Upper Tribunal Tax and Chancery Chamber

[2025] UKUT 00185 (TCC)

Fecha: 09-Abr-2025

The purpose of the meeting

The purpose of the meeting

331.

Mr Lane’s evidence was that he understood the purpose of the meeting was to seek advice on whether a pro-active announcement was required by the MAR, which as we said at §31ff, requires the publication “as soon as possible” of:

“information of a precise nature, which has not been made public, relating, directly or indirectly, to one or more issuers or to one or more financial instruments, and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments…”

332.

As we have already found, see §294 and §300, no copy of the Q3 Update was provided to Linklaters before the meeting, and Mr Arden accepted in cross-examination that it was not mentioned in the meeting; he did not tell Mr Lane the Bank was going to report the RWAs as part of that Update; and he did not request advice on whether the Bank could report the RWAs it knew to be incorrect, pending completion of the Deloitte work.

333.

Despite that evidence, Mr Arden also stated that:

(1)

the purpose of the meeting was to obtain “general advice” on disclosure;

(2)

Mr Lane had advised that “until Deloitte's work was complete and until the position was confirmed with the PRA, there was nothing to disclose to the market”, and

(3)

this advice covered both a proactive disclosure to comply with the MAR, and “any disclosure of the issue”, including by way of the Q3 Update.

334.

We agree with the Authority that the purpose of the meeting was to establish whether the Bank had to make a pro-active disclosure under the MAR, and it was not to ask for advice on the Q3 Update. We make that finding of fact for the following reasons:

(1)

Ms Roberts’s contemporaneous email said (our emphasis) “Linklaters concurred with our view that it is neither specific or material information at this point…and no market announcement was necessary at this point”. The MAR requires a disclosure if information is “sufficiently precise” and would be likely to have “a significant effect” on the share price. Although the word “specific” is not identical to “precise” and “material” is not identical to “significant effect”, the meanings are similar.

(2)

Article 17 of the MAR requires that “an issuer shall inform the public as soon as possible of inside information which directly concerns that issuer”. Ms Roberts’s email concludes by saying (our emphasis) that Linklaters had advised that “no market announcement was necessary at this point”. That is consistent with Mr Arden having asked Mr Lane to advise on whether an immediate announcement was required under the MAR.

(3)

Ms Gillan was told about the meeting by Mr Arden during October 2018, and she too understood that Linklaters’ advice was directed to the question of whether there was inside information that needed to be disclosed.

(4)

It is not credible that Mr Arden would have sought advice on the Q3 Update without referring to it during the meeting or providing a copy of the draft announcement either before or during the meeting.

335.

That finding is consistent with the fact that Ms Roberts’s email was not circulated to the Board before its October meeting, when the Q3 Update was approved, see §228.