England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (TAX AND CHANCERY CHAMBER)
[2012] UKUT B25 (TCC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th July 2013

Sir Stanley Burnton:

Introduction

1. In August 2007 the respondent, Mr David Hobbs, was a proprietary trader employed by Mizuho International plc. He conducted trading in LIFFE (London International Financial Futures and Options Market) coffee futures and associated derivatives, such as call and put options. The appellant, the Financial Conduct Authority ("the FCA", or "the Authority") investigated his trading on 15 August. It proposed to make a prohibition order on him pursuant to sections 56 and 57 of the Financial Services and Markets Act 2000 ("FSMA" or "the Act") on the basis that he had engaged in market abuse. It served on him a warning notice in accordance with section 57(3). Having considered his response, the Authority decided that his conduct had indeed constituted market abuse within the meaning of section 118 of the Act. It decided to impose a large financial penalty on him and to impose on him a prohibition order pursuant to section 56 of the Act on the ground that he was not a fit and proper person. It served on him a decision notice dated 23 July 2010 in accordance with section 57(3) and (4).
2. Mr Hobbs referred the matter to the Upper Tribunal. It allowed his reference. It decided that his trading did not amount to market abuse. Much of the Authority's case relied on recorded telephone conversations between Mr Hobbs and Mr Andrew Kerr, a broker employed by Sucden Ltd. Paragraphs 240 to 243 of the Tribunal's decision are as follows:

Mr Hobbs' conversations with Mr Kerr

240. That leaves us finally to consider what Mr Hobbs was doing in the various telephone conversations if he was neither engaged in a strategy to confuse Mr Kerr nor detailing how he intended to "do the ultimate" or abuse the coffee futures market. In our judgment, having considered all the evidence, and in particular all the transcripts, is that this was, as Mr Hobbs himself described it when interviewed by the Authority, "trader bravado". We have concluded, after much consideration, that these were merely fantasies intended to portray Mr Hobbs as a "player" or big fish in the coffee futures market. The modus operandi of Mr Hobbs was to remain on the telephone with his broker even when little or no activity was taking place. The conversations were, in our view, often mindless and illogical. That, we consider, was the quality of Mr Hobbs' descriptions of "doing the ultimate"; it was a mere fantasy, concocted for no reason other than to fill the time available by making himself feel important.

241. As we have described, despite our finding in his favour on the reference before us, Mr Hobbs emerges from these proceedings with very little credit. We have already referred to the unsatisfactory nature of the evidence he gave to us. We have, as we have described, found that his assertions that he was engaged in a strategy of confusion were false. That is a serious matter. We can only surmise as to why, in the light of our own findings, Mr Hobbs thought fit to develop and persist with such a story. We can only think that he did so as a desperate attempt to explain what he feared might otherwise be inexplicable, namely what we have concluded, on balance, were his rambling and nonsensical conversations with Mr Kerr. That was a grave error. Not only did it cast Mr Hobbs in a poor light. It could very easily have led to his words being taken completely at face value, with a different conclusion to this reference.

Determination

242. Taking all the evidence into account we have reached the conclusion that the Trade was carried out for legitimate reasons and in conformity with accepted market practices on the coffee futures market. We are not satisfied that the Authority has made out its case against Mr Hobbs on market abuse. We find, accordingly that Mr Hobbs did not engage in market abuse within s 118(5) FSMA.

243. The Authority's case on whether Mr Hobbs was a fit and proper person for the purpose of s 56 FSMA rested on a combination of his alleged conduct in committing market abuse and then lying about it. We have found that Mr Hobbs' assertions that he was engaged in a strategy of confusion were false, but that he was not engaged in market abuse. In those circumstances, we are not satisfied that the Authority has made its case that Mr Hobbs is not a fit and proper person.

244. For these reasons we have concluded that the appropriate Direction to the Authority is to take no action against Mr Hobbs.

3. Following the Tribunal's issuing of its decision on 22 November 2012, on the same day the Authority published the result on its website. It added:

The FSA confirms that, following the Tribunal's decision and in accordance with its direction, it is discontinuing its action against Mr Hobbs in relation to this matter.

4. Mr Hobbs saw that statement and concluded that the Authority's proceedings against him were at an end. However, on 27 November that sentence was removed from the website.
5. On 6 December 2012 the Authority applied to the Tribunal for permission to appeal to this Court. The Authority did not seek to challenge the Tribunal's finding that Mr Hobbs had not been guilty of market abuse, but it contended that he was nonetheless not a fit and proper person by reason of his conduct towards Mr Kerr and his lying during the investigation of his trading, referred to in paragraph 243 of the decision, and that the Tribunal had wrongfully failed to consider whether that conduct of itself showed that he was not such a person.
6. On 2 January 2013 the Tribunal refused permission to appeal. It accepted that the Authority had raised an arguable point of law, but found that it had discontinued its proceedings against Mr Hobbs.
7. Lewison LJ subsequently granted the Authority permission to appeal, and later refused to set his permission aside.
8. It follows that there are essentially 4 issues on this appeal:

(1) Did the Authority discontinue its proceedings against Mr Hobbs with the result that it was and is not entitled to pursue its appeal?

(2) If the answer to (1) is No, did the Tribunal consider whether Mr Hobbs had been shown not to be a fit and proper person to carry out trading by reason of his conduct towards Mr Kerr and his lying during the investigation of his trading and before the Tribunal itself?

(3) If the answer to (2) is No, was there an error of law on the part of the Tribunal?

(4) If the answer to (3) is Yes, what order should be made by this Court?

The statutory framework

9. Prohibition orders are the subject of section 56 of the Act:

(1)     The FCA may make a prohibition order if it appears to it that an individual is not a fit and proper person to perform functions in relation to a regulated activity carried on by—

(a)     an authorised person,

(b)     a person who is an exempt person in relation to that activity, or

(c)     a person to whom, as a result of Part 20, the general prohibition does not apply in relation to that activity.

(1A)     ….

(2)     A "prohibition order" is an order prohibiting the individual from performing a specified function, any function falling within a specified description or any function.

(3)     A prohibition order may relate to—

(a)     a specified regulated activity, any regulated activity falling within a specified description or all regulated activities;

(b)     all persons falling within subsection (3A) or a particular paragraph of that subsection or all persons within a specified class of person falling within a particular paragraph of that subsection.

(3A) …

(4)     An individual who performs or agrees to perform a function in breach of a prohibition order is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5)     …

10. Section 57, so far as relevant, is as follows:

(1)     If a regulator proposes to make a prohibition order it must give the individual concerned a warning notice.

(2)     The warning notice must set out the terms of the prohibition.

(3)     If a regulator decides to make a prohibition order it must give the individual concerned a decision notice.

(4)     The decision notice must—

(a)     name the individual to whom the prohibition order applies;

(b)     set out the terms of the order; and

(c)     be given to the individual named in the order.

(5)     A person against whom a decision to make a prohibition order is made may refer the matter to the Tribunal.

…

11. Section 389 of the Act is as follows:

(1) If the Authority decides not to take—

(a) the action proposed in a warning notice, or

(b) the action to which a decision notice relates,

it must give a notice of discontinuance to the person to whom the warning notice or decision notice was given.

(2) …

(3) A notice of discontinuance must identify the proceedings which are being discontinued.

Discontinuance

12. The Upper Tribunal Judge, Judge Berner, gave the following reasons for his decision that the Authority had discontinued its proceedings against Mr Hobbs:

9. The difficulty for the Authority, and which I regard as insurmountable, is that what is in issue is not whether the Authority gave proper notice of discontinuance to Mr Hobbs, but whether it had in fact discontinued the proceedings against him. For obvious reasons s 389 FSMA requires notice to be given of a number of matters, including discontinuance, but the giving of notice is a procedural step that follows the decision having been taken by the Authority. In the case of discontinuance, the giving of notice is not a pre-condition of an effective decision to discontinue. Discontinuance is a pre-condition for the giving of notice; not the other way round.

10. For there to have been a discontinuance, a decision must have been taken by the authority to that effect. The press release is clear evidence that such a decision was taken. The press release evidences, in unequivocal terms, that the Authority had decided, in the light of the Tribunal's decision, to discontinue its action against Mr Hobbs. Nothing is said to suggest that this is subject to any appeal or that discontinuance is limited in any way. Unless such a decision had been taken, the press release would not have required a reference to the Authority's position as regards the proceedings; it could simply have noted the tribunal's decision (as indeed it did after it had been amended).

11. Absence of notice to Mr Hobbs in the appropriate form may be a breach of s 389 FSMA but it does not allow the Authority to withdraw its decision to discontinue all the proceedings against Mr Hobbs, and this cannot be achieved by amendment of a previously published press release.

12. A right of appeal cannot exist in a vacuum. If, as I consider to be the case, the Authority would be precluded, by reason of it having discontinued its action against Mr Hobbs, from taking any further action in relation to a prohibition order following a successful appeal, it would be nugatory and inconsistent with the principles of fairness and justice, in the circumstances for me to grant permission to appeal.

13. For Mr Hobbs, Mr Jaffey submitted that the Upper Tribunal had correctly found that the Authority had decided not to take the action to which its decision notice related. The giving of notice under section 389 was not an essential step, and Mr Hobbs had in any event waived his right to such notice, albeit after permission to appeal had been granted. Mr Hunter QC, for the Authority, submitted that no such decision had been made by anyone with the requisite authority, and that the statement on its website was not sufficient notice of discontinuance.
14. Before us, much more evidence on this issue was put in than was before the Tribunal, without objection. There are, on analysis, therefore two questions:

(1) Did the Tribunal err in law in finding that there had been a discontinuance binding on the Authority?

(2) On the evidence now before this Court, was there a discontinuance binding on the Authority?

15. The implication of the finding of the Tribunal is that an uncommunicated decision of the Authority to take no further action in relation to a warning or decision notice, even though unknown to anyone outside the Authority, is immediately effective and binding. Thus, if at 10.30 a.m. someone with sufficient authority decided to discontinue, but at 11.00 a.m. he was persuaded otherwise, and for good reason, the Authority could not proceed with the action proposed in a warning notice or specified in a decision notice. Mr Jaffey submitted that this is indeed the effect of the statutory provisions, and in particular section 389. If so, discontinuance by the Authority differs significantly from discontinuance in any other context, which requires a notice of the decision to be given either to the court or tribunal before which the proceedings to which the decision relates are pending, or to the person affected by the decision. I do not think that a rule that renders an internal decision uncommunicated to anyone irrevocably effective makes sense, and I do not think that Parliament so intended. If that is the rule, it is difficult to see why a decision made by someone with appropriate authority, uncommunicated even to anyone else in the Authority, is not similarly effective. The communication of a decision to take no further action, or to discontinue, is an intrinsic part of the process. Parliament has specified to whom and how notice is to be given, in section 389 of the Act and, by delegated legislation, in the Financial Services and Markets Act 2000 (Service of Notices) Regulations 2001. A statement on the Authority's website, not addressed in any way to the person to whom the decision notice is addressed, in my judgment is not a sufficient notice of a decision to take no further action for the purposes of the Act so as to render it irrevocable.
16. Furthermore, Mr Hobbs faces the difficulty that, on the evidence before us, there was no decision to take no further action made by anyone on behalf of the Authority with the requisite authority. The evidence of Patrick Meaney, a Manager in the Wholesale Department of its Enforcement & Financial Crime Division, is as follows:

13. The decision on whether the Authority seeks to appeal an adverse Tribunal decision is taken with the approval of the Director of the Enforcement & Financial Crime Division (the "Director"), in conjunction with advice from our Legal Group and external Counsel and discussion with the relevant Head of Department responsible for the investigation. Given the significant nature of such decisions, they are often escalated by the Director to a senior executive committee of the Authority.

14. The decision as to whether to discontinue a case requires the authority of the Project Sponsor, invariably the Head of Department. As a matter of practice all such decisions are approved by the Director. The subsequent notice informing the person under investigation that the case has been discontinued must be reviewed by the Project Sponsor and authorised by a Head of Department.

15. All publicity must be reviewed by the Project Manager (in this case, myself) and approved by a Head of Department. As a matter of practice the Director requires all publicity to be approved by her, including statements on our website.

17. The evidence shows that no decision to discontinue was made by the Project Sponsor (Mr Nunan) or approved by the Director, Tracey McDermott.
18. On 12 November 2012, the Tribunal released a draft of its decision to the parties and asked them to revert with any typographical errors. The significant difference between that draft and the final version of the decision was that the draft did not include paragraph 243 of the final decision. Thus it neither addressed nor expressly determined the issue as to Mr Hobbs' fitness and propriety.
19. According to Mr Meaney, Steven Clark, the case team lawyer and an investigator on the case, mistakenly believed that a decision had been made not to appeal.
20. On 14 November 2012, Mr Maine, the Legal Group lawyer with conduct of the case in the Tribunal, wrote to the Tribunal about its draft decision. He stated:

… No reference is made in the section of the decision headed 'Our conclusions' as to whether a prohibition order should be imposed on Mr Hobbs on the grounds that he is not a fit and proper person.

Mr Maine asked if the Tribunal would consider "clarifying in its decision its conclusion as to whether a prohibition order should be imposed on Mr Hobbs pursuant to section 56 FSMA on the grounds that he is not a fit and proper person (in particular due to concerns as to his honesty and integrity)".

21. Mr Meaney thought it likely that the Authority would decide to accept the decision of the Tribunal if its response to Mr Maine's letter was a finding that Mr Hobbs was a fit and proper person. In anticipation of this, a short website statement was prepared, following the precedent of a previous case. It included the passage set out at paragraph 3 above. A draft of questions and answers arising from the decision was also prepared by Mr Clark.
22. On 22 November 2012, the Tribunal responded to Mr Maine's letter, sending the text of its final decision, with the (new) paragraph 243. Within 30 minutes, based on his misunderstanding that there would be no appeal, Mr Clark forwarded the draft website statement to the Authority's press office, with copies to Mr Nunan, the Director and others, and it went live shortly afterwards.
23. On 26 November 2012, Mr Clark sent a draft notice of discontinuance to the Legal Group. Mr Maine's manager, Therese Chambers, asked him to ensure that the draft notice was not finalised or released pending receipt of advice that had already been requested from external Counsel on the merits of an appeal. Mr Meaney emailed Mr Maine and Mr Clark, with a copy to the Director, asking:

There is a possibility of an appeal? If there are reasonable grounds, I would support.

Mr Maine responded:

"We have sought Counsel's views based on the reasoning for the prohibition order; it may not offer grounds, but we are checking so that a decision can be taken if there might be.

Steve [Clark] – have we put up on our website anything about discontinuing it? If so, that may need to come down in the interim.

24. Once Mr Maine realised that the website statement referred to discontinuance of action against Mr Hobbs that reference was removed.
25. In my judgment, Mr Meaney's witness statement and the email communications that have been disclosed by the Authority demonstrate that no decision not to appeal, and to accept the decision of the Tribunal, was made by those with the authority to make that decision. There was an understandable assumption by Mr Clark that no appeal was possible, and a failure on the part of those copied into his emails to react before the statement that the Authority was discontinuing its action against Mr Hobbs went live on its website. The Authority is to be criticised for its failure to document and to enforce its internal procedures for making discontinuance decisions with the appropriate authority and its formal decisions as to whether or not to appeal or to discontinue, and for failures to react to emails, but those failures do not amount to a decision to discontinue.
26. The Authority's Decision Procedure and Penalties Manual includes, in Chapter 3, a description of the nature and procedure of the Regulatory Decision Committee. Mr Jaffey relied on paragraph 3.2.26:

FCA staff responsible for recommending action to the RDC will continue to assess the appropriateness of the proposed action in the light of new information or representations they receive and any material change in the facts or circumstances relating to a particular matter. It may be therefore that they decide to give a notice of discontinuance to a person to whom a warning notice or decision notice has been given. The decision to give a notice of discontinuance does not require the agreement of the RDC, but FCA staff will inform the RDC of the discontinuance of the proceedings.

However, this provision does not tell us who of the FCA staff has the requisite authority. The only evidence before the Tribunal in relation to that is the witness statement of Mr Meaney.

27. No submission was made to us as to any ostensible authority of Mr Clark or anyone else responsible for the statement on the website on which Mr Hobbs relied.
28. It follows that I would hold that the Tribunal did err in finding that the Authority was bound by a decision to discontinue, and also that on the basis of the evidence now before the Court there was no such decision binding the Authority.

Did the Tribunal consider whether Mr Hobbs had been shown not to be a fit and proper person to carry out trading by reason of his conduct towards Mr Kerr and his lying during the investigation of his trading and before the Tribunal itself?

29. It is clear that in the original draft of its decision, the Tribunal did not consider this question. If, nonetheless, it had adequately considered this question in the final text, i.e., in paragraph 243, it may be that the Authority would have no basis for an appeal. But in my judgment the Tribunal did not do so. I read the last sentence of paragraph 243 as the Tribunal stating that because it had found that Mr Hobbs was not engaged in market abuse, the Authority had not made out its case that Mr Hobbs was not a fit and proper person. Unless the Authority had confined its case to the allegation of market abuse, this was a non-sequitur. That it did so would be inconsistent with the Tribunal's statement in the same paragraph that the Authority's case rested on a combination of Mr Hobbs' alleged conduct and his lying about it. Lying, by definition deliberate and if intended to mislead, may well of itself demonstrate that a person is not a fit and proper person to carry out a regulated activity, and whether or not it did so in this case was a matter for the Tribunal to address. Furthermore, even if I am wrong in my interpretation of paragraph 243, if the question whether Mr Hobbs' lying rendered him unfit and not a proper person was live before the Tribunal, the Tribunal gave no reasons whatsoever for a finding that his lying, which the Tribunal had clearly found, did not affect his fitness and propriety.
30. It follows that in my judgment the real question is whether it was incumbent on the Tribunal to address the question whether Mr Hobbs conduct, namely his lying as found by the Tribunal, rendered him unfit and lacking propriety.

Was it incumbent on the Tribunal to consider whether Mr Hobbs' lies rendered him a person who was not fit and proper?

31. The answer to this question depends in part on an issue of statutory construction and in part on an examination of the Authority's case.
32. The issue of statutory construction concerns the meaning of "the matter" which a person subject to a decision notice is entitled to refer to the Tribunal under section 57. Happily, Mr Jaffey and Mr Hunter were agreed that that expression should be given a wide meaning. "The matter" includes the facts and evidence referred to in the decision notice on the basis of which the Authority concluded that the person in question was not a fit and proper person and that a prohibition order was appropriate.
33. Paragraphs 5.16 and 5.17 of the decision notice relating to Mr Hobbs was as follows:

5.16. The FSA finds that the cumulative effect of the various strands of the allegation against Mr Hobbs is particularly compelling. The FSA finds that by engaging in market abuse Mr Hobbs has demonstrated that he lacks honesty and integrity.

5.17. The FSA also finds that in attempting to explain his conduct and the contents of the telephone calls Mr Hobbs has sought to mislead the FSA. The FSA finds that this demonstrates that Mr Hobbs lacks honesty and integrity.

34. Thus, as the Tribunal rightly stated in paragraph 243, Mr Hobbs' lying was thus one of the bases for the FCA's conclusion that he was not a fit and proper person. Unless the Authority's case was confined to, in effect, paragraph 5.16 of the decision notice in the proceedings before the Tribunal, it was incumbent on the Tribunal to address this aspect of the decision notice.
35. The dual nature of the Authority's case was reflected in its Statement of Case before the Tribunal. Paragraphs 34 to 44 set out its allegations in relation to his trading on 15 August 2007. Its heading to paragraphs 45 to 50 was: "The Applicant's conduct following his manipulation of the market in September futures and options." Paragraphs 45 to 50 and 55 to 57 were as follows:

45. Mizuho and LIFFE conducted investigations into the Applicant's trading.

46. The Applicant provided false and misleading information to Mizuho in relation to its internal investigation conducted into his trading activity on 15 August 2007 and in relation to the assistance Mizuho provided to LIFFE in relation to its investigation.

47. The Applicant attended an interview with LIFFE on 18 December 2007 but provided false and misleading information during that interview. He declined to attend a second interview.

48. The applicant voluntarily attended an interview under caution at the offices of the Authority on 2 September 2008 but provided false and misleading information to the Authority's investigators doing the course of that interview.

49. The Applicant has continually denied engaging in market abuse and has, instead, provided those investigating him with false and misleading information regarding his trading strategy on 15 August 2007, … [His] explanations are not true.

50. The Applicant has failed to deal openly and honestly with his (then) employer, an exchange and his regulator.

…

55. In the circumstances, the Applicant engaged in market abuse, such that the Authority may impose a penalty of such amount as it considers appropriate pursuant to section 123(1) of the Act.

56. Further, the Applicant's behaviour in engaging in market abuse was deliberate and designed to enable him to profit therefrom ….

57. In addition, when the Applicant's market abuse was subsequently investigated, he denied engaging in market abuse and provided false and misleading information to his employer, the exchange and his regulator (the Authority).

36. I do not think that the opening skeleton argument for the Authority departed from its dual case. It is sufficient to refer to paragraph 12:

Hobbs' conduct in committing the market abuse and then lying about it to the Authority also shows him not to be a fit and proper person. …

37. This sentence was repeated at the end of the Authority's written closing submissions.
38. Furthermore, in my judgment it is important for the Tribunal to consider all the facts and evidence put before it on a reference under section 57. There are two reasons for this. The first is that its consideration of a reference is not ordinary civil litigation. There is a public interest in ensuring, so far as possible, that persons who are not fit and proper persons to perform functions in relation to a regulated activity are precluded from doing so. A narrowing of the inquiry by the Tribunal that excludes relevant material from its assessment of an applicant is to be avoided, provided, of course, that the applicant is given a fair opportunity to address the Authority's case. In Mr Hobbs' case, it could not be suggested, and was not suggested, that he did not have a fair opportunity to address the allegations that he had been guilty of repeated and persistent lying. The second reason is that if the Tribunal incorrectly restricts its determination, it may be difficult for the Authority to rely on the excluded facts in future in assessing, for example, whether the Applicant is a fit and proper person, or should be granted an authorisation he seeks to engage in a regulated activity. To take the present case as an example, I can see that it might be arguable that on Henderson v Henderson grounds the Authority should not be permitted to rely on allegations that it put before the Tribunal but which the Tribunal did not accept demonstrated that Mr Hobbs was not a fit and proper person. Such a situation should be avoided.
39. For all these reasons, I consider it was incumbent on the Tribunal to address the question whether, even if Mr Hobbs was not guilty of market abuse, his lying, which it found as a fact, demonstrated that he was not a fit and proper person. It erred in law in failing to do so.

The Order to be made on this appeal

40. It follows that I would allow the Authority's appeal. Mr Hunter submitted that this Court should decide to make a prohibition order, on the basis that, given the Tribunal's findings as to Mr Hobbs' lies, no other outcome was possible. That submission might have found favour with me if Mr Hobbs was continuing to perform a function in relation to a regulated activity. However, he is not and has not been doing so since he was dismissed by Mizuho following his trading in August 2007. I think that the Tribunal should consider whether a prohibition order is appropriate in these circumstances. I would remit this matter to the Tribunal for it to consider what order to make in the light of the judgments of this Court.

Lord Justice Ryder:

41. I agree.

Lord Justice Rimer:

42. I also agree.