FS Tribunal rules on late withdrawal of appeal

The introduction of the Financial Services Tribunal (FST) created a platform for the reconsideration of decisions by any decision-maker in the financial services sector. With the establishment of the Tribunal the prediction was that there would be an influx of cases to be reconsidered. This prediction is true if we look at the increase in the number of cases published on the FSCA website.

But whilst aggrieved individuals want their cases to be heard and ruled in their favour, it’s important to understand when and how to proceed.

A recent FST decision focused the attention on the rules of the FST again. Not conforming to these rules might be a costly process if it is found that you were wasting the Tribunal’s valuable time.

About the FST

  • The Financial Services Tribunal replaced the old FSB Appeal Board.
  • It adjudicates applications for reconsideration of decisions taken in terms of a financial sector law by any financial sector regulator, ombud, authorised financial services provider or market infrastructure.

The right to appeal

Only a person who is “aggrieved” by a “decision” of a “decision-maker” may apply to the Tribunal for a reconsideration of the decision. The first term has specific legal meaning, and the last two terms are defined in section 218 of the Act.

The case

An application for reconsideration of a debarment was to be heard on 28 November 2018. However this matter did not proceed as the applicant withdrew his application on 26 November 2018, just two days before the hearing. As a result the respondent requested that the applicant be liable for the costs of the late withdrawal of the application and insisted that the Tribunal convenes the said hearing.

According to the rules of the FST an application can be withdrawn, but the Chairperson or the Panel Chairperson may in exceptional circumstances make an appropriate costs order in terms of section 234(2) of the Act.

Section 234(2) stipulates that “the Tribunal may, in exceptional circumstances, make an order that a party to proceedings on an application for reconsideration of a decision pay some or all of the cost reasonably and properly incurred by the other party in connection with the proceedings.”

It is clear from this case that both parties would have engaged with their legal representatives and prepared for the hearing at the time that the case was withdrawn by the applicant. The Chairperson of the FTC emphasised that the applicant provided a weak explanation as to why he withdrew his application at such a late stage. Therefore the only reasonable and plausible conclusion the Chairperson of the FTC could arrive at, was that the withdrawal was due to the supplementary affidavit filed by the respondent. If the applicant had prospects that he would be successful in the matter he could have requested for a postponement to address the allegations in the affidavit, but instead he withdrew his application.

As a result the applicant was ordered to pay the costs of the application reasonably and properly incurred by the respondent on a party and party basis.

In his request for a revision the applicant pleaded poverty after being debarred. Sadly, this decision will put him in an even worse position.

The Tribunal consists of highly experienced legal experts. Don’t apply for a review unless you are very sure of your case. And ask for a second opinion from a FAIS expert. The latter will most likely know better than you everyday lawyer, and could also possibly be less expensive.

Click here to download the FST case.

Click here to download the rules of the FST.

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