Banque Havilland SA & Ors v The Financial Conduct Authority

A witness summons is justified where there is a real likelihood that the witness will give evidence materially assisting the Tribunal. The evidence need not be essential. The Tribunal must then decide, in all the circumstances, whether compelling attendance would be unfair and oppressive. That requires a fact-sensitive balancing exercise, including the witness’s position, the materiality of the evidence, fairness to the parties, and the consequences of proceeding without it. A party may rely on part of a witness’s evidence while inviting the Tribunal to reject other parts, provided the witness can be properly tested. In regulatory proceedings, ongoing proceedings against the proposed witness are a significant consideration, but they do not necessarily prevent a summons. The application was granted.

The Financial Conduct Authority applied for a witness summons requiring David Weller, a non-party subject to related regulatory proceedings, to attend the hearing of references brought by Banque Havilland SA, Edmund Lloyd Rowland and Vladimir Bolelyy. Mr Weller had declined to give evidence voluntarily. His evidence concerned the preparation and dissemination of a presentation allegedly proposing a manipulative trading strategy involving Qatari bonds.

An earlier application that the Tribunal summon Mr Weller on its own initiative had been refused by Judge Herrington in [2024] UKUT 00115 (TCC). The present application required the Tribunal to determine whether Mr Weller’s evidence was likely materially to assist the references and whether compelling him to give evidence would be unfair and oppressive.

1. Application granted. The Tribunal would issue a witness summons to Mr Weller, subject to further directions.

2. The Authority had established a real likelihood that Mr Weller’s evidence would materially assist the Tribunal. His involvement in preparing the presentation made him an important witness on its origins, preparation, dissemination, subsequent events and the capacity in which the individuals involved had acted. His evidence was important but not essential, particularly because interview evidence might be admissible under section 174 of the Financial Services and Markets Act 2000.

3. The applicable test was whether, in all the circumstances, requiring attendance would be unfair and oppressive. The Tribunal rejected an approach based merely on establishing a prima facie case of unfairness. The assessment required a fact-sensitive balancing exercise, including the materiality of the evidence, fairness to the parties, the potential witness’s circumstances and the consequences if the evidence were unavailable.

4. The non-impeachment principles described in R v Smith (Jordan) [2019] EWCA Crim 1151 did not prevent the Authority relying on Mr Weller’s evidence. The Authority was not adducing a previous inconsistent statement or seeking to cross-examine him. It was permissible for the Authority to rely on factual evidence it accepted while leaving the other parties to test evidence it disputed.

5. The fact that evidence might contain credible and non-credible parts did not make it incapable of materially assisting the Tribunal. A specialist Tribunal could assess credibility after hearing the oral and documentary evidence. The reasoning in ACL Netherlands v Lynch [2022] EWHC 1178 (Ch) and McPhilemy v Times Newspapers Ltd (No 2) [2000] 1 W.L.R. 1732 concerned materially different circumstances.

6. Ongoing regulatory proceedings against Mr Weller, the risk of further adverse findings, his lack of representation and the stress caused by the proceedings were significant factors. They did not outweigh the likely assistance of his evidence, the absence of unfairness to the applicants, the possibility of compensation in costs, and the public interest in fully determining regulatory references.

7. The Tribunal could give case-management directions concerning Mr Weller’s evidence in chief, but those directions would not limit relevant cross-examination. The parties and Mr Weller were directed to seek agreement on further directions.

The judgment records an earlier case-management decision by the Upper Tribunal refusing an application to summon Mr Weller on the Tribunal’s own initiative: [2024] UKUT 00115 (TCC). The present application, made by the Authority as a party, was granted.