Application for the continuation of interim publication restrictions imposed on the Financial Reporting Council refused; stricter public law test for interim relief applied

Adam Ferris

Taveta Investments Limited (“Taveta”) – the parent company of Arcadia Group Limited, which owns a number of high street brands including Topshop, Topman and Miss Selfridge and which used to own the BHS group prior to its collapse in 2015 – applied to the High Court for a continuation of interim restrictions on the publication of certain documents by the Financial Reporting Council (the “FRC”).

The FRC had sent to Taveta advance copies of a number of documents (the “Documents”) that it was intending to publish. The Documents contained the FRC’s reasons for its decision to impose sanctions on PwC and its audit partner, Stephen Denison following investigations conducted by the FRC into the audit and financial statements of BHS Limited for the year ending 2014. Taveta issued a claim for judicial review, alleging that the Documents contained criticisms of its directors and/or employees amounting to defamation and that the FRC owed Taveta a duty of fairness to give it a fair opportunity to respond to the alleged criticism before publication. Taveta sought an urgent injunction preventing the publication of the Documents until it had been given a fair opportunity to respond.

Nicklin J was satisfied that Taveta had demonstrated that there was a serious issue to be tried and stated that, had the court been considering the application as a matter of private law then it would have granted an injunction. However, he also noted that the test for granting injunctive relief in public law cases is exceedingly strict and that, whilst he harboured doubts that such a high threshold could still be justified, he was bound to apply it. The court concluded that Taveta had not shown its case to be “exceptional” and that it did not meet the high threshold required. The application was therefore refused.

Aspects of the hearing were conducted privately in light of the nature of the application being made.

Taveta Investments Limited –v- The Financial Reporting Council & Others [2018] EWHC 1662 (Admin)

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