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FCA "identified" Respondent in Notices

In Financial Conduct Authority v Macris [2015] EWCA 490 the Court of Appeal heard an appeal by the Financial Conduct Authority [FCA] against a decision that notices served by it had identified the Respondent and accordingly he ought to have been served with it. The central issue was whether the Respondent was "identified" within the notices. Macris was employed by JP Morgan Chase Bank who were given a large financial penalty because of large losses sustained in a trading portfolio. Mr Macris contended that the Notices had been critical of him personally and accordingly he ought to have been served with them so he could contest the contents. The Upper Tribunal agreed with him and so ultimately did the Court of Appeal with Lady Justice Gloster giving the lead judgment. It was the FCA's contention that the Upper Tribunal got it wrong and that Macris had not been "identified" in the sense envisaged by the qualifying provision in section 393 Financial Services and Markets Act 2000. Gloster LJ said: "in my judgment, subject to one important exception, which I discuss below, there is no reason why the approach to determining the question whether a "matter" "identifies" a person for the purposes of section 393 of FSMA should be any different in principle from the approach to the question whether an allegedly defamatory statement, which refers to an individual person, whether, for example, by his office, or by the first and last letter of his name, or by means of a description of his status or otherwise (for example, by a pseudonym) identifies a claimant in defamation proceedings". She went on to say "my one proviso to the approach that an analogy can be drawn with that in defamation proceedings is...that given the requirement in the statutory language of section 393 of there having to be a specific reference to a "person" in the "matter" to which the reasons relate, the approach in the type of case, in the defamation context, where there may, by implication, be a defamatory reference to a claimant, simply as a result of what is generally said in a statement, notwithstanding that there is no separate reference to a specific person in the alleged defamatory statement, is not sufficient in the context of section 393 to amount of identification". However, on the facts of this case Mr Macris had been so identified and the appeal was dismissed.


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