In the recent case of R. (on the application of Christopher Willford) v Financial Services Authority (2013), the Court of Appeal found that where a party sought to challenge an FCA decision notice, the claim should be made in the Upper Tribunal and not via the judicial review process. The decision notice should provide the claimant with sufficient reasoning to understand why the notice has been issued but there is no formal requirement to respond to individual submissions. The Court also decided that an individual will not automatically be entitled to anonymity following disciplinary proceedings by the FCA.

Background

In May 2010, Christopher Willford, the former Group Finance Director of Bradford & Bingley plc, was issued with a formal warning notice under Section 67 of the Financial Services and Markets Act 2000. The notice proposed a financial penalty of £100,000 for his failure to exercise "due care, skill and diligence" whilst acting in his professional capacity at the bank. The FSA alleged that Mr Willford had failed to disclose sufficient financial information prior to a planned rights issue designed to strengthen the bank's capital reserves in 2008. Mr Willford was said, amongst other things, to have failed to ensure that the bank's trading records were adequately checked, that any change in financial position was reported to the Executive Committee and to supervise effectively the finance department.

In October 2008, the FSA's decision notice provided for a £100,000 fine for misconduct which had occurred during Mr Willford's time as Group Finance Director. Mr Willford appealed the decision via the judicial review process, on the grounds that the Regulatory Decisions Committee (RDC) had failed to provide adequate reasons for its decision. The Claimant argued that the outcome had been unfair as the RDC had failed to address each of his individual submissions.

The High Court quashed the FSA's decision notice. Mr Justice Silber concluded, during a private hearing, that the judgment should be published in a "redacted and anonymous" form to ensure that Christopher Willford's identity was not disclosed.

The FSA appealed the decision. The first ground of appeal was that the case should not have been brought via judicial review; rather it should have been heard in the Upper Tribunal. The second ground was that sufficient reasons had been provided to Mr Willford, as the FSA notice only needed to make clear the reasons for issuing the decision.

Court of Appeal

The Court of Appeal overturned the first instance decision. It rejected Mr Willford's claim that the Upper Tribunal lacked the power to overturn an RDC decision, stating that, where an alternative remedy was available to the Claimant, the court would not usually allow the claim to proceed by way of judicial review. In this case, statute provided a right of appeal via the Upper Tribunal, and therefore this process should be followed as long as there was no "exceptional circumstance" to the contrary.

Lord Justice Moore-Bick stated that the RDC had provided sufficient reasons when handing down their decision notice. In some circumstances a detailed response to each submission may be required but in this case the RDC were entitled to focus on a small number of points as the complaint against Mr Willford was narrow in scope. The notice simply had to give sufficient reasons to enable the recipient to understand the basis of the decision; and therefore there was no requirement to respond to individual submissions.

On the handing down of the decision, Mr Willford once again requested that the judgment be published in a "redacted and anonymous" form given his intention to challenge the decision in the Supreme Court. He contended that it was necessary to protect his identity until after the case had been concluded and sanctions had been finalised in order to avoid "irreparable damage to his professional reputation". The FSA disagreed stating that important questions of principle were at stake and therefore the judgment should be published in full so that the public could understand the nature and basis of the Court's decision.

All three Judges rejected the plea for anonymity, as while they appreciated that Christopher Willford may be embarrassed by the outcome and that it was likely to damage his professional career, such concealment of identity was not "strictly necessary in the interests of justice". Lord Justice Moore-Bick thought that the "extensive" redactions went to the "heart of the judgment" and therefore it was not in the interest of open justice to allow the application for anonymity to proceed.

Comment

This case apparently closes the door for claims for judicial review of decision notices – perhaps not surprisingly given that an alternative appeal route exists. The decision also reiterates the principle of open justice which is likely to outweigh a litigant's wish for anonymity in most situations.