The underlying claim, which was heard in the High Court (Queen’s Bench Division) on 12 July 2022, concerned alleged misselling of payment protection insurance by Santander Cards UK Limited (Santander). AXA France IARD SA (AXA) sought to rely on the content of an FSA (now FCA) Final Notice that had been issued to Santander in 2007, which set out the FSA’s findings of deficient sales practices by Santander.
Among other matters, Santander applied to strike out parts of AXA’s claim, including references in the Particulars of Claim to the FSA Final Notice.
Sir Richard Field, sitting as a Deputy Judge of the High Court, concluded that the Final Notice did not constitute admissible evidence and accepted Santander’s argument that it fell within the “Hollington v Hewthorn” rule (ie “that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it”).
This is a particularly useful judicial reminder that, while enforcement action by regulators can often lead to civil litigation by customers/consumers and other third parties, those claimants must prove their own cases independently and cannot simply rely on the findings of the regulator.
It is interesting that the Hollington v Hewthorn rule extends to regulatory findings, given its initial scope of court and tribunal decisions, but in an ever-evolving regulatory sector this is perhaps unsurprising. It is important to remember that the rule applies only to the findings of the former decision maker, and not to any particular item of evidence adduced in the former proceedings or investigation.
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