In a bid to combat recent criticism of its poor litigation record, the Financial Services Authority (FSA) has boldly created a new unit to ‘stress test’ enforcement cases before they are taken to formal disciplinary review.
The new litigation and legal review unit aims to review the evidence and recommendations that the FSA’s enforcement division puts before the Regulatory Decisions Committee (RDC), which makes the FSA’s disciplinary decisions.
The change has received a mixed reaction from the legal community. One magic circle lawyer agreed with the move because his firm had “not been impressed by evidence put before the RDC” in the past. However, another City lawyer warned that the unit could potentially “result in a bottleneck” and drastically slow down the disciplinary process.
The FSA’s enforcement division has come under increasing criticism after a swathe of high-profile losses last year, most notably the rejection of its endowment misselling case against Legal & General by the Financial Services and Markets Tribunal, in part because of a lack of supporting evidence.
The regulator was also forced to back down from its case against former Shell chairman Sir Philip Watts following criticism over his treatment in the regulator’s £17m fine against Shell for overstatement of oil and gas reserves.
FSA director of enforcement Margaret Cole said it was hoped that the new unit would result in more successful rulings before the RDC by ensuring that cases were “effectively stress-tested before going before the RDC”.
It will also review subsequent litigation and advocacy matters, such as those taken before the Financial Services and Markets Tribunal.
The unit’s creation completes a raft of changes implemented by Cole following publication of the Strachan Review’s recommendations regarding the enforcement division’s processes in July.
The former head of one of the division’s retail units Tracey McDermott will head the new unit. Initially it will be staffed internally, although an external recruitment campaign is expected later this year.