The High Court’s judgment in R (Claims Protection Agency Limited) v Financial Conduct Authority is a milestone for regulatory publicity. In a case closely watched by the financial services community, the court upheld the FCA’s decision to publicly identify a regulated firm as the subject of an enforcement investigation under its new “exceptional circumstances” publicity power — confirming both the scope of that power and the deference courts will give to the regulator’s judgment.
The regulatory framework: ENFG exceptional circumstances test
Under the 2025 update to the FCA’s Enforcement Guide (ENFG), the starting point is that the FCA will not normally publicly announce the existence of an investigation. However, the Guide provides for three options:
- No announcement — the default position.
- An anonymised announcement — publicising that an investigation has begun without identifying the subject.
- A named announcement — publicly naming the firm under investigation.
A named announcement is the most intrusive option for the firm and is permitted only where exceptional circumstances exist and such publicity is “desirable” for reasons including maintaining public confidence, protecting consumers or investors, preventing widespread wrongdoing, supporting the FCA’s investigation (e.g., encouraging witnesses), or ensuring smooth market functioning.
The TCPA case
The FCA opened an enforcement probe into TCPA, a claims management company active in the motor finance claims sector, in August 2025. The focus was on advertising, sales tactics and whether customers were misled about potential redress.
The FCA decided to identify TCPA by name in a public investigation announcement. The firm challenged this decision by judicial review, arguing that:
- the FCA had misinterpreted its publicity powers under the Enforcement Guide; and
- the decision was unreasonable and disproportionate.
High Court decision: lawfulness and deference
The High Court dismissed the challenge, providing important clarification on how courts will approach judicial review of regulatory publicity decisions.
Interpretation of ENFG is a judicial question, but evaluative judgments belong to the FCA.
The court confirmed that the meaning of the ENFG — including what “exceptional circumstances” and “desirable” mean — is a question of interpretation for the court. But whether the facts fall within that meaning in a particular case is a regulatory judgment, to which the court will give significant deference so long as the decision was within the range of reasonable regulatory responses.
The court clarified that:
- “Exceptional” must be assessed relative to other investigated situations, not merely against the wider universe of regulated activities.
- The decision to name a firm must be judged against both alternatives — an anonymised announcement or no announcement — and not only against no announcement.
- Reasons for publicity must be directly relevant to naming the firm, not just to announcing an investigation generally.
Reasonableness: deference with a consumer protection focus
The court reiterated the established public law test for reasonableness: a decision is unreasonable only if it lies outside the range of responses open to a reasonable regulator or is infected by a demonstrable flaw in reasoning.
The court accepted the FCA’s judgment that customer protection was best served by naming the firm — and that an anonymised announcement would not have achieved the same objective. The aim of communicating to the firm’s existing and former customers so they could consider their options was identified by the court as central to the FCA’s analysis.
The court noted that although aspects of the FCA’s internal reasoning might have been stronger if documented differently (for example, by a sequential analysis of announcement options), these did not render the overall decision unreasonable.
Practical implications for firms
1. Named announcements can come early and with short notice.
The FCA gave TCPA about 24 hours’ notice of its intention to make a public announcement. So firms need to be prepared to take urgent action to challenge or manage publication risk from the outset of any potential enforcement engagement with the FCA.
2. Exceptional may not be that exceptional.
The FCA abandoned its preferred broad “public interest” test for the narrower “exceptional circumstances” standard in the revised ENFG after industry pressure. But this judgment may incline the FCA to be assertive in considering that exceptional circumstances exist to justify naming firms.
3. Judicial review remains a high and deferential standard.
Challenging FCA decisions will remain difficult. Courts continue to defer to regulatory decisions unless obviously unreasonable in the way they seek to achieve the FCA’s objectives — even where the FCA’s internal decision-making process could have been better.
Preparedness is key
This decision is likely to embolden the FCA to make named announcements more frequently, particularly in cases involving consumer protection concerns. It is clear that senior individuals in FCA Enforcement favour that approach.
Firms should proactively plan and prepare for potential publicity as soon as enforcement action is on the horizon. This may include advocating against publicity to the FCA (or taking steps to mitigate the need for it), evaluating reputational risks, and communications planning, as core parts of firms’ enforcement response.
