Willford, R (On the Application Of) v Financial Services Authority

This is an appeal by the Financial Services Authority (“FSA”) against the order of Silber J. quashing a Decision Notice issued against Mr. Christopher Willford, then the Group Finance Director of Bradford & Bingley plc (“the bank”), under the provisions of section 67 of the Financial Services and Markets Act 2000 (“FSMA” or “the Act”). The FSA has recently been re-named the Financial Conduct Authority, but for convenience I shall refer to it in this judgment by its former name. On 25^th May 2012 Silber J. made an order prohibiting the identification of the applicant; he also directed that his judgment was to be private to the parties and published only in a redacted form.

In order to explain the issues to which the appeal gives rise it is necessary to say something about the FSA itself and the procedure by which it exercises its regulatory and disciplinary functions. The FSA was charged by FSMA with a duty to act as the statutory regulator of the financial services industry. Its responsibilities are wide-ranging, but include ensuring that those who carry out important functions in the industry are properly qualified and adhere to appropriate standards. The Act prescribes certain financial activities which may be carried on only by persons who are approved for the purpose by the FSA and by section 64 the FSA is empowered to issue statements of principle with respect to the conduct expected of persons whom it approves to carry on restricted activities. Principle 6 provides:

By section 66 of the Act the FSA has power to take action against a person who, in its view, has failed to comply with any of the statements of principle issued under section 64 and may impose penalties, including a financial penalty in whatever amount it considers appropriate, suspension of that person’s approval to carry on a restricted activity or the imposition of a restriction or limitation on his performance of the function in respect of which he is approved. It may also publish a statement of his misconduct. Depending on their severity, penalties of that kind may have a profound effect on a person’s ability to obtain employment in the financial services industry.

The Act gives the FSA extensive powers to carry out investigations in the performance of its regulatory functions. Investigations are carried out by a group within the FSA known as the ‘Enforcement Division’ and are conducted on a confidential basis. If the Enforcement Division considers that disciplinary action is appropriate, it sends the person concerned a preliminary investigation report setting out its findings and preliminary conclusions. The person to whom the report is addressed is then allowed a reasonable period in which to comment on the report before the Enforcement Division decides whether to initiate the formal disciplinary process.

The first step in the formal disciplinary process is the issue by the FSA of a Warning Notice setting out the penalty which it proposes to impose and its reasons for doing so. In order to comply with the requirements of section 395(2) of the Act, which requires the FSA to adopt procedures to ensure that neither a Warning Notice nor a Decision Notice (to which I shall come in a moment) is issued by a person directly involved in establishing the evidence on which it is based, the Enforcement Division submits the preliminary investigation report to a committee of the board of the FSA known as the ‘Regulatory Decisions Committee’ (“RDC”) with a recommendation that a Warning Notice be issued. If the RDC decides to issue a Warning Notice, the person to whom it is addressed must then be given a reasonable period (in any event not less than 28 days) in which to make representations to the committee in response.

As part of its decision-making process the RDC considers the preliminary investigation report, further written representations from the Enforcement Division and written representations from the person who is the subject of the investigation. It also conducts an oral hearing at which the person concerned has an opportunity to address the committee and may be asked questions. The RDC then decides in the light of all the material before it whether formally to discontinue the process or take action against the person concerned by issuing a Decision Notice. By virtue of section 388 of the Act a Decision Notice must, among other things, be in writing, state the action which the FSA proposes to take, give the reasons for its decision and indicate whether the matter may be referred to the Tax and Chancery Chamber of the Upper Tribunal under section 67(7) of the Act. The purpose of such a reference is to enable the tribunal to decide what, if any, action it is appropriate for the FSA to take in respect of the matter referred to it. On a reference to the tribunal the FSA may, if it thinks fit, broaden the scope of its allegations (provided they relate to the same matter) and the tribunal has power to direct that a more severe penalty be imposed than that which the FSA had previously proposed.

On 12^th March 2010 the Enforcement Division issued a preliminary investigation report relating to Mr. Willford in which it set out the grounds on which it considered that he had failed to comply with Principle 6. The report was delivered to Mr. Willford on 15^th March 2010. He was invited to respond to the allegations by 12^th April 2010, but on 19^th March 2010 the Enforcement Division sent the report together with a draft Warning Notice to the RDC with a recommendation that a Warning Notice be issued against him and a financial penalty of £150,000 be imposed on him. The reason for the apparently unseemly haste appears to have been the imminent expiry of the two year period allowed to the FSA under the Act for taking disciplinary action of this kind.

On 14^th May 2010 the RDC issued a formal Warning Notice to Mr. Willford proposing to impose a penalty of £150,000 on him for failing to comply with Principle 6. Solicitors acting on behalf of Mr. Willford made lengthy written submissions to the RDC, which also considered written representations from the Enforcement Division. An oral hearing was held which Mr. Willford attended and at which he made representation and answered questions put to him by the chairman of the committee. In due course on 27^th October 2010 the RDC issued a Decision Notice informing Mr. Willford that the FSA had decided to impose on him a financial penalty of £100,000.

The Decision Notice itself ran to twenty three pages and included a section headed ‘Reasons for the Action’ containing a summary of the conduct on which the decision was based, a section headed ‘Facts and Matters Relied On’ running to five pages setting out in more detail the circumstances on which the decision was based, a section running to two and a half pages headed ‘Representations’ summarising Mr. Willford’s submissions, and a section headed ‘Conclusions’, also running to five pages, setting out in some detail the committee’s conclusions. Nonetheless, Mr. Willford maintained that the committee had failed to give adequate reasons for its decision because it had not specifically addressed each of the individual submissions that he had made. He therefore brought a claim for judicial review seeking to have the Decision Notice quashed. The FSA says that the reasons given in the Decision Notice are sufficient to comply with the requirements of section 388 of the Act and that even if they are not, the appropriate course is for Mr. Willford to refer the matter to the Upper Tribunal, which can consider the whole matter afresh. There is, therefore, an alternative remedy available to Mr. Willford and on well established principles this is not a case in which the court should exercise its discretion to entertain a claim for judicial review.

Silber J. gave permission to proceed with the claim for judicial review and in due course tried it. In a judgment delivered on 25^th May 2012 he held that the RDC had failed to give adequate reasons for its decision and that a referral of the matter to the Upper Tribunal did not provide a suitable remedy. He therefore quashed the Decision Notice and remitted the matter to the RDC for reconsideration.

Mr. Michael Brindle Q.C. for the FSA accepted that there may be exceptional cases in which it will be appropriate for the court to exercise its discretion in favour of entertaining a claim for judicial review of a Decision Notice, notwithstanding that the person to whom such a notice has been given is entitled to refer the matter to the Upper Tribunal, but submitted that this was not such a case. In those circumstances it is convenient to begin by considering the grounds on which it is said that the reasons given in the Decision Notice were inadequate, since the nature of the criticisms and the FSA’s response to them provide a helpful context in which to consider the alternative remedy of a reference to the Upper Tribunal.

The basis of the Enforcement Division’s case against Mr. Willford was set out in the Warning Notice. The immediate context out of which the allegations against him arose was a plan to raise by means of a rights issue substantial additional funds in order to strengthen the bank’s capital reserves. On 22^nd April 2008 the bank had released an interim management statement which included figures for “mortgage impairment” (the amount of outstanding loans which the bank did not expect to recover) and “net interest margin” (the difference between the cost of borrowing (including the payment of interest to depositors) and the rate of interest at which the bank is able to lend). Those were both important factors in determining the health of the bank’s trading position. A board meeting was held during the evening of 13^th May 2008 to enable the directors to give their formal approval to the rights issue. At the board meeting the rights issue was approved and was announced to the market the next day. A circular convening an extraordinary meeting of shareholders for the purpose of obtaining their approval to the rights issue was issued on 19^th May 2008. The announcement made by the board on 14^th May and the circular published on 19^th May both included a statement that trading continued in line with the interim management statement. However, on 2^nd June 2008 the bank was forced to issue an updated trading statement which amounted to a profits warning. As a result the rights issue had to be significantly restructured and was largely unsuccessful.

It was the practice of the bank’s finance department to produce monthly results for internal use. In the Warning Notice the FSA alleged that the draft financial results for April 2008 had been available within the finance department of the bank on 13^th May 2008 and had been sent to Mr. Willford as well as the other directors on 16^th May. The results (which had not been available to the board at its meeting on 13^th May) were said to show a material adverse change in the bank’s trading position both by comparison with that set out in the budget prepared in November 2007 and with the more recent three-year plan. As a result the statement in the announcement of the rights issue and the circular to shareholders that trading continued in line with the interim management statement was said not to reflect the true position. Mr. Willford was said to have been at fault in failing to ensure that the finance department checked the draft results to consider whether they raised any concerns of relevance to the planned rights issue and in failing to take active steps on his own behalf to enquire of the finance department on 13^th May 2008 whether the draft April results raised any concerns of that kind and were consistent with the interim management statement. Moreover, it alleged that following receipt of the draft April results pack on 16^th May and a draft forecast of mortgage impairment which showed it increasing to the point where it had a material negative effect on the bank’s profits, Mr. Willford did not review that information adequately and failed to warn the bank’s executive committee or the board of that fact before the circular was released on 19^th May. Mr. Willford himself verified the statement in the circular relating to the bank’s trading position.

Mr. Willford’s response, set out in his written submissions, was that the draft April results were not available on 13^th May 2008; at that stage the finance department was still gathering and checking the raw data needed to produce the draft results. However, he said that if any reliable information had been available, it would have been given to him by his team. Moreover, contrary to the Enforcement Division’s case, the draft April results pack provided to him on 16^th May 2008did not show any material adverse changes in the bank’s trading position and he therefore had reasonable grounds for believing that the statement in the circular was correct.

At the hearing before the RDC the Enforcement Division accepted that the draft April financial results pack had not been available within the finance department on 13^th May 2008. At that stage the mortgage impairment figure for the year to date was thought to be about £23.9 million, but the figure included in the April results pack when it was eventually issued on 16^th May was £35.7 million. It was accepted, however, that only the lower figure had been available on 13^th May 2008. The Enforcement Division also accepted that it was inappropriate, when considering whether the bank’s trading position had been adversely affected, to compare the April results with the budget set in the previous November. The proper figures to take for comparison purposes were those contained in a three-year plan prepared in April 2008.

The text of the Decision Notice follows quite closely that of the Warning Notice, although there are some conspicuous differences. For example, the penalty was reduced from £150,000 to £100,000, some allegations were not found proved and so are not referred to, a lengthy summary of Mr. Willford’s submissions was included and some departures were made from the proposed conclusions. The grounds on which the RDC found that Mr. Willford had failed to comply with the requirements of Principle 6 were:

that he had failed to ensure that the finance department urgently checked the draft results on 13^th May 2008 to see whether they raised any concerns for the proposed rights issue;

that he had failed to make enquiries of the finance department on 13^th May 2008 to confirm that the results were consistent with the interim management statement published on 22^nd April;

that he had failed properly to consider the April financial results pack when it became available and failed to realise that there had been a material change in the bank’s trading position;

that he had failed to realise that mortgage impairment was increasing to a level that had a material adverse effect on the bank’s profits;

that he had failed to warn the executive committee or the board before the circular to shareholders was released on 19^th May 2008 that the bank’s financial position had deteriorated, or ensure that urgent steps were taken to confirm the outlook for future performance;

that he had verified the statements in the circular without having sufficient evidence to support them and approved the release of the circular despite the fact that they were inaccurate; and

that he had not supervised the finance department properly and, in particular, had not ensured that it brought material changes in the bank’s financial position to his personal attention.

In summary, therefore, the RDC found that Mr. Willford had failed to ensure that the finance department brought potentially important financial information to his personal attention promptly, that he had failed to make active enquiries on 13^th May 2008 within the finance department about what information of possible relevance to the rights issue might be available, that he had failed properly to review the draft April financial results pack when it was issued on 16^th May, or had failed to appreciate the significance of the information it contained and had verified the trading statement in the circular when he had no reasonable basis for doing so.

Miss Rose Q.C. for Mr. Willford submitted that the reasons given by the RDC for its decision were inadequate because they failed to inform him in sufficient detail why it had rejected his case. It was of great importance, she submitted, for him to know exactly why his submissions had been rejected, because without that knowledge he could not make an informed decision whether to refer the matter to the tribunal. As a result, he had been seriously prejudiced. Proceedings before the tribunal were expensive and carried a risk that fresh allegations might be made against him and a more severe penalty imposed on him. The RDC had not responded in detail to the various points he had raised in his submissions (as it had in other similar cases) and he could not decide whether to accept the penalty imposed on him or take the matter further unless he knew in detail why it had found against him. Since there had been a failure to provide adequate reasons, the Decision Notice did not comply with the requirements of section 388 of the Act and was therefore invalid.

Mr. Brindle for the FSA submitted that in order to comply with section 388 the Decision Notice needed do no more than make clear the reasons for the RDC’s decision. It was not necessary for the committee to deal in detail with each and every submission made to it, provided that its reasoning was sufficiently clear. Although he accepted that fuller reasons could have been given, he submitted that it was clear on what grounds the committee had reached its decision.

It was common ground that the court has a discretion whether to give permission to proceed with a claim for judicial review and consider the substance of the claim. It was also common ground, however, that where there is an alternative remedy available to the claimant the court will not ordinarily allow him to proceed by way of judicial review, save in exceptional circumstances, usually because it is satisfied that the alternative remedy is for some reason clearly unsatisfactory. In the present case the judge held in his paragraphs [108] - [111] that, since the jurisdiction of the Upper Tribunal was to consider the matter afresh, it had no power to require the FSA to give reasons for its decision and so had no power to remedy the particular breach of duty complained of in this case. Accordingly, a reference to the tribunal was not a suitable or convenient means of determining the issue between the parties. It was common ground that the tribunal does not have power to quash the Decision Notice and remit the matter to the RDC, but whether that means that a reference to the tribunal is not an adequate remedy is one of the principal issues that arises on the appeal. If the judge is right, however, it is difficult to see why any challenge to a Warning or Decision Notice on public law grounds should not routinely be made by way of judicial review.

It is important, in my view, to begin by considering the regulatory scheme established by the Act. I have already described its essential characteristics, which I need not repeat. The disciplinary procedure involves, first, an administrative process under which the FSA decides whether to impose a penalty on a person for whom it has regulatory responsibility. Although the function of the RDC carries with it an obligation to act fairly and to give fair consideration to any representations made to it, the RDC remains an organ of the FSA and the giving of a Decision Notice is the final step in a disciplinary process conducted by the FSA. The statutory right to refer the matter to the Upper Tribunal enables the person subject to the disciplinary procedures to remove the matter from the sphere of the FSA for a fresh decision by an expert tribunal exercising a judicial function. That is the context in which the question falls to be decided. Although separate from the FSA both in terms of its constitution and function, the tribunal is nonetheless an integral part of the regulatory scheme established under the Act.

In support of his submission that a reference to the tribunal was an adequate remedy in this case Mr. Brindle drew our attention to a number of cases in which the courts have emphasised that judicial review should not be granted where an alternative remedy is available. In Re Preston [1985] 1 A.C. 835 Lord Scarman said at page 852:

R v Chief Constable of Merseyside Police ex parte Calveley [1986] 1 Q.B. 424 concerned police disciplinary procedures. In June 1981 complaints were made against five police officers. An investigating officer was appointed, but the officers were given no formal notice of the complaints until November or December 1983. At a disciplinary hearing in September 1984 the Chief Constable rejected a submission on behalf of the officers that they had suffered irremediable prejudice as a result of the routine destruction of records and logs relating to the period when the incident giving rise to the complaint had occurred. The officers were found guilty and dismissed or required to retire. They had a right of appeal against the Chief Constable’s decision under section 37 of the Police Act 1964 which they exercised, but before the appeal was heard they also applied for judicial review of his decision. The Divisional Court refused the application on the ground that it was premature in view of the alternative appeal procedure, but the Court of Appeal granted judicial review on the grounds that the delay amounted to an abuse of process which had caused the officers prejudice. Having referred to the dictum of Lord Scarman in Preston cited above and also to the decisions in R v Hillingdon L.B.C., ex parte Royco Homes Ltd [1974] Q.B. 720 and R v Paddington Valuation Officer, ex parte Peachey Property Corp. Ltd [1966] 1 Q.B. 380, May L.J. expressed the view that it is necessary to guard against granting judicial review in cases where there is an alternative appeal remedy merely because it may be more effective and convenient to do so. In my view those are important words of caution to bear in mind, because to allow a claim for judicial review to proceed in circumstances where there is a statutory procedure for contesting the decision in question risks undermining the will of Parliament.

An appeal in the form of a complete re-hearing has long been recognised as being capable of remedying serious defects in the original procedure. Thus in Lloyd v McMahon [1987] 1 A.C. 625, a case concerning a challenge to a certificate issued by a local authority auditor, Lord Bridge said at page 709A-C:

R v Birmingham City Council ex parte Ferrero Ltd [1993] 1 All E.R. 830 is a decision on which both parties placed some reliance. Ferrero manufactured chocolate eggs, each of which contained a kit which could be assembled to make a small cartoon toy, one of which was known as the ‘Pink Panther’. In October 1989 a little girl accidentally swallowed part of a ‘Pink Panther’ toy and died from asphyxiation. The council, through its trading standards officer, issued a suspension notice under section 14 of the Consumer Protection Act 1987 prohibiting the supply of eggs containing the ‘Pink Panther’ for a period of six months. Ferrero applied for an order quashing the local authority’s decision to issue the notice and its subsequent refusal to withdraw it. It submitted that the council had acted unfairly in failing to consult it before issuing the suspension notice. The judge granted the relief sought.

The local authority appealed, contending, inter alia, (i) that the judge had erred in entertaining the application when Ferrero had a statutory right of appeal to the magistrates under section 15 of the 1987 Act and (ii) that it had not acted unfairly in failing to consult Ferrero before issuing the notice. Taylor L.J., with whom Russell and Fox L.JJ. agreed, referred to the dicta of Sir John Donaldson M.R. and May L.J. in Calveley and continued at page 537b:

Then, having considered the statutory provisions providing for appeal, he said:

The judge below had acceded to the argument that the magistrates had no power to deal with public law challenges to the issue of a suspension notice, such as lack of fairness or irrationality, and that therefore it was appropriate to allow Ferrero to proceed by way of judicial review. This court took a different view. Taylor L.J. said at page 538h:

In R v Hereford Magistrates’ Court ex parte Rowlands [1998] Q.B. 110 the applicants, who had been charged with offences of assaulting a police officer, applied on the eve of trial for an adjournment to enable them to call certain witnesses. The magistrates refused the application and subsequently convicted the applicants without hearing the witnesses. The applicants did not exercise their right of appeal to the Crown Court (which would have conducted a full retrial), but applied for judicial review of the magistrates’ decision on the grounds of procedural irregularity. Lord Bingham C.J. accepted that an applicant for judicial review will normally be expected to exhaust all other remedies open to him before seeking judicial review, but recognised that greater latitude was allowed in cases involving the conduct of proceedings before magistrates’ courts. To leave the applicant to his remedy before the Crown Court would, in the court’s view, have tended to undermine the supervisory jurisdiction of the High Court which provided an important guarantee of the integrity of proceedings before the magistrates. The jurisdiction to grant relief by way of judicial review was important for ensuring that high standards of procedural fairness and impartiality were maintained.

Arguments similar to those rehearsed in Ferrero were considered in R v Falmouth and Truro Port Health Authority ex parte South West Water [2001] Q.B. 445. The case concerned an application by the Health Authority to quash an abatement notice relating to the discharge of sewage into Carrick Roads. In his judgment, with which Pill L.J. (and on this issue Hale L.J.) agreed, Simon Brown L.J., having considered Ferrero in some detail, said at page 473D:

Pill L.J. also emphasised the importance of making the statutory procedures work in cases of that kind. He said at page 477C-F:

Ferrero and South West Water were both cases involving decisions taken by local authorities in the interests of public health and safety. They were also both cases in which the quashing of the notice would undermine the protective measures taken by the local authority and where Parliament had provided statutory appeal procedures designed to enable the substance of the dispute to be determined within a short time. It is not difficult to understand why in such cases the courts should lean strongly against allowing an applicant to proceed by way of judicial review, given that a successful application is likely to perpetuate what may be a harmful state of affairs. In such cases an appeal on the merits is likely to provide a quick and effective means of determining the real issue, namely, whether there is a threat to public safety. Given the role of the FSA in protecting the public against negligent or improper behaviour on the part of those who are responsible for the running of the financial services industry and its disciplinary powers (which include prohibition and suspension), similar considerations might be said to apply.

The first of two decisions to which we were referred concerning the regulatory regime, including the appeal procedure, established under FSMA was R (Davies) v Financial Services Authority [2003] EWCA Civ 1128, [2004] 1 W.L.R. 185. In that case the FSA had given notices to the applicants under section 57 of the Act warning them that it proposed to prohibit them under section 56 from performing functions in relation to certain regulated activities on the grounds that they were not fit and proper persons to do so. The applicants sought to challenge the lawfulness of the Warning Notices on the grounds that the FSA was proposing to use its power to make prohibition orders for improper purposes, so that the giving of the notices was ultra vires and an abuse of process. The judge dismissed the application.

On appeal Mummery L.J., with whom Carnwath and Kennedy L.JJ. agreed, pointed out that, if granted, the application would bypass the statutory scheme, the legislative purpose of which was that anyone aggrieved by a decision of the FSA should have recourse to the special procedures and the specialist tribunal for which the Act provided. He considered that only in the most exceptional cases should the court entertain an application for judicial review of the FSA’s decisions and that the case before the court was not one in which it was appropriate to do so. The decision is of some importance for the present case, not only because it concerns the statutory scheme with which we are concerned, but also because of the nature of the allegations being made against the FSA. If the applicants were right, the FSA had acted wholly improperly and the Warning Notices, being ultra vires, were void. Moreover, although it was not said in terms that the FSA had acted in bad faith, in substance the allegations came very close to it. Nonetheless, the court held that the proper course was for the applicants to refer the matter to the tribunal.

Finally, it is necessary to mention R (Griggs) v Financial Services Authority [2008] EWHC 2587 (Admin), a decision of Burnett J. sitting in the Administrative Court. The case concerned an application for permission to proceed with a claim for judicial review of a decision by the FSA to give the applicant a Warning Notice. The grounds of the application were that there had been procedural unfairness because the FSA had failed to provide him with a copy of its preliminary findings or to give him a reasonable opportunity to comment on them before issuing the notice, contrary to the procedures set out in its own Enforcement Guidance. The judge refused permission to proceed with the claim. The primary ground of his decision, following Davies, was that the applicant had an alternative remedy in the form of a reference to the tribunal, but he also pointed out that by section 395(11) a failure by the FSA to follow its own published procedures does not affect the validity of the notice and that a failure to follow mere guidance could have no greater effect.

The starting point, as emphasised by cases such as Preston, Calveley, Ferrero, Falmouth and Davies, is that only in exceptional cases will the court entertain a claim for judicial review if there is an alternative remedy available to the applicant. The alternative remedy will almost invariably have been provided by statute and where Parliament has provided a remedy it is important to identify the intended scope of the relevant statutory provision. For example, in the context of legislation to protect public health the court is very likely to infer that Parliament intended the statutory procedure to apply, even in cases where it is alleged that the decision was arrived at in a way that would otherwise enable it to be challenged on public law grounds, because it enables the real question in dispute to be decided. That will be particularly so if the procedure allows a full reconsideration on the merits of a decision which has direct implications for public health and safety. A remedy by way of judicial review, although relatively quick to obtain, simply returns the parties to their original positions. It does not enable the court to determine the merits of the underlying dispute. In a few cases strong reasons of policy may dictate a different approach: see R v Hereford Magistrates’ Court, ex parte Rowlands; but such cases are themselves exceptional and do not in my view detract from the general principle. Ultimately, of course, the court retains a discretion to entertain a claim for judicial review, but whether it will do so in any given case depends on the nature of the dispute and the particular circumstances in which it arises.

The purpose of establishing the FSA to regulate the financial services industry and associated markets was to place responsibility for ensuring the maintenance of high standards in the hands of an expert body. It is not surprising, therefore, that the statutory scheme included provision for disputes relating to decisions taken by the FSA in the exercise of its regulatory functions to be referred to an expert tribunal. The opportunity to refer an investigation that has culminated in a disputed Decision Notice to the tribunal for a full re-hearing forms an integral part of the statutory scheme. It would be surprising, therefore, if Parliament had intended that disputes relating to the procedure adopted by the FSA should be reviewed by the courts, save in the most exceptional cases. Davies is authority for the proposition that the court should not entertain an application for judicial review, even in a case where it is said that the FSA has exceeded its powers with the result that its decision is a nullity. The assertion in the present case that the FSA failed to give adequate reasons for its decision seems to me to be no more, and if anything rather less, serious. The argument that the tribunal is incapable of giving Mr. Willford the remedy he needs in this case is, I think, overstated. It is true that the tribunal cannot quash the Decision Notice and remit the matter to the RDC for it to give better reasons, but it can reconsider the whole matter afresh and thus deal with the substance of the allegations against him. I agree with Mr. Brindle that, viewed in the context of the statutory scheme as a whole, the ‘real issue’ (to borrow the phrase used in Ferrero) is whether Mr. Willford’s conduct fell short of that which was to be expected of him. To quash the Decision Notice and remit the matter to the RDC would not advance the resolution of that issue; it would simply cause delay. Moreover, I am not persuaded that he needs the RDC’s reasons to be stated more fully in order for him to make an informed decision whether to refer the matter to the tribunal. The risks that the FSA might put forward additional allegations and that the tribunal might increase the penalty are there and have to be taken into account. I do not think that Mr. Willford would be greatly assisted in assessing them by being given more detailed reasons for the decision that the RDC has already made. The case that he failed to comply with Principle 6 lies in a fairly narrow compass, being concerned only with his conduct in relation to the rights issue announced on 14^th May 2008. Since the tribunal would have to consider the matter completely afresh, I find it hard to see how he would be assisted by obtaining further reasons from the RDC. The tribunal is not concerned with the reasoning of the RDC and Mr. Willford is presumably already well placed, no doubt with the benefit of professional advice, to assess the strength of his case. I do not think this is a case, therefore, in which it can be said that the applicant can obtain by judicial review a remedy of real importance which is not otherwise available to him.

Miss Rose reminded us that whether to entertain the claim for judicial review is a matter for the exercise of the judge’s discretion with which the court should not interfere save in accordance with well established principles. I accept, of course, that she is right about that, but this court is entitled to set aside such a decision if it is satisfied that the judge erred in law in some particular respect or that his decision was plainly wrong. In my view the judge did err in law in this case because he failed properly to identify the legislative intention behind the regulatory scheme embodied in the Act and so failed to appreciate that there was available to Mr. Willford an alternative remedy that was a more appropriate means of challenging the Decision Notice. As a result his decision was, in my view, plainly wrong. For my part, therefore, I would allow the appeal on the grounds that the judge was wrong to entertain the claim for judicial review and should not have quashed the Decision Notice. I would only add that if a question of this kind is raised at the permission stage of the claim (as it should be and in this case was), the court ought to decide it before proceeding to hear the merits of the substantive claim. Not only does that respect the requirements of orderly procedure, but in many cases it may also avoid putting the parties to unnecessary expense in arguing points that are of no relevance to the eventual outcome. If a decision is deferred until after there has been argument on the substantive issues, there is likely to be an overwhelming temptation for the court to deal with those issues in order to avoid putting the parties to additional expense.

It follows from what I have said that it is unnecessary, in my view, to decide whether the FSA failed in this case to give adequate reasons for issuing the Decision Notice. However, since the question is of some importance and the matter was fully argued, I propose to state my views on it.

Counsel helpfully drew to our attention to a number of authorities in which the courts have considered the scope of a duty to give reasons. The earliest was Re Poyser and Mills’ Arbitration [1964] 2 Q.B. 467, a case relating to an award made under the Agricultural Holdings Act 1948, in which the court had to consider whether a failure to give adequate reasons as required by the Tribunals and Inquiries Act 1958 was to be treated as misconduct (in which case an application to quash the award could be made to the county court) or as disclosing an error of law on the face of the award (in which case an application to quash the award lay to the High Court). The question for determination by the arbitrator was whether an effective notice to quit had been given by the landlord to the tenant. The answer turned on whether the landlord had properly given a notice to the tenant to remedy certain breaches of the tenancy agreement with which the tenant had failed to comply. In a letter which was incorporated into his award the arbitrator had set out the reasons for his decision in very general terms. In particular, he had said that he found the notice to remedy defective in respect of “certain items” but that there was “sufficient work” required in the notice that had not been carried out. The tenant brought proceedings in the High Court to quash the award on the grounds that it did not contain adequate reasons for the arbitrator’s decision because it failed to identify specifically the defects which the arbitrator had found in the notice to remedy and failed to deal fully with the case that he had put forward. In holding that there was an error of law on the face of the award Megaw J. held that in order to comply with the statutory requirement the reasons must not only be intelligible but must deal with the substantial points that had been raised. However, by way of clarification he also pointed out that there must be something substantially wrong or inadequate in the reasons in order to enable the applicant to invoke the jurisdiction of the court.

In Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 W.L.R. 153 an objector applied for judicial review to quash the Secretary of State’s decision to permit a development in the City of London on the grounds that he had failed to give sufficient reasons for it. Lord Bridge, with whom the other members of the House agreed, approved the decision in Re Poyser and Mills’ Arbitration, holding that reasons must be proper, intelligible and adequate. “Adequate” in that context meant dealing with the substantial points that have been raised and enabling the reader to know what conclusion the decision-maker has reached on the principal controversial issues. However, Lord Bridge made it clear that the degree of particularity required depends on the nature of the issues falling for decision.

South Bucks District Council v Porter (No. 2) [2004] UKHL 33, [2004] 1 W.L.R. 1953 was another planning case in which the local authority challenged the decision on the grounds that the inspector had failed to give adequate reasons for his decision. Lord Brown of Eaton-under Heywood, with whom the other members of the House agreed, summarised the law as follows:

The authorities show that the extent of the duty to give reasons is determined by reference to the nature of the decision and the issues that have to be decided. (See also the dictum of Lord Woolf C.J. in R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 at paragraph 27). It may also be affected by the part which reasons play in the legislative scheme. In planning cases the right of appeal is limited under the relevant statutory regime to challenging the reasons given for the decision. The reasons therefore play an important role in the overall legislative scheme. Moreover, as Lord Brown pointed out in South Bucks v Porter, in planning cases it may be important for the parties to understand in some detail the basis on which the decision was made because it may affect the developer’s future business or the objector’s approach to future applications of a similar kind.

In the case of decisions made by the FSA under section 67 of FSMA different considerations apply. A challenge to a Decision Notice involves a full rehearing before the tribunal at which the reasons given by the RDC play little or no part. Nonetheless, I accept that the Decision Notice must contain sufficient reasons to enable the person to whom it is addressed to understand why it has been given. Miss Rose drew our attention to Decision Notices given in other cases which set out the individual submissions made to the RDC and its response to them. In my view that degree of particularity, while it is generally to be encouraged, is not invariably necessary in order to comply with the requirements of section 388. That will depend on the nature of the issues. What is necessary, however, is that the RDC should leave the recipient of the notice in no real doubt about why it has decided to give the notice. In deciding how fully its reasons are expressed the RDC is entitled to take into account the fact that the recipient will be aware of the arguments that were presented to it on both sides. There is a tendency in some cases of this kind for relatively simple issues to be addressed at some length and with a considerable degree of elaboration. If that is the case, the RDC is entitled when giving its reasons to concentrate on the substance of the matter and need not address every aspect of the arguments directed to it.

As far as Mr. Willford was concerned, the case originally put forward by the Enforcement Division in paragraph 2.3 of the Warning Notice was that, knowing that the board was due to meet during the evening of 13^th May 2008 to approve the rights issue, he had failed to take active steps to obtain important information that was already available within the finance department, did not review the information properly when he did receive it, failed to draw it to the attention of the executive committee or the board and approved the statement that there had been no material change in the trading and outlook of the bank when the information indicated the contrary. In the course of its consideration by the RDC that case was modified by the recognition of the fact the information which appeared in the April results pack was not available within the finance department on 13^th May, but the main thrust of the complaint, namely, that Mr. Willford had failed to ensure that the finance department brought potentially important information to his attention promptly, that he had failed to take active steps to find out what, if any, information relevant to the rights issue was available and that he had failed properly to review the April results pack and act appropriately in response to it, remained the same.

As previously mentioned, Mr. Willford did not have an opportunity to comment in writing on the preliminary investigation report before it was sent to the RDC. His first response to the allegations was therefore contained in his submissions to the RDC itself. They ran to a hundred pages. The Enforcement Division’s response was twenty eight pages in length and was accompanied by an analysis of Mr. Willford’s submissions in tabular form which ran to a further eighty three pages. Faced with submissions of that length the RDC can in my view be forgiven for seeking to identify and concentrate on the central issues. In Section 5 of the Decision Notice it summarised Mr. Willford’s representations at some length before setting out its conclusions in section 6. The fact that it failed to recite his submission that the apparent deterioration in the bank’s trading over the early months was likely to be made up later in the year does not undermine the adequacy of its reasons. In its conclusions the RDC identified what had been required of Mr. Willford in three principal respects before giving its reasons for reaching the conclusions that his conduct fell short of the required standard in the respects mentioned in paragraph 16 above.

The reasons given by the committee for its major conclusions take the form of individual findings about what Mr. Willford did or did not do to obtain relevant financial information and how he did or did not respond to such information as was provided to him. In some cases those findings were placed in the relevant factual context or supplemented by an explanation of the importance of action which he was expected to take. As a result, I do not think that he can have failed to understand the basis on which the RDC had reached its decision. However, he could not have discerned, save by inference, why it had rejected any specific arguments he had put forward.

It was implicit in Miss Rose’s submission that in order to comply with the requirements of section 388 of the Act the RDC was obliged not only to identify the findings on which its conclusions were based, but to explain the reasons for those findings by addressing the individual submissions made in relation to the various issues raised – in other words to give reasons for its reasons. In some cases that may be appropriate, but in this case, in which the RDC was presented with a large volume of submissions despite the fact that the complaint lay within a relatively small compass, the committee was entitled in my view to concentrate on the main issues and to support its conclusions by reasons which involved more detailed findings of fact. I do not think it was necessary for it to discuss all the arguments in detail or to give more extended reasons for its findings. The purpose of giving reasons is to inform the recipient why the Decision Notice has been given. The Decision Notice may be the trigger for a reference to the tribunal, but in contrast to some other kinds of decision (e.g. planning decisions) neither the notice itself nor the RDC’s reasons play an integral part in the procedure for challenging it. In my view the reasons given by the RDC in this case were sufficient to comply with the requirements of section 388. The fact (if it be the case) that the findings contained errors of fact or law (as Miss Rose submitted) is in my view nothing to the point.

The judge held that the reasons given in the Decision Notice were defective for three reasons. First, in paragraph [57] he held that they were defective because they did not deal with the concession made by the Enforcement Division that the April results pack provided to Mr. Willford on 16^th May 2008 had not been available on 13^th May 2008. However, unless it was necessary for the RDC to record in its reasons that such a concession had been made, the criticism comes to no more than saying that the committee may have proceeded on an erroneous view of the facts. Whether that is a fair reading of the Decision Notice (which in my view has to be read in the context of the materials before the RDC) may be open to argument, but I do not think it helpful to enter into that debate, because I do not think it is relevant. The question is simply whether sufficient reasons have been given to satisfy the requirements of section 388, not whether those reasons are free of factual error.

Second, he referred to the fact that there had been a change in the case put forward by the Enforcement Division in that, having originally relied on a comparison between the April 2008 results and the budget drawn up in November 2007 as indicating whether the bank’s trading position had declined, it had subsequently accepted that the proper comparator was the three-year plan. Although in stating its conclusions the RDC had expressly taken the three-year plan as the comparator, the judge held [63] that the reasons for giving the Decision Notice were defective because they had not expressly explained what effect that change had on Mr. Willford’s culpability. In my view that was to require too much of the RDC. The reasons it gave were clearly based on the correct comparator, namely, the three-year plan, and for reasons I have already given I do not think that it was necessary for it to explain what the position would have been if a different comparator had been used.

The third, and principal, reason why the judge considered that the reasons were defective was that they failed to explain why Mr. Willford’s arguments had not been accepted [66]. In support of that conclusion he relied on a number of cases including Re Poyser and Mills’ Arbitration, Save Britain’s Heritage v Number 1 Poultry Ltd, Hope v Secretary of State for the Environment (1973) 31 P. & C.R. 120, Clarke Homes Ltd v Secretary of State for the Environment [1993] 66. & C.R. 263 and South Bucks District Council v Porter (No. 2) for the proposition that the reasons must be sufficient to enable the recipient of the Decision Notice to understand why it has been given. As can been seen from what I have said already, that proposition is not in issue. What is in issue is the degree of detail into which the reasons needed to go in this case in order to meet the statutory requirements. For the reasons I have given I do not think that it was necessary in this case for the RDC to respond in detail to every point made by Mr. Willford, provided it gave sufficient reasons to enable him to understand the basis of its decision. In my view the judge failed to interpret section 388 correctly. The committee is free, if it thinks it appropriate, to deal with the arguments in much greater detail than it chose to on this occasion and it is clear that in some cases it has done so, but that is not to say that must do so in every case.

For those reasons I would allow the appeal.

I agree that the appeal should be allowed for the reasons set out by Moore-Bick LJ in his judgment.

That the existence of an alternative remedy is an important factor when considering whether, in a particular statutory context, judicial review of a decision is permissible, was confirmed by Mummery LJ, with whom Kennedy LJ and Carnwath LJ agreed, in R (Davies) v FSA [2004] 1 WLR 185, at paragraph 31:

As Miss Rose QC, for the respondent, submitted, however, the circumstances in Davies were different from the present in that Mummery LJ’s observations were made after the court had considered and resoundingly rejected the challenge made in that case, which was a challenge to the power of the FSA to make a prohibition order under section 56 of the Financial Services and Markets Act 2000 (“the 2000 Act”). Miss Rose submitted that such jurisdictional challenge could as well be made in the Upper Tribunal as in the Administrative Court. Moreover, the statutory provisions relevant in the present case were not considered in Davies and it is the provisions relevant to the decision taken that must be considered when deciding whether the presence of an alternative remedy prevents an application for judicial review.

The 2000 Act empowers the Financial Services Authority (“FSA”), under section 66, to take action against a person if it appears to the FSA that he is guilty of misconduct and the FSA is satisfied that it is appropriate in all the circumstances to take action against him (section 66(1)). Section 66(2) provides that a person is guilty of misconduct if, while an approved person (as the respondent was), he has failed to comply with a statement of principle issued under section 64 of the Act. That section empowers the FSA to issue statements of principle with respect to the conduct expected of approved persons.

At the relevant time, section 66(3) of the 2000 Act empowered the FSA to impose a penalty on a person guilty of misconduct or publish a statement of his misconduct. Under section 67 of the 2000 Act, if the FSA proposes to take action against a person under section 66, it must give him a “warning notice” and, if it decides to take action against him under section 66, it must give him a “decision notice”.

Decisions to issue warning notices and decision notices were taken by the Regulatory Decisions Committee (“RDC”) of the FSA. That is a committee of the FSA Board separate from the FSA’s executive management structure and includes no employees of the FSA, save for its Chairman. The RDC was established in order to comply with section 395(2) of the 2000 Act which provides that the procedure “must be designed to secure, among other things, that the decision that gives rise to the obligation to give warning notices and decision notices is taken by a person not directly involved in establishing the evidence on which the decision is based”.

Section 395 provides that the FSA must determine the procedure that it proposes to follow in relation to the giving of warning notices and decision notices. Section 395(5) provides that the FSA must issue a statement of the procedure adopted.

Section 388(1) provides that a decision notice must be in writing and must give the FSA’s reasons for the decision to take the action to which the notice relates. Section 67(7) provides that, if the FSA decides to take action against a person under section 66, he may refer the matter to the Tribunal, that is the Upper Tribunal (Tax and Chancery Chamber). That is the alternative remedy relied on by the FSA.

The FSA’s Decisions Procedure and Penalties Manual, issued under section 395, provides that the RDC has its own legal advisers and support staff who are separate from the FSA staff involved in conducting investigations and making recommendations to the RDC. The Manual provides that the Chairman of the meeting convened for the purpose of a decision notice must ensure that the meeting is conducted so as to enable the recipient of the warning notice to make representations and the relevant FSA staff to respond to those representations. The recipient of the notice then has a right to respond to points made by FSA staff or the RDC, subject to the power of the Chairman to limit representations in length or to particular issues. Legal representation is permitted. It is provided that the RDC will not, after the FSA has given a warning notice, meet with or discuss the ongoing matter with the FSA staff responsible for the case without other relevant parties being present or otherwise having the opportunity to respond.

In this case, the written representations on behalf of the respondent ran to 100 pages. They included the claim that the information produced to the respondent on 16 May 2008 did not indicate a material change in the financial position of the company. There was an oral hearing on 14 September 2010, at which the respondent was legally represented. The transcript runs to 80 pages.

Thus the statute imposes on the FSA a duty to give reasons for its decision (section 388(1)(b)) and requires the FSA to determine the procedure it proposes to follow in relation to the giving of decision notices and to issue a statement of the procedure decided upon (section 395(1) and (5)). The procedure adopted provides that the FSA’s decision is to be given on its behalf by the RDC and provision is made, under section 395, for independent members on the RDC, for written submissions and for an oral hearing.

In that statutory framework, the court has a supervisory role with power to quash if the statutory requirements are not met. Miss Rose submitted that the procedure provides full procedural protection; Mr Brindle QC, for the FSA, that it provides the trappings of a quasi-judicial function to ensure fairness. While it cannot be said that the RDC is a judicial body, the statutory framework is such, in my view, that scrupulous attention to its provisions is required, including the duty to give reasons, and for fairness throughout.

The court’s power to quash is not excluded, in my view, simply because the person subject to the decision has an alternative remedy, a right to go to the Upper Tribunal. The FSA, and its nominated RDC, do not, because that statutory alternative remedy is available, have a licence to do as they please when considering a case and issuing a decision notice. They must give reasons and the reasons must be related to the facts found, and be intelligible: “If the reasons given are unintelligible this will be equivalent to giving no reasons at all” (Lord Bridge in Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 W.L.R. 153, rightly cited by the judge).

Parliament has provided for full and fair consideration to be given to the issues before the RDC before a decision is made and this duty is reinforced by the statutory duty to give reasons for the decision. On occasions, the court may be required to give effect to that statutory intention. Mr Brindle rightly conceded that if the FSA acted maliciously, which is not the case here, or, for example, adopted a policy of not giving reasons, court intervention could be appropriate. Parliament did not, in my view, intend, when requiring procedures such as these to be followed, that they need not be followed scrupulously because an alternative remedy was available.

In Re Preston [1985] A.C. 835, Lord Scarman contemplated circumstances in which the court could intervene to challenge the decision of Inland Revenue Commissioners as “an abuse of power”, notwithstanding the existence of an alternative remedy. In Save Britain’s Heritage Lord Bridge, at pages 166 to 167, cited the judgment of Megaw J in Re Poyser and Mills’ Arbitration [1964] 2 Q.B. 467, at 478, and considered circumstances in which the court would intervene:

That statement was made in the context of duties under the Town and Country Planning Act 1971, as amended, but, in my judgment, the principles stated apply in the present case, with the need to assess one’s future behaviour being substituted for assessing alternative development. Moreover, in Flannery v Halifax Estate Agents Ltd [2000] 1 WLR 377, Henry LJ, giving the judgment of this court, when considering the rationale for the duty to give reasons, stated, at page 381:

A person subject to a decision notice is entitled to a reasoned decision. The availability of a reference to the Upper Tribunal does not excuse failure to comply with that requirement. There is prejudice to a respondent in being required to embark upon a full judicial hearing of all issues and to do so without knowing why the FSA has decided against him. The duty to give reasons cannot be sidelined and the existence of the alternative remedy must be considered in a context which recognises that duty and other statutory provisions mentioned.

However, I add that I do not consider that the absence of a power in the Upper Tribunal to quash a decision of the FSA on procedural grounds, to which the judge attached importance at paragraph 100, is determinative of the issue in the present case. The issue is whether the FSA has so failed to meet the statutory requirements that intervention is required in the particular context. That context includes the underlying statutory purpose (Ferrero). One of the purposes of the FSA’s disciplinary power is the protection of the public and substantive issues should not readily be deferred in order to determine procedural issues. That is the context in which the adequacy of the reasons must be considered.

Central to the FSA’s case (decision notice 6.3) was the alleged failure of the respondent:

Given the time and effort devoted to the FSA’s complaint, including at the oral hearing, the reasons lack the focus on the submissions which might have been expected. The judge, at paragraph 81, contrasted the present decision of the FSA with “impressive reasons in two other final decision notices issued”, that were drawn to his attention. The judge found, at paragraph 64 and paragraph 80, that the RDC had failed “to give any or any adequate reasons as to why the detailed case for the claimant was rejected.” However, he did not consider the FSA’s concessions, on which the respondent relied, to be of critical importance.

I have been persuaded that, on a consideration of the decision notice as a whole, sufficient reasons were given to comply with the statutory requirement. Having considered Mr Brindle’s written and oral submissions, I conclude that the FSA’s procedure has crossed the threshold which makes it inappropriate in this context for the court to intervene when the respondent may seek a reference to the Upper Tribunal.

The RDC plainly had in mind the respondent’s claim that it was reasonable for him to rely on the team leader and the team (decision letter, paragraph 5.8). The FSA’s allegation, as stated at 2.3(3) of the decision letter, was of failure to take specified actions prior to authorising the release of the circular on 19 May 2008. It was found that circumstances changed in the days between the events of 13 May 2008, the announcement of the rights issue, and the issue of the circular on 19 May. The RDC found, at paragraph 6.3, that the respondent should have taken a pro-active approach and failed adequately to deal with the emerging information. In the context of the notice as a whole, the reasons given, which included those at paragraph 6.3, were sufficient.

I agree that the appeal should be allowed but would expect a clearer and more focused approach by RDCs. It is the quality of the reasoning rather than its length that is important.