Mr Andrew Lawrence Greystoke v The Financial Conduct Authority
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 28 April 2020 |
| Neutral Citation | [2020] EWHC 1011 (QB) |
| Date | 28 April 2020 |
| Docket Number | Case No: QB-2019-001072 |
| Court | Queen's Bench Division |
[2020] EWHC 1011 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: QB-2019-001072
Sara Mansoori (instructed by Ronald Fletcher Baker LLP) for the Claimant/Respondent
Jen Coyne (instructed by The Financial Conduct Authority) for the Defendant/Applicant
Hearing date: 23 April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Steyn DBE
Introduction
Mr Andrew Greystoke (“the Respondent”) has brought a Part 8 Claim against the Financial Conduct Authority (“the FCA”), pursuant to the General Data Protection Regulation 2018 (EU) 2016/679 (“the GDPR”). The Respondent alleges that the FCA breached Article 15 of the GDPR by its response to his subject access request for all the personal data the FCA holds on him. The trial is listed for a two day hearing on 5 and 6 May 2020.
The current application is for protective measures to prevent certain confidential information (“the confidential information”) being made public in these proceedings. The application has arisen because the third witness statement of Ms Anila Bedi, filed on behalf of the FCA on 23 January 2020, refers to the confidential information. Consequently, on 31 January 2020, the FCA filed the application notice which is the subject of this hearing.
The order originally sought by the FCA put forward various alternative measures. Following exchanges between the parties, the FCA's draft order has been revised. In short, the FCA now seeks an order that:
i) Pursuant to CPR 39.2(3)(c) and/or (g), the court shall sit in private for any part of the trial during which the confidential material is addressed;
ii) Certain documents which contain details of the confidential information will not be provided to any non-party, or open to inspection by any third parties during the course of the trial, without further order of the court; and
iii) Any application by a non-party for copies of any such documents shall be determined at an oral hearing on notice to the parties, and the parties shall be provided with an opportunity to be heard before the application is determined.
The Respondent has expressed concerns as to the limited relevance of the confidential information and the lack of proportionality of the FCA's approach in putting the confidential information before the court. Nevertheless, the Respondent has not sought a ruling that such evidence is inadmissible. Rather, the Respondent supports the FCA's application for measures to be put in place to protect the confidential information.
The primary issue is whether the order sought by the parties for part of the hearing to be private and for there to be restrictions on access to hearing papers is strictly necessary and should be ordered. The parties were largely in agreement as to the terms of the order sought, but they recognised that litigants cannot waive the public's right to open justice.
The only issues between the parties were (i) whether it should be expressly ordered that there should be no reporting of that part of the hearing which they submit should be held in private and (ii) whether costs should be in the case or reserved. I made an order for costs in the case and it is unnecessary to address that issue in this judgment.
The nature of the hearing of the application
In accordance with the Protocol Regarding Remote Hearings dated 26 March 2020 and Practice Direction 51Y, so as to avoid the risk of transmission of COVID-19, this hearing took place by telephone. Members of the press and the public were able to obtain access to this hearing, and so it began as a public hearing in accordance with paragraph 3 of PD51Y.
At the outset of the hearing, Ms Sara Mansoori, Counsel for the Respondent – supported by Ms Jen Coyne, Counsel for the Applicant — sought an order that the hearing of this application should be in private pursuant to CPR 39.2(3)(a) and/or (c) and/or (g) which provides:
“A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(a) publicity would defeat the object of the hearing;
…
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
…
(g) the court for any other reason considers it to be necessary to secure the proper administration of justice.”
Having heard open argument, I gave an ex tempore public ruling explaining the reasons I was satisfied that it was necessary to hear this application in private to secure the administration of justice pursuant to CPR 39.2(3)(a), (c) and (g).
I explored with Counsel whether it would be sufficient if I were to make a restrictive reporting order in respect of this hearing, rather than order that the hearing be held in private. However, the power in s.11 of the Contempt of Court Act 1981 to prohibit the publication of a name or other matter only applies where the court (having the power to do so) allows that name or other matter to be withheld from the public in proceedings before the court. There are hearings where such withholding can be effected without any need for any part of the hearing to be private, essentially by means of the court directing that no explicit reference to the name or confidential matter should be made by the parties in oral submissions. However, the very purpose of this hearing was to consider the necessity for protective measures to be put in place for the trial. It would have been impossible for Counsel to address the reasons why they sought to have part of the trial heard in private and restrictions on disclosure of certain documents to non-parties, without disclosing the nature of the confidential matter.
I concluded that the object of the hearing would have been defeated if the application were heard in public and, accordingly, the hearing continued in private pursuant to CPR 39.2(3)(a), (c) and (g).
The form of this judgment
Following argument, I informed the parties that I would grant the order sought, subject to certain amendments. I indicated that I would give my reasons in writing in order to ensure that, as far as possible, those reasons were given in a publicly available judgment.
It is not possible to explain my reasons fully in a public judgment as to do so would defeat the object of the order that I have made. Accordingly, this judgment consists of a publicly available part and a confidential annexe. The confidential annexe contains the part of my reasoning which cannot be made publicly available without disclosing the confidential information.
Factual Background
In short, the background to the claim is that on 28 May 2010 the FCA (through its predecessor body, the Financial Services Authority (“FSA”)) imposed a Prohibition Order on the Respondent under the Financial Services and Markets Act 2000. The prohibition order and a fine of £200,000 were upheld by the Financial Services and Markets Tribunal. The Respondent was refused permission to appeal to the Court of Appeal.
Under the Prohibition Order, the Respondent is prohibited from performing any function in relation to any regulated activity carried on by an authorised person or exempt person or exempt professional firm. It was imposed because the Respondent had approved financial promotions on behalf of certain Spanish boiler rooms and as a result a number of UK consumers lost a significant sum of money. The FSA found that the Respondent had acted recklessly and without integrity in breach of Principle 1 of the FSA's Statements of Principles for Approved Persons and was knowingly concerned in contraventions by his law firm, Atlantic Law LLP (also regulated by the FSA), of the FSA's Conduct of Business sourcebook rules.
The FCA may revoke or vary a prohibition order under section 56(7) of the Financial Services and Markets Act 2000. Since December 2016, the Respondent has applied on several occasions for the Prohibition Order to be revoked, but on each occasion he has chosen (as he is entitled to do) to withdraw the application before it has been finally determined.
On 26 March 2019, the Respondent filed a claim seeking an order
“that the Defendant provides him with access to his personal data pursuant to Article 15 of [the GDPR] as requested in his letters dated 6 June 2018, 17 July 2018 and 8 January 2019 and pays him his costs of this claim. The Defendant has confirmed that it holds the Claimant's personal data but has refused to provide the Claimant access to any of it or provide...
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