Bluecrest Capital Management (UK) LLP v The Financial Conduct Authority
[2023] UKUT 140 (TCC)
Stephen Joseph Burdett & Anor v The Financial Conduct Authority
4 June 2024
[2024] UKUT 156 (TCC)
Upper Tribunal
Two people challenged the Financial Conduct Authority's (FCA) decision that they acted dishonestly. The court ruled the FCA's decisions should be made public, but it wouldn't let the FCA add new accusations to its case. The court will hear both cases together because they're similar.
Key Facts
- •Stephen Burdett and James Goodchild referred Decision Notices from the Financial Conduct Authority (FCA) to the Upper Tribunal.
- •The FCA found both lacked integrity and posed a risk to the financial system, imposing penalties and prohibition orders.
- •Burdett was a director of Synergy Wealth Limited, an Appointed Representative of Strategic Wealth UK Limited.
- •Goodchild was the founder and Chief Investment Officer of Westbury Private Clients LLP.
- •Both were involved in a scheme recommending clients switch pensions into a high-risk investment.
- •The Applicants applied for non-publication of the Decision Notices and exclusion from the Tribunal register.
- •The FCA applied to amend its statements of case and for a joint hearing of both references.
Legal Principles
Presumption in favour of publication of Decision Notices under FSMA s 391, balanced against the Tribunal's discretion to prohibit publication.
Fox-Bryant v FCA, [2023] UKUT 000224 (TCC)
Open justice principle; onus on applicant to demonstrate a real need for privacy by showing unfairness; significant likelihood of severe damage to livelihood needed to justify non-publication.
Fox-Bryant v FCA, [2023] UKUT 000224 (TCC); Khuja v Times Newspapers Ltd, [2017] UKSC 49
Tribunal's jurisdiction limited to "the matter" referred; interpretation of "the matter" varies in case law.
Section 133 FSMA; Jabre v Financial Services Authority, [2002] UKFSM FSM035; FCA v Hobbs, [2013] EWCA Civ 918; Bluecrest Capital Management (UK) LLP v FCA, [2023] UKUT 00140 (TCC)
Tribunal's power to amend statements of case under rule 5(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008; balancing exercise considering factors like prospects of success, timing, reasons for delay, and clarity.
Rule 5(3)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008; Bittar v Financial Conduct Authority, [2017] UKUT 82 (TCC)
In references under the Pensions Act 2004, the Tribunal has broader jurisdiction to consider evidence and allegations beyond those considered by the regulatory authority.
Re Bonas Group Pension Scheme, (UT reference FS/2010/0007); ITV plc and others v The Pensions Regulator, [2015] EWCA Civ 228
Outcomes
Privacy Applications dismissed.
Applicants failed to demonstrate a significant likelihood of severe damage to their livelihoods from publication; open justice principle prevails.
FCA's application to amend statements of case to include alternative allegations of negligence refused.
Allegations of negligence (Principle 2) are not of the same nature as allegations of lack of integrity (Principle 1) and were not included in the warning notice; Bluecrest Capital Management (UK) LLP v FCA followed.
FCA permitted to make other minor amendments to its statements of case.
Amendments did not prejudice Applicants and reflected the Authority's updated position based on new evidence.
References to be case managed and heard together.
Common factual continuum and efficiency outweighs Applicants' concerns; better informed conclusion on overall factual matrix.
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