Heather Dunne v Financial Conduct Authority

Publication of a Financial Conduct Authority decision notice and entry of a reference on the Upper Tribunal register are governed by a strong statutory and open-justice presumption in favour of publicity. An applicant seeking privacy must provide cogent evidence that publication, rather than the investigation or proceedings generally, creates a significant likelihood of unfairness or substantial psychological or physical harm.

Reputational embarrassment, disputed allegations, absence of current consumer-protection urgency, and limited disclosure of financial circumstances will not ordinarily displace that presumption. Existing public information about the subject matter is a factor favouring publication.

The applicant challenged Financial Conduct Authority decision notices before the Upper Tribunal. She sought directions preventing publication of the notices and preventing particulars of her reference appearing on the Tribunal register. She relied principally on the asserted effect of publication on her anxiety and depression, supported by her own statement, letters from her general practitioner and counsellor, and evidence of medication.

She also relied on anticipated reputational damage, alleged defects in the Authority’s investigation, the absence of urgency, and disclosure of financial hardship information. The Authority opposed the applications. The Tribunal had already granted separate case-management directions protecting the privacy application materials and heard the privacy applications in private.

The central issue was whether the applicant had established a real need for privacy sufficient to displace the statutory presumption of publication.

1. The privacy applications were dismissed. Section 391 of the Financial Services and Markets Act 2000 and open justice create a strong presumption that decision notices should be published and references entered on the register. The Tribunal’s powers under rule 14 and paragraph 3(3) of Schedule 3 required a discretionary balancing exercise, but the applicant bore the burden of establishing unfairness.
2. The relevant question was whether publication created a significant likelihood of unfairness, including substantial psychological or physical harm. It was insufficient to show that the investigation or litigation had caused anxiety, stress or low mood. A possibility of harm did not meet the threshold; cogent evidence of a causal link and significant likelihood was required.
3. The evidence did not meet that standard. The GP letters recorded medication and low mood but did not link the effects of publication to harm. The counsellor’s letters were admissible as hearsay evidence of primary fact, but were not independent expert medical reports and attracted little weight as to diagnosis, risk and causation. The applicant’s untested statement was genuine but did not provide cogent evidence that publication would create the asserted risk.
4. Previous public reporting of substantially similar allegations further undermined the asserted causal case and was independently a factor favouring publication. The notices and register would also make clear that the allegations were disputed and subject to the reference.
5. Reputational embarrassment, the absence of additional consumer-protection urgency, disagreement with the Authority’s investigatory process, and the limited financial-hardship material in the notice did not establish unfairness. The Tribunal would continue to consider reasonable adjustments and could revisit privacy if circumstances changed or cogent new evidence were provided.

Following circulation of a draft, the Tribunal made limited rule 14 redaction orders concerning unnecessary private health information in the published decision.

not stated in the judgment.