Publicity of FCA Decision Notices

In Conor Foley v FCA [2020] UKUT 0169 (TCC), Mr Foley referred a Decision Notice, fining him £658,000 and finding that he had committed market abuse while he was CEO of WorldSpreads Limited (WSL), to the Upper Tribunal for determination. Mr Foley was the third and final WSL executive which the FCA had fined following the collapse of WSL.

Mr Foley applied for directions that the Decision Notice be kept confidential pending the outcome of the Upper Tribunal's determination. He also applied for the Upper Tribunal's public register of cases not to contain details of his appeal.

In dealing with these applications, the Upper Tribunal found that, due to the strong presumption in favour of open justice and transparency, privacy applications will be heavily resisted. To overcome the presumption in favour of publication, applicants must provide cogent evidence of potential unfairness and disproportionate damage suffered. Evidence of embarrassment, reputational harm and the possibility of severe damage or destruction of livelihood is unlikely to be sufficient.

In this case, Mr Foley argued, among other things, that his teaching arrangement with Trinity College would not be renewed if the Decision Notice was published. This would adversely affect his ability to finish his PhD and, in turn, his goal of becoming an academic. The Upper Tribunal rejected Mr Foley's arguments, finding that his evidence was not sufficiently cogent or compelling to defeat the presumption in favour of open justice.

This case is an important reminder of the high threshold required to prevent publicity of decision notices. The statements in a decision notice may not only be embarrassing, but they can also contain information and admissions that may support and impact related proceedings. 

See our parallel proceedings microsite for further insight into the issues that arise when an incident leads to multiple legal proceedings and/or enforcement actions.