Kasim Garipoglu & Anor v The Financial Conduct Authority

Introduction

1. This decision concerns non-publication orders sought in respect of the applicant, Mr Garipoglu, and an application by a company (GKPay Limited (“GKPay”)) which Mr Garipoglu is the ultimate beneficial owner of. Mr Garipoglu and GKPay have both made references to the Upper Tribunal in relation to Decision Notices imposed by the Financial Conduct Authority (“FCA”).

2. The Decision Notice made in relation to Mr Garipoglu and dated 4 March 2025 imposed a Prohibition order (under s56 of the Financial Services and Markets Act 2000 (“FSMA”)) on the basis Mr Garipoglu was not fit and proper. An earlier Decision Notice in respect of GKPay dated 12 March 2021 had refused the company’s authorisation as an AEMI (Authorised e-money institution). That Decision Notice had also contained findings that Mr Garipoglu was not fit and proper regarding his honesty and integrity. That was relevant to GKPay’s authorisation given Mr Garipoglu’s status as a person with a qualifying holding in that company.

3. Mr Garipoglu’s reference to the Upper Tribunal does not contest the FCA’s view that he was not fit and proper. The grounds for his reference are that it was not open to the FCA to issue the prohibition order (which he emphasises is meant to be a preventative as opposed to a punitive measure) given the lack of risk he poses to UK consumers or the UK financial system: he has withdrawn all financial services activity from the UK and has offered enforceable commitments to the FCA to ensure that remained the case. He also argues there was procedural irregularity in the issue of the Decision Notice. These include allegations that the RDC (the Regulatory Decisions Committee of the FCA) that had made the decision had been biased.

4. As regards GKPay’s reference, a consent order of 2 June 2021 had directed that the GKPay Decision Notice should not be published until the GKPay reference had been substantively determined. The Decision Notice refers extensively to Mr Garipoglu’s conduct. The issue arises as to whether that order should now be discharged (as the FCA argue) or remain in place (as GKPay and the applicant argue). The FCA seek strike out of the reference on the basis it lacks any reasonable prospect of success (because GKPay have indicated they do not wish to contest the reference albeit they have not withdrawn it).

5. The three applications which accordingly need to be determined are:

1. Mr Garipoglu’s application for i) non-publication of Decision Notice issued to him and ii) the exclusion of his name from the public register.

2. An application for discharge of the previous non-publication consent order in relation to GKPay’s Decision Notice.

3. The FCA’s application to strike out GKPay’s reference.

6. For the reasons explained below, my decision dismisses Mr Garipoglu’s and GKPay’s application in relation to non-publication and strikes out GKPay’s reference. Although the hearing had been held in private at my direction given its subject matter, given neither of the applicants’ non-publication applications have succeeded, there is no reason for this decision not to be published in full (although I have directed, in accordance with the tribunal's practice in cases concerning publication of Decision Notices that this is not done until after the FCA has published Mr Garipoglu’s Decision Notice). background Facts

7. Mr Garipoglu is the ultimate beneficial owner of various holding companies, regulated financial services companies in a number of countries including GKPay Limited and GKFX Financial Services Limited (“GKFX”), now known as Trive Financial Services UK Limited, as well as non-regulated companies outside the UK in sectors such as real estate, hospitality and entertainment.

8. GKPay’s AEMI authorisation was revoked by the FCA on 13 July 2018. Its application for re-authorisation was refused in GKPay’s Decision Notice dated 12 March 2021. The FCA was not satisfied that Mr Garipoglu, as controller, demonstrated honesty and integrity. That conclusion was based on various extracts from e-mails Mr Garipoglu sent within GKFX (including those referred to below). The FCA’s agreement to defer publication of the Decision Notice, as embodied in the consent order, was on the basis there had at the time been an investigation into Mr Garipoglu that was still ongoing.

9. The FCA subsequently on 4 March 2025 issued a Decision Notice to Mr Garipoglu prohibiting him from performing any function in relation to any regulated activities carried on by any authorised or exempt persons, or exempt professional firm pursuant to s56 FSMA.

10. The Decision Notice set out the FCA’s view that Mr Garipoglu’s conduct during the relevant period lacked honesty and integrity, that he was not a fit and proper person, and that he posed a risk to the consumers and the integrity of the UK financial system. The FCA’s views arose from e-mail chains (which the FCA excerpted in the Decision Notice) on the basis these showed a disregard for AML, and regulatory compliance, and advice of personnel in that area. The Decision Notice identified a number of occasions in which Mr Garipoglu positively encouraged misconduct, and sets out that he deliberately sought to mislead the authority and other regulatory bodies by providing false and/or misleading information in relation to maintaining regulatory requirements (that he had taken a compulsory AML training himself despite the documents showing he asked someone else to take it for him).

11. Mr Garipoglu referred the decision to the tribunal on 29 April 2025, seeking at the same time an order for privacy and an order that the details did not appear on the Tribunal’s register. The applications in relation to Mr Garipoglu and GKPay were directed to be heard in private pursuant to Rule 37(2) of the Upper Tribunal Rules because I had considered that a public hearing would have undermined the purpose of the applications. Evidence

12. The applicants relied principally on the expert evidence of a former financial journalist and City and Business Editor, Neil Bennett, now the Global Co-Chief Executive officer of H/Advisors, an international strategic communications and reputation management group. Mr Bennett’s evidence, in summary, opined on the likely volume and significance of press coverage if the Decision Notice in respect to Mr Garipoglu were published and also his views on the extent of likely harm that publication would cause. Mr Bennett provided a witness statement in advance and was subject to cross-examination by the FCA. I found Mr Bennett to be an open, helpful witness, knowledgeable within his area of expertise, who did his best to assist the tribunal. Although, for the reasons I explain, I did not find the opinions he gave on particular aspects, in particular as regards the extent of harm he considered that Mr Garipoglu would suffer if publication was ordered, to be of assistance that was a function of the particular scope of the source material before him and of his relevant expertise. In the course of that evidence I was also taken to a schedule with details of the various entities Mr Garipoglu owned, setting out where they were based, and some financial figures, and to excerpts from the Decision Notices. I address the relevant detail of the evidence in the discussion section of this decision below. Law

13. Section 391 of FSMA provides so far as relevant as follows: ‘…. (1A) A person to whom a decision notice is given or copied may not publish the notice or any details concerning it unless the regulator giving the notice has published the notice or those details.… (4) The regulator giving a decision or final notice must publish such information about the matter to which the notice relates as it considers appropriate;… (6) The Authority may not publish information under this section if, in its opinion, publication of the information would be- (a) unfair to the person with respect to whom the action was taken (or was proposed to be taken), (b) prejudicial to the interests of consumers, or (c) detrimental to the stability of the UK financial system. …

14. Section 391(11) provides that the s425A meaning of “consumers” applies for the purposes of the section. It is common ground that the effect of that is that the consumers concerned are UK consumers.

15. Schedule 3(3) of the Upper Tribunal Rules provides: “The Upper Tribunal may direct that the register is not to include particulars of a reference if it is satisfied that it is necessary to do so having regard in particular to a) any unfairness to the applicant… or prejudice to the interests of consumers that might otherwise result; [or] b) as regards a reference in respect of a decision of the Financial Conduct Authority, any detriment to the stability of the UK financial system…”

16. The applications to prevent publication of the Decision Notices of Mr Garipoglu and GKPay are brought under Rule 14 of the Upper Tribunal Rules. That provides, so far as relevant: “(1) The Upper Tribunal may make an order prohibiting the disclosure or publication of— (a) specified documents or information relating to the proceedings; or (b) … (2) The Upper Tribunal may give a direction prohibiting the disclosure of a document or information to a person if— (a) the Upper Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and (b) the Upper Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.”

17. Various Upper Tribunal cases have, in particular over the last decade or so, considered the issue of non-publication and in doing so have extracted and collated from the preceding cases a number of propositions, notably in Prodhan v FCA [2018] UKUT 0414 (TCC) at [21] to [26] which have then been consistently adopted and applied (these are set in detail for instance in Heather Dunne v FCA [2024] UKUT 00416 (see [7])).

18. Certain of these propositions, or aspects of them, are challenged by the applicants as incorrect, in particular that a strong presumption in favour of publication arises from the principle of open justice. In order to put that challenge in context it is necessary to the revisit the earlier sources starting with Arch Financial Products v FSA (FS/2012/20). That also concerned an application for an order under Rule 14 prohibiting disclosure of the Decision Notices there together with a direction removing the applicants’ details from the Tribunal register.

19. The Upper Tribunal (Judge Herrington) started by detailing the legal and regulatory background to s391 FSMA (at [16] to [19]) explaining how the original prohibition under s391 of FSMA against publishing warning and decision notices reflected a policy of maintaining confidentiality in regulatory proceedings until they were subject to independent judicial scrutiny. (That had carried over the private nature of disciplinary processes within the former self-regulating financial services organisations, where outcomes had only been disclosed if adverse). In doing so, Parliament had in effect accepted that the reputational and commercial risks to individuals under investigation outweighed the public interest in transparency until a tribunal had reviewed the matter. However, amendments introduced by the Financial Services Act 2010 altered this balance by permitting the publication of decision notices, thus shifting the boundary between the private and public stages of regulatory action. The revised Section 391(4) created a presumption in favour of publication, aligning decision notices with final notices, subject to the same exceptions under Section 391(6) where publication may be withheld if considered unfair or prejudicial to consumer interests. That change reflected a move towards greater openness in regulatory proceedings, notwithstanding the continuing prohibition on publishing warning notices. Parliament had, as Judge Herrington went on to explain at ([22]): “…now decided that the fact that proceedings are pending in the Tribunal should no longer be a bar to publishing the decision notice, subject to the exercise by the FSA of its discretion not to publish in Section 391(6) and the exercise by this Tribunal of its discretion under Rule 14.”

20. As to the Tribunal’s discretion under Rule 14, Judge Herrington set out that: “25. The Tribunal must make its own decision based on the relevant factors to be considered in the context of an application under Rule 14 but it should do so against the background of a statutory framework that clearly gives rise to a presumption that the FSA will in normal circumstances publish decision notices in the same manner as it publishes final notices, subject to the terms of the policy that it has adopted in that regard. The Tribunal must also bear in mind the requirement that hearings of references will be held in public unless the Tribunal directs otherwise, for which provision is now made in Rule 37 of the Rules….

21. Judge Herrington continued (after having noted that it was Rule 14(1) which was relevant to the application before him in relation to non-publication as opposed to 14(2) which concerned non-disclosure as regards a particular individual) that: “27. …There are no specific conditions that need to be satisfied before the power in the Rule can be exercised but it is subject to the overriding objective in Rule 2 of the Rules which requires the Tribunal to deal with cases fairly and justly. Consequently this imports the requirement that the discretion should be exercised judicially, that is taking into account all relevant factors ignoring irrelevant factors and exercising the power in a manner which seeks to give effect to the overriding objective. This involves carrying out a balancing exercise between those factors that tend towards publication and those that would tend against.”

22. He went on to consider passages from the Court of Appeal’s decision R (Guardian News and Media Limited) v City of Westminster Magistrates Court [2012] EWCA Civ 420 where the point was made that open justice was not just about the hearing but about access to documents. He also considered the submissions of the FSA’s counsel (at [32]) that the question of prohibition of publication under Rule 13 went “hand in hand with the question as to what is consistent with the principle of open justice” and that “It would be inconsistent to have a public hearing yet not publish the Decision Notices…”. Judge Herrington in addition referred to Sir Stephen Oliver QC’s decision in Canada Inc and Peter Beck v FS FS0017/18 which in a summary of earlier financial services tribunal cases had stated there was “…a strong presumption to be found in the provisions of FSMA and the rules of the Tribunal that references will be dealt with in public…”. Adopting that reasoning, Judge Herrington considered the principles Stephen Oliver QC had summarised were equally applicable whether the privacy issue concerned withholding of details from the register, publication of decision notice, or whether the substantive hearing should be held in private. Judge Herrington went on to accept the FSA’s counsel’s submission holding that: “43. …the open justice principle is to be applied when considering whether to prohibit disclosure of documents that relate to references before the Upper Tribunal, and in particular decision notices which in due course, consistently with these principles, could be made available to public inspection. …

23. His reasoning continued: “…I accept that in paragraph 85 of City of Westminster Magistrates Court Toulson LJ made it clear that the question as to whether any particular document should be made available is to be determined by a proportionality exercise that will be fact specific, but it is clear that the starting point is a presumption in favour of disclosure in accordance with the strong presumption in favour of open justice generally…. 44 Therefore, in carrying out the balancing exercise…, it starts with the scales heavily weighted in favour of publication with the burden on the Applicants to produce cogent evidence of how unfairness may arise and how they could suffer a disproportionate level of damage if publication were not prohibited.

45. This starting point is also influenced in this case by the statutory scheme for publication set out in Section 391 of FSMA. The fact that it treats decision notices and final notices on the same footing is a matter that again weighs in favour of publication although I do accept that regard has to be paid to the fact that a decision notice that is being challenged in the Upper Tribunal is necessarily provisional. …” Mr GARIPOGLU’s APPLICATIONS the parties’ submissions in outline

24. The applicant’s submissions, in summary, are that the jurisprudence on privacy applications that has developed in the Upper Tribunal, has ended up at a place which is “hostile” to privacy applicants. It sets too high a burden in terms of the heavy weighting in favour of publication. That has arisen through a misconception that the open justice principle applies in respect of FCA decision notices. Such notices represent an exercise of administrative rather than judicial power. The tribunal’s case-law also requires too much in terms of the gravity of harm required to be shown and the certainty of evidence required to show it. In line with the importance the wider case law gives to the preservation of the status quo through the provision of interim remedies (of which a non-publication order is one), the correct approach requires a balancing of convenience test (akin to American Cyanamid). Applying that here, it is argued the (temporary) downside to the public interest and regulatory objective in deferring publication is clearly outweighed by the seriousness of the harm publicity would cause to Mr Garipoglu, his interests, customers and employees. The balance points clearly towards the grant of privacy. If privacy is not granted this would undermine the whole point of the applicant’s substantive reference which is to avoid the publicity of a prohibition order by providing suitable undertakings and security regarding the withdrawal of business from the UK (and thus any risk to UK consumers or the UK financial system).

25. The FCA defend the jurisprudence and the importance it places on open justice and dispute the applicant’s suggested alternative American Cyanamid legal approach. As regards the evidence they contend the applicant has not shown any cogent evidence of serious harm. The FCA emphasise the unusual nature of the case in that the applicant is not disputing the FCA’s findings as to lack of fitness and propriety. The applicant is wrongly seeking to prevent the publication of true and uncontested findings which are part of the process of understanding the proceedings before the tribunal. The Decision Notice findings are ones which Parliament, through s391 FSMA, had envisaged would be subject to publication even when a reference has been made to the Upper Tribunal. This is not a situation where the purpose of the proceedings would be defeated if publication is not prohibited. While the prevention of publication may be a motive for the applicant’s reference, that is not the subject matter of the reference. Discussion

26. I first address the disputed principles of law before moving on to consider the evidence. Relevance of the open justice principle to publication of FCA Decision Notices

27. The applicant submitted that the Tribunal’s reliance on a presumption in favour of publication is based on a fundamental misunderstanding of the open justice principle. The principle was not engaged at this stage of proceedings and was limited to court hearings. Mr Morris, who appeared for the applicants, pointed to the Supreme Court’s description of the principle in Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd (Media Lawyers Association intervening) [2020] AC 629 as a constitutional principle which applied “to all courts and tribunals exercising the judicial power of the state” (at [41]). He also relied on the Supreme Court’s decision in Kennedy v Charity Commission [2014] UKSC 20, particularly the passages at [236] onwards explaining the scope of the open justice principle and that the principle did not extend to bodies such as the Charity Commission who could not be said to be “exercising the judicial functions of the state”. The same point he submits would apply to the Financial Conduct Authority (FCA) in relation to its Decision Notices. These are administrative and not judicial acts. He emphasised that Kennedy had not been considered in previous Tribunal decisions.

28. I reject these arguments. The reasoning in Arch Financial Products v FSA (FS/2012/20), which relies on Guardian News, makes clear that the open justice principle is not confined to hearings alone but extends to the proceedings more widely and encompasses access to documents. As the Upper Tribunal explained at [43] the open justice principle is to be applied when considering whether to prohibit disclosure of documents: “…that relate to referencesbefore the Upper Tribunal, and in particular decision notices which in due course, consistently with these principles, could be made available to public inspection. (emphasis added) ”

29. From the above, two themes emerge clearly. First, that the particular context for the issue of publication of the Decision Notice and the reason it is being considered in the first place is because there are reference proceedings before the Tribunal. That recognises that the Rule 14 power is not a freestanding power of non-disclosure but is engaged in the context of the other proceedings (in this case Mr Garipoglu’s reference). Second, the reasoning in Arch looks ahead to the fact that the Decision Notice would, in the context of such reference proceedings, and consistent with open justice, normally be made available for public inspection.

30. The fact that Mr Garipoglu’s Rule 14 application arises in the context of ongoing tribunal proceedings also explains why his reliance on Kennedy is misconceived. That case concerned an information request by a journalist into inquiries conducted by the Charity Commission and the scope of a Freedom of Information Act (FOIA) exemption (and where the litigation arrived at the Supreme Court through the regime that had specifically been set up to consider FOIA questions via appeals to the general regulatory tribunal). There were however no underlying proceedings akin to the reference proceedings before the tribunal here which engaged the principle of open justice. The point of the passages relied on from Lord Carnwath’s (minority) judgment, was to question the general presumption that open justice principles that were applicable in the courts should apply to various forms of statutory or non-statutory enquiry.

31. In agreement with Mr Temple, who appeared on behalf of the FCA, open justice is engaged in respect of decision notices in so far as those assist both with understanding the reference which has been made (Mr Morris did not dispute that the Tribunal’s register is part of the open justice framework) and, looking ahead, to understanding of the substantive hearing. The backdrop of these reference proceedings, whose start will normally be publicised by entry onto the register, and which will culminate in a substantive hearing which will normally be heard in public means there is no sense of open justice being wrongly made to apply to an administrative as opposed to a judicial act, nor as Mr Morris put it, of open justice having tentacles which extended beyond the reach of the proceedings. The application of open justice rightly recognises the decision notice’s significance to understanding the subject matter of the proceedings.

32. The applicant also referred to the FCA’s own guidance in its Enforcement Guide at ENFG 4.2.11 G and ENFG 4.2.15 G, both of which appear under heading of “Decisions notices and final notices”.

33. ENFG 4.2.11 G mentions the FCA will: “decide on a case-by-case basis whether to publish information about the matter to which a decision notice relates but expects normally to publish a decision notice if the subject of the enforcement action decides to refer the matter to the tribunal”.

34. ENFG 4.2.15 G states that: “Publishing notices is important to ensure the transparency of FCA decision-making”.

35. Mr Morris drew attention to the fact the guidance made no mention of open justice. That was consistent with the FCA appreciating that open justice principles were not relevant to its decision notices.

36. The absence of mention is however unsurprising given the scope of the guidance which will include having to also cover the circumstances where no tribunal reference has been made. The passages do not purport to be exhaustive and are clearly in any case not intended, nor capable of guiding the Tribunal’s exercise of its Rule 14 power, which arises in the context of judicial proceedings.

37. What that guidance instead reveals is that, irrespective of the application of the open justice principle, there is a purpose of transparency which applies also to regulatory proceedings which is consistent with and reflected in the statutory framework in s391 FSMA. The relevance of that section was noted in Arch at ([45]) (see [23] above).

38. In Heather Dunne the Upper Tribunal (Judge Rupert Jones) having identified (at [105]) the existence of a “statutory presumption that decisions will be published” explained its rationale as follows: “…[the] presumption advances the public interest in transparency and open justice. In considering whether a decision notice should be published, the Authority does not need to also demonstrate that there are additional public interests at play, such as increasing consumer knowledge or consumer protection. There is a public interest in promoting transparency in the UK financial services sector: if a person wishes to participate in the industry then they must accept this. The starting point is therefore that public interest lies in disclosing the Decision Notices and the open justice principle should apply.”

39. Consistent with the above, it can be seen that even if the presumption in favour of publication did not derive directly from the open justice principle it would still exist by virtue of the statutory scheme (which itself reflects transparency, an objective which is common to open justice).

40. While it is not disputed that the burden lies on the applicant to displace the presumption, Mr Morris takes issue with the presumption being described as “strong” and submits that the correct depiction is simply to say that publication is “the norm”. To the extent there is any difference in those formulations then I do not consider it material. The key point is that the starting position is not neutral as between publication and non-publication. In any event, I see no difficulty with describing the presumption as strong. That reflects the acknowledged status of open justice as a fundamental constitutionally-based principle (albeit one which is subject to countervailing factors). The Supreme Court in Kennedy at [110] summarised that (by reference to Scott v Scott [1913] AC 417 and Guardian News)as “…the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for obtaining public confidence”. The strength of presumption is also consistent with the statutory history where, as explained by Juge Herrington in Arch, Parliament had specifically decided to require the FCA to publish Decision Notices, even where a reference has been made.

41. Accordingly none of the applicant’s points persuade me that the tribunal’s previous case-law took a wrong turn with respect to the application of the open justice principle as regards prohibitions on decision notice publication, or that it is incorrect for a tribunal when dealing with such prohibition applications to apply a strong presumption in favour of publication. “Interim remedies” approach?

42. The applicant also sought to frame the Rule 14 non-publication applications as a form of interim relief, drawing on case law concerning interim remedies and the existence of procedural rules providing for such remedies across a variety of different court, tribunal and arbitration settings. It was submitted that the current application seeks to preserve the status quo, namely, that the Decision Notice has not yet been published, and that publication at this stage would render the reference nugatory. Mr Garipoglu’s concern in contesting the Prohibition order was to avoid publication; its other aspects were not relevant. Mr Garipoglu had no intention of pursuing work for an authorised person, yet the harm that would arise from publication of the prohibition order would be irreversible. The power of a court or tribunal, through interim remedies, to maintain the status quo was fundamental to a fair hearing. This was recognised by the Advocate General’s opinion in R v Secretary of State for Transport, ex parte Factortame Ltd and others (No. 2) (Case C 213/89) (at [18]). That set out there was a principle “long established in jurisprudence according to which the need to have recourse to legal proceedings to enforce a right should not occasion damage to the party in the right”. The purpose of interim protection was “to ensure that the time needed to establish the existence of the right does not in the end have the effect of irremediably depriving the right of substance, by eliminating any possibility of exercising it”. The appropriate approach in deciding whether to grant the interim remedy was accordingly the balancing exercise set out in American Cyanamid Co v Ethicon Ltd [1975] AC

396. Applied here, that meant considering whether the prejudice to the applicant, if relief were refused and the reference ultimately succeeded, outweighed the prejudice to the FCA and the public interest if relief were granted and the reference ultimately failed.

43. I am not persuaded however that American Cyanamid represents the most appropriate framework for determining privacy applications under Rule

14. As Mr Temple pointed out, it was certainly not the approach that has been adopted in the many cases both in the courts and tribunal concerning issues of privacy. Nor was the concept of preserving the status quo a helpful guide for such application where every case would begin, by definition, with the status quo of non-publication. It also seems to me that looking to preserve the status quo of non-publication would amount to a presumption in favour of privacy and would be inconsistent with the statutory scheme set out in section 391 FSMA.

44. It could be said, in any case, that an American Cyanamid approach would not, to the extent it entails some form of balancing, be so very different from the balancing entailed by the fact specific application of the open justice principle whereby any countervailing factors should be considered. Nor is it that different from the balancing envisaged by the Upper Tribunal’s approach, which consistent with the overriding objective to deal with cases fairly and justly balances the relevant factors pointing for and against publication. The applicant’s issue in truth is about what factors go onto the scale and the weight they are accorded, a key point being disagreement with the proposition that the scales are weighted heavily in favour of publication. I have already set out the reasons why that disagreement is wrong.

45. The applicant also disputed the view expressed in Arch and Heather Dunne that the FCA need not advance positive reasons in support of publication. In Arch, Judge Herrington expressed the view (at [62]) that it was not necessary to consider whether there were “positive reasons for allowing publication” explaining that “the principle of open justice and the statutory provisions create a presumption in favour of publication” which could only be rebutted if there was “cogent evidence of disproportionate damage” (and that if it was rebutted, subject to exceptional interest of justice factors, the decision would then be to prohibit “regardless of the additional benefits the regulator considered should follow from publication.)” Similarly in Heather Dunne, Judge Jones held (at [105] – see [38] above) that the FCA did not need to demonstrate there were additional public interests in play such as increasing consumer knowledge or consumer protection. I agree with the position taken in Arch and Dunne, which in my view is consistent with the scheme and drafting of s391. Section 391(6) specifies certain criteria relevant to displacing the presumption of publication. By contrast no such factors are enumerated for the presumption, the public interest for which is taken as read.

46. A key assumption underpinning the applicant’s reliance on addressing the issue of non-publication through the framework of interim remedies is the argument that the publication of the Decision Notice defeats the object of the proceedings. This picks up on the point made by the Advocate General in Factortame (see [42] above) but it also features in the applicant’s submission on the damage that would be suffered if the publication of the Decision Notice took place. Publication of Decision Notice would defeat the object of the proceedings?

47. The applicant argues that if the Decision Notice is made public, any damage to reputation will already have occurred, rendering the reference process ineffective even if he ultimately succeeds. He claims that the statutory benefit (embodied in s 57(5) of FSMA which provides the right for a person whom a prohibition order is made against to refer the matter to the tribunal) is undermined by publication. The subject of the reference is the right of an individual to avoid reputational damage by adopting voluntary measures to avoid the harm that is caused by publication of the prohibition order.

48. It is not in dispute that the case-law recognises there may be situations where not granting privacy will defeat the object of the proceedings. A clear example is of litigation involving trade secrets where publicity would defeat the property sought to be protected and where, as the House of Lords put it in Scott v Scott “it may well be that justice could not be done at all if it had to be done in public”. The fact the hearing of the current non-publication applications was held in private also reflects the same rationale and a concern that otherwise the purpose of the hearing (if the applicants were successful in the applications) would be defeated.

49. I agree with Mr Temple however that describing the purpose of the substantive reference proceedings as being to prevent publication conflates the applicant’s particular motives for bringing the reference with the purpose of the reference proceedings. As he correctly summarised, the purpose of the reference is determination of whether the prohibition order was within the reasonable range of options the FCA could decide and to address the allegation of procedural irregularity (the allegation of actual bias on the part of the RDC) with the possible outcome, depending on the particular findings made, that no prohibition order is imposed.

50. This is not a case where the very right sought to be established or enforced is rendered incapable of exercise, or fundamentally one where publication would mean that justice in the reference proceedings cannot be done. The applicant’s desire to keep the (uncontested) conclusion that he was found not to be fit and proper from being publicised (to avoid the damage he fears that will cause) is not the right in question. The right concerns holding the FCA to having to make decisions without procedural irregularity and which do not fall outside the reasonable range of options in the light of the tribunal’s findings. The applicant seeks to downplay the fact the FCA’s conclusions regarding fitness and propriety are uncontested. He argues the FCA would not have statutory power to publish uncontested facts unless it was to further its statutory objectives. Because there is no present risk to the UK financial systems it is submitted the FCA would lack power to publish facts about Mr Garipoglu even if they were true. As a general proposition I would find that to be a particularly striking result. In my view the point wrongly relies on an unduly restrictive view of the FCA’s discretion to publish the information it considers appropriate. It would undercut the statutory obligation in respect of publication in s391 FSMA and overlook the fact that there are other objectives such as transparency and deterrence (referred to in the Enforcement Guide) which might be viewed as consistent with consumer protection and might legitimately play a part in justifying the publication of uncontested facts regarding a persons lack of fitness and propriety.

51. In rejecting the argument that if privacy is not granted, the purpose of the proceedings will be defeated this does not mean Mr Garipoglu’s concerns to avoid the harm he fears that publication would cause (something which ultimately underlies the desire to prohibit publication) are somehow ignored or are not capable of protection such that justice is not then served. The issue of likely harm is squarely within the subject matter of the current application with it being open to Mr Garipoglu to show, in the usual manner, by means of the evidence advanced on his behalf, such likelihood of sufficient harm so as to justify any prohibition of publication. Serious Harm?

52. Before analysing the evidence advanced in relation to the harm that would be suffered if publication were not prohibited it is convenient to briefly address some further points of principle which the applicant takes issue with.

53. The applicants referred to the decision in Angela Burns v FCA FS/2012/24, arguing that there the Tribunal has wrongly treated the need to show “destitution” or “destruction or severe damage” as determinative of whether there was serious harm. While that kind of test might have made sense for a one person operation it could not be transposed more widely to the situation of a large conglomerate (in the circumstances of this case it is not being suggested that Mr Garipoglu will be left destitute or unable to meet his day to day expenses.) I do not accept however that this is the correct reading of the approach that has been taken in other cases. The proposition reflected in the cases refers to “destruction or severe damage to a person’s livelihood” by way of an example of where it would be unfair to publish the notice. It is not the case that only such extreme outcomes can justify privacy. Mr Temple accepted that serious harm may be established without demonstrating destitution or destruction, as illustrated in cases such as Hayes v FCA [2017] UKUT 0423 (TCC), (where non-publication of a decision notice pending a decision of the Criminal Cases Review Commission was granted on the basis that publicity would create a risk of prejudice to any criminal retrial).

54. Mr Morris also emphasised that the exercise of considering whether harm “may” or “could” occur was bound to involve conjecture and counterfactual reasoning. Against that backdrop the proposition adopted by the Upper Tribunal requiring a “significant likelihood” had, he argued, set the bar too high. In his submission the correct test is whether there is a “real risk of serious harm.”

55. I do not agree the bar has been set too high. The propositions adopted in the Upper Tribunal’s case-law for instance acknowledge that an applicant is not required to show that damage or destruction is an “inevitable consequence” (PDHL v FCA [2016] UKUT 0129 (TCC) at [37]). That the test is put in terms of “likelihood” fairly recognises the counterfactual nature of the hurdle. The requirement to show such likelihood is “significant” is consistent with the starting point in favour of publication set out in the statutory scheme of s391. The Evidence advanced

56. Turning then to evidence the applicants relied on, the only evidence advanced (Mr Garipoglu did not give evidence) was the expert evidence of Mr Neil Bennett, who, as mentioned is a former financial journalist and editor and Co-CEO of a strategic communications and reputation management firm. Mr Bennett’s evidence was that publication of the Decision Notice would attract significant media interest, with coverage that would be highly negative in tone. He stated that global outlets such as the Financial Times would report the matter, and that this would be picked up by Turkish media, where Mr Garipoglu is a well-known figure. The coverage would be extensive, personal, and intrusive, and the articles would become a matter of permanent record.

57. Mr Bennett expressed the view that publication “would cause Mr Garipoglu immediate, substantial and irreversible damage,” and “could” lead to the failure of the Trive Group. He stated that the Decision Notice would be considered by credit committees of banks and liquidity providers, and that regulators in other jurisdictions would take note, potentially affecting client, counterparty, and supplier relationships. Competitors would likely use the coverage to damage the Trive Group commercially.

58. He further stated that the reporting would be heavily weighted towards the FCA’s findings, with limited opportunity for Mr Garipoglu to respond. He cited the circumstances of another regulatory litigation including those of a litigant before the Upper Tribunal whom he had represented (Mr Ian Hannam – the decision on his substantive reference was reported at Ian Charles Hannam v FCA [2014] UKUT 0233 (TC)). He explained how the media coverage of FCA action had caused reputational and other damage to Mr Hannam despite the fact that the decision notice was provisional being subject to the outcome of further determination by the tribunal. Mr Bennett also appended a selection of media articles to illustrate the “reputation climate,” noting that harm often occurs before legal proceedings are concluded.

59. I accept, and it was not disputed by the FCA, that the Decision Notice and the underlying emails would attract media coverage. I also accept Mr Bennett’s explanation, supported by his extensive financial press experience, of how such coverage would unfold, beginning with global outlets and cascading into Turkish and other jurisdictions. While in cross-examination the FCA had sought to suggest that coverage in the Turkish press would not lead to significant effects in other jurisdictions, I accept Mr Bennett’s explanation that once the story made it to the news wires (which it would do if global reach press such as the FT reported on it) it would then be picked up by the local press in the countries where Mr Garipoglu had a business presence.

60. As to Mr Bennett’s opinions regarding the unfairness of the press coverage however, I consider these to be of limited relevance in the present case. The disputed issue is the FCA’s decision to impose a prohibition order given the undertakings and security Mr Garipoglu offered. The FCA’s finding that Mr Garipoglu is not fit and proper is not contested, and the conduct underlying that finding is largely undisputed. It is those undisputed matters which will attract interest. There is not therefore the same significance in being able to put across an opposing view as there might otherwise have been, where disputed matters remain to be determined. Even to the extent there was anything to be advanced by way of mitigation or contextualisation of the admitted conduct, it was apparent even in the evidence Mr Bennett had appended that there was some balance in the way stories were reported. There clearly was scope for putting over positive opinion pieces to balance out negative pieces (even if that outcome had taken some effort behind the scenes on Mr Bennett’s part in acting in his reputation management role). Although I do not rule out that there might be instances of unbalanced reporting, I do not accept from the evidence relied on any general proposition that the reporting of FCA actions pending determination by the tribunal can be assumed to be particularly unbalanced or unfair.

61. A key area where Mr Bennett’s evidence could not, in my judgment, be given any weight concerned his opinions on the harm that might be caused to Mr Garipoglu and his businesses. This was not any reflection on Mr Bennett’s credibility or press industry expertise but arose from the scope of his expertise which, as he accepted in cross-examination did not extend to the operation of financing and liquidity agreements or to foreign regulatory regimes, and the limited scope of the financial and regulatory materials available to him.

62. While I acknowledge Mr Morris’s point above that the assessment of likelihood of harm necessarily involves a counterfactual analysis there was in my view a lack of sufficiently detailed evidence regarding the financial state of the various entities, their financing arrangements, and the regulatory regimes in which they operated. Mr Morris submitted that obtaining such evidence would be impractical (describing Mr Garipoglu as a “passive shareholder”) and self-defeating because in obtaining the information from group members, the information sought not to be publicised would inevitably become known. I find it difficult to see that Mr Garipoglu, as the ultimate beneficial owner, could not obtain the necessary basic financing arrangement information and other information regarding the regulatory regimes the relevant entities operate in. That would at least then have provided a firmer foundation on which to build an assessment of the impact of publication. In addition, at least some of this material could be provided by persons not connected with the group, or the relevant regulators, for instance foreign regulatory experts. Similarly an assessment of the impact of publication on the financing and intra-group liquidity arrangements would not necessarily need to be carried out by individuals within the group.

63. Such data as there was took the form of a table listing entities, turnover, and net asset values. There were in total 39 non-regulated entities (comprising investment and holding companies, including a family office LLC, entities with businesses described as commercial real estate projects, hospitality charter services, consulting, sporting events and related activities, restaurant food and beverage, fine arts, media production, IP/trademark provider/owner, payroll services, and credit services). These were located in various jurisdictions principally, the USA, Turkey and Netherlands, but also Cayman Islands, Isle of Man, Luxembourg, British Virgin Islands (BVI), Malta, Malaysia, Saint Vincent, and Spain. In the USA there were eight entities, three of which where net assets were recorded at around $86 to $87 million each.

64. There were also 18 regulated entities in Turkey, BVI, Indonesia, Malta, Germany, Spain, Mauritius, USA, Australia, South Africa, Puerto Rico, and Malaysia covering areas such as investment services (the largest of which was in Turkey where turnover is specified of around $89m) portfolio management, payment service, credit services and banking (three entities, two for which net asset figures are specified: these were around $13m for the one in Hungary, $12m for the one in Puerto Rico). While there was no underlying financial information such as accounts backing up the particular amounts stated, I did not understand the FCA to dispute that Mr Garipoglu’s business interests are significant or the international and sectoral breadth of the business entities he ultimately owned.

65. What it is not possible however to derive from this information in isolation is any meaningful sense of the nature and scale of impact as a result of any negative media coverage because of the publication of the Decision Notice.

66. Such other indications as there are do not appear consistent with significant harm being suffered. To the extent it is maintained that Mr Garipoglu’s role was as a passive shareholder who was not involved in the day-to-day running of some or all of the entities, that did not suggest that publication of the Decision Notice would likely lead to withdrawal of financing or loss of clients and suppliers in such businesses. Similarly, while it is plausible that competitors might seek to exploit the Decision Notice, there is an insufficient basis to conclude they would be successful in doing so, particularly in relation to entities where Mr Garipoglu had no direct operational or management role. There is no evidence of how customers or suppliers, in particular with regard to non-regulated sectors, would react to the finding that Mr Garipoglu is not fit and proper in circumstances where that finding had been arrived at in relation to his attitude to regulatory risk in the financial services sector and anti-money laundering compliance. There is similarly no evidence or explanation regarding the extent of any actions that foreign regulators would take upon publication (although Mr Bennett’s evidence touched on this the evidence was very high level and as mentioned he accepted in cross-examination that this was not an area of his expertise).

67. The applicants also sought to rely on an FCA statement at [69] of the Decision Notice. This paragraph was part of the FCA’s response to Mr Garipoglu’s representations on the effect on him and others on the imposition of the order. Under the heading “prejudice flowing from a prohibition order” the paragraph acknowledged: “…that the imposition of a prohibition order may have a significant impact on Mr Gariploglu and his business interest (including his employees and clients)…”

68. I agree with Mr Temple however that this cannot be interpreted as a concession that publication of the prohibition order would have such impact. Rather, it concerns an acknowledgement in relation to the imposition of the prohibition order. As Mr Temple pointed out one would expect a regulated entity within a group to report to overseas regulators when a prohibition order was imposed irrespective of whether or not it had been published.

69. In his submissions, Mr Morris sought to suggest, highlighting the net asset figures for the regulated entities (see [64] above), that publication could result in losses in the order of tens of millions of dollars. He did not shy away from Mr Temple’s criticism that these figures had been “plucked from the air” but instead emphasised that was a function of the conjecture involved and the difficulties in obtaining evidence.

70. For the reasons already discussed I do not accept those are valid reasons. The applicant’s written submissions also encouraged the tribunal to “use common sense and take judicial notice of likely human reactions to damaging material being published”. However beyond perhaps a recognition that there will be some loss of reputation arising from the publication of the FCA’s findings regarding the applicant’s fitness and propriety such approaches are no substitute for the insufficiency of evidence.

71. There is accordingly no adequate evidential basis to conclude there is a serious likelihood of harm or a real risk of harm to Mr Garipoglu, by virtue of diminution in value of his assets or indeed to others.

72. Turning then to the balancing of the competing considerations in this matter, there is on one side the strong presumption in favour of public disclosure, grounded in principles of transparency and the clear intention of Parliament that the FCA will normally have publicised Decision Notices by this stage of the proceedings. While the applicant argues that any non-publication sought would only be for the limited duration of the proceedings I disagree this materially diminishes the weight to be given. The time period during which the reference is pending is one which the statutory scheme had specifically envisaged the decision notice would be published. It also fails to recognise the significance of open justice applying during the currency of proceedings.

73. On the other side are concerns raised by the Applicant regarding reputational damage. It was not in dispute that a risk of damage to reputation is unlikely to be sufficient to justify a prohibition on publication (as set out in Prodhan at [22]). Insofar as the media coverage, particularly that in Turkey, might be personally intrusive then it must be acknowledged that this arises from the reporting by the press of matters which are not contested. As reflected in the approach taken in a number of cases I would in any event put such discomfort and embarrassment in the same category as reputational damage which is to be tolerated as an inherent feature of being involved in litigation. Mr Bennett’s evidence also mentioned personal difficulties Mr Garipoglu might face when seeking to open bank accounts, access financial services or invest in other businesses given the due diligence that would be carried out that would reveal the prohibition in the Decision Notice. However even if the fact such difficulties might be encountered is taken at face value (it did not seem to me to be an area Mr Bennett claimed expertise in), then the difficulties would amount to inconvenience of being subject to delays or being put to further explanation rather than any serious personal difficulty in Mr Garipoglu’s day to day living.

74. The potential harm advanced is unsubstantiated and vague. I am not persuaded there is a significant likelihood of harm. Nor, to the extent there is any material difference am I persuaded that there is, to adopt the applicant’s own proposed threshold, a “real risk of harm”. In balancing the competing factors, and with very little to weigh against the presumption in favour of publication (whether characterised as strong or otherwise) the balancing clearly favours publication.

75. In my judgment there being no demonstrable unfairness if publication were to be granted, Mr Garipoglu’s application to prohibit publication must be refused.

76. There was some debate between the parties’ respective positions regarding the extent to which the harm to third parties was relevant to take into account (the FCA pointing to passages from Prodhan (at [27]-[28])suggesting that it was irrelevant). However given there was no adequate evidence of harm, whether in respect of Mr Garipoglu let alone third parties such as employees, customers or other entities, the point does not arise for determination on the facts of this case.

77. Even if I were, in Mr Garipoglu’s favour, to assume some evidence of harm had been established (whether as a significant likelihood or as a real risk), the Tribunal would still need to consider whether any damage caused by publication would be disproportionate damage so as to be unfair. In this case, I agree with Mr Temple that it is relevant to take account that the FCA’s finding that Mr Garipoglu was not fit and proper is uncontested and the likelihood is, given the principles to be applied would be the same, that the final hearing would be held in public and the findings would therefore come to light then. While the applicant argues the privacy of any substantive hearing is not an issue for now and would need to be the subject of a separate application, there is no indication that the evidence adduced for that application would be put on a significantly different basis. It would equally be the case also, for the reasons already explained, that the object of the proceedings would not be defeated by a public substantive hearing.

78. To the extent a risk of foreign regulatory reaction leading to loss were to be assumed, any evaluation of whether that led to damage that was unfair or disproportionate would, in my view, need to take account that the regulatory action would likely be justified by the underlying misconduct (which is not contested) rather than the form of regulatory order imposed and that it would presumably be taken for legitimate regulatory reasons of public interest. The proposition that publication should be prohibited because of a fear of damage consequent on other regulators taking actions they might reasonably be expected to given their public functions is a self-evidently unattractive one in terms of the public good of regulatory reciprocity and co-operation.

79. While the applicant submits that it is relevant that the reference is not one where there is no real prospect of success, (noting that the FCA has made no application to strike out the proceedings) this factor is in my view neutral as regards the question of whether publication should be prohibited.

80. Mr Morris’s point, in assessing the benefit to the FCA of publication, that that should take account that Mr Garipoglu’s decision is but one amongst the 100 or so Decision Notices that the FCA have published (whereas by contrast that one decision will have a major and significant impact on Mr Garipoglu) is misconceived. It would lead to the result that any individual harm would likely always outweigh the public interest failing to give such interest due recognition.

81. Finally, even if an American Cyanamid type balancing test as proposed by the applicant were to be carried out, then I would disagree such balance would point in the applicant’s favour. The harm alleged arises from the publication of uncontested conclusions that Mr Garipoglu is not fit and proper and the largely uncontested conduct giving rise to that. The prejudice from publishing true and uncontested allegations would not, in my view, be greater than the prejudice that would arise from withholding publication in circumstances where the legislation envisaged that even contested allegations may be published. Application to prevent details should be published on register

82. The relevant rule, Rule 3(3) is set out above at [15]. The approach taken by the Upper Tribunal in Arch, with which I agree, is that the question as to whether details should be withheld from the Register in a case where that issue is being determined alongside a decision on publication of a Decision Notice involves the same principles (see Arch [43] and [22] above).

83. For all the reasons already considered in relation to such principles as regards publication of the Decision Notice I am not satisfied that it is necessary to withhold Mr Garipoglu’s details from the register. As regards the matters mentioned in Rule 3(3) publication does not result in unfairness to the applicant and no question of any prejudice to consumers arises. There is even less reason to suppose, in a situation where details of the Decision Notice will be published, that harm would arise from publication of Mr Garipoglu’s name in the register. Consistent with the scheme of Rule 3(3) which presumes publication and with the open justice principle it is important for it to be known that such Decision Notice is the subject of a reference and the further proceedings of this Tribunal.

84. I therefore do not consider the tribunal should exercise its discretion to not publish Mr Garipoglu’s details on the register and refuse his non-publication application in this regard. Application to strike out in relation to GKPay and direction for non-publication

85. In relation to GKPay, as mentioned, the FCA had refused authorisation on the basis that Mr Garipoglu a person with a qualifying holding in GKPay was not fit and proper. That view was based on the e-mails in the period 2012 to 2015 concerning his disregard of AML obligations, general regulatory requirements and indicating a lack of integrity (together with incorrect responses given on controller applications).

86. The Upper Tribunal had, on 2 June 2021, made an order by consent ordering that there be no publication of the GKPay Decision Notice “until after determination of the Reference or further order in this respect of the Upper Tribunal”. The Tribunal further ordered that: “The issue of whether there shall be no publication of the name of the Applicant’s owner in the Decision Notice as a person who was not found to be fit and proper shall, if need be, be heard at the end of the substantive hearing of this Reference.”

87. While on 4 May 2022 the GKPay reference was stayed until the date of any decision notice issued to Mr Garipoglu, with the issue of Mr Garipoglu’s Decision Notice on 4 March 2023 that stay has long expired. The proceedings have not progressed significantly however. GKPay no longer contests the finding that Mr Garipoglu is not fit and proper, lays dormant and has no intention of seeking to become authorised again. It has on the contrary indicated its intention to withdraw its reference. The reason it has not done so appears to arise from the concern that any publication of the GKPay Decision Notice (given its extensive references to the conduct of Mr Garipoglu) would cause serious harm to Mr Garipoglu and his interests. The case for thus non-publication accordingly rests on the concern that publication will interfere with and undermine the purpose of the non-publication orders sought in respect of Mr Garipoglu’s reference. It is acknowledged that this point is advanced by Mr Garipoglu who is a third party in relation to GKPay’s application (it being common ground the relevant AEMI Regulations do not confer third-party rights on him analogous to those which typically arise in relation to references under FSMA). For the purposes of the disposal of the GKPay application the FCA do not seek to argue his interests are incapable as a matter of legal principle of being taken account of, given the terms of the order made by the Tribunal which specifically had in mind the issue of his name being referred to would be considered.

88. In the light of my rejection of Mr Garipoglu’s arguments for the non-publication orders in respect of his reference, and that there will no longer be any prohibition on the FCA’s publication of the Decision Notice in respect of Mr Garipoglu, there is accordingly no legal or evidential basis on which to prohibit disclosure of the GKPay Decision Notice.

89. Noting that the consent order was made subject to the further order of the tribunal I now specifically order that the non-publication order in respect of the GKPay Decision notice is lifted.

90. As regards the FCA’s application under Rule 8(3)(c) of the Upper Tribunal Rules to strike out on the basis the reference has no reasonable prospect of success, there appears no reason from GKPay’s point of view, to maintain its reference. In the circumstances, and where GKPay’s intention to withdraw had effectively been subject to determination of the publication issue, but where that issue has now been determined (in the FCA’s favour), I agree that the GKPay reference may be regarded as having no reasonable prospect of success and should accordingly be struck out. Further directions

91. In accordance with the practice the tribunal has adopted in relation to non-publication applications of this kind I direct that:

1. The FCA is to ensure that any publicity given to Mr Garipoglu’s Decision Notice makes it clear that the decision is provisional, and that any press release issued by the FCA in connection with its publication clearly states at its beginning that any findings in the Decision Notice are provisional and reflect the FCA’s belief as to what occurred and how the FCA considers such behaviour should be characterised.

2. This decision will be published on the Upper Tribunal’s website, but only after the Decision Notice in respect of Mr Garipoglu has been published. The FCA is therefore directed to inform the Tribunal when publication has occurred. JUDGE SWAMI RAGHAVAN Release date:9 October 2025