CIT, R (on the application of) v The Financial Conduct Authority (No.1) [2025] EWHC 2614 (Admin)

[2025] EWHC 2614 (Admin)AC-2025-LON-003029
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Date Thursday, 23 rd October 2025
Between
FORDHAM JClaimant- - - - - - - - - - - - - - - - - - - - -Between:THE KING (CIT (an anonymised company))THE FINANCIAL CONDUCT AUTHORITYDefendant
SITTING IN LONDON
Oliver Assersohn KC and Hannah Slarks (instructed byMishcon de Reya LLP) for ClaimantPaul Stanley KC (instructed by FCA Legal Division) for Defendant
Hearing Hearing dates: 2 & 3.10.25Draft judgment: 10.10.25Hand-down: 23.10.25
Approved Judgment Part 1
FORDHAM JFORDHAM J:PART 1[2025] EWHC 2614 (Admin)

Introduction

[1]My judgment in this case needed to be written in two separate parts. Each was issued to the parties as a confidential draft judgment. This is Part 1 designated [2025] EWHC 2614 (Admin). It has been written in a way which enabled it to be promptly handed down in public, irrespective of any appeal. It contains everything which can safely be said, and safely reported, in the public domain and at the start. Anonymity and reporting restrictions had been put in place, because publicity would defeat the claim. The Claimant is a company whose anonymity cipher is “CIT” (for the avoidance of doubt the term ‘CIT’ does not appear in the Claimant’s legal name). As explained here in Part 1, I have granted permission for judicial review but am dismissing the substantive claim. That does not, however, mean lifting all restrictions immediately: the Claimant has rights of appeal to the Court of Appeal and may wish to pursue them. Part 2 is a separate judgment, which contains some further detail, using continuation paragraph numbering. Part 2 has been designated [2025] EWHC 2615 (Admin). Whether and when I can hand down Part 2 publicly, and so release it to the public domain, depends on whether an appeal is pursued by the Claimant and, if so, with what arrangements and what outcome in the Court of Appeal. It may at some stage be possible for me to knit Parts 1 and 2 together as a single unanonymised whole.

About this Case

[2]This is a case about the lawfulness of a decision by a regulator, the Financial Conduct Authority (“FCA”). The FCA had decided to undertake the investigation. It had appointed four investigators pursuant to s.168 of the Financial Services and Markets Act 2000. That was notified to the Claimant by letter pursuant to s.170(2). The fact of an investigation does not mean that the FCA has made any adverse findings against the Claimant. Within the decision-maker’s reasons in the present case, there is this clear statement: As the investigation is at its early stages, no findings have been made and we have not reached any conclusions whether regulatory requirements … have been breached.[3]In section 4.1 of an Enforcement Guide (the “Guide”) issued by the FCA pursuant to s.139B of the 2000 Act, there is provision made for “Publicity during FCA investigations”. The decision under challenge is to do two things. First, to publish the fact of an investigation by the FCA into the Claimant as an FCA-regulated company. The Claimant accepts that it could be lawful and reasonable for the FCA to announce the fact of the investigation, including identifying the sector and the concerns, but without identifying the Claimant (“an Anonymised Announcement”). But second, the FCA decided that the announcement of the investigation should name the Claimant as the subject of the investigation (“a Naming Announcement”). The Claimant says the decision to make a Naming Announcement was unlawful and/or unreasonable. That is why publicity would defeat the claim.

The Decision

[4]Here is how the decision was made. The decision-maker within the FCA received a 9-page First Memorandum from three members of the “case team”. Two of them were among a group of four appointed investigators. The three authors of the First Memorandum set out a reasoned recommendation to make an Anonymised Announcement. In response, the decision-maker wrote a two-page email listing “a few points that merit consideration that don’t feature or are underplayed in the memo”. There was a discussion. Four members of the case team – including another one of the appointed investigators – wrote a 17-page Second Memorandum. It contained a reasoned recommendation to make a Naming Announcement. The decision-maker then made the decision. She decided to adopt the recommendation in the Second Memorandum, for the reasons set out there. That means the focus of the challenge is on the reasons in the Second Memorandum. There is an analogy to the situation where a planning decision-maker adopts a reasoned recommendation set out in a planning officers’ report. The FCA wrote to the Claimant to communicate its decision to make the Naming Announcement. The Claimant was given a 24-hour period. There is no challenge based on procedural unfairness.

The Legal Challenge

[5]The Claimant promptly took steps to bring this legal challenge. The FCA agreed to defer any announcement pending a decision from the judicial review Court. The grounds of challenge argue that the decision-maker materially misinterpreted the Guide, or alternatively reached a decision which was unreasonable as to “outcome” or as to its reasoning “process”. Outcome unreasonableness and process unreasonableness are very familiar. As Lord Leggatt explained in R (Finch) v Surrey County Council [2024] UKSC 20 [2024] PTSR 988 at §56, the judicial review Court asks whether the decision is unreasonable “in the sense either that it is outside the range of reasonable decisions open to the decision-maker or that there is a demonstrable flaw in the reasoning which led to the decision”. I have not been able to accept that there is a material misdirection or any unreasonableness in the impugned decision. I will therefore be dismissing the claim.

Anonymity and Reporting Restrictions

[6]I have mentioned that anonymity was ordered in this case, together with a withholding order and reporting restrictions. The Order was made on 10 September 2025 by Chamberlain J. It was promptly published on judiciary.uk. The basis for anonymity was that naming the Claimant would be tantamount to determining the proceedings against it.

Candour Assurance

[7]In the run up to the hearing before me, the FCA made prompt disclosure of relevant documents. It has filed witness statement evidence. The Claimant’s representatives queried whether some further documents should be disclosed. The judicial review Court is familiar with a candour assurance. In R (Police Superintendents’ Association) v Police Remuneration Review Body [2023] EWHC 1838 (Admin) [2024] 1 WLR 166 at §19 the defendant’s barrister gave this “permission stage assurance”:
“Counsel … have read and reviewed the … undisclosed materials – and can assure the court that nothing within the undisclosed material would serve to assist the claim or give rise to any other ground for judicial review”
. See too Streamlining Judicial Review in a Manner Consistent with the Rule of Law (Bingham Centre, February 2014) at §4.3. In the present case, a specific assurance was given to the Claimant and the Court by the FCA through Mr Stanley KC. It was as follows: that the judicial review duty of candour has been complied with; that no undisclosed document could assist the claim or undermine the defence; and that the documents about which the Claimant’s representatives had specifically asked had been read by Mr Stanley KC before giving the assurance. The Court accepted that assurance, as did the Claimant.

Reconstitution as a Rolled-Up Hearing

[8]The hearing before me was initially listed for a contested oral hearing to deal with two things. First, the question of permission for judicial review. Second, the question of whether to make an order – by way of interim remedy – prohibiting the FCA from publishing the fact of an investigation into the activities of the Claimant, pending the substantive resolution of the claim. The FCA’s undertaking not to publish was pending expeditious resolution of interim relief.[9]Sometimes, the judicial review Court is necessarily confined to considering interim relief. The criteria are described in the Court’s Judicial Review Guide 2025 at §16.6. That means threshold-testing the viability of the claim and considering the balance of convenience and justice, by reference to the circumstances, and the public interest. As to viability, the threshold of arguability in judicial review has been described as relatively modest. There is no question in the present case of any jurisdictional or discretionary bar. Arguability means the legal viability of the grounds for judicial review. The conventional test for permission is whether there is arguability with a realistic prospect of success. At a hearing to deal with interim relief, the Court would have been considering whether there was a serious issue to be tried. In general, that is similar to arguability. But a more exacting standard may, for various reasons, need to be considered by the Court. This can be because of the type of order being made, what it is that is being required or prevented (Guide §16.6.1); or how the public interest affects the justice of interim relief; or how human rights considerations feed into the analysis (§16.6.3); or because of the extent to which interim relief will in substance decide the case. The Court would have been thinking about the strength of the claim, alongside and within its consideration of the balance of convenience and justice, having regard to the public interest.[10]This could have been a challenging, and unsatisfactory, exercise in the present case. Suppose the claim were properly arguable, but suppose interim relief were nevertheless refused, the arguable claim would stand defeated. The Naming Announcement would go ahead. It would go ahead even though it was arguably unlawful or unreasonable or both. But suppose the claim is merely arguable, and suppose interim relief were being granted pending a substantive hearing. In that situation, the FCA as a regulator would be being constrained by the Court from making its Naming Announcement. That would be contrary to the decision-maker’s evaluative judgment of the relevant public interest considerations. That could well be restraining action which would prove to be lawful and reasonable. There would be the considerations raised by s.12 of the Human Rights Act 1998 and Article 10 of the ECHR, which the Court would be duty-bound to consider (Guide §16.6.3). It would be necessary to navigate the authorities on interim remedies and restraint of public authority publication of information: see R (GB News Ltd) v Ofcom [2024] EWHC 2658 (Admin) at §36; R (Governing Body of X School) v Office for Standards in Education [2020] EWCA Civ 594 [2020] EMLR 22 at §§77-79. Alongside these considerations, there are the authorities about orders which require a strong prima facie case (Guide §16.6.1), an approach associated with mandatory orders: R (RRR Manufacturing Pty Ltd) v British Standards Institution [2024] EWCA Civ 530 §§87, 112.[11]It is often appropriate for the judicial review Court to think about whether a case raising interim relief is best addressed by expedited substantive resolution (Guide §16.6.4). My provisional view, when reading in for the permission and interim relief hearing, was that the Court was inevitably going to be drawn into consideration of the strength of the claim. All the evidence seemed to be in. The legal merits seemed conducive to substantive resolution, based on focused written and oral submissions, if the Court could at speed provide a suitably longer hearing. This would bypass the difficulties of trying to analyse what should happen next through the prism of interim relief. So, I asked all Counsel this question by email ahead of the hearing:
“can the Court properly grasp the nettle and decide the case substantively, possibly by lengthening the hearing or going part-heard?”
I drew attention to R (IM (Nigeria)) v SSHD [2013] EWCA Civ 1561 [2014] 1 WLR 1870 at §4, where the Court of Appeal dealt with a case which had been listed for urgent interim relief by instead having the substantive hearing 4 days later. I drew attention to R (Anglia Ruskin Students’ Union) v HMRC [2025] EWHC 296 (Admin) [2025] 4 WLR 31 at §§3-4, a permission hearing which became a rolled-up hearing, by cooperation between the parties and the Court.[12]The response exemplified the duty of cooperation which applies in judicial review. The parties, promptly, jointly invited the Court to reconstitute the permission and interim relief hearing which had been listed for two hours, as a rolled-up hearing listed for a day with some time on a second day available should it be needed. The parties were satisfied that all the evidence that they would wish to adduce was already before the Court. They were also satisfied that their legal positions had adequately been set out in writing in the grounds for judicial review and the summary grounds of response, together with the two skeleton arguments. They were satisfied that the Court could grasp the nettle and deal with the case substantively provided that there was sufficient court time. They were also satisfied that this was a preferable way forward in all the circumstances. So was I. And that is how the case proceeded. The Claimant formally undertook to pay the continuation fee if permission was subsequently granted, as is the required practice in cases involving a rolled-up hearing. We switched seamlessly to a rolled-up hearing. We focused on the substantive legal merits.

Listed and Commenced in Public

[13]The parties had jointly invited the Court, ahead of the hearing, to direct that it should be by held in private. There was a solid basis for that joint invitation. But I was not prepared to make any decision on the papers, ahead of the hearing. It was important that the case be listed in open court. It was important that any interested member of the press or public should be told what they could be told about the nature of the case. It was important that any such person should be given an opportunity, if they wished to take it, to make any representations to the Court as to how the case should proceed. And so, the case was listed as a public hearing in open court. The parties had produced redacted skeleton arguments, copies of which were brought to the hearing: see R (Metropolitan Police Commissioner) v Police Misconduct Panel [2025] EWHC 1462 (Admin) at §5. The broad nature of the case and the hearing, including the invited reconstitution as a rolled-up hearing, were all described in open court. Members of the press and public were told that the redacted skeleton arguments were available and these were provided. That served as a substitute for my inviting the advocates to state at the public hearing the various things which were visible and could be read in the redacted skeleton arguments. I was grateful for the clear and helpful representations, made by a member of the press who was in attendance.

Part-Private Hearing and Redacted Skeletons

[14]The decision I then made and announced was this. It was necessary for the purposes of CPR 39.2 to hold the rest of the hearing in private. This was on the grounds that publicity would defeat the object of the hearing. In arriving at that conclusion, I applied a test of strict necessity and minimum derogation from open justice. But I did so having regard to practicality, the overriding objective and proportionality. I considered whether it would be possible to have the advocates make their submissions on the substance in two stages. Stage 1, saying what they could about the substance in open court, but being careful to avoid giving any information which could give rise to the Claimant being identifiable. Stage 2, in a private hearing being there able to ventilate the full breadth of what they wanted to, and needed to, say to the Court. That will very often – and perhaps almost always – be the right way for a Court to proceed. But I decided that that would be a very difficult thing to achieve in the special circumstances of the present case. This was because the context and nature of the case risked that identification, from the start and throughout. The advocates would have been highly constrained. There would have been a massive overlap and duplication, and a substantial lengthening of the time estimate. There would also have been clear risks as to where lines were being drawn; and difficulties as to what could and could not safely be said, and safely be reported.[15]All of this arose in a case where – at short notice – the substance of the case was being argued with a heavily expedited timetable. And all of this, in circumstances where the redacted skeleton arguments had been brought and provided to the member of the press and the member of the public who were at Court. It was pointless and wasteful of Court time to make the advocates read out in open court the contents of those redacted skeleton arguments. I took two further steps. First, I ensured that the redacted pleadings could also promptly be made available. Second, I offered to schedule a time, later in the hearing, when the Court could resume in public and such information as could then be given in public, to describe what had been ventilated at the hearing, would be summarised by the advocates. That offer was not taken up for entirely proper reasons related to the journalist’s other commitments. Finally, I was conscious that in the relatively near future there would be this open judgment from the Court. After consideration with the parties, it would contain as much detail as could properly be provided. In the fullness of time, the further details of the case could be made available, consistently with the outcome.[16]In all this, I reminded myself that it is where “both sides are agreed that information should be kept from the public” that the Court must be at its “most vigilant”: Manchester City FC Ltd v FA Premier League Ltd [2021] EWCA Civ 1110 [2021] 1 WLR 5513 at §56. That point is recognised in CPR 39.2(1), which speaks of the Court’s decision as “irrespective of the parties’ consent”. I was satisfied here that the private hearing was a necessary derogation from open justice and that the approach taken constituted the minimum derogation achievable in the circumstances.

My Substantive Decisions

[17]Having considered all the open points set out in the redacted skeleton arguments, and all the submissions in the written and oral submissions, these are my decisions on the substance of the case. First, I am satisfied that the grounds for judicial review cross the conventional and relatively modest threshold of arguability with a realistic prospect of success. The fact that the arguments have been fully ventilated at a rolled-up hearing is not a reason for modifying that threshold: cf. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 [2020] PTSR 1446 at §264. I grant permission for judicial review on all grounds. Second, I have not been persuaded that the impugned decision involved any material misdirection as to the objectively correct interpretation of the Guide, nor that it involved any unreasonableness as to outcome or reasoning process. I accept the submissions on behalf of the FCA, that the decision was lawful and reasonable. In those circumstances I am dismissing the substantive claim.

The Guide

[18]The parties referred me to Release 50 (August 2025) where section 4.1 of the FCA Enforcement Guide is set out. There are 9 paragraphs within section ENFG 4.1. I will number them [1] to [9] and call them “paragraph [1]” etc. Each is marked “G” in the Guide, which means it has guidance status. Paragraph [4] has two parts, which I am separating below by inserting [4] [i] and [ii]. Here are paragraphs [1] to [9]: [1] ENFG 4.1.1G. The FCA will not normally make public the fact that it is or is not investigating a particular matter, or any of the findings or conclusions of an investigation except as described in other sections of this chapter. The following paragraphs deal with the circumstances in which the FCA may make a public announcement that it is or is not investigating a particular matter. [2] ENFG 4.1.2G. The principal test is that described in ENFG 4.1.4G to ENFG 4.1.5G (the exceptional circumstances test). Notwithstanding this, the FCA may also make announcements concerning suspected unauthorised activity or a suspected criminal offence in relation to unregulated activity as set out in ENFG 4.1.6G, reactive announcements as set out in ENFG 4.1.7G and anonymous announcements as set out in ENFG 4.1.8G. Any announcement will be subject to the restriction on disclosure of confidential information in section 348 of the Act and restrictions imposed by data protection legislation and other applicable statutory restrictions. [3] ENFG 4.1.3G. Where the matter in question has occurred in the context of a takeover bid, and the circumstances in(1) and(2) apply, the FCA may make a public announcement that it is not investigating, and does not propose to investigate, the matter. Those circumstances are where the FCA: (1) has not appointed, and does not propose to appoint, investigators; and (2) considers (following discussion with the Takeover Panel) that such an announcement is appropriate in the interests of preventing or eliminating public uncertainty, speculation or rumour. [4] ENFG 4.1.4G. [i] Where it is investigating any matter, the FCA will, in exceptional circumstances, make a public announcement that it is doing so if it considers such an announcement is desirable to: (1) maintain public confidence in the UK financial system or the market; (2) protect consumers or investors;(3) prevent widespread malpractice;(4) help the investigation itself, for example by bringing forward witnesses; or(5) maintain the smooth operation of the market. [ii] In deciding whether to make an announcement, the FCA will consider the potential prejudice that it believes may be caused to any persons who are, or who are likely to be, a subject of the investigation. [5] ENFG 4.1.5G. The exceptional circumstances referred to above may arise where the matters under investigation have become the subject of public concern, speculation or rumour. In this case it may be desirable for the FCA to make public the fact of its investigation in order to allay concern, or contain the speculation or rumour. Where the matter in question relates to a takeover bid, the FCA will discuss any announcement beforehand with the Takeover Panel. [6] ENFG 4.1.6G. Where the FCA is investigating suspected unauthorised activity or a suspected criminal offence in relation to an unregulated activity, there are often concerns around consumer harm and the FCA generally has no supervisory, intervention or oversight powers to protect relevant consumers. The FCA may make public that it is investigating a named person for suspected unauthorised activity or for a suspected criminal offence in relation to an unregulated activity if it considers such an announcement is desirable for the purpose of warning or alerting consumers or investors, or to help the investigation itself – for example, by bringing forward witnesses. In deciding whether to make an announcement, the FCA will consider the potential prejudice that it believes may be caused to any persons who are, or who are likely to be, a subject of the investigation. [7] ENFG 4.1.7G. The FCA may make a public announcement confirming that it is investigating a named person if that fact has already been made public by that person, an affiliated company or a regulatory body, government or public body. The FCA’s announcement may also confirm the subject matter of the investigation to the extent that it has already been made public in that manner. [8] ENFG 4.1.8G. The FCA may make public that it is investigating a particular matter without naming or otherwise identifying the subject of the investigation, where it is desirable for the purpose of educating persons generally as to the types of conduct that the FCA is investigating or to encourage compliance with the FCA’s rules or other requirements. [9] ENFG 4.1.9G. The FCA will not normally publish details of the information found or conclusions reached during its investigations. In many cases, statutory restrictions on the disclosure of information obtained by the FCA in the course of exercising its functions are likely to prevent publication (see section 348 of the Act). In exceptional circumstances, and where it is not prevented from doing so, the FCA may publish details. Circumstances in which it may do so include those where the fact that the FCA is investigating has been made public, by the FCA or otherwise, and the FCA subsequently concludes that the concerns that prompted the investigation were unwarranted. This is particularly so if the firm under investigation wishes the FCA to clarify the matter.[19]Important features of these provisions, for present purposes, are as follows. Paragraph [1] describes the baseline position, that the FCA “will not normally” make public the fact that it is or is not investigating a particular matter. Alongside that baseline position, there is what is described in paragraph [2] as “the exceptional circumstances test” and “the principal test”. This test is found in a general provision at paragraph [4], but with an example given at paragraph [5]. Paragraph [4] sets out the exceptional circumstances test, with its linked components. A first component is exceptionality, seen in the phrase “in exceptional circumstances”. A second component is desirability, seen in the phrase “such an announcement is desirable to”. A third component is the set of five specified objectives (1) to (5), each of which is linked to desirability. A fourth component is potential prejudice to a person who is an actual or likely subject of the investigation. Then there is paragraph [8], which describes circumstances in which the FCA may make an Anonymised Announcement, by reference to two desirability criteria. They are alternatives. One is general education: ie. desirability for the purpose of educating persons generally as to the types of conduct that the FCA is investigating. The other is compliance encouragement: ie. desirability so as to encourage compliance with the rules or other requirements.

Three Options

[20]All of this means the FCA has three essential options. The first is “No Announcement”, reflected in the paragraph [1] baseline position, where the “fact” of the investigation is not made “public”. The second is an Anonymised Announcement, reflected in paragraph [8], which speaks of announcement “without naming … the subject of the investigation”. The third is the Naming Announcement, where the subject of the investigation is identified. A Naming Announcement provides more information to the public than an Anonymised Announcement. But it is more intrusive for the subject of the investigation. And it involves the greatest potential prejudice, whose relevance in the decision-making is identified in paragraph [4][ii]. It follows from the three options that any decision to take one option involves judging the appropriateness of that course against the other two alternatives. The appropriateness of a Naming Announcement is judged against both alternatives: No Announcement; and an Anonymised Announcement.

Route(s) to an Anonymised Announcement

(s) to an Anonymised Announcement

[21]It is a fact, in the present case, that the case team members who wrote the two Memoranda recognised that the paragraph [8] criteria for an Anonymised Announcement were satisfied. The decision-making proceeded throughout on the basis that an Anonymised Announcement was an available option and therefore a relevant alternative to a Naming Announcement. I asked the advocates whether there was an independent route to an Anonymised Announcement under the terms of the Guide. The point is this: in considering paragraph [4] exceptionality, by reference to desirability in pursuit of a specified objective, an Anonymised Announcement would always be a less intrusive measure to a Naming Announcement, especially having regard to the paragraph [4][ii] potential prejudice. The First Memorandum expressed the position that paragraph [8] is not an “exclusive” basis on which an Anonymised Announcement could be adopted, but that “in practice” it was anticipated that a paragraph [8] criterion would also be met wherever an Anonymised Announcement was made. Mr Assersohn KC offered to provide further submissions in writing on whether paragraph [8] is an exclusive route. His primary position was that this interesting point is academic in the present case, and no more need be said. I will say no more. It is sufficient for present purposes that an Anonymised Announcement was a recognised, live alternative to a Naming Announcement, in the application of paragraph [4].

Division of Responsibility

[22]A central underpinning of public law is the recognition of a division of responsibility between defendant public authorities and the judicial review Court. Constitutionally, it is an aspect of the separation of powers. It is why the Court’s jurisdiction is described as “supervisory”. It is why defendant public authorities are often described as “the primary decision-maker”. There is no material dispute as to the division of responsibility between the FCA as the regulator and the judicial review Court. The FCA is obliged to interpret the Guide correctly. The FCA is reviewable, on a correctness standard, for its interpretation of the Guide. The objectively correct meaning of the Guide is a question which belongs ultimately to the Court. On interpretation, the Court is the primary decision-maker. I will apply objective correctness to questions of interpretation.[23]Beyond interpretation, there is application. The FCA is obliged to apply the Guide reasonably. Take the questions about whether circumstances are exceptional; about whether an announcement is desirable to further a specified objective; about whether and what potential prejudice arises; about whether that prejudice is outweighed by the desirable pursuit of objectives. These are all questions which belong to the FCA as primary decision-maker. So does the ultimate question: which of the three options is the appropriate regulatory response? That question is not for me. The judicial review Court asks secondary, supervisory questions, about whether the application of the Guide was reasonable. In doing so, I must respect the distance between the evaluative merits questions for the primary decision-maker and the secondary supervisory questions of reasonableness. I must also recognise the institutional advantages which the FCA has, as a regulator entrusted with public interest responsibilities, in considering the sorts of questions entrusted to the decision-maker by the Guide. None of this was in dispute. Nor was it suggested that this is a context calling for a heightened standard of scrutiny – or any contextually reduced latitude – in its evaluative regulatory judgment. I will apply conventional reasonableness to questions of application.

Three Points of Interpretation

[24]Mr Assersohn KC and Ms Slarks for the Claimant identified three points about the objectively correct interpretation of the Guide. I did not understand any of them to be materially in dispute. I accept their correctness.[25]The first point is about cohort-relative exceptionality. The essential point is that “exceptional” in the exceptional circumstances test (ie. paragraph [4]) means exceptional “relative to investigated-situations” (the investigation cohort). It does not mean exceptional “relative to regulated-situations”. You start with investigations. You ask whether this is an exceptional investigation. So, it would be a mistake to say: this is exceptional because it is so serious as to warrant investigation. That may make it an exceptional regulated-situation. It would not be an exceptional investigated-situation. The baseline in paragraph [1] is no publication of the fact of investigation. Exceptionality is against that baseline. Mr Stanley KC agrees with all this. So do I.[26]The second and third points really go together. They are points about the approach to a Naming Announcement. The second point is this: that paragraph [4] desirability is judged against both alternatives (No Announcement and an Anonymised Announcement). The third point is this: that paragraph [4] exceptionality involves reasons relevant to naming, and not just reasons relevant to announcing. One of the things that emerged from the submissions and exchanges at the hearing before me is that these two points substantially overlap. The essential insight is this. To justify as reasonable a Naming Announcement, in the application of paragraph [4], exceptionality and desirability of the Naming Announcement need to be for reasons relevant to naming, judged against the alternative of Anonymised Announcement, and so not just judged against the alternative of No Announcement. It would therefore be an error of interpretation – a misdirection as to the Guide – for the FCA to have approached exceptionality or desirability by reference only to No Announcement, or for reasons relevant only to announcement of the investigation rather than naming the Claimant. Mr Stanley KC agreed with all of that. So do I.[27]The lawfulness grounds for judicial review involve the claim that the decision-maker failed to appreciate one or more of these three points of interpretation.

The Second Memorandum

[28]I have referred to the Second Memorandum. This was the 17-page document written by four case team members. It contained the reasoned recommendation to issue a Naming Announcement, which the decision-maker then adopted. I have explained that it was a re-analysis. The augmented team revisited the options considered in the previous memorandum, at the request of the decision-maker. The Claimant does not argue that the fact that the issues were revisited and that the augmented team changed the previous recommendation of itself makes the decision unlawful or unreasonable. But it is part of the background and context and I have considered it.[29]Here is what I can say in Part 1 of this judgment about the contents of the Second Memorandum: i) The document was divided into 6 sections. Section 1 was an introduction (§§1.1-1.3). Section 2 was the recommendation (§§2.1-2.3). Its contents included (at §2.2) an identification of elements for the announcement. Section 3 (§§3.1-3.8) described the policy on announcing investigations, i.e. the Guide. It included a section (§§3.2-3.4) on “the principal test: ‘exceptional circumstances’ and a section (§§3.5-3.7) on “anonymised announcements”. Section 4 (§§4.1 to 4.20) was relevant background, relating to the sector and the Claimant. Section 6 (§§6.1-6.8) dealt with notification to the firm. That leaves Section 5 (§§5.1-5.7): We consider that, on the facts of this case, the ‘exceptional circumstances’ test in ENFG 4.1.4G is met as set out more fully in paragraphs 5.3 onwards below. iii) Then in §5.3 there were 13 sub-paragraphs. Within them, the case team explained that “publication of the investigation” would be “desirable” to further four of the five stated objectives in paragraph [4][i] of the Guide. Each was addressed in turn. They were: maintain public confidence in the UK financial system (§5.3(1)-(4)); protect consumers or investors (§5.3(5)-(8)); prevent widespread malpractice (§5.3(9)-(11)); and maintain the smooth operation of the market (§5.3(12)-(13)). The presentational focus of §5.3 was on desirability. iv) Then at §5.4 there were 6 sub-paragraphs. It was explained that these were factors that had been considered in relation to “the ‘exceptional circumstances’ threshold”. The presentational focus of §5.4 was on exceptionality. But the factors included points which were relevant to potential prejudice under paragraph [4][ii] of the Guide. v) At §5.5 was some further content about the Claimant, including in particular the number of customers. We consider therefore that, in the circumstances and taking account of the matters above, an announcement in the terms proposed in Section 2 will is desirable to advance the objectives set out in ENFG 4.1.4(1)-(3) and (5). Further, to the extent that there is the potential for prejudice to the Firm, it is outweighed by the wider benefits identified in paragraphs 5.3 and 5.4 above. For completeness, we consider that the FCA could also properly decide to publicise the Investigation on an anonymised basis (i.e. on the basis such an announcement would advance both of the objectives in ENFG 4.1.8G). However, given our conclusion on ENFG 4.1.4G we consider the appropriate course in this case is for the FCA to publicise the Investigation (including naming the Firm).

Correctness of Interpretation

[30]The Claimant’s case on misinterpretation of the Guide rests on the three points of interpretation which I discussed above. Mr Assersohn KC and Ms Slarks submitted, in essence as I saw it, as follows: i) Within §5.3 the case team addressed desirability for the pursuit of four of the five stated objectives from paragraph [4][i] of the Guide. Here, the case team, and therefore the decision-maker, misinterpreted the Guide. They did not understand that the desirability of a Naming Announcement needed to be judged against both other alternatives, namely No Announcement and Anonymised Announcement. That misdirection is reflected in the content and language which was used within §5.3 for each of the four listed aims. At times, the reasoning was making points which would not justify any announcement at all, even an Anonymised Announcement. For the most part, the reasoning was making points which could potentially go to making an announcement, judged against the alternative of No Announcement. Those points did not involve judging a Naming Announcement against an Anonymised Announcement. That shows that the Guide was misinterpreted. This is about failing to judge desirability (paragraph [4](i)) of a naming-announcement against both alternatives (no-announcement and an anonymised-announcement). It is a material misinterpretation. ii) Within §5.4 the case team addressed factors relevant to exceptionality. But here, the case team, and therefore the decision-maker, failed to appreciate the need for exceptionality to be relative to the cohort of investigated-situations. To the extent that the reasoning identifies exceptionality at all, it may be exceptionality as a regulatory-situation, but not as an investigated-situation. The writers also failed to appreciate the need for exceptionality of a Naming Announcement to be for reasons relevant to naming, as opposed to reasons relevant to announcing. There are thus two independent material misinterpretations.[31]I was satisfied that the Claimant’s arguments cross the relatively modest threshold of arguability with a realistic prospect of success. I therefore grant permission for judicial review on this part of the case. But I have been unable to accept the Claimant’s case on misinterpretation. I agree with Mr Stanley KC that there is no material misdirection in §5.3 (discussing desirability) or §5.4 (discussing exceptionality and prejudice). I am able to state my conclusions here, within Part 1. The key points are these: i) First, the Claimant was unable to point to any sentence or passage within the reasoned Memorandum which misstates the objectively correct interpretation of the Guide. Nowhere does the case team say that the desirability in furthering the paragraph [4][i] objectives need arise only in connection with an announcement rather than in connection with a naming-announcement. Nowhere do they say that exceptionality need only be as a regulated-situation rather than exceptionality as an investigated-situation. Nowhere do they say that exceptionality need only be for announcement rather than relevant to a Naming Announcement. ii) Secondly, all of the points that are made relate to the content and cogency of the various reasons that are put forward in the Memorandum. The Claimant is able to put forward criticisms of the reasoning. But, in my judgment, these are all in the end squarely points which go to the reasonableness of the decision as an application of the Guide. They do not go to the correctness of the FCA’s interpretation of the Guide. iii) Thirdly, it is necessary always to keep in mind the composite nature of the reasoning within the Memorandum. There are identifiable strands within the reasoning. But the case team did not, in the Memorandum, adopt a sequenced ‘route to verdict’-type approach. What I mean by that is that the team did not separate out distinct stages with distinct questions. They did not have a designated set of reasons which addressed, first, whether to have any announcement at all. They did not then have a separate designated section which addressed, second, whether that announcement should be a Naming or an Anonymised Announcement. It may be that a sequenced approach would have been better, or clearer. On the other hand, this could have become needlessly complicated. Especially because potential prejudice would need to have been addressed twice: first, prejudice from making an announcement; second, specific prejudice from making a Naming Announcement. iv) Fourthly, there is no ground of claim based on the structure of the reasoning. The structure of the Memorandum addresses in a composite manner the desirability considerations (§5.3) and then the exceptionality and prejudice factors (§5.4). The Claimant does not say that a route to verdict approach – which addressed publication and then naming as distinct topics – was required for a decision to be lawful and reasonable. v) Fifthly, the composite nature of the reasoning has a consequence. It means some of the points being made serve to explain the case team’s view that there should be an announcement, rather than No Announcement. Some of the points being made serve to explain why it was decided to make it a Naming Announcement. Some of the points can be seen as relevant to both: whether to announce; and whether to name. All of this is because the case team were addressing whether and what to publish, within a composite analysis. vi) Sixthly, the Memorandum needs to be read and considered as a whole. That includes earlier passages. After identifying the intended contents (§2.2), the case team specifically explained why the course it had assessed as appropriate was to publicise the investigation “including naming the firm”. This was in Section 2 at §2.3. The team also expressly set out the baseline position under paragraph [1] of the Guide, that investigations are not normally publicised. This was in Section 3 at §3.1. The baseline is the ‘norm’ for investigations against which the exceptional circumstances test arises as the ‘exception’ (§3.2). These passages do not reflect any of the alleged misdirections. Instead, they fit within an assessment which recognised the correct interpretation. vii) Seventhly, when the reasons are read fairly and as a whole, the points made within §5.3 (on desirability) and §5.4 (on exceptionality) do not – in my judgment – betray errors of interpretation, whether expressly or by implication. The exceptionality does not come from seriousness calling for investigation. The desirability and exceptionality are not confined to whether or not to announce. They squarely embrace considerations which go to whether or not to name. This conclusion is reinforced by the Key Theme, and in relation to the criticisms of the reasons, to both of which I will return below and in Part 2. viii) For all these reasons, I reject the challenge based on misinterpretation.

Reasonableness of Application

[32]So far as reasonableness is concerned, there are aspects of the reasons which can be criticised. Especially where – as I have explained – the case team decided not to adopt a sequenced approach which would have separated out the questions of whether to make an announcement and then whether to make a Naming Announcement. Some of the reasoning can be said to be weak, when viewed in terms of a Naming Announcement rather than an Anonymised Announcement.[33]I was satisfied that the reasonableness grounds cross the relatively modest threshold of arguability with a realistic prospect of success. I grant permission for judicial review on this part of the case. I am, however, unable to accept that the decision was unreasonable as to outcome or as to reasoning process. Mr Stanley KC has persuaded me that the decision is reasonable as to outcome, being within the range of reasonable decisions open to the decision-maker, and that there is no demonstrable flaw in the reasoning process.

The Key Theme

[34]In my judgment, in the analysis of reasonableness there is a feature of the case which is especially significant. It is a dominant point as to why – as an evaluative regulatory judgment – it was assessed as appropriate to make a Naming Announcement; not no Announcement; and not an Anonymised Announcement. I am calling it the key theme. It comes to this. i) At the heart of Section 5, the case team identified regulatory reasons for communicating a message, specifically, to the customers of the Claimant. The message to customers was designed and intended to alert customers that they may wish to consider their options by reference to aspects of the way in which they may have come to be the Claimant’s customers. It was designed and intended to do that, sooner and not later. In all this, there were links to the position in the sector as a whole. But there were specific points about the Claimant. These in turn linked to why it is that the Claimant is being investigated. ii) Given the bigger picture, there were regulatory questions about what course of action was appropriate. Most obviously, this. Would it not be better if all customers of all companies across the sector were treated alike? That way, everyone could have the same information. Everyone could consider their options. And the prejudice to the Claimant could be avoided. There were other obvious regulatory questions. For example, could the Claimant not be left, or required, to write to each of its customers? The letter could alert each customer specifically to certain information. It could invite each customer to consider their options. iii) The case team thought about all this. They assessed that a communication which announced the fact of an investigation, and which named the Claimant as the subject of the investigation, was the most effective regulatory response, to get a message across to a group of customers which it specifically wanted to ensure was best informed. This was assessed as being desirable. It was desirable, viewed against an alternative of the Claimant’s customers being in the dark as to the fact that the Claimant is being investigated, including by getting a letter from the Claimant. It was desirable, viewed against the alternative of a generic announcement to everyone, about the fact of an investigation into an unnamed company. A Naming Announcement was assessed as being the course of action which was desirable in terms of the specified objectives in paragraph [4][i] of the Guide. It was assessed as meeting the desirability and exceptionality tests. It had public interest regulatory virtues which were assessed as outweighing the potential prejudice to the Claimant. iv) All of that, as I see it, stands as the key theme as to why – in this exceptional investigation case where an announcement is warranted – it is appropriate to make a Naming Announcement and not an Anonymised Announcement.

The Key Theme is Fatal

[35]In my judgment, the key theme which I have just described is fatal to the Claimant’s reasonableness challenge. It is evaluative regulatory reasoning which specifically relates to naming the Claimant, alongside announcing the fact of the investigation; and it relates to naming the Claimant now. It also illustrates that the case team were assessing the desirability and exceptionality of a Naming Announcement, viewed against an Anonymised Announcement, and that they reached their recommended response for reasons relevant to naming. In my judgment, once the key theme is recognised, it is really the end of the case.[36]This means the Claimant’s pleaded grounds for judicial review were right to spot the key theme as “a potentially important feature of the decision”. It means the FCA’s pleaded grounds of defence were right to identify this central contention, that “the FCA was entitled to conclude that consumer protection could not be adequately met by [an Anonymised Announcement], because it would not inform the Claimant’s customers of the position or enable them to consider theirs”. The case team, and the decision-maker, assessed that announcing the investigation and naming the Claimant would most effectively get through to the Claimant’s customers with a message that they needed to receive from the regulator. That message would not be diluted by being generic and anonymised. It would not leave the Claimant’s customers “ignorant of the [FCA’s] investigation”, as the FCA’s grounds of defence put it.[37]The position can be put in this way, as Mr Stanley KC did. Suppose an Anonymised Announcement. Or suppose a letter from the Claimant to customers, in which it was not disclosed that the Claimant was the subject of an FCA investigation. The question is whether these would leave the Claimant’s customers suitably protected. The answer of the regulator is no, they would not. Better protection for customers is needed, from clearer communication. And the regulator, identifying and considering the nature of the potential prejudice to the Claimant as paragraph [4][ii] of the Guide requires, considers that the public interest regulatory objectives outweigh that prejudice. I am unable to characterise that regulatory response as unreasonable, nor the reasoning process as involving a demonstrable flaw for the purposes of this Court’s supervisory jurisdiction.

Criticisms of the Reasons

[38]I recognise that there were a number of detailed criticisms of the case team’s reasoning in the Second Memorandum. I accept that there were various respects in which Mr Assersohn and Ms Slarks were able to isolate and identify weaknesses in the reasoning. I recognise that criticisms were made of particular passages. I would agree that, when viewed in terms of the reasonable justification for a Naming Announcement as distinct from an Anonymised Announcement, some of the reasoning appears weak. But, in my judgment, the answer to the specific criticisms is as follows. As I have explained already, the case team was giving composite reasons. It was addressing the questions whether to make any announcement, and if so whether to name the Claimant, viewed in terms of desirability and specified objectives; and in terms of exceptionality; and balancing potential prejudice. There were a number of strands; a number of moving parts. This is why, for example, some of the reasons would go to whether to have an announcement, rather than whether to have a Naming Announcement. The reasons need to be considered as a whole. As I have already explained, when viewed as a whole, there was no material misinterpretation. And when viewed as a whole, there was no outcome or process unreasonableness in the application of the Guide. The points which are made are, ultimately, all points which go to the regulatory merits. The key theme, which I have identified, is fatal. I do not accept that the potential prejudice to the Claimant was understated. The heads of prejudice were identified, just as they had been in the First Memorandum. But they were considered to be outweighed by an assessed desirability in making a Naming Announcement, viewed against the specified objectives, in the application of the exceptionality test. All of this was an evaluative regulatory judgment. It was not an evaluative regulatory judgment which I have been persuaded was either unlawful or unreasonable.

Within Part 2

[39]Within Part 2 there is some further detail as to each of the following topics: Context and Background; the Decision-Making; Elements for the Announcement; The Key Theme; Criticisms of the Reasons. But my conclusions and essential reasons are all contained within this Part 1.

Conclusion

[40]In the light of the conclusions which I have described, this claim for judicial review failed on its substantive legal merits. I will dismiss it. Having circulated Parts 1 and 2 in draft, I will be able to deal openly here with any consequential matters. Having seen both judgments in draft the parties were agreed on the following contents of the order, which I will make:(1) The Claimant is granted permission for judicial review on each ground set out in its Claim Form.(2) The Claimant’s application for judicial review is dismissed.(3) The Claimant shall pay the Defendant’s costs of and incidental to these proceedings in the sum of £32,000, such sum to be paid within 28 days of this order.[41]The Claimant has sought permission to appeal. I am refusing that application. The proposed grounds of appeal and supporting arguments – as to why my conclusions are wrong on correct interpretation and reasonable application – maintain the points advanced before me. They also argue that I have failed to address specific points of materiality, that the identification of weaknesses should have been given greater weight, and that my “composite” reading of the Second Memorandum is untenable. The rules require me to address whether I am able to see a realistic prospect of an appeal succeeding in the Court of Appeal. I am not, and nor can I see a compelling reason for granting permission. As to next steps, hand-down of Part 2 will be deferred. The FCA has given an undertaking that it will not publish an announcement naming the Claimant as the subject of the investigation that it commenced into the Claimant in August 2025 until the earlier of(a) the expiry of time for filing an appellant’s notice (if permission is not sought) or(b) a decision by the Court of Appeal refusing the Claimant permission to appeal. I will grant liberty to apply to me, in writing on notice, for a hand-down of the Part 2 Judgment and the lifting of anonymity in this Part 1 Judgment. Finally, in light of the issues, context and circumstances, I order pursuant to CPR 52.12(a) that the period in which the Claimant must file an application seeking permission to appeal from the Court of Appeal is abridged to 7 days from 23 October 2025.

Cited in 1 later judgment