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The Upper Tribunal (Judges Timothy Herrington and Rupert Jones) has handed down a judgment dated 21 June 2023 which addresses its jurisdiction to permit amendments to a Statement of Case, and the Financial Conduct Authority’s power to impose a redress requirement on a single firm under the Financial Services and Markets Act 2000 (“FSMA”).

The Upper Tribunal considered the line of authorities flowing from Jabre v Financial Services Authority [2002] UKFSM FSM035 (10 July 2006) and found that it did not have jurisdiction to permit amendments in circumstances where they were not of the same nature as allegations contained in or referred to in the Warning Notice or Decision Notice and were not raised during the RDC process, and (separately) where they were not reasonably arguable.

The Upper Tribunal also found that the Authority’s power to impose a redress requirement on a single firm under section 55L FSMA must be read together with and, is restricted by, the terms of section 404F(7) FSMA, such that the power is only available where the breach relied upon has caused actionable loss to persons affected by it. The Upper Tribunal concluded that the Authority’s pleaded case (as permitted to be amended) did not satisfy this test, and accordingly barred the Authority from defending the Reference in respect of the Supervisory Notice imposing the redress scheme.

Javan Herberg KC, Daniel Burgess and Marlena Valles acted for Bluecrest Capital Management (UK) LLP.

Andrew George KC, Ajay Ratan and Ava Mayer acted for the FCA

The judgment is available here.

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