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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ford v Financial Services Authority & Anor [2012] EWHC 997 (Admin) (18 April 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/997.html Cite as: [2012] EWHC 997 (Admin) |
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CO/8289/2011 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Stewart  Ford |
Claimant |
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| - and - |
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| Financial Services Authority - and Peter Johnson and Mark Owen |
Defendant Interested Parties |
____________________
Jonathan Crow QC and Eleanor Holland (instructed by the FSA) for the Defendant
Hearing dates: 21 and 22 February 2012
____________________
Crown Copyright ©
The Hon Mr Justice Burnett:
FSA had also resulted in the FSA issuing a 'protective warning notice' on 1 June 2011 to guard against the possibility that the Warning Notice issued by the Regulatory Decisions Committee ["RDC"] on 26 October 2010 would be quashed. An application for permission to apply for judicial review of the protective warning notice (CO/8289/2011) was issued by the claimant on 31 August 2011. The Order made after judgment was handed down provided for that application to be dealt with at the remedies hearing.
FSA wrote to various organisations which had seen the privileged material. They were the Serious Fraud Office ["SFO"], the Insolvency Scheme, the Financial Services Compensation Service ["FSCS"], the Complaints Commissioner, the Cayman Islands Monetary Authority, the Commission de Surveillance du Secteur Financier, Baden & Baden and KPMG Sarl.
FSA, are concerned with Keydata issues. These bodies had received the same material at the same time as the British bodies. The Complaints Commissioner received a complaint from Mr Owen, one of the interested parties, that the FSA should be censured for having delivered his SIR, a highly confidential document, to a neighbour's house. The Complaints Commissioner has secure access to the SIR via a secure portal into the FSA's database. He upheld the complaint. Baden & Baden and KPMG Sarl are the liquidators of two Luxembourg entities connected with Keydata. Under the FSA regulatory regime they were entitled to copies of the Warning Notices, which were sent to them on 26 October 2010. In paragraph [15] of the judgment it was recorded that 'no dissemination of the contentious material has occurred'. That was correct in so far as dissemination after the commencement of the proceedings is concerned, but the dissemination here described had already occurred.
FSA for providing material to these other bodies who had not been covered by PwC's waiver, Mr Crow QC was able to confirm that specific authority was obtained from PwC in each case, save for the Complaints Commissioner, for which he apologised on behalf of the FSA. That was because the Complaints Commissioner has access to the SIR in the way already described.
"Keydata Investment Services Limited ("Keydata")
Previous
We refer to the letter sent by the Financial Services Authority ("
The Letter and the CD Contents were designated as confidential pursuant to the Financial Services and Markets Act 2000 ("FSMA"). They were disclosed to your organisation in accordance with Regulation 3(1)(a) of FSMA (Disclosure of Confidential Information) Regulations (SI 2001 no. 2188) for the purpose of enabling or assisting the
The Letter explained that the CD Contents were to remain confidential in your hands and subject to the restrictions contained in section 348 of FSMA and the exceptions permitted by section 349 of FSMA. Disclosure other than in accordance with these restrictions and exceptions is a criminal offence under English law.
Judicial Review
We refer also to the judgment of Mr Justice Burnett of the High Court of Justice, dated 11 October 2011, a copy of which is enclosed. The judgment concludes that two documents, which had been included within the CD Contents, were, in fact, subject to joint interest legal privilege and should not have been used nor, as a consequence, disseminated by the
As a result of the judgment there will be a hearing to determine relief, following which we will be able to provide you with further clarification on this matter. However, in the meantime, we hereby request that your organisation refrain from relying on, or using, any of the information contained in the Letter and CD Contents. Moreover, we reiterate that the information contained in the Letter and CD Contents should remain confidential and not be relied on, used or disclosed onwards for any purpose.
Confidentiality
This letter and attachments are confidential. They comprise information that is confidential for the purposes of section 348 of FSMA is (sic) disclosed to your organisation in accordance with Regulation 3(1)(a) of The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations (SI 2001 no. 2188) to enable the
The letters to the foreign regulatory authorities referred in the closing sentence to confidentiality governed by international agreements. The letters to Baden & Baden and KPMG Sarl opened in a different way:
"Keydata Investment Services Limited ("Keydata") – Third Party SLS Capital SA
We refer to the letter sent by the Financial Services Authority ("
These Warning Notices stated the information contained therein was confidential "and should not be disclosed to a third party (except for the purpose of obtaining advice on its contents)". The Warning Notices also referred to section 391 of the Financial Services and Markets Act 2000 ("FSMA") which provides that neither the
These passages were then followed by two paragraphs relating to the judicial review suitably adapted to reflect the receipt of the Warning Notices only, rather than the SIR and supporting evidence on CD.
Ford, Withers have contacted the Complaints Commissioner, the Insolvency Service, the SFO and Baden & Baden to ask what they have done with the material identified as privileged in the judgment sent to them. The Complaints Commissioner has confirmed that he has caused all the material to be deleted from his database. The SFO has confirmed its willingness to do the same. The Insolvency Service has stated that the CD containing the SIR and appendices is securely held, that no copies of any documents have been made, and that the information has not been relied upon nor has it been disseminated.
FSA in response to those letters.
i) A quashing of the Warning Notice issued by the RDC dated 26 October 2010, together with those issued to the interested parties;ii) The destruction of all copies of the two documents identified as attracting LPP and held by the
iii) The destruction of all copies of the SIR and Warning Notices held by the
iv) The redaction from all hard copy and electronic documents held by the
The requirement to remove the LPP Material from its databases etc. would be subject to two caveats. First, the claimant recognises that copies must be available for the purposes of this litigation. Secondly, the claimant recognises that copies of the documents, the SIR and Warning Notice must be kept for audit trail purposes, so long as that is done securely and without any possibility of further use being made of the material;
v) An injunction restraining the further use of the LPP Material;
vi) A order that nobody within the
vii) An order that the
viii) An order that members of the RDC who issued the Warning Notices (and the protective warning notices) should recuse themselves from further involvement;
ix) The quashing of the protective warning notices.
FSA contends that it is sufficient to order:
"2.1.1 that the
2.1.2 that the
(i) the Warning Notices and
(ii) any other documents, including the Supplementary Investigation Reports
to the extent that such documents are deployed in any regulatory or other proceedings, and must not use or disseminate any unredacted versions of such documents;
2.1.3 that any future decisions by the Regulatory Decisions Committee in relation to the
The Warning Notice
FSA regulatory action is concerned, in particular, with four products in which over £500 million was invested by more than 37,000 retail customers. The various products were sold as PEPs, ISAs or direct investments. To put it neutrally, the FSA says that the products were flawed given the structures put in place by Keydata and the claimant particularly with regard to fees, with the consequence that the retail investors lost vast amounts of money. The evidence shows that the FSCS has paid out compensation of £267 million which has been funded from levies it imposes on the industry. The claimant is the subject of serious allegations of misconduct which stretch over a period of four years. The regulatory case advanced by the FSA, which is disputed, is that the claimant (and interested parties) failed to act with honesty and integrity in running Keydata. It is alleged that they misled the FSA about the risks involved in the products.
FSA proposes to take, the reasons for the action, the relevant statutory and regulatory provisions, the facts and matters relied upon, an analysis of the regulatory breaches, an analysis of the proposed sanctions and a conclusion. The Warning Notice is issued following a decision of the RDC. It gives details of the right of the recipient to make written and oral representations to the FSA. It explains that if, having considered the representations or in the absence of such representations, the FSA decides to take the action proposed in the Warning Notice, a Decision Notice will be provided. From such a decision there is a right of appeal to the Upper Tribunal. The Warning Notice identifies the third parties to whom a copy is being sent, together with their rights to make representations. Those third parties in this case were the liquidators of the various Keydata entities.
FSA has indicated it is minded to impose. He submits that the normal remedy in such circumstances would be to quash the Warning Notice. Mr Malek accepts that substantial elements of the criticism of the claimant found in the Warning Notice are unrelated to the matters touched on in the LPP Material (which was concerned with what are called 'the Lifemark Products'). He accepts that in respect of one of the matters under scrutiny, namely the ISA, there is an argument available to the claimant that any new Warning Notice would be out of time. Mr Crow, by contrast submits that the LPP Material, in so far as it is relied upon, substantially duplicated the Grant Thornton material such that its removal from the Warning Notices would, for practical purposes, make very little difference. To quash the Warning Notices in those circumstances would be unnecessary and disproportionate in the context of an important investigation being conducted in the public interest.
FSA relies. It is peripheral but not irrelevant. Yet it is in essence parasitic upon material from Grant Thornton which is at the heart of the criticism relating to the Lifemark Products.
"That brings me, finally, to the question of whether the judge and the Court of Appeal were right to refuse relief for the one procedural irregularity which they found established ...
It is well settled that "the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary" (Lord Roskill in Inland Revenue Commissioners of the National Federation of Self-employed and Small Businesses Ltd [1982] AC 617,656) But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it. So in Berkeley v. Secretary of State for the Environment … it was conceded, and the House decided, that the Court of Appeal had been wrong to refuse to quash a planning permission granted without the impact assessment required by the EIA directive on the ground only that the outcome was bound to have been the same. The relevant domestic legislation provided that in such a case the grant of permission was to be treated as not within the powers of the Town and Country Planning Act 1990. Lord Bingham of Cornhill said (at p. 608) that even in a domestic context, the discretion of the court to do other than quash the relevant order "where such excessive exercise of power is shown" is very narrow. The Treaty obligations to give effect to European law reinforces this conclusion. I made similar observations at p. 616. But I agree with the observation of Carnworth L.J. in Bown v. Secretary of State for Transport, Local Government and the Regions [2004] Env L.R. 509, 526, that these speeches in Berkeley need to be read in context. Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered. In Berkeley, the flaw was the complete absence of an EIA and the sole ground for the exercise of the discretion was that the result was bound to be the same."
FSA used compulsory powers to obtain the material from the administrators. They used the material to inform their investigation and included it in the SIR without first informing the claimant or others who might have joint privilege in the material. The Warning Notice itself was issued by the RDC after the claimant and interested parties had raised the LPP issue. To use the material breached a fundamental right. Furthermore, the claimant was disabled from responding to the SIR because it contained material which he contended was privileged in his hands. The potential limitation problem, should the Warning Notice be quashed, was referred to by Mr Malek and by Mr Crow but not developed in argument. It related in particular to the allegations of misconduct concerning the sale of the ISA upon which the LPP Material has no bearing. Mr Malek understandably reserved the claimant's position relating to that, should the Warning Notice be quashed and another issued in due course. If the ISA allegations fell away in consequence, the FSA would only have itself to blame for what the claimant characterises as high-handed behaviour. He submits that the RDC has taken into account material they should not have done (an irrelevant factor for Wednesbury purposes), namely the LPP Material, and that in the circumstances the Warning Notice should be quashed whatever the consequences.
FSA behaved high-handedly in the way it dealt with the LPP Material. I do not consider that to be a fair characterisation. In particular, the evidence of Miss Philippou is that the FSA took legal advice at all times. The view taken by the FSA and its legal advisers has been vindicated to a very substantial degree. The argument relating to the majority of the documents in respect of which the claimant asserted LPP failed to get past the permission stage. Of those in respect of which Mitting J gave permission, only two have been adjudged to attract LPP in the hands of the claimant. I accept that the claimant was in some practical difficulty in responding to the SIR given that he was asserting LPP over a very broad range of material, but the reality is that he could have responded to significant aspects of the allegations made against him which did not engage the LPP argument at all. So far as the balance is concerned, it was the Grant Thornton material upon which the FSA particularly relied. The difficulty in establishing LPP over that material was clear. The decision of the Court of Appeal in R (Prudential) v. Income Tax Special Commissioner [2011] 2 WLR 50 was handed down on 13 October 2010. The Court dismissed the appeal from the decision of Charles J in the Administrative Court. So, as the issue of LPP was developing between the FSA and the claimant in the late summer and autumn of 2010 the weight of authority was against the claimant with the judgment of the Court of Appeal becoming available shortly before the claimant threatened judicial review proceedings. The final word on the topic of privilege in advice coming from organisations like Grant Thornton must await the decision of the Supreme Court in the Prudential case.
FSA relied to an extent on the LPP Material when they should not have done. In doing so they trespassed upon an important right of the claimant. However, it is in my judgment to mischaracterise what happened by equating it with the public law concept of "taking into account an irrelevant matter". It is more accurate to consider the error as equivalent to a judicial or administrative body acting, in part, on inadmissible evidence. The evidential material prayed in aid by the FSA is very extensive. That is not to say that it would necessarily support the conclusions that the FSA Enforcement Division invites the RDC to draw in the light of any representations that the claimant might give. That is a matter for argument between the parties in the regulatory proceedings. Yet the circumstances of this case are very far removed from the facts in Berkeley where the Secretary of State granted a planning permission when the Directive and Regulations, properly construed, gave him no power to do so. This is not an excess of power case.
FSA seeks to make is substantially diminished in the absence of that material. Mr Malek submits that it is far from clear that, absent the LPP Material, the RDC would have issued the Warning Notice and, furthermore, that the proposed sanctions might have been different. I do not accept that submission. Taking the Warning Notice as a whole, it is extremely difficult to imagine that the it would not have been issued by the RDC whether or not it referred to the LPP Material. Furthermore, the nature and extent of the alleged regulatory wrongdoing is such that the indicated sanction could not realistically have been different. The financial element of the proposed sanctions rests substantially on the alleged benefit to the claimant of his alleged wrongdoing. The balance of the sanction proposed is, in the context of this FSA investigation, unremarkable as a proposal.
FSA has agreed that no member of the RDC who decided to issue the Warning Notice will have further involvement in the process. That practical concession has been made without any further concession that the precaution is required as a matter of law, given the make up of the RDC hitherto involved, full details of which are set out in a witness statement of David Choyce on behalf of the FSA. But it has the effect of ensuring that the claimant's response to the Warning Notice, and the decision made in the light of that response, will be considered by individuals who have no knowledge of the LPP Material.
The LPP Material held by the FSA
FSA in her evidence.
FSA stores material electronically. It also demonstrates that a list of those who have worked on the Keydata investigation is available. It was compiled for time keeping purposes. A total of 70 is mentioned. Neither party produced evidence of the mechanisms that might be adopted to search emails and document databases for the LPP Material, or of how to redact passages from documents so identified.
FSA to stumble across in the future. The FSA does not, for equally understandable reasons, want to be put to what it considers to be unnecessary trouble and expense.
FSA's contention that it is sufficient to redact the LPP Material from the SIR, Warning Notices and any other documents now to be deployed, and refrain from using or disseminating unredacted copies does not, in my judgment, meet the claimant's legitimate concerns. Mr Malek reminded me of the citation from R v Derby Magistrates' Court ex parte B [1996] 1AC 487 quoted in paragraph [39] of the main judgment. LPP is not a rule of evidence but a fundamental condition on which the adjudication of justice rests. It is a right protected by the ECHR. Mr Malek cited a number of authorities in support of his proposition that the default position when LPP has fallen into the wrong hands is its return, including R(Cummins) v Manchester Crown Court [2010] EWHC 2111 (Admin) and Lord Ashburton v Page [1913] 2 Ch 469. The claimant does not press for the return of every hard copy of the SIR or Warning Notices, or even of the LPP Material itself, because a significant number of copies are likely to exist. Equally, because the underlying material was provided in electronic form and, across the FSA, there will be copies and extracts stored in electronic form, the claimant seeks a more refined remedy. To my mind there is no reason why the FSA should not identify and destroy such copies of the LPP Material itself which exist, together with such copies of the SIR and Warning Notices. Suitably redacted versions can be produced in substitution for those who need them. Similarly, deletion or redaction of electronic copies is an appropriate alternative to delivery up. I consider that the correct approach in this case. The claimant is entitled to an order requiring the FSA to use its best endeavours:
(i) to retrieve from its employees all hard copies of the two LPP documents, SIR and Warning Notices and destroy them,(ii) to search for, identify and delete all electronic copies of the two LPP documents,
(iii) to search for, identify and either delete or redact all electronic copies of the SIR and Warning Notices,
(iv) to require all its employees to destroy or redact any hard copy documents which quote from the two LPP documents or refer to their substance,
(v) to search for, identify and either delete or redact all electronic documents which quote from the two LPP documents or refer to their substance.
FSA must be permitted to retain copies of the LPP Material and the unredacted SIR and Warning Notices for the purposes of this litigation. Furthermore, copies must be kept securely for audit purposes. The claimant has suggested that for the purposes of maintaining the necessary audit trail his solicitors, Messrs Withers, would be prepared to undertake to the court to keep securely copies of the two LPP documents, the SIR and the Warning Notices. If any of the documents are needed for audit purposes in the future, in default of an agreement between the parties as to their use, the matter would be resolved on application to the court. That provides proper security for the FSA and appropriate protection for the claimant.
Continuing involvement of FSA staff and legal advisers to the RDC who have read or are aware of the content of the LPP Material
FSA investigation into the affairs of Keydata, its associated companies and executives. The position contended for by the claimant is that anyone who has read the SIR or Warning Notice in this case should be debarred from taking any further part. The essence of the argument advanced by Mr Malek is that such people are likely to be irredeemably poisoned against the claimant but that in any event the appearance matters. As a matter of fairness, he submits, such people should be removed from the investigation. He draws an analogy with the principles applicable in apparent bias cases. The parties relied upon a number of cases which have arisen in circumstances where privileged material has fallen into the hands of lawyers acting against a person entitled to claim privilege, or where a lawyer who once acted for a person finds himself, at a later date, acting against that person. Counsel have been unable to locate any decision dealing with the problem in the context of regulation and investigators. My attention was drawn to Ablitt v. Mills & Reeve (a firm) and another, a decision of Blackburne J given on 24 October 1995, Koch Shipping Inc v. Richards Butler [2002] EWCA Civ 1280, Stiedl v Enyo Law LLP [2012] PNLR 4; [2011] EWHC 2649 (Comm) and the decision of the Supreme Court of Canada in Celanese Canada Inc v. Canadian Bearings Ltd & Others [2006] 2 SCR 189.
"In helpful submissions, the interveners ... suggest a number of factors to be considered in determining whether solicitors should be removed: (i) how the documents came into the possession of the plaintiff or its counsel; (ii) what the plaintiff and its counsel did upon recognition that the documents were potentially subject to solicitor-client privilege; (iii) the extent of review made of the privileged material; (iv) the contents of the solicitor-client communications and the degree to which they are prejudicial; (v) the stage of the litigation; (vi) the potential effectiveness of a firewall or other precautionary steps to avoid mischief. Other factors may, of course, present themselves in different cases, but I agree that the foregoing list of factors is appropriate and seems to be sufficient to dispose of the present appeal."
Canadian law places a burden upon the lawyers concerned to show that a reasonably informed person would be satisfied that no use of confidential information would occur (see paragraph [66]). Subject to that, the list of matters referred to suggests that the Canadian approach weighs a number of features: the conduct of those who have wrongly seen the LPP Material, the extent to which their knowledge of the content prejudices the person entitled to LPP, the practical impact of removing lawyers from acting and precautions which can be put in place to mitigate any prejudice.
FSA continued with the regulatory process rather than allowing the issue to be resolved immediately. The LPP Material was fully reviewed and relied upon. Those passages referred to in the Warning Notice are prejudicial. That is why they were relied upon. He recognises that the issue arose at a relatively late stage in the regulatory process. As Binnie J made clear at paragraph [64] the later the stage in litigation, the more extreme would be an order removing lawyers from acting.
FSA is more than content for an order restraining such use.
"... each case must depend upon its own facts. But I think there is a danger inherent in the intensity of the adversarial process of courts being persuaded that a risk exists when, if one stands back a little, that risk is no more than fanciful or theoretical. I advocate a robust view with this in mind so as to ensure that the line is sensibly drawn." (paragraph [53])
The additional question that Beatson J identified as being relevant to the issue whether, in a case not involving a previous relationship, the solicitors should be prohibited from acting, was whether such an order would be proportionate and necessary.
FSA does not fall neatly into one of the two distinct categories identified by Beatson J in Stiedl. The FSA is an external regulator and it is its investigators, as much as its lawyers, at whom the claimant aims. The nearer analogy is with the category of case which does not involve a previous relationship. Despite the usual position being that solicitors in those circumstances are not restrained from continuing to act against the person whose LPP has been compromised, questions of real harm and proportionality fall to be considered. The conduct of the party which has obtained the LPP Material might well be material and so too would be mitigating factors to insulate its use.
FSA was entitled to use its statutory powers to obtain the emails of the claimant (and interested parties) from the Keydata database through the administrators and should not be criticised for doing so. Its approach to the potentially LPP Material was informed by legal advice and was not arbitrary or abusive in the way suggested by the claimant.
FSA by PwC. So there is no parallel with Ablitt.
FSA investigators. The investigation is substantially complete albeit that the procedures of the RDC enable the Enforcement Division to respond to representations made by the claimant and others in answer to the Warning Notice. Subject to continuing litigation, the FSA investigation and regulatory process is drawing to its close. To exclude all those who have seen the SIR and Warning Notice would very substantially interfere with the final stages of the process. To require all those who have seen the LPP Material to recuse themselves from further involvement would be disproportionate and contrary to the public interest in the just and expeditious conclusion of the regulatory proceedings. I do not consider that the fact that the investigators and in-house lawyers have seen material which cannot now be used, nor which will be before the RDC, creates any real prejudice to the claimant. This head of relief is refused.
Disclosure and the steps the FSA should take to prevent further dissemination or use of the LPP Material
FSA sent after judgment was handed down last Autumn, which are set out in paragraph [6] above. The argument advanced on behalf of the claimant relies upon the principles applicable to disclosure within judicial review proceedings, and also seeks disclosure of these documents as a form of substantive relief. Either way, it is sought to enable the claimant to understand how his LPP Material had been used, and how it might be used. The claimant also argues that a coercive order is required to force the FSA to take positive steps to ensure that the overseas regulators and liquidators destroy the LPP Material they hold and agree not to use it. The claimant became more sanguine about the domestic bodies which have the material in the light of indications given by the SFO and Complaints Commissioner that the material would be deleted, and by the Insolvency Service that it is kept securely and they have no interest in it.
FSA from using the LPP Material. That much is agreed. However, the LPP Material is the paradigm of confidential material. All those who received that material from the FSA did so on terms of strict confidence. There is no reason to suppose that the confidence has been breached. Nonetheless, some additional protection to the claimant would be garnered by an injunction restraining the FSA from publishing or further disseminating the LPP Material. As with any injunction protecting confidential material, those with knowledge of the injunction who breach the confidence would be vulnerable to contempt proceedings.
"In the minority of judicial review applications in which the precise facts are significant, procedures exist … for the disclosure of specific documents to be sought and ordered. Such applications are likely to increase in frequency, since human rights decisions under the Convention tend to be very fact specific … But even in these cases, orders for disclosure should not be automatic. The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly."
"In order that Mr
(1) The purpose for which the LPP material was provided to the Third Parties and what they were told at the time as regards the use to which they could put the information and/or restrictions (this will become apparent from the covering letters that the
(2) What use has in fact been made of the material;
(3) Whether the third party has provided the LPP material or disclosed it to anyone else;
(4) Whether the Third Party has retained copies of the LPP material, and whether it has been incorporated or referred to in another document;
(5) Confirmation that they will not longer use the LPP material;
(6) Destruction of any copies of the LPP material and any other document which contains or makes reference to the same;
(7) What response, if any, there has been to the
FSA discover the position regarding outstanding matters and insist upon destruction of the LPP Material.
FSA after judgment to the various recipients of earlier material for what purposes it had been sent, together with the restrictions on its use. The material sent to other regulators was confidential. The statutory basis for disclosure was set out and the purpose identified. Statutory restrictions on its use were identified. The Warning Notices sent to the liquidators of SLS and Lifemark were subject to confidentiality and the Warning Notices themselves told the claimant and the interested parties that they were being copied to those with a proper interest, as part of the regulatory process.
FSA's post-judgment letter to each falls to be disclosed on Tweed principles. The FSA's letters reminded the recipients of their obligations of confidence. It explained that the LPP Material was to be found on the CD content (in the case of the regulators) or was referred to in the Warning Notice. The letters contained an explicit request that pending the remedies hearing no use should be made of any of the material provided. Mr Malek relied upon the duty of candour required of public bodies in judicial review proceedings to support the claimant's argument on disclosure. The FSA is well aware of its duty of candour. There can be no doubt that if the FSA had received a response from one of the regulators or liquidators to the effect that, despite the request, it intended to use the LPP material, the fact of such a response would fall to be disclosed. But what the claimant seeks is an order which polices the FSA via disclosure when there is no reason to suppose that anything is amiss. That is inappropriate.
FSA should be required to take, if any, to retrieve the LPP material. The question is in reality hypothetical so far as it touches the domestic regulatory bodies. The Complaints Commissioner has deleted it. The SFO will do the same. The Insolvency Service is no longer interested in the material. I have no doubt that it will return the CD to the FSA when asked. If a copy without the LPP Material is needed by the Insolvency Service (or the FSCS) there would be little difficulty in providing one. So far as the foreign regulatory bodies and the overseas liquidators are concerned, whilst I recognise (as Mr Crow submits) that the FSA has no power to require any recipient of the LPP Material to take any specific step, its earlier post-judgment letters suggest the appropriate course. Such organisations are likely to comply with requests made by the FSA in aid of a judgment given by an English court.
FSA to retrieve the CDs and Warning Notices that contain the LPP Material; (b) to ensure that the LPP Material is neither used nor disseminated by those who received it; and (c) to ensure that any copies made of it (whether paper or electronic) are deleted.
FSA, having been responsible for disseminating LPP Material, should be required to assist in limiting the damage that exercise might entail. With that end in mind, I consider that the following steps should be taken by the FSA:
(i) All the bodies to which the CD containing the SIR and supporting documents was sent should be asked by letter (a) to return the CD (with, if the
(ii) All those who received the Warning Notices should be asked by letter (a) to destroy them (with, if the
The letter should enclose a copy of this remedies judgment and require a response within 21 days.
FSA, together with the responses or an indication that there has been no response. There is an element of seeking to put the genie back in the bottle when formulating relief appropriate in circumstances where LPP Material has been disseminated in the manner which has occurred in this case. The status quo ante bellum may not be restored perfectly, but these steps, none of which is especially onerous, will go a very long way to providing the claimant (and interested parties) with reassurance that the material will not be inappropriately used.
The protective warning notice
FSA's regulatory action, as does the application for permission to apply for judicial review in connection with it. In those circumstances permission is refused
Conclusion