[2025] UKUT 00185 (TCC)

The Applicants’ case was that the Bank had also acted reasonably because they had followed proper governance processes involving the Board, the Audit Committee, the Disclosure Committee and the CRPAC. Mr Jaffey submitted that the Tribunal should draw an adverse inference from the failure of the Authority to call Mr Hill or any of the NEDs to give evidence, and asked us to find that “the Board were given a full account in relation to the RWA issue”.

In Efobi cited at §62 above, Lord Leggatt said that in deciding whether or not to make such an inference, it was relevant “what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence”. In this case, there is extensive contemporaneous evidence as to what the Board were told, and we are able to decide this question on the basis of the facts we have already found, as summarised below.