The Court of Appeal recently reversed a judicial review decision to quash a Decision Notice, issued by the Financial Services Authority1 (FSA), imposing a fine on an approved person. The Court of Appeal decision restricts the availability of judicial review of regulatory decisions. It also delimits the scope of the Regulation Decision Committee's (RDC) duty to give reasons and makes clear that anonymity will not usually be available to an aggrieved party who seeks judicial review.
The Queen (on the application of Christopher Willford) v. Financial Services Authority2
Christopher Willford was the Group Finance Director of Bradford & Bingley plc (the Bank) at the time that its shares were suspended in September 2008. As an approved person he was under a duty to "exercise due skill, care and diligence in managing the business of the firm for which he is responsible in his controlled function".3
In mid May 2008, the Bank made two public announcements stating that trading continued in line with the interim management statement. Within two weeks of the second announcement, on 2 June 2008, the Bank issued a profits warning.
Following investigation, the FSA determined that Mr Willford had failed to: (i) ensure the finance department brought potentially important information to his attention promptly; (ii) take active steps to locate relevant information; and (iii) review the information that was available to him, or appreciate its significance, and act appropriately. In the usual way, the FSA issued a Warning Notice of its impending decision. Mr Willford, having instructed a leading firm of solicitors, made extensive written submissions and appeared before the RDC. Having considered these, the RDC subsequently issued a Decision Notice fining Mr Willford £100,000 for his failings.
Mr Willford applied for judicial review claiming that, contrary to section 388 of Financial Services and Markets Act 2000 (FSMA), the FSA had failed to give adequate reasons for its decision. Silber J, at first instance, accepted that judicial review was available, quashed the Decision Notice and granted Mr Willford anonymity.
Availability of judicial review
On appeal it was common ground that judicial review is not ordinarily available when the claimant has an alternative remedy except in exceptional circumstances. Usually, circumstances will be exceptional if the alternative remedy is clearly unsatisfactory. The question was whether Mr Willford's right to refer the issue of the Decision Notice to the Upper Tribunal (the Tribunal) was an unsatisfactory remedy.
Silber J had been swayed by the fact that the Tribunal did not have the power to order the RDC to give proper reasons for the decision and therefore decided that judicial review was an appropriate remedy. The Court of Appeal held that this did not give sufficient emphasis to the statutory scheme. Moore-Bick LJ, giving the leading judgment of the Court, said he thought that it would be surprising if "Parliament [had] intended that disputes relating to the procedure adopted by the FSA should be reviewed by the courts, save in the most exceptional cases". He had little sympathy for the suggestion that the Tribunal would not have the power to require the RDC to give adequate reasons. He considered this issue would be subsumed as the Tribunal considered this matter afresh and dealt with the substance of the matters against Mr Willford.
Adequacy of reasons
Central to Mr Willford's application for judicial review was a contention that the Decision Notice failed to inform Mr Willford exactly why his submissions had been rejected. It was argued that he needed this information in order to make an informed decision on whether to refer this matter to the Tribunal.
It is clear from the judgments that Silber J was influenced by the fact that the Decision Notice in question was less well reasoned that other examples shown to him. The Court of Appeal took a more robust line. Moore-Bick LJ held that the degree of particularly that had been seen in other cases was not strictly necessary. Rather, the degree of particularity required would depend on the circumstances and what was necessary was that "the RDC should leave the recipient in no real doubt as to why" it had made a particular decision.
The Court made reference to the fact that Mr Willford's submissions ran to 100 pages. This, in turn, had generated a response from the FSA's Enforcement Division that ran to 28 pages with an 83 page annex. The transcript of the hearing before the RDC, at which Mr Willford had given evidence, ran to 80 pages. The Court determined that, in these circumstances, the RDC was not required to deal with each and every submission of Mr Willford. Rather, it was entitled, per Moore-Bick LJ, to "concentrate on the main issues and to support its conclusions by reasons which involved more detailed findings of fact".
Anonymity of the applicant
The first instance hearing had been held in private and the judgment had been published in redacted form. The rationale for this was that, under the statutory scheme, the FSA was obliged to maintain the confidentiality of any investigation until such time as it decided against an individual and imposed sanctions.
The Court of Appeal decided4 that Mr Willford ought not to be able to maintain his anonymity following the appeal. The Court gave weight to the principle of open justice and the fact that anonymity will only be granted by the courts if it is necessary for the administration of justice. On the facts the Court concluded there was no such necessity and that Mr Willford had taken the matter outside the statutory regime requiring confidentiality when he brought his application for judicial review.
Whilst Mr Willford might yet seek to take this matter to the Supreme Court, as things stand at the time of writing, this decision will be welcomed by the FCA. With this decision, the Court of Appeal has reaffirmed that the hurdle to challenging a decision based on the adequacy of reasons remains a significant one. It has also emphasised that something exceptional will be necessary before a remedy is available outside the statutory scheme. Even if such a remedy is available, the need for open justice will mean that anonymity will not be available to an aggrieved party.