Financial Services and Markets Act 2000, section 390

Final notices

Part XXVI Notices

(1)If [F2921a regulatorF2921] has given a person a decision notice and the matter was not referred to the Tribunal within the [F2922time required by Tribunal Procedure RulesF2922] , [F2923the regulatorF2923] must, on taking the action to which the decision notice relates, give the person concerned and any person to whom the decision notice was copied a final notice.

(2)If [F2924a regulatorF2924] has given a person a decision notice and the matter was referred to the Tribunal, [F2925the regulatorF2925] must, on taking action in accordance with any directions given by—

(a)the Tribunal, or

[F2926 (b)a court on an appeal against the decision of the Tribunal,F2926]

give that person and any person to whom the decision notice was copied [F2927the notice required by subsection (2A)F2927] .

[F2928 (2A)The notice required by this subsection is—

(a)in a case where the regulator is acting in accordance with a direction given by the Tribunal under section 133(6)(b), or by the court on an appeal from a decision by the Tribunal under section 133(6), a further decision notice, and

(b)in any other case, a final notice.F2928]

(3)A final notice about a statement must—

(a)set out the terms of the statement;

(b)give details of the manner in which, and the date on which, the statement will be published.

(4)A final notice about an order must—

(a)set out the terms of the order;

(b)state the date from which the order has effect.

(5)A final notice about a penalty must—

(a)state the amount of the penalty;

(b)state the manner in which, and the period within which, the penalty is to be paid;

(c)give details of the way in which the penalty will be recovered if it is not paid by the date stated in the notice.

(6)A final notice about a requirement to make a payment or distribution in accordance with section 384(5) must state—

(a)the persons to whom,

(b)the manner in which, and

(c)the period within which,

it must be made.

(7)In any other case, the final notice must—

(a)give details of the action being taken;

(b)state the date on which the action is to be taken.

(8)The period stated under subsection (5)(b) or (6)(c) may not be less than 14 days beginning with the date on which the final notice is given.

(9)If all or any of the amount of a penalty payable under a final notice is outstanding at the end of the period stated under subsection (5)(b), [F2929the regulator giving the noticeF2929] may recover the outstanding amount as a debt due to it.

(10)M36If all or any of a required payment or distribution has not been made at the end of a period stated in a final notice under subsection (6)(c), the obligation to make the payment is enforceable, on the application of [F2930the regulator giving the noticeF2930] , by injunction or, in Scotland, by an order under section 45 of the Court of Session Act 1988.

Definitions used in section 390

regulator

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

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

“the Tribunal” means the Upper Tribunal;

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 390 (6)

Banque Havilland SA & Ors v The Financial Conduct Authority

[2023] UKUT 136 (TCC) · 9 June 2023Interprets

Interpreted as exhaustively governing the procedural consequences of a Decision Notice and references to the Tribunal. The provision applies where a third party has referred the relevant matter under section 393(9), so a Final Notice cannot be issued before that reference is determined (see paras [63]-[90]). Interpreted so that “the matter was not referred” includes a third-party reference of prejudicial reasons in a Decision Notice. The regulator must not issue a Final Notice while that matter remains before the Tribunal (see paras [63]-[65]; [83]-[86]). Read with sections 390(2A) and 393(9), this provision supports delaying the Final Notice until the Tribunal has determined the third-party reference and the regulator has acted in accordance with the resulting directions (see paras [66]-[70]; [87]-[90]). Used to explain that a Further Decision Notice may be required after a non-disciplinary third-party reference, allowing the regulator to reflect the Tribunal’s findings before final regulatory action (see paras [69]-[81]). Applied to the Tribunal’s analysis of the Further Decision Notice required where the regulator acts on directions under section 133(6)(b) following a third-party reference (see paras [70]; [78]-[80]). Applied to explain the possible issue of a Final Notice after a disciplinary reference and Tribunal directions (see paras [16]-[17]; [66]). Confirmed that a Final Notice concerning a penalty need state the amount, payment arrangements and recovery details; it need not repeat prejudicial reasoning (see para [53]). Confirmed that a Final Notice concerning a prohibition order need state details of the action and the date on which it is to be taken (see para [53]).

The Financial Conduct Authority v Carillion Plc

[2020] EWHC 2146 (Ch) · 7 August 2020

Applies the Final Notice provisions to identify the ascertainable outcome of the statutory process and the mechanism by which regulatory action is given effect. Confirms that an unpaid penalty may be recovered as a debt. Enforcement against the company’s assets was nevertheless made subject to further permission of the insolvency court.

Property Alliance Group Ltd v The Royal Bank of Scotland Plc

[2015] EWHC 1557 (Ch) · 8 June 2015

Requires a Final Notice where a Decision Notice has not been referred to the Tribunal and forms part of the statutory basis for the published regulatory outcome (see para [65]). Confirms that a Final Notice concerning a penalty must state the amount and other specified information, contributing to the court’s assessment of the public and evidential character of the Notice (see paras [65], [92]).

What each judgment says about section 390 is in the case-law panel in the full Act.

Explanatory note

684.This section requires a “final notice” to be issued to confirm and give effect to an action proposed in a decision notice (and to require payment in the case of a penalty) whenever the period for referring a matter to the Tribunal has expired, or if it has been referred, whenever the matter has been finally determined by the Tribunal or the higher courts.  If the matter was referred to the Tribunal then the final notice will give effect to the directions of the Tribunal (or the higher courts if there has been a appeal).

685.Subsection (7) requires the final notice to set out details of the action which is being taken and the date when it is to be taken.  Particular requirements for certain categories of case are given in subsections (3) to (6).  For example the notice must include the terms of any public statement which is to be made and details of the manner and date of publication, or the amount of any financial penalty and details of how and when it is to be paid.   The period for making payments must not be less than 14 days beginning with the date on which the final notice is given, after which the Authority may recover any outstanding amount as a debt owed to it.

686.A similar 14 day minimum period must be allowed for making restitution as required under section 384, after which any outstanding obligations are enforceable through an application by the Authority to the courts (for an injunction in England and Wales and Northern Ireland or, in Scotland, for an order under section 45 of the Court of Session Act 1988).

All the explanatory notes for the Act

Amendments and notes

27 notes from legislation.gov.uk

Amendments

  1. F2921Words in s. 390(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(2)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  2. F2922Words in s. 390(1) substituted (6.4.2010) by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), arts. 1(2)(e), 5(1), Sch. 2 para. 47(a)
  3. F2923Words in s. 390(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(2)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  4. F2924Words in s. 390(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(3)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  5. F2925Words in s. 390(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(3)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  6. F2926S. 390(2)(b) substituted (6.4.2010) by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), arts. 1(2)(e), 5(1), Sch. 2 para. 47(b)
  7. F2927Words in s. 390(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(3)(c) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  8. F2928S. 390(2A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  9. F2929Words in s. 390(9) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  10. F2930Words in s. 390(10) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(5) (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. C1382S. 390 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 8(d) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
  3. C1383S. 390 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 8(d) (with reg. 1(2))
  4. C1384S. 390 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
  5. C1385S. 390 applied (with modifications) by 2009 c. 1, s. 83ZV (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
  6. C1386S. 390 applied (with modifications) (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), 82 (with regs. 8, 15)
  7. C1387S. 390 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)))
  8. C1388S. 390 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(8)(d)
  9. C1389S. 390 applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49B(8) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))
  10. C1390S. 390 applied (with modifications) (31.12.2023) by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 11 para. 140; S.I. 2023/1382, reg. 8(b)
  11. C1391S. 390 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(5)
  12. C1392S. 390 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. C1393S. 390(3)(4)(7) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 110(7) (with art. 23(2))
  14. C1394S. 390(3)-(5)(8)(9) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 85(5)(b) (with art. 23(2))
  15. C1395S. 390(3)-(5)(7)-(9) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 61(7) (with art. 23(2))
  16. C1396S. 390(7) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 115(5), 122(4), 129 (with art. 23(2))

Marginal citations

  1. M361988 c. 36.