Court of Appeal Overturns Upper Tribunal on FCA Issuing Notice of Discontinuance

The Financial Conduct Authority v Hobbs [2013] EWCA Civ 918 (29 July 2013)

In this case, the Court of Appeal (Sir Stanley Burnton, Rimer and Ryder LJJ) overturned the Upper Tribunal’s (UT) decision and held that if the Financial Conduct Authority (FCA or the Authority) publishes a statement intimating discontinuance on its website and subsequently removes that statement, the Authority is not in fact bound by such a statement because the statement does not follow the procedural requirements set out in the Financial Services and Markets Act 2000 (the Act). The FCA could therefore pursue its appeal even after retracting the statement announcing discontinuance on its website.

Sounds rather extreme. Yet the Court of Appeal so held and of course from what one can make of it their lordships were dead right.

I. Background

The FCA appealed against the UT’s decision that the Authority had bungled in properly making its case that the respondent trader David John Hobbs (H) was not a fit and proper person to perform functions in relation to a regulated activity within the meaning of the Act. H, who conducted proprietary trading for Mizuho, traded in coffee futures and associated derivatives on the London International Financial Futures and Options Exchange.