The Upper Tribunal has rejected the well-publicised complaint by Christopher Ashton that the FCA identified him in two decision notices without giving him the opportunity to make representations - because the Tribunal concluded that he was not identified at all.
Rebecca Dulieu has previously commented on the Tribunal's reluctant decision to permit Mr Ashton to make his reference out of time. It is now interesting to note that following his concerted efforts to have this matter heard, with the attendant publicity that this has generated, he now finds that the Tribunal has concluded that he was not identifiable in the relevant notices.
Mr Ashton, made two references to the Tribunal under section 393(11) of FSMA alleging that he was identified in two decision notices issued by the FCA against UBS and Barclays fining them for serious misconduct in relation to FX. Mr Ashton was not provided with copies of the decision notices (or the warning notices that would have preceded them) because the FCA took the view that they did not identify him.
Mr Ashton complained the notices identified – and prejudiced – him, without having afforded him the opportunity to contest the notices. As he had not previously seen the decision notices, his complaint was based on the text of the final notices which, not unreasonably, were presumed to be much the same as the decision notices.
The Tribunal concluded that Mr Ashton was unable to satisfy it that any of the words used in the decision notices would reasonably, in the circumstances, lead persons acquainted with him professionally, or operating in his area of financial services, to believe (as at the date of the issue of the notices) that he was a person prejudicially affected by the notices. Accordingly, it found that Mr Ashton was not identified in those notices in the manner provided for in section 393(4) of FSMA, and it therefore dismissed both his references.
There's a cruel irony in attracting significant publicity when complaining that you had been identified in high profile enforcement action only to lose your application because you were not named in the first place…