In dismissing an appeal by Aberdeen Asset Managers and UBS against a decision ordering the disclosure of certain documents, the UK Court of Appeal held in Real Estate Opportunities Ltd v Aberdeen Asset Managers Jersey Ltd and others, 2007 EWCA Civ 197 that the confidentiality provisions of the Financial Services and Markets Act 2000 (FSMA) which preclude theFinancial Services Authority (FSA) from making disclosure to a third party of information obtained by it in the course of investigations did not provide any protection from disclosure by a party under FSA investigation.
The Court of Appeal held that for the purposes of section 348 FSMA, a person could not be said to “obtain” information from the FSA which it had collected in the course of inquiries if the authority gave him a document containing information he already possessed even if, as far as the authority was concerned, he was not the source.
The Court held that section 348 FSMA did not impose any bar on disclosure by a secondary recipient of information in (i) a situation where confidential information had been supplied to the FSA by an employee from their own files without having had specific authority to do so, and (ii) the situation where the FSA supplied information to a recipient which the recipient already had. The Court concluded that a person did not "obtain" information from the FSA for the purpose of section 348 FSMA if he had that information before it was given to him by the FSA. That would be so even if that person were not the "source" of that information in the sense of having authorized some individual on its behalf to give the information in question to the FSA.