The Upper Tribunal has ruled that documents provided to the FCA in connection with tribunal references may be used by the FCA for other regulatory purposes.

Ancean v FCA [2025] UKUT 00404 (TCC)

Where a party discloses a document to another party in civil proceedings, there is a strict rule against the other party using that document for any purpose other than those proceedings. This rule is now contained in CPR 31.22 and is referred to as the rule against "collateral use". CPR 31.22 replaced the common law "implied undertaking" not to make improper use of documents disclosed in civil proceedings. "Use" in this context is construed broadly. Sharing disclosed documents internally outside the team of people involved in the litigation or even reading a document with a different purpose or objective in mind, may be prohibited (IG Index v Cloete [2014] EWCA Civ 1128).

Does the rule against collateral use apply to the FCA where it receives disclosure in Tribunal proceedings? In Ancean v FCA the Upper Tribunal has held that it does not.

In that case, the firm sought to prevent the collateral use of information it had provided in a reference of a decision by the FCA to refuse authorisation, in separate enforcement-related references.

In response, the FCA sought a declaration from the Tribunal that documents, information and witness statements provided to the FCA in reference proceedings are not subject to any restriction preventing their collateral use by the FCA, save the restrictions imposed by section 348 of the Financial Services and Markets Act 2000, if the information constitutes confidential information for the purposes of that section.

The Tribunal agreed with the FCA. Although it declined to give a general declaration it gave a direction applicable to that case that if documents, information and witness statements provided to the FCA constituted confidential information, as defined in sections 348 and 349 of FSMA, they were to be held by the FCA in accordance with those sections, but otherwise were not subject to any restriction preventing collateral use by the FCA. Permission was not required from the Tribunal, nor was consent required from Ancean, for the FCA to use the documents for the FCA's regulatory and other public functions or for the FCA to disclose them, if relevant, in other reference proceedings.

In reaching its decision, the Tribunal held that CPR 31.22 does not apply to Tribunal proceedings and that, on the present authorities, it is unclear whether there is any common law implied undertaking against collateral use applicable in Tribunal proceedings generally (although the FCA accepted that where documents are disclosed under compulsion of law, the common law implied undertaking would prima facie apply).

To the extent that there is such a common law rule, however, the Tribunal held that it does not apply to the FCA in reference proceedings, for two reasons.

First, any common law rule was displaced by the statutory scheme in section 348 and 349 FSMA and regulations 3 – 5 of the 2001 Regulations.

Second and alternatively, any such common law implied undertaking applies only to documents disclosed under compulsion of law and documents disclosed by an applicant in a reference are not disclosed under a compulsion of law. Paragraph 5(3), of Schedule 3 to the Tribunal Rules, merely requires an applicant to provide a list of documents upon which the applicant relies. Ancean was "perfectly entitled not to produce any documents in these proceedings."

The Tribunal's judgment also contains some broader commentary touching on section 348's application outside reference proceedings. The Tribunal held that since section 348 only restricts disclosure to other parties "It provides statutory authority for the use of the information by any worker or for teams within the Authority to have access to and be disclosed the material in the exercise of any of it public functions." (at[168]). Furthermore, section 348 "provides the only relevant limitation or restriction on the use or disclosure by the [FCA] of [documents] supplied either … in Tribunal references or … at any earlier stage when the [FCA] is carrying out its statutory functions (such as investigations, supervision and enforcement)." (at [119]). 

In reality, the position may be more nuanced in some cases. For example, in FCA v Papadimitrakopoulos [2022] EWHC 3048 (Ch), the High Court held that the FCA was prohibited from making collateral internal use of documents obtained under mutual legal assistance in the context of a criminal investigation for related civil proceedings, given the wording of the Crime (International Co-operation) Act 2003. The High Court did not cite section 348 FSMA as " statutory authority for the use of the information by any worker or for teams within the Authority to have access". It may not therefore be possible for the FCA to neatly apply the Tribunal's definitively expressed findings in all cases.

One question which may arise in future is where this decision leaves disclosure given by the FCA in reference proceedings. Since section 348 may also apply to an applicant on a reference (as a "secondary recipient") does it displace other rules relating to collateral use and provide "all necessary protection" for documents disclosed by the FCA? Or would the FCA argue that documents disclosed by it, even where not covered by section 348 (for example because they relate to the FCA's internal processes and was not "received by" the FCA within the meaning of section 348), are still subject to an implied undertaking by the applicant, because the FCA is compelled to make disclosure of documents which are adverse to its case? Following criticism in Seiler and others v FCA [2023] UKUT 00133, the FCA changed its disclosure processes and now provides all material which it deems relevant to the facts of the matter. The decision in Ancean coincides with the date on which the indicated last year it would further review its disclosure processes. Extrapolation of the permissive approach the Tribunal has taken to its use of material disclosed to it in reference proceedings could lead it to be more selective when deciding what it is prepared to disclose.