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

In conducting the overall balancing exercise and determining whether it would be unfair and oppressive for Mr Weller to give evidence I take into account all the factors described above. The following factors bear particular weight.

I am satisfied that there is a real likelihood that Mr Weller would give evidence that would materially assist the Tribunal. Indeed, I am satisfied that his evidence would be important evidence in support of the Authority’s case.

I do not consider that it would be unfair to the Applicants if Mr Weller is required to give evidence. It might have been better if this application had been made in March 2024 in the alternative to the Authority’s preferred approach of inviting the Tribunal to call Mr Weller as a witness. However, that has not led to any prejudice which could not be compensated for in costs.

There is potential unfairness to Mr Weller if he is required to give evidence when there are ongoing regulatory proceedings. This is a significant factor, even taking into account the Authority’s Reassurance. I assume at this stage that Mr Weller would not be represented at the hearing and would have no opportunity to cross-examine other witnesses or make submissions to the Tribunal.

I also take into account the strong public interest that regulatory breaches should be fully investigated on the hearing of references. If the allegations are established then businesses and individuals should be the subject of appropriate sanctions. Equally, if the allegations are not established then businesses and individuals should be able to conduct their activities without sanction.

I have anxiously considered all the circumstances and all the parties’ submissions, both written and oral. On balance, I do not consider that it would be unfair and oppressive if Mr Weller is required to give evidence on behalf of the Authority. I shall therefore issue a witness summons to Mr Weller.

I was invited to consider the scope of Mr Weller’s evidence if I decided to issue a witness summons. The Authority has invited me to set out in the witness summons the issues on which Mr Weller should be asked to give evidence.

The Bank submits that a witness summons is not an appropriate mechanism by which to limit Mr Weller’s evidence in chief. I was referred to Z v Z (Legal Professional Privilege: Fraud Exception) [2018] EWCA Civ 307 as authority for a proposition that there is no practice to give the recipient of a witness summons details of the issues on which the witness is to give evidence (see Sir James Munby at [29(iii)]). That case concerned particular circumstances where a solicitor was required to give evidence in connection with a freezing injunction and claimed legal professional privilege. He contended, amongst other things, that the failure to give him notice of the issues on which he was to give evidence had the effect of an ambush.

It does not seem to me that Z v Z has any bearing on the issues before me and it is not necessary for me to consider whether or not, as a matter of procedure, a witness summons to Mr Weller should set out the issues on which he will be required to give evidence. Clearly, as a matter of case management, I could make a direction as to the issues on which Mr Weller should give evidence in chief. As explained above, that would not limit the issues on which he might be cross-examined.

For present purposes, I shall simply say that I would expect Mr Weller to give evidence in chief on those issues which the Authority has identified as being issues where they wish to rely on his evidence. If there are other relevant issues on which Mr Weller wishes to give evidence in chief then subject to general case management I would not seek to prevent him from doing so. His evidence will in due course be subject to cross-examination as indicated above.

That is the only guidance I propose to give at this stage. The Authority and Mr Weller should seek to agree further directions for his evidence. All parties should seek to agree any other directions necessary for the final hearing. In particular with regard to amended lists of documents or challenges to the admissibility of documents relied on by any party. I leave open the possibility that Mr Weller might be afforded some opportunity to be represented at the hearing and have an opportunity to participate in the proceedings. The parties and Mr Weller should update the Tribunal in regard to directions within 21 days from the date of release of this decision.