When determining whether, for the purposes of section 393 of the Financial Services and Markets Act 2000, “matters” in a notice issued by the Financial Conduct Authority as against a bank had “identified” a person who was not directly named, a simple objective test was to be applied.

The Court of Appeal so stated, inter alia, when dismissing the appeal of the Financial Conduct Authority (“the Authority”) from a decision of Upper Tribunal Judge Herrington, sitting in the Upper Tribunal (Tax and Chancery Chamber) on 10 April 2014, holding, in the context of a preliminary issue, that Achilles Macris had been “identified” in certain notices given by the authority on 18 September 2013 to JP Morgan Bank, NA. The warning, decision and final notices notified the firm that the Authority had decided to impose on it a penalty of £137,610,000 as a result of large losses incurred in a trading portfolio managed by the firm for its owner, JP Morgan Chase & Co. The issue was whether, for the purposes of section 393 of the Financial Services and Markets Act 2000, the notices identified Mr Macris, not being directly named, in which case the Authority ought to have given him third party rights under section 393 of the Act. Mr Macris, who had a management role in the Chief Investment Office operated by JP Morgan Bank, NA, had referred the matter to the tribunal under section 393(11).

Section 393(1) of the Financial Services and Markets Act 2000 provides: “If any of the reasons contained in a warning notice to which this section applies relates to a mattter which— (a) identifies a person (‘the third party’) … other than the person to whom the notice is given, and (b) in the opinion of the regulator giving the notice is prejudicial to the third party, a copy of the notice must be given to the third party.”

GLOSTER LJ said that there was no reason, subject to a proviso below, why the correct approach to the question whether a “matter” “identifies” a person for the purposes of section 393 of the Financial Services and Markets Act 2000 should be any different in principle from the approach to the question whether an allegedly defamatory statement, which referred 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), identified a claimant in defamation proceedings. The word “identifies” within section 393 was not required to have any special or limited meaning. It was clear that it had to be the “matter” or “matters” referred to in the relevant notice which “identifies” the third party. But, as in the defamation cases, that did not mean that the third party had to be mentioned by name. As long as the relevant description in the “matters” (whether by reference to an office, a job description, or simply “Mr X”) could properly be construed as a reference to an individual person, ie a “he” or a “she” (or, if a corporate entity, an “it”), then it seemed that the correct test for identification was the simple objective one applied in the defamation cases, adapted for the purposes of this case, viz: “Are the words used in the ‘matters’ such as would reasonably in the circumstances lead persons acquainted with the claimant/third party, or who operate in his area of the financial services industry, and therefore would have the requisite specialist knowledge of the relevant circumstances, to believe as at the date of the promulgation of the notice that he is a person prejudicially affected by matters stated in the reasons contained in the notice?” (See also Knupffer v London Express Newpaper Ltd [1944] AC 116, 119, per Viscount Simon LC.) The one proviso to the approach that an analogy could be drawn with that in defamation proceedings was 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 related, the approach in the type of case, in the defamation context, where there might, by implication, be a defamatory reference to a claimant, simply as a result of what was generally said in a statement, notwithstanding that there was no separate reference to a specific person in the alleged defamatory statement, was not sufficient in the context of section 393 to amount to identification. The Upper Tribunal judge had applied the wrong test to the facts of the instant case, in particular since he had not related the second stage of the tests he articulated to what, objectively, persons acquainted with the claimant/third party, or who operated in his area in the financial services industry, might have reasonably known as at the date of the promulgation of the notice. There could not be ex post facto unlimited reference to external material to identify the third party. However, the judge had been none the less right, if for the wrong reasons, in his conclusion that “matters” in the notice identified Mr Macris.

PATTEN LJ agreed.

LONGMORE LJ gave a concurring judgment.