Keydata founder Stewart Ford has won the judicial review he brought against the FSA challenging the use of legally privileged information in its investigation into Keydata.
Mr Justice Burnett formally handed down his judgment on the case today.
At the two-day hearing at the Royal Courts of Justice in London in July Ford’s lawyer Mr Malek argued that emails which formed the basis of the FSA’s warning notice against Keydata and subsequent investigation reports were subject to legal professional privilege.
The hearing centered around emails that were passed from Ford’s former lawyers Irwin Mitchell to the FSA via Keydata’s administrators PricewaterhouseCoopers. The nature of the emails cannot be disclosed due to reporting restrictions.
Both Malek and lead counsel for the FSA Mr Thanki agreed that in passing the emails to the FSA, PwC had waived the legal privilege which applied to Keydata. However Malek argued that Ford, sales director Mark Owen and compliance officer Peter Johnson still retained individual privilege over the emails in question.
In his judgment today Mr Justice Burnett says: “I am satisfied that the claimant has established by evidence that he enjoyed joint legal privilege with Keydata in those two communications. It is accepted that PwC’s waiver of privilege on behalf of the company did not impact on the claimant’s privilege.
“It follows that the FSA may not rely upon the content of those communications in the regulatory proceedings against Keydata or the executives.”
A further hearing will be held to determine the implications of today’s ruling on the FSA’s investigation into Keydata.
The law firm Withers represented Ford at the High Court hearing. Withers partner Harvey Knight says: “This episode raises serious questions about the regulator’s own conduct. In light of this ruling, there can be no doubt that the FSA needs to take a long, hard look at its procedures and how it conducts itself.”
Ford has also called for a public inquiry into the way the FSA has carried out its investigation into Keydata.