DEC 2.4 Third party rights and access to FSA material

Sections 393 (Third party rights) and 394 (Access to FSA material) of the Act confer additional procedural rights relating to third parties and to disclosure of FSA material. These rights apply in certain warning notice and decision notice cases referred to in section 392 of the Act (Application of sections 393 and 394). The cases in which these additional rights apply are identified in DEC 2 Annex 1 G by asterisks; these are generally cases in which the warning notice or decision notice is given on the FSA's own initiative rather than in response to an application or notification made to the FSA.

If section 394 of the Act (Access to FSA material) applies and the FSA gives a person a warning notice or decision notice, it must under section 394(1) allow that person ('A') access to:

1. (1)

   the material on which the FSA relied in taking the decision which gave rise to the obligation to give the warning notice (or the decision notice); and

2. (2)

   any secondary material, which, in the opinion of the FSA, might undermine that decision.

However, the duty under section 394(1) is qualified in the following ways:

1. (1)

   under section 394(2), the FSA does not have to allow A access to material that is excluded material;

2. (2)

   under section 394(2)(a) and (b), the FSA does not have to allow A access to material if this:

   1. (a)

      relates to a case involving a person other than A; and

   2. (b)

      was taken into account in A's case only for the purpose of comparison with other cases;

3. (3)

   under section 394(3), the FSA may refuse A access to particular material to which it would otherwise have to allow him access if, in the FSA's opinion, allowing him access to the material would not be in the public interest or would not be fair, having regard to:

   1. (a)

      the likely significance of the material to the person concerned in relation to the matter about which he has been given a notice; and

   2. (b)

      the potential prejudice to the commercial interests of a person (other than A) which would be caused by the material's disclosure.

If under section 394(2) the FSA does not allow A access to material because it is excluded material consisting of a protected item, it must give A written notice of the existence of the protected item and of the FSA's decision not to allow him access to it (section 394(4)).

If under section 394(3) the FSA refuses to allow A access to particular material, it must give him written notice of the refusal and the reasons for it (section 394(5)).

If the FSA receives a request for access to material, the FSA may within a reasonable period after the request was made:

1. (1)

   provide facilities for the inspection and photocopying of the material that it considers it is required to disclose; or

2. (2)

   provide a photocopy of the material.

The FSA will provide the first photocopy of the material free of charge, but will charge for subsequent copies it provides to the same person.

If section 393 (Third party rights) applies and any of the reasons given in the warning notice relate to a matter which:

1. (1)

   identifies a person ("the third party") other than the person to whom the warning notice is given; and

2. (2)

   in the FSA's opinion is prejudicial to the third party;

then the FSA must give the third party, in accordance with section 393 of the Act, a copy of the warning notice.

A copy of the warning notice will not be given if the FSA considers that this would be impracticable, or the FSA has already given the third party a separate warning notice about the same matter. Similarly, a copy of the warning notice will not be given if the FSA gives the third party such a notice at the same time as it gives the warning notice which identifies him.

DEC 2.4.7 G and DEC 2.4.8 G apply similarly in relation to a decision notice.

The FSA must give a copy of the notice of discontinuance, decision notice or final notice (as appropriate) to a third party who has been given a copy of the warning notice or decision notice (section 393(14), 393(5) and 390(1) of the Act).

If the FSA gives a copy of a warning notice or decision notice to a third party, the copy must be accompanied by an indication of the third party's right under section 393(9) to refer the case to the Tribunal and the procedure on such a referral.

If the FSA gives a copy of a warning notice or decision notice to a third party, the provisions about access to FSA material also apply to the third party (DEC 2.4.2 G to DEC 2.4.6 G). Under section 393(12), the material that the FSA must disclose under section 394 is material that relates to the matter that identifies the third party.