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

Mr Weller submitted that it would be unfair if he is required to give evidence when he is the subject of ongoing regulatory proceedings. He submitted that this is a powerful and potentially decisive factor weighing against the issue of a witness summons. Judge Herrington accepted as much at CMH 1 [128]. Indeed, prior to CMH 1 the Authority had said that this was one of the reasons why it had not adduced a witness statement from Mr Weller, together with the fact that it did not accept aspects of his evidence.

I agree that this is a significant factor, although its weight is reduced to some extent by the Reassurance. Despite the Reassurance, there could still be some unfairness to Mr Weller if he were required to give evidence to the Tribunal and a Further Decision Notice was subsequently issued to him. I cannot say that this is a remote possibility, even though Mr Weller for understandable reasons does not appear to have any appetite to challenge the Authority’s case against him. The statutory scheme under FSMA envisages that the subject of regulatory proceedings will have seen the allegations in a Decision Notice before deciding whether to make a reference to the Tribunal, make submissions and potentially give evidence to the Tribunal.

As part of this submission, Mr Weller says that if he had referred his Decision Notice to the Tribunal, then as a party to the proceedings he could not have been compelled to appear as a witness.

The Authority challenges that proposition by reference to the Upper Tribunal Rules set out above. In particular, it relies on Rule 5(3)(d) which provides that the Upper Tribunal may require a party to provide evidence; Rule 16(1) which refers to a summons requiring “any person” to give evidence; and Rule 16(2)(b) which makes specific provision for circumstances where the person summoned is not a party, confirming that the reference to “any person” includes a party. The Authority says that I should infer from these provisions that a party can be compelled to give evidence.

Rule 16(3) also provides that no person may be compelled to give evidence where that person could not be compelled to give evidence in a court of law. The Authority contends that this cannot prevent a party being compelled to give evidence given the previous sub-paragraphs in Rule 16. It suggests that Rule 16(3) applies to situations such as a person being compelled to give evidence as to the content of privileged material. The Authority therefore submits that Judge Herrington was wrong to say at [128] that a party could not be compelled to give evidence and I am not bound by his finding.

Mr Weller submits that these Rules, which provide that the Tribunal can direct a party to give evidence, apply in relation to procedural matters. For example where the Tribunal requires such evidence before permitting some procedural step to be pursued or to confirm that an appropriate search for documents has been undertaken. The Rules cannot be used to compel a party to give evidence on the substantive hearing of a reference. Mr Weller also submits that Judge Herrington has already held at [128] that the Authority could not have called him as a witness if he had referred his Decision Notice and that Judge Herrington’s finding is binding between the parties.

I did not have full submissions on the question of whether, if Mr Weller had referred his Decision Notice, he could have been compelled to give evidence by the Authority. My provisional view is that he could not have been compelled. As to the question of whether I am bound by what Judge Herrington said at [128], the Authority invited me to depart from the finding of a Judge of equal standing. I do not consider that would be the right approach. These proceedings were between the same parties and if the Authority is bound by the finding then it would be as a matter of issue estoppel rather than precedent. I did not have submissions as to whether there would be any issue estoppel.

In any event, I do not consider that these points have much if any relevance for the purposes of this application. They do not assist on the question of whether there would be unfairness to Mr Weller if he is compelled to give evidence. The fact is that Mr Weller did not refer his Decision Notice and whether he could have been compelled to give evidence had he done so is academic. He is not a party to the present proceedings. I am however satisfied that the existence of ongoing regulatory proceedings against Mr Weller is a significant factor in the balancing exercise I must perform.

Mr Weller also submits that the unfairness arises because he would not be represented at the hearing. That means that he would not have the opportunity to be re-examined by his own counsel, he would not have the opportunity to challenge the evidence of other witnesses and he would not have the opportunity to make submissions to the Tribunal. Whether it would be practical or realistic to make provision for Mr Weller to have these protections was not canvassed at the hearing.

It is no answer to say that the absence of representation and the opportunity to participate in the hearing puts Mr Weller in no different position to most witnesses at trial. Most witnesses are not subject to ongoing regulatory proceedings in relation to the very matters on which the witness is being asked to give evidence.

I will also take into account that the risk of adverse findings of fact in the Tribunal arises whether Mr Weller gives evidence or not. The Second and Third Applicants both seek to blame Mr Weller for creating the Presentation. If the Tribunal were to make adverse findings against Mr Weller, then those findings could be included in a Further Decision Notice issued by the Authority to Mr Weller.

Mr Weller also relied on what he described as excessive delay in the Authority’s investigation where he was repeatedly given incorrect information as to when a decision on his conduct would be made. The Authority says that it cannot be criticised for its conduct of the investigation. A complaint was raised by Mr Weller and dismissed following the Authority’s complaints process.

I am not in a position to make any findings of fact in relation to these matters on the material before me. The most I can do is record the Authority’s acknowledgment that it may have been overly optimistic in what it told Mr Weller about timescales at various stages of the investigation. In the context of the balancing exercise, it does not seem to me that the Authority’s conduct in this regard carries any weight. In contrast, the period of time since April 2018 when the investigation commenced and over which Mr Weller has had the regulatory proceedings hanging over him does carry some weight.

I am satisfied that Mr Weller’s involvement in creating the Presentation and the subsequent regulatory proceedings has caused him considerable stress and anxiety. It has affected his employment prospects and his family life. No doubt giving evidence would be stressful for Mr Weller. However, there is no medical evidence as to the effect giving evidence might have on his health.