Key Facts
- •Promethean Finance Limited (Promethean), a regulated firm, registered numerous trading names of third-party insolvency practitioners on the Financial Services Register (the Register), who were not registered under FSMA and not appointed representatives of Promethean.
- •The Financial Conduct Authority (FCA) issued a Second Supervisory Notice requiring Promethean to remove these 'non-genuine trading names' (NGTNs) and take other remedial actions.
- •Promethean challenged the Supervisory Notice, arguing the actions were unreasonable and disproportionate, and infringed its human rights.
- •The Upper Tribunal (UT) heard evidence from both parties and reviewed extensive documentation.
Legal Principles
Threshold Conditions for Authorisation under FSMA
Section 19, 24, 55B(3), Schedule 6 FSMA
FCA's Consumer Protection Objective
Section 1B(3)(a), 1C FSMA
FCA's Power to Impose Requirements
Section 55L FSMA
Principles for Businesses (PRIN)
PRIN 2.1.1R
Systems and Controls (SYSC)
SYSC 3.1.1R, 3.2.6R, 3.1.4G, 3.2.3G
General Principles (GEN)
GEN 4.5, 4.5.3R, 4.5.4R, 4.5.6G
Consumer Credit Sourcebook (CONC)
CONC 3.3.1R, 3.1.4R, 3.3.10G, 3.9.3R, 8.2.4R, 3.9.5R(2), 3.9.7R, 8.2.4R
Upper Tribunal's Supervisory Jurisdiction
Sections 133, 133(6), 133(6A) FSMA; Markou v FCA [2023] UKUT 101 (TCC)
Article 1 Protocol 1 European Convention on Human Rights (A1P1)
A1P1 ECHR; R (oao Malik) v Waltham Forest NHS PCT [2007] EWCA Civ 265; Batra v FCA [2015] EWCA Civ 394; R (oao Bloomsbury Institute) v Office for Students [2020] EWHC 580 (Admin)
Proportionality Test
Bank Mellat v HM Treasury [2013] UKSC 39
Outcomes
Reference dismissed.
The UT found that Promethean's actions in registering NGTNs were in breach of FSMA and FCA principles, creating a risk of consumer detriment. The FCA's actions were deemed reasonable and proportionate, falling within its supervisory powers. No human rights breaches were identified.