(1) BARCLAYS PLC (2) BARCLAYS BANK PLC v THE FINANCIAL CONDUCT AUTHORITY & JOHN VARLEY
| Jurisdiction | UK Non-devolved |
| Judge | Judge Rupert Jones,Judge Jonathan Cannan |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Published date | 24 July 2024 |
UT Neutral citation number: [2024] UKUT 00214 (TCC)
UT (Tax & Chancery) Case Number: UT/2022/000116, 000117
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER Hearing venue: Rolls Building
Fetter Lane
London
EC4A 1NL
FINANCIAL SERVICES – procedure – application for a witness summons – whether it would
be unfair and oppressive for the proposed witness to give evidence
Heard on: 26 June 2024
Judgment date:24 July 2024
Before
JUDGE RUPERT JONES
JUDGE JONATHAN CANNAN
Between
(1) BARCLAYS PLC
(2) BARCLAYS BANK PLC Applicants
- and -
THE FINANCIAL CONDUCT AUTHORITY Respondent
- and -
JOHN VARLEY Interested Party
Representation:
For the Applicants: Andrew George KC and Simon Pritchard, counsel instructed by Willkie
Farr & Gallagher (UK) LLP
For the Respondent: Paul Stanley KC, Tom Broomfield and Vincent Scully, counsel
instructed by the Financial Conduct Authority
For the Interested Party: Javan Herberg KC instructed by Mishcon de Reya LLP
1
DECISION
INTRODUCTION
1.We have made various directions following a case management hearing (“CMH”) held on 26
June 2024. The CMH was held pursuant to the directions of Judge Jones released on 21 March
2024 following an earlier CMH on 29 February 2024. The purpose of the latest CMH was to
determine whether Mr John Varley should be summoned as a witness at the hearing of the
applicants’ references (we refer to the applicants as “B Plc”, “BB Plc” and together as
“Barclays”). The hearing of the references is listed for 3 weeks commencing 25 November
2024. We record in this decision our reasons for directing that a witness summons shall be
issued to Mr Varley.
2.The references concern Barclays’ communications to the market, including holders and
potential holders of Barclays’ listed equity securities, in relation to two capital raisings, one in
June 2008 and one in October 2008 (“the Capital Raisings”). The Capital Raisings took place
at the time of the 2008 financial crisis.
3.The Financial Conduct Authority (“the Authority”) made findings and imposed penalties
against Barclays in decision notices dated 23 September 2022. The Authority’s case against
Barclays comprises two distinct elements, set out at [14] of the Authority’s statementof case
dated 16 December 2022:
3.1.Allegations that Barclays were in breach of the Listing Rules in failing to take
reasonable care to ensure that information contained in announcements and
prospectuses relating to the Capital Raisings was not misleading, false or deceptive
and did not omit anything likely to affect their import;
3.2.An allegation against B Plc that it failed to act with integrity in breach of Listing
Principle 3 (“the LP 3 allegation”) in connection with the October Capital Raising
because Mr Varley recklessly approved an announcement and prospectus in
circumstances where he was aware of the risk that B plc had not taken reasonable care
to ensure that the relevant prospectus and announcement was not misleading, false or
deceptive and did not omit the information likely to affect its import.
4.Barclays deny all allegations. In respect of the LP 3 allegation, B Plc also denies that Mr
Varley’s state of mind can properly be attributed to B Plc. However, what is relevant for present
purposes is that B plc denies that Mr Varley acted recklessly or that he was aware of any risk
that B Plc had not taken reasonable care.
5.It is common ground between the parties that if Mr Varley is summoned to give evidence in
respect of the LP 3 allegation, then it should be as a witness for Barclays. Barclays have made
an application dated 21 June 2024 for awitness summons to be issued to Mr Varley. That
application is made subject to the Tribunal being satisfied that it is fair for Mr Varley to be
called as a witness.
6.Barclays maintain that in the circumstances set out below it would not be fair for Mr Varley to
be required to give evidence in these proceedings. As such, they submit that the Tribunal should
refuse the application for a witness summons. In the event that we do refuse Barclays’
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