Financial Services and Markets Act 2000, section 133

Proceedings before Tribunal: general provision

Part IX Hearings and Appeals

(1)This section applies in the case of a reference or appeal to the Tribunal (whether made under this or any other Act) in respect of—

(a)a decision of [F1008 the FCA or the PRAF1008] ;

(b)a decision of the Bank of England; or

(c)a decision of a person relating to the assessment of any compensation or consideration under the M5Banking (Special Provisions) Act 2008 [F1009 , the Banking Act 2009 or the Financial Services and Markets Act 2023F1009] .

[F1010 (1A)For the purposes of this section, in the case of a reference to the Tribunal under section 290(4A) (which relates to an application by a central securities depository under section 288A), the failure by the Bank of England to make a decision is treated as a decision to refuse the application (and accordingly is treated as falling within subsection (1)(b)).F1010]

(2)In this section—

  • “relevant decision” means a decision mentioned in subsection (1)(a), (b) or (c); and

  • “the decision-maker”, in relation to a relevant decision, means the person who made the relevant decision.

(3)Tribunal Procedure Rules may make provision for the suspension of a relevant decision which has taken effect, pending determination of the reference or appeal.

(4)The Tribunal may consider any evidence relating to the subject-matter of the reference or appeal, whether or not it was available to the decision-maker at the material time.

[F1011 (5)In the case of a disciplinary reference or a reference under section 393(11), the Tribunal—

(a)must determine what (if any) is the appropriate action for the decision-maker to take in relation to the matter; and

(b)on determining the reference, must remit the matter to the decision-maker with such directions (if any) as the Tribunal considers appropriate for giving effect to its determination.

[F1012 (5A)In the case of a reference under paragraph 7 of Schedule 6A, the Tribunal—

(a)must determine what (if any) is the appropriate action that must be taken in relation to the matter, and

(b)on determining the reference, must give such directions (if any) to such persons as the Tribunal considers appropriate for giving effect to its determination.F1012]

(6)In any other case, the Tribunal must determine the reference or appeal by either—

(a)dismissing it; or

(b)remitting the matter to the decision-maker with a direction to reconsider and reach a decision in accordance with the findings of the Tribunal.

(6A)The findings mentioned in subsection (6)(b) are limited to findings as to—

(a)issues of fact or law;

(b)the matters to be, or not to be, taken into account in making the decision; and

(c)the procedural or other steps to be taken in connection with the making of the decision.F1011]

(7)The decision-maker must act in accordance with the determination of, and any direction given by, the Tribunal.

[F1013 (7A) A reference is a “disciplinary reference” for the purposes of this section if it is in respect of any of the following decisions—

(a)a decision to impose a penalty under section 63A;

(b)a decision to take action under section 66;

(c)a decision to take action under section 87M;

(d)a decision to take action under section 88A;

(e)a decision to take action under section 89K;

(f)a decision to take action under section 89Q;

(g)a decision to take action under section 91;

[F1014 (h)a decision to impose a penalty or publish a statement of censure under section 123, impose a prohibition under section 123A or impose a suspension or restriction under section 123B;F1014]

F1015 (i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1016 (ia)a decision to take action under section 142S;F1016]

[F1017 (ib)a decision to take action under section 143W;F1017]

(j)a decision to take action under section 192K;

(k)a decision to publish a statement under section 205, impose a penalty under section 206 or suspend a permission or impose a restriction under section 206A;

[F1018 (ka)a decision to impose a prohibition or restriction under section 206B or to refuse an application under subsection (4) of that section;F1018]

(l)a decision to take action under section 249 [F1019 or 261KF1019] ;

[F1020 (la)a decision to impose a penalty under section 309U;

(lb)a decision to take action under section 309Z2;F1020]

(m)a decision to publish a statement under section 312E [F1021 or 312FAF1021] or impose a penalty under section 312F [F1021 or 312FAF1021] ;

(n)a decision to take action under section 345 or 345A.

[F1022 (o)a decision to take action under section 83ZR of the Banking Act 2009.F1022,F1013]]

(8)An order of the Tribunal may be enforced—

(a)[F1023 in England and Wales, as if it were an order of the county court or, in Northern Ireland,F1023] as if it were an order of a county court; or

(b)in Scotland, as if it were an order of the Court of Session.F1007]

Read section 133 in the full Act → Definitions (5) Cases (34)

Definitions used in section 133

the Tribunal

“the Tribunal” means the Upper Tribunal;

Defined in s.417(1) · see it in the full Act
the FCA

(2) The Financial Conduct Authority is in this Act referred to as “the FCA”.

Defined in s.1A(2) · see it in the full Act

“the FCA” means the Financial Conduct Authority;

Defined in s.417(1) · see it in the full Act
the PRA

“the PRA” means the Prudential Regulation Authority;

Defined in s.417(1) · see it in the full Act
Bank of England

“Bank of England” is to be read in accordance with section 2A(4) to (6);

Defined in s.417(1) · see it in the full Act
rule

“rule” means a rule made by the FCA or the PRA under this Act;

Defined in s.417(1) · see it in the full Act

Cases considering section 133 (34)

Markos Markou v The Financial Conduct Authority

[2024] EWCA Civ 1575 · 17 December 2024Interprets

The Court interpreted the jurisdiction of a reference by requiring a real and significant connection between the referred matter and the procedural or substantive subject matter culminating in the decision notice. The further allegations concerning uninsured regulated activity satisfied that test. (see paras [8]-[10])

The Financial Conduct Authority v BlueCrest Capital Management

[2024] EWCA Civ 1125 · 2 October 2024Interprets

Permits the Upper Tribunal to consider any evidence relating to the subject matter of the reference, including evidence unavailable to the FCA decision-maker. Its breadth supports a wide construction of the matter referred (see paras [181]-[183]). For disciplinary references, requires the Tribunal to determine the appropriate regulatory action and remit the matter with any necessary directions. Its breadth supports treating the reference as a fresh stage of the regulatory process (see paras [125]-[128]; [180]). For non-disciplinary references, requires dismissal or remittal for reconsideration in accordance with the Tribunal’s findings. It forms part of the Tribunal’s enhanced public-law supervisory jurisdiction (see paras [84]-[86]; [125]-[128]). Allows findings on fact or law, relevant considerations, and procedural or other steps. These powers make the Tribunal’s “JR plus” jurisdiction a substantial safeguard beyond ordinary judicial review (see paras [84]-[86]).

The Financial Conduct Authority v Thomas Seiler & Anor

[2024] EWCA Civ 852 · 30 July 2024Limits

The judgment identifies section 133 as governing the Tribunal’s role when a regulatory decision is referred to it. (see para [12]) The judgment applies section 133(4) to confirm that the Tribunal may consider evidence relating to the reference whether or not it was available to the original decision-maker. (see para [12]) The judgment applies section 133(6) to define the Tribunal’s powers on a non-disciplinary reference as dismissal or remission to the decision-maker. (see paras [13]; [46]) The judgment uses section 133(6A) to identify the limited findings and directions which may accompany remission. (see para [13]) The judgment identifies issues of fact or law as matters on which the Tribunal may make findings when remitting a reference. (see para [13]) The judgment identifies relevant matters to be taken into account, or excluded, as matters within the Tribunal’s directions on remission. (see para [13]) The judgment identifies procedural or other steps connected with making the decision as matters on which the Tribunal may direct the decision-maker. (see paras [13]; [48]) The judgment confirms that the decision-maker must act in accordance with the Tribunal’s determination and directions. (see para [13]) The judgment uses section 133(7A) to identify which references are disciplinary and confirms that the present references were non-disciplinary. (see para [12])

14 more judgments, and what each says about section 133, are in the case-law panel in the full Act.

Explanatory note

241.This section sets the time limit for making a reference to the Tribunal.  The time limit is 28 days from the date of the decision notice or supervisory notice, unless a different period is prescribed in the procedural rules made for the Tribunal by the Lord Chancellor under section 132. The Tribunal will also have discretion to allow references to be made after the time limit has expired, subject again to any provision in the Tribunal’s procedural rules.

242.The section also makes clear that the Tribunal may hear any evidence it considers relevant in determining the case before it, including evidence that was not available to the Authority when it made its decision.  The Tribunal must determine what action the Authority should take and may give directions to the Authority in order to give effect to its determination.  The Tribunal may also make recommendations as to the Authority’s rules and procedures.

243.A supervisory notice takes effect on the date it specifies.  However, subsection (9) provides that the Authority may not take the action referred to in a decision notice until the time for making a reference to the Tribunal has expired or, if the case is referred, until the case has been finally disposed of, including any subsequent appeals to the Court of Appeal, Court of Session or House of Lords (see section 137 below).  An order of the Tribunal may be enforced as if it were an order of a county court in England, Wales or Northern Ireland, or the Court of Session in Scotland.

All the explanatory notes for the Act

Amendments and notes

25 notes from legislation.gov.uk

Amendments

  1. F1007Ss. 133-133B substituted (6.4.2010) for s. 133 by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), arts. 1(2)(e), 5(1), Sch. 2 para. 45
  2. F1008Words in s. 133(1)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 23(2)(a), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  3. F1009Words in s. 133(1)(c) substituted (31.12.2023) by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 11 para. 160(4); S.I. 2023/1382, reg. 8(b)
  4. F1010S. 133(1A) inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 2(5)(a) (with regs. 7(4), 9(1))
  5. F1011S. 133(5)-(6A) substituted for s. 133(5)(6) (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 23(2)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  6. F1012S. 133(5A) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 11 para. 4; S.I. 2021/739, reg. 3(p)
  7. F1013S. 133(7A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 23(2)(c), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  8. F1014S. 133(7A)(h) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(4)
  9. F1015S. 133(7A)(i) omitted (14.1.2025 for specified purposes, 13.7.2026 in so far as not already in force) by virtue of The Short Selling Regulations 2025 (S.I. 2025/29), reg. 2(2)(3), Sch. 2 para. 1(3); S.I. 2026/587, reg. 2(b)
  10. F1016S. 133(7A)(ia) inserted (1.1.2019) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 4(2), 148(5); S.I. 2018/1306, art. 2(d)
  11. F1017S. 133(7A)(ib) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 2 para. 3 (with Sch. 2 Pt. 3); S.I. 2021/671, reg. 4(b)
  12. F1018S. 133(7A)(ka) inserted (14.1.2025) by The Financial Services and Markets Act 2000 (Designated Activities) (Supervision and Enforcement) Regulations 2025 (S.I. 2025/22), reg. 1(2), Sch. para. 4
  13. F1019Words in s. 133(7A)(l) inserted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(3) (with reg. 24)
  14. F1020S. 133(7A)(la)(lb) inserted (29.6.2023 for specified purposes) by Financial Services and Markets Act 2023 (c. 29), s. 86(1)(e), Sch. 10 para. 6 text inserted for certain specified purposes only, see the commentary.
  15. F1021Words in s. 133(7A)(m) inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 2(5)(b) (with regs. 7(4), 9(1))
  16. F1022S. 133(7A)(o) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 116
  17. F1023Words in s. 133(8)(a) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 83; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Modifications

  1. C382S. 133 applied (with modifications) (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(4) (as amended (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 77(7)(b))
  2. C383S. 133 applied (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 55(3)
  3. C384Ss. 133-133B applied (with modifications) (18.9.2016) by The Payment Accounts Regulations 2015 (S.I. 2015/2038), reg. 1(2)(b), Sch. 7 para. 1
  4. C385S. 133 applied (with modifications) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 66(3)(4)
  5. C386S. 133 applied (with modifications) (10.6.2019) by The Proxy Advisors (Shareholders Rights) Regulations 2019 (S.I. 2019/926), regs. 1, 20, 21
  6. C387S. 133 applied (with modifications) (31.12.2020) by The Credit Rating Agencies (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/266), regs. 1(3), 16(2)(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
  7. C388S. 133 applied (with modifications) (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(3)(a)

Marginal citations

  1. M52008 c. 2.