The Court of Appeal has handed down judgement following an appeal by Angela Burns, former NED of 2 mutual societies. In 2012, the then FSA had fined and banned her after it found she had recklessly, and in breach of her fiduciary position as a NED, failed to disclose conflicts and had used her positions to further her own commercial interests. Ms Burns appealed to the Tribunal which, while it found some of the FSA’s allegations had not been established on the facts, nevertheless upheld its decision that she had failed to act with integrity and was not a fit and proper person to act as a NED. It subsequently reduced the fine and awarded Ms Burns significant costs in relation to what it considered unreasonable action by FSA in pursuing against her an allegation that she had made a demand for corrupt payments.

Ms Burns appealed to the Court on two grounds – that the Tribunal had wrongly taken into account some unpleaded matters, and whether it had taken into account the right standard of conduct in considering the allegations which it upheld.

The Court found against Ms Burns on both counts, although it did criticise the way in which FSA had treated part of its concerns. The starting point for FCA’s allegations had been a failure to disclose to the companies for which Ms Burns acted as NED her connection with (and attempts also to become a NED of) an entity with whom she hoped the firms would do business. As proceedings developed, the fact that she had failed to disclose, on her CF2 applications for both firms, another employment (which had ended in redundancy) became increasingly important to FCA.