Ora Café UK Limited. v The Pensions Regulator
[2024] UKFTT 934 (GRC)
Toni Fox-Bryant & Anor v The Financial Conduct Authority
25 October 2023
[2023] UKUT 259 (TCC)
Upper Tribunal
Two people were accused of giving bad pension advice. They didn't properly explain why they disagreed with the accusations, just said 'no'. The judge said they have to explain properly or it will be assumed they're guilty.
Key Facts
- •Toni Fox-Bryant and David Brian Price (Applicants) were owners/directors of CFP Management Ltd, a financial services firm.
- •CFP provided pension transfer advice; the firm subsequently entered liquidation.
- •The Financial Conduct Authority (FCA) reviewed 21 CFP client files (File Review) and issued Decision Notices, withdrawing approvals and imposing penalties (including a prohibition order for Ms. Fox-Bryant).
- •Applicants referred the Decision Notices to the Tribunal.
- •The FCA applied for directions, including an Unless Order requiring Applicants to provide particulars of their response to the File Review findings.
- •Applicants denied key parts of the FCA's Statement of Case without providing reasons.
- •Applicants claimed lack of access to files and insufficient resources to provide detailed responses.
Legal Principles
The purpose of pleadings is to enable the opposing party to know the case it has to meet.
British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 72 BLR 26, Three Rivers District Council v Bank of England [2001] UKHL 16; [2001] 2 All ER 513, McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775
A reply to a statement of case must state reasons for disputing matters.
Tribunal Procedure (Upper Tribunal) Rules 2008, Schedule 3, paragraph 5(2)(c)
While the burden of proof is on the Authority, an Applicant must still put forward their case.
Badaloo v the Financial Conduct Authority [2017] UKUT 158 (TCC)
Outcomes
Paragraphs 34 and parts of 36 of the Applicants' Reply were struck out due to factual inaccuracies regarding access to files.
The Applicants had access to the files; their claims of lack of access were untrue.
Unless Order granted: Applicants must provide particulars of their denials regarding the File Review findings by 31 December 2023; otherwise, paragraphs 33, 39, and several others (66-90, 94, 107-109, 123-124) will be deemed admitted.
Applicants' bare denials failed to meet pleading requirements, preventing the Authority from understanding the case it had to meet. Lack of resources or expert evidence was not a sufficient justification.
Applicants' argument regarding previous FCA communications (suggesting no response to File Review was needed) was not sufficient to excuse non-compliance with pleading rules.
While relevant to context, the prior communication did not override the requirement for specific and reasoned responses.
Similar Cases
Markos Markou v The Financial Conduct Authority
[2023] UKUT 101 (TCC)
James Caldwell (Trustee of the Smith & Wallace & Co 1988 Pension Plan) v The Pensions Regulator
[2024] UKFTT 505 (GRC)
The Financial Conduct Authority v Thomas Seiler & Anor
[2024] EWCA Civ 852
De Cecco UK Limited v The Pensions Regulator
[2023] UKFTT 1023 (GRC)