Moneybrain Limited v The Financial Conduct Authority [2022] UKUT 00308 (TCC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Anne Redston |
| Neutral Citation | [2022] UKUT 00308 (TCC) |
| Subject Matter | 18 November 2022 |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Published date | 07 December 2022 |
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Neutral Citation: [2022] UKUT 00308 (TCC)
UT (Tax & Chancery) Case Number: UT-2022-000065
Upper Tribunal
(Tax and Chancery Chamber) Decided on the papers
PROCEDURE – Decision Notice issued by the Financial Conduct Authority – hearing in
public to decide Appellant’s application to suspend effect of the Decision Notice – judgment
handed down – subsequent application for delay to publication on the Tribunal’s website and
the National Archives – held, decision already “public” because handed down – whether the
Tribunal should nevertheless delay publication – open justice – interlocutory nature of
judgment – previous Tribunal case law distinguished in part – evidence of damage considered
– application refused
Decided on the papers
Judgment given on 18 November 2022
Before
DEPUTY UPPER TRIBUNAL JUDGE ANNE REDSTON
Between
MONEYBRAIN LIMITED
(PRIVACY APPLICATION) Applicant
and
THE FINANCIAL CONDUCT AUTHORITY
Respondent
Representation:
For the Applicant: Withers LLP, instructed by the Applicant, with further submissions from
Mr Jason Mansell of Counsel, instructed by Withers LLP
For the Respondent: Mr Adam Temple of Counsel, instructed by the Financial Conduct
Authority
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DECISION
INTRODUCTION AND SUMMARY
1. On 22 September 2022, I handed down my judgment in Moneybrain v the Financial
Conduct Authority [2022] UKUT 00257 (TCC) (“the Judgment”). A few hours later, before
the Judgment had been published on the Tribunal website or on the National Archives site,
Moneybrain Limited (“Moneybrain”) made an application for publication of the Judgment be
delayed (“the Privacy Application”).
2. I refused the Privacy Application because:
(1) as the Judgment had been handed down to the parties in final form, it was already
in the public domain;
(2) the hearing had been in public; and
(3) having carried out a balancing exercise, taking into account all relevant factors, it
was not in the interest of justice to delay publishing the Judgment.
3. As a result, the Judgment has been published at the same time as this decision, along
with a third decision refusing Moneybrain’s recusal application, see Moneybrain (Recusal
Application) v the Financial Conduct Authority [2022] UKUT 00269 (TCC).
Summary
4. Moneybrain had created a type of cryptocurrency known as BiPS Tokens (“Tokens”).
On 29 June 2020, Moneybrain applied to the Financial Conduct Authority (“the Authority”)
for registration as a cryptoasset exchange provider and a custodian wallet provider pursuant
to Regulation 57 of the Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017 (“the MLRs”).
5. On 30 May 2022, the Authority refused Moneybrain’s application by way of a decision
notice (“the Decision Notice”) because it decided Moneybrain had deliberately and recklessly
published on its websites misleading marketing and promotional material relating to the
Tokens, and so lacked probity, and that in consequence Moneybrain was not a “fit and proper
person” within the meaning of Regulation 58A of the MLRs. At the same time and for the
same reasons, the Authority decided that the Decision Notice was to have immediate effect.
6. On 24 June 2022, Moneybrain made a reference to the Tribunal (“the Reference”) by
way of an appeal against the Decision Notice. In the Reference, Moneybrain also applied for
a direction that the effect of the Decision Notice be suspended pending the determination of
the Reference (“the Suspension Application”). In other words, Moneybrain applied to be
allowed to continue carrying out crypto-asset activities as if the Decision Notice had not been
made, pending the outcome of the hearing of the Reference.
7. A hearing of the Suspension Application took place before me on 23 August 2022. No
application was made for that hearing to be in private. Rule 5(5) of the Tribunal Procedure
(Upper Tribunal) Rules 2008 (“the Tribunal Rules”) provides that when hearing a suspension
application, the Tribunal must decide whether the public (consumers, investors or otherwise)
will be protected if the applicant were to be allowed to resume operations pending the hearing
of its reference. Having considered the evidence and submissions and applied the relevant
law, I refused the Suspension Application, and drafted the Judgment.
8. On 22 September 2022, I emailed the Judgment to the Tribunal clerk with instructions
to issue it to the parties and arrange for it to be published on the Tribunal website and on the
National Archives website. The Tribunal clerk issued the Judgment to the parties.
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