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On 8 May 2024, Upper Tribunal Judge Herrington handed down a significant case management decision in the case of Banque Havilland SA and others v FCA, following a two-day case management hearing on 26 and 27 March 2024.

The FCA alleges that the bank and others acted improperly in relation to the creation and dissemination of a document which, the FCA argues, proposed manipulative trading strategies aimed at creating a false or misleading impression as to the market in, or the price of, Qatari bonds, with a view to harming the economy of Qatar.

The case management decision considered a range of issues:

  1. Judge Herrington acceded to the second applicant’s application to strike out the part of the case alleging that he was knowingly concerned in systems and controls breaches at the bank;
  2. The Judge partially granted and partially dismissed applications by the bank and the third party rights applicant requiring the FCA to give disclosure, including in relation to its interactions with Qatari authorities;
  3. The Judge dismissed a request by the FCA for the Tribunal to call a witness of its own motion – the first decision to grapple with this issue since Seiler and others v FCA;
  4. The Judge dismissed the Bank’s application for an order that the FCA be required to tender a witness to speak to its conduct of the investigation; and
  5. The Judge agreed to postpone the substantive trial to give time for the appeal in Bluecrest Capital Management v FCA to be heard by the Court of Appeal because of the common jurisdictional issues in the two cases.

The decision includes detailed consideration of important issues relating to the nature of the Tribunal’s jurisdiction to determine references of FCA enforcement decisions, the scope and limits of the FCA’s disclosure obligations in proceedings of this nature, and the proper role of the Tribunal in relation to witnesses.

Andrew George KC and Simon Pritchard, instructed by Peters and Peters, acted for the second applicant. Fraser Campbell, instructed by Forsters, acted for the third-party rights applicant. Rayan Fakhoury acted for the FCA.

The judgment may be found here.

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