Canada Inc, R (on the application of) v The Financial Services Authority

On an application for an interim injunction, the claimant must show an arguable case that the proposed administrative action is unlawful. A permission-stage judgment is not binding on the judge determining interim relief, who must reach an independent view of the statutory argument.

Section 391 of the Financial Services and Market Act 2000 confers a broad discretion on the Financial Services Authority to publish information relating to a decision notice, subject to the statutory limits concerning appropriateness, unfairness and prejudice to consumers. A general policy favouring publication is not irrational where each case remains subject to individual consideration.

The claimants sought judicial review and interim relief preventing the Financial Services Authority from publishing a decision notice imposing an £8 million penalty for market abuse. A deputy judge granted permission and interim relief on the basis that the statutory interpretation issue was arguable.

The claimants referred the decision notice to the Upper Tribunal, which dismissed their application to prohibit publication. The interim relief consequently expired. The claimants then sought renewed injunctive relief, relying on statutory interpretation, alleged irrationality, human rights and alleged unfairness under section 391(6) of the Financial Services and Market Act 2000.

1. Application dismissed. The court applied the principles in American Cyanamid and considered whether there was an arguable case that the Authority’s decision of 24 August 2011 was unlawful.
2. The deputy judge’s earlier conclusion that the statutory interpretation issue was arguable was not binding. The court had to determine for itself the weight of the argument and the meaning of the statutory provisions.
3. Section 391(4) of the Financial Services and Market Act 2000 was more likely to confer a broad discretion on the Authority to decide whether publication was appropriate. Section 391(6) imposed limits where, in the Authority’s opinion, publication would be unfair to the person concerned or prejudicial to consumers. The Authority’s guidance, which stated that each case would be considered individually but that enforcement action would ordinarily be publicised, was not irrational on that construction.
4. The Upper Tribunal was particularly suited to determining whether publication should be prohibited. Its reasoned decision, together with the amount of relevant material already in the public domain, meant that the court would require considerable persuasion before departing from that position.
5. The human rights arguments did not justify relief. Assuming that article 8 and article 1 of the First Protocol were engaged, publication was supported by a pressing social need and was capable of justification.
6. The alleged unfairness was not established. The evidence concerning prejudice to the personal claimant was insufficient, and the asserted concern that publication might affect dealings with a Canadian regulator did not make publication unfair. An expert regulator could disregard irrelevant material.
7. The anonymity order was lifted immediately. Inspection of the court file was stayed until 4 pm one week later. Publication was not stayed. The claimants were ordered to pay the defendant’s costs, summarily assessed at £7,521.90, payable within 14 days. Permission to appeal was refused.

The judgment describes earlier proceedings before a deputy judge of the High Court, who granted permission for judicial review and interim relief. The Upper Tribunal subsequently dismissed the claimants’ application to prohibit publication. Applications for permission to appeal and further interim relief failed before the Upper Tribunal and the Court of Appeal. The present court refused renewed injunctive relief.