Razzaq v Financial Conduct Authority

Posted on

[2014] EWCA Civ 770 Lord Justice Vos on appeal from the Upper Tribunal (Tax and Chancery Chamber)

Mr Razzaq made a renewed application for permission to appeal the decision of the Upper Tribunal upholding a prohibition order. The application was dismissed by Lord Justice Vos as he considered most of the arguments to be peripheral and irrelevant and would have no real prospect of success on appeal.

On 20 March 2013, the Upper Tribunal upheld the decision of the Financial Service Authority's ("FSA") making of a prohibition order under section 56 of the Financial Services and Markets Act 2000 prohibiting Mr Razzaq from performing any function in relation to regulated activity and cancelling Mr Razzaq's permission under section 45 of the Financial Services and Markets Act 2000. 

The Upper Tribunal found that on 1 May 2008, Mr Razzaq obtained a sum of approximately £10,000 from Whiteway Laidlaw Bank by deliberate fraud. In addition, that between 18 November 2008 and 6 January 2009 Mr Razzaq used his nephew's account for client money in breach of the rules. Also, between November 2009 and February 2010, Mr Razzaq acted as an insurance intermediary knowing he did not have permission to do so.

Mr Razzaq appealed the decision on four grounds initially but submitted a skeleton argument on the day of the appeal raising a raft of other matters. Of particular interest, were the following three grounds:

  1. That Mr Tyler, the Chief Executive of Whiteway Laidlaw Bank, was not called to give evidence so that Mr Razzaq could cross-examine him.
  2. That Mr Monitz of Clegg Gifford despite having given a witness statement was not called to give evidence so that Mr Razzaq could cross-examine him.
  3. The Upper Tribunal's procedure with regards to witnesses was unfair or unjust.

In relation to the first and second grounds, Lord Justice Vos commented that the Upper Tribunal had expressly stated that Mr Tyler's statement had not played a material role in their deliberations. In addition, Mr Monitz was not called to give evidence, however his evidence was not challenged and instead the Upper Tribunal relied on the evidence of Ms Sheehan who did appear to give evidence and was cross-examined by Mr Razzaq.

Lord Justice Vos went on to say that a party can rely on whatever evidence it chooses to prove its case. If it chooses not to call a witness or rely on documentary evidence then it suffers the consequences if the case is weakened.

Lord Justice Vos commented that Mr Razzaq's complaints about the way in which the Upper Tribunal dealt with the evidence and the way in which they reached their conclusion were entirely unfounded. The Upper Tribunal applied the correct standard and burden of proof to a case where fraud was alleged and acted on a cogent and persuasive evidential foundation.