Christian Bittar v Financial Conduct Authority
| Jurisdiction | UK Non-devolved |
| Judge | Judge Herrington |
| Neutral Citation | [2017] UKUT 0082 (TCC),[2017] UKUT 0082 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Financial Services,20 February 2017 |
| Date | 20 February 2017 |
| Published date | 20 February 2017 |
[2017] UKUT 0082 (TCC)
Reference number: FS/2015/0006
FINANCIAL SERVICES – third party rights-procedure-whether amendments
to Authority’s Statement of Case should be permitted-Rules 2, 5(3)(c) and
para 4 Sch 3 Tribunal Procedure (Upper Tribunal) Rules 2008
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
CHRISTIAN BITTAR Applicant
- and -
THE FINANCIAL CONDUCT AUTHORITY The Authority
TRIBUNAL:
Judge Timothy Herrington
Sitting in public at The Royal Courts of Justice, Strand, London WC2A 2LL on
11 and 12 January 2017
Andrew Hunter QC and Andrew Scott, Counsel, instructed by K&L Gates LLP,
for the Applicant
Paul Stanley QC, instructed by the Financial Conduct Authority, for the
Authority
© CROWN COPYRIGHT 2017
DECISION
Introduction
1. This decision relates to an application by the Authority for a direction
permitting it to amend its Statement of Case in relation to the reference made by the 5 Applicant (“Mr Bittar”) on 12 May 2015. The reference relates to a decision notice
(“the Decision Notice”) given by the Authority to Deutsche Bank AG (“the Bank”) on
23 April 2015.
2. The Decision Notice notified the Bank that the Authority had decided to impose
on it a financial penalty of £226,800,000 as a result of serious misconduct by the 10 Bank through, amongst other things, its attempted manipulation of two benchmark
interest rates, namely LIBOR and EURIBOR (referred to in this decision together as
“IBOR”) and by exercising improper influence over IBOR submissions. The Decision
Notice was followed by a final notice (“the Final Notice”) on the same day as a
consequence of an agreed settlement between the Bank and the Authority in respect of 15 the matters to which the Decision Notice related.
3. Mr Bittar is a former employee of the bank, holding the position of Manager of
the Money Markets Derivatives (“MMD”) desk in London during the period which is
relevant for the purposes of this decision.
4. Mr Bittar complains that the Authority, in promulgating the Decision Notice 20 and Final Notice, has included reasons which identify him and are prejudicial to him
and which he has had no opportunity to contest. Accordingly, he has referred that
matter to the Tribunal under s 393 (11) of the Financial Services and Markets Act
2000 (“FSMA”).
5. On 10 November 2015 the Tribunal released a decision (cited as [2015] UKUT 25 0602 (TCC) on the preliminary issue as to whether Mr Bittar had been identified in
the relevant sense and manner, as provided in s 394 FSMA (the “Preliminary Issue
Decision”). The preliminary issue was decided in Mr Bittar’s favour, although
consideration of an application by the Authority for permission to appeal against that
decision has been stayed pending the release of the judgment of the Supreme Court on 30 the Authority’s appeal against the judgment of the Court of Appeal in Financial
Conduct Authority v Macris [2015] EWCA Civ 490. In the meantime, pursuant to
directions released on 9 June 2016, the Authority has served its Statement of Case in
respect of this reference, Mr Bittar has served his Reply and the Authority has served
a Rejoinder. 35
6. On 6 January 2017, in accordance with further directions made by the Tribunal,
the Authority applied to the Tribunal for permission to amend its Statement of Case in
the light of the way in which Mr Bittar’s case is pleaded in his Reply. Some of those
amendments the Authority wishes to make have been agreed, but Mr Bittar opposes a
significant number of the amendments and the question as to whether those 40 amendments should be permitted is the subject of this decision.
Background to the reference
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