S, R (on the application of) v X

A decision notice issued by a financial regulator is provisional where the subject refers it to the Upper Tribunal. The statutory publication regime therefore requires a suitably nuanced assessment of whether publication is appropriate, particularly where there is no urgent public-interest need and the decision may be wrong. Guidance treating publication of challenged decision notices as normal after 28 days may arguably be unlawful if it fails to distinguish them from final notices. Where confidentiality is sought, the Upper Tribunal is the appropriate body to determine the issue. Interim restraint may therefore be imposed pending the High Court proceedings or the Upper Tribunal’s determination.

X issued a decision notice imposing an £8 million penalty and making adverse findings against the claimants. The claimants referred the decision to the Upper Tribunal and challenged X’s proposed publication of the notice by judicial review. They argued that publication was contrary to the statutory scheme, unfair, inconsistent with the Upper Tribunal’s confidentiality powers and incompatible with Convention rights.

The court considered whether the statutory interpretation and challenge to X’s guidance were arguable, and whether interim relief should restrain publication pending determination of the relevant proceedings.

1. Permission. Permission was granted on the statutory-construction issue and on whether X’s guidance was unlawful in its interpretation of the word “appropriate” in section 391(4) of the Z Act 2000. The other grounds were largely unarguable.
2. A decision notice is provisional. If there is no reference to the Upper Tribunal, it is ordinarily superseded by a final notice after 28 days. If there is a reference, section 133A prevents X from taking the action specified in the notice pending determination by the Upper Tribunal or final determination after appeal. The statutory context arguably distinguishes publication of decision notices from publication of final notices.
3. The amendment introducing express reference to decision notices did not necessarily make the publication approach for decision notices identical to that for final notices. Guidance stating that X would normally publish a decision notice following a reference could arguably be insufficiently nuanced where there was no urgent need for publication. The guidance’s case-by-case wording and opportunity for representations did not conclusively answer that concern.
4. The claimants’ arguments based on the timing of the statutory change and guidance were not arguable on the facts. They knew, at the latest when the legislation came into force, that a decision notice might be published despite a reference. They had later opportunities to make representations and did not show procedural prejudice.
5. The Upper Tribunal had powers under Rule 14 and Schedule 3, rule 3 of the Tribunal Procedure (Upper Tribunal) Rules to regulate confidentiality and publication. Where publication was not said to be urgently necessary, it was arguably wrong for X to publish a decision which the Upper Tribunal had yet to determine. X could seek an expedited directions hearing if delay was a concern.
6. The Article 6 argument was unarguable. The Article 8 argument added little and required no concluded determination. The Article 1 of Protocol 1 argument concerning the fine was unarguable; no authority had been cited for treating reputation as a possession.
7. Interim relief was granted. X was restrained from publishing the decision notice, its contents or details pending the earlier of determination of the judicial-review proceedings or the Upper Tribunal’s determination of privacy issues, conditional on the claimants making all appropriate applications to that tribunal within 14 days. The parties were anonymised under CPR 39.2 and costs were reserved.