UT-2023-000032 - [2024] UKUT 00265 (TCC)

Before turning to make our findings of fact and reach our conclusions, we should remind ourselves of three important points. Firstly, the scope of the matter referred. As set out at [15], the matter which has been referred to us is the question whether it was reasonable for the Authority to conclude that the Applicant did not meet the threshold conditions for authorisation. Mr Fatchett made a great deal of what he said were shortcomings in the investigation by Tenet and of the Authority’s failure to follow up on Mr Ashraf’s criticisms of Tenet’s investigation. However, as we observed at [12], this is not an appeal against the Authority’s Decision, still less is it some form of judicial review of the process the Authority went through to reach its Decision. The matter we are concerned with is the question whether it is open to the Authority to conclude that the Applicant did not meet the threshold conditions for authorisation. That question is to be considered in the light of all the evidence and arguments before the Tribunal, potentially including new material, which is why the matter referred is not limited to being an appeal against or a review of the Decision. We should also note that Mr Ashraf is clearly very aggrieved by Tenet’s treatment of him. It is no part of our role to consider whether he is right to feel aggrieved, or whether he has any claims against Tenet arising out of the way they dealt with him. It does not, however, follow that any shortcomings in, or valid criticisms of, Tenet’s investigation or the Authority’s processes are irrelevant, as they may impact on how we evaluate the evidence we have in front of us. But they are neither the matter before us nor, of themselves, determinative of that matter.

Secondly, the question is whether the Decision was one which was reasonably open to the Authority. The question is not whether we agree with the Decision or whether, still acting reasonably, we or the Authority could have reached a different decision.

Finally, we remind ourselves of what it was that the Authority decided. The Authority decided that it was not satisfied that the Applicant, if authorised, would satisfy and continue to satisfy the threshold conditions in section 55B(3) FSMA. The Authority did not decide in terms that Mr Ashraf was not a fit and proper person to carry on any regulated activities in any circumstances at all and impose a prohibition order on him. Essentially, the Authority’s decision was that it was not appropriate for Mr Ashraf to carry on regulated activities effectively unsupervised.