In proceedings between the claimant and the defendants an issue arose as to disclosure of certain documents including transcripts of evidence given by the defendants’ employees to the FSA in proceedings between the FSA, the defendants and others. Copies of those documents were provided by the FSA to the defendants. The defendants argued that they were entitled to withhold inspection of them in the current proceedings under the Financial Services and Markets Act 2000 s348 and s391 as they were either confidential or their publication was prohibited. The claimant argued that as the information had been provided to the FSA by employees whose knowledge could be attributed to their employers, the defendants had been aware of the information contained in the documents before they obtained them from the FSA, and so they could not be confidential.

The Court of Appeal agreed with the claimant. A person could not be said to obtain information from the FSA for the purposes of s348 if he knew that information already or, in the case of a company, knowledge of that information could be attributed to it under the general law i.e. where its employees gave the information even if not specifically authorised to do so. The purpose of s348 was to preserve the confidentiality of information given to the FSA but that was no reason to prevent a person disclosing information he already had, even if he received the same information from the FSA. Disclosure of those documents, the contents of which the defendants had prior knowledge, should be made.

Real Estate Opportunities v Aberdeen Asset Managers Jersey Limited & Others