The FSA has published Consultation Paper 09/5: Obtaining and using firm-commissioned reports (CP09/5). In CP09/5 the FSA is consulting on its proposed amendments to Chapter 3 of the Enforcement Guide (EG).  

According to the FSA its proposed amendments to chapter 3 of EG provide a fully comprehensive and self explanatory overview of its approach to the use of firm-commissioned reports.  

According to the FSA its proposed amendments will provide the following clarification:  

  • Firms are not under any obligation to share with the FSA the content of a report they are given or advice they receive where such a report or advice is protected by legal professional privilege.
  • In situations where a firm voluntarily decides to offer the FSA investigation reports, the FSA suggests that the firm considers discussing with it the scope of the report.
  • If a firm is willing to provide an internal investigation report to the FSA under a ‘limited waiver’ of legal privilege, then it should be aware that the benefits of sharing the report will be diminished if it is not also willing to provide it with underlying documentation on which the report is based.
  • Explains how the FSA will use internal investigation reports passed to it by firms and address potential issues that may arise in relation to onward disclosure of information, particularly to overseas regulators.

When the FSA published Policy Statement 07/12: Decision Procedure and Penalties Manual and the Enforcement Guide it stated that it envisaged that minor changes to EG would be consulted on using a streamlined consultation process, with proposals being posted on the FSA’s website for only 28 days. The FSA is using this streamlined procedure for the first time to make amendments to EG. Therefore the deadline for comments on CP09/5 is 23 February 2009. The FSA plans to publish feedback on responses, along with a final amended text of EG at the beginning of April 2009.  

View Consultation Paper 09/5: Obtaining and using firm-commissioned reports, 26 January 2009