Abdulali Jiwaji and Katrin Harter examine the FCA’s evolving approach to investigation-stage publicity in Financial Reporter

Introduction -  Recalibration, Not Retreat

The Financial Conduct Authority's approach to investigation-stage publicity has itself been under the spotlight in recent years.

The FCA had originally proposed widening the scope for naming (and shaming) investigation targets by bringing in a "public interest" test. Following consultation and significant criticism from market participants, it has ultimately moved away from that proposal, and retained the established "exceptional circumstances" threshold.

Recent developments demonstrate how those dynamics have played out in practice.

The "exceptional circumstances" test remains. What has evolved, as examined below, is the articulation of the criteria and process by which the FCA approaches naming decisions – and the judicial framework within which those decisions may later be reviewed.

From CP24/2 to PS25/5 - The Formal Threshold Retained

Consultation Paper CP24/2 proposed replacing "exceptional circumstances" with a broader "public interest" test for naming firms under investigation.

The suggestion that the FCA could take a more liberal approach to naming firms under investigation prompted significant opposition. Concerns were expressed as to the risk of irreversible reputational harm and the destabilising impact on firms. The danger was that naming in practical terms might be a punishment without completion of a fair investigation/enforcement process, resulting in something of a fait accompli.

In PS25/5 (3 June 2025), the FCA confirmed that it would retain the “exceptional circumstances” threshold for regulated and listed firms. As it stated, it had “chosen not to proceed with the proposal to apply a public interest test when considering whether to announce investigations into authorised persons or listed companies” in light of consultation feedback.

Alongside this, the FCA introduced changes to the Enforcement Guide setting out how it intended to approach decisions to name firms under investigation.

What Changed in the Enforcement Guide

In the revised Enforcement Guide ‘ENFG’, which came into force on 3 June 2025, the starting point remains unchanged: the FCA will not normally publicise the fact that it is or is not investigating. Investigations will accordingly usually remain confidential. The question thus remains: what justifies a departure from that position?

As made clear in section 4.1.2G of the ENFG, the principal test for naming continues to be whether there are “exceptional circumstances” which justify doing so. The wording of that test, now to be found in 4.1.4G of the Guide, has remained the same.

As before, the Guide makes clear that exceptional circumstances may arise where the matters under investigation have become the subject of public concern, speculation, or rumour, in which case it may be desirable for the FCA to make public the fact of its investigation to allay concern or contain speculation. In deciding whether to make such an announcement, the FCA must also consider the potential prejudice to those who are, or are likely to be, the subject of the investigation. The Guide also makes clear that any announcement remains subject to the restriction on disclosure of confidential information in section 348 of the Financial Services and Markets Act 2000 and to applicable data protection and other statutory restrictions.

What the Guide now does, however, is to clarify and supplement that framework. It sets out three defined circumstances in which the FCA may make an announcement without relying on the exceptional circumstances test. These are limited categories:

• investigations into suspected unauthorised activity or suspected criminal offences connected with unregulated activity (where naming is considered desirable to warn or alert consumers or investors, or to assist the investigation, subject to consideration of potential prejudice) (ENFG 4.1.6G);
• reactive confirmation of an investigation where that fact has already been made public by the subject, an affiliated company or another public body (ENFG 4.1.7G);
• and anonymised announcements where the FCA considers it desirable for educational or compliance purposes (ENFG 4.1.8G).

While anonymised announcements were not unknown in practice, they are now expressly recognised within the framework.

The CIT / TCPA Litigation -  Judicial Analysis of "Exceptional Circumstances"

A recent challenge to a naming decision in the courts has thrown light on how the FCA approaches naming decisions, and on how the Court will scrutinise that decision-making in a judicial review challenge.

Part 1: The Judicial Review

In Part 1 (23 October 2025), the claimant challenged the FCA's proposed naming announcement by judicial review. The claimant contended that the FCA had materially misdirected itself in its interpretation of the Guide, or, alternatively, that the decision was unlawful as being unreasonable either in its outcome or in the reasoning process by which it was reached.

The High Court dismissed the substantive claim while preserving anonymity pending appeal. 

A few key points arise from the court's analysis.

First exceptionality under ENFG 4.1.4G is assessed "relative to investigated-situations" not "relative to regulated-situations." The relevant comparator is the universe of FCA investigations, not the universe of regulated activity. As the Court explained, it would be a mistake to say that a case is exceptional simply because it is serious enough to warrant investigation. The question - with the clear baseline being that there is no publication of the fact of investigation - is whether it is an exceptional investigation, not merely an exceptional regulatory situation.

Second, seriousness alone does not render a case exceptional. A case may involve serious alleged misconduct and yet not justify naming. The FCA must identify features that distinguish the case from other serious investigations. In CIT, the Court recorded that the FCA relied, among other matters, on factors such as the number of customers potentially affected and the regulatory assessment of consumer protection risk. These matters were not treated in isolation but formed part of a composite evaluative exercise addressing desirability, exceptionality, and prejudice.

Third, the Court confirmed that the FCA must justify naming specifically, not merely publicity in general. As the Court accepted, the desirability assessment under ENFG 4.1.4G must be judged against both alternatives: no announcement, and an anonymised announcement. The FCA must be able to demonstrate that it has meaningfully considered whether anonymisation does give a genuine alternative path.

Given that this was a judicial review, the approach taken by the Court followed established principles of public law.

As the Court put it, the question was whether the FCA's decision was "outside the range of reasonable decisions open to [it]" or whether there was a demonstrable flaw in the reasoning process. The claimant therefore had to demonstrate either a material misinterpretation of the Guide or outcome unreasonableness or reasoning-process unreasonableness.

The Court rejected both limbs of challenge.

On interpretation, it found no material misdirection: when read fairly and as a whole, the record did not reflect any misunderstanding by the FCA of the Guide’s structure or of the need to justify naming against the relevant alternatives.

On reasonableness, the Court accepted that some aspects of the reasoning could be criticised - particularly when viewed specifically as justification for a naming announcement rather than an anonymised one. However, the reasoning was composite rather than sequenced; it did not separate rigidly the questions of whether to announce and whether to name. While a more segmented approach might have been clearer, its absence did not render the decision unlawful.

Crucially, the Court identified what it described as a dominant “key theme” in the FCA’s reasoning. That theme was the regulator’s assessment that only a naming announcement would effectively and promptly alert the firm’s customers to the existence of the investigation, thereby enabling them to consider their position. Alternatives - including anonymised publication or customer communications not disclosing the investigation - were considered but assessed as insufficient to achieve the same consumer protection objective. The Court described this evaluative regulatory judgment as “fatal” to the reasonableness challenge.

As one would expect with a public law challenge, the Court did not substitute its own view for that of the regulator. Assessments of desirability, exceptionality and prejudice were for the FCA, subject only to conventional reasonableness review by the court. The focus was on whether there had been a material misdirection or irrationality, not on whether the Court would have reached the same decision.

Part 2: Anonymity Lifted

Following the refusal of permission to appeal, Part 2 (2 January 2026) was handed down lifting anonymity and confirming that the firm was The Claims Protection Agency Ltd (TCPA). On the same day, the FCA formally named TCPA and announced the investigation.

This is a good example of how the process operates in practice. The case has allowed both the FCA and the market to see how the "exceptional circumstances" threshold is applied and how decision making will be reviewed. 

It is also significant that the process can take some time, and, in practical terms, the judicial challenge delayed the process of naming the party under investigation.

Internal Decision-Making and Notice - Practical Realities

The judgment also provided insight into the FCA's internal process and governance.

The initial recommendation from the case team was for an anonymised announcement.  Interestingly, that recommendation was then revisited after the decision-maker asked the team to reconsider specific points. Subsequently, an augmented case team produced a further memorandum recommending naming.

The litigation also highlighted the compressed timelines. TCPA received approximately 24 hours' notice of the intention to name it. That contrasts with the 10 business days' notice contemplated (but ultimately not adopted) in CP24/2. Firms may therefore face very limited time to consider options and, where appropriate, seek urgent judicial review.

Judicial review of a naming decision will typically require an urgent application for interim relief to prevent publication pending determination. The window for action may be measured in hours rather than days.

Once the information is out, the practical consequences may be difficult to unwind.

The Enforcement Website and Recent Announcements

Alongside the changes made to the Enforcement Guide, the FCA has revamped its website to reflect publicising at the investigation-stage.

By filtering for “Enforcement investigations” within the News section of the FCA’s website, market participants can now view those investigations the FCA has chosen to announce publicly. This makes it easier for the market to identify and track those cases where the FCA has decided to depart from its default position of confidentiality.

Since late 2025 and into early 2026, the page has been populated with announcements spanning a range of contexts, including:

• Investigation into John Wood Group plc (27 June 2025) - a short statement confirming that the FCA has opened an investigation following the company’s own market announcement via RNS.
• Investigation into Drax Group plc (28 August 2025) - similarly framed as confirmation of an investigation following prior public disclosure by the company.
• Investigation into Moneda Capital Group (15 October 2025) - a statement announcing an investigation into a group of entities, naming associated firms and individuals and providing contact details for potentially affected investors.
• Investigation into WH Smith PLC (19 December 2025) - confirmation of an investigation concerning potential breaches of UK Listing Principles and Rules and Disclosure and Transparency Rules in relation to matters previously disclosed by the company.
• FCA opens investigation into The Claims Protection Agency Limited (2 January 2026) - announcement of investigation into TCPA following concerns about its advertising and sales tactics in relation to potential motor finance claims. The announcement includes ‘Notes to editors’ setting out further background, including to the court proceedings covered above.

From this, it is apparent that several announcements concerning listed issuers are framed as reactive confirmations following prior market disclosures. Further, announcements concerning non-listed firms are often framed in explicitly consumer-protective terms, emphasising the need to alert customers and explaining why naming is considered necessary.

The launch of the Enforcement Watch newsletter (first published on 28 January 2026) further highlights naming decisions.

All of this effectively amplifies what the FCA is doing, which would be an important factor in the FCA's thought process in naming.

The Five-Year Strategy (2025 - 2030)  -  Where Publicity Fits

The FCA's approach to investigation-stage publicity sits within its broader strategic positioning. In its 2025-2030 Strategy, the Authority commits to acting faster and more assertively where harm is greatest, emphasising faster action, data-led supervision, consumer protection and harm prevention, clearer public messaging, and strengthened market confidence.

Naming can serve several of those objectives. It may mitigate consumer harm by alerting customers at an early stage; influence market behaviour before final outcomes are determined, and communicate enforcement priorities to the wider market. In that sense, publicity can be an important part of the regulatory toolkit.

Practical Implications for Firms

Investigation-stage naming continues to raise difficult questions of fairness and proportionality. The concerns expressed during consultation - procedural fairness, reputational harm and the risk of irreversible market impact - remain valid for market participants.

The CIT judgment demonstrates the limits of the scope for successful challenge. Judicial review provides some check, but is limited in nature. Further, not all firms will have the resources to pursue urgent proceedings, particularly given compressed timelines and the need to seek interim relief before publication occurs.

The implications for regulated firms are clear: where compliance or enforcement issues arise, firms need to be prepared for the possibility that theirs may be a case which the FCA considers appropriate for early-stage publicity.  Firms therefore need to have a holistic approach, and to be prepared to engage the requisite skills across different advisers, to cover the legal, regulatory and publicity risks, including for listed entities the impact on shareholders and market disclosure obligations.

Firms may, therefore, need to engage with the regulator at a very early stage as to whether there is an intention to publicise, and raise arguments if appropriate as to why an anonymised announcement may be appropriate.

Overall, the momentum is with the FCA on publicity. 

The formal test remains unchanged: publication at the investigation stage requires “exceptional circumstances”. However, it is a high bar for any firm to challenge a decision to publicise. Firms need to be ready for this new environment.