Richard Brian Fenech & Anor v The Financial Conduct Authority

An expert’s qualifications and awareness of the duty to the tribunal do not by themselves establish admissibility. The tribunal must assess whether the proposed expert can give independent and objective evidence despite any interest or connection with a party. Employment by a party, financial interest, conflicting duties and involvement in producing the evidence relied on in the proceedings may together create a conflict making admission unfair. The tribunal must consider the nature and extent of the connection and weigh the alternatives, including proceeding without expert evidence. A late factual statement may nevertheless be admitted where the delay, its explanation, prejudice, and the need for efficient litigation are balanced and the interests of justice favour admission.

The Applicants referred to the Upper Tribunal decisions of the Financial Conduct Authority to impose financial penalties and prohibition orders. The substantive references were listed for hearing in January and February 2026.

The Authority served Ms Rebecca Prestage’s statement as expert evidence on defined benefit pension transfer advice. Ms Prestage had managed the Grant Thornton team that reviewed the Applicants’ files under the Authority’s instructions and had participated in calibration discussions concerning the assessments. The Applicants applied to exclude the statement because she was not independent and had served factual evidence late. The issues were whether Ms Prestage was an expert, whether she was conflicted, and whether the statement should nevertheless be admitted as evidence of fact.

1. Expert evidence. Ms Prestage possessed sufficient qualifications and experience to be an expert in defined benefit pension transfer advice. The applications therefore failed on that issue.

2. Independence and conflict. The relevant question was not whether apparent bias was established, nor whether employment by a party automatically barred expert evidence. The tribunal had to consider whether the proposed expert was willing and able to discharge the overriding duty to the tribunal despite the interest or connection with a party.

3. Ms Prestage was significantly conflicted. She had worked for several years with the Authority on the pension transfer project, managed the team that produced the file-review results, chaired calibration meetings at which files were reassessed, and had a financial interest and duties connected with Grant Thornton’s work. The Authority treated the team’s findings as its own and relied on them in the Decision Notices. Ms Prestage’s statement adopted the team’s conclusions and repeatedly used “we”. She could not provide independent, disinterested expert evidence about those outcomes. Admission as expert evidence would therefore be unfair and contrary to the overriding objective.

4. Late factual evidence. The delay of more than three months was serious and significant. Applying the three-stage approach in Medpro v HMRC [2025] UKUT 255 (TCC), the tribunal considered the length and significance of the delay, its reason, and all the circumstances, including prejudice and the need for efficient litigation. The Authority would suffer serious prejudice because no other Grant Thornton witness evidence explained the file-review process. The Applicants identified no specific prejudice from admission and had more than two months to consider the statement. Permission was therefore granted for the statement to be admitted late as evidence of fact.

5. The statement did not need to be amended to remove opinions. The tribunal and legal representatives could distinguish factual material from opinions and disregard the latter where appropriate. The Applicants’ applications were allowed as to expert evidence, and the Authority’s application was allowed as to late factual evidence.