The Upper Tribunal has ruled on whether any part of costs claimed by Alistair Burns (on his unsuccessful application) should be awarded. The Tribunal has discretion over the award of costs, but can only make the award if it considered that FCA had acted unreasonably in bringing, defending or conducting the proceedings, or that the RDC’s decision in the Decision Notice was unreasonable. In this case, Mr Burns had alleged that one of the two main allegations against him was time barred, which FCA had disputed but ultimately conceded. As a result, the fine levied on him was less than originally proposed. Mr Burns said that, had the FCA realised about the time-bar earlier, and therefore reduced the proposed fine, he would have settled the matter at that stage, saving significant costs. FCA brought many arguments to support its case that its actions, views and the timings of them were not unreasonable.
The Tribunal, having reviewed all the background and facts, concluded it did have jurisdiction to make a costs order, on the basis that the RDC’s decision on the limitation issue was unreasonable, and that FCA’s decision not to address the limitation issue in its original statement of case was also unreasonable. However, in terms of the penalty amount, FCA did not act unreasonably.
The Tribunal said that, despite Mr Burns’ contention that he would have settled early, in fact he chose to contend the issues (not just the limitation issue) and, as a result, there was no case for him to be awarded any part of the costs he incurred after FCA conceded the limitation issue. However, there should be a costs order to a limited extent in relation to the time between when the reference was made and the limitation issue conceded. The Tribunal stressed that Mr Burns had committed serious misconduct with serious consumer detriment, but that the order would send a message to FCA that even where there has been that level of misconduct, all investigation and enforcement proceedings should still be treated fairly and reasonably. It directed FCA to pay nearly £4,500 of Mr Burns’ costs (against his original claim of over £130,000).