Razzaq v Financial Conduct Authority (FCA)

An application for permission to appeal will be refused where the proposed grounds disclose no real prospect of success. A civil tribunal need not require a party to call a particular witness or rely on particular evidence. Complaints about witness attendance, alleged coaching, the standard of proof, fair trial, or apparent bias must identify an arguable defect capable of affecting the outcome. A separate bankruptcy decision on a technical procedural ground does not create double jeopardy or materially affect regulatory findings on different issues.

Abdul Razzaq sought renewed oral permission to appeal the Upper Tribunal (Tax and Chancery Chamber)’s decision, [2013] UKUT 140 (TCC). The Upper Tribunal had upheld a prohibition order under section 56 and cancellation of permissions under section 45 of the Financial Services and Markets Act 2000, following findings of fraud, misuse of a client-money account and unauthorised insurance-intermediary activity.

The proposed appeal challenged the absence of particular witnesses, the tribunal’s witness procedures, its assessment of the evidence and standard of proof, its treatment of a bankruptcy petition dismissed on a technical ground, alleged unfairness and bias, and further matters raised in a late skeleton argument. The central issue was whether any proposed ground had a real prospect of success.

Application dismissed. Lord Justice Vos refused permission to appeal because none of the proposed arguments had a real prospect of success.

1. The Upper Tribunal had stated that Bruce Tyler’s evidence played no material role. Michael Monitz’s evidence was unchallenged, and the tribunal relied instead on evidence from Ms Sheehan, who gave evidence and was cross-examined. There was therefore no arguable basis arising from the absence of those witnesses.
2. There was no general civil-procedure rule preventing witnesses from remaining in court before or after giving evidence. The suggested risk that witnesses had been coached by hearing other evidence was misconceived, and no causal explanation showed that the tribunal’s outcome was affected.
3. The tribunal applied the correct standard and burden of proof to the allegations of fraud and had a cogent and persuasive evidential foundation. A party may choose the evidence by which to prove its case. If a party omits a witness or document and its case is weakened, the opposing party may call that witness itself, but cannot require the other side or the tribunal to call it.
4. The decision dismissing the bank’s bankruptcy petition concerned only the petition’s inaccurate statement about security. It did not determine the regulatory issues and created no double jeopardy or arguable point capable of affecting the Upper Tribunal’s decision.
5. The late allegations concerning statutory and Convention rights, ultra vires, conflicts, res judicata, alleged annulment of bankruptcy and stress were peripheral, irrelevant, or incapable of affecting the issues decided. Past service on a regulatory panel did not create a reasonable apprehension of bias, and later contacts described in the President’s letter disclosed neither bias nor improper conduct.

• Court of Appeal (Civil Division): refused renewed permission to appeal and dismissed the application.
• Upper Tribunal (Tax and Chancery Chamber): in [2013] UKUT 140 (TCC), upheld the Financial Services Authority’s prohibition order and cancelled the appellant’s permissions under sections 56 and 45 of the Financial Services and Markets Act 2000.