SARANAC PARTNERS LIMITED v THE FINANCIAL CONDUCT AUTHORITY [2024] UKUT 00254 (TCC)
Jurisdiction | UK Non-devolved |
Judge | Deputy Upper Tribunal Judge Anne Redston,Tribunal member Ms Susan Dale,Peter Freeman |
Court | Upper Tribunal (Tax and Chancery Chamber) |
Published date | 27 August 2024 |
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UT Neutral citation number: [2024] UKUT 00254 (TCC)
UT (Tax & Chancery) Case Number: UT-2022-0000150
Upper Tribunal
(Tax and Chancery Chamber)
FINANCIAL SERVICES – Decision Notice issued on basis that the Authority not satisfied an
individual was “fit and proper” to perform Chief Executive and Executive Director functions
– Decision Notice referred to Tribunal – possible overlap with references made by Barclays –
– Decision Notice based in part on findings of other court and Tribunal hearings – whether
admissible – whether Tribunal should place weight on them – no witnesses called by the
Authority – whether individual dishonest and/or lacked candour when responding to questions
asked by the Authority during interviews in 2013 and 2014 – held, yes – whether Tribunal
should also make other findings based on evidence put forward by Applicant – yes – if remitted
to consider new facts, the outcome would inevitably be the same – Reference dismissed
Heard on 8-10 July 2024
Judgment given on: 27 August 2024
Before
DEPUTY UPPER TRIBUNAL JUDGE ANNE REDSTON
MS SUSAN DALE
MR PETER FREEMAN
Between
SARANAC PARTNERS LIMITED Applicant
and
THE FINANCIAL CONDUCT AUTHORITY Respondent
Representation:
For the Applicant: Ian Winter KC, instructed by CMS Cameron McKenna Nabarro
Olswang LLP
For the Respondent: Paul Stanley KC, instructed by the Financial Conduct Authority
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DECISION
INTRODUCTION AND SUMMARY
1. Saranac Partners Limited (“Saranac”), the Applicant in these proceedings, is a wealth
and investment management firm founded in 2015 by Mr Thomas Llewellyn Kalaris. Mr
Kalaris had previously been employed by Barclays Bank plc, a subsidiary of Barclays plc
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.
2. On 21 September 2020, Saranac applied to the Financial Conduct Authority
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(“the
Authority”) for approval under s 60 of the Financial Services and Markets Act 2000 (“FSMA”)
for Mr Kalaris to perform the Chief Executive and Executive Director functions for Saranac
(“the Application”).
3. On 17 November 2022, the Authority set out its decision in a decision notice (the
“Decision” and the “Decision Notice”) refusing the Application on the grounds that the
Authority was not satisfied Mr Kalaris was a fit and proper person to perform those functions.
4. In making the Decision, the Authority relied on the responses given by Mr Kalaris during
two interviews with the Authority (“the Interviews”). The first took place in 2013 (“the 2013
Interview”), and related to a capital raising exercise conducted by Barclays in June 2008 and
the Advisory Services Agreement (“ASA”) entered into on the same day. The second took
place in 2014 (“the 2014 Interview”), and related to a report produced for Barclays by a
consultancy called Genesis Ventures (“GenVen” and “the GenVen Report” respectively). This
was produced in March 2012 but only disclosed to Barclays’ regulators in December 2012.
5. On 9 December 2022, Saranac referred the Decision Notice to the Tribunal (“the
Reference” or “the Saranac Reference”). When hearing a reference against this type of
Decision Notice, the Tribunal has a supervisory jurisdiction, so that:
(1) if the Decision was within the range of reasonable decisions open to the Authority,
the Tribunal must refuse the Reference;
(2) if the Decision was not within the range of reasonable decisions, the Tribunal must
allow the Reference and remit the matter to the Authority for it to make a new decision
in the light of our findings; but
(3) if the Tribunal makes findings which are inconsistent with those on which the
Authority based the Decision, but if the matter were remitted, the Authority would
inevitably come to the same conclusion, the Tribunal must refuse the Reference.
6. In relation to the capital raising, the Decision was based on Mr Kalaris’s responses to
four questions asked during the 2013 Interview. We made findings of fact based on the same
documentary evidence as that considered by the Authority, together with Mr Kalaris’s witness
evidence. We went on to agree with the Authority that Mr Kalaris had not been candid in his
answers to three of the questions and that one of his answers was dishonest.
7. In relation to the GenVen Report, the Authority decided that certain of the answers given
by Mr Kalaris during the 2014 Interview had been false and/or misleading. It came to that
conclusion on the basis of findings made in another Tribunal judgment, together with evidence
in a contemporaneous meeting note.
8. For the reasons given at §52ff, we decided not to place reliance on the findings of that
other Tribunal judgment, or the meeting note. However, having considered documentary
1
In this ju dgment we have not distinguished between Barclays plc and Barclays Bank plc unless it is necessary
to do so, but have instead used the abbreviation “Barclays”.
2
References in this judgment to “the Authority” also include the Financial Services Authority, as the Financial
Conduct Authority was previously known.
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evidence which was not in dispute, together with Mr Kalaris’s witness evidence, we found that
he knowingly gave false evidence when he told the Authority in the course of the 2014
Interview that he first became aware of that GenVen Report when shown a copy during a
meeting on 17 December 2012, and so acted dishonestly.
9. We went on to make further findings on the basis of other evidence available at this
hearing, which had not been taken into account by the Authority, and some of those findings
are favourable to Mr Kalaris. However, they are significantly outweighed by our findings
about the Interviews. We are in no doubt that if the matter were remitted to the Authority, it
would inevitably come to the same conclusion, namely that it is not satisfied Mr Kalaris is fit
and proper to perform the Chief Executive and Executive Director functions for Saranac.
Furthermore, we find that the position would be the same if we had made a finding of
dishonesty in relation to only one of the Interviews. We therefore dismiss the Reference. Our
decision is unanimous.
10. Before moving on to the substantive body of this judgment, we explain a procedural issue
considered at the beginning of the hearing which related to two decision notices issued to
Barclays.
THE BARCLAYS REFERENCES
11. On 23 September 2022, the Authority issued a decision notice to Barclays plc, imposing
a penalty of £40m for breaching the Listing Rules in relation to the June 2008 capital raising.
On the same day, the Authority issued a decision notice to Barclays Bank plc imposing a related
penalty of £10m. Both references were referred to the Tribunal (“the Barclays References”).
12. On 19 April 2023, the Authority contacted Saranac’s representative, CMS Cameron
McKenna Nabarro Olswang LLP (“CMS”), inviting that firm to consider how the possible
“overlap” between the two sets of proceedings should be managed, and suggesting that
Saranac’s Reference might be decided “at the same time” as the Barclays References.
13. On 24 April 2023, CMS objected to Saranac’s Reference being joined to the Barclays
References “or in any way determined at the same time”, for reasons which included the
following:
(1) so far as the June 2008 capital raising was concerned, the case against Mr Kalaris
related to the responses he gave in the 2013 Interview, while the case against Barclays
related to whether there had been a failure to comply with the Listing Rules;
(2) the Authority had accepted that Mr Kalaris had no responsibility for Barclays’
decisions relating to the Listing Rules;
(3) the Saranac Reference includes the GenVen issue, which is not part of the Barclays
References, while the Barclays References also relate to the further capital raising in
October 2008, which is not part of Saranac’s Reference; and
(4) Saranac would suffer further delay and an increase in costs if the two cases were
joined.
14. In a later email dated 25 April 2023, CMS said that if the Authority wished to take this
matter further, it should make a formal application to the Tribunal, which Saranac would
oppose.
15. On 2 May 2023, the Authority wrote to the Tribunal, copying both Saranac and Barclays,
setting out extracts from the Saranac Reference and the Barclays References, and then saying:
“Whilst significant parts of the two sets of proceedings do not overlap, it is
clear that in both sets of proceedings what the FCA alleges was the primary/
substantial/true purpose of the June Agreement is not accepted by the
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