Lewin, R (On the Application Of) v The Financial Reporting Council Ltd & Ors

A regulatory tribunal may make findings about a non-party where those findings are necessary to determine allegations against parties within its jurisdiction. Fairness does not generally require every affected person to be given participation rights. However, where serious findings are made about a non-party who has neither participated nor been represented, fairness may require a clear disclaimer that the findings are not findings against that person. Publication of the full report may nevertheless be lawful where the proceedings were public, the non-party had no reasonable expectation of privacy, and publication is justified by the public interest and the need to explain the findings and sanctions imposed on the regulated parties.

The claimant, a director of a public company, sought judicial review of a disciplinary tribunal’s report concerning the statutory auditors of that company. The report made serious criticisms of the claimant, although he was not a party, was not invited to give evidence, and had no opportunity to comment. He challenged both the tribunal’s failure to qualify its findings and the Financial Reporting Council Conduct Committee’s decision to publish the report in full.

The central issues were whether fairness required procedural protection for the claimant and whether publication of the report breached common-law fairness or Article 8 of the ECHR.

1. Claim against the Tribunal. The Tribunal’s purpose was to determine allegations of misconduct against the interested parties. The claimant’s conduct fell within the issues requiring determination because it was central to the alleged audit failures and to the interested parties’ defence. The claimant was not subject to the Accountancy Scheme, was not a party, and could not be joined under it. No general duty required the Tribunal to notify him, invite participation, or provide draft findings for comment.
2. Fairness is context-sensitive. Given the gravity of the findings, fairness nevertheless required consideration of a disclaimer stating that the claimant was not a party, had not been invited to give evidence, and had not made representations. The report should have made clear that its findings were not findings against him.
3. Publication. The Conduct Committee could not rewrite the final report. It was required to balance the claimant’s interests against the public interest and the interests of the interested parties. The full report was necessary to explain the Tribunal’s findings and sanctions, and to place the misconduct findings against the interested parties in context.
4. The claimant had no reasonable expectation of privacy in relation to conduct as a director of a public company examined during a public regulatory hearing. The criticism of his professional role did not constitute the serious interference with private life required to engage Article 8.
5. Even if Article 8 were engaged, publication was justified by the strong public interest in reporting the outcome and reasons of an independent regulatory tribunal, and by the prejudice caused to the interested parties by publication of sanctions without the surrounding findings. The claimant could use the right of reply under section 15 of the Defamation Act 1996. The report was to be accompanied by an Explanatory Memorandum incorporating the required qualifications. The claim for judicial review was dismissed.

First-instance judicial review claim. No earlier decision under appeal was stated.