Statutory notices issued by the RDC

Find out about warning notices and decision notices issued by the Regulatory Decisions Committee (RDC), the documents you receive, and how to respond.

The RDC is a committee of the FCA Board[1] and makes certain decisions on behalf of the FCA. These decisions are set out in formal documents known as statutory notices.

Under the Financial Services and Markets Act (FSMA), we're required to give statutory notices when we take certain actions or make certain decisions.

The statutory notices given by the RDC are usually:

warning notices
decision notices

Warning notices

We must issue a warning notice when we propose to take certain enforcement action.

The RDC is our decision-maker for warning notices, proposing to:

issue a prohibition to prevent an individual from carrying on particular activities in relation to regulated business, or from carrying on any such role, and withdraw their approval
issue a financial penalty or public censure against a firm or individual
issue a suspension or restriction against a firm or individual preventing them from carrying out particular actions

The RDC gives warning notices based on recommendations from the Enforcement team, which carries out investigations. The RDC considers whether the action recommended is the right action to take, based on the material presented to it.

After you receive a warning notice you have the right to respond by making written and/or oral representations to the RDC.

Decision notices

We must issue a decision notice if we decide to take action after considering any representations made on a warning notice (or if none are made).

Documents you’ll receive with your warning notice

It’s important that the procedure used to take action against firms and individuals is fair and effective.

To help you understand why you were given a warning notice and to help you decide whether to make representations, you will usually be given a copy of the materials which were considered and relied on by the executive decision maker or the RDC when the decision was made.

FSMA (section 394) says we must give you access to material which will, if relevant, be described in your notice. However, this does not apply to every decision to give a notice.

The material will usually include:

the notice
the recommendation papers from the Enforcement team at the FCA
a draft of the notice that formed the basis of the Enforcement team’s recommendation to the RDC or executive decision maker and a formal list of documents
a draft of the warning notice with detailed annotations explaining the basis of the recommendation, or a preliminary or final investigation report
any response you sent to the draft annotated warning notice or report
any other correspondence and key materials
a note of any additional substantive communications between the Enforcement team and the RDC

Getting help with a warning notice

If the notice has been issued by the RDC, you can ask the Decision-Making Committees Secretariat (DMC Secretariat) for help in understanding the rights referred to in the notice and for more information about the procedure. Please note that the DMC Secretariat cannot give you legal advice.

You may wish to take legal or other professional advice (for example from a compliance consultant) about your situation.

The Financial Services Lawyers Association[2] has set up a scheme that may be able to provide you with free legal advice from qualified lawyers and help with responding to a warning notice. We do not run or endorse this scheme.

Responding to a warning notice

Your rights are explained in general terms in the notice you receive, in the section labelled 'Procedural matters'.

If you decide to make representations to the RDC in writing or orally (or both), this is your opportunity to explain your side of the matter.

The notice will contain a deadline for making written representations and for telling the RDC if you wish to make oral representations.

Referring the notice to the Upper Tribunal

For warning notices issued by the RDC, instead of making representations to the RDC, you can refer the matter directly to the Upper Tribunal[3], which is part of the courts system and independent from the FCA. This is called an expedited reference.

You must notify the RDC that you wish to make an expedited reference and that you waive, and will not exercise, any rights under section 387(2) of FSMA (which include the right to make representations). The RDC will then issue a decision notice, subject to the interests of any third parties.

If you need more time to respond

If you need more time to make written representations, or to prepare to make oral representations, you should contact the DMC Secretariat before the deadline in the notice expires. You will need to explain why you need more time and how much more time you need.

The DMC Secretariat will ask the Enforcement team to provide comments on your request. The RDC Chair (or a Deputy Chair) will decide whether to give you more time. They are unlikely to grant long extensions, unless the circumstances are exceptional. Extensions will generally be limited to a few days or weeks, and almost never more than 2 to 3 months, even in the largest and most complex cases.

Our procedures

The RDC is not a court or a tribunal. Our procedures are relatively informal and are designed for determining matters fairly and quickly.

We don’t normally expect a case to take more than 6 months from when we give you the warning notice to when we issue our final decision. We’ll usually try to tell you as early as possible how long the case will take.

It’s important that you stick to the case timetable we set out, unless you have good reason for not doing so. It’s important that you tell us quickly if you have difficulties in keeping to the timetable. If you fail to comply with the timetable without good reason, it may lead to the RDC making its decision without your further involvement or input.

We’ll generally try to take into account your and your representatives’ availability, health issues and other relevant matters, when setting dates and deadlines. However, it’s important for all parties that cases proceed quickly, so it may not always be possible to delay. If you'd like the RDC to consider making any reasonable adjustments to its procedures, for example, for medical reasons, please let us know promptly.

Sometimes you may think that the FCA should give you access to more documents than it has disclosed. Where that is the case, you must raise the issue promptly with the Enforcement team. If you’re not satisfied with their response, you may ask the RDC to consider the matter. The RDC will aim to avoid delays to the procedural timetable, while the matter is being resolved.

If the Enforcement team has brought your case together with related cases against other individuals or firms (sometimes called multi-party cases), we’ll usually make provision for the sharing of warning notices and representations among all the parties and for a joint oral representations meeting involving all parties.

Making written representations

Your representations should respond to the facts and matters set out in the notice and set out your points clearly and succinctly. They must be sent to the DMC Secretariat by the deadline.

The RDC may determine the appropriate maximum length of written representations on a case-by-case basis, which will reflect the complexity of the matter. In most cases, no more than 20 to 50 pages of representations will be sufficient. Even in the most complex cases, written representations should total no more than 100 pages, including annexes.

If you consider that this is insufficient, you should raise the matter with the DMC Secretariat which will, if necessary, ask the RDC Chair (or a Deputy Chair) to decide.

The Enforcement team will have an opportunity to respond in writing to your written representations to the RDC. You’ll be sent a copy of their response, which will be subject to similar limits on length. Where the Enforcement team provides a single response to more than one set of representations in a multi-party case, the limit on length could be greater than it would otherwise be.

The RDC will consider your written representations, and any response made by the Enforcement teams, when making its decision.

Oral representations meeting

If you choose to make oral representations, you (and/or your representatives), will meet with representatives from our Enforcement team and an RDC panel. It may be held either in person or virtually (by telephone or video link), at the RDC’s discretion. The panel will normally comprise the Chair (or a Deputy Chair) plus 2 other members.

As well as those mentioned above, other people who may attend the meeting include:

the RDC's legal advisers
a case handler from the DMC Secretariat
other FCA staff (as observers only)

Oral representations meetings are not like court hearings. They are relatively short; generally between 2 hours and a day in total, depending on the complexity of the matter and the number of parties involved. Before the meeting, you’ll be sent an agenda and information about the composition of the RDC panel. 

At the meeting, your oral representations should normally last about an hour, although you’ll also be given an opportunity to make any concluding remarks at the end of the meeting. If you need more time, you should ask before the meeting, explaining why. You should only submit further written submissions or documents before, at, or after the meeting in exceptional cases, with the prior permission of the Chair of the RDC panel.

Before the meeting, the RDC panel will have considered the written material in detail, and your oral representations should take that into account.

The meeting is your opportunity to explain your arguments against the FCA taking the action proposed in the notice. You can attend alone, or you may choose to bring legal or other professional representation, to help you to cover the points that you want to make, structure what you want to say and answer certain questions. You may also choose to bring someone, such as a friend or family member, with you for support.

There is no cross-examination at the meeting. In other words, you (or your representatives) and the Enforcement team can’t question each other directly and you don’t have to answer questions asked of you at the meeting.

The RDC panel members may ask you (and the Enforcement team) questions. If you can’t answer a question, you should say so or, where appropriate, ask the Chair if you may respond in writing after the meeting. If the Chair allows this, you’ll be given a deadline to provide your written response.

At the end of the meeting, the Chair will explain the next steps.

The RDC won’t normally make a decision on the day of the meeting, but will usually let you know when you may expect to receive the decision.

After the representations meeting

After the meeting, the RDC will consider all your representations (both written and oral) together with the Enforcement team's responses and decide what action to take. 

Any decision notice given will set out the action we have decided to take and will explain why the RDC has made that decision. If the RDC decides not to issue a decision notice, it will tell you in writing.

Failing to respond to warning notices

If you don’t make representations on a warning notice or invoke the expedited reference procedure, the RDC may assume that the facts and matters set out in the warning notice are correct. It will nearly always give you a decision notice on that basis.

It’s therefore important not to miss the deadline for making representations, if you wish to do so.

This doesn't affect your right to take the matter to the Upper Tribunal, which you must do within 28 days of being given the decision notice.

Receiving a decision notice

You can accept the decision set out in the decision notice, or you have the right to refer the matter to the Upper Tribunal, normally within 28 days of being given the notice. The notice will set out how to do this.

If you don’t refer a decision notice to the Upper Tribunal within the 28-day deadline you will be given a final notice by the Enforcement team. 

A copy of the final notice will usually be published on our website.

Costs and compensation

You will not usually be entitled to any compensation or costs if we decide not to proceed with action against you.

However, if you believe that you may have a complaint about us and want more information about making a complaint, find out about our complaints scheme[4].

Third parties

In certain circumstances, we must give a copy of a statutory notice to someone other than the person it is issued to. This is when someone is identified in the notice and, in our opinion, it may be prejudicial to them. Such a person is known as a third party. The notice will normally state if there are any third parties.

Third parties may also make representations to the RDC and refer a decision notice to the Upper Tribunal.

Publication of notices

In certain circumstances, details of a warning notice can be made public.

If we intend to publish details of your warning notice, you’ll be provided with a copy of the proposed warning notice statement and given an opportunity to object and/or provide comments before its publication.

We must publish such information about the matter to which a decision notice or final notice relates as we consider appropriate. Usually, we will do this by publishing the notice in its entirety. Decisions about publishing notices are a matter for the Enforcement team, once the RDC has reached its decision.

If you refer a decision notice to the Upper Tribunal, the facts and matters in the notice may be made public before your reference to the tribunal is concluded. You can object to early publication in relation to the decision notice and you will be provided with details about how to do this when you are given the notice.