Fenech & Anor v The Financial Conduct Authority (FINANCIAL SERVICES - transfers from defined benefit schemes to defined contribution schemes - Decision Notices issued on basis that advice not suitable or compliant) [2026] UKUT 162 (TCC) (27 April 2026)

Executive summary

The Upper Tribunal allowed the references in part after independently reviewing a 16-file sample of Ms Dunne’s pension-transfer advice and related evidence. It found that 10 of the 16 sampled cases involved suitable advice and 6 involved unsuitable advice, but also identified multiple compliance failings and concluded that Ms Dunne breached Statement of Principle 2; the Tribunal also found breaches connected to the transfer-in-isolation model and to the backdated appointed-representative agreement issues described in the decision notice summary.

Key points

• Parties: Richard Brian Fenech and Heather Imogen Dunne v the Financial Conduct Authority.
• Core dispute: FCA Decision Notices imposed penalties and prohibition orders over DB-to-DC pension transfer advice, supervision failings, and allegedly dishonest provision of a backdated AR agreement.
• Holding on sample: Tribunal found 10/16 sampled files showed suitable advice and 6/16 unsuitable advice; extrapolation from the sample supported at least 18% of clients receiving unsuitable advice.
• Reasoning: Tribunal rejected the FCA’s recalibration of the sample as a basis for treating all sampled advice as non-compliant, and instead made its own findings on the files and expert evidence.
• Compliance findings: breaches included COBS 19.1.1R, COBS 4.2.1R and COBS 9.2.1R, plus failures in report preparation/checking and in timing of confirmation letters/advice declarations.
• Sanctions angle: the case is about financial services enforcement and prohibition; the source text does not indicate any sanctions/export-control issue.

Why it matters

The judgment shows how the Upper Tribunal scrutinises FCA enforcement where the regulator extrapolates from a sample and where limitation issues affect what conduct can support penalties. For sovereign-risk or sanctions analysts, it is relevant mainly as a signal of UK regulatory willingness to punish governance, integrity, and disclosure failures in sensitive financial intermediation, rather than as a sanctions or export-control authority.

Implications

For compliance and litigation strategy, the case underscores that regulators cannot assume a sample will support blanket findings without a defensible statistical basis and close file-by-file analysis. Firms facing FCA action should focus on limitation arguments, the integrity of any sampling methodology, and whether alleged systemic conclusions are actually supported by the underlying records and witness evidence.