Upper Tribunal Tax and Chancery Chamber

UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

Fecha: 05-Nov-2024

The fact that some information concerning the subject matter of a reference is already in the public domain is a factor which tends in favour of publication

The fact that some information concerning the subject matter of a reference is already in the public domain is a factor which tends in favour of publication

73.

The Tribunal further takes into account the fact that there is already information concerning the subject matter of the Applicant’s reference which is already in the public domain and this is a factor which tends in favour of publication in its own right.

74.

Furthermore, the Applicant must have been aware of some of such publications or at least that the publication was pending as she has previously engaged with some reporters and is quoted as responding to them in some of the articles published, even if she did not read the articles or know for sure that they had been published. She has given quotes to at least one reporter which she must reasonably have believed might end up in the public domain. Those quotes are consistent with her case – she denies any wrongdoing or misconduct.

75.

This however undermines the further suggestion that publication of the Decision Notices or relevant information would be likely to cause the Applicant significant psychological harm. Even if the nature of what has previously been published is qualitatively different from that contained in the Decision Notice, there is no reliable evidence that the previous publicity surrounding allegations similar to those in the Decision Notice and her knowledge that the allegations have been or may be published has caused the Applicant additional psychological harm beyond the effect of the Authority’s investigation upon her. This undermines the argument that that publication of the Decision Notices and relevant information would be likely to psychologically harm her.

76.

Information concerning the allegations against the Applicant which are made by the Authority in the Decision Notice have already appeared in publications as well-known as the Financial Times and Citywire. Those publications refer to allegations or statements that:

The Applicant’s case was an example of “alarm bells about the quality of advice”, with the Financial Times on 26 October 2017 referring to the Applicant’s website having described the market as “lucrative” and saying ‘“we look for a reason to transfer, rather than a reason not to”. The company says this statement had been removed from its website’ [HB/29/318].

The Applicant has made statements to the press about the Authority’s intervention at her firm (see for example ‘Citywire’ dated 18 September 2018 which attributes various statements to the Applicant [HB/30/321]):

“The largest creditors for Heather Dunne Consulting will be the company's professional indemnity insurer (which will receive a refund from the policy cancellation), its accountant and two external loans which Dunne has personal guarantees on.

‘I personally am not walking away from any debt, I am taking a significant amount of debt on,’ she said.

…

The pension transfer outsourcing business HD IFA was an appointed representative of Financial Solutions Midhurst Limited until June of this year.

Dunne said in March 2018, the FCA gave HD IFA permissions to start trading again. However prior to her starting the pension transfer business again, Dunne's principal Financial Solutions Midhurst Limited de-registered it in June.

This means HD IFA is now trying to find another principal or go directly authorised with the regulator.

Currently its status on the FCA register says: ‘This is an AR that is no longer an agent of an authorised firm.’

Dunne said she is also considering putting the sole trader HD IFA into cessation.

According to Dunne HD IFA is currently facing 10 claims over one advice firm which it did DB transfer advice for in 2012. This adviser, which has since closed down, was putting clients into unregulated investments, she said, after HD IFA provided the DB transfer advice.

‘The nearest we came to non-regulated [investments] was that adviser,’ she said. ‘To me that was their

advice and not mine.’

The outcome of these claims remains uncertain however Dunne indicated she will not walk away from any liabilities.”

In 2019 she was also contacted for comment, which she declined to make, in relation to an article published by Professional Adviser [HB/26/347]:

“Heather Dunne IFA stopped carrying out pension transfer business in July 2017 following scrutiny from the Financial Conduct Authority over defined benefit (DB) transfers. The following year, it was announced that Dunne would re-enter the market as Heather Dunne Consulting.

However, in September 2018, that firm entered liquidation after its principal restricted pension transfer permissions. FSML, meanwhile, has filed for voluntary liquidation, according to Companies House.

Professional Adviser has contacted Heather Dunne IFA, Heather Dunne Consulting and FSML for comment.”

The Authority had ordered the Applicant’s firm to stop providing advice on pension transfers (see for example ‘PA Advisor’ article dated 7 July 2017, containing a quote from Mr Fenech [HB/25/306] and ‘Citywire’ article dated 20 July 2017: “New Model Adviser previously revealed that … Chichester-based Financial Solutions Midhurst (a principal of Heather Dunne IFA) have agreed to suspend DB transfer advice work…” [HB/26/310]).

The Financial Ombudsman Service (“FOS”) have upheld complaints about advice given by the Applicant’s firm (see Citywire article dated 16 November 2021 which noted that “The 13 recently upheld FOS complaints relate to advice given by specialist pensions firm Heather Dunne IFA (HDIFA)” [HB/34/362]).

The Applicant’s advice was also criticised in a published FOS decision, dated 6 September 2019 [HB/31/323]. In that decision, the FOS decided that if the Applicant had advised correctly, she “ought to have unequivocally advised against” the relevant pension transfer (see also a second example at [HB/31/326]).

77.

For the reasons set out above, the Tribunal is not satisfied that the Applicant’s evidence in support of the Privacy Applications is cogent nor has she demonstrated that publication of the relevant information would cause a significant likelihood or substantial risk of harm to her. Nonetheless, the Tribunal will continue to keep under review the impact of proceedings upon her mental health and will continue to offer reasonable adjustments so as to ensure she is fairly able to participate in proceedings. It will also reconsider or review any decision taken to date in light of any change of circumstances or later cogent evidence provided.