“(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.
“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 any unfairness to the Applicant or prejudice to the interests of consumers that might otherwise result.”
“(1) The Upper Tribunal may make an order prohibiting the disclosure or publication of— (a) specified documents or information relating to the proceedings; or (b) … (2) The Upper Tribunal may give a direction prohibiting the disclosure of a document or information to a person if— (a) the Upper Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and (b) the Upper Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.”
‘(1) FSMA s 391 gives rise to a presumption that Decision Notices will be published, albeit there must be regard to the fact that a Decision Notice under challenge in the Upper Tribunal is necessarily provisional (Prodhan at §20(1)). (2) The exercise of the Tribunal’s power to prohibit publication is a “matter of judicial discretion to be considered against this presumption” (Prodhan at §20(2)). (3) The exercise of this discretion involves a balancing exercise of all relevant factors and giving effect to the overriding objective of dealing with cases fairly and justly (Prodhan at §20(3)). (4) The open justice principle is to be applied such that the starting point is a presumption in favour of publication in accordance with the strong presumption in favour of open justice generally (PDHL at §36(1)). (5) The onus is on the applicant to demonstrate a real need for privacy by showing unfairness (PDHL at §36(2)). (6) The scales are thus heavily weighted in favour of publication. In order to tip the scales, the applicant must produce cogent evidence of how unfairness may arise and how it could suffer a disproportionate level of damage if publication were not prohibited (PDHL at §36(3)). (7) A ritualistic assertion of unfairness is unlikely to be sufficient. The embarrassment to an applicant that could result from publicity, and that it might lead the applicant's clients and others to ask questions which the applicant would rather not answer, does not amount to unfairness (PDHL at §36(4)). (8) If it is established by cogent evidence that publication of a Decision Notice would result in the destruction of, or severe damage to, a person’s livelihood, it would be unfair to publish that Notice (PDHL at §37, citing Angela Burns v FCA [2015] 5 UKUT 0601 (“Burns”) at [89]). (9) A “possibility” of severe damage or destruction is not enough; there must be a “significant likelihood” of such damage or destruction occurring (PDHL at §37, citing Burns at [90]). (10) An applicant is not required to show that damage or destruction is an inevitable consequence (PDHL at §37). (11) A risk of damage to reputation in unlikely to be sufficient to justify a prohibition on publication (Prodhan at §22). (12) The nature of the dispute, including questions as to whether the applicant has been treated fairly in comparison with others, or penalised too harshly, are matters to be considered by the Tribunal when it hears the substantive reference and are not matters that can bear upon the question of publication (Ford at [50]). (13) The fact that some information concerning the subject matter of a reference is already in the public domain is a factor which tends in favour of publication (Ford at [54]). (14) The protection afforded to an applicant who is concerned that readers of the decision notice might not understand its provisional nature is to refer the matter to the Tribunal (Prodhan at [26]). That paragraph is followed by this citation from Arch: “50…..Mr Stanley…submits that it is likely that there will be an unreasonable body of investors, fuelled by high emotions as a result of what has happened to the Arch cru funds, who will fail to appreciate that the decisions are provisional and will assume that the Applicants are guilty of what is alleged. 51. The protection to which the Applicants are entitled in this situation is the right to have the allegations tested in this Tribunal which will in due course deliver a decision in public which will refute unfounded allegations. In addition the Decision Notices themselves set out in detail a summary of the representations that the Applicants made to the RDC which goes some way to explaining their side of the case. No doubt the media will be interested in hearing from the Applicants why they believe the allegations are unfounded.”’
“[T]he impact on PNM’s family life of what was said about him at the trial is no different in kind from the impact of many disagreeable statements which may be made about individuals at a high profile criminal trial. A defendant at such a trial may be acquitted, possibly on an issue of admissibility, after bruising disclosures have been made about him at the trial. Within the limits of professional propriety, a witness may have his integrity attacked in cross-examination. He may be accused by other witnesses of lying or even of having committed the offence himself. All of these matters may be exposed in public under the cloak of the absolute immunity of counsel and witnesses from civil liability, and reported under the protection of the absolute privilege from liability for defamation for fair, accurate and contemporaneous publication. The immunity and the privilege reflect the law’s conviction that the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public.”
“133(1) This section applies in the case of a reference or appeal to the Tribunal (whether made under this or any other Act) in respect of— (a) a decision of the FCA or the PRA […] (4) The Tribunal may consider any evidence relating to the subject-matter of the reference or appeal, whether or not it was available to the decision-maker at the material time. (5) In the case of a disciplinary reference or a reference under section 393(11), the Tribunal – (a) must determine what (if any) is the appropriate action for the decision-maker to take in relation to the matter; and (b) 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 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.”
“The issue of statutory construction concerns the meaning of “the matter” which a person subject to a decision notice is entitled to refer to the Tribunal under section 57. Happily, Mr Jaffey and Mr Hunter were agreed that that expression should be given a wide meaning. “The matter” includes the facts and evidence referred to in the decision notice on the basis of which the Authority concluded that the person in question was not a fit and proper person and that a prohibition order was appropriate.”
“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 application 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.”
“59. … It was common ground that even if we were to find that Mr Carrimjee’s behaviour did not demonstrate a lack of integrity, it was open to us to make a finding as to whether his behaviour demonstrated breach of a Statement of Principle to a lesser degree. In this case therefore, it would be open to us, having made the relevant findings of fact, to make a finding that those findings demonstrated a failure to act with due skill care and diligence as required by Statement of Principle 2. 60. That course of action is open to us because a reference is not an appeal against the Authority’s decision, it is a determination of what is the appropriate action to take in the circumstances falling within the subject matter of the reference, that is the circumstances that have been the subject of the prior regulatory proceedings, rather than the particular outcome as found in the Decision Notice.”
“998. … [W]e conclude that the starting position is, consistent with the intention of Parliament, that the Tribunal should not in relation to proceedings concerning the imposition of prohibition orders consider facts and circumstances not relied on by the Authority in its Warning Notice unless, in its discretion, it decides that it would be appropriate to do so. In that context, we consider that the term “reasons” as used in s 387 FSMA means, in relation to proceedings seeking the imposition of a prohibition order, the facts and matters on which the Authority relies in coming to its conclusion that the subject of the proceedings is not a fit and proper person and accordingly should be made the subject of a prohibition order. It is clear in this case that the Third FX Transaction is such a matter and in order to be relied on by the Authority the relevant facts relating to that should be accurately formulated and clearly stated in the Warning Notice.”
“The freshness of the new Principle 7/COBS case means that the Authority failed to follow the mandatory statutory procedure in respect of them. It did not issue a Warning Notice embodying any such case, as is required pursuant to s 207 FSMA. As a consequence, BCMUK was not afforded any opportunity to make any representations (and to decide whether or not to make representations) to the RDC in respect of the new allegation.”
“This passage emphasises that the proceedings in the Tribunal, although starting afresh and not an appeal, are part of the regulatory process started by the Authority. Therefore, particularly in relation to disciplinary references, the Tribunal stands in the shoes of the Authority and makes a decision as to the appropriate action to take on the basis of the case investigated by the Authority. The scheme did not envisage that the Authority could change significantly the basis of the action it wishes to take when it came to the Tribunal proceedings. Parliament intended that the subject of enforcement action should have the right to have the Authority’s decision reviewed through a judicial process but that did not mean that the process in the Tribunal could become significantly divorced from the regulatory proceedings.”
“197. In our view it is not necessary to enquire into the extent to which the facts and evidence included in the warning notice and/or canvassed by the RDC could have supported a breach of Principle 7 or COBS. The consistent line of case law requires that the allegations of regulatory breach be at the very least canvassed before the RDC and potentially must be (a) at least referred to if not relied on in the decision notice (Jabre) and (b) fall within the scope of the allegations made in the warning notice for them to form part of the “matter referred”
“73. In our view, the authorities demonstrate that where the allegations sought to be introduced by the Authority in its Statement of Case relate to matters which arose after the issue of the warning notice then provided those allegations fall within the scope of the “matter referred” then the Tribunal has jurisdiction to consider those allegations, subject to exercising its case management powers so as to permit the Authority to rely on a matter which was not relied on in the warning notice. In both Allen and Hobbs, for instance, the subject matter of the relevant reference was whether the applicant was not fit and proper by reason of a lack of honesty and integrity. Thus, the Tribunal had, as a matter of jurisdiction, the power to consider allegations which post-dated the warning notice. Whether it chose to do so, would be a matter for the exercise of its case management powers, taking into account any potential prejudice to the applicant. 74. Therefore, when the Tribunal is faced with the situation where the Authority seeks to rely on allegations which were not made in the warning notice but could have been the starting point is to consider whether those allegations and the facts relied on in support of the allegations form part of the subject matter of the reference. 75. We are satisfied that the passages from Jabre and the later authorities are to be read as follows. In order for such allegations to form part of the subject matter of the reference and be considered or determined by the Tribunal, they must be of the same nature and based upon the same factual background as the allegations made to the RDC and contained in the warning and decision notices, even if no findings are made upon them therein. … 170. As we stated at [75] above, in order for an allegation to form part of the subject matter of the reference and be considered or determined by the Tribunal, they must not only be based on the same factual background as the allegations made to the RDC but also must be of the same nature. In our view, where the allegation is in respect of a different regulatory provision then it cannot be considered to be of the same nature. 171. The reason we consider that a hard edge should be identified is because, as we observed at [58] and [59] above, Parliament has placed particular importance on the need for there to be a statutory notice which “must” state the reasons for the action the Authority proposes to take. That enables the subject to take an informed decision as to whether to contest the matter contained in the warning notice before the RDC or to contest a matter contained in a decision notice in a reference to the Tribunal knowing clearly what the allegations are being made against him.”
“(2) The "standard procedure" is a procedure which provides for— (a) the giving of notice to such persons as it appears to the Regulator would be directly affected by the regulatory action under consideration (a "warning notice"), (b) those persons to have an opportunity to make representations, (c) the consideration of any such representations and the determination whether to take the regulatory action under consideration, (d) the giving of notice of the determination to such persons as appear to the Regulator to be directly affected by it (a "determination notice"), (e) the determination notice to contain details of the right of referral to the Tribunal under subsection (3), (f) the form and further content of warning notices and determination notices and the manner in which they are to be given, and (g) the time limits to be applied at any stage of the procedure. (3) Where the standard procedure applies, the determination which is the subject-matter of the determination notice may be referred to the Tribunal . . . by— (a) any person to whom the determination notice is given as required under subsection (2)(d), and (b) any other person who appears to the Tribunal to be directly affected by the determination.”
“(3) On a reference, the tribunal concerned]may consider any evidence relating to the subject-matter of the reference, whether or not it was available to the Regulator at the material time. (4) On a reference, the tribunal concerned must determine what (if any) is the appropriate action for the Regulator to take in relation to the matter referred to it. (5) On determining a reference, the tribunal concerned must remit the matter to the Regulator with such directions (if any) as it considers appropriate for giving effect to its determination. (6) Those directions may include directions to the Regulator— (a) confirming the Regulator's determination and any order, notice or direction made, issued or given as a result of it; (b) to vary or revoke the Regulator's determination, and any order, notice or direction made, issued or given as a result of it; (c) to substitute a different determination, order, notice or direction; (d) to make such savings and transitional provision as the [tribunal concerned] considers appropriate.”
“On a reference, the Tribunal must, under section 103(4), determine what (if any) is the appropriate action for the Regulator (which would include the Panel where relevant) to take “in relation to the matter referred to the Tribunal”
“In my view, the Regulator is entitled to argue that the Tribunal should depart from the determination of the Panel so as to exercise the relevant regulatory function in the way which it, the Regulator, considers appropriate at the time when the matter is dealt with by the Tribunal. The Panel, as we have seen, exercises powers on behalf of the Regulator; it is no doubt for that reason that the Regulator itself cannot refer the determination of the Panel to the Tribunal. But once the decision of the Panel has been challenged, there is no reason, in my view. why the Regulator should be bound by that determination. By referring the matter to the Tribunal, the target must accept that he becomes subject to the power of the Tribunal to determine the appropriate action. The Regulator must be allowed, in my judgment, to present to the Tribunal what it sees as the appropriate regulatory action at that time. It may be that it cannot go beyond the relief sought in the warning notice, but that issue does not arise in the present case.”
“It is not, I think, possible to answer this question in the abstract; a different argument might, on the one hand, raise a completely new case which is entirely outside the scope of the warning notice properly understood or it might, on the other hand, simply be a new way of putting something the essence of which is already included in the warning notice. 80. However, it is possible to give an answer in relation to reliance on difference elements of the evidence in some respects. Returning to the example, suppose that a warning notice relies on an act or failure within section 38(5) to justify a contribution notice. Suppose that the evidence within the scope of the warning notice reveals another act which might fall within section 38(5) but is not identified as such in the warning notice. Can the Panel take account of that act in making its determination? In my view it can do so as a matter of jurisdiction but it must act fairly, in particular in relation to the procedure to be adopted, in doing so.”
“84. The position is the same, in my view, on a reference to the Tribunal. Once the relevant determination has been identified (for instance a determination to issue a contribution notice to a person in a specified sum) it is open as a matter of jurisdiction for the Tribunal to rely on any act identified in the evidence before the Tribunal to support the regulatory action originally sought in the warning notice But it is not open to the Tribunal to decide that regulatory action not identified in the warning notice should be taken.”
“60. But it is significant that [PA04] does not go on to say that either the Determinations Panel or the Upper Tribunal are constrained in the conclusions they can reach by the absence of a relevant ground in the [warning notice]. In my judgment, the absence of a provision to that effect firmly indicates that Parliament left the question whether the Determinations Panel or the Upper Tribunal could do so to their discretion. 63. I therefore conclude that Mr Stallworthy and Mr. Hilliard are correct in their submissions that the Upper Tribunal's discretion to allow TPR to rely on additional grounds is not fettered by a threshold test of "good reason". I accept Mr Stallworthy's submission that, as Warren J held in paragraphs 72, 79 and 80 of Re Bonas Group Pension Scheme, the Upper Tribunal can on a reference permit further evidence to be filed and receive fresh arguments, and that this supports the conclusion that it must be open to TPR, in an appropriate case, to adduce additional grounds for its proposed regulatory action on a reference to the Upper Tribunal.”
“65. Moving from my conclusion that there is no threshold test of good reason, I turn to consider how the Upper Tribunal should approach the introduction by TPR of allegations which go outside the [warning notice]. The test applied by the Upper Tribunal in this case is unclear and unsatisfactory. It is either • a test of relevancy (paragraph 114), or • a test whether the new allegation has been "aired" before the Determinations Panel (paragraph 118) or • a test whether the new allegation affected the core allegations against the targets or • whether the issue was aired in the WN or before the Determinations Panel or • whether the issues formed part of the facts and circumstances before the Determinations Panel (paragraph 171). 66. In my judgment, each of these tests is in its own way too narrow and too prescriptive. 67. In my judgment, the exercise of the Upper Tribunal's discretion to allow TPR to raise a new case not contained in the [warning notice] should depend on a consideration of all the relevant factors in the case, and not just the narrow question whether TPR had good reason for seeking to enlarge its case. The Upper Tribunal has to weigh up all the facts and circumstances in deciding whether to permit TPR to adopt a new case. It would be impossible to provide a comprehensive list of those facts and circumstances, though I can give a few examples. 68. The Upper Tribunal has to consider the nature of the new allegations, and their impact on the case. If the new case involves fraud or bad faith, it may be less willing for a new case to be brought forward unless the case is clearly pleaded and appropriate detail given. It has to consider the reasons why the case was not previously put forward. … 70. Accordingly, I do not consider that it is sufficient for the Upper Tribunal to conclude that the matters were in some way "aired" at some earlier stage or to limit its inquiry to asking whether the new case arises from facts and matters which were before the Determinations Panel.”