“(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. […] (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.” (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.”
“(5) In the case of a disciplinary reference or a reference under section 393(11), the Tribunal must determine what (if any) is the appropriate action for the decision-maker to take in relation to the matter, and on determining the reference, must remit the matter to the decision-maker with such directions (if any) as the Tribunal considers appropriate for giving effect to its determination. (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 findings of the Tribunal. (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.”
“65.On the face of it, a reference made pursuant to s 393 (9) is not a disciplinary reference and therefore, by default, the powers of the Tribunal in determining that reference are limited to those provided for in s 133(6). It is difficult, however, at first sight to see the logic for this different treatment. It is not immediately apparent why Parliament was content to entrust the Tribunal with exercising discretion as to whether it was appropriate to amend a notice, having carried out the balancing exercise referred to at [64] above, in a case where the third party was given a copy of the notice in accordance with s 393 (9), but not where there was a failure to do so. 66.It may be that the answer to this is that in a situation where s 393 (9) applies, the Authority will have already carried out that balancing exercise by concluding that notwithstanding the fact that the decision contains material which is in its opinion prejudicial to the third party, it considers that including the prejudicial material is necessary in the context of the regulatory message which the notice seeks to convey. In those circumstances, the intention may have been that the Tribunal’s powers should be limited to making findings of fact and law and then remitting the matter to the Authority for it to determine what is the appropriate action to take in the light of those findings. “67.In his submissions, Mr Stanley [Counsel for the Authority] expressed the view that there appeared to be a lacuna because it was not explicit whether a reference under s 393 (9) is “disciplinary” or “supervisory.”
“The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
“The question is one of statutory construction. In construing a statute the task of the court is to ascertain the intention of Parliament as expressed in the words it has chosen. The Parliamentary intention is to be derived from the terms of the Act as a whole read in its context. Once it has been ascertained, the court must give effect to it so far as the legislative text permits.”
“So far as it concerns notice of potential criticisms, the section defines what fairness requires in the context of warning and decision notices issued by the Authority.”
“The purpose of including such a provision in the 2000 Act is clear. The interests of the addressee of a notice who is accused of failings, and those of a third party such as an employee of the addressee, who may be identifiable as responsible for, or implicated in, the alleged failings, are by no means necessarily aligned. Thus, it may well be that an employer would want to try and curtail any publicity about the alleged failings by quickly negotiating and paying a penalty, even if there may be grounds for challenging the allegation in whole or in part. But this may often not suit the employee, who might well feel that, in the absence of the Tribunal exonerating him, his reputation, and therefore his future employment prospects, could be severely harmed or even ruined.”
“…it is necessary to read section 393 in the light of the practicalities of performing the Authority’s investigatory and disciplinary functions. It is common for notices to be served on different parties to the same investigation at different times. The possibility is expressly envisaged in section 393 itself. The role of the firm or of the various individuals involved may take more or less long to investigate. Or, as happened in this case, one of them may settle before the others. Once the facts relating to one person or firm under investigation are ascertained or admitted and are found to justify criticism or sanctions, there will often be no proper reasons for withholding that information from the market…”
“…the combination of information in the notice with other information can prejudice a third party only if the notice is published. Publication is not automatic. Where the Authority decides to publish, it does so in order to serve the public interest in the proper performance of its functions and the protection of those who use the financial services industry. This is reflected in the Authority’s Enforcement Guide (2016), section 6.2.16 of which states: “Publishing notices is important to ensure the transparency of FCA decision-making; it informs the public and helps to maximise the deterrent effect of enforcement action.””
“Two points may be made as regards these procedures. First, the effect of a reference under subsection (9) may be that no final notice can be issued until the third party’s reference has been determined by the Tribunal, or otherwise resolved. Second, where the third party is not given a copy of the decision notice—the situation on which subsection (11) is predicated— in practice he will not learn of the reasoning until the final notice is published by the FSA. In other words, he will be unable to exercise his rights to refer the decision notice to the Tribunal until after the publication of the final notice. This explains the timing of the Reference in the present case.”
““Matter” has a broader meaning: it is the allegations in the statutory notices and which were before the RDC, and the circumstances, evidence and facts on which they are based. This accords with procedural fairness and statutory regime by which a party is first given a Warning Notice of the proposed action by the Authority and may make representations on the facts and issues raised before the RDC makes its decisions and gives its reasons as contained within the Decision Notice. At each stage, the regulated person makes an informed decision whether to contest the matter contained in the warning notice before the RDC or to contest the matter contained in the Decision Notice in a reference to the Tribunal knowing clearly what the allegation is.”
"This Final Notice has not been the subject of any judicial finding. It includes criticisms of [the Individuals]. These individuals have each received Decision Notices in relation to such criticisms. They dispute many of the facts and the characterisation of their actions in this Final Notice, and they have referred their Decision Notices to the Upper Tribunal for determination. The Upper Tribunal will determine whether to dismiss the respective references or remit them to the Authority with a direction to reconsider and reach a decision in accordance with the findings of the Tribunal. The Tribunal's decision in respect of the individuals' references will be made public on its website."