In seeking to achieve its enforcement objective of “credible deterrence”, the Financial Conduct Authority (“FCA”) has, in recent years, included in its final notices examples of the particular misconduct for which the firm in question is being disciplined. However, this approach has resulted in the individuals involved claiming that they have been identified and prejudiced and that their rights to make representations prior to publication of the relevant notice under section 393 of the Financial Services and Markets Act 2000 (“FSMA”) have been infringed. In the recent case of Christian Bittar v FCA, 1 the Upper Tribunal gave guidance as to when a third party (such as an individual trader) can be said to have been “identified” for these purposes.
Mr Bittar, a former employee of Deutsche Bank AG (“Deutsche Bank”), contended that he had been prejudicially identified by the decision notice2 issued to Deutsche Bank on 23 April 2015 in relation to LIBOR and EURIBOR related misconduct (the “Deutsche Bank Decision Notice”). 3 In ruling in favour of Mr Bittar, the Upper Tribunal applied the Court of Appeal’s judgment in FCA v Macris4 which deter-mined the information to which reference can be made in order to determine whether a third party has been “identified” by the FCA in a regulatory notice for the purposes of section 393 FSMA.
Section 393 FMSA provides that, where a warning or decision notice (the “Notice”) issued by the FCA “identifies” a third party and is prejudicial to that third party, the third party must:
- be given a copy of the Notice; and
- be given at least 28 days within which to make representations to the FCA in relation to the Notice.5
On 19 May 2015, in Macris, the Court of Appeal held that, when determining whether an individual has been “identified” within the meaning of section 393 FSMA, it is legitimate to have regard to material external to the Notice. However, the Court of Appeal rejected the argument that there could be unlimited reference to external material in favour of a narrower, objective test:
“Are the words used in the “matters” such as would reasonably in the circumstances lead persons acquainted with the…third party, or who operate in his area of the financial services industry, and therefore would have the requisite specialist knowledge of the relevant circumstances, to believe as at the date of promulgation of the Notice that he is a person prejudicially affected by matters stated in the reasons contained in the [N]otice?” 6
However, in the wake of the Court of Appeal’s decision, there remained a lack of clarity as regards the practical application of this test.
CHRISTIAN BITTAR V FCA
The issue to be determined by the Upper Tribunal was whether, in the light of the decision in Macris, Mr Bittar had been identified, for the purposes of section 393 FSMA, in the Deutsche Bank Decision Notice.7
In determing this issue, the Upper Tribunal gave the following helpful guidance in interpreting the Court of Appeal’s test:
- the test proceeds by looking only at information that was in the public domain at the time the Notice was published and that “could reasonably be expected to have been obtained by well-informed market participants in the relevant area” 8 (referred to by the Upper Tribunal as “relevant readers”);
- the Court of Appeal’s reference, in Macris, to “persons acquainted with the…third party” includes “those who work in the same area” as the third party but does not include “those with intimate knowledge of the relevant events (for instance, those who actually participated in any particular set of transactions, or who have advised the person about them) or those with special personal knowledge (such as a very close friend, someone who sat next to the person at work, a spouse)”; 9
- the test does not permit the use of knowledge that could only be obtained by extensive investigation, such as the type of enquiries that a thorough investigative journalist would undertake; 10 and
- when seeking to demonstrate that section 393 FSMA has been engaged, it is not necessary for the third party to adduce any evidence that relevant readers had, in fact, identified him or her in the Notice. 11
Whilst this clarification is welcome, it is clear, as the Upper Tribunal acknowledged, that the question of whether a third party has been identified will be wholly dependent upon the circumstances of each individual case, “including the nature of the market in question and what material might reasonably be expected to have been read by the relevant readers”. 12 This results in a fluid, and somewhat circular, approach where the relevant reader must be “assumed to have such a level of interest in the subject matter concerned and such a level of knowledge and understanding that would reasonably be expected of a relevant reader considering the particular evidence that the Tribunal is asked to review”.13
Adopting this approach, the Upper Tribunal considered the information contained in the Deutsche Bank Final Notice regarding Mr Bittar’s role within the Bank, the information already available in the media in relation to Mr Bittar and the information contained in other regulatory notices published at the same time as the Deutsche Bank Final Notice. The Upper Tribunal concluded that Mr Bittar had been identified within the Deutsche Bank Decision Notice for the purposes of section 393 FSMA.
The test set out in Macris clearly requires careful consideration of the specific facts of each individual case in order to determine whether any third party rights have been engaged and, therefore, leaves the door open for future challenges by third parties. Consequently, the recent cases involving individuals who have claimed their third party rights have been breached will be of some concern to the FCA given the difficulties they present in the context of the provision of details of misconduct in regulatory notices. The FCA will, no doubt, be hoping that the Supreme Court will adopt a more restrictive interpretation of section 393 FSMA when it determines the FCA’s appeal in Macris in 2016.