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Judicial Review is Only Available as a Last Resort

In emphasising that judicial review is a remedy of last resort, the Court of Appeal has ruled that a judge was ‘plainly wrong’ to entertain a challenge to findings made against a bank’s finance director by the Financial Services Authority (FSA) in circumstances where an alternative avenue of appeal lay to the Upper Tribunal.

The FSA, which has since been renamed the Financial Conduct Authority, had imposed a £100,000 penalty on the director under section 67 of the Financial Services and Markets Act 2000. The director was found to have breached the FSA’s principle that persons enjoying significant influence within regulated businesses must perform their management functions with due skill, care and diligence.

The director’s judicial review challenge was upheld at first instance on the basis that the FSA had given inadequate reasons for its decision and that referral of the matter to the Upper Tribunal would not afford him an adequate remedy. The decision was quashed and the FSA’s regulatory decisions committee was directed to reconsider the matter.

In allowing the FSA’s appeal, the court underlined that only in exceptional cases will a claim for judicial review be entertained where an alternative remedy, provided for by statute, is available. The court noted that, although relatively quick to obtain, a remedy by way of judicial review simply returns the parties to their original positions and does not involve determination of the merits of the underlying dispute.

The court acknowledged that the Upper Tribunal would not have power to quash the FSA’s decision or order it to be reconsidered. However, its jurisdiction would extend to considering the whole matter afresh and to dealing with the substance of the allegations. It was not a case in which it could be said that the director could obtain by judicial review a remedy of real importance which was not otherwise available to him.