Financial Services and Markets Act 2000, section 57

Prohibition orders: procedure and right to refer to Tribunal

Part V Performance of Regulated Activities

(1)If [F330a regulatorF330] proposes to make a prohibition order it must give the individual concerned a warning notice.

(2)The warning notice must set out the terms of the prohibition.

(3)If [F331a regulatorF331] decides to make a prohibition order it must give the individual concerned a decision notice.

(4)The decision notice must—

(a)name the individual to whom the prohibition order applies;

(b)set out the terms of the order; and

(c)be given to the individual named in the order.

(5)A person against whom a decision to make a prohibition order is made may refer the matter to the Tribunal.

[F332 (6)If—

(a)the FCA proposes to make a prohibition order, and

(b)as a result of the proposed order, an individual will be prohibited from performing a function of interest to the PRA,

the FCA must consult the PRA before giving a warning notice under this section.

(7)A function is of interest to the PRA if it is performed in relation to a regulated activity carried on by—

(a)a PRA-authorised person, or

(b)a person who is an exempt person in relation to a PRA-regulated activity carried on by the person.

(8)The PRA must consult the FCA before giving a warning notice under this section.F332]

[F333 (9)If—

(a)the FCA proposes to make a prohibition order which makes provision in relation to a recognised body, and

(b)the FCA is not the appropriate regulator in relation to recognised bodies of that type,

the FCA must consult the appropriate regulator before giving a warning notice under this section.

(10)If the PRA proposes to make a prohibition order which makes provision in relation to a recognised body, the PRA must consult the appropriate regulator in relation to recognised bodies of that type before giving a warning notice under this section.

(11)In this section—

  • “the appropriate regulator”, in relation to a recognised body, has the meaning given by section 285A;

  • “recognised body” has the meaning given by section 313; F333]

Read section 57 in the full Act → Definitions (11) Cases (5)

Definitions used in section 57

regulator

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

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

“prohibition order” (except in the expression “Part 9C prohibition order” or “Part 18C prohibition order” ) has the meaning given in section 56(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
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
functions

(4) Neither section 2AB(3)(d) nor the definition of “functions” in paragraph 1 applies for the purposes of sub-paragraph (2).

Defined in Sch.1ZB para.31(4) · see it in the full Act

(2A) The functions referred to in sub-paragraph (1)(a) include functions of the FCA under the Competition Act 1998 or the Enterprise Act 2002 as a result of Part 16A of this Act ; but this sub-paragraph is not to be regarded as limiting the effect of the definition of “functions” in paragraph 1.

Defined in Sch.1ZA para.23(2A) · see it in the full Act

(4) Neither section 1A(6)(d) nor the definition of “functions” in paragraph 1 applies for the purposes of sub-paragraph (2).

Defined in Sch.1ZA para.23(4) · 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
regulated activity

“regulated activity” has the meaning given in section 22;

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

(5) In this Act “PRA-authorised person” means an authorised person who has permission—

(a)given under Part 4A, or

(b)resulting from any other provision of this Act,

Defined in s.2B(5) · see it in the full Act

“PRA-authorised person” has the meaning given in section 2B(5);

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

“exempt person”, in relation to a regulated activity, means a person who is exempt from the general prohibition in relation to that activity as a result of an exemption order made under section 38(1) or as a result of section 39(1) or ... 285 ;

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

“PRA-regulated activity” has the meaning given in section 22A;

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

(11) The FCA is the “appropriate regulator” in the case of a contravention of any other requirement , other than a case falling within paragraph 26 of Schedule 17A .

Defined in s.380(11) · see it in the full Act

Cases considering section 57 (5)

The Financial Conduct Authority v Hobbs

[2013] EWCA Civ 918 · 29 July 2013Interprets

The Court interpreted a reference under this provision as requiring the Tribunal to determine all material facts and evidence supporting the decision notice, subject to procedural fairness. The Tribunal erred by failing to decide whether proven lying independently established a lack of fitness and propriety (see paras [31]–[39]). Cited only. Cited only. The right to refer a decision to make a prohibition order brought before the Tribunal the facts and evidence identified in the decision notice as supporting both unfitness and the appropriateness of the order (see paras [10]; [31]–[34]).

Davies & Ors v Financial Services Authority

[2003] EWCA Civ 1128 · 30 July 2003

A warning notice may be given where the individual appears to the Authority not to be fit and proper. The Authority need not first establish that the individual presently intends to undertake regulated work, and the notice alone has no legal effect or adverse consequence (see paras [23]; [34]).

The Financial Conduct Authority v Thomas Seiler & Anor

[2024] EWCA Civ 852 · 30 July 2024

The judgment describes section 57 as requiring a Warning Notice before a Decision Notice proposing a prohibition order. (see para [11]) The judgment applies section 57(5) as providing the recipient of a Decision Notice with a right to refer the matter to the Tribunal. (see para [11])

What each judgment says about section 57 is in the case-law panel in the full Act.

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F330Words in s. 57(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 13(11), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  2. F331Words in s. 57(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 13(11), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  3. F332S. 57(6)-(8) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 13(12), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  4. F333S. 57(9)-(11) inserted (29.6.2023 for specified purposes) by Financial Services and Markets Act 2023 (c. 29), s. 86(1)(e), Sch. 10 para. 4(2) text inserted for certain specified purposes only, see the commentary.

Modifications

  1. C222S. 57 excluded (1.12.2001) by S.I. 2001/3592, arts. 1(2), 110(3) (with art. 23(2))
  2. C223Ss. 56-58 applied (with modifications) (31.12.2011) by The Financial Services and Markets Act 2000 (Permissions, Transitional Provisions and Consequential Amendments) (Northern Ireland Credit Unions) Order 2011 (S.I. 2011/2832), art. 8
  3. C224S. 57 applied (with modifications) (13.7.2016) by The Financial Services and Markets Act 2000 (Transparency of Securities Financing Transactions and of Reuse) Regulations 2016 (S.I. 2016/715), regs. 1(2), 12(1)
  4. C225S. 57(1) extended (1.12.2001) by S.I. 2001/3592, arts. 1(2), 55(1) (with art. 23(2))

Commencement

  1. I6S. 57 wholly in force at 1.12.2001; s. 57 not in force at Royal Assent see s. 431(2); s. 57 in force for specified purposes at 3.9.2001 by S.I. 2001/2632, art. 2(2), Sch. Pt. 2; s. 57 in force in so far as not already in force at 1.12.2001 by S.I. 2001/3538, art. 2(1)