Recent cases
Financial Solutions (Euro) Ltd v The Financial Conduct Authority, [2020] UKUT 0243 (TCC), 5 August 2020
Successful application for costs against the FCA - flawed cancellation of Part 4A permission - FSMA 2000
The Upper Tribunal (Tax and Chancery Chamber) (Judge Timothy Herrington) has published a decision directing the FCA to pay Financial Solutions (Euro) Ltd (FSE) the costs it incurred in relation to proceedings from its reference to the Tribunal in June 2019. FSE made the application for costs following the Tribunal’s finding in April 2020 that the FCA’s decision to cancel its Part 4A permission under section 55J of FSMA 2000, following alleged failures to maintain compliant professional indemnity insurance (PII) and pay fees and levies to the FCA, was flawed.
In its application, FSE argued that it was entitled to its costs under the Tribunal Procedure (Upper Tribunal) Rules 2008 on the grounds that: (i) the Regulatory Decisions Committee’s decision to cancel FSE’s Part 4A permission (as set out in the FCA’s Decision Notice) had been unreasonable; and (ii) the FCA had acted unreasonably in bringing, defending or conducting the proceedings on FSE’s reference.
The Tribunal concluded that it had jurisdiction to make a costs order in favour of FSE on both grounds and that the unreasonableness of the FCA’s decision to cancel FSE’s Part 4A permission and its decision to defend the proceedings on the basis of that decision went to the heart of the matters to be determined on the reference. It directed the FCA to pay FSE approximately £20,000 in costs.
Financial Solutions (Euro) Ltd v The Financial Conduct Authority [2020] UKUT 0243 (TCC)
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Case C-883/19 HSBC Holdings plc and Others v European Commission, Order of the President of the Court, 16 July 2020
Application to intervene - manipulation of EURIBOR - infringement of competition under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU)
The European Court of Justice (ECJ) has published Orders of the President of the Court in respect of applications for leave by Crédit Agricole and JP Morgan Chase to intervene on behalf of HSBC Holdings plc, HSBC Bank plc and HSBC France (HSBC) in HSBC’s appeal against the General Court’s judgment of 24 September 2019, which largely upheld the Commission’s finding that HSBC infringed competition law under Article 101(1) of TFEU for its participation in an illegal cartel in the euro interest rate derivatives sector. The General Court’s judgement also annulled the fine imposed on HSBC by the Commission on account of insufficient reasoning as to how the fine was calculated, in particular the setting of a reduction factor.
Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person may intervene in an appeal before the EU Courts if that person can establish an interest in the result of the case. The ECJ President stated that such an interest must be sufficiently direct so as to change the legal position of the applicant seeking leave to intervene.
The ECJ President held that Crédit Agricole and JP Morgan Chase had a sufficiently direct interest in the result of HSBC’s appeal against the existence and nature of the infringement of Article 101(1) of TFEU. That judgement will necessarily have a direct impact on the assessment by the General Court of the action brought by Crédit Agricole and JP Morgan Chase in so far as they seek the annulment of their alleged infringement of Article 101(1) of TFEU in related proceedings with the Commission, which are currently stayed pending the judgement of the ECJ.
In contrast, the ECJ rejected JP Morgan Chase’s application to intervene in the Commission's appeal against the General Court’s judgment annulling the fine imposed on HSBC. The President of the ECJ considered that the outcome of this appeal will have no direct effect on JP Morgan Chase’s legal position.
Case C-883/19 HSBC Holdings plc and Others v European Commission, Order of the President of the Court
