Powers of the Financial Services Tribunal

Donald Dinnie, Norton Rose Fulbright

Patrick Bracher, Norton Rose Fulbright

Industry role players who have found themselves subject to regulatory action taken by the Prudential Authority (PA) or the Financial Sector Conduct Authority (FSCA) may apply to the Financial Service Tribunal (FST) for reconsideration of that action. Reasons for the decision can be requested within 30 days and the application must be made within 30 days after receiving the reasons, or if no reasons are requested within 60 days after notification of the decision.

The Tribunal is not entitled to interfere with the exercise by the FSCA of its discretion unless it failed to bring an unbiased judgment to bear on the issue.  Or did not act for substantial reasons.  Or exercised its discretion capriciously. Or exercised its discretion upon a wrong Principle.  (See for instance Fern Finance v FSCA FST Case No. A19/2019).

The Tribunal reconsiders the decision based on the documents placed before the regulator when the decision was made.  If the decision of a regulator is set aside the matter is remitted to the regulator for further consideration.  The Tribunal can substitute its own decision in relation to an administrative penalty which is set aside.  Whether the decision is set aside or the application is dismissed, the Tribunal may in exceptional circumstances make a costs order.  The Tribunal’s powers are overridden by any financial sector law that excludes, restricts or qualifies the orders that the Tribunal can make.

The proceedings are conducted with as little formality and technicality and expeditiously as possible and decisions are often made on the documents.  A decision of the Tribunal may be taken on review to the high court under the Promotion of Administrative Justice Act which is a review and not an appeal process.  A decision of a regulator may not be taken on review to the high court without following the Tribunal route first.  A decision of the regulator will not be suspended pending the outcome of the reconsideration application unless the Tribunal so orders.  The FST also deals with debarment.

Reviews are concerned with process.  Appeals are concerned with the result.   Review grounds may overlap with appeal grounds.   A flawed process may impact on the result.

First published by: Financial Institutions Legal Snapshot