UK: Directors Fined As FSA Gets Tough

Last Updated: 25 June 2004
Article by Jeremy Phillips

The actions of directors of listed companies are being increasingly scrutinised by the Financial Services Authority (FSA) as the regulator comes down hard on those who fail to ensure their companies comply with the Listing Rules. Two recent instances highlight how even those directors who might think they have acted properly face substantial personal fines for failing to act quickly enough.

Since 1 December 2001, the FSA has had extensive powers to impose penalties on listed companies and their directors in its fight to protect shareholders and maintain an orderly market in listed securities. These powers, under section 91 of the Financial Services and Markets Act 2000 (FSMA), provide that if the FSA considers a director of a listed company has been "knowingly concerned" in a contravention of the Listing Rules by the company, it may impose an unlimited penalty or fine and/or publicly censure him.

The FSA has not until recently exercised these powers. Two recent cases, however, show that the FSA is prepared to take action against listed company directors personally and impose substantial fines. Both cases concerned alleged breaches of the continuing obligations under the Listing Rules, relating to the prompt disclosure of price sensitive information. Both resulted in the company's CEO being fined and publicly censured.

These cases provide an important insight into the way the FSA interprets the continuing obligations under the Listing Rules and uses its powers under the FSMA to impose penalties on directors. They highlight how directors of listed companies may find themselves open to personal liability and criticism in connection with a company's breaches of the Listing Rules.

The facts in these cases are considered here.

We also highlight some of the steps directors may take to minimise their exposure to the risk of personal liability.

Sportsworld Media Group plc

Sportsworld was censured for failure to notify the market of a change in the performance of its business and/or the expectation of its performance, in breach of Listing Rules 9.2(b) and (c), and its CEO was fined £45,000 for being "knowingly concerned" in the breach.

Listing Rule 9.2

A company must notify a Regulatory Information Service without delay of all relevant information which is not public knowledge concerning a change:

(a) in the company's financial condition;

(b) in the performance of its business; or

(c) in the company's expectation as to its performance,

which, if made public, would be likely to lead to substantial movement in the price of its listed securities.

On 10 September 2001, Sportsworld announced that its board was confident that its results for the year ended 30 June 2002 would be in line with market expectations of £14.9 million to £18 million. At a board meeting on 17 September 2001, the board agreed budgeted profits before tax for the year of £16.1 million. Sportsworld made further optimistic announcements, about its expected results for the year being in line with market expectations of around £16 million, with its preliminary results on 3 October 2001 and following its Annual General Meeting on 29 November 2001.

On 24 December 2001, November management accounts were distributed to senior managers, including the CEO, Mr Brown, but not to the company's non-executive directors, who received no management accounts for the period September 2001 to January 2002. The November management accounts showed that Sportsworld had failed to meet its budgeted profits for every month in the financial year and had in fact made a significant loss for the four months ended November 2001. As a result, in order to achieve the budgeted profits of £16.1 million for the full year, the company needed to make profits in the second half which were not included in its agreed budget for that period. Sportsworld and Mr Brown expected that the company would meet market expectations for the full year as a result of additional profits expected from acquisitions in the second half and adjustments regarding costs in the management accounts.

On 9 January 2002, the company's financial performance was discussed at a managers' meeting at which Mr Brown was present. On 21 January 2002, Mr Brown met with the finance director to discuss the December 2001 management accounts. Both agreed there was a change in their expectations as to the profit before tax for the year ended June 2002 but that further work was needed to understand the position properly.

On 25 January 2002, a board meeting was held to discuss the half-year performance, at which the board decided to announce that the company's expectation of its profit before tax for the year was in the range £9 million to £10 million. As a result on 28 January 2002, the company issued a trading statement to the market that profit before tax would be less than previously expected and the company's share price fell by 61%.

On 13 February 2002, a further corrective announcement was issued to the effect that the results for the year would be substantially below the £9 million to £10 million range previously indicated and the company's share price fell a further 87%.

As a result Sportsworld's market capitalisation fell from £163.5 million at 31 December 2001 to £2.4 million at 13 February 2002. Sportsworld's shares were subsequently suspended on 2 April and an administrative receiver appointed on 10 April 2002.

The FSA decided that Sportsworld's delay in making an announcement from 24 December 2001 (the date of distribution of the November management accounts) to 28 January 2002 was a breach of Listing Rules 9.2(b) and/or (c) (see box above). Although the FSA accepted that the company and its CEO's subjective expectations as to the headline profit for the year had not changed, it decided that their expectations as to the phasing of the profit between the first and second halves of the year had changed. It also considered that the market would have reacted materially and adversely had it known that, in order to deliver the expected full year profit, Sportsworld was relying on a much more optimistic second half performance than that previously budgeted. The FSA determined that, in its opinion, this information would have been likely to lead to a substantial movement in the company's share price. Accordingly, the failure to announce this information without delay was determined by the FSA to be a breach of Listing Rules 9.2(b) and (c).

Sportsworld was publicly censured for this breach and the FSA indicated that if the company had had the resources it would have imposed a substantial fine.

In addition the FSA concluded that, Mr Brown, was "knowingly concerned" in the breach and fined him £45,000, as he had a responsibility to bring the change in the expectation of the company's results for the year to the attention of the full board or otherwise ensure that the company complied with its obligations under the Listing Rules and he had failed to do so.

Universal Salvage Plc

Universal Salvage was fined £90,000 for failure to notify the market of the loss of a major contract in breach of Listing Rule 9.1 (a) and its CEO was fined £10,000 for being "knowingly concerned" in the breach.

Listing Rule 9.1(a)

A company must notify a Regulatory Information Service without delay of any major new developments in its sphere of activity which are not public knowledge which may:

Universal Salvage was party to a contract with Direct Line Insurance for vehicle salvage which continued on a rolling basis but was terminable on three months' notice. The contract accounted for approximately 40% of vehicles handled by Universal Salvage and a significant proportion of its turnover.

Direct Line put the contract up for tender in February 2001 and at a meeting attended by the CEO, Mr Hynes, on 18 March 2002, Direct Line informed Universal Salvage that it had lost the tender and the contract would be terminated. The board of Universal Salvage were informed of this on 20 March 2002 and written confirmation of termination was received by the company on 25 March 2002, effective as at 30 June 2002. Universal Salvage considered that the termination was a negotiating ploy and wrote to Direct Line raising a number of arguments as to why the contract should be retained. Direct Line undertook to investigate the issues raised. Nevertheless, on 16 April 2002, Universal Salvage received a letter from Direct Line confirming the termination.

In the meantime, Universal Salvage analysed the financial impact of the termination and possible cost savings for presentation to the board on 18 April 2002.

At the board meeting on 18 April 2002, the board discussed the contract's termination and decided that advice should be sought from the company's financial adviser, WestLB, regarding the termination and the poor trading performance in the final quarter and Mr Hynes was given responsibility for seeking this advice.

The board meeting ended at 1.00 pm. Mr Hynes telephoned WestLB at 4.30 pm and again at 5.00 pm but his usual contact was not available. Mr Hynes spoke to his usual contact the next morning and it was agreed that Mr Hynes would meet WestLB on 22 April 2002. At that meeting, WestLB advised that an announcement should be made to the market about the lost contract and the poor trading figures in the final quarter.

The announcement was made at 3.45pm on 23 April 2002 and the company's share price fell by 55%.

Universal Salvage's delay in making an announcement regarding the termination of the Direct Line contract from 16 April until 23 April 2002 was determined by the FSA to be a breach of Listing Rule 9.1(a) (see earlier box). The contract, accounted for approximately 40% of vehicles handled, and in order to maintain previous levels of turnover and profit, the company would have had to find significant new business. As a result the FSA determined that, in its opinion, it was likely that, if the market had been aware of this, it would have reacted materially and adversely and this would have been likely to lead to a substantial movement in the company's share price.

In addition, the FSA decided that Mr Hynes was "knowingly concerned" in the breach as he was the director best placed to take appropriate steps to ensure that the company notified the market without delay once the obligation to make an announcement was triggered on 16 April 2002 and he had failed to do so.


The FSA regards the continuing obligations relating to the prompt disclosure of price sensitive information under Listing Rules 9.1 and 9.2 as fundamental to the protection of shareholders, and essential to the maintenance of an orderly market in listed securities and confidence in the financial system.

The FSA's decisions in these cases provide an insight into how the FSA believes the continuing obligations under Listing Rules 9.1(a) and 9.2(b) and (c) should be interpreted. It should be remembered, however, that in neither of these cases was the FSA's interpretation challenged by the companies or individual directors concerned referring the decisions to the Financial Services and Markets Tribunal for independent judicial scrutiny.

Listing Rules tests

In these cases the FSA analysed the tests which, it believes, should be applied in assessing compliance with the continuing obligations under Listing Rules 9.1 and 9.2(b) and (c) and indicated that in relation to:-

  • Listing Rule 9.1(a) regarding new developments in a company's sphere of activity, listed companies must firstly consider objectively the importance of any new development to the company and then objectively, with its advisers, assess whether the development may1 lead to a substantial movement in the company's share price i.e. is price sensitive;
  • Listing Rule 9.2(b) in respect of a change in the performance of a company's business, listed companies must firstly consider whether objectively there has been a change in the performance of the company's business and then objectively, with its advisers, assess the likely price sensitivity of the change;
  • Listing Rule 9.2(c) regarding any change in a company's expectations of its performance, listed companies must firstly assess whether there has been a change in the company's subjective expectations of its performance, which is a question of fact in each case, and then objectively, with its advisers, assess the likely price sensitivity of any change in those expectations.

Personal liability of directors

The test applied by the FSA in these cases, in determining whether a director was "knowingly concerned" in a breach of the Listing Rules, is not a particularly high one and seems merely to require that the director had knowledge of the facts and some involvement in the breach.

It appears that the FSA does not believe that a director needs to intend deliberately to mislead the market, to be "knowingly concerned" in a breach of the Listing Rules. Despite the FSA's public statements that it is not in the business of second guessing directors' decisions, the FSA seems increasingly willing to judge directors' actions with the benefit of hindsight and to substitute its views for the honestly held views of the directors at the time. The absence of bad faith on the part of the directors is not therefore enough to discharge their obligations.

In both these cases, the directors in question were executive directors who had knowledge of the facts relating to the alleged breaches (i.e. that the company's profits were not running to budget or that the company had lost a significant contract).

In addition, as CEOs, they were considered to have primary responsibility for escalating matters, by taking all relevant information, to the full board of directors and/or taking advice from the company's advisers. The delay by the directors in taking these actions and otherwise ensuring the companies discharged their obligations under the Listing Rules seems to have been the deciding factor in the FSA's action against them.

Under Listing Rule 16.2 a listed company is required to ensure that all of its directors accept full responsibility, collectively and individually, for the company's compliance with the Listing Rules.

Although the FSA decided, in both these cases, that the CEOs were particularly responsible, all directors, executive and non-executive, are under a responsibility to ensure the company complies with its continuing obligations and that any price sensitive information relating to the company of which they are aware is brought to the attention of the full board as soon as possible.

Implications for minimising your risk

Listed company directors should take steps to minimise their exposure to, and the risk of, personal liability by taking the following steps:-

  • ensuring the company has a formal documented process to achieve compliance with the continuing obligations under the Listing Rules
  • regularly reviewing compliance with the continuing obligations and, in particular, changes in the company's financial condition, performance and its expectations of its performance
  • ensuring the company and the board of directors are aware of the consensus of market expectations and keeping the company's expectations against market expectations under regular review
  • ensuring all members of the board, executive and non-executive, receive copies of the monthly management accounts and details of any major developments in the company's sphere of activity
  • executive directors, who are primarily responsible for ensuring compliance with the continuing obligations, should ensure issues are elevated to the full board without delay

the board of directors should seek the advice promptly of the company's financial advisers and/or corporate brokers as to whether any information or matter is price sensitive i.e. would be likely to lead to a substantial movement in the company's share price.

The FSA has many more companies and their directors under investigation. Decisions in those cases are imminent. Pinsents has extensive experience of advising listed companies and their directors on FSA investigations and on the implementation of procedures to safeguard against the risks outlined in this briefing.

1 Under Listing Rule 9.1 it would appear that, unlike changes under Listing Rule 9.2, it is not necessary for the new development to be likely to lead to a substantial movement in the company's share price. It is, instead, sufficient for it to have the potential to have such an effect. This distinction was not, however, highlighted by the FSA in the Universal Salvage case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.