Andrew Jeffrey v The Financial Services Authority

The Court of Appeal allowed in part an appeal from the Upper Tribunal (Tax and Chancery Chamber) concerning whether two named Surrey police officers should be summoned to give oral evidence at an impending substantive hearing. The tribunal below had refused the summonses; the Court found that the tribunal had erred in law by failing to address a limitation point founded on section 66(4) and (5) of the Financial Services and Markets Act 2000 and that, on the materials before the court, a fair trial required the appellant to be able to call the officers to give oral evidence.

Accordingly the Court set aside the Upper Tribunal's decision in respect of the two officers and re-made the decision under section 14(2) of the Tribunals, Courts and Enforcement Act 2007, ordering the issue of summonses under Rule 16 of the Tribunal Procedure (Upper Tribunal) Rules 2008 requiring the officers to attend and give oral evidence, with provision for expenses. All other applications for permission to appeal were refused below and were not renewed before the Court of Appeal.

Background and parties: The appellant, Andrew Jeffery, had his FSA approval removed and a final notice issued in July 2010 imposing a financial penalty and a prohibition order under the Financial Services and Markets Act 2000. He referred that decision to the Upper Tribunal under section 55 of the Act. The FSA relied on five numbered grounds in its decision notice. The appellant applied in the Upper Tribunal for summonses under Rule 16 requiring a number of witnesses, including two Surrey police officers, to attend and/or produce documents.

Procedural posture: On 27 June 2011 Sir Stephen Oliver QC refused the summons applications in reserved judgment dated 13 July 2011. Permission to appeal to the Court of Appeal was refused on the papers by Lewison LJ on 30 January 2012 except that permission was adjourned on one issue concerning the two police officers. The application for permission on that single issue was heard by the full Court of Appeal on 8 February 2012.

The nature of the application and issues: (i) The appellant sought summonses requiring two police officers (referred to as DC Bennett and DS Lambert) to attend the substantive hearing and give oral evidence, and to produce documents. (ii) The court framed the issues as whether the Upper Tribunal had erred in refusing the summonses, whether that refusal was reviewable by this court, and whether the appellant should be permitted to call the officers to meet a limitation point under section 66(4) and (5) of the Financial Services and Markets Act 2000 (the relevant limitation provision) and related questions of relevance and abuse of process.

Reasoning and subsidiary findings: The Court of Appeal concluded that Sir Stephen's refusal to permit the attendance of the officers involved an exercise of fact-based judgment but that he had erred in law by failing to address the limitation point which was properly before the tribunal. The Court noted documentary material, including a note of a meeting in February 2006, that raised a real question as to when the FSA first knew of matters forming the basis of grounds (1) and (2) of the decision notice. Given that documentary material, the appellant's case on limitation might be materially weakened if he were restricted to cross-examining FSA witnesses; the appellant required the ability to advance positive evidence from the police as to what information was conveyed to the FSA and when. The Court therefore set aside the tribunal's refusal in respect of oral evidence from the two officers and re-made the decision to order summonses for their attendance and examination, providing for expenses. The Court left undisturbed the tribunal's refusal to order production of documents from the officers.

Other points: The appellant did not attend the Court of Appeal hearing. The Court treated permission on the single issue as granted and made the consequential order.

Appeal allowed in part. The Court allowed the appeal on the single issue concerning whether two named Surrey police officers should be required to attend and give oral evidence at the forthcoming substantive hearing. The Upper Tribunal had erred in law by failing to address the appellant's limitation argument under section 66(4) and (5) of the Financial Services and Markets Act 2000; the material before the court raised a real question as to the timing of the FSA's knowledge and a fair trial required that the appellant be permitted to call the officers to give oral evidence. The Court re-made the decision under section 14(2) of the Tribunals, Courts and Enforcement Act 2007 and ordered issue of summonses under Rule 16 for attendance and oral evidence, with provision for expenses. All other grounds of appeal were not pursued.

Reference to the Upper Tribunal (Tax & Chancery Chamber) from a decision of the Financial Services Authority under section 55 FSMA 2000; hearing and reserved judgment refusing summonses by Sir Stephen Oliver QC (judgment released 13 July 2011); permission to appeal to the Court of Appeal initially refused on the papers by Lewison LJ on 30 January 2012 except for one adjourned point; Appellant's Notice filed 17 November 2011; Court of Appeal (Civil Division) allowed the appeal in part on 8 February 2012 ([2012] EWCA Civ 178).