The Court of Appeal decision in R (on the application of Christopher Willford) v FSA [2012]EWHC 1417 (Admin) provides early encouragement to the FSA’s successor, the Financial Conduct Authority (FCA).
Mr Willford was the Group Finance Director of Bradford & Bingley plc. He was an Approved Person and performed a significant influence function (SIF). Having been fined £100,000 for failure to exercise due skill, care and diligence in this function, Mr Willford judicially reviewed the decision and won an order quashing the Regulatory Decision Committee’s (RDC) Decision Notice and remitting the matter for reconsideration. The Regulator (FSA) appealed with the arguments on appeal focussing on:
- whether judicial review was appropriate where Mr Willford could appeal to the Upper Tribunal; and
- whether the RDC’s reasons were sufficient.
The FSA’s appeal was successful.
The cultural and regulatory changes emphasised by the FCA in the new regime include: focus on the responsibility of individuals (especially SIFs) and 'backbone” (shorthand for a desire to take a stiffer and more resilient approach to the making and defending its decisions). There has also been much coverage of the FCA's desire to be proactive and intervene at an early stage, in particular if consumers are at risk. There may be more frequent challenges to FCA decisions, including attempts at judicial review.
If so, the FCA may be encouraged by the guidance of the Court that where there is an alternative remedial procedure available, it will only entertain a claim for judicial review in exceptional cases. Here the Court considered that a referral to the Upper Tribunal was apt for dealing with Mr Willford's challenge.
David Hall advises clients on financial services disputes and regulatory matters including enforcement.