On March 4, 2016, a decision of Upper Tribunal Tax and Chancery Chamber on whether a Decision Notice issued by the FCA prejudicially identified a third party was published. On April 23, 2015, the FCA issued Deutsche Bank AG with a Decision Notice (preceded by a Warning Notice and then subsequently a Final Notice) notifying the bank of the FCA’s decision to impose on it a financial penalty of £226,000 as a result of serious misconduct. The finding of misconduct related to attempted manipulation of two benchmark interest rates. The Applicant, Mr. Vogt, was employed by the bank as a money market trader during the time of the alleged misconduct. The Applicant argued that the contents of the Decision Notice (and other relevant notices) prejudicially identified him. As the Applicant had not seen the Decision Notice, he based his complaint on the contents of the Final Notice, assuming it was materially the same as the Decision Notice. The Applicant maintained that, in breach of its obligations under the Financial Services Markets Act, the FCA had failed to provide him with a copy of the Decision Notice at the time of issuance and prior to its publication. FSMA provides certain rights to third parties in relation to Warning and Decision Notices given to another person by the FCA. The FCA took the view that the Applicant was not identifiable from the Final Notice. In dismissing the application and deciding that the Applicant had not been prejudicially identified in the Final Notice, the Upper Tribunal found that the contents of the Final Notice and other material would not lead a person professionally acquainted with Applicant to conclude that Mr. Vogt was the third party identified in the Final Notice. This follows the Upper Tribunal’s recent decisions in Christopher Ashton v FCA; Christian Bittar v FCA; and the Court of Appeal’s judgment in Achilles Macris v FCA.
The Upper Tribunal’s decision is available at: http://www.tribunals.gov.uk/financeandtax/Documents/decisions/Vogt-v-FCA.pdf.
You may like to view our client note, “Identification of Third Parties in FCA Notices” which is available at: http://www.shearman.com/~/media/Files/NewsInsights/Publications/2016/01/Identification-of-Third-Parties-in-FCA-NoticesFIA-012615.pdf.