Financial Services analysis: The Upper Tribunal (UT) has refused an application to suspend the requirements of three supervisory notices (the SNs) imposed by the Financial Conduct Authority (FCA) on Nvayo Limited (Nvayo), an e-money institution authorised by the FCA under the Electronic Money Regulations 2011 (the EMRs). Following the investigation and arrest of the ultimate beneficial owner of Nvayo, Mr Scanlon, by the US Department of Justice (US DoJ), the FCA issued Nvayo with three SNs. Broadly, the requirements in the SNs prevented Nvayo carrying out new business and restricted dealings of its own assets pending resolution of the FCA’s concerns in respect of Nvayo’s anti-money laudering (AML) controls and in respect of Mr Scanlon. The requirements also prevented redemptions by existing customers unless the appropriate due diligence had been remediated to the satisfaction of the skilled person appointed pursuant to section 166 of the Financial Services and Markets Act 2000. Nvayo argued that the requirements should be suspended because they were disproportionate to the concerns raised by the FCA for a number of reasons, including that Nvayo had swiftly removed Mr Scanlon from any management responsibilities following his arrest, that the sale of his holding was imminent and that that the US DoJ charges constituted unproven allegations. The UT held that it was unable to be satisfied that if the requirements imposed by the SNs were suspended, the interests of the relevant persons intended to be protected by those requirements (consumers) would not be prejudiced. It concluded that the pre-condition for the exercise of the UT’s power to suspend requirements under rule 5(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the UT Rules) was not therefore met. Written by Rowena Wisniewska Sethi, barrister and Ilana Hirschberg, pupil at 4-5 Gray’s Inn Square.

The Financial Conduct Authority (FCA) has announced that, on 27 August 2024, the Upper Tribunal ruled in the regulator’s favour on its refusal of the application by Saranac Partners Ltd for approval of Thomas Llewellyn Kalaris to perform senior manager functions at Saranac. In its Decision Notice dated 17 November 2022, the FCA concluded Kalaris failed to be open and co-operative by giving untrue and misleading evidence in two FCA enforcement interviews conducted into events related to a capital raising exercise conducted by Barclays in June 2008 that occurred during his time at Barclays Bank plc.

Tax analysis: In Osmond and Allen v HMRC, the Upper Tribunal (UT) allowed the taxpayers’ appeal, holding that they did not necessarily have a main purpose of obtaining ‘an income tax advantage’ under the Transactions in Securities (TIS) regime simply by virtue of having a main purpose of obtaining the benefit of Enterprise Investment Scheme (EIS) disposal relief. Obtaining EIS relief from capital gains tax created an ‘income tax advantage’ for the purposes of section 687 of the Income Tax Act 2007 (ITA 2007). The First-tier Tax Tribunal (FTT) found as a matter of fact that the taxpayers did not have the subjective purpose of obtaining this income tax advantage. Surprisingly, however, the FTT held that because they had a main purpose of obtaining the EIS benefit (notably, a capital gains tax), it followed that they had a main purpose of obtaining an income tax advantage. Concluding that the FTT had erred as a matter of law, the UT held that the taxpayers’ desire to crystallise their EIS disposal relief did not mean that they necessarily had a main purpose of obtaining an income tax advantage. Written by Susanna Breslin, barrister at 11 New Square.

Local Government analysis: The Upper Tribunal considered the amendments within the Equality Act 2010 (EqA 2010) that apply to schools, specifically in relation to the duty under EqA 2010, ss 20 and 85 to make reasonable adjustments for disabled pupils. These amendments contained in Schedule 13 change the test where the provision, criterion or practice (under EqA 2010, s 20(3)) or the auxiliary aid (under EqA 2010, s 20(5)) relate to the provision of education, access to a benefit, facility or service. In those circumstances, it is substantial disadvantage to disabled persons generally that must be considered, not just to the disabled pupil concerned. The Upper Tribunal also considered a separate argument that as the school concerned was a special school, there was no non-disabled pupil comparator within the school. Written by Philip Wood, senior associate at Browne Jacobson.

Local Government analysis: The Upper Tribunal (Lands Chamber) set aside a decision of the first tier Tribunal (FTT) which made a decision to make a rent repayment order (RRO) on the basis that the subject property should have been licenced as a house in multiple occupation where the tenants were unable to prove that a third occupier was living at the subject property as their only or main residence. Written by Tim Baldwin, barrister at Garden Court chambers.

Tax analysis: In Baxendale-Walker, the Upper Tribunal (UT) struck out an application by HMRC for £14m in tax-related penalties on the basis that there was no reasonable prospect of success. The necessary requirements for issuing the penalty notice had not been met.

Tax analysis: In Qubic, the Upper Tribunal (UT) decided that the appellant was not required to comply with the special invoicing and record keeping requirements for transactions in investment gold because the customers had waived the right to take physical possession of the gold.

The Financial Conduct Authority (FCA) has announced that Crispin Odey’s ban from the financial services industry has been upheld by the Upper Tribunal, which found he lacked integrity.

The Financial Conduct Authority has issued a press release announcing that the Upper Tribunal has upheld the Financial Conduct Authority's (FCA) decision to ban three former Mizuho International Plc traders from financial services and impose fines totalling £381,000 for market manipulation. Diego Urra, Jorge Lopez Gonzalez and Poojan Sheth were found to have engaged in 'spoofing' of Italian Government Bond futures between 1 June and 29 July 2016. The Tribunal confirmed the traders' actions were dishonest and lacked integrity, marking the third recent Upper Tribunal decision supporting FCA enforcement actions.

The Upper Tribunal (Tax and Chancery Chamber) (the Upper Tribunal) has upheld the FCA’s decisions that Craig Donaldson and David Arden, former chief executive (CEO) and chief financial officer (CFO) of Metro Bank PLC (Metro Bank), were knowingly concerned in a breach of Listing Rule 1.3.3R by Metro Bank. The FCA’s Decision Notices were published in November 2022 and the two individuals appealed them to the Upper Tribunal. The Upper Tribunal has decided that fines of £167,325 and £100,950 should be imposed on Mr Donaldson and Mr Arden, respectively.

The Financial Conduct Authority (FCA) has announced that the Upper Tribunal has upheld its decision to ban Jes Staley, former chief executive of Barclays, from holding senior management functions in financial services. The Tribunal found that Staley acted recklessly and with a lack of integrity by approving a letter to the FCA that misrepresented the nature and timing of his relationship with Jeffrey Epstein. The letter claimed there was no close relationship and that contact had ceased well before Staley joined Barclays. However, the FCA’s investigation, supported by hundreds of emails, revealed that Staley described Epstein as one of their ‘deepest’ and ‘most cherished’ friends and remained in contact with Epstein up to and after the announcement of their appointment as chief executive in October 2015.

The Financial Conduct Authority (FCA) has announced that the Upper Tribunal has upheld its decision to ban Toni Fox and David Brian Price from financial services and revoke their senior management approvals. The Tribunal confirmed the imposition of substantial penalties after finding that while at CFP Management Ltd, both directors designed and operated an advice model that resulted in unsuitable pension transfers totalling over £392m across 1,470 cases. Despite their extensive experience, the directors failed to adequately assess clients' financial circumstances and risks, which compromised the integrity of their advice, including for members of the British Steel Pension Scheme. Following recalculations based on updated tax and interest guidelines provided in March 2025, the Tribunal endorsed fines of £567,584 for Fox and £465,415 for Price, concluding that their actions constituted serious breaches of FCA rules and demonstrated a lack of the necessary integrity to operate within the regulated financial services sector.