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

391 Publication.

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(1A) A person to whom a decision notice is given or copied may not publish the notice or any details concerning it unless the regulator giving the notice has published the notice or those details.

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The regulator giving a decision or final notice must publish such information about the matter to which the notice relates as it considers appropriate.

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The FCA may not publish information under this section if, in its opinion, publication of the information would be—

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Information is to be published under this section in such manner as the regulator considers appropriate.

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Register of references and decisions

3.—(1) The Upper Tribunal must keep a register of references and decisions in financial services

cases and wholesale energy cases.

hours.

it is satisfied that it is necessary to do so having regard in particular to—

of the Prudential Regulation Authority, any prejudice to the interests of consumers that

might otherwise result;

detriment to the stability of the UK financial system;

prejudice to the safety and soundness of persons authorised by it, or where section 2C of

the 2000 Act applies, any prejudice to securing the appropriate degree of protection for

policy holders; or

detriment to the stability of the wholesale energy market as defined in those Regulations.

in the register; and

register, as the case may be.

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Use of documents and information

14.—(1) The Upper Tribunal may make an order prohibiting the disclosure or publication of—

any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified.

The Upper Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

the Upper Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

the Upper Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

If a party (“the first party”) considers that the Upper Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (“the second party”), the first party must—

exclude the relevant document or information from any documents that will be provided to the second party; and

provide to the Upper Tribunal the excluded document or information, and the reason for its exclusion, so that the Upper Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

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If the Upper Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Upper Tribunal may give a direction that the documents or information be disclosed to that representative if the Upper Tribunal is satisfied that—

Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Upper Tribunal's consent.

Unless the Upper Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public.

The Upper Tribunal may, on its own initiative or on the application of a party, give a direction that certain documents or information must or may be disclosed to the Upper Tribunal on the basis that the Upper Tribunal will not disclose such documents or information to other persons, or specified other persons.

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A party making an application for a direction under paragraph (8) may withhold the relevant documents or information from other parties until the Upper Tribunal has granted or refused the application.

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The Upper Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2) or (8) or the duty imposed by paragraph (10).

By s.391 of FSMA, there is a presumption that publicity will be the norm and this is equally the case with decision notices as it is with final notices although regard has to be paid to the fact that a decision notice that is being challenged in the UT is necessarily provisional.

The exercise of the power to prohibit disclosure or publication under Rule 14(1) of the Procedure Rules, and by analogy the exercise of the power under para.3(3) of Sch.3 to the Rules, is a matter of judicial discretion to be considered against the context of this presumption.

The discretion should be exercised taking into account all relevant factors, ignoring irrelevant factors, and giving effect to the overriding objective in Rule 2, which requires the UT to deal with cases fairly and justly. The exercise of this discretion involves carrying out a balancing exercise between those factors that tend towards publication and those that would tend against.

The principle of open justice is applied such that the starting point is a presumption in favour of publication.

The burden is on the applicant to show a real need for privacy by demonstrating unfairness.

To discharge this burden, the applicant must produce “cogent evidence of how unfairness may arise and how it could suffer a disproportionate level of damage” if publication were not prohibited.

A “ritualistic assertion” of unfairness is unlikely to be sufficient. Embarrassment to an applicant from publicity or that it may draw the applicant’s clients and others to ask questions that the applicant would prefer not to answer does not qualify as unfairness.

If it is established by cogent evidence that publication of a Decision Notice would result in the destruction of, or severe damage to, a person’s livelihood, it would be unfair to publish that Notice.

A “possibility” of severe damage or destruction is not enough; there must be a “significant likelihood” of such damage or destruction occurring. An applicant is not required to show that damage or destruction is an inevitable consequence.

A risk or damage to reputation is unlikely to be sufficient to justify a prohibition on 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.