References to the Tribunal, publication and service of notices

Part

DEC Decision Making

Chapter

References to the Tribunal, publication and service of notices

Printed on: 05/07/2024

Rulebook at: 01/01/2005

DEC 5

References to the Tribunal, publication and service of notices

DEC 5.1

The Tribunal

01/12/2004

DEC 5.1.1

(1) A person who receives a decision notice or supervisory notice (including a third party who has been given a copy of a decision notice) has the right to refer the FSA's decision to the Tribunal.

(2) The Tribunal is established under Part IX of the Act (Hearings and Appeals) and is governed by Part IX and Schedule 13 to the Act (The Financial Services and Markets Tribunal). The Tribunal is independent of the FSA and appointed by the Lord Chancellor's Department in accordance with the Financial Services and Markets Tribunal Rules 2001 ("the Tribunal rules").

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DEC 5.1.2

Under section 133(1) of the Act (Proceedings: general provisions), any reference to the Tribunal must be made within 28 days of the date on which the decision notice or supervisory notice is given, or within any period prescribed by the Tribunal rules. Under section 133(2) of the Act, the Tribunal rules may allow a reference to be made after the end of the 28 day period.

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DEC 5.1.3

A reference to the Tribunal will be a full rehearing of the matter that gave rise to the decision referred to the Tribunal. On a reference the Tribunal:

(1) must determine what (if any) is the appropriate action for the FSA to take in relation to the matter referred (section 133(4)); and

(2) may consider any evidence relating to the subject matter of the reference, whether or not it was available to the FSA at the time the FSA took its decision.

01/12/2004

DEC 5.1.4

In determining a reference:

(1) made as a result of a decision notice, the Tribunal may not (section 133(6)) direct the FSA to take action which the FSA would not, as a result of section 388(2) of the Act (Decision notices), have had the power to take when giving the decision notice;

(2) made as a result of a supervisory notice, the Tribunal may not (section 133(7)) direct the FSA to take action which would otherwise have required the giving of a decision notice.

01/12/2004

DEC 5.1.5

On determining a reference, the Tribunal:

(1) must (section 133(5)) remit the matter to the FSA with such directions (if any) as the Tribunal considers appropriate for giving effect to its determination; and

(2) may make recommendations as to the FSA's regulating provisions or its procedures.

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DEC 5.1.6

Under section 133(9) of the Act, the FSA must not take any action specified in a decision notice during the period within which a reference may be made to the Tribunal. Nor may it take such action, if the matter is referred, until the reference, and any appeal against the Tribunal's decision, has been finally disposed of.

01/12/2004

DEC 5.1.7

The FSA is required to act in accordance with the determination of, and any direction given by, the Tribunal and an order of the Tribunal will be enforceable as if it were an order of the county court or, in Scotland, as if it were an order of the Court of Session.

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DEC 5.2

Publication

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Publication of final notices and effective supervisory notices

DEC 5.2.1

Section 391(4) and (5) of the Act (Publication) provides that the FSA must publish such information about the matter to which a final notice, or supervisory notice that has taken effect, relates, as it considers appropriate. See also DEC 5.2.3 G.

01/12/2004

Publication of notices of discontinuance

DEC 5.2.2

If the FSA has given a notice of discontinuance, the FSA may, if the person to whom the notice is given consents, publish such information as it considers appropriate about the matter to which the discontinued proceedings related (section 391(2) of the Act). Similarly, section 391(3) of the Act indicates that where a notice of discontinuance has been copied to a person, the FSA may, if the person to whom the notice is copied consents, publish such information as it considers appropriate about the matter to which the discontinued proceedings related, so far as relevant to that person. See also DEC 5.2.3 G.

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No publication if unfair or prejudicial

DEC 5.2.3

Section 391(6) of the Act provides that the FSA may not publish information relating to a final notice, supervisory notice that has taken effect or notice of discontinuance if publication would, in the FSA's opinion, be unfair to the person with respect to whom the action was taken or prejudicial to the interests of consumers.

01/12/2004

Warning and decision notices: no publication

DEC 5.2.4

Section 391(1) of the Act provides that neither the FSA nor any other person to whom a warning notice or decision notice is given or copied may publish the notice or any details concerning it.

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Manner of publication

DEC 5.2.5

Section 391(7) of the Act provides that information which is published may be published in such a manner as the FSA considers appropriate. The FSA will consider the particular circumstances of each case in deciding what manner of publication will be appropriate.

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DEC 5.3

Service of notices by the FSA

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Service of Notices Regulations

DEC 5.3.1

The Financial Services and Markets Act 2000 (Service of Notices) Regulations 2001 (SI 2001/1420) govern service of statutory notices and other notices and documents which must be served by the FSA under the Act.

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Methods of service by the FSA and deemed receipt

DEC 5.3.2

The methods by which the FSA may give a notice under the Regulations and the day on which it is deemed to be received, are set out DEC 5.3.3 G.

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DEC 5.3.3

Methods of service of notices by the FSA

Method

Deemed day of receipt

(1) delivery of the notice to the recipient

not applicable: it is received when delivered

(2) leaving the notice at the recipient's proper address (as defined in the Regulations)

the business day after it is left at that address

(3) posting the notice to that address

if the notice is posted to an address in the United Kingdom, the second business day after posting
if the notice is posted to an address in any EEA State (other than the United Kingdom), the fifth business day after posting

(4) transmitting the notice by fax if the recipient has indicated in writing that he is willing to receive the notice by such means and a follow-up copy is sent by another method by the end of the following business day

the business day after the day on which the document is transmitted

(5) transmitting the notice by any other electronic means of communication, if the recipient has indicated in writing that he is willing to receive the notice by such means

the business day after the day on which the document is transmitted

01/12/2004

DEC 5.3.4

The Regulations also make provision for the service of notices on:

(1) the recipient's nominee;

(2) if the recipient is an appointed representative, on his principal; and

(3) if the recipient is not an individual, to particular persons on its behalf.

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Meaning of "business day"

DEC 5.3.5

In the Regulations and DEC 5.3.3 G, "business day" means any day except Saturday, Sunday or a bank holiday, where "bank holiday" includes Christmas Day and Good Friday.

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