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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S, R (on the application of) v X  EWHC 1645 (Admin) (09 June 2011)
Cite as:  EWHC 1645 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF S||Claimant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr T OTTY, QC (instructed by X) appeared on behalf of the Defendant
Crown Copyright ©
"(1) Neither X nor a person to whom a warning notice is given or copied may publish the notice or any details concerning it;
"(1A) A person to whom a decision notice is given or copied may not publish the notice or any details concerning it unless X has published the notice or those details."
"(4) X must publish such information about the matter to which a decision notice or final notice relates as it considers appropriate;
"(5) When a supervisory notice takes effect, X must publish such information about the matter to which the notice relates as it considers appropriate;
"(6) But X may not publish information under this section if publication of it would, in its opinion, be unfair to the person with respect to whom the action was taken or prejudicial to the interests of consumers."
The insertion of subsection 1(A), relating to decision notices and their non-publication save when X has decided to publish them, and the insertion of the reference to decision notices in subsection (4), took effect under the Financial Services Act 2010 and came into force on 12 October 2010.
"6.7. For both supervisory notices as defined in section 395(13) which have taken effect, decision notices and final notices, section 391 of the Act requires Xto publish in such manner as it considers appropriate such information about the matter to which the notice relates as it considers appropriate. However, section 391 provides that X cannot publish information if publication of it would, in its opinion, be unfair in respect to whom the action was taken or prejudicial to consumers.
"6.8. Decision notices and final notices.
X will consider the circumstances of each case but will ordinarily publicise enforcement action where this has led to the issue of a final notice. X may also publicise enforcement action where this has led to the issue of a decision notice. X will decide on a case-by-case basis whether to publish information about the matter to which a decision notice relates but expects normally to publish a decision notice if the subject of enforcement action decides to refer the matter to the tribunal. X may also publish a decision notice before a person has decided whether to refer the matter to the tribunal, if X considers there is a compelling reason to do so. For example, X may consider that early publication of the detail of its reasons for taking action is necessary for market confidence reasons or to allow consumers to avoid any potential harm arising from a firm's potential actions. If a person decides not to refer a matter to the tribunal, X will generally only publish a final notice.
"6.8A. If X intends to publish a decision notice it will give advance notice of its intention to the person who whom the decision notice is given and to any third party to whom a copy of the notice is given. X will consider any representations made but will normally not decide against publications solely because it is claimed that publication could have a negative impact on a person's reputation. X will also not decide against publication solely because a person asks for confidentiality when they refer a matter to the tribunal".
That is the guidance published and the guidance now in force, the guidance under which the decision in the present case was taken. Before the publication of the guidance, there was no indication of what the concluded view of X on the application of the new power within section 391(4) would be, save for an important paragraph, paragraph 2.10 in the consultation document. That paragraph indicated that by the date of the publication of the consultation, the new statutory provision was already in force, and indicated X's view that, from the date of the coming into force of the amendments made by the 2010 Act, it had power to publish decision notices subject, of course, to the restrictions contained in section 391 itself.