The Upper Tribunal has given a valuable reminder of the nature and quality of evidence it will require before it will direct that an FCA Decision Notice under appeal should not be published pending outcome of that appeal. This article considers the Tribunal's judgment and in particular how it may impact on individuals seeking to protect their reputation.
Whether or not a Decision Notice is published can be an important factor when deciding whether to appeal to the Upper Tribunal or not. The reputational "hit" brought about by a Decision Notice can be equivalent to that caused by a Final Notice - Decision Notices may well be accompanied by an FCA press-release, attract media interest and will very likely jeopardise an individual's chances of obtaining or retaining employment especially in the regulated sector. This is so even though the Decision Notice contains a clear note that it is under appeal. Individuals may therefore view the damage brought about by a Decision Notice to be irremediable even by an exculpatory Upper Tribunal decision (albeit one likely many, many months down the track) and this may make the time, cost and uncertainty of an appeal less attractive.
Against that backdrop, it is understandable that many individuals ask whether they can keep a Decision Notice and the fact of an appeal, under embargo. The Upper Tribunal considered the question of publication in the context of an application by Conor Foley. Foley asked the Upper Tribunal to direct that an adverse Decision Notice (and details of it) not be published by the FCA pending the outcome of his appeal and also that the Upper Tribunal's register of forthcoming cases not refer to the fact of appeal. The Decision Notice included findings that Foley committed deliberate market abuse and that a penalty of £658,000 was being imposed by the FCA.
The legal framework for such decisions is clear from statute and prior Tribunal case law and was not challenged by the parties to Foley's application. In summary, consistent with s.391 FSMA, the Upper Tribunal operates on the assumption that the interests of "open justice" require that publication by the FCA be the default position in respect of Decision Notices and similarly that details of an appeal ought usually to appear on the Tribunal Register. Against that backdrop, the power of the Tribunal (set out in the Tribunal Rules – r14 and para3(3) of schedule 3) to prohibit publication requires the exercise of judicial discretion based on a balancing exercise of the arguments for and against publication. However, the case law is clear that the principle of "open justice" creates a strong presumption in favour of publication. It is for the applicant to demonstrate, through "cogent evidence" that there is a significant likelihood that publication would result in unfairness and disproportionate damage to the applicant, such as the destruction or severe damage to a livelihood or a business. Mere embarrassment, reputational harm, or the possibility of harm or damage to a business or a livelihood is not enough.
A key part of Foley's application focussed on whether or not his teaching contract with Trinity College, Dublin (renewed annually) would be renewed if the Decision Notice was to be published. Foley asserted that the College would not renew his contract. This would in turn impact his ability to complete his PhD (funded by his teaching) and hamper his goal of becoming an academic. However, Foley was unable to support this assertion with objective evidence, let alone "cogent evidence". It was argued on his behalf that he could not obtain corroboration for his assertion without defeating the very purpose of the privacy applications. The Upper Tribunal did not accept this. It said that enquiries could have been made for objective evidence as to whether persons in similar positions had their contract renewed. The Upper Tribunal was also not persuaded that the limited objective evidence before it showed that there was a "significant likelihood" of Foley's contract not being renewed. In this regard, it said that it would be "disappointing" if the College as a "fair minded employer" would not await the decision of the Upper Tribunal. Finally, the Upper Tribunal did not accept that even if Foley's contract was not renewed, that his career as an academic would be thwarted given his other resources to pay his fees and potential leniency from the College itself. Foley's application was therefore rejected.
It is clear that the Upper Tribunal is only prepared to grant privacy in the most exceptional of circumstances.
Whilst it is appropriate that the concept of "open justice" should result in a high bar for privacy applications, there should also have been sympathy for Foley's inability to obtain corroboration of the College's likely stance. The Tribunal accepted that Foley (with his direct experience of the College and its processes) genuinely believed that the College would not renew his contract. It was also logical and credible that the College might act in the way that Foley predicted and it was no doubt difficult for him to obtain corroboration in the context of such a niche market.