- The Upper Tribunal dismisses application to prohibit publication of FCA’s Decision Notice for non-financial misconduct [Frensham v FCA]
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Financial Services analysis: This Upper Tribunal (UT) decision concerns the publication of a Decision Notice issued by the Financial Conduct Authority (FCA) against Jon Frensham, an independent financial adviser and sole director at Frensham Wealth Ltd, for non-financial misconduct. The case examines the balancing exercise which must be performed by the UT when determining if publication of Decision Notices should be prohibited pursuant to the Financial Services and Markets Act 2000 (FSMA 2000), s 391. The key question in the present case was whether the evidence established a significant likelihood of damage or destruction to Mr Frensham’s livelihood such that it would be unfair not to prohibit publication. The UT dismissed Mr Frensham’s application, reiterating the very high hurdle which must be met. While it was not necessary to show either the destruction of Mr Frensham’s livelihood or reduction to penury, the impact of publication must be so severe that it is out of proportion to the public interest in the principle of open justice. The decision also includes a helpful review of the authorities on privacy applications in the UT. Written by Alexandra Green, partner at Macfarlanes LLP.
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