On 3 January 2025, the Supreme Court published a table on its website with the results of various applications for permission to appeal.
Among other cases, the table shows that, on 29 November 2024, the Supreme Court (Lord Hodge, Lady Rose and Lord Richards) refused an application for permission to appeal against the judgment of the Court of Appeal in Financial Conduct Authority v Seiler and another [2024] EWCA Civ 852. The court took the view that the appeal does not raise an arguable point of law.
In case you missed it, in July 2024, the Court of Appeal dismissed an appeal by the FCA against a decision of the Upper Tribunal (Tax and Chancery Chamber). The UT had ordered the FCA to pay some of the costs of two individuals who had successfully challenged the FCA's decision to impose prohibition orders on them.
Firstly, the Court of Appeal took the view that the FCA had acted unreasonably in specific respects during the proceedings, including failing to call key witnesses including one individual who was central to the investigation but not considered a witness of truth by the FCA, inadequate efforts to obtain evidence (the FCA's attempts to obtain assistance from witnesses were deemed "utterly feeble" and insincere and the UT had found that the FCA's efforts were merely to give the appearance of trying to obtain evidence rather than genuinely seeking it) and failure to provide clarifications.
The Court of Appeal also emphasised the FCA's duty to assist the UT fully and transparently, given its regulatory role and the public interest in maintaining financial market integrity. It said that the FCA is not an ordinary litigant but a regulator with a public duty to ensure that persons who are not fit and proper are precluded from performing regulated activities. This duty includes providing full and accurate explanations of all relevant facts to the UT.
Thirdly, the Court of Appeal recognised the Upper Tribunal's expertise in financial regulation and its role in the regulatory scheme. Its evaluative judgment on the reasonableness of the FCA's conduct was given significant weight. The Court of Appeal noted that the UT was ideally placed to make such determinations, given its detailed knowledge of the case and the proceedings.
The UT's finding of unreasonable conduct by the FCA met the threshold condition for awarding costs under Rule 10(3)(d) of The Tribunal Procedure (Upper Tribunal) Rules 2008. This rule allows the UT to make a costs order if it considers that a party has acted unreasonably in bringing, defending, or conducting the proceedings.
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