The Court of Appeal has refused an application for anonymity in respect of an Judicial Review (JR) application and considered use of JR generally in disciplinary proceedings .
CW was the group Finance Director for Bradford & Bingley Plc. In the Decision Notice of the Regulatory Decisions Committee (RDC), he was fined £100,000 for failure to exercise due skill, care and diligence in his function as an Approved Person performing a Significant Influence Function.
CW sought to challenge the ten FSA’s Decision Notice by way of Judicial Review on the basis that the Decision Notice contained insufficient reasons to enable him to decide whether or not to refer the matter to the Upper Tribunal. At that time, the statutory regime applicable to FSA investigations prevented the disclosure of an investigation until it had reached a conclusion resulting in some form of sanction. On this basis, CW sought anonymity in relation to the Judicial Review.
CW was successful in the first instance, with the Decision Notice being quashed at a private hearing and the judgment was published in a redacted and anonymised form.
The FSA appealed and the Court declined to hear the appeal in private but did agree to an interim order prohibiting the identity of CW being disclosed until further notice. The Court of Appeal upheld the FSA’s appeal. CW sought an order that the judgement again be published in a redacted and anonymised form on the basis that he would appeal to the Supreme Court, and if successful his case should remain within the confidential remit of the FSA’s investigation process.
The Court went on to consider the scope of anonymity in JR procedures and the use of JR itself as a route of redress in disciplinary proceedings.
Anonymity
The Court refused CW’s request for anonymity on the basis that it was “inconsistent with the principles of open justice”. Open justice required that the Court Judgement be published in full unless there were overriding ground for not doing so. It was argued that the proceedings would have been embarrassing for CW if made public and might cause damage to his professional reputation.
However, he would not have been entitled to have his identity protected on those ground if, for example, he had been facing Criminal Charges which would have a similar effect. Further, there was no positive evidence that CW would suffer significant harm if his identity was revealed, although it was accepted that there might be some damage to his professional reputation.
The Court also further commented that the fact that CW, in choosing to bring judicial review proceedings, had “brought the matter into a public forum where the principle of open justice applies”.
Judicial Review
It has long been held that JR is a remedy of last resort. It is unlikely to be available if there are alternative remedies available that could provide adequate redress if sought and which have not been properly explored or exhausted.
JR had originally been sought on the basis that the Decision Notice did not contain adequate reasons, and as the Upper Tribunal cannot quash the Decision Notice and remit the matter to the RDC for it to give better reasons, there was no alternative.
However, the Upper Tribunal can reconsider the whole matter afresh and thus deal with the substance of the allegations. CW’s appeal was unsuccessful because there was a statutory mechanism in place by which FSA decisions could be appealed, which had not been followed.
Conclusion
The fact that CW’s application for anonymity was ultimately unsuccessful should provide as a warning to all of the reputational risks of taking matters to the Courts, particularly when there is an alternative route available. If CW had followed the FSA’s statutory scheme and appealed to the Upper Tribunal his case would have been heard in private.
Although the Court thought the reasoning given by the RDC in this instance was reasonable, this was a side point. Meaning that even if there is a serious failing in the procedure (i.e. the RDC giving no grounds at all), it would still not be open for the respondent to seek JR until after a complete re-hearing, despite the expense, time and the risk of increased penalties that a full rehearing may bring.
It was also emphasised that an application for JR on procedural grounds rather than using an available alternative procedure could easily be seen as avoiding the real issue, and the Administrative Court should be alert to this possibility.This case highlighted the difficulties in keeping one's name anonymous and that moving to the arena of the courts for redress is likely to be unproductive. One would normally need to show significant harm to the registrant or a possible witness to have any chance of success. It also stresses that JR as a means to redress should only be pursued if you have explored all other avenues without avail. At Bankside Law we have been successful in preserving anonymity for some professionals facing disciplinary proceedings and in JR. If you are a professional and wish advice on anonymity or JR please call Alexandra Lane on 0844 745 4000 or email This email address is being protected from spambots. You need JavaScript enabled to view it..