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Prevention or punishment?

Andrew Henderson examines a recent case which tested the FSA’s powers of prohibition

24 October 2003

In R (Davies) v Financial Services Authority [2003] EWCA Civ 1128, the claimants were registered executives and employees of Brandeis (Brokers) Ltd, a ring-dealing member of the London Metal Exchange. Disciplinary proceedings against them by the Securities and Futures Authority were discontinued because the Financial Services Act 1986 was superseded by the Financial Services and Markets Act 2000 (FSMA), and the SFA replaced by the FSA. The proceedings were time-barred by s 66(4) FSMA, which prevents the FSA from bringing disciplinary proceedings against an individual more than two years after the FSA became aware of his misconduct. Section 56 FSMA, however, gives the FSA the power to bar an individual from working in the financial services industry where it appears to the FSA that s/he is not fit and proper. Relying on these powers, the FSA issued the claimants with ‘warning notices’ – a preliminary notice which sets out the action the FSA’s Regulatory Decisions Comm...

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