I believe the Financial Services Authority (FSA) has acted fairly under what have been difficult market conditions. Several of its key decisions this year, including its decision to fine David Einhorn and his firm Greenlight Capital, have established a clear marker to the industry about the FSA’s expectations of market practitioners.
FSA fines are generally increasing, both for firms and individuals. This is partly the result of the introduction of a new regime for calculating penalties, but it is also indicative of the increased confidence and determination with which the FSA’s enforcement division is carrying out its credible deterrence mandate.
Greg Brandman is a partner in the financial dispute resolutions team at Eversheds. He was previously a manager in the FSA’s enforcement division.
There can be a lack of objectivity on the FSA's part which comes from its policy of credible deterrence. It will pick cases to send messages to the industry. The proportionality of the credible deterrence policy is also questionable when it comes to cases against individuals.
It is also hugely expensive to take on the FSA at the Upper Tribunal. Anyone of limited means would find it very difficult to successfully overturn an FSA decision in front of the Upper Tribunal. Costs could easily run into hundreds of thousands of pounds depending on the length of the proceedings and the complexity of the case. It could be a year or more until the beginning of the trial. You could be looking at a good 18 months before any decision. And it would be almost impossible to concentrate on a full-time job at the same time.
Harvey Dyson is an associate at Stephenson Harwood.