Fenech & Anor v Financial Conduct Authority (PROCEDURE - expert report - whether witness was an expert - whether witness conflicted - unfair to admit as expert evidence - whether evidence of fact - if so, whether to admit after the time limit) [2026] UKUT 20 (TCC) (19 January 2026)

Executive summary

The Upper Tribunal resolved a procedural dispute in references brought by Richard Brian Fenech and Heather Imogen Dunne against Financial Conduct Authority decision notices imposing financial penalties and prohibition orders. It held that Rebecca Prestage was an expert but conflicted, so her statement was unfair to admit as expert evidence; however, it admitted the same statement late as evidence of fact in the interests of justice.

Key points

• Parties: Fenech and Dunne challenged FCA decision notices; the FCA relied on a statement from Ms Rebecca Prestage.
• Holding: Ms Prestage was an expert, but conflicted; the Statement could not fairly be admitted as expert evidence.
• Holding: although late under the tribunal directions, the Statement was admitted as evidence of fact.
• Reasoning: the UT relied on its case-management powers and the rule allowing it to admit or exclude evidence where fairness required.
• Context: the underlying FCA matters concerned DB pension transfer advice and file reviews, not sanctions or export controls.

Why it matters

This is relevant to sanctions and national-security practitioners mainly as a tribunal-process decision: it shows the UT will police expert independence while still preserving fact evidence where justice requires. For regulatory enforcement cases with geopolitically sensitive issues, it underscores that conflicted expert material may be excluded as opinion but not necessarily lost if it can be reframed and admitted as factual evidence.

Implications

For compliance and enforcement litigation, parties should separate expert opinion from factual witness evidence and expect close scrutiny of conflicts, especially where the witness has participated in the underlying review process. Missing tribunal deadlines is not necessarily fatal, but late evidence will be judged through the lens of fairness and the interests of justice, so litigants should build a record explaining why admission should still be allowed.