Jeffery v The Financial Services Authority

An appellate tribunal must address a limitation issue properly before it when deciding whether witness summonses should issue. A fact-sensitive case-management decision remains appealable on a point of law where the tribunal has failed to consider a material legal issue. Where the timing and source of a regulator’s knowledge are material to limitation, fairness may require positive evidence from relevant witnesses rather than cross-examination alone. The Court of Appeal may set aside the tribunal’s decision and re-make it under the Tribunals, Courts and Enforcement Act 2007.

The Financial Services Authority imposed a financial penalty and made a prohibition order against Andrew Jeffery. He referred the decision to the Upper Tribunal under section 55 of the Financial Services and Markets Act 2000. He sought witness summonses requiring two Surrey police officers to attend and give evidence about information supplied to the FSA, including its possible relevance to the statutory limitation period.

Sir Stephen Oliver QC refused the summons applications. Permission to appeal was refused on most grounds, but the Court of Appeal considered whether the Upper Tribunal had erred in law by failing to address the limitation issue when refusing summonses against the officers.

1. Lord Justice Rimer gave the judgment, with Lord Justice Pill and Lord Justice Elias agreeing. The appeal was allowed on the single issue concerning the attendance of DC Bennett and DS Lambert. The Upper Tribunal’s decision was set aside so far as it refused summonses requiring the officers to give oral evidence.
2. Under section 13(1) of the Tribunals, Courts and Enforcement Act 2007, an appeal from the Upper Tribunal lies on a point of law. Although the original decision involved a fact-based exercise of judgment, the tribunal’s failure to address a limitation issue raised on the application was an error of law. The Court of Appeal could therefore entertain the appeal.
3. The limitation issue arose under section 66(4) and (5) of the Financial Services and Markets Act 2000. No limitation issue arose for grounds (3), (4) or (5). Grounds (1) and (2), however, concerned allegations which might have been known to the FSA more than two years before the warning notice, depending on the evidence and the effect of the statutory amendment.
4. A February 2006 document recording police information about unpaid insurance premiums raised a real question as to when, and how, the FSA acquired relevant knowledge. Cross-examination alone might materially weaken Mr Jeffery’s limitation case. A fair trial therefore required the two officers to attend and give positive oral evidence. The Court did not determine whether the FSA’s action was in fact time-barred.
5. Pursuant to section 14(2) of the Tribunals, Courts and Enforcement Act 2007, the Court re-made the decision by requiring the Upper Tribunal to issue summonses under Rule 16 of the The Tribunal Procedure (Upper Tribunal) Rules 2008. The summonses were to specify the time and date of attendance, require answers to relevant questions, and provide for necessary expenses and their payment.

• Court of Appeal (Civil Division): Permission was granted on the single limitation-related issue. The appeal was allowed and the decision was re-made under section 14(2) of the Tribunals, Courts and Enforcement Act 2007.
• Upper Tribunal (Tax and Chancery Chamber): Sir Stephen Oliver QC refused the applications for witness summonses in a judgment released on 13 July 2011. The Upper Tribunal refused permission to appeal on 25 October 2011.