Tribunal refuses £1.1m costs claim against FCA in BriceAmery Capital case

The Upper Tribunal has refused a £1.1 million costs application brought against the Financial Conduct Authority by a small investment firm, finding neither that the regulator's decision to cancel its permissions was unreasonable nor that it had conducted the subsequent tribunal proceedings unreasonably, and further ruling that the firm's own conduct would have barred any award regardless.

In BriceAmery Capital Ltd v The Financial Conduct Authority [2026] UKUT 288 (TCC), Deputy Upper Tribunal Judge Anne Redston dismissed the application in its entirety, in a decision that also criticised the reliability of the costs schedule submitted in support of the claim.

The underlying dispute traced back to a 2023 Financial Ombudsman Service award requiring BriceAmery Capital Ltd to repay an investor, identified as Mr A, over £50,000 the firm had failed to manage or account for. The firm refused to comply, maintaining that the individual who had actually brought the complaint was a different person using Mr A's identity fraudulently. After the firm's judicial review challenge to the award was refused as totally without merit, the Authority issued a decision notice in November 2025 cancelling the firm's regulatory permissions for non-compliance, which the firm referred to the tribunal.

The position shifted in March 2026, when a video call between the Authority and the complainant produced an image more closely resembling the alleged imposter than Mr A. Further enquiries went unanswered, leading the Authority to conclude there was a compelling case of identity fraud and to discontinue the enforcement action in April 2026. The firm then sought indemnity costs, arguing the decision notice had been unreasonable and that the Authority had defended the proceedings unreasonably.

The judge rejected both grounds. On the decision notice itself, she accepted that it was ultimately wrong, since the underlying FOS award was void as having been procured by fraud, but held that reasonableness was assessed by reference to what was known to the Authority at the time. The Authority had been entitled to defer to the outcome of the judicial review, to rely on the National Crime Agency's conclusion that the funds were not criminal property, and to accept the complainant's detailed account of having provided identification, none of which had been available or believed at the time the notice was issued.

On the conduct of the proceedings, the judge dismissed a series of complaints concerning disclosure, delay and candour, finding the Authority had acted reasonably throughout, including in the roughly four week period it took to formalise discontinuance after the complainant stopped responding to follow up enquiries.

The judge went on to find that the costs schedule itself, running to 2,797 hours at £386 per hour, was too unreliable to support any summary assessment, citing entries such as 32.75 hours claimed for a single day and 151 hours claimed across five days during the period the applicant's director said he had begun recording time contemporaneously. The claimed hourly rate, purportedly derived from lost turnover, was also unsupported by the firm's own accounts.

Finally, the judge held that even had the other elements been satisfied, she would have declined to exercise her discretion to award costs, given the tribunal's finding that the firm's director had repeatedly and untruthfully told the Authority that no identification documents had ever been received from the complainant, when in fact they had. Citing the tribunal's earlier observations in Staley v FCA [2025] UKUT 203 (TCC) on the importance of candour to a regulator, the judge concluded it would not serve the interests of justice to award costs to a party that had concealed material facts.