Update: 'The Catalyst effect' - does the buck stop with the Upper Tribunal?
I recently blogged on the Upper Tribunal's judgment on the case of Roberts and Wilkins v FCA.
The Tribunal had agreed with the FCA's decision to impose a fine of £450,000 and to prohibit Mr Roberts from performing any role in regulated financial services. Whilst it had also agreed to fine Mr Wilkins, it reduced the FCA's recommendation of £100,000 to £50,000. It also rejected the allegations made by the FCA that Mr Wilkins was not fit and proper and remitted the decision to prohibit Mr Wilkins back to the FCA.
In my previous blog I noted a possible anomaly in the procedural interplay between the FCA and Upper Tribunal: would the FCA always bow to the direction of the Upper Tribunal or ignore it, thereby allowing the individual to refer the matter back to the Tribunal and become stuck in a game of 'ping pong' between two enforcement bodies.
On 18 September the FCA published a press release confirming it will not prohibit Andrew Wilkins from performing any significant influence function.
At least for now it seems the FCA will be inclined to follow the indication from the Tribunal as to what it considers to be the appropriate outcome. However, by comparison, the misleading conduct by Mr Roberts was reckless and pointed to a considerable lack of integrity – therefore we wait to see if the FCA will show more willingness to challenge a direction in the future if the case is not so clear cut...