![UT/2023/00014 - 17 - [2025] UKUT 00197 (TCC)](https://backend.juristeca.com/files/emisores/logo_ICfrj4g.png){kind=logo}
UT/2023/00014 - 17 - [2025] UKUT 00197 (TCC)
Fecha: 11-Mar-2025
The parties’ positions
The parties’ positions
The Authority’s application dated 5 September 2024 is made on the basis that it considers there is a real likelihood that Mr Weller will give evidence that will materially assist the Tribunal in determining the references. The Authority seeks a direction that Mr Weller should give evidence on the following matters:
The origins of the Presentation and the circumstances in which it came to be prepared.
Details of any meetings and exchanges in relation to the Presentation.
Details of any meetings or exchanges with the Second Applicant following publication in the media of ideas related to the Presentation.
The reasons for Mr Weller refusing to sign a “declaration of honour” to the Luxembourg Commission de Surveillance du Secteur Financier.
The Second Applicant’s allegation that Mr Weller demanded a payment of £200,000 and threatened to blame anyone he could for the Presentation if it was not paid.
These matters can be viewed as broadly encompassing the origins of the Presentation, the dissemination of the Presentation and what the Authority alleges was an attempt by the Second Applicant to cover up his responsibility for the Presentation.
The Second Applicant’s allegation that Mr Weller demanded a payment of £200,000 is not directly relevant to the Authority’s case on the references or to the Second Applicant’s case on his reference. However, if true it would be relevant to the credibility of any evidence given by Mr Weller.
I summarise the position of Mr Weller and the Applicants on the Authority’s application in the following paragraphs.
Mr Weller objects to the application. He accepts that he would be able to give evidence relevant to the issues and that in some respects it would support the Authority’s case against the Applicants. However, he says that significant aspects of his evidence differ from the case being put forward by the Authority. Overall, Mr Weller contends that it would be unfair and oppressive for him to be required to give evidence taking into account the following factors:
The evidence he could give is not important or essential to the Authority’s case. There is other evidence on which the Authority can rely to establish its case. It would not be unfair to the Authority if it cannot call Mr Weller to give evidence.
Judge Herrington found at [128] of CMH 1 that Mr Weller had “strong reasons” for not wishing to participate in the proceedings and that it would be “highly undesirable” if the subject of regulatory proceedings was required to submit himself to cross-examination in relation to those proceedings.
Notwithstanding the Authority’s Reassurance, Mr Weller would remain at risk of adverse findings in a Further Decision Notice following the hearing. It is inconsistent with the statutory scheme in the Financial Services and Markets Act 2000 (“FSMA”) to require Mr Weller to give evidence before the content of his decision notice is determined. The protection afforded by the statutory scheme would be circumvented.
The Third Applicant has made clear that in cross-examination he would mount a root and branch attack on Mr Weller’s honesty. Mr Weller will not be in a position to challenge the evidence of any other party or to make submissions on the evidence.
Mr Weller’s mental health and family life has been severely affected by the prolonged regulatory proceedings against him. That impact will be unfairly exacerbated if he is now required to give evidence.
The Authority ought to have made the present application at CMH 1 before Judge Herrington, as an alternative to its invitation to the Tribunal to summon Mr Weller of the Tribunal’s own initiative. The Authority has offered no good explanation for its failure to do so.
The fact that the Second Applicant has alleged that Mr Weller attempted to blackmail him is not a good reason for Mr Weller to be compelled to give evidence.
None of the other parties say that it would be unfair if Mr Weller is not called to give evidence.
The Third Applicant expressly objects to the Authority’s application. His objections may be summarised as follows:
Mr Weller is not a witness of truth. The Authority has accepted that: in certain respects he lacks integrity; he has a motivation to give untrue, self-serving evidence; and that he has already given an untrue account as to aspects of his own conduct in relation to the Presentation.
The Authority’s Reassurance does not remove the motivation for Mr Weller to give untrue or self-serving evidence.
There are key tensions between the Authority’s pleaded case as to Mr Weller’s involvement in drafting the Presentation and his own account of that involvement. For example, it is Mr Weller’s evidence that no-one took an alleged discussion about the Presentation seriously. He produced a “short, jokey document” and it did not occur to him that it would be used to market the Bank. The Authority does not accept that evidence and it is seeking to both commend and impugn Mr Weller’s evidence at the same time.
Similar tensions arise in relation to Mr Weller’s actions following publication of the Presentation. For example, when the first article was published he considered that there was no truth in the article and no reason to think that the Presentation had been disseminated. It was only when the second article was published that he realised the Presentation had been disseminated. The Authority did not accept Mr Weller’s evidence in relation to the first article and considers that it must have been obvious to him that the Presentation had been disseminated.
In these circumstances, it cannot be said that there is a real likelihood that Mr Weller’s evidence will materially assist the Tribunal. Mr Weller’s evidence would add layers of complexity to the proceedings and there would be practical difficulties about how his evidence in chief would be given. It is also said that there may be a need for further disclosure in respect of Mr Weller’s communications with the Authority.
There is other evidence including the evidence of Mr Unwin and the documentary evidence which is likely to carry more weight in the Tribunal’s determinations.
The Second Applicant expresses himself to be neutral in relation to the Authority’s application, although he does make certain observations which I shall consider in the discussion below.
The Bank is also neutral as to whether a witness summons should be issued. However, it has made submissions as to the scope of the evidence Mr Weller should give if he does give evidence. In particular, the Bank does not consider that there should be any direction limiting the scope of Mr Weller’s evidence, not least because the Authority’s list of issues on which Mr Weller should give evidence does not include whether Mr Weller and the other individual Applicants were acting in the course of the Bank’s business. The Bank considers that Mr Weller could provide highly relevant evidence as to the capacity in which the individuals were acting in creating the Presentation. The Bank is particularly concerned that the scope of its cross-examination of Mr Weller should not be limited by any witness summons.