Alec Finch & Anor v The Financial Conduct Authority

A challenge to a regulator’s decision notice does not displace the presumption of publication or open justice. An applicant seeking to prohibit publication must provide cogent evidence of likely serious harm, and the restriction must be proportionate. Embarrassment and reputational damage alone are insufficient; a significant likelihood of destruction of or severe damage to livelihood may establish unfairness. The merits of the underlying reference and criticisms of the regulator’s investigation are for the substantive hearing. Where the underlying findings are already public, existing adverse consequences do not establish further serious harm without evidence that publication would materially worsen the applicant’s position.

The Financial Conduct Authority issued separate decision notices to Alec Finch and Robert Finch, former directors of AFL Insurance Brokers Limited, after relying on a publicly reported High Court judgment that found they had acted fraudulently and dishonestly. The notices included statements of misconduct and prohibition orders. The Applicants referred their notices to the Upper Tribunal and sought interim directions to prevent publication and to exclude their references from the Tribunal register. They also challenged the underlying High Court judgment in separate proceedings alleging fraud; that claim had been struck out, subject to an appeal.

The Authority opposed the applications. The central issue was whether the Applicants had shown that publication or public registration should be withheld pending determination of their substantive references.

1. The privacy applications were dismissed. The statutory starting point is publication. Section 391 of the Financial Services and Markets Act 2000 requires publication of appropriate information about decision notices, subject to the regulator’s view that publication would be unfair. A notice under challenge remains provisional, but that does not displace the presumption of publication. The Tribunal’s power under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 must be exercised consistently with open justice and the interests of justice. A direction excluding a reference from the register is available under Schedule 3 only where the statutory necessity threshold is met.
2. Cogent evidence is required. The principles summarised in Kingsbridge Capital Advisers Ltd v FCA [2023] UKUT 000103 (TCC) require an applicant to demonstrate a real need for privacy. Mere embarrassment, the prospect of questions or criticism, and a risk to reputation are ordinarily insufficient. Cogent evidence that publication would cause a significant likelihood of destruction of or severe damage to livelihood may establish unfairness. The open-justice reasoning in Khuja v Times Newspapers Ltd [2017] UKSC 49 also recognises that collateral consequences of public proceedings are part of the price of open justice.
3. The merits of the references were irrelevant to these applications. Whether the Authority was entitled to rely on the High Court judgment, whether it should have conducted its own investigation, and the Applicants’ prospects of success were matters for the substantive hearing. That approach was reflected in Prodhan v FCA [2018] UKUT 414 (TCC) and Ford and others v FCA [2015] UKUT 0220 (TCC).
4. No unfairness or serious harm was established. The High Court findings were already public and had been reported. The notices added no new allegations, did not amount to the Authority endorsing the High Court judgment, and would be marked to show that they had been appealed and were provisional. Publication would not affect how either the High Court or the Tribunal assessed the Applicants’ challenges. Although the Applicants had suffered substantial existing reputational and financial harm, they provided no cogent evidence that publication of the notices would materially worsen their position. Possible further embarrassment was insufficient.

not stated in the judgment.