Upper Tribunal Tax and Chancery Chamber

[2025] UKUT 00185 (TCC)

Fecha: 09-Abr-2025

Knowledge of the impending Q3 Update

Knowledge of the impending Q3 Update

311.

In reliance on Mr Brierley’s evidence, we find that Linklaters as a firm were aware that the Bank had adopted a pattern of quarterly reporting in March, June, September and December. Mr Lane accepted that he knew that the Bank announced its results on a quarterly basis, but said he did not know the specific dates when they were published. However, on 13 June 2018, Mr Lane had sent the Bank a presentation about a possible combined equity and perpetual bond issuance, and one of the slides in that presentation stated that the Q3 results would be issued on 24 October 2018. We therefore find that Mr Lane had been informed of the date on which the Q3 Update would take place.

312.

Mr Lane’s evidence was also that he was unaware that the Bank’s practice was to include its RWA figure in its interim results announcements. Mr Jaffey asked us to reject that evidence by reference to a passage contained in the written representations drafted by Linklaters on behalf of the Bank, which were submitted to the Authority’s Regulatory Decisions Committee (“RDC”) on 8 March 2022 (our emphasis):

“Notwithstanding the fact that the Bank did not specifically seek advice on the content of the October Announcement, Linklaters would have been aware that the Bank’s Q3 trading update…would have to include RWA figures.”

313.

No contemporaneous or other evidence has been provided to support the italicised phrase, which is in the conditional voice. It does not provide a basis for us to reject Mr Lane’s statement that he did not have that knowledge, and we accept his evidence.

314.

Mr Lane also said that he had never been provided with the Q3 Update and did not discuss the Q3 Update with the Bank. Mr Jaffey asked us to reject that evidence by reference to the analyst call which took place on 31 October 2018. Mr Arden was briefed before that call by Linklaters, as well as by Jefferies and BAML. Mr Jaffey invited us to find as facts that (a) either Mr Lane carried out the briefing, or it was carried out by one of the other two Linklaters attendees at the meeting on 5 October 2018, and (b) the person who carried out the briefing was also aware of and had seen the Q3 Update.

315.

We decline to make those findings, because:

(1)

Mr Arden could not remember who from Linklaters had briefed him, see §239.

(2)

Although someone at Linklaters did brief Mr Arden, there is no evidence as to who that person was. Those at Linklaters who were giving advice to the Bank also included teams led by Mr Manketo and Mr Kumar, and Linklaters also had “a strong undercast” of qualified lawyers, see §66.

(3)

It was Mr Lane’s evidence that he had never seen the Q3 Update, and had he briefed Mr Arden some three weeks after the meeting, it is not credible that neither he nor Mr Arden would have remembered that he had done so.

(4)

As noted above, Mr Sadler and Mr Cheyne were asked by the Authority to give evidence about the meeting, but they were not called by the Authority because neither were able “definitively” to recall it. However, there is no property in a witness, and had the Applicants wanted to call either or both of those individuals in order to ask whether they had carried out this briefing, they could have done so.

316.

In summary we therefore find as facts that:

(1)

Mr Lane was aware that the Bank would issue its Q3 Update on 24 October 2018;

(2)

he was not provided with a copy of that Update before, during or after the meeting with Mr Arden and Ms Roberts; and

(3)

he did not know that the Bank’s practice was to include its RWA figure in its interim results announcements.