A key disciplinary sanction available to the UK Financial Services Authority (FSA) is public censure. This takes the form of a press release, together with a notice setting out details of the offense committed and, where a fine is imposed, the level of that fine (Notice). Payment of the financial penalty is often not the greatest concern; it is the reputational damage caused by publication of information about the offenses that is usually the most serious concern.
Given the potential damage resulting from a public censure, Section 393 of the Financial Services and Markets Act 2000, or FSMA, provides protection to third parties where a Notice (a) identifies a third party and (b) is prejudicial to that third party. In these circumstances, third parties have the right to see the Notice before it is published, make representations to the FSA in relation to it and to challenge any criticism of them in the Notice in front of the Financial Services and Markets Tribunal, or FSMT.
Jan Laury v. FSA is a recent decision of the FSMT in which third-party protection is considered. In this case, the FSA had published a Notice notifying a firm of a financial penalty of £560,000 in respect of breaches of the FSA Principles for Businesses and Rules. Mr. Laury had been the Head of Compliance at the firm in question for part of the relevant period and asserted that the Notice contained implied criticisms of him, which were unjustified and which he had had no opportunity to comment upon or contest. The crux of Mr. Laury's complaint was that the Notice referred to the compliance function and referred to key personnel who did not understand their roles. He said he was identifiable through those references and implicitly criticized by the Notice.
The FSMT held that Mr. Laury was neither identified nor criticized. Regarding identification, the FSMT confirmed that the third party must be positively identified in the Notice itself. While this does not necessarily require the party to be named (identification by position may be sufficient, for example, "Chairman"), the third party will not be "identified" if identification requires looking at other material in conjunction with the Notice.
In Mr. Laury's case, the Notice did not refer expressly to Mr. Laury or his role as Head of Compliance. The reference to the compliance function of the firm generally was insufficient to identify him. Further, the Notice referred to "some key personnel" and his identification through this reference was even more unlikely. Thus, Mr. Laury was neither identified, nor was he criticized. The decision (in July 2007) confirms the FSMT decision in Sir Philip Watts v. FSA (July 2003) which previously considered section 393 of FSMA.