The FCA is embroiled in a dispute with a firm over whether the regulator abused its power under the conditions of the Financial Services and Markets Act and is in the process of preparing to take the issue to court.
Commissioner Anthony Townsend says the FCA has commenced proceedings against a firm accusing it of failure to comply with the FSMA.
A report shows the FCA requested the complainant firm provide information about a separate firm.
The firm did not agree to the request after calculating the amount it would cost to retrieve the information totaled £6,745.
The FCA said it would not meet the costs for the firm.
The firm reported a letter it received last October from the FCA to the Complaints Commissioner identifying “bullying, threats and abuse of power” after refusing to provide the information.
Townsend says: “The FCA will not pay a fee of £6,745 for your firm to provide the required information. You believe the FCA’s refusal to reimburse your reasonable costs amounts to a reasonable excuse under the terms of FSMA to justify you in not complying.”
The FCA says its interpretation of s3.6 of FSMA is regulators will not investigate a complaint which they reasonably consider could have been, or would be, more appropriately dealt with in another way. It states this rule applies to the situation.
Townsend says: “The FCA’s interpretation of this is that the FCA can appoint someone (for example a member of staff) to require information from your firm.
“It also believes that there is no obligation on the FCA to meet any costs for your firm to provide the required information.”
Interpretations of legislation remain at the sole discretion of a court and are therefore unable to be reconciled by the Complaints Commissioner, Townsend adds.
The complainant firm also says the FCA did not respond to its calls for a review into its policy of not reimbursing firms for reasonable costs, which contravenes s3 of FSMA.
Section 3 requires the FCA apply the principle that: “A burden or restriction which is imposed on a person, or on the carrying on of an activity, should be proportionate to the benefits, considered in general terms, which are expected to result from the imposition of that burden or restriction; and the need to use the resources of each regulator in the most efficient and economic way.”
Townsend says: “The FCA wrote to you (the firm) on 19 October 2018 with an information requirement which superseded the information requirement sent to you in April 2018, and said that if you did not comply with the request for information by 15 November 2018, it would prepare papers to commence proceedings under s177 of FSMA.
“That same day the FCA Complaints Team wrote to you to say that it was deferring investigation into your complaint because of continuing action by the regulator.”
The FCA’s decision to defer investigation is correct given the possibility of court action remains, Townsend adds.
The complainant firm can renew its complaint with the FCA if no court proceedings materialise.
Towsend says: “Any ruling by the court will also help inform the question of whether or not the FCA policy needs changing.”