As is well known, Jes Staley (former CEO of Barclays) has made a reference to the Upper Tribunal following a Decision Notice against him by the FCA. That Decision Notice set out the FCA's view, which in summary was that Mr Staley had acted recklessly and with a lack of integrity in approving a letter sent to the FCA by Barclays, as the FCA said it contained two misleading statements. One statement was about the nature of Mr Staley's relationship with Jeffrey Epstein and the other was about when they had last been in contact. As a result, the FCA decided to fine Mr Staley some £1.8 million and to prohibit him from performing any senior management function.
Mr Staley's reference is due to be heard in March this year. In the meantime, the Tribunal ruled in December 2024 on four procedural applications made on Mr Staley's behalf.
Two of those applications may be of particular interest to enforcement watchers:
- Mr Staley invited the Tribunal to give an indication as to whether four individuals associated with the FCA and the PRA could give relevant and material evidence that would be of assistance to the Tribunal. This is noteworthy as it reflects a new and common approach in the Tribunal to the consideration of the calling of witnesses following the decision in the Seiler case. In the Seiler case, the FCA was criticised for failing to call particular witnesses who might have been expected to have material evidence to give on an issue in the proceedings.
In the case of Mr Staley, however, Judge Herrington decided that the Tribunal would not be materially assisted by evidence from any of the four witnesses. This was variously because of the documentary evidence already before the Tribunal, the other witnesses already giving evidence or, in one case, because the issue was not one to be determined on the reference.
- Mr Staley also made an application to give orally some of his evidence in chief. In over 20 years of financial services cases being heard by the Tribunal and its predecessor, there had been no case in which evidence in chief had been given other than by witness statement. The application was therefore unique and is for that reason noteworthy.
Although there was no procedural bar to the application, Judge Herrington ruled against it. He was not persuaded by the argument that cross examination did not give Mr Staley sufficient opportunity to explain to the Tribunal his thinking at the time he approved the draft letter to the FCA. Judge Herrington pointed out that the Tribunal was well used to assessing the state of mind of a subject when considering particular documents and their implications, that contemporaneous documents (of which there were many in this case) are usually more reliable than witness evidence, and that the process of cross-examination can, and does, test to the full the evidence given in a witness statement without any suggestion of unfairness.
Comment
Although the rulings on the applications do not create any real new ground, the fact of the applications is interesting for the reasons discussed above. Beyond that, this is a high-stakes, high-profile and unusual case, which will be watched with keen interest, even more so because of the unprecedentedly high-profile nature of those giving evidence. The FCA has seven witnesses due to give evidence. Of these, one is the current Governor of the Bank of England (Andrew Bailey) and one is the former FCA Head of Enforcement (Mark Steward); the fact of their giving evidence will no doubt generate a considerable amount of interest. In addition, the Barclays Chair (Nigel Higgins) and its General Counsel at the relevant time (Bob Hoyt) are also due to give evidence. Between them, their evidence covers such things as discussions with Mr Staley and preparation of the letter sent to the FCA in which the alleged misleading statements appear. It is difficult to imagine that either is terribly enthusiastic about having to give evidence relating to their former colleague.