Upper Tribunal Tax and Chancery Chamber

UT/2023/37 - [2024] UKUT 00229 (TCC)

Fecha: 05-Ago-2024

Further observations

Further observations

126.

We make some further observations.

127.

First – the Tribunal has no jurisdiction to require the Authority to remove or amend the consumer warning. This was addressed by Judge Herrington in his decision released on 12 July 2023. The jurisdiction of the Tribunal is confined to the particular decisions referred to in the Financial Services and Markets Act 2000 which the legislation says may be referred to the Tribunal. The issue of a consumer warning is not a decision referred to in that legislation as being a decision that may be referred to the Tribunal, and we therefore have no jurisdiction to require the Authority to remove or amend it.

128.

Secondly, Promethean made an application on 23 April 2024 for the admission of further evidence and submissions. The Authority filed its response on 7 May 2024, and Mr Maddison filed a reply on 13 May 2024. The new evidence was:

(a)

screenshots from the Register. The Register now includes a warning that the Financial Ombudsman Service and the Financial Services Compensation Scheme are unlikely to consider complaints relating to the approval of financial promotions. These changes are consequential on amendments made in September 2023 to s21 FSMA which came into effect on 7 February 2024. We find that whether the Financial Ombudsman Service or the Financial Services Compensation Scheme are likely to consider complaints about authorisations of financial promotions is irrelevant to the issues before us, and the new regime post-dates the matters the Second Supervisory Notice addressed. In any event, there is nothing in the new regime that legitimises the registration of trading names that are not bone fide trading names used by the authorised firm itself.

(b)

correspondence between the Authority and Promethean after the end of the hearing of this reference. The correspondence related to the ownership and content of a website that Promethean used for its unregulated activities. The website was not referred to in any of the correspondence leading up to the issue of the Second Supervisory Notice and was not included on the Register as a trading name of Promethean. We find that this correspondence has no bearing on any of the issues before us.

(c)

documents relating to the Authority’s recent consultation on whether it should make a public announcement when it opens a statutory enforcement investigation. The documents are the consultation paper (CP24/2) and a letter to the Authority from the House of Lords Financial Services Regulation Committee dated 18 April 2024. The Authority submits that its proposals to publicly announce the opening of enforcement investigations is not relevant to the Authority’s separate practice of publishing of consumer warnings in appropriate cases. But in any event, we find that the Authority’s proposals have no relevance to this reference. The Second Supervisory Notice is a supervisory notice, not an enforcement notice, and is issued following a different procedure.

129.

We find that nothing in the new evidence is relevant to the issues before us. We therefore dismiss Promethean’s application and decline to admit the new evidence.