On 5 December 2025, the Upper Tribunal gave a direction that documents, information and witness statements provided to the Financial Conduct Authority (FCA) that constituted confidential information (as defined in section 348 of the Financial Services and Markets Act 2000 (FSMA)) are held by the FCA in accordance with sections 348 and 349 of FSMA but are otherwise not subject to any restriction preventing collateral use by the FCA. Neither permission from the Upper Tribunal nor consent from the firm providing such information is required for the FCA to use them for its regulatory and other public functions, or for the FCA to disclose them, if relevant in other reference proceedings. In other words, the collateral use rule in civil litigation is not applicable to the FCA.
Background
Ancean Limited (Ancean) is an applicant in an ongoing reference to the Upper Tribunal, challenging a decision made by the FCA to refuse its permission to carry on regulated activities under FSMA.
The FCA's decision was based on concerns about the suitability of Ancean's sole director and controller, David Ewing. The FCA raised concerns about Mr Ewing's conduct in relation to investment schemes he operated whilst he was a director of another company. Ancean challenged this decision by referring it to the Upper Tribunal and, in the course of such proceedings, filed and served a total of 54 documents in support of its case. The central question before the Tribunal was what use or disclosure the FCA could make of these documents, and whether the FCA required permission from the Tribunal to do so. This arises from the fact that Ancean wanted to prevent information it had provided in the reference from being used by the FCA in separate enforcement actions.
In civil proceedings, there is a rule against collateral use of documents (Civil Procedure Rules (CPR) 31.22) which, subject to certain exceptions, prohibits parties from using disclosed documents for any purpose other than the immediate proceedings. There was, however, a lack of clarity as to whether this rule applied in Upper Tribunal references.
The only relevant guidance is found in sections 348-349 of FSMA, which prohibit the disclosure of confidential information received by the FCA.
Decision
The Tribunal held that sections 348-349 of FSMA and the related regulations provide the only relevant limitation on the use or disclosure by the FCA of documents and information obtained from parties in tribunal references. They also displace any collateral use rule which might otherwise have applied generally. This conclusion is based purely on statutory interpretation and was also found to be consistent with the practical need for the FCA to carry out its regulatory functions.
Comment
This decision provides clarity on the FCA's ability to use and disclose information received during tribunal proceedings. The ruling confirms that the FCA in tribunal proceedings is not subject to the same collateral use rules that apply in ordinary civil litigation. Firms and individuals should be aware that material disclosed in one set of proceedings may be accessed and used by different functions within the FCA for other regulatory purposes, which includes other tribunal proceedings, ongoing fitness and propriety assessments and future regulatory actions.
To be clear, this decision does not apply to documents disclosed in civil litigation to which the FCA is a party (for example judicial review proceedings). In those cases, the CPR rules continue to apply and the FCA would still be subject to restrictions on use.
It remains unclear to what extent the decision in Ancean also applies to documents disclosed by the FCA in tribunal proceedings. If the collateral use rules do not apply to the FCA in receipt of disclosed documents, by the same reasoning they should not apply to a firm or individual to whom the FCA discloses documents. Many such documents will be covered by section 348 FSMA, but some (e.g. internal FCA documents) may not.