the fairness of the proceedings. The Court of Appeal stated at [36]:

The Third Applicant argued that R v Smith (Jordan) and R v Cairns require that the evidence to be adduced by a prosecutor, and in this case by a regulator, must be worthy of belief on the topic on which it wishes the witness to give evidence. A prosecutor can adduce evidence on topic A even though it considers the witness’ evidence on topic B would not be worthy of belief. A prosecutor cannot adduce evidence from a witness on topic A where it thinks he will give an untrue account on certain aspects of topic A.

The Court of Appeal in R v Cairns did not expressly consider such a submission, but it did say as follows:

The principles were recently applied by the Court of Appeal in R v Sikander [2024] EWCA Crim 43 where Stuart-Smith LJ stated at [17]:

Whilst it was possible to compartmentalise the evidence in Cairns and Sikander, there is no suggestion that it is necessary to be able to do so in all cases. It seems to me that in the present case the ultimate question is whether the evidence on which the Authority seeks to rely is likely to materially assist the Tribunal in its determination of the issues. I am satisfied that there is a real likelihood that it would materially assist despite the tensions identified by the Third Applicant.

In any event, I agree with the Authority that it is possible to compartmentalise Mr Weller’s evidence. They seek to rely on his factual evidence as to what meetings took place and what was said at those meetings. They accept his evidence of those facts. What they do not accept is his subjective understanding of what he was being asked to do and whether it was a serious request.

I also take into account that these proceedings are being heard by a specialist tribunal and do not involve a jury trial. The Third Applicant submitted that the position was the same in civil proceedings and relied on what was said by Hildyard J in ACL Netherlands v Lynch [2022] EWHC 1178 (Ch):

That was said in a very different context. Both ACL Netherlands and McPhilemy involved a party seeking to rely on a statement made by a witness where that witness was not being called to give oral evidence and could not be cross-examined. That would not be the case here if Mr Weller does give oral evidence.

It may be, as the Third Applicant submitted, that the Tribunal would have to perform “mental acrobatics” in determining what part of Mr Weller’s evidence it should accept and what part it should not accept. However, courts and tribunals are often required to deal with witnesses where one part of their evidence is credible and other parts are not credible.

That is consistent with Judge Herrington’s finding at [126] that there was no bar to a party submitting that part of what its own witness says should not be accepted. He made that finding having considered the non-impeachment principle and various authorities, including R v Smith (Jordan). The decision in Smith was based on the principles set out by the Court of Appeal in R v Cairns.

The Authority does not contend that Mr Weller has acted dishonestly. There is some doubt as to how the Authority views the evidence Mr Weller might be expected to give where it does not accept that evidence. It has described his evidence as self-serving which might imply that he is being deliberately untruthful, but it could also be because he has sub-consciously persuaded himself as to his understanding of what was said and done at the time the Presentation was created. Without knowing the precise evidence Mr Weller would give, these possibilities could only be explored at the hearing having heard the evidence with the benefit of cross-examination.

The Authority submits that it is unobjectionable for Mr Weller to give evidence as to what was said and done and by whom, and as to his subjective understanding of what was said and done. That is so, even if the Authority does not accept Mr Weller’s evidence as to his subjective understanding. His evidence could be tested in cross-examination by the Applicants. It cannot be said at this stage that the Authority’s position is unreasonable or perverse, which was the test applied in R v Cairns. I agree. Indeed, I have found as Judge Herrington also found that Mr Weller would have evidence to give which would be of material assistance to the Tribunal.