FCA winning its battle to name and shame
Last week the Court of Appeal handed the FCA a significant fillip in what has become a notable goal of the regulator – to see that those subject to its disciplinary proceedings are exposed to public scrutiny.
R (on the application of Christopher Willford) v Financial Services Authority (2013)  EWCA Civ 674 centred on an appeal by Chris Willford, the former group finance director of Bradford and Bingley, against a decision by the regulator that he was responsible for risk management failures at the bank. The Court of Appeal had earlier decided to reject a claim for judicial review by Mr Willford seeking to quash the regulator's Decision Notice for a failure to set out proper reasons for its findings. This application concerned an appeal by Mr Willford for an anonymity order in relation to the proceedings. More specifically Mr Willford was seeking permission to appeal to the Supreme Court and relied on the statutory provisions that prohibit the regulator from disclosing the existence of an investigation, its progress or its outcome until concluded and then only if it results in some form of sanction.
The Court rejected Mr Willford's appeal. It held that principles of open justice demanded that proceedings be conducted and determined in public. That meant that, as a matter of course, judgments should be published in full without concealing the identity of the parties or others involved, whether by anonymisation or redaction. The Court considered that if Mr Willford had been facing criminal proceedings he would not have been entitled to have his identity protected and the same should hold true with regulatory disciplinary procedures.
The finding is significant. It means that if a Decision Notice is appealed by the subject of an investigation all the way to the Supreme Court, that person's identity will be disclosed, even if the Supreme Court finds in that individual's favour and quashes the Notice. The Court of Appeal appeared to downplay the personal embarrassment that such an individual would suffer and more importantly the impact that such publication would have on an individual's professional reputation. Those that are subject to FCA disciplinary procedures operate in a world where reputation and standing are often seen as just as important as skill and competence. The Court of Appeal's decision presents a very real, and potentially unfair, danger to those that are investigated by the FCA but are ultimately exonerated.
The Christopher Willford case has been decided just as the period for FCA consultation on publishing the information about the matter to which Warning Notices relate expired. Should proposals go ahead, the FCA will be empowered to publish information about the those being investigated (including the identity of individuals and firms) before those persons have had an opportunity to challenge the FCA's case. This would be a significant shift by the regulator. It would mean, more than ever before, that individuals and firms would have every reason to fear the existence of an investigation, regardless of its outcome.