Tribunal gives preliminary ruling on Havilland/Final Notice reference

The Tribunal has published its decision on the preliminary issue relating to the Bank Havilland action, under which David Rowland referred all notices to the Tribunal on the basis they contained statements prejudicial to him. The bank and two of the three individuals had also referred their notices to the Tribunal but the third individual had not. David Rowland had asked for the Final Notice in respect of the third individual to be quashed. The Tribunal noted that its powers on references differ depending on whether the FCA’s proposed action had been a fine or a ban. In the case of the individual who had accepted his fine and ban, there is clearly a line somewhere between his acceptance and the need to protect the right of the third party to challenge criticisms made of him. The Tribunal discussed the JBI references and noted that the decision notices in this case were similar, in that they bore legends indicating that matters in them were disputed – and the FCA had made it clear that if they published the Final Notice against the individual who had not made the reference, it would bear an appropriate legend. So, the Tribunal said, there could be no question that FCA had pre-determined the Tribunal’s assessment of the reference. All the Applicants and Mr Rowland were in the same position and the publication of the Final Notice has no bearing on the Tribunal references. So, strictly speaking, the Tribunal did not need to determine the question on whether or not the FCA had acted lawfully in issuing the Final Notice before the reference was determined – and, even if it thought it was, there was nothing the Tribunal had power to do about it.

That said, the Tribunal did give a view, which ultimately was that there were good arguments for the FCA to have delayed publication of the notice, notwithstanding that to do so may have been prejudicial to both the individual and the FCA – but the Tribunal was keen not to suggest something that might have the effect of FCA making every effort not to give third party rights in order to avoid such delays.