[2025] UKUT 00185 (TCC)

It was also the Applicants’ position that the Bank had acted reasonably because it had a “highly experienced General Counsel…who can be expected to have advised the Committee if the existing legal advice was inadequate or insufficient”. Mr Jaffey submitted that as the Authority did not call Ms James as a witness, the Tribunal should make an adverse inference and:

“…proceed on the basis that Ms James had no concerns regarding the scope of Linklaters’ advice regarding disclosure, the manner in which they had been instructed or the application of the advice (as it had been reported to them) to the decisions that the Bank was taking and that Mr Arden proceeded on that basis.”

In correspondence before the hearing, Baker & McKenzie, on behalf of the Applicants, asked the Authority to call various people as witnesses on the basis that the firm considered it “highly unlikely that [they] would be willing voluntarily to co-operate with the Applicants”. None of the related letters in the Bundle contain a request for the Authority to call Ms James. The Applicants have not anywhere suggested that she would also be “highly unlikely” to attend voluntarily as a witness: we note that others who formerly worked at the Bank – Mr Brierley, Ms Gillan and Ms Roberts – all gave evidence on behalf of the Applicants.

As we said at §315(4), there is no property in a witness, and had the Applicants wanted to call Ms James, they could have done so. If she had been unwilling, and if the Applicants considered her evidence to be important, they could have asked the Tribunal for a witness summons. It is not enough to rely on the burden of proof, and say that if the party with that burden does not call a witness, the Tribunal should infer that her evidence would have helped the other party. In any event, we have other relevant evidence which in our judgment is sufficient to make findings of fact on this issue, see the citation from Efobi at §62.