The BlueCrest decision: implications for contentious regulatory strategy
Overturning the Upper Tribunal, the Court of Appeal in its BlueCrest decision re-confirmed the FCA’s broad discretion to impose requirements on firms, including to provide redress unconstrained by the need to show loss, breach of duty, causation or actionability. This is a potentially significant development given the regulator has already signalled an increased willingness to use its intervention powers to prevent customer harm.
Also, the Court of Appeal set out a new test for establishing the ability of the FCA to amend its case before the Upper Tribunal (“UT”). The new test is broad and leaves investigation subjects with greater uncertainty regarding the extent to which the case they have to meet will change (potentially significantly) in the UT post-referral.
In this webinar, we went beyond our note on the decision. We explored the important and significant strategic consequences for firms the subject of FCA and PRA enforcement investigations and interventions. This included the implications for:
- Assisting the regulator throughout its investigation.
- Negotiating the terms of redress schemes.
- Managing the risk of other assertive supervisory interventions.
- Agreeing – or challenging – interventions and enforcement action.