Upper Tribunal Tax and Chancery Chamber

[2025] UKUT 00185 (TCC)

Fecha: 09-Abr-2025

Whether the RWA issue was discussed

Whether the RWA issue was discussed.

225.

The minutes record that Mr Arden had highlighted an increase to capital requirements, but contain no reference to any discussion of the RWA issue.Mr Arden’s contemporaneous handwritten notes also make no reference to RWAs being discussed. When asked about this in cross-examination, the exchange went like this:

Mr Stanley: Are you suggesting that you did talk them through that in detail?

Mr Arden: I gave them the Linklaters advice and the fact that the PRA had agreed that there would be no change to the COREP.

Mr Stanley: Did you?

Mr Arden: Yes. I think it would be unusual for me not to update the board on such an important element of the Q3.

Mr Stanley: Very important, you think?

Mr Arden: Essential

Mr Stanley: Worth minuting, then, if it happened?”

226.

Mr Arden therefore did not say “yes” initially when asked if he had talked to the Board about the RWA issue. On Mr Stanley repeating the question, Mr Arden followed his initial “yes” with another conditional sentence “it would be unusual for me not to update the Board”. He subsequently answered Mr Stanley’s question about the lack of any written record by saying that he was taking the minutes at the time and had overlooked this point.

227.

Mr Donaldson’s witness statement said he and Mr Arden gave the Board “an update of Linklaters’s advice” and said that this was “a critical driver of strategy for the Q3 Announcement”.

228.

We find that the Applicants’ evidence on this issue is an example of the interference caused to memory by the process of litigation, see Gestmin cited at §38. We instead place reliance on the contemporaneous evidence and find as facts that:

(1)

Mr Arden did not “give” the Board Ms Roberts’s email summarising Mr Lane’s advice or the email exchanges with Mr Sutherland about the position in relation to the COREP reporting, because:

(a)

those emails were not circulated in advance; and

(b)

it is not credible that they would have been provided during the meeting and not recorded in the minutes.

(2)

Mr Arden and Mr Donaldson did not discuss either Mr Lane’s advice or the exchanges with Mr Sutherland, because it is not credible:

(a)

that they would have done so without circulating the related emails; or

(b)

that Mr Arden would have overlooked the need to record it in the minutes.

(3)

Mr Arden and Mr Donaldson made no mention of the RWA issue, again because it is not credible that it would have been omitted from the minutes.