Request for extension of time denied as Upper Tribunal considers section 393 FSMA

The Upper Tribunal (Tax and Chancery Chamber) has a denied a request for an extension of time to a Mr Stephen Cooper, who had challenged his identification in an FCA decision notice against WH Ireland Limited, outside the 28 day statutory period, on the basis that the reasons contained in the notice were prejudicial to him, and that under section 393 FSMA he should have been given a copy of the relevant notices.

He had referred the WHI notice nearly 14 months out of time, having sought to clear his name by continuing to challenge a private FCA warning against him and the process that led to the warning, and then pursuing a complaint against FCA in relation to its handling of his case. Mr Cooper claimed that unless an extension was given, he would have no opportunity to challenge the criticisms in the final notice, and that he was not given the chance to make third party representations under section 393. Ultimately, however, the judge decided not to grant the extension. The decision was largely on the basis that, although the judge appreciated Mr Cooper’s other actions, he had been made aware of the Tribunal reference time limit and had chosen not to pursue it at the time.

In terms of the reasons on which Mr Cooper claimed to have to make the reference (had he not been out of time),  under section 393, Mr Cooper would need to have been identified in the relevant sense and manner – a legal issue which had not been considered since the Supreme Court case of FCA v Macris. Applying the test in Macris, the judge held that Mr Hunter was not owed third party rights as he was not identified by name or by synonym, e.g. job title. References were made to “compliance oversight” (an area he was certainly involved in as the CF10 holder) but never to a compliance officer, the compliance oversight function or department.  The judge commented that, had the reference been admitted out of time, he would have decided the preliminary section 393 decision against Mr Cooper and dismissed the reference. He commented that, although Mr Cooper may (with reason) consider that the industry will regard him as having some responsibility for the failings identified in the Final Notice, notwithstanding that the FCA withdrew the Private Warning against him, the Tribunal is bound by the law as interpreted in Macris.