Upper Tribunal Tax and Chancery Chamber

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

Fecha: 03-Abr-2025

The call between Mr Higgins and Mr Davidson on 4 October

The call between Mr Higgins and Mr Davidson on 4 October

397.

Mr Higgins spoke to Mr Hoyt at 3.30 pm, and again at 5.22 pm on 4 October. Mr Hoyt was concerned the draft letter was so short and lacking in detail that it may not satisfy the Authority so he suggested that Mr Higgins read the draft letter to Mr Davidson over the phone and ask Mr Davidson to confirm that it would be sufficient.

398.

At 5.38 pm, Mr Higgins rang Mr Davidson. It was a short phone call at the end of the day on a Friday, lasting only 6 minutes. It was not pre-arranged. Neither Mr Higgins nor Mr Davidson have a very clear recollection of what was said. Mr Hoyt has a clearer recollection based on what Mr Higgins told him when Mr Higgins phoned him immediately after the call with Mr Davidson.

399.

Again, there is a conflict of evidence between Mr Higgins and Mr Davidson as to what was said on the call. It is most unfortunate, as Mr Davidson accepted in his evidence, that neither Mr Higgins nor Mr Davidson made a note of the call which clearly would have assisted us in dealing with this conflict of evidence.

400.

Mr Davidson’s evidence was that:

(1)

Mr Higgins wished to establish whether the proposed response would appropriately address the question that he had asked about the steps that Barclays had taken to satisfy itself that there was no impropriety in the relationship between Mr Staley and Mr Epstein.

(2)

He could not recall whether the Letter was read to him.

(3)

He could not recall if the language “no close relationship” was put forward by Mr Higgins or whether he asked for it to be added to the Letter, but he reiterated the question that was put to Barclays which was: how did it satisfy itself there was no impropriety in the relationship between Mr Staley and Mr Epstein? The explanation was that Mr Staley had had occasional interactions with Mr Epstein and if he did ask for confirmation of “no close relationship” to be included, this would only have been on the basis of his understanding of what he was being told about the relationship, and Barclays’ decision to include it should only have been in the context of it being true.

401.

Mr Higgins’s evidence as to the content of the call was that:

(1)

Mr Davidson asked him if he thought that the two men were not close and when Mr Higgins said that he did not think they were close Mr Davidson asked him to put words to that effect in the Letter.

(2)

There was no debate about anything else in the draft so he did not detect that Mr Davidson was unhappy with the text of the draft that he had read out.

402.

In re-examination Mr Higgins accepted that he had no independent memory of the call but rather his memory was prompted by Mr Hoyt subsequently.

403.

Mr Hoyt, who spoke to Mr Higgins immediately after the call, said that his understanding was that Mr Higgins had read the version of the Letter to Mr Davidson on the call. Mr Hoyt’s evidence was that Mr Higgins relayed to him that Mr Davidson had said something to the effect of “would you or could you say they were not close?”

404.

Subsequent to that conversation, Mr Hoyt finalised the text of the Letter, including the “no close relationship” language in the text.

405.

We have no doubt that Mr Higgins did read the text of the draft to Mr Davidson on the call. Mr Hoyt corroborates that evidence as demonstrated by the fact that Mr Hoyt has a clear recollection of Mr Higgins telling him after the call that he had read the draft to Mr Davidson.

406.

We have also no doubt that the request that the Letter contain the “no close relationship” language came from Mr Davidson. We see no reason why Mr Higgins would have raised that issue with Mr Davidson because his perception was that the Authority was most concerned about whether Mr Staley knew or ought to have known of Mr Epstein’s misconduct. It is also worth bearing in mind that wording to the effect of there being no close professional relationship between Mr Staley and Mr Epstein had been deleted from the first September draft on the basis that Barclays’s understanding was that issue was not relevant to the Authority’s enquiry.

407.

We find Mr Hoyt’s evidence on this point more reliable than that of Mr Davidson, based as it was on his recollection of the conversation with Mr Higgins immediately after the call had taken place.

408.

At 5.50 pm, Mr Higgins rang Mr Staley. This phone call lasted 8 minutes. Mr Higgins does not have a clear recollection of this call, although he considered it likely that he would have referred to his conversation with Mr Davidson.