Can I Keep a DFSA Decision Private While I Challenge It?

A challenge to a DFSA decision does not automatically keep that decision private. A DFSA decision notice publication challenge needs its own legal and evidential basis, distinct from the underlying challenge to the regulator's findings. Identify whether you need to prevent publication, hold a hearing privately, protect specified information or suspend a sanction.

The Financial Markets Tribunal, or FMT, can review qualifying DFSA decisions. Its statutory framework favours transparency. The practical problem for a firm or individual is therefore not simply whether the decision is disputed. It is what protection can be justified while that dispute is being resolved, and how to request it before publication occurs.

Which part of the DFSA process do you want kept private?

This is an issue map, not a menu of orders available merely on request. Write down the threatened event, its expected date, the person affected and the precise protection sought. Attach the notice and the correspondence about publication. An application asking for everything to be confidential can conceal the narrower issue which genuinely needs urgent attention.

For example, sensitive customer details in an exhibit raise a different question from the fact that a regulated business faces a penalty. A private hearing would not, by itself, necessarily prevent a separate regulatory announcement. A suspension of a payment obligation does not necessarily prohibit publication either. Ask for advice on each required provision rather than treating the word "privacy" as covering every consequence.

Why can publication happen before the challenge is decided?

Article 29(5)-(8) of the Regulatory Law deals expressly with decisions referred to the FMT. The DFSA must publish the information it considers appropriate unless it considers publication prejudicial to DIFC interests or the FMT makes the specified preventing order. Publication is to occur as soon as practicable after referral, subject to that framework.

The same legislation requires the published information to state that the person exercised the right of reference and that the decision is subject to review. That qualification matters. Publication during a challenge should not be described as a final tribunal endorsement of the regulator's findings. Equally, the existence of the qualification does not mean the applicant can insist that nothing be published until the reference ends.

In preparing your response, obtain the version of the proposed publication that is available and identify any specific inaccuracy. Separate a disagreement with the regulator's conclusions from a concern that the announcement misstates the procedural position. If your reference disputes only the sanction rather than liability, make that distinction clear to your adviser as well.

Do not assume that preparing a reference notice creates a period of automatic secrecy. Record whether publication is proposed, temporarily deferred, prohibited by an order or already completed. Those are different factual positions. A request to stop an imminent announcement needs a different practical response from a request to correct the description of a challenge in material already published.

What must a DFSA decision notice publication challenge establish?

Article 29(8) requires the FMT to be satisfied both that publication would be likely to cause serious harm to the affected person or another person, and that prohibiting publication is proportionate. Proportionality is assessed against the principles of regulatory transparency and generally public FMT proceedings. A genuine concern about harm is not the whole statutory test.

Start with the event said to cause harm. Identify who will act on the publication, what action is expected, why it is likely and what evidence supports that expectation. A broad prediction that clients will be concerned does little to distinguish the application from the ordinary consequences of a contested regulatory decision. The supporting material needs to address your circumstances without inventing certainty.

Then explain why the requested restriction matches that harm. Does the application seek a short deferral, protection of a particular item, a private part of a hearing or a much wider prohibition? Consider what the public would be prevented from learning and why a less extensive order would not meet the concern. These are preparation questions, not assurances that any particular restriction will be granted.

Key takeaway. A disputed decision and a serious privacy concern do not create automatic secrecy. Identify the harm, the evidence and the proportionate order, separately from the merits of the regulatory challenge.

Be precise about uncertainty. A witness can explain an actual conversation, a contractual consequence or a decision within their knowledge. They should not turn an assumption about how the entire market will react into an asserted fact. The application is stronger when the evidence shows its limits openly.

What did KPMG and Navalkar decide about privacy?

In KPMG LLP and Navalkar v DFSA, the applicants sought private FMT hearings and temporary prohibition of publication of the decision notices pending the merits hearings. The DIFC Court dismissed their appeals. The amended reasons were issued on 29 September 2022 following minor proofing corrections which did not change the conclusions.

The court explained that an appeal confined to a point of law does not authorise it to revisit the merits of the FMT's discretionary assessment or substitute its own view of the weight of the evidence. It also rejected an approach which treated the serious-harm and proportionality requirements as creating an entitlement to non-publication. Their satisfaction was necessary to the statutory power, not an automatic right to the order.

The judgment is useful for understanding the difficulty of obtaining privacy and then challenging a refusal. It should not be used as a substitute for the current procedural rules. In particular, the historical rule numbering and wording reproduced in the case differ from the FMT Rules amended in May 2024. The present private-hearing test is addressed separately below.

The later history also matters. The DFSA's 3 November 2022 announcement records that both applicants withdrew their merits references. This is therefore not an account of challenges still awaiting determination. Nor was the September privacy judgment itself the tribunal's merits determination of the underlying audit findings.

Is reputational damage enough to obtain a private hearing?

Under current FMT Rules 15 and 16, proceedings and decisions are ordinarily public. A direction for a private hearing, or part of one, requires likely serious harm from not giving the direction and proportionality. The tribunal must take regulatory transparency and generally public proceedings as the starting basis of its consideration.

This is not a rule that reputational consequences can never matter. It is a reason to describe the anticipated harm carefully, support it and address the competing interest in an open process. Saying that a hearing concerns disputed allegations does not explain why this hearing, or a specific part, should depart from the ordinary position.

Prepare a hearing map showing the issues, witnesses and material for which privacy is requested. If the concern arises only when a particular confidential document is discussed, explain why that should affect the entire hearing or why a narrower arrangement would suffice. Do not assume the tribunal must choose between total secrecy and unrestricted disclosure of every piece of evidence.

The May 2024 explanatory memorandum confirms that the revised Rule 16 applies the same serious-harm and proportionality test used for preventing publication under Article 29(8). It also emphasises prompt privacy applications. Historical submissions about a differently worded rule should not be recycled without checking the current text and the particular relief now sought.

Can specific information receive narrower protection?

Rules 17-20 provide a distinct confidential-treatment mechanism for specified information. The application must state the grounds of objection to public disclosure and, where applicable, include a sealed copy of the information. The tribunal considers the public interest, likely serious harm and how far disclosure is necessary to explain its decision.

Prepare a schedule identifying the exact passages or fields, not merely whole files labelled "confidential". State who is affected, whether the information is already public and what proposed redaction would leave visible. Include enough context for the tribunal to understand the issue without requiring it to guess why a whole document has been withheld from public view.

Rule 20 addresses confidential handling of materials connected with the confidential-treatment application while it is determined. It is not a general assurance that filing any privacy request makes the whole regulatory dispute secret. Confirm the applicable directions and the treatment of each document before circulating it beyond the permitted recipients.

A confidentiality request should also be workable in practice. Maintain a clear distinction between the complete evidence version and the proposed public version. Inconsistent redactions across a witness statement, its exhibit and the written submissions can defeat the purpose of a carefully framed request.

What evidence should a firm or individual gather?

Build the application around evidence from people with direct knowledge of the relevant risk. For a business, that might include records of a counterparty's stated position, an actual contractual condition or the basis of a particular operational concern. These are possible evidential categories, not findings that they necessarily amount to serious harm.

Keep the chronology accurate. A client who had already ended the relationship before the proposed publication cannot simply be presented as a future loss caused by it. Where several events could explain an anticipated consequence, identify them. Your adviser needs to understand the real causal difficulty before choosing which evidence to rely on.

An individual's application also needs attention in its own right. The fact that an employer has filed evidence does not answer every question about the individual's circumstances. Equally, where the regulatory matters are intertwined, do not pretend they can be separated without affecting the description of the case. KPMG and Navalkar illustrates the importance of the actual relationship between the two applications.

Medical or family information, if genuinely relevant, should be handled through a properly considered confidentiality request rather than unnecessarily reproduced throughout the case papers. This guide does not suggest that such evidence guarantees privacy. The practical aim is to present only what is needed, through the appropriate process, without creating avoidable additional disclosure.

Keep evidence and argument separate. The witness should explain what happened and the basis of their knowledge. The legal submissions should then explain how those facts meet the statutory test. A statement full of conclusions such as "clearly disproportionate" may leave the underlying facts unexplained.

How early should the application be made?

The current Rule 24 requires the reference notice to identify the issues and relief sought, including whether a stay is requested and whether the applicant seeks the relevant non-publication or private-hearing order. Use the current form and requirements. Do not wait for a complete merits trial bundle before raising an urgent publication problem.

Article 29(3) ordinarily requires a reference within 30 days of the relevant DFSA decision. It allows a further period not exceeding 30 days if approved by the FMT in the prescribed circumstances. That is not an automatic additional month. Obtain advice immediately on the date, applicable route and any extension request rather than treating privacy discussions as suspending the reference deadline.

Ask for a timetable that addresses the publication risk. Rules 13 and 14 provide for interim and urgent procedural action, and Rule 45(e) covers directions for privacy and confidential-treatment applications. Whether interim protection is available, and on what terms, depends on the actual application. An acknowledgement from the Secretariat is not itself a preventing order.

Keep a single chronology of the decision, receipt of relevant communications, reference filing, privacy request and any temporary arrangements. Record the exact expiry of any agreed deferral or interim order. If publication is anticipated before the next listed event, bring that issue to your adviser promptly rather than assuming the hearing date automatically preserves the position.

Does privacy also suspend the penalty or restriction?

No. Protection from publication and suspension of the operation of a decision address different consequences. Article 31(5)(i) gives the FMT a stay power in a reference. Rule 69(c) provides for interim suspension where appropriate, on conditions which may include costs or money held to the FMT's order.

The 2024 explanatory memorandum gives payment of a disputed penalty into controlled custody as an example of a possible condition. That is not a promise of suspension on payment, nor a requirement that every applicant pay the full penalty to obtain relief. The particular order, the decision under challenge and the tribunal's assessment remain important.

List each operative requirement in the decision separately. A fine, restriction, prohibition and publication provision should not be collapsed into a single line saying "sanctions stayed". Ask which provisions continue to operate, which are suspended, what conditions apply and what event brings interim protection to an end.

For management purposes, circulate a short accurate account of the order to the people responsible for compliance. They need to know what they may actually do, not merely that lawyers are challenging the decision. A successful procedural application is not permission to disregard obligations which the order leaves in place.

What if the FMT refuses privacy?

Al Ramz Capital v DFSA, 23 January 2025, is a later illustration of the limited court route. The court refused permission to appeal a privacy decision, an oral hearing and a further stay. It applied KPMG and rejected attempts to reargue the tribunal's assessment without establishing the required legal error.

That was a permission decision about privacy, not a court merits judgment on the underlying regulatory allegations. The distinction affects what can properly be inferred from it. A refusal to reopen the privacy decision does not itself answer every issue in the regulatory reference.

Article 33 permits an appeal from the FMT only on a point of law and requires permission, first from the FMT and, if refused, from the court. Current Rules 87-89 require a written FMT application identifying the decision, alleged legal errors and result sought. Rule 88 specifies receipt within 28 days after the Secretariat sent written notice of the decision, subject to the applicable procedural framework.

Have the reasons reviewed promptly. Identify the alleged error in the test, procedure or legal approach and the difference it made. Disagreement with the tribunal's assessment of your evidence is not enough simply because the consequences feel severe. A costs estimate should accompany the decision whether to pursue the challenge, not arrive after it has become another substantial dispute.

Keep the tribunal's permission decision and the accompanying notification. Rule 91 requires a refusal to include reasons and information about the right to apply to the court, including the time and method. Do not substitute the deadline for the original regulatory reference for that later court step. If permission is granted only on some grounds, identify which grounds remain outside it before preparing the next application.

What should be planned if publication proceeds?

Maintain separate legal and operational plans. The legal plan should identify any available application, the evidence needed and the applicable deadline. The operational plan should establish who will check the published wording, inform the necessary decision-makers and maintain an accurate record of the procedural position.

Any proposed response should be checked for accuracy and consistency with the orders. Do not suggest that a privacy application has succeeded when it has only been filed. Equally, do not describe a decision as unchallengeable merely because publication has occurred. Regulatory findings, tribunal review and court permission proceedings have distinct procedural meanings.

If there is an error in the public description, preserve the published version and the relevant source documents. Seek advice on the correct correction route and the wording requested. Public argument about the merits can create new difficulties if it discloses material subject to an order or makes assertions beyond the evidence.

What should the initial instruction file contain?

1. Provide the complete decision, its date and the related publication correspondence.
2. Identify the reference deadline and whether proceedings have already commenced.
3. Separate non-publication, private-hearing, confidential-information and suspension requests.
4. Collect the evidence of likely harm and mark any limits in the witness's knowledge.
5. Prepare the proposed protection, its duration and any narrower alternatives.
6. Keep the latest orders and operational responsibilities in a single current record.

Ask the adviser to identify what can be determined urgently and what requires further evidence. A short, well-supported application about a defined risk may be more useful than a broad narrative about every perceived unfairness in the investigation. That is a preparation principle, not a prediction about the tribunal's decision.

Where another person supplies sensitive evidence, clarify who is seeking protection and what that person has actually authorised you to disclose. Keep their original instructions with the evidence record. Do not promise them absolute confidentiality before the tribunal has determined the request or the governing directions have been checked.

Common mistake. Treating a reference as an automatic publication ban can leave the urgent issue unanswered. Challenge the decision and address the requested privacy protection as separate, connected tasks.

Sources checked on 1 October 2026. This guide uses the DFSA's current consolidated Regulatory Law and the FMT Rules amended on 2 May 2024. Case examples are confined to their privacy or permission outcomes. Filing decisions require advice on the operative text, the actual decision and any subsequent orders in your matter.

Frequently Asked Questions

Does referring a DFSA decision to the FMT automatically prevent publication? No. Article 29 provides for publication of information about referred decisions, subject to its stated exceptions and any appropriate preventing order.

Must the announcement mention that the decision is under review? Article 29(6) requires published information under that provision to state that the person exercised the right of reference and that the decision is subject to review.

Is serious harm alone sufficient for a publication prohibition? No. Article 29(8) also requires proportionality against regulatory transparency and generally public proceedings. Satisfaction of the conditions is not an automatic entitlement.

Can part of a hearing be private without closing the whole case? Rule 16 expressly addresses a hearing or part of one. The serious-harm and proportionality requirements still apply.

Can particular evidence be protected separately? Rules 17-20 provide for confidential treatment of specified information. The request needs grounds and, where applicable, a sealed copy.

Does an order preventing publication suspend a financial penalty? Not necessarily. Suspension is a separate issue under Article 31 and Rule 69. Read the operative order and its conditions.

Can the court simply take a more favourable view of my privacy evidence? An Article 33 appeal is confined to a point of law and requires permission. KPMG and Al Ramz illustrate why rearguing the evidential assessment is insufficient.

Were the KPMG and Navalkar merits references left pending? No. The DFSA announced on 3 November 2022 that both were withdrawn. The earlier court decision concerned privacy, not the merits of the audit findings.

This article is for general information and does not constitute legal advice. Consult a qualified advocate about the regulatory decision, applicable deadlines, supporting evidence and appropriate confidentiality or interim application.

Related Guides

See the Dubai and DIFC information hub and the guides to investment mis-selling disputes, suspended fund redemptions and missed DIFC appeal deadlines. Those issues have different legal tests from a regulatory privacy application.

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