“Under FSMA, there are numerous provisions giving the Tribunal jurisdiction in relation to specified decisions made by the Authority. However, what is contained in the relevant provisions of FSMA is exhaustive of the Tribunal’s jurisdiction in relation to decisions made by the Authority under the powers given to the Authority in that statute. In many cases FSMA gives the Tribunal jurisdiction over challenges to decisions made by the Authority and contained in Decision Notices. No jurisdiction is given in relation to matters contained in Final Notices or, most importantly, as to whether a Final Notice has been lawfully issued. The Tribunal has no general judicial review function. There are limited rights to commence judicial review proceedings in the Tribunal and to deal with judicial review applications which are transferred to it by the Administrative Court, but none of those powers relate to the lawfulness or otherwise of the issue of Final Notices.”
“On25 March 2020 , the Firm underwent a change in control. The Firm then underwent another change in control on20 November 2023 . Throughout this period, the Firm did not provide any payment services. Since its most recent change in control, the Firm has still not provided any payment services. The Authority considers that firms that are not using their permissions should apply to cancel them and not seek to sell them on.”
“This appeal turns on the meaning of “identifies” and on the meaning of the notice to which that word is being applied. Both are questions of law, although the answers may be informed by background facts. The essential question before us is what background facts may be relevant for this purpose. In my opinion, a person is identified in a notice under section 393 if he is identified by name or by a synonym for him, such as his office or job title. In the case of a synonym, it must be apparent from the notice itself that it could apply to only one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere. However, resort to information publicly available elsewhere is permissible only where it enables one to interpret (as opposed to supplementing) the language of the notice. Thus a reference to the “chief executive” of the X Company may be elucidated by discovering from the company’s website who that is. And a reference to “CIO London Management” would be a relevant synonym if it could be shown to refer to one person and that person so described was identifiable from publicly available information. What is not permissible is to resort to additional facts about the person so described so that if those facts and the notice are placed side by side it becomes apparent that they refer to the same person...”
“The real question is whether the terms of the notice itself would have conveyed to a reasonable member of the public without extrinsic information that any of these terms was a synonym for Mr Macris. Plainly it would not.”
“I do accept that if the term “compliance oversight function” had been used in the Final Notice then that would be construed as referring to a particular individual when read in the context of the notice, namely the person holding the CF 10 function as referred to in SUP 10A 7.8. I am assuming that the test for identification assumes that the audience to whom the Final Notice is directed has some knowledge of the regulatory system and that the system provides for individuals performing particular functions to be approved by the Authority. On that basis, applying Lord Neuberger’s test, an individual’s position would have been mentioned, Mr Cooper was the sole holder of that position and reference to freely and publicly available sources of information, namely the Authority’s public register would easily reveal Mr Cooper’s name by reference to his position. Therefore, had that been the case here I would have distinguished the reasoning in Jan Laury in so far as “particular function” could properly be referring to the holder of a particular function prescribed by the Authority’s rules. However, at no point in the Final Notice is there a reference to the “compliance oversight function”
“Accordingly, the Tribunal has no jurisdiction to quash a Final Notice or issue an injunction to prevent the Authority issuing such a notice. Those are matters that would have to be addressed in the Administrative Court.”
“Those principles are as follows: (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 is 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]).”