David Thomas v The Financial Services Authority
| Jurisdiction | UK Non-devolved |
| Judge | Judge Brice,Judge Bishopp,Member Parsloe |
| Subject Matter | Financial Services,22 September 2004 |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Date | 22 September 2004 |
| Published date | 01 December 2016 |
PERFORMANCE OF REGULATED ACTIVITIES – Respondent’s refusal to
approve performance by Applicant of controlled functions – three preliminary
issues – whether Respondent in breach of time limit in section 61(3) – yes –
whether that made the warning notice and the decision notice void – no -
whether the fact that the Respondent has appointed investigators in respect of
the Applicant are grounds sufficient in themselves for a conclusion that the
Applicant is not a fit and proper person – no – reference not yet determined -
Financial Services and Markets Act 2000 ss 61, 133 and 168
THE FINANCIAL SERVICES AND MARKETS TRIBUNAL
DAVID THOMAS Applicant
- and -
THE FINANCIAL SERVICES AUTHORITY Respondent
Tribunal: DR A N BRICE (Chairman)
COLIN BISHOPP
JOHN PARSLOE
Sitting in London on 22 and 23 July 2004
Michael Blair QC for the Applicant
David Mayhew of Counsel for the Respondent
© CROWN COPYRIGHT 2004
PRELIMINARY DECISION AND DIRECTIONS
The preliminary issues
1. Mr David Thomas (the Applicant) referred to the Tribunal a decision notice
issued by the Respondent on 16 January 2004 which refused an application by Brook
Partners Limited. The application was made under section 60 of the Financial Services
and Markets Act 2000 (the 2000 Act) and applied for the Respondent's approval of the
performance by the Applicant of controlled functions for Brook Partners Limited. The
reason for the refusal was that the Respondent was not satisfied that the Applicant was a
fit and proper person to perform those functions within the meaning of section 61(1) of
the 2000 Act.
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2. On 18 June 2004 there was a hearing for directions when, under the provisions of
Rule 13 of the Financial Services and Markets Tribunal Rules 2001 SI 2002 No. 2476
(the Rules), the Tribunal directed that three issues be determined at a preliminary
hearing. Those three issues may be summarised as:
(1) whether the Respondent was in breach of the time limit of three months in
section 61(3) within which it had to determine either to grant the application of
Brook Partners Limited or to give a warning notice;
(2) if the Respondent was in breach of that time limit, what consequences
followed; and
(3) whether the fact that the Respondent had appointed investigators under
section 168 of the 2000 Act to conduct an investigation on its behalf in respect of
the Applicant meant that the Respondent could not be satisfied (within the
meaning of section 61(1)) that the Applicant was a fit and proper person to
perform the controlled functions.
3. The first two issues were proposed by the Applicant and the third was proposed
by the Respondent. The Tribunal left it to the parties to agree the final text of the
preliminary issues. That final text (as amended at the preliminary hearing) is stated below
within the context of the consideration of each issue.
The legislation
4. Three main strands of legislation are relevant to a consideration of the
preliminary issues, namely: the legislation relating to the approval by the Respondent of
the arrangement between Brook Partners Limited and the Applicant; the legislation
relating to the appointment of investigators; and the legislation relating to the jurisdiction
of the Tribunal. All references in this Preliminary Decision to sections are to sections in
the 2000 Act unless otherwise stated.
The approval
5. Part V of the 2000 Act (sections 56 to 71) contains the provisions relating to
regulated activities. Sections 59 to 63 comprise a group of sections which contains the
provisions about the approval by the Respondent of the performance by a person of a
controlled function under an arrangement entered into by an authorised person.
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