Calland v Financial Conduct Authority

The Court of Appeal has upheld a decision to strike out a harassment claim brought by a retired financial adviser against the FCA.

Mr Calland was a financial adviser who retired in January 1998. As part of an industry-wide review into pension mis-selling, he was contacted on a few occasions in early 2005 by the FSA (the FCA’s statutory predecessor), seeking information about his financial circumstances. The information was sought in order to enable the Financial Services Compensation Scheme to reach a conclusion as to whether Mr Calland was unable to meet claims from investors in respect of mis-selling by his firm, and whether the FSCS was therefore empowered to meet such claims itself. Mr Calland refused to cooperate and the correspondence ended.

In 2011, Mr Calland issued proceedings against the FSA alleging harassment contrary to the Protection from Harassment Act 1997. A Deputy District Judge refused an application by the FSA to strike out the claim, holding that it raised issues which needed to be considered at trial.

The FSA successfully appealed and obtained an order for summary judgment dismissing the claim. Mr Calland was given permission to appeal to the Court of Appeal.

The Court of Appeal (Lewison, Laws and Bean LLJ) dismissed the appeal, holding that it was simply unarguable that the FSA’s conduct amounted to harassment within the meaning of the Act, and that the Court was therefore able to conclude at the summary stage that it was bound to fail. Lewison LJ (with whom the rest of the Court agreed) concluded: “this conduct comes nowhere near crossing the threshold. It is not even at the front garden gate.”

The full judgment can be read in the attached document. 

Javan Herberg QC and Tom Cleaver appeared for the FCA.