[2025] UKUT 00185 (TCC)

FSMA s 73A is headed “Part 6 Rules”, and begins as follows

“(1)

The FCA may make rules (‘Part 6 rules’) for the purposes of this Part.

(2)

Provisions of Part 6 rules expressed to relate to the official list are referred to in this Part as ‘listing rules’.”

FSMA s 91 is headed “penalties for breach of Part 6 rules”. Part 6 sets out the provisions relating to listing, and begins:

“(1)

If the FCA considers that–

(a)

an issuer of listed securities…

has contravened any provision of listing rules, it may impose on him a penalty of such amount as it considers appropriate.

…

(2)

If, in the case of a contravention by a person referred to in subsection (1) (‘P’)…the FCA considers that another person who was at the material time a director of P was knowingly concerned in the contravention, it may impose upon him a penalty of such amount as it considers appropriate.”

The Authority decided that the Applicants came within FSMA s 91 because they were “knowingly concerned” in the Bank’s breach of LR 1.3.3R.

We were not taken to any case in which courts or tribunals have considered the meaning of the term “knowingly concerned” in FSMA s 91, but the same phrase occurs in other parts of that Act. Those sections include s 382, which is headed “restitution orders” and so far as relevant provides as follows:

“(1)

The court may, on the application of the appropriate regulator…make an order under subsection (2) if it is satisfied that a person has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and

(a)

that profits have accrued to him as a result of the contravention; or

(b)

that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.

(2)

The court may order the person concerned to pay to the regulator concerned such sum as appears to the court to be just having regard–

(a)

in a case within paragraph (a) of subsection (1), to the profits appearing to the court to have accrued;

(b)

in a case within paragraph (b) of that subsection, to the extent of the loss or other adverse effect;

(c)

in a case within both of those paragraphs, to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect.”

Plainly, the Authority is not here seeking a restitution order against the Applicants, but the section is relevant to the parties’ dispute about the meaning of “knowingly concerned”, as we explain below.