[2025] UKUT 00185 (TCC)

In Carrimjee v FCA [2015] UKUT 0079 (TCC) at [15], the Tribunal (Judge Herrington, Mr Bottriell and Ms O’Neill) held that the Tribunal is not bound by the Authority's policy when making an assessment of a financial penalty, but that the Tribunal will pay the policy due regard when carrying out its overriding objective of doing justice between the parties, and in so doing will look at all the circumstances of the case.

In FCA v Da Vinci Invest Ltd and others [2015] EWHC 2401 at [201], Snowden J (as he then was) said in the context of the imposition of a penalty for market abuse:

“It was the FCA's submission, and I accept, that in determining any penalty under section 129, the starting point for the court should be to consider the relevant DEPP penalty framework that was in existence at the time of commission of the market abuse in question. To do otherwise would risk introducing an inequality of treatment of defendants depending upon whether the proceedings were taken against them under the regulatory route or the court route and depending upon how long the proceedings had taken to come to a conclusion. By the same token, however, in common with the Upper Tribunal, the court is not bound by that framework, or by the FCA's view of how it should be applied. But if the court intends to depart from the framework in a particular case, it should explain why it considers it appropriate to do so.”

This case concerns not only the parts of the DEPP which relate to penalties but also those which relate to public censure, but we consider that our approach should be the same as that set out in Carrimjee and Da Vinci, with which we respectfully agree.

The Applicants did not invite us to depart from the principles set out in the DEPP and although we recognised that we are not bound by it, we have not identified any reason to depart from the approach it sets out.

We first set out the parts of the DEPP which are relevant to deciding whether to impose a censure or a penalty, followed by the parties’ submissions and our view.