Are FSA interview transcripts discloseable?

When the FSA conducts an investigation into a firm’s activities, or those of its staff, the firm naturally focusses on dealing with the challenge that the FSA poses to its commercial interests and reputation. On the whole, the question of the firm’s exposure to civil claims from other parties – for example, customers – tends to be lower down the list of priorities. This is partly because the regulatory environment provides mechanisms for handling civil claims, particularly in the retail arena. So, customer remediation tends to be dealt with by agreement with the FSA, or through claims handling and the Financial Ombudsman Service. Large scale civil litigation through the Courts has tended to feature rather less.

Simon Orton (+44 (0) 20 7936 4000; simon.orton@freshfields.com) is a partner in Freshfields Bruckhaus Deringer’s Financial Institutions Disputes Group. Oliver Kerridge (oliver.kerridge@freshfields.com) is an associate in that group. A copy of the judgment is available at: www.bailii.org/ew/cases/EWHC/Ch/2006/3249.html.

Some issues that attract regulatory interest do also give rise to significant civil claims – one example being the collapse of split capital trusts. When that happens, the record of the firm’s dealings with the FSA may seem to a potential claimant to be a good source of information. There have been a number of cases in which a party trying to sue a firm has sought access to documents showing what the firm said to its regulators on the topic. To what extent can this material be required to be disclosed?