How to do a compliance check: information powers: third party notice: where approval is required: named person’s approval
The named person must be asked to approve the notice in the exact form in which it will be sent to the third party, except where the third party is a bank.
If you are asking for the person’s approval you should send the person a summary of the reasons why you need the information when you ask for their approval, see CH225430. There is no legal requirement to do this but the benefits for doing so are twofold
- the person may be more amenable to giving their approval if they know why you need the information
- it will put you in a position to seek tribunal approval if the person’s approval is not forthcoming.
You should advise the person that, if they are unwilling to give their agreement, you intend to ask for approval from the tribunal. At the same time you should invite the person to make representations to you that you can present to the tribunal for their consideration. This will put you in a position to seek tribunal approval should the person not approve.
CHApp1.4 (Word 40KB) is an example of the letter to the person giving a summary of your reasons and asking for their agreement to issue the third party notice.
CHApp1.6 (Word 42KB) is an example of the letter to the third party.
Where the person does not approve the issue of a third party notice the third party will need to be given the opportunity to make representations that you will present to the tribunal for consideration, see CH225460.
You should not usually consider issuing a third party notice unless you are unable to obtain the information from the person. By the time you approach the person for agreement to a third party notice, it will often be clear that you will need to issue the notice. If this is the case, you may at the same time issue the third party opportunity letter, see CHApp1.5 (Word 33KB). This will save time if the person refuses to agree to the notice. However, if there is a significant chance that the person will respond to your request for approval by providing the information or documents, a premature approach to the third party would be a breach of confidentiality and should be avoided.
For example, you may have reason to suspect that the person could obtain the information if he really wanted to. Seeking his agreement to a third party notice might provide an incentive for him to do so. Therefore you should not approach the third party at the same time.
If on the other hand it is clear that the information will not be released by the third party except under compulsion of a legal notice there should be no harm in taking both routes at once. Even if the person does give approval it will be useful to have received representations from the third party, which might lead you to draft the notice in a more restricted, less onerous way. But the notice must not be wider than that agreed by the person.