Financial Services and Markets Act 2000, section 387

Warning notices

Part XXVI Notices

(1)A warning notice must—

(a) state the action which the [F2904 regulator giving the notice (“the regulator concerned”) F2904] proposes to take;

(b)be in writing;

(c)give reasons for the proposed action;

(d)state whether section 394 applies; and

(e)if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it.

[F2905 (1A)Where the PRA is the regulator concerned and the FCA proposes to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) [F2906 , 55I(8) or 61(2D)F2906] , the warning notice given by the PRA must—

(a)state that fact, and

(b)give the reasons for the FCA's proposal.F2905]

(2)[F2907 A warningF2907] notice must specify a reasonable period (which may not be less than [F290814 daysF2908] ) within which the person to whom it is given may make representations to the [F2909regulator concernedF2909] .

(3)[F2910 The regulator concernedF2910] may extend the period specified in the notice.

[F2911 (3A)Where the PRA receives any representations in response to a warning notice given by it under section 55X(1) or (2) or 62(2) in a case falling within subsection (1A) it must—

(a)if the representations are in writing, give a copy to the FCA, or

(b)if they are not in writing and have not been given directly to the FCA by the person making them, provide the FCA with a record of them.F2911]

(4)[F2912 The regulator concernedF2912] must then decide, within a reasonable period, whether to give the person concerned a decision notice.

Read section 387 in the full Act → Definitions (4) Cases (8)

Definitions used in section 387

regulator

“regulator” has the meaning given in section 3A(2);

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
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
Specified

(5) “Specified” means specified in an order made by the Treasury.

Defined in s.22(5) · see it in the full Act

Cases considering section 387 (8)

Stephen Joseph Burdett & Anor v The Financial Conduct Authority

[2024] UKUT 156 (TCC) · 4 June 2024Interprets

Section 387 requires a warning notice to state the proposed action and reasons. Its notice requirement supported the conclusion that the FCA should articulate its alternative case during the regulatory process (see paras [33]; [51]-[56]; [73]; [81]).

Bluecrest Capital Management (UK) LLP v The Financial Conduct Authority

[2023] UKUT 140 (TCC) · 21 June 2023

Applies the requirement that a warning notice state the proposed action and reasons, forming a procedural safeguard that confines later Tribunal allegations. (see paras [44]; [58]-[59]; [181]-[197])

In the matter of Thomas Seiler & Ors.

[2023] UKUT 133 (TCC) · 12 June 2023Limits

Requires a Warning Notice to state the proposed action and give reasons. The Tribunal held that the facts and matters relied on for a prohibition must be accurately formulated and clearly stated in the Warning Notice, subject to permission to introduce new matters. (see paras [941]–[942], [962]–[964], [998]–[1008])

What each judgment says about section 387 is in the case-law panel in the full Act.

Explanatory note

678.This section provides that a warning notice must be in writing and must set out the reasons for the proposed course of action.  It must also state whether section 394 (Access to Authority material) applies.

679.Subsection (2) gives any person who receives a warning notice an opportunity to make representations to the Authority.  The Authority may specify the period available for representations, provided it allows a minimum of 28 days from the date of the notice.  The Authority must then decide whether to give the person a decision notice within a reasonable period.

All the explanatory notes for the Act

Amendments and notes

23 notes from legislation.gov.uk

Amendments

  1. F2904Words in s. 387(1)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  2. F2905S. 387(1A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  3. F2906Words in s. 387(1A) substituted (7.3.2016) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 12; S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660)) this amendment is subject to savings and/or transitional provisions, see the commentary.
  4. F2907Words in s. 387(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(4)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  5. F2908Words in s. 387(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(4)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  6. F2909Words in s. 387(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(4)(c) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  7. F2910Words in s. 387(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  8. F2911S. 387(3A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(6) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  9. F2912Words in s. 387(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(7) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications

  1. C1302Ss. 385-391 applied (8.6.2023 for specified purposes, 7.10.2023 in so far as not already in force) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 (S.I. 2023/612), art. 1(2), Sch. para. 1(r) (with art. 11)
  2. C1344S. 387 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 8(a) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
  3. C1345S. 387 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 8(a) (with reg. 1(2))
  4. C1346S. 387 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
  5. C1347S. 387 excluded (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), 37(3)(a), 39(2)(a)(ii), 44(2)
  6. C1348S. 387 applied (with modifications) by 2009 c. 1, s. 83ZT(2)-(4) (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
  7. C1349S. 387 applied (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 81(4) (with regs. 8, 15, 81(5))
  8. C1350S. 387 applied (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(8)(a)
  9. C1351S. 387 applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49B(5) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))
  10. C1352S. 387 applied (with modifications) (31.12.2023) by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 11 para. 138; S.I. 2023/1382, reg. 8(b)
  11. C1353S. 387 applied (with modifications) (1.1.2026) by The Financial Services and Markets Act 2023 (Mutual Recognition Agreement) (Switzerland) Regulations 2025 (S.I. 2025/1145), regs. 1(2), 32(3)
  12. C1354S. 387 applied (with modifications) (14.1.2025 for specified purposes, 13.7.2026 in so far as not already in force) by The Short Selling Regulations 2025 (S.I. 2025/29), regs. 2(2)(3), 24, 25, 26, Sch. 1 Pts. 1, 2, 3; S.I. 2026/587, reg. 2(b)
  13. C1355S. 387(1)-(3) applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
  14. C1356S. 387(1)(2)(3) applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))