Ancean Limited v The Financial Conduct Authority

Sections 348–349 of the Financial Services and Markets Act 2000 and the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 form a complete code governing the Authority’s use and disclosure of material received in FSMA reference proceedings. The scheme displaces any common-law implied undertaking or collateral-use rule that might otherwise apply. Subject to the statutory limits, the Authority may use the material for its public functions and disclose it in other Tribunal proceedings without the Tribunal’s permission or the supplier’s consent. The admissibility and fairness of any material relied upon remain matters for the Tribunal under its procedural rules. Alternatively, if a collateral-use restriction applied, permission should be granted for the Authority’s proposed regulatory uses.

Ancean was pursuing an ongoing reference challenging the Authority’s refusal of permission to conduct regulated activities. During the reference, Ancean provided the Authority with 54 documents and might provide witness statements. The Authority sought clarification of whether it could use those materials for its regulatory functions, including possible disclosure in separate enforcement references concerning former officers of SVS Securities Plc.

Ancean argued that a common-law implied undertaking, or an equivalent collateral-use rule, restricted the Authority’s use of the material and that any permission application was premature and over-broad. The Authority argued that the statutory confidentiality regime in sections 348–349 of FSMA and the 2001 Regulations was comprehensive and permitted the proposed use and disclosure.

1. The application was granted insofar as it was treated as an application for directions. A declaration was unnecessary and disproportionate. The Tribunal directed that the documents, information and witness statements provided by Ancean were to be held and used in accordance with sections 348 and 349 of FSMA and the 2001 Regulations.

2. The Tribunal Rules contain no equivalent of CPR 31.22 or 32.12. The CPR could not be imported wholesale into Tribunal proceedings. Tribunal proceedings are governed by their own statutory and procedural framework, and FSMA references form part of a continuing regulatory process rather than ordinary private litigation.

3. The common-law position was uncertain in ordinary Tribunal proceedings. The Tribunal did not need to resolve that issue because, even if an implied undertaking or collateral-use rule might otherwise apply, the specific FSMA scheme displaced it in FSMA references involving the Authority.

4. Section 348 of FSMA protects confidential information by restricting onward disclosure outside the Authority’s statutory ringfence. Sections 349 and Regulations 3–5 permit use and disclosure for public functions, criminal investigations and proceedings, and other Tribunal or specified civil proceedings. The Authority could therefore use Ancean’s material internally for its public functions and disclose relevant material in other reference proceedings without Ancean’s consent or the Tribunal’s permission, subject to the statutory restrictions.

5. The Authority’s ability to use or disclose material did not determine its admissibility. The Tribunal retained power under rule 15 of the Tribunal Rules to admit or exclude evidence according to relevance, fairness and justice. It could also make protective orders under rule 14.

6. Alternatively, if a common-law restriction applied notwithstanding FSMA, permission was granted for the Authority to use and disclose the documents for its regulatory and other public functions. The Authority was not required to obtain Tribunal permission or Ancean’s consent for the permitted uses.

The judgment concerned an application made by the Authority on 11 February 2025 under rule 6(2) of the Tribunal Rules in the course of Ancean’s ongoing FSMA reference. It was not an appeal from another judgment.