An as yet unnamed firm has become the latest entity to fail in seeking to judicially review a decision by the Financial Conduct Authority (FCA) (assuming no appeal) (judgment here). The decision being challenged is that the FCA should make an announcement naming the firm as being under investigation by the FCA. The case is particularly significant given the recent controversy surrounding the FCA’s ‘name and shame’ proposals and the dropping of changes aimed at increasing transparency in investigations. 

We set out below the regulatory context, the factual background, the reasons for the court’s decision and some takeaways for firms. 

Regulatory context

The relevant provisions of the Enforcement Guide concerning investigation announcements can be summarised as follows:

• there are a number of scenarios in which the FCA will depart from its ‘normal’ or baseline position of not making an investigation public. One such scenario is where the “exceptional circumstances” test is satisfied;
• exceptional circumstances may arise where the matters under investigation become the subject of public concern, speculation or rumour;
• the “exceptional circumstances” test involves consideration of:
  • whether an announcement is desirable to achieve certain objectives, including: (i) maintaining public confidence in the UK financial system; (ii) the protection of customers or investors; (iii) the prevision of widespread malpractice; and (iv) maintaining the smooth operation of the market; and
  • the potential prejudice that may be caused to the subject of the investigation.
• in addition, the FCA may make an anonymous announcement where desirable for educating persons generally as to the types of conduct it is investigating or to encourage compliance. 

Factual background

The judgment provides an insight into FCA decision-making and the approach to investigation announcements. Events in this case unfolded as follows:

• In August 2025, the FCA commenced an investigation into a firm.
• An FCA decision-maker received a memo from three members of the case team recommending the FCA should make an announcement that it was investigating a firm without naming the firm.
• The FCA decision-maker responded listing some additional points they felt merited consideration but which had not been included in the memo of which had been underplayed.
• The FCA decision-maker received a second memo from four members of the case team recommending the FCA should make an announcement that it was investigating the firm that named the firm on the basis that the desirability of a naming announcement outweighed potential prejudice to the firm. A key reason for the recommendation in the second memo was to send a message to the firm’s customers that “they may wish to consider their options by reference to aspects of the way in which they may have come to be the [firm’s] customers”.
• The FCA decision-maker decided to adopt the recommendation in the second memo.
• The FCA communicated its decision to the firm giving it 24 hours notice of an announcement.
• The firm took steps to challenge the FCA’s decision by means of judicial review arguing that the decision-maker misinterpreted the provisions of its Enforcement Guide dealing with the investigation announcements or that the decision was unreasonable as to outcome or process.
• The FCA agreed to defer any announcement pending the outcome of the challenge.
• The court decided to deal in one hearing with both the application for permission to bring a judicial review and the substantive judicial review of the FCA’s decision. 

Court’s decision

The court granted permission for judicial review but, in the context of judicial review the court’s job was not to substitute its own reasoning or decide whether the FCA made the right decision but rather to consider whether the FCA properly applied its own policy and whether the decision-making process and outcome were reasonable. 

The court acknowledged that the second memo did not adopt a sequenced approach addressing first whether there should be any announcement and second whether it should be naming or anonymised. The court also accepted that some of the reasoning could be said to be weak when viewed in terms of a naming announcement as opposed to an anonymous one. 

However, when viewed as a whole, the memo’s ‘composite analysis’ did consider factors relevant to whether to name and potential prejudice was identified but determined to be outweighed by the desirability of a naming announcement in terms of achieving the relevant objectives.

The court also considered that the case team had thought about alternative options of making an anonymous announcement alerting all customers of all companies across the sector or the firm writing a letter to each of its customers and inviting them to consider their options. However, the team assessed that a naming announcement was the most effective regulatory response to get a message across to a group of customers which it wanted to ensure was best informed. A generic announcement might not reach the firm’s customers and a letter from the firm might not disclose that the firm was under investigation. 

Overall the court was not persuaded that the evaluative regulatory judgment was unlawful or unreasonable. It was within the range of reasonable decisions open to the decision-maker. 

What next?

The firm sought permission to appeal which the court refused. The FCA has given an undertaking not to publish an announcement naming the firm as the subject of the investigation until the earlier of: (a) the expiry of time for the firm to make an application to the Court of Appeal for permission to appeal (if permission is not sought); or (b) a decision by the Court of Appeal refusing permission to appeal. The deadline for the firm to file an application for permission to appeal was 30 October 2025 and at the time of writing an application did not appear to have been made. Accordingly an announcement may be imminent.

In addition, the judgment handed down on 23 October 2025 was only Part 1, drafted in a way that it could be handed down in public irrespective of any appeal. Part 2 containing some further detail has not been released pending any appeal but may also be made public. 

Key takeaways

• Difficulty of challenging the FCA: The judgment demonstrates again how hard it is for any applicant to successfully challenge an FCA decision. However, those charged with drafting such memoranda for FCA decision-makers in the future will no doubt want to ensure that the criteria around whether to announce at all and, if so, whether to identify the firm are methodically considered in a logical sequenced way, in order to pre-empt such high-profile challenges which may be prompted by unclear drafting or perceived weaknesses in supporting legal analysis. Even where the FCA successfully resists a judicial review, applications shine a spotlight on the FCA decision-making process and can expose flaws which the FCA would rather keep under wraps.
• Naming and shaming remains a regulatory objective: It is clear from the judgment that the decision-maker within the FCA did not accept the first internal recommendation to make an anonymous announcement and but did accept the recommendation in the second memorandum to name the firm. This may indicate a drive within the FCA to name more firms under investigation on the basis of “exceptional circumstances”, notwithstanding the dropping of its controversial enhanced “name and shame” proposals following widespread concern about the implications of such announcements and strong industry pushback. The court’s decision may embolden the FCA to pursue a more aggressive naming strategy in the future, even though it failed to make the case for changes aimed at increasing such transparency.
• Consumer protection is paramount: A key factor in the decision to name the firm was the FCA’s assessment that its customers should be alerted and that this outweighed potential prejudice to the firm. Firms facing the prospect of being named in future may wish to consider how adequate consumer protection can be achieved for example through a customer communication strategy which meets the FCA requirements without the need for an announcement.