Context
Following a review, the FCA has made a number of changes to, and has improved, its disclosure processes in regulatory enforcement cases. In the case of Seiler and others v FCA [2023] UKUT 00133, the Upper Tribunal recommended that the FCA should review certain elements of its disclosure process in regulatory enforcement cases. This relates to disclosure of evidence as part of any regulatory case.
Key points to note and next actions
Going forward, the FCA is required to disclose all documents on which it relies to build regulatory enforcement cases, as well as any other material which in its opinion might undermine its decision to take action.
Under a new broader approach, the FCA will disclose all material that is relevant to the facts of the matter, save where it is disproportionate, not in the public interest, or otherwise inappropriate to do so. This will include all material that is potentially undermining as well as supportive material.
Disclosure reviews will be aimed at identifying all the relevant material and will not be focused on only looking for potentially undermining material. This will reduce the risk that we mistakenly fail to disclose a document.
Most significantly, the FCA is:
- taking a broader approach to disclosure which will mean its review of documents is not focused only on identifying potentially undermining material;
- enhancing its existing training on disclosure to include additional specialist training for those managing and overseeing disclosure exercises;
- providing additional training for staff and more detailed guidance on quality assurance;
- clarifying the roles and responsibilities of staff and managers involved in disclosure; and
- giving greater emphasis to the importance of disclosure in measuring and rewarding staff performance.
Overall, the aim of the changes is to improve the quality of FCA disclosure by providing greater support for case teams. The FCA will closely monitor the effectiveness of the changes it is making, and will conduct a further review in approximately 12 months’ time to assess whether it should take further steps to improve its processes.