Ancean Limited v The Financial Conduct Authority

I am very grateful to Mr Peacock and Mr Temple for the thoroughly researched and detailed exposition on the law concerning implied undertakings and the collateral use of documents which they prepared. Mr Botsman did not put forward any disagreement with it. I accept and adopt it below.

The common law has long accepted that the recipient of documents, disclosed under compulsion of law, is subject to an implied undertaking not to make improper use of those documents. The concept and history were explained by Hobhouse J in Prudential Assurance v Fountain Page [1991] 1WLR 756 (“Prudential Assurance”), at 764H:

This principle is based on the ‘compulsion principle’: see Prudential Assurance at 765C:

The common law implied undertaking did not extend to disclosure which was ‘voluntary’. In this context, ‘voluntary’ disclosure covers the production of any documents and information other than pursuant to a court order obliging the party to disclose the same under the penalty of contempt of court or criminal sanction. This was explained by Hobhouse J in Prudential Assurance, at 769:

In order to be compelled there must be a sanction of contempt of court or criminal offence in failing to produce the documents or statements. The mere fact that, as a matter of practical effect, a party will lose a case or have their case struck out for failure to produce the relevant document or information does not make disclosure ‘compulsory’, see Prudential Assurance at 765G:

“In litigation a party may be subjected to orders or rules of procedure which require him to do various things or take various steps in the action. It was argued that whenever a party was in this position he was acting under a compulsion which brought the implied undertaking into force. This argument can be attractively developed. It is said that many things in actions are done because a party is ordered or otherwise required to do them. They are required to deliver pleadings, swear and lodge affidavits, call witnesses, or, in the present context, serve advance copies of the evidence upon which he proposes to rely at the trial. In all these situations the practical sanction is similar to that which arises from a failure to give discovery or respond to other orders. The primary sanction that the court imposes is to strike out the claim or the defence. If a party fails to deliver a pleading or to lodge or adduce evidence he will fail to protect his rights and the other party's claims or defences will prevail. The outcome for the litigant is in practical terms the same. However in legal terms this is not correct. There is distinction between orders, the breach of which is a contempt of court and those orders or rules which merely give rise to a default. The principle of compulsion applies to the former category only. This has been made clear in a number of cases.”

There are few authorities subsequent to Prudential Assurance that consider the ambit of compulsion. The CPR, introduced a few years later, made such issues largely irrelevant in normal civil litigation. However, in respect of relevant ‘compulsion’ Prudential Assurance has been quoted and applied in at least two cases. In Cassidy v Hawcroft [2000] All ER (D) 1082 (CA) at [18] the Court of Appeal (Moritt LJ; May LJ and Forbes J) cited and approved Prudential Assurance (albeit quoting a different passage from that set out above). The Court of Appeal held that there was no implied undertaking applicable to documents referred to in affidavits. The disclosure in the affidavit was voluntary, even if the Court then compelled production of those documents. The High Court in Official Receiver v Skeene [2020] EWHC 1252 (Ch) at [32] quoted the passage set out above. The Official Receiver had applied to the Court for permission to provide an affidavit and its accompanying exhibit of documents to the Serious Fraud Office. The CPR had not, at that stage, been extended to cover affidavits. At [34], the Court found that the implied undertaking did not apply, as the affidavit was produced voluntarily. Thus, there is no reason to doubt that Hobhouse J’s comments in Prudential Assurance as to compulsion continue to represent the law.

The Rules of the Supreme Court (“RSC”) were later amended to include a prohibition on the use of witness statements other than for the purpose of the proceedings in which they were served, until put in evidence These amendments also removed the preservation of privilege relied upon by Hobhouse J. Accordingly, unless a party retains privilege over witness statements served on other parties, no common law implied undertaking applied.

The common law implied undertaking was not, originally, subject to an exception where documents have been referred to in open court: Harman v Home Office [1983] 1 AC 280. However, following that decision and a settled appeal to the European Court of Human Rights, the government undertook to amend the rule. The amendment took effect by RSC Ord. 24 r. 14A. From that point onwards, the implied undertaking ceased to apply to documents once they were referred to in open court (though the court could impose an order even after such references).

Even without statutory amendment, it appears that the common law would now recognise that the implied undertaking ceases to apply once documents have been referred to in open court. Case law on open justice (in particular Dring v Cape [2019] UKSC 38; [2020] AC 629) emphasises that the public has a general right to see documents that have been referred to in open court, subject to some countervailing reason why they should not.

The courts have also recognised that the implied undertaking could and should be released in appropriate circumstances. The implied undertaking relies on a public policy which could be overridden by other public policy factors. Birdseye Wallis v Harrison [1985] ICR 278 at 289 (Waite J presiding, in the Employment Appeal Tribunal):

Accordingly, the undertaking may be released where a party applies to use documents for a specific collateral purpose.

The CPR were introduced in 1998 and came into effect on 26 April 1999. These rules only have application in England & Wales. Following the introduction of the CPR, in the civil courts the common law implied undertaking has been replaced by restrictions on the collateral use of documents in CPR 31.22 and 32.12. CPR 31.22(1) and 32.12 provide:

the court gives permission; or

the party who disclosed the document and the person to whom the document belongs agree.

Paragraph (1) does not apply if and to the extent that–

the witness gives consent in writing to some other use of it;

the court gives permission for some other use; or

the witness statement has been put in evidence at a hearing held in public.

This rule applies to affidavits in the same way as it applies to witness statements.

The most significant development from the common law position is that the CPR extends the collateral use rule to voluntary disclosure of documents, which do not appear to have been covered by the common law implied undertaking.

The change in approach was explained in Smithkline Beecham Plc v Generics(UK) Ltd [2003] EWCA Civ 1109; [2004] 1 WLR 1479 (“Smithkline”). Smithkline was concerned with documents exhibited to an expert report. The applicant argued that such documents had been voluntarily disclosed, and that introduction of the CPR did not change the position: see [23]-[28]. At [29], Aldous LJ rejected the argument that the CPR ‘perpetuated in all respects the distinction between documents disclosed in a list of documents and those that might be disclosed in another way’. As the expert report had ‘disclosed’ the documents referred to, they were covered by the implied undertaking, even though the disclosure was not made under compulsion.

It follows that CPR 31.22 applies wherever disclosure is voluntary: IG Index v Cloete [2014] EWCA Civ 1128 at [45] (Christopher Clarke LJ).

Scottish courts do not have procedural rules restricting the collateral use of documents. In Scotland, there is no procedural rule equivalent to the CPR. Instead, the common law of Scotland has followed the English approach: a 1998 appellate case applied the common law implied undertaking as set out in Harman v Home Office [1983] 1 AC 280 (Iomega Corporation v Myrica (1998) SC 636). That also appears to be the position in Northern Ireland: see JR42’s Application [2010] NIQB 95.

Whether under the common law implied undertaking or under the CPR, the collateral use rule prevents ‘use’ of documents for purposes other than the immediate proceedings.

The authorities show that the concept of ‘use’ is extremely wide: IG Index v Cloete at [40] (Christopher Clarke LJ):

In Tchenguiz v Grant Thornton LLP [2017] 1 WLR 2809 at [28] and [31] Knowles J stated:

In Lakatamia v Su [2020] EWHC 3201 (Comm); [2021] 1 WLR 1097 at [59] and [93] (Cockerill J (as she then was) stated:

Breach of the common law implied undertaking is in principle a contempt of court.

Section 133 FSMA provides that an applicant may challenge and refer certain decisions of the Authority to the Tribunal. It makes clear that the Tribunal’s function is a review of a ‘relevant decision’ by ‘the decision-maker’ (being the Authority or one of the other authorities listed in s.133(1)). The Tribunal has different jurisdictions and powers (see s.133(5) and (6)) depending on whether the reference is a disciplinary reference or not as defined in s.133(7A).

The First-tier Tribunal (“FTT”) and the Tribunal were created by the Tribunals, Courts and Enforcement Act 2007 (“TCEA”). Section 3(5) of the TCEA provides that the Tribunal shall be a superior court of record. Section 25(1) and (2) provide that the Tribunal shall have, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court in relation to ‘all other matters incidental to the Upper Tribunal's functions’ (s.25(2)(c)).

The Tribunal itself is a creature of statute, meaning its jurisdiction is defined by statute and does not extend to inherent powers found in the ordinary courts: Hoey v HMRC [2022] EWCA Civ 656 at [117]. Accordingly, virtually all cases before the Tribunal have their own statutory scheme. There is, therefore, a distinction between Tribunal proceedings and ordinary civil litigation in terms of (1) the parties generally before the Tribunal; and (2) the inevitable statutory background to every dispute.

In the financial services context, particularly in relation to references under FSMA, the Tribunal has a role as part of the statutory machinery in regulating the financial services industry: FCA v Hobbs [2013] EWCA Civ 918; and FCA v Seiler [2024] EWCA Civ 852. In the latter case, at [63], Fraser LJ expressly rejected the argument that a reference in the Tribunal can be seen as ‘ordinary civil litigation’. Moreover, and importantly, the Tribunal’s role in hearing a reference is a continuation of the regulatory process that commences as from the very first interaction between the Authority and the subject of the reference. Thus, in FCA v Bluecrest Capital Management [2024] EWCA Civ 1125 Popplewell LJ emphasised at [178] that:

Rule 5(3) of the Tribunal Rules contains a number of case management powers. Rule 5(3)(d) empowers the Tribunal to “permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party”. Rule 6 empowers the Tribunal to give directions of its own initiative or on the application of the parties.

The Tribunal Rules contain no rule equivalent to CPR 31.22 nor 32.12 as to the restriction on the collateral use of documents provided in proceedings.

Rule 14 empowers the Tribunal to make orders and directions restricting the disclosure or publication of documents filed or served in Tribunal proceedings in the following terms:

Rule 15(2) governs the admission of documents in evidence in proceedings before the Tribunal. It is widely drafted and empowers the Tribunal to (a) admit evidence whether or not—(i) the evidence would be admissible in a civil trial in the United Kingdom; or (ii) the evidence was available to a previous decision maker; or (b) exclude evidence in certain circumstances that would otherwise be admissible.

Schedule 3 to the Tribunal Rules specifically governs financial services and wholesale energy cases. It lays down a procedural code for an applicant who seeks to challenge decisions of the Authority made under FSMA amongst other things.

Paragraph 2 of Schedule 3 provides for the filing of the reference notice by an applicant. Paragraph 4 provides for a respondent (in this case, the Authority) to send or deliver its Statement of Case within 28 days thereafter and, by virtue of paragraph 4(3), to provide (a) a list of documents on which it relies in support of its case and, importantly (b) any further material which might undermine its decision. This material is to be served on the applicant as well as sent to the Tribunal.

In contrast, paragraph 5 of Schedule 3, provides that the applicant must send or deliver to the Tribunal its reply to the statement of case 28 days thereafter together with a list of documents: but only those documents on which the applicant relies in support of his case (there is no corresponding exculpatory duty for it to disclose to the Authority the documents which may undermine its case).

The Authority is under an ongoing disclosure duty and, by virtue of paragraph 6 of Schedule 3, it must, 14 days after the applicant’s reply has been sent or delivered, send or deliver to the Tribunal a list of such further material which might reasonably be expected to assist the applicant’s case as disclosed by the applicant’s reply and which is not included in its original disclosure under paragraph 4(3).

Section 348 of FSMA provides generally for a restriction on the Authority and other regulators disclosing confidential information they have received. Confidential information is defined broadly under s.348(2) so that it would include any documentary material supplied to the Authority by Ancean as part of any investigation, enforcement or Tribunal proceedings. Albeit, once the material has been referred to in public, such as in open court or tribunal proceedings, it is not confidential by virtue of s.348(4).

The section provides that the primary recipient, such as the Authority, must not disclose confidential information unless it has consent of the supplier but subject to some exceptions. The restriction provides relevantly as follows:

Section 349 FSMA provides relevant further exceptions to the restriction on disclosure of confidential information by prescribed recipients, such as the Authority, to other persons for purposes including as follows:

“349 Exceptions from section 348.

(1)

Section 348 does not prevent a disclosure of confidential information which is—

(a)

made for the purpose of facilitating the carrying out of a public function; and

(b)

permitted by regulations made by the Treasury under this section.

(2)

The regulations may, in particular, make provision permitting the disclosure of confidential information or of confidential information of a prescribed kind—

(a)

by prescribed recipients, or recipients of a prescribed description, to any person for the purpose of enabling or assisting the recipient to discharge prescribed public functions;

…”

The FSMA (Disclosure of Confidential Information) Regulations 2001 (“the 2001 Regulations”) are authorised by section 349(1)(b) and other sections of FSMA.

Regulation 2 defines “the regulators” as including the Authority, the PRA and the Bank of England and “regulator worker’ includes employees of the regulators.

Regulation 3 provides relevantly that disclosure to any person by the Authority, as a regulator or a primary recipient, is permitted for the purposes of enabling the person making the disclosure (the Authority) or other regulators to discharge any public functions. It provides relevantly:

“Disclosure by and to the regulators, the Secretary of State and the Treasury etc.

3.

—(1) A disclosure of confidential information is permitted when it is made to any person—

(a)

by one of the regulators or a regulator worker for the purposes of enabling or assisting the person making the disclosure to discharge any public functions of that regulator or (if different) the regulator worker;

…

…

(d)

by one of the regulators or a regulator worker to one of the other regulators or a regulator worker employed or instructed by one of the other regulators for the purpose of enabling or assisting the recipient to discharge any public functions of the regulator or (if different) the regulator worker.

(2)

A disclosure of confidential information is permitted when it is made by any primary recipient, or person obtaining the information directly or indirectly from a primary recipient, to one of the regulators, the Secretary of State or the Treasury for the purpose of enabling or assisting that regulator, the Secretary of State or the Treasury (as the case may be) to discharge any of its, his or their public functions.

…”

Regulation 4 provides relevantly that the Authority, as primary recipient, may disclose confidential information it has received (in any context and which would include from Tribunal proceedings) for the purposes of a criminal investigation or proceedings:

“Disclosure for the purposes of criminal proceedings and investigations

4.

A primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to any person—

(a)

for the purposes of any criminal investigation whatever which is being or may be carried out, whether in the United Kingdom or elsewhere;

(b)

for the purposes of any criminal proceedings whatever which have been or may be initiated, whether in the United Kingdom or elsewhere; or

…”

Regulation 5 provides relevantly that the Authority, as both a primary recipient and one of the regulators, may disclose confidential information it has received into certain court and tribunal proceedings. Regulation 5(6)(b) specifically provides that the Authority is permitted to disclose confidential information (which may include material disclosed to it during the course of Tribunal proceedings before the material has become public) to any person for the purpose of other proceedings before the Tribunal:

“Disclosure for the purposes of certain other proceedings

5.

—(1) Subject to paragraphs (4) and (5), a primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to—

(a)

a person mentioned in paragraph (3) for the purpose of initiating proceedings to which this regulation applies, or of facilitating a determination of whether they should be initiated; or

(b)

any person for the purposes of proceedings to which this regulation applies and which have been initiated, or for the purpose of bringing to an end such proceedings, or of facilitating a determination of whether they should be brought to an end.

(2)

A person mentioned in paragraph (3) (or a person who is employed by one of the regulators or the Secretary of State) is permitted to disclose confidential information to any person for a purpose mentioned in paragraph (1)(a).

(3)

The persons referred to in paragraphs (1)(a) and (2) are—

(a)

the regulators;

(b)

the Secretary of State; and

…

(6)

The proceedings to which this regulation applies are—

(a)

civil proceedings arising under or by virtue of the Act, an enactment referred to in section 338 of the Act, the Banking Act 1979, the Friendly Societies Act 1974, the Insurance Companies Act 1982, the Financial Services Act 1986, the Building Societies Act 1986, the Banking Act 1987, the Friendly Societies Act 1992 or the Investment Services Regulations 1995;

(b)

proceedings before the Tribunal;

(c)

any other civil proceedings to which one of the regulators is, or is proposed to be, a party;

…”

Section 352 FSMA provides for a criminal offence for persons disclosing information in contravention of section 348 FSMA.

Section 391 FSMA provides for restrictions and prohibitions on the publication of warning notices and decision notices issued by the Authority in a number of circumstances.

Mr Botsman expanded on the four heads of Ancean’s objection in his oral submissions and skeleton argument and submissions dated 10 and 17 October 2025.

First, he opposed the application because he submitted that the implied undertaking and Collateral Use Rule applied in these proceedings, Ancean’s reference to the Tribunal. He argued that the common-law rule (Riddick v Thames Board Mills Ltd [1977] QB 881 (CA); Harman v Home Office [1983] 1 AC 280 (HL)), now reflected in CPR 31.22, provides that documents or information disclosed in the course of proceedings under the authority of the court or tribunal may be used only for the purposes of those proceedings unless the court gives permission. The rule protects the confidentiality of the disclosure process itself and prevents collateral use of material obtained through the compulsory mechanisms of litigation.

He submitted that the rule applies in Tribunal proceedings which are governed by the Tribunal Rules as much as it does in civil court proceedings which are governed by the CPR. He relied upon the Upper Tribunal decision in MST and Others (Disclosure – restrictions – implied undertaking) (Eritrea) [2016] UKUT 337 (IAC) (“MST”) in which it was stated at [17]:

“It is accepted, correctly in our view, that the implied undertaking applies as fully to Tribunal proceedings as to other forms of civil proceedings… We can think of no good reason in principle or otherwise for holding that the implied undertaking does not apply to the disclosure of documents in Tribunal proceedings.”

Mr Botsman contended that this approach finds support in Consumers’ Association v Qualcomm Inc [2023] CAT 9 at [30]–[33]; Boris Frederiksen v HMRC [2025] UKFTT 854 (TC) at [49]–[59]; and PF (International) Ltd v FCA (UT Direction, 24 September 2024) (“PF(International)”). Each concerned specific documents and limited purposes; none created a general licence of the kind now being sought by the Authority.

He contended that PF (International) demonstrates the correct approach. The Tribunal there proceeded on the express assumption that the implied undertaking applied and granted permission only for a defined set of documents — witness statement, exhibits, written submissions and correspondence — and only for a specific criminal-investigation purpose. He submitted that PF(International) therefore supports Ancean, not the Authority. It confirms that: (a) the Tribunal recognises the implied undertaking; (b) permission to depart from it is exceptional and must be confined to identified material and defined purposes; and (c) no precedent of general authorisation exists.

He submitted that there was further support in the FTT decision in Boris Frederiksen v HMRC [2025] UKFTT 854 (TC) (“Fredriksen”). The FTT held that the implied undertaking against collateral use applies in tribunals as a matter of common law, even though the FTT procedural rules (drafted in similar terms to the Tribunal Rules) contain no analogue of CPR 31.22. The FTT traced the Riddick and Harman line of authority and confirmed that the undertaking attaches to material disclosed in tribunal proceedings “by the formulation of principles which have not been abrogated by statute or otherwise.” The FTT found that HMRC could re-use information across its functions only because Parliament had enacted a specific statutory permission in s.17 of the Commissioners for Revenue and Customs Act 2005 (“CRCA”). Section 17 provides that information acquired by HMRC in connection with one function may be used for another of its functions.

Mr Botsman argued that there is no equivalent to secttion 17 CRCA contained within FSMA that would authorise the Authority to the cross-use or disclosure of material supplied by Ancean. Indeed section 348 FSMA imposes a confidentiality constraint and points in the opposite direction.

Second, he argued that the Authority’s application is abstract, over-broad, and premature such that the Tribunal should not grant permission for the disclosure or use of any documents disclosed by Ancean to the Authority in the reference proceedings. Permission to depart from the Collateral Use Rule must always be case-specific and document-specific - never a blanket rule. The Tribunal cannot assess fairness or necessity without concrete material being identified. The Authority was inviting the Tribunal to pronounce a general procedural doctrine for future cases. That is not a judicial function. The Upper Tribunal’s jurisdiction is statutory and confined to deciding individual references or appeals created by Parliament. Its procedural powers are governed by rule 5 of the Tribunal Rules, which permits the Tribunal to “regulate its own procedure” and to give directions “in relation to the conduct or disposal of proceedings.” He argued that those powers are purely procedural and case-specific: they exist to secure the just and efficient management of individual cases. They do not authorise the Tribunal to create, vary or legislate new procedural doctrines of general application.

Mr Botsman submitted that the Tribunal cannot, under rule 5, generate an exception to the common-law implied-undertaking rule or to the statutory confidentiality regime in section 348 FSMA. The Tribunal’s jurisdiction is confined to deciding individual FSMA references and exercising case-management powers under rule 5 of the Tribunal Rules; it cannot legislate exceptions to established common-law principles.

He accepted that, in principle, the Authority could bring a future, narrowly framed, document-specific application, of the kind exemplified by PF (International). In the reasons given for that Direction, the Tribunal granted permission for the Authority to use a defined set of documents - including a witness statement, its exhibits, associated written submissions and correspondence - for a specific criminal-investigation purpose. The application was not contested, and at paragraph 2 of its reasons the Tribunal stated that it was “prepared to assume that the implied undertaking applies.”

Mr Botsman argued that any such future application would need to comply with the statutory confidentiality regime in section 348 FSMA and the 2001 Regulations. The Authority would have to show either: (a) a specific gateway under sections 349–352 or Regulations 3, 4 or 12; or (b) that it had the necessary consents under section 348(1)(a) and (b), including consent from Ancean/Mr Ewing as “the person to whom the information relates.” The application should therefore be refused in its entirety. If the Authority later seeks leave for identified documents, it may do so within the limits of both the common-law undertaking and section 348 FSMA. The present “test-case” invitation lies outside the Tribunal’s jurisdiction.

The Tribunal must decide: (1) whether this abstract request for general authorisation should be granted (it should not); and (2) whether a later, document-specific application could be considered on its merits. As to (1), this application is impermissibly abstract and should be refused outright; only a document-specific application could properly be entertained. The Authority seeks an open-ended ruling permitting cross-use of unspecified evidence and disclosure from other SVS proceedings. It identifies no documents, witnesses or defined purpose. Relevance and fairness can only be assessed once documents are identified. The application is thus too broad and premature and should be dismissed.

Third, he submitted that it would also be unfair for the Tribunal to grant the Authority permission to depart from the Collateral Use Rule in this case and permit disclosure of Ancean’s material in the other Enforcement References. Mr Botsman’s objection was not in fact focussed on Ancean’s material being disclosed into the Enforcement Reference proceedings before the Tribunal (to which Mr Ewing but not Ancean, had third party rights). His objection was focussed on the point of principle being established because it would likewise permit the mirror disclosure of material from the Enforcement Reference proceedings into the Ancean Reference proceedings.

He argued that the Authority had chosen to pursue separate decisions resulting in separate references against different SVS directors rather than seeking joinder or to pursue a joint case. His objection was to the Authority seeking to reuse materials from the separate Enforcement References against Mr Ewing in the Ancean Reference proceedings. Mr Ewing has been given access to materials from the earlier SVS proceedings, but he was not a party to those cases and had no role in shaping or testing the evidence presented. He therefore cannot know what has or has not been disclosed, or how the materials were used in their original procedural context.

Engaging with that evidential record would place a significant burden on him. The volume and complexity of the material, and the absence of full procedural context, make it costly and difficult to interpret fairly. Much of the information also remains “confidential information” within the meaning of section 348 FSMA, limiting Mr Ewing’s ability to deploy or test it. Allowing the Authority to rely on such material would further exacerbate the information asymmetry and generate further cost and disputes about context and admissibility - contrary to the Tribunal’s overriding objective of fairness and efficiency.

Fourth, Mr Botsman submitted that there was no statutory exception to the Collateral Use Rule and section 348 FSMA did not assist the Authority. He contended that section 348 FSMA imposes an absolute prohibition on the disclosure of “confidential information” received by the Authority in the discharge of its functions unless a statutory gateway applies or both consents are obtained. Breach is a criminal offence (see seciton 352 FSMA).

There was a purpose based objection. By virtue of section 348(3) FSMA, he argued it is immaterial whether information was provided voluntarily or under compulsion; the trigger is the purpose for which the Authority received it. All SVS materials are therefore confidential under section 348(1). Section 348(1) requires consent from both the source and the person to whom the information relates. The materials plainly relate to Mr Ewing. No consent has been given and no gateway applies; he therefore submitted that the Tribunal cannot authorise use contrary to s 348(1)(b). The Authority had identified no gateway under section 349 nor the 2001 Regulations that permits cross-use between separate Tribunal references. Reg 3(1)(a) (“self-help”) requires necessity for a public function and does not authorise adversarial use in litigation. Regulations 4 (criminal) and 12 (co-operation) are likewise inapplicable.

I agree with the Authority’s position that sections 348-349 FSMA and the 2001 Regulations provide the only relevant limitation or restriction on the use or disclosure by the Authority of documents, information and witness statements (confidential information) supplied either by parties to the Authority in Tribunal references or by any regulated person at any earlier stage when the Authority is carrying out its statutory functions (such as investigations, supervision and enforcement).

Sections 348-349 FSMA and the 2001 Regulations displace any common law implied undertakings or Collateral Use Rule which might otherwise have applied generally to proceedings in the Tribunal or specifically to reference proceedings under FSMA challenging decisions of the Authority.

This conclusion is based purely on statutory interpretation but is consistent with the practical need for the Authority to carry out its regulatory functions, and the purpose of the statutory scheme under which both the Tribunal and the Authority operate.

There is no proper basis for applying, by analogy, the CPR provisions on the collateral use of documents to the disclosure obligations upon the Authority in FSMA references to the Tribunal, given the CPR provisions are not of direct application and the statutory scheme provides for clear and significantly different restrictions. Whether or not material disclosed to the Authority would otherwise be subject to implied undertakings or the Collateral Use Rule, the common law (and the CPR, if it had applied) is displaced by a coherent and complete statutory scheme.

This scheme authorises the Authority, in respect of such information, statements or documents (confidential information) supplied to it by parties to Tribunal proceedings or the subject of its regulatory functions, to use the material for all of the Authority’s public functions as provided by statute. This statutory scheme authorises the various different teams of the Authority to cross-use for the purposes of all of their statutory and public functions, any material provided to the Authority by parties to reference proceedings. It also empowers the Authority to disclose any material it has received into other Tribunal proceedings, including to the parties involved in other reference proceedings, or to disclose for other purposes and to other persons authorised by the 2001 Regulations. There are limited exceptions to these principles but the only exceptions are those specified in FSMA and the 2001 Regulations.

My reasons are as follows and largely mirror the submissions made on behalf of the Authority.

The CPR (specifically CPR 31.12 and 31.22) do not apply to proceedings on a reference to the Tribunal under FSMA

Contrary to some suggestions in some of the authorities above, there is no basis for concluding that the CPR collateral use rules apply in the Tribunal. This is for the five reasons that the Authority relies upon.

First, the Tribunal Rules were created in 2008, a decade after the CPR provisions. If the framers had intended that a wide CPR-type collateral use ought to apply, they could have said so. To imply or apply the CPR provisions into the Upper Tribunal Rules wholesale would be unjustified – it would be an application too far.

Secondly, Lewis J. (as he then was) in Menon v Herefordshire [2015] EWHC 2165 (QB) (“Menon”) was right to say that the CPR is a procedural code applicable only in the County Court, the High Court and the Civil Division of the Court of Appeal: CPR 2.1. That is not to say that the tribunals may not use the CPR as a guide and import relevant principles when considering their own rules, as they sometimes do, but they are not bound to do so and the starting point must be the tribunals’ own rules.

Thirdly, the CPR have no application in Scotland or Northern Ireland, both being jurisdictions in which FSMA applies, the Authority acts as regulator, and in respect of which the Tribunal will hear references. It would be wrong either to impose upon those other jurisdictions the procedural provisions that apply in the Courts of England & Wales, or to adopt different procedural provisions than those other jurisdictions. As Lord Briggs put it in BPP Holdings v HMRC [2017] UKSC 55 when addressing the Tribunal’s jurisdiction and procedures in relation to tax appeals at [23]:

Fourthly, the CPR rules are procedural rules primarily designed for adversarial private law litigation in the specified courts (albeit the rules do apply to court proceedings which include public law disputes such as judicial review in the Administrative Court). They are not primarily directed to disputes involving a public authority and a statutory scheme.

Fifthly, there is no principled basis for applying the expanded version of the collateral use rules in the CPR. Even if any Collateral Use Rule would otherwise apply in the Tribunal, and this is unclear, it would be the common law rule, supported by the compulsion principle and not the CPR. This leads naturally into the next broad heading.

Given the state of the existing authorities, it is not clear whether the Collateral Use rule applies to ordinary tribunal proceedings before the FTT and UT to which FSMA does not apply

Notwithstanding that CPR 31.22 and 32.12 should not be imported into Tribunal proceedings generally, it is unclear whether the implied undertaking and Collateral Use Rule would apply by virtue of the common law in ordinary, non-FSMA, proceedings before the Tribunal such as appeals from the FTT. It is even less clear the common law on implied undertaking and collateral use of documents would apply to reference proceedings before the Tribunal from decisions of the Authority.

The application of a Collateral Use Rule in the FTT and the Tribunal has been considered in at least six FTT or Tribunal decisions and one High Court case. The Tribunal is not bound by its own decisions or those of the High Court, but will as a matter of judicial comity usually follow such decisions unless they are persuaded that they are wrong.

The cases to date paint a mixed picture as to whether any Collateral Use Rule applies and, if so, whether it is the narrower common law implied undertaking (limited to documents disclosed under compulsion) or the CPR rules (including voluntarily disclosed documents and witness statements but not, apparently, expert reports).

Importantly, however, none of these cases have concerned references to the Tribunal relating to FSMA and involving the Authority. None have addressed the particular position of the Authority nor the particular nature of the Tribunal’s role in relation to a reference. To an extent, therefore, they are decisions that might be said to be of limited relevance. Nonetheless, the Authority rightly identified them and they are considered below as part of a wider consideration of the Collateral Use rule in the tribunals.

The first case is Euro Trade and Finance Limited v HMRC [2016] UKFTT 286 (TC). This First Tier Tribunal case dealt briefly with CPR 31.22, in concluding that HMRC was not prevented from using a witness statement in one proceeding in another proceeding. At [284]-[285]:

The decision might have meant to refer to CPR 32.12 rather than CPR 31.22. In any event, whether or not a witness anticipates that their evidence might be of relevance to functions of the Authority beyond the immediate reference, there is a public interest in the Authority being able to make use of it. Witnesses are adequately protected by section 348 FSMA.

The second case, Evans v Information Commissioner [2015] UKUT 0233 (AAC) (Walker J presiding), implicitly rejected the notion of an implied undertaking applying in Tribunal proceedings. In that case (which is only available as a very brief summary decision), it was said that (at [H]):

In the third case (decided just after Evans), Menon, the High Court considered an application for permission to rely on documents the applicant had received pursuant to a compelled disclosure order in First Tier Tribunal proceedings. Lewis J (as he then was) was not referred to Euro Trade or Evans. He stated at [51] that:

After citing case law on the common law implied undertaking, he added at [53]:

At [55], Lewis J commented on a further argument:

In the fourth case, MST, the Immigration and Asylum Chamber was concerned with a ‘Fact Finding Mission’ report disclosed by the Home Office within the proceedings. At [15], the Upper Tribunal referred to ‘the well known implied undertaking’. The decision then cited a number of pre-CPR cases before stating, at [17]:

The Tribunal concluded at [19] that disclosure by the Home Office of the relevant report was not ‘voluntary’, in that it had been required to produce evidence (which led to disclosure of the report), and the applicants were not at liberty to use the report for collateral purposes. Accordingly, the Tribunal in MST applied the common law implied undertaking where both parties agreed that it applied. It was not concerned with the wider CPR 31.22 as interpreted in Smithkline.

The fifth case, DVLA v Information Commissioner [2020] UKUT 310 (AAC) (“DVLA”) was concerned with the intention of one Mr Williams to publish hearing bundles and skeleton arguments on the internet prior to the relevant hearing taking place. Upper Tribunal Judge Wikeley, at [22], noted case law that the CPR could provide ‘guidance’ on issues where the Upper Tribunal Rules are silent or unclear, but also the comments of the then Senior President in R (on the application of LR) v FTT [2013] UKUT 294 (AAC) at [30] that ‘If those who make Tribunal Procedure Rules wish to mirror the CPR, there is nothing to prevent them from doing so expressly’.

At [23] of DVLA, the Judge suggested that CPR 31.22 and 32.12 could be applied because ‘The implied undertaking at common law is codified in relation to civil litigation in the CPR’. As submitted by Mr Peacock and explained above, the CPR did not merely codify the previous common law rule but extended the rule to documents voluntarily provided. However, Judge Wikeley was not commenting, and was not asked to comment, on any distinction between the two regimes. There is no discussion in the case about compulsory versus voluntary disclosure.

The sixth case is Williams v Information Commissioner [2021] UKUT 110 (AAC). This was a rerun of DVLA. The same Mr Williams again sought to publish bundles online, in separate proceedings. I rejected that application, applied DVLA, and made an order prohibiting publication on the internet for the reasons given.

The seventh case, and most recent, is Frederiksen, a First Tier Tribunal case involving an applicant seeking a disclosure order against itself, coupled with a direction limiting HMRC’s collateral use of the documents thus disclosed. Tribunal Judge Blackwell concluded, at [77]-[78] that:

Thus, Judge Blackwell accepted that the common law implied undertaking could in principle apply but was excluded by statutory provisions inconsistent with the undertaking.

Again, Mr Peacock argues that there are some elements in the analysis which need to be treated with caution. At [83], the judge approached CPR 31.22 as substantially the same as the common law rule. Mr Peacock submits that it is not, as explained above. At [95], the judge stated that the rule against collateral use also applies to voluntarily disclosed documents. It is true that CPR 31.22 applies to voluntarily produced documents, but Mr Peacock argues that the common law implied undertaking does not do so, as explained above.

Despite this, Judge Blackwell proceeded to consider whether disclosure was compelled, concluding at [88]-[90]:

The FTT Rules (Rule 27, Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009) with which Judge Blackwell were concerned applied to both HMRC and the applicant, and state:

Despite the use of the word ‘must’ in this rule, the Judge concluded at [92] that disclosure was not compulsory in the sense required for the implied undertaking to apply. Disclosure by compulsion of law ‘contemplates compulsion of a higher degree’: [92]. At [94], he concluded that the implied undertaking could only apply where disclosure was truly compelled:

All this compelled Judge Blackwell to find, at [96], that protection by means of an implied undertaking was not a ‘fundamental right’, such that it was proper to give full effect to section 17 CRCA, which allows HMRC to use information acquired by it in connection with any function. The net effect was that HMRC was not subject to the implied undertaking.

In the case of PF(International), the collateral use point was not argued and the Tribunal did not decide the issue but proceeded on an assumption as invited by the parties.

In summary, the FTT and Tribunal decisions above are unclear as to whether and how the rule against collateral use or implied undertaking would apply generally in tribunal proceedings. However, I do not need to decide the point. I do not even need to determine whether an implied undertaking and rule against collateral use would apply by virtue of the common law in relation to documents or information provided to the Authority by an applicant as part of the material it provides in a reference it makes to the Tribunal under FSMA.

This is because, whatever the position under the common law, the specific statutory regime which governs the use of material filed, served or disclosed by applicants in reference proceedings under FSMA displaces the position at common law. There is already some support for this analysis from the FTT’s recent decision in Frederiksen. The decision is persuasive in demonstrating the proper relationship between any common law implied undertaking or rules on the collateral use of documents disclosed in tribunal proceedings and any governing statute which would displace their application. By virtue of section 18 CRCA, HMRC is subject to confidentiality rules akin to section 348 FSMA on the use of information it receives. However, section 17 CRCA explicitly permits HMRC to use any documents disclosed to it for any of its functions. There are equivalent, although not identical, provisions in FSMA and the 2001 Regulations which govern the use and disclosure of confidential information provided to the Authority. This leads naturally into the third broad heading.

The statutory scheme under ss.348-349 FSMA and the 2001 Regulations authorise the Authority to use or disclose material received by it from applicants in Tribunal references. The scheme displaces any implied undertaking or rule against collateral use, even if they might otherwise have applied to Tribunal reference proceedings under FSMA.

Whilst the decisions referred to, above, do not all speak with one voice, they suggest the prima facie application of the common law implied undertaking, applicable only to documents disclosed under compulsion of law, and subject to displacement by contrary specification in the relevant statutory scheme (as in Frederiksen).

Where documents are disclosed under compulsion of law, the Authority accepts that the common law implied undertaking would prima facie apply. For decades, the common law saw the implied undertaking as providing the necessary protection where there is compelled disclosure. Absent any other protections for a party forced to disclose documents, the logic of that position applies in the Tribunal.

However, despite that prima facie rule, there are two reasons why the Authority is not subject to a common law implied undertaking in respect of the documents disclosed by Ancean.

First, section 348 FSMA provides all the necessary protection required where documents are disclosed under compulsion of law. Parliament has decided that section 348 should provide sufficient protection when the Authority compels the provision of information under FSMA (where failure to comply may be treated as contempt: FSMA section 177). It must, therefore, provide sufficient protection for documents required to be provided in Tribunal proceedings without such a sanction.

The Authority has duties to advance its statutory objectives. Those objectives are: ensuring that financial markets function well; securing an appropriate degree of protection for consumers, protecting and enhancing the integrity of the UK financial system, and promoting effective competition: see ss. 1B-1E FSMA. The Authority has a wide range of public functions as prescribed by statute: these include regulatory, investigatory, supervisory, enforcement and prosecution functions.

The Authority (alongside the Prudential Regulation Authority or “PRA”) has wide-ranging information gathering powers, in Part XI FSMA, which feed into its regulatory functions and require it to obtain and process information: see the Witness Statement at [22]-[29]. Section 348 FSMA applies to ‘confidential information’ obtained by the Authority. Confidential information is defined (at s. 348(2)) as information which relates to the business or other affairs of any person and which was received by the Authority for the purposes of, or in the discharge of, any of its functions under FSMA, unless it has already been made available to the public.

This definition would cover non-public information, received by the Authority in Tribunal proceedings eg. the provision of information to the Authority by a regulated person which has not been referred to in public hearings. The limitations on the use of confidential information apply to the Authority as a ‘primary recipient’, but also to any person obtaining the information from the Authority: s.348(1). Accordingly, any information disclosed to the Authority by an applicant within Tribunal proceedings remains subject to s. 348 FSMA, unless and until referred to in public hearings.

Before the initiation or continuation of Tribunal proceedings, the Authority will typically have investigated matters, and obtained documents and information from a regulated person under its statutory powers. It may have issued a Warning Notice and Decision Notice, or (in other cases) Supervisory Notices.

Tribunal references are catered for by various provisions in FSMA such as section 133. Following the resolution of the references, the matter will be dismissed or remitted back to the Authority (for non-disciplinary references); or the Tribunal will determine the appropriate action for the Authority to take and remit it to the Authority to take that action (for disciplinary references): see s.133 FSMA.

Documents received by the Authority in Tribunal proceedings form part of a continuum of documents received by the Authority. The Tribunal process itself is part of the regulatory process in which those documents are obtained. In Seiler at [48] Fraser LJ, citing Frensham v FCA [2021] UKUT 222 (TCC), stated: ‘the Tribunal is part of the regulatory process and in many respects stands in the shoes of the Authority when considering he subject matter of references’. At [77] (Fraser LJ): ‘the joint purpose both of the Upper Tribunal, and the FCA as regulator, to ensure that the integrity of the financial markets is protected and confidence in them is maintained; that persons who are not fit and proper persons are prohibited from carrying on business in those markets; and that persons who are fit and proper are permitted to do so. ’

The statutory scheme works as a coherent whole, without room for the importation of further collateral use rules applicable to documents in Tribunal proceedings. Indeed, the statutory scheme would be less coherent if a collateral use rule applied.

The proper interpretation of section 348 FSMA is that it is a ‘ringfencing’ rule to the effect that it prevents the Authority making onward disclosure outside the ringfence of the Authority itself to any other person or organisation unless the owner of the information consents or an exception under section 349 FSMA applies. However, it does not prevent the Authority using the material it receives (confidential information) for all its regulatory purposes and statutory functions so that it can lawfully make internal disclosure to all departments or teams within the Authority (its ringfence) of the confidential information it has received so long as it is in fulfilment of its public functions.

In making use of confidential information internally, the Authority is not making any onward disclosure to any other person of that information and section 348 simply provides a protective ring. It provides statutory authority for the use of the information by any worker or for teams within the Authority to have access to and be disclosed the material in the exercise of any of it public functions. Even if I were wrong about that, and the internal cross-use of the material by the Authority is restricted by virtue of section 348 FSMA, the Authority would still be expressly authorised to disclose internally, circulate and use such confidential information for any of its public and statutory functions by virtue of section 349(1) FSMA and Regulation 3 of the 2001 Regulations.

In addition, the Authority (and any later recipient of the information) may disclose confidential information to third parties outside the Authority if the disclosure is for the purpose of facilitating the carrying out of any public function of the Authority, if it is permitted by s. 349(1) FSMA and Regulation 3 of the 2001 Regulations.

Further, Regulation 5 of the 2001 Regulations permits the Authority, for example, to disclose to the parties to one set of Tribunal proceedings, confidential information received in another set of Tribunal proceedings (assuming it was relevant – such as to meet the statutory test of being ‘for the purpose of proceedings’). By virtue of Regulation 5(1)(a) one team of the Authority might receive confidential information, whether filed or served in a set of tribunal proceedings or otherwise, and rely on it to initiate other Tribunal proceedings. By virtue of regulation 5(1)(b) the Authority might receive confidential information, for example served upon it or disclosed to it in one set of proceedings, and thereafter disclose it in another set of Tribunal proceedings so as to comply with its disclosure duties under paragraphs 4 and 6 of Schedule 3 to the Tribunal Rules. In other words, confidential information received from an applicant in one set of reference proceedings might be material that the Authority serves and relies upon against other persons or applicants in other specified civil or Tribunal proceedings or it might be material that the Authority discloses in those other proceedings as undermining its case. In either example, it would be relevant material that the Authority is empowered to lawfully disclose into the other set of proceedings.

Regulation 5 of the 2001 Regulations would therefore permit the use by the Authority or disclosure by the Authority into one set of Tribunal proceedings of confidential information received from an applicant in another set of proceedings. It would also permit disclosure to, for example, an applicant’s legal team: such disclosure would also be for ‘for the purposes of proceedings’.

The Authority is empowered by section 349 FSMA and the 2001 Regulations to use and disclose confidential information for public functions or other Tribunal proceedings, in the absence of the consent of the owner of the material and in the absence of the Tribunal’s permission. However, there are limits and restrictions within FSMA and 2001 Regulations as circumscribed therein. Any person who discloses information in contravention of section 348 or the 2001 Regulations is guilty of an offence, and liable on conviction to imprisonment of a term not exceeding two years, or a fine, or both: section 352 FSMA.

This statutory interpretation accords with the purpose of the legislative scheme as to the Authority’s functions and the practical needs of its operation as regulator, supervisor, investigator and law enforcement agency. As Mr Peacock submits, a single Authority case could involve: supervisory liaison with a firm and third parties (stage 1); an investigation process by the Authority’s Enforcement and Market Oversight Division (stage 2); written submissions from the firm (stage 3); a warning notice (stage 4); a Regulatory Decisions Committee process (stage 5); the issuance of a decision notice (stage 6); a reference and determination to the Tribunal (stage 7); and remittal to the Authority and a further regulatory decision process (stage 8).

Using this example, it would be very odd indeed if an implied undertaking applied to documents received at stage 7, but not other stages. Stages 1 and 2, in particular, may well have included compelled information requirements imposed by the Authority, but there can be no basis for suggesting that an implied undertaking applies to those documents. There is no principled basis for suggesting that documents voluntarily disclosed in the Tribunal require some greater level of protection than those earlier documents.

An implied undertaking at stage 7 would also create a significant blind spot for the Authority in respect of one small category of documents. All the other documents could be ingested into (or referred to within) the Authority’s intelligence systems to assist with general market surveillance, to identify individuals involved in the relevant events, or for any number of other purposes. The Witness Statement at [25] explains that the Authority has invested considerable resources into enhancing its information-management systems so that relevant information is available to be used when necessary. Indeed, the absence of missing documents, which could not be used by reason of an implied undertaking, might mislead the Authority and lead to incorrect conclusions.

Once a document was referred to in an open hearing, it could presumably be ingested into (or referred to within) the Authority’s intelligence systems, but this would require close analysis of precisely which documents have been read or referred to (something easier said than done, given how many documents may have been referred to in writing rather than orally: see Lily Icos v Pfizer (No 2) [2002] EWCA Civ 2, [2002] 1 WLR 2253 at [7]-[8]). There would still be blind spots, however, and not all references lead to a public hearing – for example proceedings can be withdrawn or settled.

The alternative, which is contrary to the statutory scheme, is that the Authority applies to the Tribunal for permission to use disclosed documents for general regulatory purposes. The Authority will either have to be selective in its application, and risk missing out on intelligence that would have been helpful in due course; or the Authority will apply to be released from the implied undertaking for every document in every case. Both approaches would be time-consuming for both the Authority and for the Tribunal, and unnecessary on the analysis above.

Furthermore, even then, if there were an implied undertaking and documents were required to be released from it, there could remain dangers for the Authority, depending on the terms of the release. Absent a blanket release, any future ‘use’ of the documents could amount to a contempt of court. For example, the information might be relevant to a request from another investigating authority. It is not in the public interest to create additional obstacles or risks for the Authority in carrying out the work that Parliament has entrusted to it. Sections 348-349 and the 2001 Regulations already provide all the necessary safeguards.

If there is a particular document or piece of information where it is thought that section 348 FSMA provides insufficient protection, then the Tribunal could make an appropriate order for that document restricting its use, disclosure or publication (for example, such as under Rules 14 or 15). The mere fact that the Authority did not require permission to use or disclose a document received would not automatically mean that it was admissible in any set of Tribunal proceedings. The admission or exclusion of documents would always be subject to relevance and fairness tests which would be supervised and controlled by the Tribunal such as under Rule 15.

Therefore, a blanket collateral use rule would be contrary to the statutory scheme and is unnecessary. Further, there is little actual prejudice to applicants in the Authority not being required to seek a party’s consent or the Tribunal’s permission to use or disclose documents. First, it may to be their advantage if material is automatically disclosed that undermines the Authority’s case in any proceedings. Second, if material is to be deployed against a party to Tribunal proceedings, having been received by the Authority from another individual or from other proceedings, there is always the further protection offered to applicants in any proceedings that they may object to the admission of material. The Tribunal has the power to admit or exclude documents in any proceedings under Rule 15 taking into account what is just and fair.

In conclusion, even if any implied undertaking or collateral use rule existed by virtue of the common law, they are displaced by express statutory authorisation under sections 348-349 FSMA and 3-5 of the 2001 Regulations. The statutory scheme permits the Authority to use and disclose all material (confidential information) received by it in reference proceedings for the purpose of fulfilling its statutory or other public functions, including as regulator or for the purposes of collecting intelligence or undertaking a criminal investigation or prosecution. Further, the Authority is expressly authorised by section 349(1) and Regulation 5 to disclose the confidential information received from an applicant, the documents disclosed by Ancean in this case, in some other civil cases and all reference proceedings before the Tribunal.

Second and alternatively, even if the statutory scheme did not displace the common law, the common law implied undertaking would not prevent the Authority using or disclosing the documents or information it has received from Ancean. Ancean, like other applicants to references, is not compelled to disclose any documents at all to the Authority under Schedule 3 to the Tribunal Rules. Paragraph 5(3), of Schedule 3 to the Tribunal Rules, merely require an applicant to provide a list of documents upon which the applicant relies. As Judge Blackwell noted in Frederiksen, this is not the type of compelled disclosure which triggers the implied undertaking. Ancean was perfectly entitled not to produce any documents in these proceedings. Its production of documents was voluntary rather under compulsion (as understood in Prudential Assurance) and does not engage a common law implied undertaking.

The position in respect of any witness statements Ancean may yet provide is similar. Again, section 348 FSMA provides all the protection that an applicant or a witness requires. The production of witness statements is, again, voluntary – in the sense that failure to comply would not meet with criminal sanction or contempt of court. As noted above, the Tribunal forms part of a continuum of regulatory action and section 348 FSMA provides the protections throughout that continuum.

Thus the Authority does not require Ancean’s consent nor the Tribunal’s permission to make use of any material provided by Ancean in these reference proceedings in furtherance of all its public functions, or in fulfilling disclosure obligations in the Enforcement References or in other cases or even seeking to rely on the material in those proceedings. However, the admissibility of material as evidence relied upon by the Authority in other proceedings may be subject to a decision of the presiding Tribunal as to the exclusion of evidence under Rule 15.

Considering the objections raised by Ancean

Ancean opposed the Authority’s application, for the reasons set out above. I reject the objections for the following reasons.

Ancean asserts that the use by the Authority of documents it had disclosed would infringe the rule from Hollington v Hewthorn [1943] KB 587. The rule in Hollington prevents reliance by one judge on findings of fact by another judge. It has no relevance to the collateral use of documents.

Ancean also suggests that the application is ‘hypothetical’. This is also incorrect. As explained above, and in the Witness Statement, the Authority has received 54 documents provided by Ancean which have only been considered by a small team within the Authority and not more widely disseminated internally, let alone disclosed to any person outside the Authority (Footnote: ³). This ruling decides whether the Authority may make use of those documents for all its statutory and public purposes including regulatory functions and whether it may disclose those documents in the Enforcement References, if relevant and meeting the disclosure test in Schedule 3.

The Enforcement References are active Tribunal proceedings where the Authority has the obligation to disclose documents which might reasonably be expected to assist the applicants’ cases. At present, the team working on the Enforcement References has not looked at Ancean’s disclosure to assess its relevance.

Some of the documents relate to Mr Ewing’s understanding that the Glenfinnian and Pulteney Bonds were profitable and likely to return money to investors. The Enforcement team needs to consider whether such documents are relevant to the Authority’s case in the Enforcement References that those investments (amongst others) paid high commissions; were high risk and illiquid; or made without adequate due diligence.

Ancean makes further ‘fairness’ arguments: Ancean argues that ‘the unstated purpose of the application is to use material from the Enforcement References in its case against the Applicant’ . This is incorrect. The purpose of the application is to make Ancean’s documents available to the Authority as a whole, not to rely on additional documents from the Enforcement References against Ancean. Even if the Authority were to change its position and disclose or seek to rely on additional documents from the Enforcement References in the Ancean Reference, Ancean would have the ability to object to their admission in these proceedings by virtue of Rule 15 of the Tribunal Rules.

Ancean also argues that ‘it would be unfair for regulatory agencies to exploit the already decisive advantage they enjoy by making collateral use of information obtained from separate proceedings’. Again, this seems to rest on the misunderstanding that the Authority seeks to introduce further documents into Ancean’s reference. In any event, there is no unfairness. If the information is relevant to the Authority’s regulatory functions, it will be considered alongside other evidence that the Authority holds, and will be dealt with subject to the protections in section 348 FSMA.

Mr Botsman raised nine further objections to the Authority’s application in his written submissions dated 17 October 2025 which he pursued during the hearing. I can address and dismiss these relatively shortly.

First, he submitted that the Collateral Use Rule applies in all Tribunal proceedings as a matter of common law, in particular relying on MST. I have addressed this above – the authorities do not speak with one voice but in any event they do not address the specific statutory scheme in FSMA which applies to these proceedings.

Second, he argued that there was no statutory ‘override’ or cross-use power comparable to section 17 CRCA in FSMA. As I set out above, the proper construction of sections 348-349 FSMA and Regulations 3-5 of the 2001 Regulations permit the cross-use and disclosure by the Authority of material provided to it by Ancean in these reference proceedings. The statutory scheme permits the Authority to use and disclose the confidential information provided by Ancean as part of its public functions without Ancean’s consent or the Tribunal’s permission.

Third, he contended that Frederiksen confirms the continuing force of the implied undertaking in common law. I have found that the decision supports the approach taken herein whereby relevant statutory provisions may displace the common law position.

Fourth, he argued that neither Regulation 3(1)(a) nor 3(2) of the 2001 Regulations applies to enable the Authority to disclose confidential information provided by Ancean in reference proceedings other than the Ancean Reference. As I have decided above, section 348 FSMA empowers any team within the Authority to consider the material for the purpose of its regulatory functions or to consider the material for disclosure in other proceedings. Regulation 5 specifically authorises the Authority to make disclosure of or even rely upon Ancean’s material in other reference proceedings such as the Enforcement Reference, if the material is relevant. The Authority is exercising a public function for the purposes of section 349 FSMA when participating in references.

Fifth, he contended that the Tribunal proceedings are independent and adversarial, not a continuation of the Authority’s functions. There is no doubt that reference proceedings are proceedings before an independent tribunal exercising a judicial function but a public function is being exercised by the Authority in using or disclosing material provided to it for regulatory purposes or other reference proceedings.

Sixth, he argued that disclosure given by applications in references is not truly voluntary as the Tribunal Rules require the parties to provide the documents and witness statements and the Tribunal routinely gives directions in such terms. As above, I have decided that this does not mean that an applicant’s disclosure is given under compulsion – there is no criminal nor contempt of court sanction should an applicant choose not to comply. The consequences for failure to provide documents are such that the disclosure made by Ancean are deemed voluntary for these purposes.

Seventh and eighth he submitted that fairness, proportionality and the overriding objective require the application to be refused. He argued that the Authority’s approach would produce procedural inequality , duplication of cost and an unmanageable evidential burden that is unnecessary for the fair disposal of the Ancean Reference. I do not accept this. The Tribunal has case management powers to control fairness and admissibility of material in the Ancean Reference (as it does in the Enforcement References).

Ninth he contended that the declaration sought is ultra vires and misconceived. I do not accept this. The application is not hypothetical as it concerns specific documents provided by Ancean in these proceedings. The nature of the remedy to be granted, given I agree with the Authority’s analysis of the law in principle, is considered below.

Even if I am wrong and the implied undertaking and collateral use rule do apply despite the provisions of FSMA, I give the Authority permission to use and disclose the documents provided by Ancean for its public functions

Even if, contrary to my decision above, an implied undertaking and collateral use rule apply by virtue of the common law and notwithstanding FSMA, I give permission to the Authority to be released from the effect of such rule in relation to the documents provided by Ancean. The Authority is granted permission to use and disclose the documents for its public functions. The cogent and compelling reasons are set out above. They are to enable the Authority to use the documents to pursue its statutory functions generally, including its regulatory functions, and in particular to review the documents provided by Ancean for the purpose of considering disclosure to the Enforcement Subjects in the Enforcement References in case they undermine the Authority’s case.

Plainly, if an implied undertaking exists, it should be released at least so as to enable the Authority to consider the relevance of documents disclosed by Ancean in the Enforcement References. In addition, there is no good reason to limit such use to the Enforcement References. As set out above, there is a public interest in ensuring that the Authority is able to access relevant information for all of its regulatory functions. The documents relate to Mr Ewing’s businesses and investments, into which it is alleged that UK investors have invested and lost significant sums. There is a public interest in the Authority being able to investigate and to take action where appropriate or to ingest relevant information into its intelligence systems and act accordingly.

Remedy to be granted on the application: a direction rather than a declaration

The Authority originally applied for a declaration in the terms set out at paragraph 4. In a post hearing note it sought to reframe the declaration in the following terms:

Mr Peacock and Mr Temple made submissions as to why the Tribunal has power to make declarations due to its status as a superior court of record (see s.3(5) TCEA) with the powers of the High Court in all other matters incidental to its functions (see 25(2)(c) TCEA). They submitted that, provided that a declaration is in respect of a matter incidental to the Tribunal’s functions, the Tribunal has jurisdiction. They contended that the declaration sought by the Authority is incidental to the Tribunal’s functions: it is sought in the context of documents disclosed within the Tribunal references. As to whether a declaration is appropriate, the Tribunal should consider the same issues as the High Court. They argued that a declaration is appropriate in this case. It would serve a useful function in clarifying the law and setting out a clear basis for the Authority to make use of documents in the conduct of its regulatory functions. They referred me to a line of authorities from the courts on the extent of the Tribunal’s jurisdiction.

My provisional view is that the Tribunal may have jurisdiction to make declarations in proceedings generally (in references and appeals), even though there is no explicit power granted to the Tribunal within the TCEA or Tribunal Rules to do so nor is there any authority from the Tribunal or courts on the point. The Tribunal’s only explicit power under s.15(1)(c) TCEA is to make declarations in judicial review proceedings. Nonetheless the power may be implied by virtue of sections 3(5) and 25(2)(c) TCEA as the Authority submits. In any event, there is no need for me to consider the argument in further detail or reach a concluded view on the point. This is because I have decided it is not necessary nor proportionate to make a declaration in this case when I can make directions in response to the application in similar terms.

I make a direction in relation to the specific documents provided to the Authority by Ancean in similar effect to the declaration sought. For the reasons set out above I direct that:

It follows that I also direct that:

I make these two directions for the reasons set out at paragraphs 155-183 above and in line with the conclusions reached.

I further direct that:

This is for the reasons set out at paragraphs 200-201 above and in line with the conclusion reached.

I grant the Authority’s application in so far as I treat it as an application for directions rather than for a declaration.

The Rule 14 order I made during the hearing in respect of the documents was framed so as to lapse on the determination of this application. I will consider on the papers any other consequential matters that may arise.