Khan v Financial Services Authority, Court of Appeal - United Kingdom Financial Services and Markets Tribunals, May 21, 2009, [2009] UKFSM FSM068

Resolution Date:May 21, 2009
Issuing Organization:United Kingdom Financial Services and Markets Tribunals
Actores:Khan v Financial Services Authority

APPLICATION FOR PERMISSION -- intending mortgage and insurance intermediary -- lack of qualification and little evidence of experience -- attempt to mislead Authority -- whether Threshold Conditions 4 and 5 satisfied -- no -- Decision Notice refusing permission upheld -- reference dismissed THE FINANCIAL SERVICES AND MARKETS TRIBUNAL SABZ ALI KHAN Applicant - and - THE FINANCIAL SERVICES AUTHORITY Respondent Tribunal: Colin Bishopp (Chairman) Nicholas Douch Christopher Chapman Sitting in public in London on 21 May 2009 The Applicant did not appear and was not represented Adrian Berrill-Cox, counsel, of and for the Respondent © CROWN COPYRIGHT 2009 DECISION1. The applicant, Sabz Ali Khan, has referred to the Tribunal a Decision Notice issued to him on 7 February 2008 by the Financial Services Authority ("the Authority"). The effect of the Notice was to refuse Mr Khan's application for "Part IV permission", that is permission granted in accordance with Part IV of the Financial Services and Markets Act 2000 ("the Act"), to carry on various regulated activities.2. Mr Khan was not present when the reference was called on for hearing. He had indicated, in a telephone conversation with the Tribunal's staff on the preceding day, that he did not propose to attend, and in his skeleton argument he repeated the requests he had previously made that the hearing be postponed because he was ill. Those requests were refused by the present chairman. The first was made about a week before the date on which the hearing was scheduled to begin, and was supported by a letter from Mr Khan's general practitioner recording that he was receiving treatment for a medical condition and that he had been advised to rest. The letter, which was by then almost two months old, did not indicate that Mr Khan should refrain from attending the hearing. Mr Khan was told that if he were to produce a further letter from his general practitioner containing that indication, his request would be reconsidered. He produced a further letter, but there was no hint in it that he had been advised not to attend the hearing, and the renewed request was refused. The third request, in Mr Khan's skeleton argument, was not supported by further evidence.3. Adrian Berrill-Cox, counsel for the Authority, suggested that we might strike out the reference for want of prosecution, in accordance with rule 26(3)(b) of the Financial Services and Markets Tribunals Rules 2001, or dismiss it in accordance with rule 27(1)(b)(ii) on the ground that Mr Khan had failed to comply with directions. He did not, however, press either suggestion and in our view he was right not to do so; it is true that Mr Khan has not pursued his reference with vigour, and that his compliance with directions has often been late or patchy, but we did not think his conduct came close to warranting the sanction of summarily striking out or dismissing his reference. We were not prepared to postpone the hearing, remaining unpersuaded that there was any genuine medical reason preventing Mr Khan's attendance, but were instead satisfied that Mr Khan had no reasonable excuse for failing to attend and that it was appropriate we proceed in his absence, in accordance with rule 19(4)(a), and we did so.4. We did not hear any oral evidence, but had the statements of Peter Rooke, one of the Authority's officers, which dealt with the relevant qualification requirements, and of Warren Radloff, at the time an officer of the Authority, who dealt with Mr Khan's application. We also had a bundle of relevant documents, including the extensive...

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