“The FCA may publish such information about the matter to which a decision notice or final notice relates as it considers appropriate. If you refer a decision notice to the Upper Tribunal, the facts and matters in the notice may be made public before your reference to the tribunal is concluded. You can object to early publication in relation to the decision notice and you will be provided with details about how to do this when you are given the notice.”
“The MLRs do not currently give the FCA the power to publish a decision notice setting out the FCA’s decision to refuse a firm’s application for registration as a cryptoasset business. Accordingly, the [Authority’s] understanding is that the decision notice given to Moneybrain will not be published.”
“The Authority made a secondary disclosure yesterday of 20 further documents, which the Applicant has not yet received which have a potential to material errors or omissions; and the Applicant Director suffered a family bereavement last night, to which he is responsible for making the funeral arrangements.”
“Whilst our client has a number of observations on the draft judgment, we also wish to make detailed representations as to the timing of publication of the interlocutory decision as well. In addition, the position has been further complicated by disclosure by the Authority last Friday 16 September (after the draft judgment was handed down for comment) of material which has the potential at least to impact upon the decision made following the hearing. We are currently considering carefully the appropriate response to each of these issues and at the same time urgently familiarising ourselves with the underlying facts and matters. In the circumstances we respectfully request a further adjournment until close of business this Friday 23 September to write more substantively in respect of all the issues now identified.”
“…the Attorney General has correctly referred to the powerful public interest in the court's being able to circulate draft judgments confidentially among the parties prior to their being handed down in complex and important cases so that typographical mistakes and other errors can be addressed and a final definitive version of the judgment can be handed down, so that the parties can prepare submissions on consequential matters and so that the parties can prepare themselves for the consequences of the judgment becoming public. These are matters of importance to the administration of justice.”
“(1) Subject to the following paragraphs, all hearings must be held in public. (2) The Upper Tribunal may give a direction that a hearing, or part of it, is to be held in private. (2ZA) Without prejudice to paragraph (2), the Upper Tribunal may direct that a hearing, or part of it, is to be held in private if— (a) the Upper Tribunal directs that the proceedings are to be conducted wholly or partly as video proceedings or audio proceedings; (b) it is not reasonably practicable for such a hearing, or such part, to be accessed in a court or tribunal venue by persons who are not parties entitled to participate in the hearing; (c) a media representative is not able to access the proceedings remotely while they are taking place; and 12 (d) such a direction is necessary to secure the proper administration of justice.”
“The preponderance of English authority supports the view that once material has been read or referred to in open court, it enters the public domain. It seems to me that there is a need for a clear and simple rule on this point, which reflects the principle of open justice, and which can be overridden, if at all, only in exceptional circumstances where the interests of justice so require.”
“…although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle.”
“(6) where (a) the registering authority decides not to register an applicant, the authority may, if it considers it proportionate to do so, publish such information about that decision as the authority considers appropriate; (b) … (7) Where the supervisory authority publishes information under paragraph (6) and the person whose registration is refused…refers the matter to the Upper Tribunal, the supervisory authority must, without delay, publish information about the status of the appeal and its outcome in the same manner as that in which the information was published under paragraph (6).”
“(1) The Upper Tribunal must keep a register of references and decisions in financial services cases…. (2) The register must be open to inspection by any person without charge and at all reasonable hours. (3) The Upper Tribunal may direct that the register is not to include particulars of a reference if it is satisfied that it is necessary to do so having regard in particular to— (a) any unfairness to the applicant or…any prejudice to the interests of consumers that might otherwise result; (b) as regards a reference in respect of a decision of the Financial Conduct Authority, any detriment to the stability of the UK financial system;…”
“The Authority issued the Decision Notice because it decided Moneybrain had deliberately and recklessly published on its websites misleading marketing and promotional material relating to the Tokens, and so was not a “fit and proper person” within the meaning of Regulation 58A of the MLRs.”
“would undermine the statutory restriction on publication in force at the date the Decision Notice was issued, since by necessity it makes reference to the matters contained within it.”
“Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes—who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.”
“where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted. As a matter of principle it is an order to be made only in extreme circumstances.”
“…the court should administer justice in public, which means that all parts of a judgment should be publicly available, unless there is a very powerful reason to the contrary. This principle is so important not merely because it helps to ensure that judges do not, and do not appear to, abuse their positions, but also because it enables information to become available to the public. What goes on in the courts, like what goes on in Parliament or in local authority meetings or in public inquiries, is inherently of legitimate interest, indeed of real importance, to the public. Of course, many cases, debates, and discussions in those forums are of little general significance or interest, but it is not for the judges or lawyers to pick and choose between what is and what is not of general interest or importance (save where, as in the present instance, it is a factor to be placed in the balance, in a case where it is said that it is in the public interest to have the hearing in private or to redact material from a judgment).”
“Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case…the court has to carry out a balancing exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.”
“It remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings.”
“…to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in 18 litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule.”
“It seems to us that, if the unfairness or prejudice condition is satisfied, in practice this will tend to have the effect that the interests of justice condition will also be satisfied. If the unfairness or prejudice condition is fulfilled, the interests of justice in the particular case are likely to be better served by the holding of the hearing in private. Nevertheless, the Tribunal must keep in mind the important public interest in open justice, which goes beyond the considerations arising from the circumstances of the particular case under review, and before making a rule 17 direction the Tribunal must in every case be satisfied also that the interests of justice in this more general sense will not be prejudiced.”
“It may well be that in the ordinary run of cases reputational risk will not in itself constitute unfairness, but we do not go so far as to say that reputational risk can never give rise to unfairness to the applicant. It might be unfair if, for example, the reputational damage occurring during the progress of the hearing might be such as to destroy the applicant's business. The suffering of 19 disproportionate damage would be unfair. It is necessary to consider the circumstances of each particular case.”
“The Tribunal is unlikely to be influenced by a 'ritualistic assertion' of unfairness or prejudice...The applicant will need to produce cogent evidence of how the unfairness or prejudice may arise. However, the expression ‘might result’ recognises the inherent difficulty of assessing in advance the likelihood of unfairness or prejudice. The applicant is not required to demonstrate on a balance of probabilities that unfairness or prejudice would result. The Tribunal will consider the evidence presented and weigh the degree of risk.”
“(1A) A person to whom a decision notice is given or copied may not publish the notice or any details concerning it unless the regulator giving the notice has published the notice or those details. (2)-(3) … (4) The regulator giving a decision or final notice must publish such information about the matter to which the notice relates as it considers appropriate; (5) … (6) The FCA may not publish information under this section if, in its opinion, publication of the information would be- (a) unfair to the person with respect to whom the action was taken (or was proposed to be taken), (b) prejudicial to the interests of consumers, or (c) detrimental to the stability of the UK financial system.”
“[20] …gives rise to a presumption that publication will be the norm in that Section 391(4) states that the FSA “must publish such information about the matter to which a decision notice or final notice relates as it considers appropriate”
“I should however, express my concern that it is important that adequate steps are taken when publicising the Decision Notices to ensure that it is clear that the decisions are provisional in the light of the fact that they are being challenged in the Upper Tribunal…any press release issued by the FSA should state prominently at its beginning that the Applicants have referred the matter to the Upper Tribunal where each will present their case and the Tribunal will then determine the appropriate action to take, which may be to uphold, vary or cancel the FSA’s decision. I understand this formulation to have been used in previous cases of publication. Likewise in referring to the findings made, rather than give any suggestion of finality they should be prefaced with a statement to the effect that they reflect the FSA’s belief as to what occurred and how the behaviour concerned is to be characterised. The dismissal of the Applications is therefore conditional upon compliance with these principles.”
“it was not at present generally its practice to publish a Determination Notice in relation to a matter which has been referred to the Tribunal, pending the determination of the reference and currently had no plans to do so in this case.”
“It is therefore unlikely in practice, absent the publication of this decision, that the fact of Mr Salih's prohibition order will generate much publicity.”
“would not prejudice – (a) the interests of any persons (whether consumers, investors or otherwise) intended to be protected by that notice; (b) the smooth operation or integrity of any market intended to be protected by that notice; or (c) the stability of the financial system of the United Kingdom.”
“…I am confident that when all the evidence is laid bare before the Tribunal, the truth will be established that MBL has been the victim of an inappropriate pre-determined general FCA strategy conceived months before the Decision Notice was issued by the Authority and designed to more generally, inappropriately restrict the number of FCA registered crypto asset firms under the MLRs. Further, I am confident that examination of all the evidence at the substantive hearing will establish that rather than a proper merits-based decision the probity allegation, upon which the Authority eventually landed, is nothing more than a convenient hook upon which the Authority is now trying to retrofit a decision made long before to refuse MBL registration.”
“I am in no doubt that a finding that MBL lacks probity potentially poses an existential threat to not only its business, but to the business of the other firms with which MBL is (through me) connected. …a finding that MBL lacks probity brings with it a significant risk that other companies with which I am connected will be adversely affected by way of collateral damage and their viability may also be threatened. The contamination risk in relation to an adverse finding of probity is even more acute where a firm is operating in the regulated sector and my associations with other companies are a matter of public record…the potential damage that would be caused to MBL and other companies with which I am associated is significant and very real.”
“The judgment as issued gives a clear impression that findings of fact had been made at the suspension application which are in fact live issues in the final determination of the appeal. This is unfortunate, as these findings of fact go beyond the findings that were necessary and appropriate and might suggest that the Tribunal has already found that the Applicant lacks probity, rather than the proper finding that there is a case to answer.”
“makes findings which have, at the very least, established a case to answer that the Applicant lacks probity (and in certain respects could be taken to suggest findings beyond that assessment).”
“It is an application that the Learned Judge should recuse herself from making any further judgments, orders or directions in respect of the above reference on the grounds of ‘apparent bias’ and that all subsequent proceedings, orders and/or directions, including but not limited to, the issue of publication should be determined before a differently constituted Tribunal.”
“This is not a disciplinary case, but an application for registration under the MLRs 2017. The matter has therefore only come to the attention of the Tribunal through the desire of the Applicant to be registered, not as result of a regulatory inquiry. This is an important distinction.”