On 12 January 2016, the Upper Tribunal Tax And Chancery Chamber (the Tribunal) dismissed an application brought by Mr Christopher Ashton, a former Barclays Bank PLC (Barclays) trader, and member of a FX chat room nicknamed “the Cartel”.

Mr Ashton alleged that the FCA breached s394(4) of the Financial Services and Markets Act 2000 (FSMA) by including in certain of its notices (the Notices), certain statements and conversations through which his involvement could be identified, and which he did not have an opportunity to contest.

In deciding the application, the Tribunal applied a two-stage analysis. First, it considered whether statements in the Notices could have been interpreted as referring to a third party. Second, it considered whether, based on the external information that a market participant might have reasonably known at the time the Notices were published, a reader would have identified Mr Ashton from the relevant passages. The first stage of the test was decided in Mr Ashton’s favour; however, Mr Ashton failed at the second stage to satisfy the Tribunal that anything in the Notices would identify him.

This application followed similar applications made by other traders, notably Christian Bittar and Achilles Macris. In November 2015, the FCA was granted permission to appeal the latter case to the Supreme Court to clarify the threshold of identification under FSMA.