Christian Bittar was a trader holding the position of Manager of a bank’s Money Markets Derivatives (MMD) desk in London during the relevant period.

On 23 April 2015, the FCA published a Final Notice imposing a penalty on the bank for misconduct, including the attempted manipulation of the LIBOR and EURIBOR benchmarks (the Final Notice).

Mr Bittar made a reference to the Upper Tribunal under s393(11) FSMA 2000, claiming that he had not been provided with a copy of the Decision Notice which preceded the Final Notice and which identified and prejudiced him on the basis that the Decision Notice (which he had not seen) was in the same form as the Final Notice.

The Final Notice detailed findings against the bank in relation to Principle 5, including that the bank’s MMD desks was engaged in a course of conduct to manipulate benchmark submissions.  The Final Notice also stated that “Managers at [the bank] were central to this misconduct”; including “Manager B” to whom a number of “striking quotations” were attributed.  Mr Bittar’s case was that market participants who read the Final Notice and who were familiar with the bank’s MMD operations would conclude that he was Manager B.

The Upper Tribunal applied the legal test under s393 FSMA, as articulated in the recent case of FCA v Macris [2015] EWCA 490, which held that the correct test for identification is objective and should include consideration of what hypothetical individuals acquainted with the third party or operating in his area of the financial services industry might reasonably have known at the time of the publication.  The Upper Tribunal expressed the view that the test focuses on the knowledge that could reasonably be expected to have been obtained by well-informed market participants (such as Mr Bittar’s counterparties in other leading banks) without conducting an extensive forensic exercise to remind themselves of what they had read previously.  The Upper Tribunal referred to such individuals as “relevant readers”.

In making its determination, the Upper Tribunal acknowledged that Mr Bittar had been the subject of considerable media attention since his dismissal from the bank and referenced a number of contemporaneous articles published prior to the Final Notice which named him and, in some cases, attributed his dismissal to benchmark manipulation.  In addition, the Upper Tribunal noted that, despite the relevant confidentiality requirements, details of the Warning Notice issued to Mr Bittar of 15 May 2014 became public knowledge.

The Upper Tribunal considered that the Final Notice provided sufficient information about “Manager B” to lead a person acquainted with Mr Bittar to identify him (on the basis of his role and responsibilities and trading focus) given the information in the public domain.  The US regulatory notices (expressly referred to by the FCA in the press release accompanying the Final Notice) contained reference to the MMD desk head and to verbatim quotations which were also included in the Final Notice, which were likely to have been read by relevant readers and which would have reinforced their view that Manager B was Mr Bittar.

Despite the FCA’s submissions that Mr Bittar was relying on a process of logic rather than presenting evidence of third parties to demonstrate that individuals had in fact identified Mr Bittar, the Upper Tribunal concluded that there was “no doubt” that the relevant reader would conclude that “Manager B” was Mr Bittar.

However, the Upper Tribunal did not agree that Mr Bittar could have been identified through references to another individual in a Final Notice issued to another bank stating that: “to identify Mr Bittar through this route does require a process of forensic investigation which is not envisaged by the test in Macris”, taking into account that the relevant reader would not have retained details of publicity some three years previously.

On 13 November 2015, the SFO issued criminal proceedings against Bittar for manipulating EURIBOR (