“(6) In any other case, the Tribunal must determine the reference or appeal by either— (a) dismissing it; or (b) remitting the matter to the decision-maker with a direction to reconsider and reach a decision in accordance with the findings of the Tribunal. (6A) The findings mentioned in subsection (6)(b) are limited to findings as to— (a) issues of fact or law; (b) the matters to be, or not to be, taken into account in making the decision; and (c) the procedural or other steps to be taken in connection with the making of the decision. (7) The decision-maker must act in accordance with the determination of, and any direction given by, the Tribunal.”
“(1) The costs of and incidental to – (a)…. (b) all proceedings in the Upper Tribunal, shall be in the discretion of the Tribunal in which the proceedings take place. (2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid. (3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.”
“10(3) …. the Upper Tribunal may not make an order in respect of costs or expenses except— … (d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings; (e) if, in a financial services case … the Upper Tribunal considers that the decision in respect of which the reference was made was unreasonable.”
“[47](1) The rule is a threshold condition. It is only if the tribunal concludes that a party has acted unreasonably in the relevant respect that the question of the exercise of a discretion to award costs can arise. A determination of the question whether a party has, or has not, acted unreasonably is, accordingly, not the exercise of a discretion, but a matter of value judgment.”
“[146] As a result of my conclusions on the Applicants’ primary case, I only have jurisdiction to make a costs order in respect of the Third FX Transaction and the other matters referred to at [116] above. [147] In relation to the Third FX Transaction, it is clear that the appropriate order to be made is that each of Mr Seiler and Mrs Whitestone should have the costs which have been incurred by them in dealing with that issue in the Tribunal proceedings. It is clearly the case, as a result of my decision that the Authority acted unreasonably in defending the proceedings in the Tribunal on the basis of the allegations relating to that transaction, that each of those parties have incurred extra costs. [148] In relation to the other matters, it seems to me that it cannot be established that either party has incurred any cost in the Tribunal proceedings that can clearly be said to have been caused by the failures on the part of the Authority that I have identified. However, as the authorities demonstrate, causation is only one of the factors that I must take into account in deciding whether to exercise my discretion to make a costs order. It may well be the case that the issues which the Tribunal had determined would have been easier to determine had, for example, the other potential witnesses referred to been available to give evidence. I accept, as Mr George [counsel for the Authority] submitted, that it may have been the case that extra costs were incurred as a result of there being additional witnesses to cross-examine. Likewise, it may well be the case that had the Authority responded more appropriately to the request for clarification the issues would have been easier to determine. [149] In my view the failings of the Authority in relation to its approach to potential witnesses were serious. The Tribunal has in previous cases criticised the Authority for its failure to call appropriate witnesses. Mr Neary’s letter to FINMA referred to above indicates that the Authority is aware of those criticisms but did not take them sufficiently seriously in this case. [150] Likewise, I consider, informed by the background of the Authority’s failings in its investigation, that the failure to engage with Mr Seiler regarding the request for clarification and details of the investigation were serious matters. [151] Therefore, I consider that it would be appropriate to make a limited costs order. I therefore direct that the Authority pay to each of Mr Seiler and Mrs Whitestone 5% of the costs incurred by each of them in relation to the proceedings in the Tribunal, other than in respect of the Third FX Transaction which I have dealt with separately above.”
“[116] Mr Seiler submitted that there were also specific aspects of the Authority’s conduct in the course of the proceedings which were unreasonable as follows: (1) The Authority unreasonably failed to call material witnesses: (a) The Tribunal noted at [93(4)] that the Authority’s own witness accepted that Mr Campeanu would have had relevant evidence to give about a number of key issues. His evidence would have been relevant in Mr Seiler’s case to what Mr Campeanu’s responsibilities were, what Mr Seiler believed he was doing and what he told Mr Seiler: [109]. The Authority should have called him in the public interest: [112]. (b) The Authority interviewed, but did not call Mr Narrandes, although he could have given evidence of Compliance procedures in London. This was directly relevant to Mr Seiler’s understanding of what reviews would have been carried out in London by the time the arrangements came to him, and to the allegation concerning Mr Campeanu’s email of30 November 2012 . (d) The Authority provided no explanation of whether it even considered seeking assistance from Ms Thomson Bielmann or Mr Courrier, although they would clearly have had highly relevant evidence to give: [97]. (2) The Authority refused to answer Mr Seiler’s request for clarification about what it said multiple other individuals knew about the transactions and relationship between Mr Merinson and Mr Feldman. The Authority said that it did not advance a positive case on those individuals’ knowledge. Yet, as Mr Neary accepted and the Tribunal found, “in assessing whether a person’s reaction showed a lack of integrity, it is relevant to look at how other people reacted at the time”: [153]. The Authority simply refused to engage with this seriously undermining aspect of the evidence. That failure was unreasonable, and rendered its entire case, and the way it was brought before the Tribunal, highly unsatisfactory. (3) The Authority unreasonably declined to respond to Mr Seiler’s repeated requests for details of its investigation. By letters dated 8 April and23 May 2022 , Mr Seiler asked the Authority to provide details of requests for information and documents made in the course of its investigations. The Authority’s response was that it had complied with its disclosure obligations and the request was disproportionate. Aside from the fact that such confidence was misplaced, the Authority considered its document gathering processes sufficiently relevant that it decided to call Mr Neary to explain them in detail. His witness statement revealed significant gaps and flaws in the investigation. Had the Authority answered Mr Seiler’s questions in April or May 2022, attention could have been drawn to these gaps and the Authority could have reconsidered whether to discontinue the proceedings, or to seek to remedy its investigative failings. (4) The Authority’s decision to continue to rely on the Third FX Transaction. [117] I can deal very briefly with the Third FX Transaction. For the same reasons given as to why it was unreasonable for the RDC to have relied on that transaction in the Decision Notice, it was clearly unreasonable of the Authority to persist with the allegation in the Tribunal proceedings. Accordingly, I have jurisdiction to consider the making of a costs order in relation to that matter. [118] As far as the absence of material witnesses is concerned, there is no question that the Tribunal would have been assisted by evidence from Mr Campeanu, Mr Courrier, Ms Thomson Bielmann and Mr Narrandes. [119] I accept that the fact that the Authority was of the view that Mr Campeanu could not be tendered as a witness of truth created some difficulty. I also accept that the Authority did not seek to rely in these references primarily on what Mr Campeanu said in his30 November 2012 email, as opposed to the position it took in the JBI Final Notice. Nevertheless, the Authority was clearly influenced by Mr Campeanu’s account of events and he was subject only to a less than challenging interview. In the circumstances, the Authority should have sought directions from the Tribunal as to whether Mr Campeanu should be called as a witness and, if so, how that should be managed. However, the Authority gave no consideration to that issue. [120] In relation to the other potential witnesses the Tribunal said this is at [97] and [98] of the Decision: “97. Of course, there may be a satisfactory explanation for the absence of particular potential witnesses. There may have been practical difficulties in obtaining evidence from Ms Thomson Bielmann and Mr Courrier, who we understand to be resident in Switzerland, but we had no explanation from the Authority as to whether they did at any stage consider seeking assistance from these potential witnesses in any respect. They would clearly have had highly relevant evidence to give. 98.However, that does not appear to be the case as regards Mr Narrandes and it is clear from the transcript of his interview with the Authority, which was in the trial bundle, that he had some recollection of dealing with Mrs Whitestone as regards issues arising out of the proposed arrangements with Mr Merinson.” [121] I do not accept Mr George’s submission that the Tribunal’s comments at [98] were not sufficient to justify a finding that the Authority acted unreasonably in failing to call Mr Narrandes. The Authority appears to have given no consideration as to whether he should be called and it was clear from what the Tribunal said at [99] as well as [98] that the Tribunal regarded his absence as unsatisfactory. [122] As regards Ms Thomson Bielmann and Mr Courrier, at [97] the Tribunal made it clear that it had not been told whether or not attempts had been made to seek the attendance of these potential witnesses. At the time of the hearing of the references the Authority knew that attempts had been made. That the Authority chose not to disclose that fact to the Tribunal during the hearing or at the time of receiving the draft decision which contained what was said at [98] is totally unacceptable. It was only shortly before the hearing of the costs application that the correspondence the Authority had had with those potential witnesses in June and July 2022 was disclosed to the Tribunal and the Applicants. [123] The correspondence demonstrates that the efforts the Authority took to obtain the assistance of Ms Thomson Bielmann and Mr Courrier, initially through FINMA, were utterly feeble. The steps that the Authority took cannot be regarded as reasonable efforts in that regard. It was quite clear from the tone of the correspondence that the Authority was in effect encouraging a negative answer to its request and that it was in effect only going through the motions to give the pretence that it was serious about obtaining the assistance of these individuals. This is apparent from paragraph 16 of Mr Neary’s letter of16 June 2022 to FINMA where he said: “We think it is quite likely that many, if not all, of the individuals will decide not to participate in the UK proceedings, but it is important for the FCA to demonstrate to the Upper Tribunal that we tried to obtain all relevant evidence for the Tribunal’s consideration.” [124] As is apparent from what I have said above, the Authority took no steps to demonstrate to the Tribunal that it had tried to obtain all relevant evidence. [125] As Mr Strong submitted, it is not the case that further steps could not have been taken to obtain assistance from those potential witnesses notwithstanding the fact that they were outside the jurisdiction. The Tribunal has by virtue ofs 25 of the Tribunals, Courts and Enforcement Act 2007 the same powers as the High Court as regards the attendance and examination of witnesses, so that the issue of Letters of Request was one possible course of action. [126] It does not appear that any consideration was given by the Authority to this possibility. In these days of global financial institutions, matrix management and cross-border business it is inevitably the case that in complex investigations, evidence from witnesses based overseas is frequently going to be highly relevant. It is no good for the Authority simply to wring its hands and say there is nothing we can do to secure the attendance of a witness, who if he or she is asked only on the basis that it is up to him or her whether they wish to assist or not, will inevitably politely decline to assist, as happened in this case. [127] In any event the gentle requests that were made came impossibly late, only a few months before the fixed date of the substantive hearing. [128] I therefore conclude that the Authority acted unreasonably in the conduct of the proceedings in relation to its approach to potential witnesses referred to above. [129] As regards the Authority’s failure to engage with Mr Seiler’s request for clarification about the knowledge of others within Julius Baer and details of the investigation, I find the Authority’s response to these requests to be unreasonable. I accept Mr Seiler’s submissions that the Tribunal would have been assisted had the Authority given a more positive response, because, as Mr Neary accepted in his evidence, it is relevant to look at how other people reacted at the time. However, for the reasons I have given, this failure has not affected my conclusion that the Authority’s decision to defend the references was not unreasonable”
“(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision. (2) Any party to a case has a right of appeal, subject to subsection (14).”
“[13] We were concerned that the Appellants' Grounds of Appeal and Skeleton Argument appeared to proceed on the basis that we should, in effect, conduct a rehearing of the justification issue. There appeared to be no recognition of the fact that the right to appeal from the Upper Tribunal to the Court of Appeal is limited to an appeal "on any point of law" arising from the Upper Tribunal's decision: seesection 13(1) of the Tribunals Courts and Enforcement Act 2007 . [14] The dividing line between law and fact in the context of appeals from the Tribunal system established by the 2007 Act has recently been considered by the Supreme Court in R (Jones) v First-tier Tribunal[2013] 2 WLR 1012 ,[2013] UKSC 19 . In paragraph 16 of his judgment Lord Hope said: "A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first-tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by specialist appellate tribunals." See also per Lord Carnwath at paragraphs 40-47. [15] The particular expertise of the Social Security Commissioners, (now part of the Administrative Appeals Chamber of the Upper Tribunal) in the highly specialised area of social security law has been recognised by this Court in a number of cases, including Cooke v Secretary of State for Social Security (2003) 3 A11 ER 279 at paragraphs 15-17; which was recently cited with approval by Baroness Hale in paragraph 49 of her judgment in R (Cart) v Upper Tribunal[2012] 1 AC 663 ;[2011] UKSC 28 . [16] …. [17] .… [18] The submission that the Court should consider the appeal in accordance with the usual approach inCPR 52.11 ignores the limitation expressly imposed bysection 13(1) of the 2007 Act . I do not accept the submission that the issue of justification raised in this appeal is an issue which was outwith the expertise of the Upper Tribunal, nor do I accept the submission that the issue before the Upper Tribunal was one of "constitutional significance." It is common ground that there was no direct or targeted discrimination in these three appeals. In my judgment, the question whether the indirectly discriminatory effect of a particular rule in the benefits system because it does not distinguish between mental patients and other patients in hospital is, or is not, "manifestly without reasonable foundation" is very far from being an issue of "constitutional significance". On the contrary, it is precisely the kind of issue that is best left for evaluation and judgment by a specialist appellate tribunal with a particular expertise in the field of social security law. If, as in the present case, the First-tier Tribunal has not applied the correct legal test when deciding the issue of justification, that specialist appellate tribunal is the Administrative Appeals Chamber of the Upper Tribunal. I will therefore consider whether the Appellants have demonstrated an error of law on the part of a tribunal which has a particular expertise in the benefits system.”
“[57] Finally, the nature of the exercise required is such that an appellate court should not interfere with the trial judge's evaluation of the circumstances unless the conclusion reached is plainly wrong in the sense that it was not reasonably open to the trial judge or that the judgment discloses some error of principle. That was a submission which the Court of Appeal did not need to decide in Scott v Copenhagen Re but, in my view, it is correct in principle. For example, in Assicurazioni Generali Spa v Arab Insurance Group[2002] EWCA Civ 1642 ,[2003] 1 WLR 577 Lord Justice Clarke said: "16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way." [59] This approach has often been followed. Again by way of example, in Walter Lilly & Co Ltd v Clin[2021] EWCA Civ 136 ,[2021] 1 WLR 2753 , Lady Justice Carr said: "86. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. 87. The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise." [59] Some further support for this view in the present context can be derived from Simmonds v Gammell, where Sir Jeremy Cooke was right to consider that the relevant question was whether the arbitrators were "entitled" to decide the case as they did. Although an appeal from arbitrators involves the additional feature that the court's jurisdiction is limited to determining a question of law arising out of the award, and that it has no jurisdiction to review the arbitrators' factual findings, Sir Jeremy Cooke was right in my view to regard the issue as requiring the kind of exercise of judgment with which an appellate court will not interfere in the absence of an error of principle.”
“[86] …. Therefore, when Mr Blunt said in his witness statement that the Authority considers that convictions for non-financial misconduct are indicative of an individual’s lack of integrity and impact that individual’s reputation, that did not appear to be the settled position at the time the Authority became aware of Mr Frensham’s conviction. That only became apparent after a long period of reflection, and it appears that the Authority was reluctant for it to be known that that was the position. [87] We regard it as unsatisfactory that the Authority did not put forward appropriate witnesses and that those witnesses who did attend were not properly prepared…. [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.”
“[38] Furthermore, in my judgment it is important for the Tribunal to consider all the facts and evidence put before it on a reference under section 57. There are two reasons for this. The first is that its consideration of a reference is not ordinary civil litigation. There is a public interest in ensuring, so far as possible, that persons who are not fit and proper persons to perform functions in relation to a regulated activity are precluded from doing so. A narrowing of the inquiry by the Tribunal that excludes relevant material from its assessment of an applicant is to be avoided, provided, of course, that the applicant is given a fair opportunity to address the Authority's case. In Mr Hobbs' case, it could not be suggested, and was not suggested, that he did not have a fair opportunity to address the allegations that he had been guilty of repeated and persistent lying. The second reason is that if the Tribunal incorrectly restricts its determination, it may be difficult for the Authority to rely on the excluded facts in future in assessing, for example, whether the Applicant is a fit and proper person, or should be granted an authorisation he seeks to engage in a regulated activity…..”
“[21] It is important, in my view, to begin by considering the regulatory scheme established by the Act. I have already described its essential characteristics, which I need not repeat. The disciplinary procedure involves, first, an administrative process under which the FSA decides whether to impose a penalty on a person for whom it has regulatory responsibility. Although the function of the RDC carries with it an obligation to act fairly and to give fair consideration to any representations made to it, the RDC remains an organ of the FSA and the giving of a Decision Notice is the final step in a disciplinary process conducted by the FSA. The statutory right to refer the matter to the Upper Tribunal enables the person subject to the disciplinary procedures to remove the matter from the sphere of the FSA for a fresh decision by an expert tribunal exercising a judicial function. That is the context in which the question falls to be decided. Although separate from the FSA both in terms of its constitution and function, the tribunal is nonetheless an integral part of the regulatory scheme established under the Act.”
“[37] The purpose of establishing the FSA to regulate the financial services industry and associated markets was to place responsibility for ensuring the maintenance of high standards in the hands of an expert body. It is not surprising, therefore, that the statutory scheme included provision for disputes relating to decisions taken by the FSA in the exercise of its regulatory functions to be referred to an expert tribunal. It would be surprising, therefore, if Parliament had intended that disputes relating to the procedure adopted by the FSA should be reviewed by the courts, save in the most exceptional cases.”
“[94] It was a striking feature of this case that those witnesses connected with JBI who the Authority itself called to support its case, that is Mr Porter and Mr Bates, had only a peripheral involvement with the arrangements. The Tribunal has had cause to criticise the Authority before as to its to failure to call witnesses who may have given relevant evidence. [reference was then made to Forsyth v Financial Conduct Authority[2021] UKUT 0162 (TCC) at [75] to [76]] [95] … [96] In Frensham v Financial Conduct Authority[2021] UKUT 0222 (TCC) the Tribunal referred to the fact that regulatory proceedings, particularly those where, as in this case, the Tribunal exercises a supervisory rather than a full merits jurisdiction, have significant differences from civil litigation…. [97] Of course, there may be a satisfactory explanation for the absence of particular potential witnesses. There may have been practical difficulties in obtaining evidence from Ms Thomson Bielmann and Mr Courrier, who we understand to be resident in Switzerland, but we had no explanation from the Authority as to whether they did at any stage consider seeking assistance from these potential witnesses in any respect. They would clearly have had highly relevant evidence to give.”
“[923] In relation to the other matters raised by Mr Jaffey and other matters on which we have made observations, we do not consider it necessary to make any formal recommendations, but we encourage the Authority to take heed of the following matters referred to in this decision. [924] First, our observations set out at [93] to [114] above as to the failure of the Authority to call key witnesses, notwithstanding the Tribunal’s exhortation in previous cases to assist the Tribunal with full and accurate explanations of all the facts which are relevant to the issues which the Tribunal must decide. It should not be the case that as a tactical decision the Authority declines to call a witness who can assist the Tribunal with relevant information so as to benefit its own theory of the case. [925] Second, our observation at [119] above that it is for the Authority to give serious consideration as to whether it is appropriate to continue with an investigation which it does not have the resources to complete within a reasonable period of time and where it has decided that its priorities for its limited resource lie elsewhere. [926] Third, the Authority should consider the appropriateness of conducting contested proceedings against individuals on the basis of its acceptance of a version of events put forward by the employer of those individuals who is keen to settle the separate proceedings taken against that firm without the Authority conducting its own rigorous investigation into the individuals concerned. Many of the difficulties in this case have arisen as a result of the Authority taking that course of action and relying primarily on the internal investigations commissioned by JBI into the events which are relevant to these references. [927] Fourth, our observation at [134] to [138] regarding Mr Campeanu. [928] The Authority swallowed hook, line and sinker what Mr Campeanu said in his email of30 November 2012 and based its own theory in its proceedings against the Applicants on it. It continued to do so notwithstanding its later doubts about Mr Campeanu’s veracity, his dubious status as a whistleblower, and the subsequent disclosures that were made.”
“(1) On the application of a party or on its own initiative, the Upper Tribunal may— (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. (2) A summons or citation under paragraph (1)(a) must— (a) give the person required to attend 14 days' notice of the hearing or such shorter period as the Upper Tribunal may direct; and (b) where the person is not a party, make provision for the person's necessary expenses of attendance to be paid, and state who is to pay them. (3) No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law in the part of the United Kingdom where the proceedings are due to be determined.”
“[95]…. The Authority contends that it is clear that Mr Weller’s evidence is likely to be of substantial assistance to the Tribunal, having regard to his role in the creation of the Presentation and his status as a senior employee at the Bank’s London Branch. However, it says that it would not be appropriate for the Authority to call Mr Weller as its own witness, in circumstances where (i) the Authority has found that Mr Weller’s conduct in relation to the Presentation lacked integrity; (ii) there is an absence of regulatory finality as between the Authority and Mr Weller (with the Authority being precluded from issuing a Final Notice to him pending the determination of these references); and (iii) the Authority does not accept important aspects of Mr Weller’s characterisation of relevant events, including his own conduct in relation to the Presentation.”
“Please clarify the following: (1) Is it alleged that Mr Seiler knew any facts and matters in July 2010 material to an awareness of the alleged Relevant Risks which were not known to Ms Thomson Bielmann? (2) If so, what facts and matters is it alleged Mr Seiler knew in July 2010 which Ms Thomson Bielmann did not know? (3) Is it alleged that a reasonable person in the position of Ms Thomson Bielmann in July 2010 would have been aware of the alleged Relevant Risks? (4) If not, what distinction does the Authority draw between the position of Mr Seiler in July 2010 and that of Ms Thomson Bielmann?”
“This is not a proper request for clarification of the Authority’s case. The passage in the Statement of Case of which clarification is requested is clear and none of the questions asked seek in any way to elucidate the meaning, or request further particulars, of that passage. In any event, the Authority makes no positive case in relation to the knowledge of Ms Thomson Bielmann or the comparative knowledge of Ms Thomson Bielmann and Mr Seiler. The Authority’s case against Mr Seiler is as set out in the Authority’s Statement of Case.”
‘If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v. ASLEF (No. 2)[1972] 2 QB 455 , per Lord Denning MR, at p 493’
“… the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings.”
“If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that, this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination.”
“if it appears to it that an individual is not a fit and proper person to perform functions in relation to a regulated activity carried on by— (a) an authorised person, (b) a person who is an exempt person in relation to that activity, or (c) a person to whom, as a result of Part 20, the general prohibition does not apply in relation to that activity.”