James Edward Staley v The Financial Conduct Authority

In a regulatory reference, relevant evidence is necessary but insufficient to justify directing a witness to give evidence. The Tribunal must consider whether the evidence will materially assist determination of an issue, alternative evidence and the proposed witness’s position.

The statutory jurisdictional gateway is broad, but amendments remain subject to fairness, the overriding objective and established amendment principles. Oral evidence in chief covering the same ground as a witness statement is not ordinarily justified merely because credibility or state of mind is important.

The applicant referred to the Financial Conduct Authority’s decision imposing a financial penalty and prohibition order under section 56 of the Financial Services and Markets Act 2000. The reference concerned alleged misleading statements about the nature of his relationship with Jeffrey Epstein and the date of their last contact.

Four procedural applications concerned further witnesses, oral evidence in chief, amendments to the Authority’s Statement of Case and specific disclosure. The central issues were the Tribunal’s case-management powers, the scope of the reference and the fairness and utility of the proposed procedural steps.

1. The Potential Witnesses Application was dismissed. A witness summons or direction requires a real likelihood that the evidence will materially assist determination of an issue. Relevant evidence is necessary but insufficient. The pleadings identify the issues, and the conduct of the investigation is not itself an issue on the reference.
2. The Evidence in Chief Application was dismissed. Rule 15(1)(e) permits oral evidence, but cross-examination ordinarily provides a fair opportunity to explain state of mind and tests credibility. The applicant’s circumstances did not justify the unusual course sought.
3. The jurisdictional gateway in section 133(4) of the Financial Services and Markets Act 2000 is broad. New material falls within the reference where it has a real and significant connection with the regulatory process culminating in the decision notice. Permission to amend remains subject to the overriding objective and the principles in [2017] UKUT 0082 (TCC).
4. Amendments concerning post-2015 contact, confidential information and communications indicating closeness were permitted, subject to deletions and corrections. Dishonesty allegations were refused because the pleading did not explain why dishonesty was more likely than recklessness. Allegations that the Reply itself was misleading were matters for submissions and were refused as amendments.
5. The Authority’s documents were retained, but irrelevant material had to be redacted. The disclosure application was largely resolved by undertakings, with a direction that the Authority provide a list of documents shown to witnesses.

This was a procedural decision in an Upper Tribunal reference from a Financial Conduct Authority Decision Notice dated 30 May 2023. No prior appellate decision in this litigation is stated.