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

There are four broad areas in which we need to make findings of fact before assessing the key issue arising on this reference, which is whether Mr Staley failed to act with integrity in approving the Letter. Those areas are as follows:

As far as the first area is concerned, we need to determine objectively whether as a matter of fact it can be said that Mr Staley did not have a close relationship with Mr Epstein and that his most recent contact with Mr Epstein was well before he joined Barclays in December 2015. We regard this as a purely objective exercise, the answer to which is to be found by examining the Statements against the evidence that was before us. Although Mr Smith contends that whether the Statements were correct or not has a subjective element, in our view whether or not Mr Staley believed that he had a close relationship with Mr Epstein or that his last contact with Mr Epstein was well before he joined Barclays, is only relevant when considering the question as to whether he knew that the Statements were inaccurate. Were we to find that the Statements were inaccurate, it would then be necessary to make findings as to whether Mr Staley knew that those statements were inaccurate, as part of our assessment as to whether Mr Staley acted recklessly in approving the Statements.

As far as the second area is concerned, this question is relevant when considering why Mr Hoyt and Mr Higgins considered at the time that the Statements in the Letter were accurate because, as their evidence demonstrates, their understanding of the nature of the relationship between Mr Staley and Mr Epstein was based on what he told them and other colleagues in Barclays. As far as the third area is concerned, again this question is relevant when considering the extent to which Mr Staley believed that the Statements were inaccurate or were likely to mislead the Authority. In that context, as Mr Smith submitted, what Mr Higgins, Mr Hoyt and Mr Staley believed were the terms of the enquiry and how that influenced Mr Staley’s decision to approve the draft of the Letter are also relevant in that regard.

Mr Smith also drew our attention to the achievements of Mr Staley both as Chief Executive of Barclays and before that time and asked us to consider those achievements when considering whether it was likely that Mr Staley would have taken the risk of misleading the Authority when approving the terms of the Letter.

Mr Staley is now 68 years of age. He has had a long and successful career in banking and commerce which extends to more than 40 years. Although he was disciplined by the Authority in May 2018 for a breach of ICR 2, which is the duty imposed on a senior manager to act with due skill care and diligence, as a result of Mr Staley having breached Barclays “whistleblowing” policy he has not previously been found to have acted without integrity in his professional career.

Mr Higgins paid tribute to Mr Staley’s achievements in his comments which were included in Barclays Annual Report for 2021. These remarks were written after Mr Staley’s resignation on 30 October 2021, when he stood down following the Authority’s decision to institute regulatory proceedings against Mr Staley after it concluded its investigation into the matter which is the subject of these proceedings. In referring to the Group’s performance, Mr Higgins’ statement in the Annual Recall included the following:

“This performance was in no small way a credit to Jes Staley, who left Barclays as Chief Executive towards the end of the year, and the team he assembled. It is obviously not appropriate for me to comment at the moment, further than has been done already, on the circumstances of Jes’s departure. It is important to let the regulatory and related processes take their course and, at the time of writing this letter, they have not completed. It is appropriate, however, to recognise that under the leadership of Jes, Barclays established a clear strategy, built up a secure capital base, improved its operational resilience and developed its business - leading franchises. We are therefore grateful for the hard work that he put in for the Company.”

Against that background, we now turn to our findings of fact in relation to the four areas identified above.