UT (Tax & Chancery) UT-2023-000064 - [2025] UKUT 00203 (TCC)

Mr Staley’s understanding of the scope of the enquiry was summarised by him in his first witness statement as follows:

“I believed that the purpose of the letter was to respond to the oral enquiry made by the FCA, in August 2019, which was to obtain confirmation from Barclays that it was satisfied that I neither had knowledge of, nor had been involved in the criminal activities which had been alleged against Mr Epstein, following his arrest on 6 July 2019.”

“Our conversation [between Mr Staley and Mr Gillies] concerned the FCA’s request which he was already aware of and which was, “did I participate in these alleged activities of Epstein and was Barclays aware?”

“The letter had a single objective as far as I was concerned and that was to convey to the FCA that I was not aware, and Barclays was not aware, of what Mr Epstein was alleged to have been doing. I am entirely satisfied and believe that that single objective was shared by Mr Hoyt and by Mr Higgins.”

It follows from our analysis of the position as set out at [329] to [364] above that we must reject Mr Staley’s evidence on this point.

In full agreement with the Authority’s submissions on this point, in order to be satisfied as to whether Mr Staley could have been aware or should have been aware of Mr Epstein’s wrongdoing, Barclays needed to understand the nature of the relationship between the two men, which, as we shall see, is what it set out to achieve in its discussions with Mr Staley in order to respond to the Authority’s enquiry.

The degree of closeness between the two men was an integral part of the consideration of whether Mr Staley could or should have been aware of wrongdoing. Awareness would not be limited only to direct awareness from physically being present when misconduct was going on, but could also have been gained, for example, from matters discussed, with Mr Epstein.

It is obvious that the greater the distance in the relationship, the less likely it was that Mr Staley could or should have been aware of Mr Epstein’s wrongdoing. The smaller the distance, the more likely it was that Mr Staley could or should have been aware of it, and that questions could therefore be raised regarding his judgement in continuing to associate with Mr Epstein.

Therefore, although not as clearly expressed as it should have been in the call between Mr Davidson and Mr Higgins on 15 August 2019, we accept that Mr Davidson was expecting a response which explained what steps Barclays had taken to understand the relationship between Mr Staley and Mr Epstein and therefore whether or not there was any risk of impropriety in that relationship.

Although Mr Higgins’s understanding was that the enquiry was limited to establishing whether Mr Staley was involved in or could or should have been aware of Mr Epstein’s misconduct, Mr Hoyt and Mr Higgins both understood that in answering that question Barclays had to establish the facts as regards the nature of the relationship between the two men. Although Mr Davidson had not communicated to Mr Higgins during the call on 15 August 2019 that he was expecting specific confirmation that the relationship was not a close one, that position was made clear during the call on 4 October 2019, which we refer to below. Mr Higgins was able to respond by giving the confirmation requested on the basis of the information that Mr Staley had provided to Mr Hoyt and Mr Higgins during the course of preparing the response to the Authority’s enquiry.