Back in March 2017, the Supreme Court handed down its decision in Financial Conduct Authority v Macris  UKSC 19. We have previously reported on that decision on its way to the Supreme Court and following the judgment.
In brief, Section 393 of the Financial Services and Markets Act 2000 (“FSMA”) provides individuals identified in an FCA notice with third party rights to be provided with a copy of the notice and an opportunity to make representations regarding the notice. Much then turns on whether an individual has been identified in the notice or not.
- Lord Sumption found that a person would be identified in a section 393 FSMA notice where “he is identifiable by name or by a synonym for him, such as his office or job title”. Where a synonym was used it must be clear from the notice that the synonym only related to one individual, and the individual must be identifiable from the notice itself or from publicly available information. Extrinsic information can only be used to help with interpreting the language used in the notice rather than supplementing it, i.e. it can only be used to the extent it is necessary to understand what the notice means.
- Lord Neuberger (agreeing with Lord Sumption) looked to the wording of section 393 FMSA itself, finding that the language used “appears to stipulate that the person must be identified in the notice, not that he must be identifiable as a result of the notice”. In that regard the notice must be “equivalent to naming him”.
In Cooper v Financial Conduct Authority  UKUT 0428 (TCC) the Upper Tribunal has had its first opportunity to apply the Macris decision, and in doing so found that Mr Cooper had not been identified. A two-stage approach to the question was used, considering each of the two tests identified above. Continue Reading