R (on the application of Grout) v Financial Conduct Authority


He contended that the decision to terminate the investigation into him had been irrational because: (i) he was being treated differently to others in the same position in respect of whom investigation by the Authority was still continuing which constituted arbitrary conduct and amounted to unfair discrimination against him; (ii) the Authority had placed too much weight on the fact that there were proceedings against him in the USA which, he said, would operate unfairly against him; and (iii) the Authority's reliance on the time and resources required to continue the investigation was irrational when time and resources continued to be devoted to the investigation of others whose investigations had not been terminated.

The application would be dismissed.

(1) The other traders whom the Authority had continued to investigate had not been in the same position, or even a materially similar position, as the applicant, or at least the Authority had been entitled to conclude that they were not. First, they had not been subject to criminal proceedings in the USA, as the applicant had been. Second, they had been senior to the applicant. It would have been legitimate for the Authority to have concluded that an investigation should continue into the conduct of the trader who was primarily responsible for the loss making trades and into the senior manager, but not into a junior trader who had played a subordinate role (see [42] of the judgment).
(2) The existence of the criminal proceedings in the USA had not been the sole or decisive consideration in the Authority's decision to terminate its investigation into the applicant. First, the reasons that the Authority had given had involved a weighing of three considerations. Second, the 'polycentric' nature of regulatory decision making was one of three reasons given by established authority for the court's reluctance to intervene in such decision making except in highly exceptional cases. Thirdly, the unfairness alleged by the applicant had fallen well short of what was required to show that the weight given by the Authority to the existence of the US proceedings had been manifestly disproportionate. There was no real substance to his complaints of unfairness. In any event, the alleged unfairness of the US criminal proceedings were not affected by the Authority's decision not to continue to investigate him; those proceedings would continue whatever the Authority decided (see [45]-[56] of the judgment).
R (on the application of Corner House Research) v Director of the Serious Fraud Office (BAE Systems plc, interested party) [2008] 4 All ER 927, [2008] NLJR 1149, [2008] All ER (D) 399 (Jul) applied.
(3) When deciding whether to continue with an investigation, it was undoubtedly permissible for the Authority to take into account the resources available to it, the time and cost commitment likely to be involved in continuing, and the other demands which it faced. How to allocate its resources was a matter for the Authority and the courts would only interfere with its decisions when they exceeded the bounds of reasonable decision making. That was not the case in the present circumstances. There was no basis for any challenge to the Authority's decision on the ground that the required time and resources in investigating the applicant would not be significant in view of the ongoing investigations. Nor was there any basis for criticising the Authority's decision that that would not be a worthwhile commitment of its resources, at any rate when the other demands on those resources were taken into account (see [60]-[62] of the judgment).

Richard Lissack QC and Farhaz Khan (instructed by Signature Litigation) for the applicant.

Paul Stanley QC (instructed by the Financial Conduct Authority) for the Authority.

Charlotte Hennessey - Solicitor (non-practising).

Link to full judgment -