“4 (1) The respondent in a single regulator case must send or deliver a written statement (“a statement of case”) in support of the referred action so that it is received by the Upper Tribunal no later than 28 days after the day on which the respondent received from the Upper Tribunal the notification required by paragraph 3(4)(b). … (3) The respondent must provide with the statement of case a list of— (a) any documents on which the respondent relies in support of the referred action; and (b) any further material which in the opinion of the respondent might undermine the decision to take that action.” … 6 (1) After the applicant’s reply has been sent or delivered, if there is any further material which might reasonably be expected to assist the applicant’s case as disclosed by the applicant’s reply and which is not listed in the list (or lists) provided in accordance with paragraph 4(3) (or paragraph 4A(6) where applicable), the respondent must send or deliver to the Upper Tribunal a list (or lists) of such further material.”
“This is the second occasion in recent times that the Tribunal has had cause to be troubled by the Authority’s approach to limitation and disclosure: see Arif Hussein v FCA[2018] UKUT 0186 and the earlier interlocutory decision at[2016] UKUT 0549 and it is also a matter that has concerned the Complaints Commissioner, who observed that the approach to the limitation issue in that case was suggestive of a closed-minded attitude.”
“(1) On the application of a party or on its own initiative, the Upper Tribunal may— 20 (a) by summons (or, in Scotland, citation) require any person to attend as a witness at a hearing at the time and place specified in the summons or citation; or (b) order any person to answer any questions or produce any documents in that person's possession or control which relate to any issue in the proceedings. .… (4) A person who receives a summons, citation or order may apply to the Upper Tribunal for it to be varied or set aside if they did not have an opportunity to object to it before it was made or issued.”
“..it is undoubtedly true, that if a party calls a witness to prove a fact, he cannot, when he finds the witness proves the contrary, give general evidence to shew that that witness is not to be believed on his oath, but he may shew by other evidence that he is mistaken as to the fact which he is called to prove.”
“A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony.”
“… it is impossible to suppose the legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own witness by other evidence relevant to the issue,—a right not only fully established by authority, but founded on the plainest good sense. The other is, that the section requires the judge to form an opinion that the witness is adverse, before the right to contradict, or prove that he has made inconsistent statements, is to be allowed to operate.”
“88.We understand that the proceedings in this Tribunal are largely based on the adversarial tradition and that it is normally a matter of choice on the part of a party as to which witnesses it will choose to call. However, regulatory proceedings of this kind do have important differences from the usual adversarial processes of civil litigation. Tribunal proceedings are designed to be more informal and flexible than traditional court proceedings. It will be sometimes necessary for the Tribunal to perform a more inquisitorial role. That follows from the fact that the Tribunal is part of the regulatory process and in many respects stands in the shoes of the Authority when considering the subject matter of references. 89.In relation to a non-disciplinary reference, the powers of the Tribunal are more limited, and, as envisaged by s133 (6A) (c) FSMA, the Tribunal needs to consider the procedural and other steps taken in connection with the making of the Authority’s decision. Consequently, the Tribunal’s proceedings in such cases are very similar in character to judicial review proceedings. It is well established in such proceedings that a duty of candour on the part of a public authority is expected, it having been recognised that in such circumstances a public authority is not engaged in ordinary litigation but in a common enterprise with the court to fulfil the public interest in upholding the rule of law. That means that the Authority should assist the Tribunal with full and accurate explanations of all the facts which are relevant to the issues which the Tribunal must decide.”
“We do not consider it necessary to decide definitively whether a judge in civil proceedings has, at any event since the introduction of the Civil Procedure Rules, power to call a witness in circumstances where neither party wishes to call him. We observe that the position may differ depending on whether the suggestion that the witness be called is first made after final speeches or much earlier in the litigation.”
“210. The Tribunal is empowered to strike out part or all of a party’s case. This power is set out in UT Rule 8 which provides relevantly as follows: “8(3) The Upper Tribunal may strike out the whole or a part of the proceedings if— … (c) … the Upper Tribunal considers there is no reasonable prospect of the appellant’s or the applicant’s case, or part of it, succeeding. … (7) This rule applies to a respondent or an interested party as it applies to an appellant or applicant except that— (a) a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent or interested party from taking further part in the proceedings; and ... (8) If a respondent or an interested party has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Upper Tribunal need not consider any response or other submission made by that respondent or interested party, and may summarily determine any or all issues against that respondent or interested party.” 211.The strike out power under 8(3)(c) may thus be exercised to bar the Authority (as respondent) from taking further part in the proceedings on the FSN Reference by virtue of rule 8(7)(a) and summarily determine proceedings against it by virtue of rule 8(8). The power may be exercised if the Tribunal is satisfied that there is no reasonable prospect of the Authority’s case succeeding. 212.The test for strike out under the above UT Rules is the same as that applied under Part 24 of the Civil Procedure Rules. The relevant principles were set out by Lewison J (as he then was) in Easyair Ltd (t/a Openair) v Opal Telecom Ltd[2009] EWHC 339 (Ch) at [15]; (as cited in The First De Sales Partnership and others v HMRC[2018] UKUT 396 (TCC) at [33]). One of the principles set out in Easyair concerned the proper approach of the Court when considering strike out based on a point of law. Lewison J found as follows (at [15(vii)]): “…it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be.” 30 213.The first stage in BCMUK’s strike out application is a pure question of law and the Tribunal has already decided that it should “grasp the nettle” and finally determine it – as Judge Herrington indicated in his Reasons for the Directions, at paragraph 27. This stage requires the Tribunal to take the Authority’s pleaded case at its highest and determine whether that case has a “reasonable prospect” of establishing the matters deemed legally necessary by the first question.”