Same but different? The FCA trumpets a bolder approach to publicity policy
The FCA has sought to emphasise that it is adopting a more transparent approach to announcing the names of firms under investigation. In its inaugural Enforcement Watch newsletter, [1] which covers insights and themes from its enforcement work, the FCA highlighted three investigations which have been confirmed following announcements by the firms themselves, which are all listed issuers. [2] More significantly, the FCA's decision to name a claims management firm has been upheld following a judicial review challenge.
We outline the background and key aspects of the decision in more detail below.
Introduction
The FCA's recent "Naming Announcement" of The Claims Protection Agency (TCPA) has been upheld, in line with its updated publicity policy which retains the FCA's ability to name a firm or an individual who is subject to an enforcement investigation, [3] provided the "exceptional circumstances" test is met. The High Court's judicial review of the FCA's decision to name TCPA as a subject of an investigation, reveals helpful insights to its approach and how the exceptional circumstances test is applied, including to serve as a reminder of the high threshold for establishing unreasonableness.
In a two part judicial review decision, the second part being handed down on 2 January 2026 in R (on the application of Claims Protection Agency Ltd) v Financial Conduct Authority (No 2) [2025] EWHC 2615 (Admin), the High Court considered a legal challenge from TCPA that the FCA erred in its decision to make a Naming Announcement that TCPA was the subject to an enforcement investigation. The High Court determined that the FCA had not been unreasonable either in its outcome (i.e. the decision itself) or reasoning process.
This updated policy and decision follows industry backlash to the FCA's proposals to change its approach to enforcement two years ago, including a proposal to adopt the default position of naming firms when the FCA opens an investigation and to publish updates as the investigation progresses. [4] Whilst this proposal was ultimately abandoned, the FCA agreed to continue to utilise its pre-existing powers to announce the identify of subject under investigation in exceptional circumstances with certain modifications, such as the ability to confirm an investigation which is already in the public domain (for example, the FCA confirmed its investigation of WH Smith following the company's announcement to the market: WH Smith). The TCPA decision provides the first example of judicial scrutiny of the FCA's decision to publish the name of a company under investigation in "exceptional circumstance" since the revised test was released as part of the FCA's policy statement in June 2025. [5]
Background to case
TCPA is a claims management company which offers services in the motor finance claims sector. It brought a claim for judicial review against the FCA's decision to:
- publish the fact that TCPA is being investigated by the FCA and,
- to publicly name TCPA as the subject of investigation, referred to in the FCA's internal memoranda as a "Naming Announcement".
The FCA's reasoning behind the decision to make a Naming Announcement was contained in a document known as the "Second Memorandum" (the first memorandum having proposed an Anonymised Announcement).
The investigation itself relates to marketing practices carried out by TCPA, which the FCA considers to be of concern. The includes misleading communications related to potential claim values and refunds, excessive chasing of customers, insufficient steps to identify and protect vulnerable customers, and failures to inform customer of free to claim alternatives.
The claim was heard in the High Court by Fordham J, who dismissed the claim on the basis that it failed on substantive arguments. Ultimately, Fordham J was not convinced by TCPA's arguments that the FCA incorrectly interpreted and applied its Enforcement Guide (the "Guide"), specifically its provisions related to the exceptional circumstances test within the section concerning "Publicity during FCA investigations", nor was he convinced that the FCA reached a decision which was unreasonable as to the outcome of its decision or its reasoning process.
To protect the anonymity of TCPA pending their right to appeal, Part One of Fordham J's Judgment only referred to TCPA by its anonymity cipher "CIT" and was handed down on 23 October 2025. Part Two of Fordham J's Judgment was handed down on 2 January 2026 which revealed the Claimant's identify as TCPA.
The exceptional circumstances test
The exceptional circumstance test is contained at 4.1.4G - 4.1.5G of the Guide and provides that the FCA can publicly announce the subject of an investigation in exceptional circumstances. There is a clear weighing up between the public interest and the potential prejudice towards the subject of an investigation.
The Guide provides:
"Where it is investigating any matter, the FCA will, in exceptional circumstances, make a public announcement that it is doing so if it considers such an announcement is desirable to: (1) maintain public confidence in the UK financial system or the market; (2) protect consumers or investors; (3) prevent widespread malpractice; (4) help the investigation itself, for example by bringing forward witnesses; or (5) maintain the smooth operation of the market. In deciding whether to make an announcement, the FCA will consider the potential prejudice that it believes may be caused to any persons who are, or who are likely to be, a subject of the investigation." – 4.1.4G of the Guide
TCPA's arguments
TCPA's arguments that the FCA incorrectly interpreted and applied the Guide, or reached a decision which was unreasonable in terms of outcome or reasoning process rested on three points about the objective and proper interpretation of the Guide, which the Fordham J accepted as correct:
- The meaning of "Exceptional" in the circumstance of the test, is relative to investigated situations (the "investigation cohort"). It is incorrect to consider the exceptionality of the circumstance in reference to simply just regulated situations.
- The "Desirability" to make a public announcement is considered by reference to both the FCA's alternative options i.e. to make No Announcement and to make an Anonymised Announcement.
- "Exceptionality" involves consideration of the exceptionality and desirability of making a Naming Announcement against the alternatives of No Announcement and an Anonymised Announcement.
The High Court's reasoning
Fordham J rejected TCPA's arguments and held that there was no material misdirection in properly applying the Guide. In doing so he acknowledged the greater expertise of the regulator in exercising its decision making powers, in line with previous court reluctance to intervene in such circumstances absent clear unreasonableness or irrationality - "I must also recognise the institutional advantage which the FCA has, as a regulator entrusted with public interest responsibilities, in considering the sorts of questions entrusted to the decision-maker by the Guide." Highlights of his conclusions included:
- the fact that TCPA was unable to point to any part of the Second Memorandum which misstated the correct interpretation of Guide;
- that reasoning of the Second Memorandum was composite in nature therefore did not separate distinct stages and questions (meaning that there was a lack of sequencing which ought to have considered whether should be an announcement at all before going on to consider whether that decision should be anonymised or name the firm, or distinguish which points were relevant to each of those options in turn); and
- the memorandum should be considered as a whole, and, in any event, the points made on Exceptionality and Desirability did not show any errors of interpretation.
The Judgment is not without its criticism of the Second Memorandum. Fordham J stated that "some of the reasoning can be said to be weak" [32] and despite the points on logical sequencing above, nevertheless he determined that the reasoning itself did not betray a misunderstanding or misapplication of the correct interpretation of the Guide.
Reasonableness of the decision
In considering the reasonableness of the decision to make a Naming Announcement, the High Court has upheld the FCA's decision to attribute greater weight to consumer interests over the reputational concerns of the firm under investigation. The determinative point to the reasonableness of the decision, or what Fordham J described as the "Key Theme", was essentially that an Anonymised Announcement would not alert and enable existing customers of TCPA to consider their options (including whether they had signed up to TCPA on an overstated basis). These strong consumer protection reasons outweighed the potential prejudice to TCPA.
This point became clearer in the second part of the judgment, which explained the FCA's reasoning that naming TCPA as the subject of the investigation, was the most effective way to communicate to its customers that it was under investigation, and to provide them the opportunity to consider their options. Fatal to TCPA's arguments were the FCA's concerns that TCPA had overstated the level of redress customers should expect to receive and that some of the firm's marketing did not include the Mandatory Information. For example, A Naming Announcement would enable customers (who had already signed up to make a claim) an opportunity to re-visit that decision and withdraw their claim. As stated in the Second Memorandum, a Naming Announcement would "help correct the information asymmetry between [TCPA] and its customers"[6].
Key takeaways
- The FCA has signalled a greater willingness to name firms in exceptional circumstances, and the High Court has demonstrated a hesitancy to intervene in the FCA's evaluative assessment of when that test is met.
- The FCA's approach to a claims management company operating in the motor finance sector is perhaps unsurprising, given that it has stated that harm in the motor finance industry have been a longstanding focus for the FCA. [6] Last year saw heighted political and media scrutiny directed at the motor finance industry given the Supreme Court's recent judgement in Hopcraft v Close Bother Limited [2005] (see our article on the judgment here)[7]. Many claims management companies, anticipating a favourable judgment, increased their marketing activity, some of which included practices which are subject of the investigation.
- You can keep up to date with the FCA's latest enforcement investigations via this webpage. [8] With the exception of TCPA and Moneda Capital Group, the majority follow the firm's own announcement to the market. [9]
[2] One of these has just concluded in a fine of John Wood Group of £12.99 million after finding that the company included inaccurate information in its financial results
[3] PS25/5: Our Enforcement Guide and greater transparency of our enforcement investigations
[4] Enforcement watch: FCA proposes to name firms under investigation as part of new enforcement approach | Foot Anstey
[5] PS25/5: Our Enforcement Guide and greater transparency of our enforcement investigations, June 2025
[7] Supreme Court narrows scope of secret commission claims in motor finance cases | Foot Anstey
[9] Under ENFG 4.1.7G
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