Olympic Airlines Sa Pension and Life Assurance Scheme v Olympic Airlines Sa: ChD 29 May 2012

Olympic Airlines, incorporated in Greece, but with headquarters in London, went into liquidation. The pensions scheme had been run with a deficit. The trustees no sought the winding up of the company under British law.
Held: To be an establishment for the purposes of the Insolvency Regulation the following qualities must be present on the date the petition was presented:
(1) a place of operations, at which –
(2) the company carries out an activity which is:
(a) economic, and
(b) non-transitory,
(3) with
(a) human means, and
(b) assets. OA satisfied each of those conditions.

Sir Andrew Morritt Ch
[2012] EWHC 1413 (Ch)
Bailii
Insolvency Act 1986, Pensions Act 1995, Council Regulation (EC) 1346/2000
England and Wales
Citing:
CitedStaubitz-Schreiber (Area of Freedom, Security and Justice) ECJ 17-Jan-2006
ECJ Judicial cooperation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Temporal application – Court having jurisdiction . .
CitedInteredil Srl, in liquidation v Fallimento Interedil Srl, Intesa Gestione Crediti SpA ECJ 20-Oct-2011
interedill2ECJ2011
ECJ Reference for a preliminary ruling – Whether a lower court has the power to refer a question to the Court for a preliminary ruling – Regulation (EC) No 1346/2000 – Insolvency proceedings – International . .
CitedTrillium (Nelson) Properties Ltd v Office Metro Ltd ChD 9-May-2012
Winding-up petition in which the principal issue is whether or not Office Metro Limited can be wound up in this jurisdiction in the light of the fact that, despite its being an English registered company, its centre of main interest is in . .

Cited by:
Appeal fromOlympic Airlines Sa Pension and Life Insurance Scheme v Olympic Airlines Sa CA 6-Jun-2013
The court considered the the jurisdiction under EU law to commence a secondary winding-up in England of a company whose main liquidation is taking place in Greece. That depended upon whether the company, registered in Greece had a sufficient . .
At First InstanceOlympic Airlines Sa Pension and Life Assurance Scheme, The Trustees of The v Olympic Airlines Sa SC 29-Apr-2015
The airline was incorporated in Greece but with an office in the UK. It became insolvent leaving a deficit in the UK employee pension scheme. The trustees of the fund sought a secondary insolvency within the UK, and now a reference to the European . .

Lists of cited by and citing cases may be incomplete.

Insolvency, European, Financial Services, Employment

Updated: 06 December 2021; Ref: scu.459890

JP Morgan Chase Bank, National Association v Northern Rock (Asset Management) Plc: ChD 19 Feb 2014

The 2008 Order had made retrospective provision as to the duty to furnish certain statements to consumer borrowers. The court was now asked: ‘where a creditor has provided the debtor with a statement which fails to set out the information required by the Regulations (‘a non-compliant statement’), when does the period of non-compliance commence?’ The parties had made loans, and later traded in the loans between themselves. The effect of a non-compliance with the requirements affecte dthe enforcability of the loans.

Simon Monty QC
[2014] EWHC 291 (Ch), [2014] CTLC 33, [2014] 1 WLR 2197
Bailii
Consumer Credit Act 1974 77A, Consumer Credit Act 2006, Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations 2007, Legislative Reform (Consumer Credit) Order 2008

Financial Services

Updated: 05 December 2021; Ref: scu.527186

Khan v The Financial Conduct Authority: UTTC 8 Apr 2014

UTTTC FINANCIAL SERVICES – financial penalty for submitting fraudulent mortgage applications – whether conduct of applicant dishonest or recklessfound to be dishonest-whether imposition of financial penalty appropriateyes – scale of appropriate penalty – whether appropriate in the circumstances to take account of applicant’s means – yes – Authority directed to impose penalty of andpound;80,000 – reference dismissed

[2014] UKUT B6 (TCC)
Bailii
England and Wales

Financial Services

Updated: 03 December 2021; Ref: scu.525884

Macris v The Financial Conduct Authority: UTTC 10 Apr 2014

FINANCIAL SERVICES – preliminary hearing – third party rights – s 393 Financial Services and Markets Act 2000 – whether applicant identified in notice – yes

[2014] UKUT B7 (TCC)
Bailii
England and Wales
Cited by:
At UTTCThe Financial Conduct Authority v Macris CA 19-May-2015
Appeal by the Authority against a decision by the Upper Tribunal (Tax and Chancery Chamber) deciding, as a preliminary issue determined in accordance with Rule 5(3)(e) of the Tribunal Procedure (Upper Tribunal) Rules 2008, that the respondent to . .
At UTTCFinancial Conduct Authority v Macris SC 22-Mar-2017
The claimant had complained that the appellant Authority had made public a penalty imposed on a former employer but implicating him without he being first given an opportunity to make representations. . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 03 December 2021; Ref: scu.525885

ABN Amro Group Nv v European Commission: ECJ 8 Apr 2014

ECJ State aid – Financial sector – Aid intended to remedy a serious disturbance in the economy of a Member State – Article 107(3)(b) TFEU – Decision declaring the aid compatible with the internal market – Conditions for approval of the aid – Acquisition ban – Whether consistent with the Commission communications concerning aid to the financial sector in the financial crisis – Proportionality – Equal treatment – Principle of good administration – Obligation to state reasons – Right to property)

ECLI:EU:T:2014:186, [2014] EUECJ C, [2014] EUECJ C
Bailii, Bailii
European

Financial Services

Updated: 03 December 2021; Ref: scu.525421

US Bank Trustees Ltd v Titan Europe 2007-1 (NHP) Ltd and Others: ChD 16 Apr 2014

Expedited trial of a Part 8 Claim issued by the Claimant as the trustee of a series of notes issued by the First Defendant, Titan Europe 2007-1 (NHP) Limited. The Note Trustee seeks answers from the Court to various issues concerning the interpretation and effect of the financial documentation of which the Notes form a part.

Richard Snowden QC
[2014] EWHC 1189 (Ch)
Bailii
England and Wales

Financial Services

Updated: 02 December 2021; Ref: scu.523833

Asset Land Investment Plc and Another v The Financial Conduct Authority: CA 10 Apr 2014

The court was asked whether certain sales of land, or arrangements relating to sales of land, at six sites in England were ‘collective investment schemes’ within the meaning of section 235 of the 2000 Act. The company appealed from a finding that they were.
Held: The liability on decision was upheld.

Rimer, Gloster, Sharp LJJ
[2014] EWCA Civ 435, [2014] BUS LR 993
Bailii
Financial Services and Markets Act 2000 235
England and Wales
Citing:
At ChDThe Financial Services Authority v Asset L I Inc and Others ChD 8-Feb-2013
The court was asked whether so-called ‘land-banking’ schemes were ‘collective investments schemes’ within section 235.
Held: Andrew Smith J discussed the difference in effect between the contra preferentem rule, and regulation 7 of the 1999 . .
CitedFinancial Services Authority v Fradley and Woodward CA 23-Nov-2005
The defendant appealed against a finding that the pooled betting scheme they operated was governed by the Act.
Held: Whether such an arrangement amounted to a collective investment scheme so as to be regulated was first a question of fact as . .

Cited by:
At CAAsset Land Investment Plc and Another v The Financial Conduct Authority SC 20-Apr-2016
Proceedings were brought against the appellant’s associated parties, alleging that they had carred on regulated activities without authorisation, contrary to section 19 of the2000 Act. They had offered various plots of land for sale, suggesting they . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 02 December 2021; Ref: scu.523652

Barclays Bank Plc v Unicredit Bank Ag and Another: CA 20 Mar 2014

This appeal raises the question of what is ‘commercially reasonable’ in the context of determinations made by parties to financial instruments.

Longmore, Patten, Christopher Clarke LJJ
[2014] EWCA Civ 302, [2014] Bus LR D15, [2014] 2 Lloyd’s Rep 59, [2014] 1 BCLC 417
Bailii
England and Wales

Financial Services, Contract

Updated: 01 December 2021; Ref: scu.522626

Gruslin v Beobank Sa/Nv, Formerly Citibank Belgium Sa: ECJ 13 Feb 2014

ECJ Opinion – Directive 85/611/EEC – Undertakings for collective investment in transferable securities (UCITS) – Facilities available ‘for making payments to unit holders’ in the Member State of marketing pursuant to Article 45 of Directive 85/611 – Delivery of unit certificates

Jaaskinen AG
C-88/13, [2014] EUECJ C-88/13
Bailii
Directive 85/611/EEC
European

Financial Services

Updated: 30 November 2021; Ref: scu.521825

Plevin v Paragon Personal Finance Ltd and Another: CA 16 Dec 2013

The claimant sought repayment of a personal protection insurance premium paid to her broker. The broker was now in insolvent liquidation, and she sought to recover the premium from the next intermediary.
Held: Any limitation of section 140A(1)(c) to acts or omissions for which the creditor was personally or vicariously responsible would imply that the subsection extended only to breaches of duty under the ICOB rules or the general law. Since the creditor would be legally liable for those anyway, even without section 140A, Mr Elliott’s argument would give section 140A very little additional effect. Briggs LJ considered that unfairness did not have to arise from a breach of duty. He therefore rejected what he called the ‘narrower’ view of the words ‘by or behalf of the creditor’ advanced on behalf of Paragon.

Moses, Beatson, Briggs LJJ
[2013] EWCA Civ 1658, [2014] Bus LR 553, [2013] WLR(D) 500, [2013] CTLC 209, [2014] ECC 10
Bailii, WLRD
Consumer Credit Act 1974 140A 140B 140C 140D
England and Wales
Citing:
BindingHarrison and Another v Black Horse Ltd CA 12-Oct-2011
The appellant sought under section 104A to recover a Payment Protection Insurance premium paid in support of a loan. The borrower dealt directly with the lender, who acted as an intermediary with the insurer. The commission taken by the lender was . .
Appeal fromPlevin v Paragon Personal Finance Ltd and Another Misc 4-Oct-2012
Manchester County Court – The claimant sought repayment of insurance premiums paid as payment protection insurance when aking out a loan with the defendants as advised by the second defendant. The second defendant was in liquidation by the time her . .

Cited by:
Appeal fromPlevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Consumer

Updated: 27 November 2021; Ref: scu.519007

Brewster v Northern Ireland Local Government Officers’ Superannuation Committee: CANI 1 Oct 2013

Appeal by the Committee and the Department of the Environment for Northern Ireland from a decision allowing the respondent’s application for judicial review of a decision by the Superannuation Committee not to pay a survivor’s pension to the respondent following the death of her cohabiting partner.
Held: The appeal succeeded. Higgins LJ found that the nomination requirement was not unjustified or disproportionate; and Coghlin LJ also concluded that the requirement had not been shown to be manifestly without reasonable justification.

Higgins LJ, Girvan LJ and Coghlin LJ
[2013] NICA 54
Bailii
Local Government Pension Scheme (Benefits, Membership
and Contributions) Regulations 2009
, European Convention on Human Rights 14
Northern Ireland
Citing:
Appeal fromBrewster, Re Judicial Review QBNI 9-Nov-2012
The applicant challenged the decision of the respondent Northern Ireland Local Government Officers’ Superannuation Committee (‘NILGOSC’) made on 1 July 2011, by which it declined to pay a survivor’s pension to the applicant following the death of . .

Cited by:
Appeal fromBrewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .

Lists of cited by and citing cases may be incomplete.

Family, Financial Services, Discrimination, Human Rights

Updated: 26 November 2021; Ref: scu.517770

Khungar and Another v Financial Services Authority: FSMT 14 Jun 2005

FSMT REGULATED ACTIVITIES – Refusal of application – Threshold Condition 5 – Fit and proper person – Mortgage business – Second Applicant had criminal convictions in 1992 for deception in connection with mortgage activities – Second Applicant had been bankrupt in 1991 – Second Applicant had been investigated and warned in 1999 for infringement of regulated activities – Application by First and Second Applicants did not disclose those facts – Whether second Applicant a fit and proper person – No – Threshold Condition 4 – Whether adequate resources – No – Reference dismissed

[2005] UKFSM FSM016
Bailii

Financial Services

Updated: 22 November 2021; Ref: scu.516842

Mohammed v Financial Services Authority: FSMT 18 Jan 2005

SMT FSMA: MARKET ABUSE – restrictions on share dealing by an auditor – expert evidence – misuse of information – qualifying investments – information not generally available to those using the market – ‘based on’ – relevant information – failure to observe reasonably expected standard of behaviour – penalty

[2005] UKFSM FSM012
Bailii

Financial Services

Updated: 22 November 2021; Ref: scu.516838

Rajah v Financial Services Authority: FSMT 17 May 2005

FSMT REGULATED ACTIVITIES – Permission – Refusal of application – Threshold Conditions 4 and 5 – Judgments entered against Applicant in 2003 and 2004 – Applicant failed to disclose judgment debts when submitting HSF2 form – Whether Tribunal satisfied as to Applicant’s suitability – No – Whether Tribunal satisfied as to Applicant’s financial resources – No – Reference dismissed – FSMA s41(2)

[2005] UKFSM FSM013
Bailii

Financial Services

Updated: 22 November 2021; Ref: scu.516841

Sonaike (T/A F T Insurance Services) v The Financial Services Authority: FSMT 13 Jul 2005

FSMT EXTENSION OF TIME – reference notice filed one day out of time – whether time to be extended – interests of justice – extension granted
SUPERVISORY NOTICE – whether appropriate to suspend effect of notice pending hearing of reference – notice based on conviction for dishonesty – suspension inappropriate and application refused
REGISTER – whether details of reference to be excluded from register – no grounds for exclusion made out – application refused

[2005] UKFSM FSM019
Bailii

Financial Services

Updated: 22 November 2021; Ref: scu.516844

Watts v The Financial Services Authority: FSMT 25 Jul 2005

FSMT Financial Services and Markets Act 2000 – market abuse – breach of listing rules – preliminary hearing – third party rights – section 393 FSMA – identification of third party – prejudice to third party – test to be applied

[2005] UKFSM FSM020
Bailii
Financial Services and Markets Act 20005

Financial Services

Updated: 22 November 2021; Ref: scu.516846

Ravjani (T/A Astrad Finance) v Financial Services Authority: FSMT 12 Aug 2008

FSMT SUPERVISORY NOTICE – Permission – Removal – Authority’s own initiative – Application for authorisation – Failure to disclose prior bankruptcy – Whether Applicant failed to display integrity and willingness to cooperate with the Authority – Whether Applicant failed to comply with terms of Supervisory Notice – Whether Supervisory Notice should be suspended – No – Reference dismissed

[2008] UKFSM FSM063
Bailii
England and Wales

Financial Services

Updated: 22 November 2021; Ref: scu.516732

Heather Moor and Edgecomb Ltd v Financial Services Authority: FSMT 1 Jul 2008

FSMT APPEALS FROM THE TRIBUNAL – Application for permission – Decision as to permission – Whether appeal raises point of law – Whether Tribunal considers appeal to have real prospect of success – Whether any other compelling reason why appeal be heard – Application refused – FSandMT Rules 2001 r.24

[2008] UKFSM FSM062
Bailii
England and Wales

Financial Services

Updated: 22 November 2021; Ref: scu.516731

Fox Hayes v Financial Services Authority: FSMT 23 Apr 2008

FSMT PERMISSION TO APPEAL – Tribunal reduced penalty imposed by Authority from andpound;150,000 to andpound;146,000 – application by Authority for permission to appeal to the Court of Appeal – limited permission granted – FSMA 2000 s137; Financial Services and Markets Tribunal Rules 2001 SI 2001 No. 2476 r24

[2008] UKFSM FSM058
Bailii
England and Wales

Financial Services

Updated: 22 November 2021; Ref: scu.516727

Fryett v Financial Services Authority: FSMT 22 Jul 2008

FSMT PROHIBITION ORDER – Fitness and propriety – Involvement of Applicant in unauthorised activities – Overseas enterprises purporting to effect EL insurance in UK without authorisation – Whether Applicant knowingly concerned in contravention of statutory requirements – Yes – Reference dismissed

[2008] UKFSM FSM064
Bailii
England and Wales

Financial Services

Updated: 22 November 2021; Ref: scu.516730

Khan (T/A Salman A Khan) v Financial Services Authority: FSMT 18 Jan 2008

FSMT Reference – Cancellation of Part IV permission – Threshold conditions, failure to submit on 3 occasions form RMAR – Importance of compliance with submission of form; reference allowed in consideration of particular personal circumstances and undertakings to the extent that FSA directed to substitute monetary penalty with other conditions failing compliance with which directed to cancel Applicant’s Part IV permission

[2008] UKFSM FSM057
Bailii
England and Wales

Financial Services

Updated: 22 November 2021; Ref: scu.516726

Nilas And Others: ECJ 1 Jul 2011

Fast Track – Order

[2011] EUECJ C-248/11, C-248/11
Bailii
Directive 2004/39/EC
Cited by:
See AlsoNilas And Others ECJ 22-Mar-2012
nilasECJ2012
ECJ Directive 2004/39/EC – Markets in financial instruments – Article 4(1)(14) – Concept of ‘regulated market’ – Authorisation – Functional requirements – Market whose legal nature is not specified, but which is . .

Lists of cited by and citing cases may be incomplete.

European, Financial Services

Updated: 20 November 2021; Ref: scu.515257

Carrimjee v Financial Conduct Authority: UTTC 4 Mar 2015

MARKET ABUSE-Whether applicant knew or suspected that there was a risk his customer intended to engage in market abuse through share price manipulation in breach of Statement of Principle 1-no-whether applicant failed to exercise due skill care and diligence in relation to the issue in breach of Statement of Principle 2-yes Financial Penalty-s66 (3) FSMA-withdrawal of approval-s63 FSMA Prohibition Order-s56 FSMA

[2015] UKUT 79 (TCC)
Bailii
England and Wales

Financial Services

Updated: 19 November 2021; Ref: scu.549073

London Capital Group, Regina (on The Application of) v The Financial Ombudsman Service Ltd: Admn 2 Aug 2013

The court was asked whether the Financial Ombudsman Service had jurisdiction to deal with a complaint about the management of a foreign exchange trading account. This turned on whether the operation of the account involved dealing in contracts for differences or investments of a similar kind which are regulated under the 2000 Act.

Leggatt J
[2013] EWHC 2425 (Admin)
Bailii
Financial Services and Markets Act 2000

Financial Services

Updated: 18 November 2021; Ref: scu.514301

Charles Stanley and Co Ltd v Adams: QBD 19 Jul 2013

The claimant stock broking firm sought to recover its uninsured losses after having paid out for what was said to have been negligent advice by the respondent, a self-employed broker working for them.
Held: The power to recover such losses were part of the contract with the broker, and the provision did not offend against public policy and were not void: ‘there is no intrinsic bar to the parties to a contract giving a power to one of them to determine something which affects their rights. It is, of course, a very different situation to that where contract provides for a tribunal to determine disputes between the parties, which tribunal is to be independent of the parties, and later a question of bias arises relating to the tribunal. These cases show that the court will intervene when an express term of the contract has not been complied with by the decision-maker, or where an implied term such as to act reasonably and in good faith has not been met. The jurisdiction of the court is not ousted.’

Sir Raymond Jack
[2013] EWHC 2137 (QB)
Bailii
England and Wales
Citing:
CitedLee v Showmens Guild of Great Britain CA 1952
Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
CitedWest of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd CA 1996
A contract had been set up to provide compensation for oil pollution losses. It was between oil companies who contributed to the fund and its administrators, Cristalwho was to ‘be the sole judge in accordance with these terms of the validity of any . .
CitedR E Brown and others v GIO Insurance Limited CA 6-Feb-1998
A reinsurance contact provided for an excess and limit of liability to be calculated on the basis of ‘each and every loss and/or series of losses arising out of one event.’ It also provided that ‘The Reassured shall be the sole judge as to what . .
CitedSkidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Employment

Updated: 17 November 2021; Ref: scu.513546

The Government Actuary’s Department, Regina (on The Application of) v The Pensions Ombudsman: CA 22 Jul 2013

The court heard a judicial review challenge brought by the Government Actuary’s Department to a decision by the Pensions Ombudsman that GAD came within its jurisdiction in respect of acts or omissions relating to the Firemen’s Pension Scheme occurring in the period prior to 6 April 2005.

Lord Dyson MR, Moore-Bick, Jackson LJJ
[2013] EWCA Civ 901, [2013] WLR(D) 298, [2013] ICR 1215, [2013] Pens LR 291
Bailii, WLRD
England and Wales

Financial Services

Updated: 17 November 2021; Ref: scu.513541

Barclays Bank Plc v Unicredit Bank Ag and Another: ComC 21 Dec 2012

The parties disputed whether the Claimant exercised its discretion in a commercially reasonable manner in refusing to consent to the early termination of three synthetic securitisations of loan portfolios entered into in the wake of the financial crisis in autumn 2008.

Popplewell J
[2012] EWHC 3655 (Comm)
Bailii
England and Wales

Financial Services

Updated: 16 November 2021; Ref: scu.467655

Smithton Ltd v Naggar: ChD 11 Jul 2013

Claim for loss suffered by the Claimant when two companies, Insureprofit Ltd (‘Insureprofit’) and Mariona Ltd (‘Mariona’) defaulted on their obligations to pay margin calls under open-ended contracts for difference entered into between the Claimant and those two companies.

Rose J
[2013] EWHC 1961 (Ch)
Bailii

Contract, Financial Services

Updated: 15 November 2021; Ref: scu.512319

Willford, Regina (on The Application of) v Financial Services Authority (FSA): CA 13 Jun 2013

Where a separate specialist statutory regime has been established by Parliament, there would need to be powerful reasons or exceptional circumstances to bypass that regime and permit an application for judicial review.
The Court considered and rejected an application by the appellant for the continuance of the steps taken to protect publication of his identity.

[2013] EWCA Civ 677
Bailii
England and Wales
Citing:
Appeal fromC, Regina (on The Application of) v Financial Services Authority Admn 25-May-2012
The claimant challenged by judicial review, disciplinary decisions made against him, saying tat insufficient reasons had been given. The Authority replied that judicial review was inappropriate since the claimant had open to him a reference to the . .

Cited by:
See AlsoWillford, Regina (on The Application of) v Financial Services Authority (FSA) (No 2) CA 13-Jun-2013
. .
CitedErlam and Others v Rahman and Another QBD 23-Apr-2015
The petitioners had alleged that the respondent, in his or his agent’s conduct of his campaign to be elected Mayor for Tower Hamlets in London in May 2014, had engaged in corrupt and illegal practices.
Held: The election was set aside for . .
CitedWatch Tower Bible and Tract Society of Britain v Charity Commission Admn 12-Dec-2014
The respondent had instigated a statutory inquiry under the 2011 Act into the claimant’s child safeguarding practices, and policies after compaints made to it. The Society now sought judicial review of that decision, and to production orders made to . .
CitedWatch Tower Bible and Tract Society of Britain v Charity Commission Admn 12-Dec-2014
The respondent had instigated a statutory inquiry under the 2011 Act into the claimant’s child safeguarding practices, and policies after compaints made to it. The Society now sought judicial review of that decision, and to production orders made to . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Financial Services

Updated: 14 November 2021; Ref: scu.510833

Willford, Regina (on The Application of) v Financial Services Authority (FSA) (No 2): CA 13 Jun 2013

[2013] EWCA Civ 674
Bailii
England and Wales
Citing:
See AlsoWillford, Regina (on The Application of) v Financial Services Authority (FSA) CA 13-Jun-2013
Where a separate specialist statutory regime has been established by Parliament, there would need to be powerful reasons or exceptional circumstances to bypass that regime and permit an application for judicial review.
The Court considered and . .
At AdmnC, Regina (on The Application of) v Financial Services Authority Admn 25-May-2012
The claimant challenged by judicial review, disciplinary decisions made against him, saying tat insufficient reasons had been given. The Authority replied that judicial review was inappropriate since the claimant had open to him a reference to the . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 14 November 2021; Ref: scu.510832

Banco Santander Totta Sa v Companhia De Carris De Ferro De Lisboa Sa and Others: ComC 4 Mar 2016

The parties, both Portuguese had entered into now disputed interest rate swap agreements which provided for them to be subject to English law and jurisdiction. The bank claimant sought to enforce the agreements, and the defendant argued that, neither party having a connection with England, the matter should be heard in Portugal.
Held: The request for the matter to be dealth with in Portugal failed. Not every aspect of the contract had Portuguese only elements, and article 3 could only be applied if all were.

Blair J
[2016] EWHC 465 (Comm), [2016] WLR(D) 125, [2016] 4 WLR 49
Bailii, WLRD
Convention 80/934/EEC 3(3)

Contract, International, Financial Services

Updated: 11 November 2021; Ref: scu.560753

Lampert v Information Commissioner and Financial Services Authority: FTTGRC 7 Jun 2011

For the reasons set out, the Public Authority was not obliged to comply with the Complainant’s request for information by reason of sections 14(1) and 14(2) of the Freedom of Information Act 2000. No action is required by the Public Authority.

[2011) UKFTT EA – 2010 – 0203
Bailii
Freedom of Information Act 2000 1 14 40
England and Wales
Citing:
CitedDurant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Information

Updated: 11 November 2021; Ref: scu.440387

Shore v Sedgwick Financial Services Ltd: CA 23 Jul 2008

The claimant said that the defendant had given him negligent advice on pensions, failing to say that he should stay within his occupational scheme. The defendant pleaded limitation.
Held: The claimant suffered damage when he made the transfer in April 1997. There was a clear distinction between transactions which give rise to pure contingent liabilities and transactions where the claimant has ‘obtained less than she should have got’. Accordingly the claim was time barred.
Dyson LJ referred to a submission by the claimant that he had not yet suffered the damage and said: ‘First, it is common ground that the benefits surrendered in the Avesta scheme were properly valued at andpound;637,507. Secondly, that sum was used to invest in the PFW scheme. The price paid for this investment was its then current market price. That price reflected the market perception of the risks inherent in the PFW scheme. The performance of the scheme was subject to the vagaries of the market and the investment skills of the managers of the fund as well as the amount drawn down as income by Mr Shore. The amount available for drawdown as income would depend on the figure at which the GAD rates were fixed triennially as well as the performance of the fund. Mr Soole submits that all these risks were reflected in the price that Mr Shore paid. It is, therefore, irrelevant that the PFW scheme was riskier than the Avesta scheme. To adopt the example suggested by Keene L.J. in the course of argument, if a person invests andpound;100 in shares rather than in Government bonds, he does not suffer any loss when he buys the shares, because when he pays andpound;100 for the shares, that is what they are worth in the market.’ He rejecte dthe submission saying: ‘It is Mr Shore’s case (assumed for present purposes to be established) that the PFW scheme was inferior to the Avesta scheme because it was riskier. It was inferior because Mr Shore wanted a secure scheme: he did not want to take risks. In other words, from Mr Shore’s point of view, it was less advantageous and caused him detriment. If he had wanted a more insecure income than that provided by the Avesta scheme, then he would have got what he wanted and would have suffered no detriment. In the event, however, he made a risky investment with an uncertain income stream instead of a safe investment with a fixed and certain income stream which is what he wanted.’
Dysn LJ continued: ‘Mr Shore obtained a bundle of rights which, from the outset, were less advantageous to him than the benefits that he enjoyed under the Avesta scheme. On the facts of this case, it was not necessary to wait to see what happened to determine whether Mr Shore was financially worse off in the PFW scheme than he would have been in the Avesta scheme.’ So far as the analogy with a share purchase was concerned he said: ‘In my judgment, an investor who wishes to place andpound;100 in a secure risk-free investment and, in reliance on negligent advice, purchases shares does suffer financial detriment on the acquisition of the shares despite the fact that he pays the market price for the shares. It is no answer to this investor’s complaint that he has been induced to buy a risky investment when he wanted a safe one to say that the risky investment was worth what he paid for it in the market. His complaint is that he did not want a risky investment. A claim for damages immediately upon the acquisition of the shares would succeed. The investor would at least be entitled to the difference between the cost of buying the Government bonds and the cost of buying and selling the shares.’

Dyson LJ
[2008] EWCA Civ 863, [2008] PNLR 37, Times 12-Aug-2008
Bailii
Financial Services Act 1986
England and Wales
Cited by:
CitedPegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
CitedAxa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Professional Negligence, Limitation

Updated: 11 November 2021; Ref: scu.271028

Cowan v Scargill and Others: ChD 13 Apr 1984

Trustee’s duties in relation to investments

Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad.
Held: The same principles applied to pension funds as applied to other trusts. The NUM trustees were attempting to impose the prohibitions in order to carry out union policy; and mere assertions that their sole consideration was the benefit of the beneficiaries do not alter that conclusion, and the defendant had misrepresented the effect of the legal advice upon which he purported to act.
Sir Robert Megarry VC said: ‘The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between different classes of beneficiaries. This duty of the trustees towards their beneficiaries is paramount. They must, of course, obey the law; but subject to that, they must put the interests of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interests of the beneficiaries are normally their best financial interests. In the case of a power of investment, as in the present case, the power must be exercised so as to yield the best return for the beneficiaries, judged in relation to the risks of the investments in question; and the prospects of the yield of income and capital appreciation both have to be considered in judging the return from the investment.’
If trustees for social or ethical reasons fail to make an investement which would produce a better result, the would be subject to criticism. ‘In considering what investments to make trustees must put on one side their own personal interests and views. Trustees may have strongly held social or political views. They may be firmly opposed to any investment in South Africa or other countries, or they may object to any form of investment in companies concerned with alcohol, tobacco, armaments or many other things. In the conduct of their own affairs, of course, they are free to abstain from making any such investments. Yet under a trust, if investments of this type would be more beneficial to the beneficiaries than other investments, the trustees must not refrain from making the investments by reason of the views that they hold.’
however: ‘If trustees make a decision upon wholly wrong grounds, and yet it subsequently appears, from matters which they did not express or refer to, that there are in fact good and sufficient reasons for supporting their decision, then I do not think that they would incur any liability for having decided the matter upon erroneous grounds; for the decision itself was right.’

Sir Robert Megarry VC
[1985] Ch 270, (1984) 128 SJ 550, [1984] IRLR 260, [1984] 3 WLR 501, [1984] 2 All ER 750
Coal Industry Nationalisation Act 1946 37
England and Wales
Citing:
CitedButtle v Saunders ChD 1950
Trustees for sale had struck a bargain for the sale of trust property but had not bound themselves by a legally enforceable contract.
Held: They had a duty to consider and explore a better offer that they received, and not to carry through the . .
CitedIn re Wyvern Developments Ltd ChD 1974
An official receiver ‘must do his best by his creditors and contributories. He is in a fiduciary capacity and cannot make moral gestures, nor can the court authorise him to do so.’ . .
CitedBalls v Strutt 1841
‘It is a principle in this court, that a trustee shall not be permitted to use the powers which the trust may confer upon him at law, except for the legitimate purposes of his trust;…’ . .
CitedDuke of Portland v Topham CA 1864
Commonlii The donee of a power of appointing portions among his younger children appointed a double share to a younger child without previous communication with him. But it appeared from the instructions for the . .
CitedIn re Whiteley 1886
Lindley LJ considered the duties of a trustee in exercising his powers of investment and said: ‘The principle applicable to cases of this description was stated . . to be that a trustee ought to conduct the business of the trust in the same manner . .
CitedHarrison-Broadley v Smith CA 1964
The court has an inherent power to make declarations even though they have not been claimed in the proceedings. In order to give effect to a partnership, the partner who owns the premises on which the partnership business is carried on is taken to . .
CitedEvans v London Co-operative Society Ltd 6-Jul-1976
Rule 7 of the trust instrument of a pension fund provided for the pensions committee to make loans on certain terms to the Co-operative Society in question, and the pension fund had been receiving from the society less than the market rate of . .

Cited by:
CitedNestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
CitedLehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.

Trusts, Financial Services

Leading Case

Updated: 11 November 2021; Ref: scu.222822

Mohammed Karim v FSA: UTTC 15 Mar 2011

UTTC FINANCIAL SERVICES – Part IV Permission – Refusal by Authority – Application for permission to conduct insurance broking activity – Lack of understanding of requirements of regulatory system – Lack of experience – Threshold Conditions 4 and 5 – Reference dismissed – FSMA 2000 s40

Sir Stephen Oliver QC
[2011] UKUT B18 (TCC) (TCC)
Bailii
Financial Services and Markets Act 2000 40
England and Wales

Financial Services

Updated: 11 November 2021; Ref: scu.440813

Financial Services Authority (FSA) and Others v AMRO International Sa and Another: CA 24 Feb 2010

The FSA appealed against an order refusing its request for inquiries and production of accounting records by the defendant accountants to satisfy a request issued by the US Securities and Exchange Commission.
Held: The FSA had properly assessed the request, considering the seriousness of the allegations, and the strong public interest in mutual assistance. Such co-operation was part of the statutory purpose of the FSA. There was no error in the appointment of the investigators, and the requirement for production of documents was properly made.

Sir Anthony May, President, Lord Justice Stanley Burnton and Lord Justice Jackson
[2010] EWCA Civ 123
Bailii, Times
Financial Services and Markets Act 2000 171 172 354(1)
England and Wales
Citing:
Appeal fromAMRO International Sa and Another, Regina (On the Application of) v The Financial Services Authority and Others Admn 25-Aug-2009
. .
CitedColt Industries v Sarlie (No. 2) CA 1966
Lord Denning MR discussed the status of a foreign judgment whilst under appeal: ‘The appeal itself does not render it not final and conclusive, nor should the possibility of leave to appeal. It seems to me that the proper test is this : is the . .
CitedTajik Aluminium Plant (Tadaz) v Hydro Aluminium As and others CA 24-Oct-2005
Application for leave to appeal against refusal to grant witness orders to attend arbitration. The respondent had argued that the request was too vague and broad.
Held: Moore-Bick LJ said: ‘In order to answer the question raised in this case I . .
CitedIn re Asbestos Insurance Coverage HL 1985
A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to . .

Lists of cited by and citing cases may be incomplete.

Financial Services, International

Updated: 11 November 2021; Ref: scu.401791

Allen v The Financial Conduct Authority: UTTC 6 Aug 2014

UTTC PROHIBITION – finding in High Court litigation that applicant had knowingly tendered false evidence – whether that finding could be undermined – no – production to the Authority by applicant of redacted and partial copy of High Court judgment to discredit another while concealing criticism of himself – whether applicant fit and proper – no – prohibition upheld

Bishopp TJ
[2014] UKUT 348 (TCC)
Bailii
England and Wales

Financial Services

Updated: 11 November 2021; Ref: scu.535709

Durant v Financial Services Authority: CA 8 Dec 2003

The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his personal data held by the bank. The Financial Services Authority disclosed some copies of documents relating to the appellant but had redacted those documents so as to remove information which it said did not amount to his personal data and so as to remove the names of another individual. The appeal turned on the meaning of ‘data which relate to a living individual who can be identified’. There was no dispute that Mr Durant’s name could be found in the documents but Mr Durant was seeking disclosure of the documents in which he was mentioned on the ground that those documents related to his name.
Held: The 1998 Act enabled an individual to obtain from a data controller’s manual or computerised filing, his personal data: information about himself. It is not an entitlement to be provided with original or copy documents as such, but with information constituting personal data in intelligible and permanent form.
The information sought was not with regard to issues as to respect to his privacy, but rather as regards information gathered on the complaint. It was not his personal data. Parliament intended to apply the Act to manual records only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system. The mere mention of the data subject in a document held by a data controller did not necessarily amount to his personal data and suggested two notions that might be of assistance in determining whether it did. One of these was whether the information was biographical in a significant sense. The other was one of focus.
Auld LJ defined ‘personal data’: ‘not all information retrieved from a computer search against an individual’s name or unique identifier is personal data within the Act. Mere mention of the data subject in a document held by a data controller does not necessarily amount to his personal data. Whether it does so in any particular instance depends on where it falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree. It seems to me that there are two notions that may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person’s or body’s conduct that he may have instigated. In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity.’

Auld, Buxton, Mummery LJJ
[2003] EWCA Civ 1746, Times 02-Jan-2004, [2004] FSR 28
Bailii
Data Protection Act 1998 7
England and Wales
Citing:
CitedRegina v Brown (Gregory) HL 9-Feb-1996
The issue was whether ‘data’ within the Data Protection Act 1984 was limited to data in computer-readable form.
Held: The offence of the ‘use’ of protected data required something beyond inspection on a computer screen including printout. . .
CitedRegina v Commissioner of Police for The Metropolis, ex parte Rottman HL 16-May-2002
The defendant had been arrested under an extradition warrant issued under the Act. The police had searched his premises, and found further evidence which was used to support the application for extradition. He challenged the collection and admission . .
CitedCampbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
CitedRegina v Secretary of State for Health ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd ECJ 10-Dec-2002
The respondent sought to transpose the Directive into UK law. The Applicant objected saying that the Directive was invalid.
Held: The Directive had been made under Article 95 EC, concerning the internal market. Insofar as the Directive . .
CitedGaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
Appeal fromDurant v Financial Services Authority CC 24-Oct-2002
(Edmonton County Court) The claimant sought disclosure under the Act from the FSA of its file relating to his dealings with Barclays Bank. Though the claim generally failed, the court considered how it would have exercised his discretion under . .

Cited by:
CitedSmith v Lloyds TSB Bank Plc ChD 23-Feb-2005
The respondent declined to produce information held about the claimant saying that it was not held within a filing system so as to bring it within the Act.
Held: ‘the legislature has taken a policy decision not to bring unstructured files . .
CitedCommon Services Agency v Scottish Information Commissioner IHCS 1-Dec-2006
The Agency rejected a request to provide statistics on certain children, saying that the numbers were so small that individuals might be identified.
Held: Since the whole purpose of 2002 Act is the release of information, it should be . .
CitedCommon Services Agency v Scottish Information Commissioner HL 9-Jul-2008
An MP had asked the Agency under the 2002 Act for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for all the DG (Dumfries and Galloway) postal area by census ward. The Agency replied by saying that the . .
CitedLampert v Information Commissioner and Financial Services Authority FTTGRC 7-Jun-2011
For the reasons set out, the Public Authority was not obliged to comply with the Complainant’s request for information by reason of sections 14(1) and 14(2) of the Freedom of Information Act 2000. No action is required by the Public Authority. . .
CitedKJO v XIM QBD 7-Jul-2011
The claimant had, some 20 years previously, been convicted and sentenced for forgery of a will. The defendants, relatives, had ever since written to those with whom he had dealings to tell them of the conviction and facts. The claimant, unable to . .
CitedThe Information Commissioner v The FSA and Edem UTAA 11-Dec-2012
ic_fsa
Information rights – Data protection – whether a person’s name constitutes personal data. As the decision of the First-tier Tribunal (made on 16 April 2012 under reference EA/2011/0132) involved the making of an error in point of law, it is SET . .
CitedOates v Information Commissioner FTTGRC 20-Dec-2013
Whether information held s.1 FOIA – Personal data s.1(1) DPA Personal data s.40 FOIA . .
CitedEdem v The Information Commissioner and Another CA 7-Feb-2014
The claimant sought disclosure of the names of officials of the Financial Services Authority who had dealt with his complaint. He now appealed against reversal of an order that they be disclosed.
Held: The appeal failed. The court approved the . .
CitedDeer v University of Oxford CA 6-Feb-2015
The claimant had previously succeeded in a claim of sex discrimination against the University, her former employer. She now appealed against rejection of her claims alleging later victimisation.
Held: Two appeals succeed, and those matters . .
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
CitedScott v LGBT Foundation Ltd QBD 3-Mar-2020
Disclosure of risk of self harm made no claim
The claimant complained that the respondent support group had disclosed to his doctor that fact that they had assessed him as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Information

Leading Case

Updated: 10 November 2021; Ref: scu.188641

British Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another: Admn 20 Apr 2011

The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They objected that the policy statement would require them to act beyond their obligations in law.
Held: The objection failed. The parliamentary background materials did not require restriction of the scope of rules capable of being made by the respondent. The respondent was not limited to making rules with regard to matters which were actionable in themselves. Ouseley J discussed the relationship between the FSA Principles and Rules and said: ‘The Principles are best understood as the ever present substrata to which the specific rules are added. The Principles always have to be complied with. The specific rules do not supplant them and cannot be used to contradict them. They are but specific applications of them to the particular requirements they cover. The general notion that the specific rules can exhaust the application of the Principles is inappropriate. It cannot be an error of law for the Principles to augment specific rules.’
Though a specific provision is capable of carrying an implied exclusion of other general or other specific powers, section 404 did not implicitly exclude what the FSA had done, even though it would have been possible for a scheme to have been set up to achieve much or rather more of the same end, and part of the reason why it was not was the cumbersome nature of the remedy, and the fact that it would not apply to breaches of the Principles.

Ouseley J
[2011] EWHC 999 (Admin), [2011] Bus LR 1531, [2011] ACD 71
Bailii
Financial Services and Markets Act 2000 2 404
England and Wales
Citing:
CitedBlack-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
CitedHeather Moor and Edgecomb Ltd, Regina (on the Application Of) v Financial Ombudsman Service and Another CA 11-Jun-2008
Rix LJ considered the possible scope of rules made by the respondent saying: ‘In my judgment, the following values are all to be appreciated and brought into a pragmatic balance: that an efficient and cost-effective and relatively informal type of . .
CitedCredit Suisse and Another v Waltham Forest London Borough Council CA 20-May-1996
Parliament had made detailed provision in a number of Acts for the discharge of the housing duties by local authorities. These detailed provisions did not contain a power to give a guarantee in connection with a bank loan to a company which the . .
CitedHarrison v Black Horse Ltd QBD 1-Dec-2010
The claimant sought damages for breach of the statutory duty in ICOB, and for damages for negligence. The bank faced a claim that it had assumed responsibility to take reasonable care in recommending the policy it did. The bank had relied on the . .
CitedHeather Moor and Edgecomb Ltd, Regina (on the Application Of) v Financial Ombudsman Service and Another CA 11-Jun-2008
Rix LJ considered the possible scope of rules made by the respondent saying: ‘In my judgment, the following values are all to be appreciated and brought into a pragmatic balance: that an efficient and cost-effective and relatively informal type of . .
CitedBaby Products Association and Another, Regina (on the Application of) v Liverpool City Council Admn 23-Nov-1999
The 1987 Act and its Regulations enabled a local authority with proper grounds for suspecting that a safety provision had been contravened in relation to goods, to issue a ‘suspension notice’ prohibiting a person on whom it was served from supplying . .
CitedRegina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .

Cited by:
CitedBarnes and Another v Black Horse Ltd QBD 31-May-2011
barnes_blackQBD11
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, Financial Services

Updated: 10 November 2021; Ref: scu.434868

Faulkner T/A Policylink and Apsley Homes Estate Agency v Financial Services Authority: FSMT 13 Sep 2006

FSMT REGULATED ACTIVITIE- Own-initiative variation of permission – Supervisory notice varied a Part IV permission by removal of all regulated activities with immediate effect – Reason for Notice being breaches of threshold condition 5 (suitability) and Principles 1 (conducting business with integrity) and 11 (dealing with FSA in an open and cooperative way) – In his application for permission to conduct regulated activities the Applicant had failed to disclose a number of relevant convictions and had also failed to disclose that he had been the subject of bankruptcy proceedings – Whether notice to that effect is the appropriate action for the Authority to take – Yes – Application dismissed

[2006] UKFSM FSM039
Bailii
England and Wales

Financial Services

Updated: 10 November 2021; Ref: scu.268217

Koksal (/A Arcis Management Consultancy) v Financial Conduct Authority: UTTC 22 Apr 2016

UTTC FINANCIAL SERVICES – Decision Notice refusing variation of permission to allow carry on credit broking debt adjusting and debt counselling activities – giving of Decision Notice terminated Applicant’s Interim Permission to carry on those activities – Application for direction to suspend effect of Decision Notice until reference disposed of – whether Tribunal satisfied that the direction to suspend the effect of the notice would not prejudice the interests of consumers – No – Application dismissed – Rule5(5) The Tribunal Procedure (Upper Tribunal) Rules 2008

[2016] UKUT 192 (TCC)
Bailii

Financial Services

Updated: 10 November 2021; Ref: scu.567345

Asset Land Investment Plc and Another v The Financial Conduct Authority: SC 20 Apr 2016

Proceedings were brought against the appellant’s associated parties, alleging that they had carred on regulated activities without authorisation, contrary to section 19 of the2000 Act. They had offered various plots of land for sale, suggesting they would be seeking planning development permissions.
Held: The appeal was dismissed. The company’s activities operated as ‘collective investment schemes’ under section 235 of the 2000 Act, and were thus ‘regulated activities’ for the purpose of section 19.

Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2016] UKSC 17, [2016] WLR(D) 206, [2016] Bus LR 524, UKSC 2014/0150
Bailii, Bailii Summary, WLRD, SC, SC Summary
Financial Services and Markets Act 2000
England and Wales
Citing:
At ChDThe Financial Services Authority v Asset L I Inc and Others ChD 8-Feb-2013
The court was asked whether so-called ‘land-banking’ schemes were ‘collective investments schemes’ within section 235.
Held: Andrew Smith J discussed the difference in effect between the contra preferentem rule, and regulation 7 of the 1999 . .
At CAAsset Land Investment Plc and Another v The Financial Conduct Authority CA 10-Apr-2014
The court was asked whether certain sales of land, or arrangements relating to sales of land, at six sites in England were ‘collective investment schemes’ within the meaning of section 235 of the 2000 Act. The company appealed from a finding that . .
CitedFinancial Services Authority v Fradley and Woodward CA 23-Nov-2005
The defendant appealed against a finding that the pooled betting scheme they operated was governed by the Act.
Held: Whether such an arrangement amounted to a collective investment scheme so as to be regulated was first a question of fact as . .
CitedIn re Sky Land Consultants Plc ChD 3-Mar-2010
a land-banking arrangement was held to amount to a collective investment scheme within section 235. The company purported to change its practices following intervention by the FCA. The changes were held by the judge insufficient to take it outside . .
CitedThe Financial Conduct Authority v Capital Alternatives Ltd and Others CA 25-Mar-2015
The court was asked four different schemes constituted ‘collective investment schemes’ within the meaning of section 235 of the 2000 Act, two schemes in particular, one relating to exploitation of a rice farm in Sierra Leone, the other to tradable . .
CitedBrown and Others v InnovatorOne Plc and Others ComC 18-May-2012
The claimants had been advised to invest in a scheme promoted by the defendants with the assistance of their solicitors. On the failure of the scheme they now sought relief alleging inter alia, breach of trust.
Held: The claims failed. In . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 10 November 2021; Ref: scu.562185

Plevin v Paragon Personal Finance Ltd: SC 12 Nov 2014

PPI Sale – No Recovery from Remote Parties

The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. She said that the commission disclosure by the defendants had been inadequate.
Held: The appeal failed.
Disapproving Harrison: ‘The view which a court takes of the fairness or unfairness of a debtor-creditor relationship may legitimately be influenced by the standard of commercial conduct reasonably to be expected of the creditor. The ICOB rules are some evidence of what that standard is. But they cannot be determinative of the question posed by section 140A, because they are doing different things. The fundamental difference is that the ICOB rules impose obligations on insurers and insurance intermediaries. Section 140A, by comparison, does not impose any obligation and is not concerned with the question whether the creditor or anyone else is in breach of a duty. It is concerned with the question whether the creditor’s relationship with the debtor was unfair.’
The non-disclosure of the commissions paid made the arrangement unfair: ‘A sufficiently extreme inequality of knowledge and understanding is a classic source of unfairness in any relationship between a creditor and a non-commercial debtor. It is a question of degree . . at some point commissions may become so large that the relationship cannot be regarded as fair if the customer is kept in ignorance. At what point is difficult to say, but wherever the tipping point may lie the commissions paid in this case are a long way beyond it.’
As to whether the defendant was liable having had only contact with the intermediary: ‘it is enough to consider the acts or omissions of Paragon itself, without exploring the conduct of others acting on its behalf. Paragon owed no legal duty to Mrs Plevin under the ICOB rules to disclose the commissions and, not being her agent or adviser, they owed no such duty under the general law either. However . . the question which arises under section 140A(1)(c) is not whether there was a legal duty to disclose the commissions. It is whether the unfairness arising from their non-disclosure was due to something done or not done by Paragon . . the unfairness which arose from the non-disclosure of the amount of the commissions was the responsibility of Paragon. Paragon were the only party who must necessarily have known the size of both commissions. They could have disclosed them to Mrs Plevin. Given its significance for her decision, I consider that in the interests of fairness it would have been reasonable to expect them to do so.’ The Court of Appeal had failed to have regard to the words of the section.
However there was no basis for making the respondent liable for the acts of the agent. The claimant was entitled to have the agreement re-opened for unfairness, but that was her only remedy.

Lady Hale, Deputy President, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2014] UKSC 61, [2014] 1 WLR 4222, [2014] WLR(D) 487, [2014] BUS LR 1257
Bailii, Bailii Summary, SC Summary, SC, WLRD
Consumer Credit Act 1974 140A 140B 140C 140D
England and Wales
Citing:
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
DisapprovedHarrison and Another v Black Horse Ltd CA 12-Oct-2011
The appellant sought under section 104A to recover a Payment Protection Insurance premium paid in support of a loan. The borrower dealt directly with the lender, who acted as an intermediary with the insurer. The commission taken by the lender was . .
At County CourtPlevin v Paragon Personal Finance Ltd and Another Misc 4-Oct-2012
Manchester County Court – The claimant sought repayment of insurance premiums paid as payment protection insurance when aking out a loan with the defendants as advised by the second defendant. The second defendant was in liquidation by the time her . .
Appeal fromPlevin v Paragon Personal Finance Ltd and Another CA 16-Dec-2013
The claimant sought repayment of a personal protection insurance premium paid to her broker. The broker was now in insolvent liquidation, and she sought to recover the premium from the next intermediary.
Held: Any limitation of section . .
CitedRegina (Cherwell District Council) v First Secretary of State, Secretary of State for the Home Department CA 28-Oct-2004
The applicant sought to develop an asylum centre. Rather than apply for planning permission, it had served a notice of proposed development for the Crown. The Council appealed dismissal of its objections to the use of the procedure.
Held: The . .
CitedClixby v Poutney ChD 1968
Cross J said: ‘I do not find it in the least surprising that Parliament, when it decided in 1942 to allow assessments to be reopened and penalties claimed at any distance of time if fraud or wilful default was proved, should have wished the . .
CitedGaspet Ltd v Ellis (Inspector of Taxes) 1985
S Ltd was a member of an oil and gas exploration syndicate, the agreement relating to which provided that the exploration work was to be carried out by one member of the syndicate (the operator) on behalf of the other members. The costs, expenses, . .
CitedGaspet Ltd v Ellis (Inspector of Taxes) CA 1987
S Ltd. a member of an oil and gas exploration syndicate, agreeing that the exploration work was to be carried out by one member of the syndicate on behalf of the other members. The costs, expenses, rewards and benefits accruing from the exploration . .
CitedRegina (Cherwell District Council) v First Secretary of State, Secretary of State for the Home Department CA 28-Oct-2004
The applicant sought to develop an asylum centre. Rather than apply for planning permission, it had served a notice of proposed development for the Crown. The Council appealed dismissal of its objections to the use of the procedure.
Held: The . .
CitedS, Regina (on the Application of) v A Social Security Commissioner and Others Admn 3-Sep-2009
The Claimant sought judicial review of a decision of the Defendant Social Security Commissioner refusing the Claimant (and six other appellants) permission to appeal against a decision of a Social Security Appeal Tribunal relating to their housing . .
CitedRochdale Borough Council v Dixon CA 20-Oct-2011
The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .

Cited by:
Main judgmentPlevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Consumer

Leading Case

Updated: 10 November 2021; Ref: scu.538697

Digital Satellite Warranty Cover Ltd and Another v Financial Services Authority: SC 13 Feb 2013

The appellants challenged an order for the dissolution of their company under the 2000 Acts. They had provided warranties for assorted consumer electrical goods which amounted to insurance, but said that they were not required to be registered under the Act since only services in kind were ever provided.
Held: The appeal failed. The fact that certain activities were to be regulated under European law did not prevent the regulation of other associated areas, in this case the issuing of insurance by provision of goods and services only. These were contracts of insurance, and the appellants were not registered.
The First Council Directive had not been intended to be comprehensive, and the list of businesses it scheduled did not restrict the capacity to regulate other actiities. This was acknowledged in its recitals.
The common law which restricted contracts of insurance to those where the detriment suffered by the insurer was strictly financial was displaced by the reuirement to construe UK law to conform with EU law.

Lord Neuberger, President, Lady Hale, Lord Mance, Lord Clarke, Lord Sumption
[2013] 1 WLR 605, [2013] UKSC 7
Bailii
Financial Services and Markets Act 2000, cial Services and Markets Act 2000 (Regulated Activities) Order 2001, First Council Directive 73/239/EEC
England and Wales
Citing:
CitedPhoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd ChD 1985
The court was asked to consider preliminary issues concerning facultative obligatory (fac. oblig.) reinsurances of a variety of business. The issues included whether the reinsured was obliged to keep a retention and whether the writing of its . .
At First InstanceRe Digital Satellite Warranty Cover Ltd and Others ChD 31-Jan-2011
The Financial Services Authority sought public interest orders for the winding up of three companies selling, it said, extended warranty cover plans without authorisation. The companies said that authorisation was not required, since only services . .
Appeal fromDigital Satellite Warranty Cover Ltd v The Financial Services Authority CA 29-Nov-2011
Parties appealed against on order for the winding up of the company. The Authority (FSA) had said that the company which supplied warranties to owners of digital receiver boxes were providing regulated insurance services, but that the companies were . .
CitedPrudential Insurance Co v Inland Revenue Commissioners 1904
Contract for payment of sum on event
The Insurance company provided endowment insurance polices. They disagreed with the Commissioners as to whether these were policies of insurance and thus as to how they fell to be stamped. Life insurance was defined in the 1891 Act as ‘insurance . .
CitedDepartment of Trade and Industry v St Christopher Motorists Association Ltd 1974
The defendant company provided for the hire of a chauffeur if the insured was disqualified from driving.
Held: Contracts of insurance are not confined to contracts for the payment of money, but may include a contract for some benefit . .
CitedPhoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd CA 1987
Kerr LJ summarised the aim of the Directives underlying the 1977 Regulations as being to achieve a uniform classification of non-life insurance businesses and of insured risks for the purposes of the supervision of insurers with a view to ensuring . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .

Lists of cited by and citing cases may be incomplete.

Financial Services, European, Insurance

Leading Case

Updated: 10 November 2021; Ref: scu.470946

Michael Timmel v Aviso Zeta Ag: ECJ 26 Nov 2013

ECJ Opinion – Directive 2003/71/EC and Regulation (EC) No 809/2004 – Base prospectus – Supplements to a prospectus – Final terms – Publication of a prospectus in electronic form)

Shsrpston AG
C-359/12, [2013] EUECJ C-359/12, [2014] EUECJ C-359/12
Bailii, Bailii
Directive 2003/71/EC, Regulation (EC) No 809/2004
European

European, Financial Services

Updated: 10 November 2021; Ref: scu.518461

Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another: SC 27 Jul 2011

Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld the agreements.
Held: The appeal failed. The agreement was valid and enforceable. The anti-deprivation rule as such was too well-established to be set aside, but it was to be limited to certain contexts, and these should be clarified:- ‘a deliberate intention to evade insolvency laws must be shown, though that intention need not be subjective, and a commercially good faith transaction should not found in breach. It does not apply save in insolvency. The distinction between an interest determinable on bankruptcy, a ‘flawed asset’, which is outside the anti-deprivation rule, and an absolute interest defeasible on bankruptcy by a condition subsequent, which falls foul of the rule, was too well established to be dislodged other than by legislation, though not every proprietary right expressed to determine or change on bankruptcy is valid, still less a deprivation which has been provided for in the transaction from the outset. The source of the assets is an important though not sufficient element in determining whether there had been a fraud on the bankruptcy law.’
Lord Collins said: ‘it is well established that if the deprivation takes place for reasons other than bankruptcy, the anti-deprivation rule does not apply.’
This was a complex commercial transaction entered into in good faith. Although, as a matter of law, the security was provided by the Issuer out of funds raised from the Noteholders, in substance the security was provided by the Noteholders and subject to a potential change in priorities. The security was provided by the Noteholders to secure their own liability, but subject to terms, including the provisions for Noteholder Priority and Swap Counterparty Priority, in a complex commercial transaction entered into in good faith. There has never been any suggestion that those provisions were deliberately intended to evade insolvency law.

Lord Phillips, President, Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Mance, Lord Collins, Lord Clarke
UKSC 2009/0222, [2011] UKSC 38, [2011] Bus LR 1266, [2011] 3 WLR 521, [2012] 1 All ER 505, [2012] 1 BCLC 163, [2011] BPIR 1223, [2012] 1 AC 383, [2011] BCC 734
Bailii Summary, SC, SC Summary, Bailii
England and Wales
Citing:
CitedWhitmore v Mason 18-Nov-1861
The exclusion of the lease on bankruptcy of the partner was void. Sir William Page Wood V-C said: ‘the law is too clearly settled to admit of a shadow of doubt that no person possessed of property can reserve that property to himself until he shall . .
CitedHiginbotham v Holme 6-May-1812
A settlement entered into disposing of property into a trust for himself and others when the donor was not endebted, but which provided that on his bankruptcy would pay an annuity to his wife, was void as against creditors on his later bankruptcy. . .
Appeal FromPerpetual Trustee Company Ltd and Another v BNY Corporate Trustee Services Ltd and Others CA 6-Nov-2009
The court considered the extent of the so-called anti-deprivation rule which would avoid a contract designed to deprive creditors of an asset on the insolvency of a party to the contract. The claimant appealed a finding that the rule did not apply . .
At First InstancePerpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd and Another ChD 28-Jul-2009
The parties had entered into complicated financial arrangements effectively providing credit insurance. On the insolvency of Lehman brothers, a claim was made.
Held: The contractual provisions were effective as a matter of English law and, in . .
CitedRe Garrud, Ex parte Newitt CA 1881
A building contract provided for forfeiture on the tenant’s breach and not on bankruptcy. The bankrupt builder had broken the terms of his agreement with the landowner and it was provided in the agreement that the chattels would be forfeited to the . .
MentionedBritish Eagle International Airlines Ltd v Compagnie National Air France CA 1974
. .
CitedBritish Eagle International Airlines Ltd v Compagnie National Air France HL 1975
British Eagle, which had gone into liquidation. The parties disputed a contract attempting to reset the ranking of debts. The House was asked whether there was a debt due to the insolvent company at the commencement of its winding-up, to which the . .
CitedEx parte Mackay; Ex parte Brown; In re Jeavons 1873
Mr Jeavons sold a patent regarding the manufacture of armour plates to a Brown and Co and Cammell and Co in consideration of the companies paying royalties. There was also a loan from the company to Mr Jeavons secured on the royalties. The parties . .
CitedCarreras Rothmans Ltd v Freeman Mathews Treasure Ltd 1985
Peter Gibson J said: ‘where the effect of a contract is that an asset which is actually owned by a company at the commencement of its liquidation would be dealt with in a way other than in accordance with [the statutory pari passu rule] . . then to . .
CitedAyerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
CitedEx parte Jay, in re Harrison CA 26-Feb-1880
A builder agreed with the owner of the land on which he was to build houses that upon his bankruptcy all the building materials on the land should become absolutely forfeited to the owner. The builder than charged the materials, but this was not . .
CitedInternational Air Transport Association v Ansett Australia Holdings Ltd 6-Feb-2008
(High Court of Australia) The rules of the clearing house scheme had been modified following the British Eagle decision so as to exclude any liability or right of action for payment between member airlines.
Held: (by a majority, Kirby J . .
CitedMoney Markets International Stockbrokers Ltd v London Stock Exchange Ltd and Another ChD 10-Jul-2001
MMI were members of the London Stock Exchange, and accordingly held one share in that non-profit making institution. The share was valueless. Anticipating losing their membership and so the share, and also the demutualisation, the share was to be . .
CitedEx parte Barter, Ex parte Black. In re Walker 1884
A prospective buyer of a ship had the right to take possession of the ship and use the shipbuilder’s premises and chattels to complete the building work, in the event of the builder not proceeding with the shipbuilding or going bankrupt. . .
CitedIn re Detmold, Detmold v Detmold 1889
A provision stated that the property in a marriage settlement (originating from the husband) should pass to the wife for life in the event of an alienation by, or the bankruptcy of, the husband.
Held: It was valid against the husband’s trustee . .
CitedBorland’s Trustee v Steel Brothers and Co Ltd 1901
Mr Borland was a shareholder. The company’s articles contained pre-emption rights, such that on a shareholder’s bankruptcy, he had, on receiving a transfer notice from the directors, to transfer his shares to a manager or assistant at a fair value . .
CitedBombay Official Assignee v Shroff PC 1932
The bankrupt had been a member of the Bombay stock exchange. His share had been forfeit. The trustee claimed the share. The official assignee contended that his members card or the value thereof vested in him as the assignee in the insolvency, . .
CitedIn re Johns, Worrell v Johns 1928
A mother and son agreed that the sum repayable by the son in respect of periodic loans made by the mother (which could not exceed andpound;650, and might be as little as andpound;10, in all) was to increase from andpound;650 to andpound;1,650 (plus . .
CitedWilson v Greenwood 17-Jul-1818
Articles of partnership having provided, that on dissolution by death, notice, or misconduct, of a partner, the remaining partners should have the option of taking his share at a valuation, payable by yearly instalments in the course of seven years: . .
CitedIn re Apex Supply Co Ltd 1942
A hire purchase agreement provided that if the hirer should go into liquidation, and the owner should retake possession, the hirer would pay a sum by way of compensation for depreciation.
Held: The provision for the payment of compensation was . .
CitedIn re Stephenson; Ex parte Brown 1897
Where a person settles property in such a way that his interest determines on his bankruptcy ‘that is evidence of an intention to defraud his creditors’. . .
CitedTito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
CitedRegina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .
CitedFolgate London Market Ltd v Chaucer Insurance Plc CA 31-Mar-2011
The court was asked whether a clause in a settlement agreement relieving the paying party from its obligation to make payment to the receiving party in the event of the latter’s insolvency infringed the so-called anti-deprivation principle that . .
CitedLomas (Administrators of Lehman Brothers International (Europe)) v JFB Firth Rixson Inc and Others ChD 21-Dec-2010
Interest swap counterparties withheld payments due to Lehman Brothers International (Europe) in reliance on a provision of an ISDA Master Agreement that a party’s payment obligations were subject to the condition precedent that there was no . .
CitedLester v Garland 24-Mar-1832
A trader on his marriage received a fortune of andpound;5000 with his wife ; and settled a sum of stock in trust for himself for life, with limitations over for the benefit of his wife and children, in the event of his becoming bankrupt or . .
CitedIn re Maxwell Communications plc ChD 1993
It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one’s own disadvantage, particularly by analogy with cases on set-off in . .
CitedMayhew v King and Others ChD 20-May-2010
The court was asked to make a declaration which turned on the interpretation of the ‘anti-deprivation’ rule and its application to a settlement agreement: ‘Milbank is insolvent and has had an administration order made against it. Chaucer seeks an . .
CitedIn re King’s Trust 1892
Lord Porter said it was ‘little short of disgraceful to our jurisprudence’ that in reference to a rule professedly founded on public policy there should be a distinction between a gift of an annuity for life coupled with a proviso for cessation if . .
CitedKitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
CitedLehman Brothers Special Financing Inc v Carlton Communications Ltd ChD 28-Mar-2011
Claims under interest rate swap agreements.
Held: The condition precedent in section 2(a)(iii) of the ISDA Master Agreement was valid – ‘to relieve the non-defaulting party from payment obligations for as long as the defaulting party is, by . .
CitedKemble and Another v Kicks and Others; In Re the Trusts of the Scientific Investment Pension Plan ChD 5-Mar-1998
Provision in pension scheme withdrawing benefits to bankrupt beneficiary defeated trustees claim only if determinable or defeasible interest. . .
CitedIn re Sharp’s Settlement Trusts 1972
. .

Cited by:
CitedIn re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
CitedWright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
CitedLB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Financial Services, Contract

Updated: 09 November 2021; Ref: scu.442223

Hayfin Opal Luxco 3 Sarl and Another v Windermere VII CMBS Plc and Others: ChD 8 Apr 2016

Snowden J introduced the case saying: ‘The issues concern the rights attaching to the ‘Class X Note’ in a Commercial Mortgage-Backed Securitisation (CMBS) structure called ‘Windermere VII’ that was arranged in 2006 by Lehman Brothers International (Europe) (‘LBIE’). The issues are potentially of wider market significance, since the use of class X notes is not uncommon in CMBS structures, and such use in the earlier generation of CMBS structures created prior to 2008 has not been without controversy.’

Snowden J
[2016] EWHC 782 (Ch)
Bailii, Judiciary
England and Wales

Financial Services

Leading Case

Updated: 09 November 2021; Ref: scu.562027

United Kingdom of Great Britain and Northern Ireland v Council of The European Union: ECJ 12 Sep 2013

ECJ Opinion – European Securities and Market Authority (‘ESMA’) – Validity of Article 28 of Regulation (EU) No 236/2012 on short selling and certain aspects of credit default swaps – Legal basis – Articles 114 and 352 TFEU – Institutional balance and division of powers – Conditions for the conferral of power on EU agencies – Delegation under Article 290 TFEU and implementation under Article 291 TFEU – Meroni case law – Romano case law – Interaction with provisions of the Lisbon Treaty on judicial review of acts of agencies with legally binding effects

Jaaskinen AG
C-270/12, [2013] EUECJ C-270/12
Bailii
European
Cited by:
OpinionUnited Kingdom of Great Britain and Northern Ireland v Council of The European Union ECJ 22-Jan-2014
ECJ Regulation (EU) No 236/2012 – Short selling and certain aspects of credit default swaps – Article 28 – Validity – Legal basis – Powers of intervention conferred on the European Securities and Markets . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 09 November 2021; Ref: scu.515256

Harrison v Black Horse Ltd: QBD 1 Dec 2010

The claimant sought damages for breach of the statutory duty in ICOB, and for damages for negligence. The bank faced a claim that it had assumed responsibility to take reasonable care in recommending the policy it did. The bank had relied on the content of a specific ICOB 4 rule to say that, as it was advising only on a single premium product, the extent of the advice it could offer on suitability was limited; it had met the requirements of the rules, which did not require it to advise on regular premium policies as an alternative nor on the products of other firms, the details of which it would not know. The claim in negligence was resurrected as an alternative. The claimant alleged that if the bank was entitled to avoid liability under the rules on that basis, a duty of care arose in the alternative to give that wider advice.
Held: The claim failed. HHJ Waksman said: ‘Given that ICOB (‘Insurance: Conduct of Business’) prescribed a detailed code on how an intermediary in the position of the Bank should conduct itself when purporting to give advice in respect of a single product ie whether to recommend it or not, I see no reason why any co-terminous duty of care should extend more widely. Moreover, the fundamental point raised by rule 4.3.7 (1) above was that the question of cost can only sensibly be dealt with by a comparison with other products. If (as here) the Bank cannot engage in such an exercise because of its very limited advisory role, I cannot see how it could be expected to advise more widely on the question of cost under a common-law duty of care. Its inability to make a comparison remains, as does the difficulty of imposing some sort of obligation to pronounce nonetheless upon whether the PPI was expensive according to some other standard.’

HHJ Waksman QC
[2010] EWHC 3152 (QB), [2011] CTLC 1, [2011] Lloyd’s Rep IR 455
Bailii
England and Wales
Cited by:
CitedBritish Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
CitedBarnes and Another v Black Horse Ltd QBD 31-May-2011
barnes_blackQBD11
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Torts – Other

Updated: 09 November 2021; Ref: scu.426914

Nilas And Others: ECJ 22 Mar 2012

nilasECJ2012

ECJ Directive 2004/39/EC – Markets in financial instruments – Article 4(1)(14) – Concept of ‘regulated market’ – Authorisation – Functional requirements – Market whose legal nature is not specified, but which is managed, after a merger, by a legal person also managing a regulated market – Article 47 – Not included on the list of regulated markets – Directive 2003/6/EC – Scope – Market manipulation

Cunha Rodrigues P
C-248/11, [2012] EUECJ C-248/11
Bailii
Directive 2004/39/EC
Citing:
See AlsoNilas And Others ECJ 1-Jul-2011
Fast Track – Order . .

Lists of cited by and citing cases may be incomplete.

European, Financial Services

Updated: 02 November 2021; Ref: scu.452629

RVS Levensverzekeringen Nv v Belgischer Staat: ECJ 6 Sep 2012

rvs_begium ECJ2012

ECJ Tax legislation – National tax on insurance – Article 50 of Directive 2002/83/EC concerning life assurance – Freedom to provide services – Place of taxation – Insurance payments by a Netherlands insurance undertaking to policy-holders resident in Belgium who were still resident in the Netherlands when the contract was concluded

Kokott AG
C-243/11, [2012] EUECJ C-243/11, [2013] EUECJ C-243/11
Bailii, Bailii
Directive 2002/83/EC concerning life assurance

European, Financial Services

Updated: 02 November 2021; Ref: scu.464456

Walker Trading As Walkers Financial Planning v Financial Conduct Authority: UTTC 3 Feb 2014

UTTC FINANCIAL SERVICES – Supervisory Notice – Application for direction to suspend effect of notice until reference disposed of – Notice varied Applicant’s permission by removing all regulated activities with immediate effect – Reason for notice being failure to satisfy Threshold Conditions-Respondent not satisfied that Applicant a fit and proper person because in its opinion Applicant conducting his affairs in an inappropriate matter and acted with a lack of integrity – whether Tribunal satisfied that the direction to suspend the effect of the notice would not prejudice the interests of consumers – No – Whether necessary for notice to take effect immediately-Yes – Application dismissed – Rule5(5) The Tribunal Procedure (Upper Tribunal) Rules 2008

Herrington UTJ
[2014] UKUT B2 (TCC)
Bailii
England and Wales

Financial Services

Updated: 02 November 2021; Ref: scu.521232

Investors Compensation Scheme Ltd v West Bromwich Building Society: HL 19 Jun 1997

Account taken of circumstances wihout ambiguity

The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once assigned their causes of action to the ICS, could not later themselves sue to rescind their mortgages.
In construing a deed, in this case one of assignment, an ambiguity need not be established before the surrounding circumstances may be taken into account by the court.
Lord Hoffmann said: ‘Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.’ and
‘The meaning which a document . . would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax.’
However: ‘if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had’.
Lord Hoffmann declared that: ‘Almost all the old intellectual baggage of ‘legal’ interpretation has been discarded.’

Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde
Times 24-Jun-1997, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896
House of Lords, Bailii
Misrepresentation Act 1967, Financial Services Act 1986 54, Financial Services (Compensation of Investors) Rules 1990 2
England and Wales
Citing:
Appeal fromInvestors Compensation Scheme Ltd v West Bromwich Building Society and Others CA 1-Nov-1996
Public policy rendered an assignment of a remedy void, where the assignment was an attempt to split it from another remedy. For the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of . .
CitedAntaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
CitedMannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
CitedPrenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
CitedReardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
CitedPorter v National Union of Journalists HL 1980
The House was asked to construe the rules of the defendant organisation. Lord Diplock said: ‘I turn to the interpretation of the relevant rules, bearing in mind that their purpose is to inform the members of the NUJ of what rights they acquire and . .
CitedCharter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
CitedWilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
CitedF L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
CitedRegina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another HL 18-Jul-1995
A regulated firm, Fisher Prew-Smith, ran a scheme whereby elderly homeowners were persuaded to invest money in equity-linked funds by mortgaging their homes on terms that the interest would roll up unless and until the total mortgage debt reached a . .
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
CitedAntaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
At First InstanceInvestors Compensation Scheme Ltd v West Bromwich Building Society; Etc ChD 10-Oct-1996
Part of a chose in action is not capable of being validly separately assigned in order to stop a court action. . .

Cited by:
CitedHallam Land Management Ltd v UK Coal Mining Ltd and another CA 30-May-2002
An option was granted for the sale of land subject to planning consent being granted. Eventually it was sought to exercise the option in respect of part only of the land.
Held: Though words in the contract made reference to all or part of the . .
CitedNorwich and Peterborough Building Society, Regina (on the Application of) v Financial Ombudsman Service Ltd Admn 14-Nov-2002
The Ombudsman had found that the applicant had unfairly failed to notify its customers of the availability of better accounts, once it discontinued accounts of one type. The Society appealed saying that the finding of unfairness arose from matters . .
CitedJIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
CitedNational Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
CitedPortsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
CitedMcGeown v District Travel Insurance CA 12-Nov-2003
The claimant had holiday insurance protecting him against ‘any permanent disability which prevents you from doing all your usual activities’ She was injured in a road traffic accident, losing an eye.
Held: Before a court could judge wording . .
CitedSpice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
CitedMalekout v Allied Dunbar Assurance Plc CA 3-Feb-2004
The claimant appealed refusal of his claim under a Personal Retirement Policy. The issue was as to his right to a waiver of contributions benefit from inception or at all. He had been a dentist, but suffered an injury which became progressively more . .
CitedStent Foundations Ltd v M J Gleeson Group Plc TCC 9-Aug-2000
The defendant company sought to rely upon an exemption clause.
Held: Applying standard rules for contract interpretation, the exemption clause was to be construed against the one proposing it. At best the clause was ambiguous, and the . .
CitedDenton v Denton and Other FD 1-Mar-2004
The solicitor had written in his client care letter that ‘we have agreed that a claim for costs will not be made until money is received at the end of the case’. The client resisted a request to pay counsel’s fees.
Held: Solicitors should take . .
CitedSafdar v Shahid SCS 30-Apr-2004
The pursuer claimed repayments of loans made for the purchase of company shares. The defender denied any loan had been made, and claimed that any loans would require evidence in writing under the Act.
Held: The arguments should be allowed to . .
AppliedPartridge and others v Lawrence and others CA 8-Jul-2003
The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
CitedKay, Gorman, etc v London Borough of Lambeth, London and Quadrant Housing Trust CA 20-Jul-2004
The defendant local authority had licenced houses to a housing trust, which in turn granted sub-licences to the claimants who were applicants for housing under homelessness provisions, and who now asserted that they became secure tenants of the . .
CitedTaylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
CitedBrennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
CitedKirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
CitedSirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
CitedPrecis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
CitedManchester City Football Club Plc v Royle CA 8-Mar-2005
The club had dismissed its manager, paying the compensation it thought due. The claimant disagreed and sued for more. The compensation varied according to the division in which the club was playing at the time of the dismissal. At the end of the . .
CitedLeeds Rugby Ltd v Harris and Bradford Bulls Holdings Limited QBD 20-Jul-2005
The claimant sought damages from the defendants saying that the second defendant had induced a breach of contract by the first when he left to play rugby for the second defendant.
Held: The contract could not be said to be void as an agreement . .
CitedLex Services plc v Her Majestys Commissioners of Customs and Excise HL 4-Dec-2003
When taking a car in part exchange, the company would initially offer the correct market value. If the customer wanted, the company would agree a higher price. When cars were returned, the company at first reclaimed the VAT on the re-purchase price, . .
CitedBarclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
CitedAdam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .
CitedJohn Roberts Architects Ltd v Parkcare Homes (No. 2) Ltd TCC 25-Jul-2005
The defendant had taken a dispute to adjudication, but then abandoned those proceedings, upon which the adjudicator awarded costs against the defendant which the claimant now sought to enforce. The defendant argued that the award was outside the . .
CitedLittman and Another v Aspen Oil (Broking) Ltd CA 19-Dec-2005
A lease had been granted with a break clause, which the tenant exercised. The Landlord said it had not complied with its obligations and was not free to exercise that clause. The clause had included the word ‘landlord’ where it should have read . .
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
CitedPegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
CitedAllan Janes Llp v Johal ChD 23-Feb-2006
The claimant sought to enforce a restrictive covenant against the defendant a former assistant solicitor as to non-competition within a certain distance of the practice for a period of three years. After leaving she had sought to set up partnership . .
CitedSt Mary and St Michael Parish Advisory Company Ltd v The Westminster Roman Catholic Diocese Trustee, Her Majesty’s Attorney Genera and others ChD 6-Apr-2006
Parish members objected to the building within the church grounds of an education centre. They said that the land was to be used for the purposes of the members of the parish only under a trust deed of 1851.
Held: The deed had to be construed . .
CitedBOC Group Plc v Centeon Llc and Centeon Bio-Services Inc CA 29-Apr-1999
The court was asked whether a clause in a share sale agreement setting out the payment obligation worked to preclude the purchaser from exercising a right of set-off when the time comes to pay a later instalment of the price.
Held: The appeal . .
CitedForrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
CitedStone and Another (T/A Tyre 20) v Fleet Mobile Tyres Ltd CA 31-Aug-2006
The defendants appealed an injunction which prevented them soliciting business from any customer of the claimant for one year, granted pursuant to a restrictive covenant contained in a franchise agreement.
Held: The injunction was discharged. . .
CitedNearfield Ltd v Lincoln Nominees Ltd and Lincoln Trust Company Ltd ChD 9-Oct-2006
The claimant sought to enforce a joint venture agreement under which a loan had been made. They said the defendant had accepted an obligation to secure repayment or indemnify them. The defendant said it had adopted only an administrative role.
CitedBecerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
CitedPhillips v Rafiq and Motor Insurers Bureau (MIB) CA 13-Feb-2007
The MIB appealed from a judgment making it liable for an award of damages to the estate of the deceased who had been a passenger in a vehicle which he knew to be being driven without insurance. The estate had not sued the MIB directly, but first . .
CitedScottish Power Plc v Britoil (Exploration) Limited CA 18-Nov-1997
Five contracts existed regarding sale of natural gas from a field in the North Sea. The parties disputed whether the terms prevented the sale of gas to others.
Held: ‘On the language of the contract, the Sellers are not entitled to sell gas to . .
CitedNational Bank of Sharjah v Dellborg and Others CA 9-Jul-1997
The parties disputed the meaning of a Tomlin order to which they had agreed.
Held: Saville LJ said ‘if the circumstances surrounding the making of the agreement showed to a reasonable man that to read paragraph 8 as covering only the amounts . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
CitedGreat Hill Equity Partners Ii Lp v Novator One Lp and others ComC 22-May-2007
The parties disputed whether oral statements had been incorporated into an option agreement.
Held: Evidence of negotiations before the written contract was signed were inadmissible, because it is only on the signing of the first document that . .
CitedThe Prudential Assurance Company Ltd v Ayres and Grew ChD 3-Apr-2007
The defendants argued that they were not liable as guarantors under an Authorised Guarantee Agreement for a lease when the assignee tenant had become insolvent.
Held: The guarantors were liable provided that the extent of the claim did not . .
CitedAB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
CitedWolman v London Borough of Islington and Another CA 31-Jul-2007
The defendant had been given parking tickets for having parked his motor cycle so as to contravene the regulations which made it an offence to park a motor vehicle with one or more wheels on the pavement. He said that the cycle’s wheel did not rest . .
CitedE Alton and Company Limited v Orchard (Development) Holdings Limited CA 27-Jan-1998
The court asked whether an option to purchase a development site had been determined by failure of a condition, described as a condition precedent; and so was no longer exercisable by the defendant, as grantee.
Held: The agreement required the . .
CitedTesco Stores Ltd. v Constable and others Comc 14-Sep-2007
The defendants provided insurance for the claimant to construct a train tunnel over which the claimant would build a supermarket. The tunnel collapsed, and the railway operator claimed for loss of revenues. The insurers denied responsibility saying . .
CitedRDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
CitedMegaro v Di Popolo Hotels Ltd CA 13-Mar-2007
Two properties had been in common ownership, but then divided. A fire escape on one property was to be available to the other. The servient tenement removed the fire escape. The owner of the dominent tenement (a hotel) sought relief.
Held: The . .
CitedBedfordshire Police Authority v Constable and others ComC 20-Jun-2008
The authority insured its primary liability for compensation under the 1886 Act through the claimants and the excess of liability through re-insurers. The parties sought clarification from the court of the respective liabilities of the insurance . .
CitedOpua Ferries Ltd and Another v Fullers Bay of Islands Ltd PC 5-Mar-2003
PC (New Zealand) The Board was asked whether whether the effect of the registration of the repondent as licencees to provide ferry services permitted them to operate the ferry service with two vessels or with one . .
CitedOxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
CitedCity Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
CitedMurungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
CitedTrygort (Number 2) Ltd v UK Home Finance Ltd and Another SCS 29-Oct-2008
The landlords claimed that the tenants remained bound under the lease to occupy and use the premises and pay rent. The tenant said that it had exercised a break option. The landlord said that the break was not exercisable because it had otherwise . .
CitedPersimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
CitedPratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
CitedBest Beat Ltd v Mourant and Co Trustees Ltd and Another ChD 18-Dec-2008
The sale contract provided for completion to be delayed to allow the sellers to deal with a dispute. They now sought specific performance. The defendant said that the contract had been discharged.
Held: The claimant sought to rely on a . .
CitedData Direct Technologies Ltd v Marks and Spencer Plc ChD 26-Jan-2009
The claimant sought payment for annual maintenance fees for the use of its software by the defendant. The defendants had said that they did not wish to renew the contract, but the notice was not in the form set out in the contract.
Held: If . .
CitedNorwich City Council v Marshall LT 23-Oct-2008
LT LANDLORD AND TENANT – service charges – liability – whether lessee liable for management costs – held lessee liable for costs incurred in providing specified services under lease but not otherwise – Landlord . .
CitedBank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedAttorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
CitedSigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
CitedDavill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
CitedHammonds (A Firm) v Danilunas and others ChD 13-Feb-2009
The claimant firm of solicitors sought repayment of sums which it said were excess drawing from the defendants, former partners. Drawings had been taken against anticipated profits, and the retiring partners left as profits declined. The defendants . .
CitedWestvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
CitedNovitskaya v London Borough of Brent and Another CA 1-Dec-2009
The claimant appealed refusal of her claim for arrears of housing benefit.
Held: The appeal was allowed. The claim had been defective in having been made informally, but ‘the distribution of benefits is different from many other areas of civil . .
CitedGold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
CitedHorwood and Others v Land of Leather Ltd and Others ComC 18-Mar-2010
The claimants sought to claim for personal injuries against the defendant company, now in administration, and their insurers using the 1930 Act. The insurers said they were not liable to indemnify the company. The parties disputed the standing of an . .
CitedMargerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
CitedKhatri v Cooperatieve Centrale Raiffeisen-Boerenleenbank Ba CA 23-Apr-2010
The claimant appealed against refusal of summary judgment on his claim for payment of a discretionary employment bonus by the defendant.
Held: The appeal succeeded and summary judgment was given. The contract properly construed did give rise . .
CitedSouthern Cross Healthcare Co Ltd v Perkins and Others EAT 21-Apr-2010
EAT CONTRACTS OF EMPLOYMENT
Written Particulars
The employment tribunal can reformulate the juridical basis of a complaint so long as the facts upon which the complaint is based remain the same and . .
CitedPink Floyd Music Ltd and Another v EMI Records Ltd ChD 11-Mar-2010
The claimant sought summary judgment for a claim under Licensing agreements under which the defendants had marketed and sold the claimant’s products. The remaining disputes concerned differences as to royalties from digital downloads sold through . .
CitedGlentree Estates Ltd and Others v Favermead Ltd ChD 20-May-2010
The claimant estate agents claimed commission on property sales. The defendant said that the agreement to pay commission had been waived.
Held: The sale triggered the commission. However the later agreement did work to vary the original . .
CitedWickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
CitedPennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
CitedRio Football Services Hungary Kft v Sevilla Futbal Club Sad QBD 6-Oct-2010
The defendant sought leave to appeal against summary judgment on several elements of a claim under a football player financing agreement, arguing that the claims were made under a penalty provision, and otherwise. It was also said that the . .
CitedSerious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
CitedRoyal Society for The Prevention of Cruelty To Animals v Sharp and Others CA 21-Dec-2010
The Society appealed against an order construing a will. The will had made a gift of the maximum allowed before payment of inheritance tax, and then a gift of a house. The Society argued that the house gift should be deducted before calculation of . .
CitedFarstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
CitedIG Index Plc v Leung-Cheun and Others QBD 17-Aug-2011
The claimants sought payment from the defendants under spread bets placed by them. The defendants counterclaimed saying that they had suffered greater losses after the claimants had failed as required to close out open bets.
Held: The claim . .
CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
CitedCoulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
coulson_NIQBD2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
CitedQuirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .
CitedUnique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
CitedAJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
CitedPink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
CitedCentury 2000 Enterprises Ltd and Another v SFI Group Plc CA 11-Dec-2001
The claimants appealed against rejection of their claim that an agreement entitled them to take a 35 years lease of the defendants. The contract had depended on complex conditions as to planning consents.
Held: The appeal failed: ‘Ultimately, . .
CitedGladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
CitedMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
CitedEnglish Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
CitedFoster v McNicol and Another QBD 28-Jul-2016
Incumbent Labour leader did not need nominations
The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard . .
CitedWood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
CitedLehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
CitedRees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Torts – Other, Contract

Leading Case

Updated: 02 November 2021; Ref: scu.158902

Houldsworth and Another v Bridge Trustees Ltd and Another: SC 27 Jul 2011

The court was asked as to the dividing line, for regulatory purposes, between defined benefit (normally earnings-related) schemes and defined contribution (or money purchase) schemes. The Secretary of State asserted that some methods used to calculate benefits took the schemes outside the definition of ‘money purchase benefits’ in section 181(1) of the 1993 Act.
Held: The appeal was dismissed (Lord Manse dissenting). The maintenance of an equilibrium of assets and liabilities is not a requirement of the statutory definition of both money purchase schemes, and for money purchase benefits. The deputy judge and the Court of Appeal correctly concluded that the GIF mechanism did not unhitch a member’s eventual benefits from that member’s total contributions. They provided for a yield of guaranteed interest at a modest rate fixed by an objective test, together with the prospect of further bonuses at a modest rate, fixed, again, by an objective test under which the trustees had no discretion.

Lord Walker, Lady Hale, Lord Mance, Lord Collins, Lord Clarke
UKSC 2010/0074, [2011] UKSC 42, [2011] 1 WLR 1912, [2011] Pens LR 313, [2011] ICR 1069
Bailii Summary, SC Summary, SC, Bailii
Pension Schemes Act 1993 181(1), Council Directive 80/987/EEC of 20 October 1980, Directive 2003/41/EC of the European Parliament and the Council of 3 June 2003 relating to the Activities and Supervision of Institutions for Occupational Retirement Provision
England and Wales
Citing:
Appeal fromHouldsworth and Another v Bridge Trustees Ltd and Another CA 4-Mar-2010
. .
CitedAon Trust Corporation Ltd v KPMG (A Firm) and others CA 28-Jul-2005
The claimants were trustees of the defendant’s pension scheme. They sought additional payments to make up a shortfall in funds, on the basis that the fund was an earnings related pension scheme, and that the company therefore had obligations to make . .
CitedFarrell v Alexander HL 24-Jun-1976
The House considered the construction of a consolidation Act.
Held: It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
At First InstanceBridge Trustees Ltd v Yates and others ChD 1-May-2008
. .
CitedAON Trust Corporation Ltd v KPMG and others ChD 29-Jul-2004
The defendant’s pension scheme had been set up by deed in 1949. The trustees argued that the firm had an obligation to make substantial additional contributions to ensure it was not underfunded. The defendants argued that it was a money purchase . .
CitedSt Aubyn v Attorney General HL 12-Jul-1951
The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .

Lists of cited by and citing cases may be incomplete.

Financial Services, European

Updated: 02 November 2021; Ref: scu.442224

Rollins, Regina v: SC 28 Jul 2010

The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The defendant’s appeal failed. The FSA had the powers it contended for, and the provisions of the sections of the 2000 Act did not work as a complete code setting out its powers. The Authority’s powers were set out out in its memorandum and articles and these include general powers of litigation: ‘the FSA has always been able to bring any prosecution subject to statutory restrictions and conditions and provided that it is permitted to do so by its memorandum and articles of association.’

Lord Saville, Lord Rodger, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke, Sir John Dyson SCJ
[2010] UKSC 39, [2010] WLR (D) 210, [2010] Lloyd’s Rep FC 585, [2010] Bus LR 1529, [2010] 1 WLR 1922
Bailii, WLRD, SC, SC Summary, Bailii Summary
Proceeds of Crime Act 2002 327 328, Financial Services and Markets Act 2000 401 402
England and Wales
Citing:
CitedGouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Appeal fromRollins, Regina v CACD 9-Oct-2009
The court was asked whether the Financial Services Authority had itself the power to prosecute offences under the 2002 Act. The defence said that the FSA’s powers were limited to offences under the 2000 Act. The FSA relied on its common law power to . .
CitedJones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
CitedBroadmoor Hospital Authority and Another v Robinson CA 20-Dec-1999
Where a body was given statutory duties, it would normally be entitled to orders restraining others from interfering with its performance of those duties. A patient detained under the Act had written a book, and the Hospital had sought to restrain . .
CitedRegina v Criminal Cases Review Commission, ex parte Hunt CA 24-Nov-2000
The Commissioners of the Inland Revenue did have power to conduct a prosecution at the Crown Court without first obtaining the consent of the Attorney General, even though it was a police officer had actually laid the charge. A prosecution was . .
CitedUberoi and Another, Regina (on the Application of) v City of Westminster Magistrates’ Court and others Admn 2-Dec-2008
Section 402(1)(a) of the 1993 Act has the effect of allowing the Financial Services Authority to bring proceedings for an offence of insider dealing under Part V without first obtaining the consent of the Secrretary of Sate or the DPP.
Sir . .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .

Cited by:
CitedVirgin Media Ltd, Regina (on The Application of) v Zinga CACD 24-Jan-2014
Zinga had been convicted of conspiracy to defraud in a private prosecution brought by Virgin Media. After dismissal of the appeal against conviction, Virgin pursued confiscation proceedings. Zinga appealed against refusal of its argument that it was . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Financial Services

Leading Case

Updated: 01 November 2021; Ref: scu.421097

Senior-Milne, Regina (On the Application of) v The Parliamentary and Health Service Ombudsman: Admn 8 Sep 2009

The claimant was concerned that the Financial Service Authority had failed properly to supervise the de-mutualisation of the Scottish Widows insurance company, and had not identified a failure to disclose very substantial potential liabilities. He now complained that the respondent had said she had no jurisdiction to investigate.
Held: The respondent’s view that the FSA acted only as a prudential regulator was reasonable. The Parliamentary Ombudsman was entitled to take the view that she had no jurisdiction to investigate the sending out of the Circular and any misleading effect it may have had on policy holders. It was without foundation to assert that the respondent had disguised her jurisdiction, and the claimant had failed to bring his complaint through his MP which was a requirement of the 1967 Act.

Grenfell J
[2009] EWHC 2240 (Admin), [2010] ACD 14
Bailii
Parliamentary Commissioner Act 1967, Insurance Companies Act 1982 49
England and Wales
Citing:
CitedMount Cook Land Ltd and Another v Westminster City Council CA 14-Oct-2003
The applicants had sought judicial review of the defendant’s grant of planning permission for the redevelopment of the former CandA building in Oxford Street. Though the application for leave to apply had been successful, and a full hearing took . .

Cited by:
See AlsoSenior-Milne, Regina (on The Application of) v HM Treasury Admn 26-Feb-2013
The court made an extended civil restraint order. . .
See AlsoSenior-Milne, Regina (on The Application of) v Her Majesty’s Treasury Admn 26-Feb-2013
Application for thrown away costs. . .
See AlsoSenior-Milne, Regina (on The Application of) v Hm Treasury Admn 26-Feb-2013
Making of extended civil restraint order . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Administrative

Updated: 01 November 2021; Ref: scu.374739

BNY Mellon Corporate Trustee Services LIMITED v Taberna Europe CDO I PLC: ChD 8 Apr 2016

This case concerns sets of notes issued by, respectively, Taberna Europe CDO I plc and Taberna Europe CDO II plc, special purpose vehicles which are the first defendants to the two claims before me. The proceeds of the Notes were used by their issuers to acquire pools of assets receipts from which are used to service the Issuers’ obligations to noteholders.

Newey J
[2016] EWHC 781 (Ch)
Judiciary
England and Wales

Financial Services

Leading Case

Updated: 01 November 2021; Ref: scu.562555

Batra v The Financial Conduct Authority: UTTC 13 May 2014

UTTC FINANCIAL SERVICES – withdrawal of approval and prohibition of approved person – whether Applicant made false and misleading representations in mortgage applications – yes – whether Applicant failed to deal with the Authority in open and co-operative manner – yes – whether Applicant dishonest – no – whether Applicant lacked integrity – yes – whether Applicant fit and proper person – no – prohibition from carrying out any function confirmed – reference dismissed

[2014] UKUT 214 (TCC)
Bailii
England and Wales

Financial Services

Updated: 01 November 2021; Ref: scu.525889

Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2): HL 10 Jul 2003

The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property rights. It was also argued that it was not possible to make a declaration of incompatibility in respect of matters arising from events before the coming into force of the 1998 Act.
Held: Parliament cannot have intended that section 3(1) should have the effect of altering the parties’ existing rights and obligations under the Consumer Credit Act. In this transitional type of case, section 3(1) is inapplicable to the interpretation of the Consumer Credit Act, and the court had no jurisdiction to make a declaration of incompatibility. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, to make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right. The court was entitled for this purpose (and not merely for the purposes of interpretation) to look at ministerial statements (but not generally at parliamentary debates) to establish the purpose of the Act under consideration, and in doing so it was neither encroaching upon parliamentary prvilege nor questioning the proceedings of Parliament. The severity of the effect of non-compliance with the requirements as to the form of Consumer Credit agreements, was reflected in the intention to protect consumers, and accordingly the legislation reflected the intended balance and was not incompatible.
Lord Rodger said this of the cases on vested rights: ‘It is not easy to reconcile all the decisions. This lends weight to the criticism that the reasoning in them is essentially circular: the courts have tended to attach the somewhat woolly label ‘vested’ to those rights which they conclude should be protected from the effect of the new legislation. If that is indeed so, then it is perhaps only to be expected since, as Lord Mustill observed in L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525A, the basis of any presumption in this area of the law ‘is no more than simple fairness, which ought to be the basis of every general rule.” He said that the test might well be expressed: ‘would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be ‘so unfair’ that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions.’
and ‘Since provisions which affect existing rights prospectively are not retroactive, the presumption against retroactivity does not apply. Nor is there any general presumption that legislation does not alter the existing legal situation or existing rights: the very purpose of Acts of Parliament is to alter the existing legal situation and this will often involve altering existing rights for the future . . ‘
Lord Nicholls said: ‘The Human Rights Act 1998 requires the court to exercise a new role in respect of primary legislation. This new role is fundamentally different from interpreting and applying legislation. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right. If the legislation impinges upon a Convention right the court must then compare the policy objective of the legislation with the policy objective which under the Convention may justify a prima facie infringement of the Convention right. When making these two comparisons the court will look primarily at the legislation, but not exclusively so. Convention rights are concerned with practicalities. When identifying the practical effect of an impugned statutory provision the court may need to look outside the statute in order to see the complete picture, as already instanced in the present case regarding the possible availability of a restitutionary remedy. As to the objective of the statute, at one level this will be coincident with its effect. At this level, the object of section 127(3) is to prevent an enforcement order being made when the circumstances specified in that provision apply. But that is not the relevant level for Convention purposes. What is relevant is the underlying social purpose sought to be achieved by the statutory provision. Frequently that purpose will be self-evident, but this will not always be so.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
Gazette 18-Sep-2003, Times 11-Jul-2003, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97
House of Lords, Bailii
Consumer Credit Act 1974 8 61(1)(a) 65(1) 127(3), Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 6, Human Rights Act 1998 3(1) 22(4), Interpretation Act 1977
England and Wales
Citing:
CitedWilson v First County Trust (2) CA 2-May-2001
Rules under the Act which precluded a party from any recovery for non-compliance with its provisions were disproportionate, and a denial of the human right of the lender to a fair trial, and a declaration of incompatibility was made. A pawnbroker’s . .
CitedSecretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .
CitedL’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd HL 19-Jan-1994
The subject matter of statutes is so varied that generalised maxims are not a reliable guide. An arbitrator can dismiss a claim for inordinate and inexcusable delay, even where this had arisen before the Act which created the power.
Lord . .
CitedThe Home Office v Wainwright and Wainwright CA 20-Dec-2001
The claimants were awarded damages, following the way they were searched on seeking to enter prison on a visit. The Home Office appealed. They were asked to sign a consent form, but only after the search was nearly complete. They were told the . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedMatthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
CitedZ And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
CitedFayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
CitedBramelid v Sweden ECHR 1983
A law may infringe article 1 if it creates an ‘imbalance’ between the parties which would result in one party being arbitrarily or unjustly deprived of his possessions for the benefit of the other . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedHakansson And Sturesson v Sweden ECHR 21-Feb-1990
Where agricultural property is bought subject to the conditions of the general law, and the purchaser is subsequently obliged to re-sell the property at a substantially lower price, the Court will consider the lawfulness and purpose of the . .
CitedWestdeutsche Landesbank Girozentrale v Islington London Borough Council CA 30-Dec-1993
A bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority’s powers.
Held: The local authority was to repay the money paid to it for an ultra vires purpose (a swap . .
CitedTinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
CitedOrakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
CitedDimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
CitedBlack-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
CitedMellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
CitedPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
CitedRegina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
CitedRegina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
CitedRegina v Field (Brian John); Regina v Young (Alfred) CACD 12-Dec-2002
Each applicant having been convicted of indecent assaults involving children, now appealed an order banning them from working with children.
Held: The orders were not penalties within article 7. The order was available in the absence of a . .
CitedBeswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
CitedReardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedH v Belgium ECHR 30-Nov-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings
It is for . .
CitedPowell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
CitedPoplar Housing and Regeneration Community Association Ltd v Donoghue CA 27-Apr-2001
The defendant resisted accelerated possession proceedings brought for rent arrears under his assured shorthold tenancy, by a private housing association who was a successor to a public authority.
Held: Once the human rights issue was raised, . .
CitedRe S (Children: Care Plan); In re W and B (Children: Care plan) In re W (Child: Care plan) HL 14-Mar-2002
The Court of Appeal had imposed conditions upon the care plan to be implemented by the local authorities, identifying certain ‘starred’ essential milestones. The local authorities appealed.
Held: This was not a legitimate extension of the . .
CitedMaxwell v Murphy 1957
Sir Owen Dixon CJ said: ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a . .
CitedWest v Gwynne CA 1911
The plaintiffs were assignees of a lease dating from 1874. The lease contained a covenant by the lessees against underletting the premises or any part thereof without the consent in writing of the landlord. Under the Act, landlords could no longer . .
CitedAttorney General v Vernazza HL 1960
Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order . .
CitedAbbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .
CitedIn re Athlumney 1898
Wright J said: ‘Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, . .
CitedZainal bin Hashim v Government of Malaysia PC 1980
A statute should not be given a construction that would impair existing rights personal or in property unless the language in which it is couched requires such a construction. The court considered the presumption that vested rights are not affected . .
CitedIn re Joseph Suche and Co Ltd CA 1875
There is a a presumption, that legislation does not apply to actions which are pending at the time when it comes into force unless the language of the legislation compels the conclusion that Parliament intended that it should. It is ‘a general rule . .
CitedHedderwick v The Federal Commissioner of Land Tax 1913
When considering the operation of the presumption against retrospectivity in Acts affecting vested rights, ‘the Crown’s vested rights are to be respected as much as are the rights of private persons.’ . .
CitedChief Adjudication Officer and Another v Maguire CA 23-Mar-1999
A claimant who had satisfied the conditions required to become eligible for special hardship allowance but who had yet made no claim, retained his right to the allowance after the Act under which the claim might be brought was repealed. ‘A mere hope . .
CitedWright v Hale 23-Nov-1860
When considering the retrospective effects of an Act, ‘where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.’ . .
CitedRepublic of Costa Rica v Erlanger 1876
The court explained why the retrospectivity of an Act of Parliament was treated differently for matters of procedure. Mellish LJ said: ‘No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation . .
Appeal fromGeorge Hudson Ltd v Australian Timber Workers’ Union 1923
When considering the intentions behind an Act of Parliament to enquire as to its retrospective effect, the court must look to all the circumstances, ‘that is to say, the whole of the circumstances which the legislature may be assumed to have had . .
CitedIn re a Debtor CA 1936
Lord Wright MR said: ‘Thus while an appellate court is able, and bound, to give effect to new remedies which have been introduced by enactments passed after the order appealed from was made by the court of first instance, yet with regard to . .
CitedYew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
CitedSmith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .

Cited by:
CitedRegina on the Application of Isle of Anglesey County Council v Secretary of State for Work and Pensions Admn 30-Oct-2003
The claimant council sought re-imbursement from the Secretary of the excess housing benefit payments it had made to claimants. The system expected the Council to have made referrals of high rents to rent officers. The respondent had decided that it . .
CitedSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedFlynn, Meek, Nicol and McMurray v Her Majesty’s Advocate PC 18-Mar-2004
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their . .
CitedRegina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedEvans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
CitedThe Financial Services Authority v William Matthews Patricia Janet Matthews ChD 21-Dec-2004
The Authority sought a finding that the respondents had infringed their duties in providing financial advice with respect to the moving of personal pensions and had failed to comply with an order an order for compensation. The defendants asserted . .
CitedTrailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .
CitedMalcolm v Mackenzie, Allied Dunbar Plc CA 21-Dec-2004
The bankrupt complained that having been made bankrupt, his self-employed pension was subject to attachment by his trustee, but had he been a member of a company scheme the asset would not, and that this was discriminatory.
Held: The . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedJ A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .
CitedWilson v Wychavon District Council and Another Admn 20-Dec-2005
The claimant complained that the law which protected an occupier of a dwelling house from a temporary stop notice did not apply to those living in caravans, and that this was discriminatory.
Held: The claim failed. ‘usually a change of use of . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedBaiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedLisa Smith, Regina (on the Application of) v South Norfolk Council Admn 10-Nov-2006
The claimant gypsies had bought and moved onto land in Norfolk and stayed there in breach of planning enforcement notices. The inspector upheld the notices, but advised the Council of the difficulties in finding sites and had stayed enforcement for . .
CitedWright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
CitedBradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
CitedL, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
CitedBelfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
CitedSecretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
CitedAnimal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedG, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
CitedHorsham Properties Group Ltd v Clark and Another ChD 8-Oct-2008
The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedRegina v Kenning, Blackshaw, Fenwick CACD 24-Jun-2008
The defendants appealed against their convictions for conspiracy to aid and abet the production of drugs. They sold materials which could be used for the growing of cannabis, but exhibited a notice warning customers against this. They told . .
CitedHeath v Southern Pacific Mortgage Ltd ChD 29-Jan-2009
The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
CitedMcGuffick v The Royal Bank of Scotland Plc ComC 6-Oct-2009
Requirements for Enforcing Consumer Loan Agreement
The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could . .
CitedA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
CitedCarey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
carey_hsbcQBD2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
CitedF and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedSimpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
CitedSecretary of State for Energy and Climate Change v Friends of The Earth and Others CA 25-Jan-2012
The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against . .
CitedGolden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another CA 9-Mar-2012
The court was asked ‘whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial . .
CitedRe Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
CitedWheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 2-May-2008
The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission . .
CitedSalvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
CitedLord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
CitedThe Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc SC 2-Jul-2014
The court was asked: ‘whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents’ canals without the consent of their . .
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedSmith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
CitedHS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
CitedHand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
CitedDocherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
CitedBarlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Consumer, Human Rights, Financial Services

Leading Case

Updated: 01 November 2021; Ref: scu.184398

Brewster, Re Application for Judicial Review (Northern Ireland): SC 8 Feb 2017

Survivor of unmarried partner entitled to pension

The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not done this.
Held: Her appeal was dismissed. The state was to secure for her equal enjoyment of article 14 rights without discrimination for status without some objective justification for any denial of the associate right. This required more than just a proactive role, and the state was to respect a Convention right. The justification required an objective assessment and a court could not substitute its own view, and more so where the decision-maker was the legislature, that would normally be respected unless demonstrably unfounded. If the assessment was not directly by the legislature, a court might be less reluctant to interfere, and even more so when the claimed justification had not been present when the decision was made.
The weight given to the claimant’s self-chosen status rather than from an immutable characteristic, would depend on the context and the particular case

Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Reed, Lord Dyson
[2017] UKSC 8, [2017] WLR(D) 88, [2017] 1 WLR 519, [2017] ICR 434, [2017] 2 All ER 1001, [2017] IRLR 366, UKSC 2014/0180
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
Local Government Pension Scheme (Benefits, Membership
and Contributions) Regulations 2009
, European Convention on Human Rights 14
Northern Ireland
Citing:
At First InstanceBrewster, Re Judicial Review QBNI 9-Nov-2012
The applicant challenged the decision of the respondent Northern Ireland Local Government Officers’ Superannuation Committee (‘NILGOSC’) made on 1 July 2011, by which it declined to pay a survivor’s pension to the applicant following the death of . .
Appeal fromBrewster v Northern Ireland Local Government Officers’ Superannuation Committee CANI 1-Oct-2013
Appeal by the Committee and the Department of the Environment for Northern Ireland from a decision allowing the respondent’s application for judicial review of a decision by the Superannuation Committee not to pay a survivor’s pension to the . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedKopecky v Slovakia ECHR 28-Sep-2004
(Grand Chamber) The court said of the practice of the Convention institutions under A1 P1: ‘An applicant can allege a violation of article 1 of Protocol 1 only in so far as the impugned decisions related to his ‘possessions’ within the meaning of . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedSwift v Secretary of State for Justice CA 18-Mar-2013
The claimant appealed against refusal of a declaration that the 1976 Act infringed her human rights. She had been cohabiting for six months, when her partner was killed in an accident at work for which a third party was liable. Because she had not . .
CitedStec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
CitedHumphreys v Revenue and Customs SC 16-May-2012
Separated parents shared the care of their child. The father complained that all the Child Tax Credit was given to the mother.
Held: The appeal failed. Although the rule does happen to be indirectly discriminatory against fathers, the . .
CitedBelfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Family, Discrimination, Human Rights

Updated: 01 November 2021; Ref: scu.573900

Lawrence v Financial Services Commission: PC 14 Dec 2009

lawrence_fscPC2009

(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under the fixed penalty notice procedure had been properly validated. The notice did not require a finding of guilt, but only that the defendant was a person ‘who it has reason to believe has committed an offence’ to which the section relates.
Therefore: ‘whatever the precise form of the notice, there was no question of the determination of the issue whether the appellant was guilty of an offence before the notice was given. There was no issue upon which the appellant was entitled to be heard or to make representations before the notice was given. It follows that there was no breach of natural justice or of the principle that a defendant to criminal or civil proceedings is entitled to a fair hearing. If the defendant wanted to be heard on the question whether he was guilty of the offence alleged, the appropriate course was for him to wait to be prosecuted and to present his defence. He was not deprived of that opportunity by the giving of the notice.’ and ‘the Board sees nothing unlawful in the decision to give the notice or in the giving of the notice. He had no right to be heard before the notice was given.’

Lord Saville, Lord Collins, Lord Kerr, Lord Clarke, Sir Henry Brooke
[2009] UKPC 49
Bailii
Citing:
CitedMcCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
CitedYew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
CitedRe McCutcheon and City of Toronto 1983
(Ontario High Court of Justice) The appellant had been given a parking ticket. She could pay a penalty, in which event there would be no further proceedings against her, but if she did not, she would be liable to conviction and payment of a fine. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Financial Services, Natural Justice

Updated: 01 November 2021; Ref: scu.384072

Rollins, Regina v: CACD 9 Oct 2009

The court was asked whether the Financial Services Authority had itself the power to prosecute offences under the 2002 Act. The defence said that the FSA’s powers were limited to offences under the 2000 Act. The FSA relied on its common law power to bring a prosecution.
Held: the FSA was not a statutory body, and as such its powers were not limited to those given to it by the 2000 Act. The Act merely added the powers set out to those of the FSA. Section 401 did not confer powers but limited the numbers of pesons who might exercsie them. Section 402 did not set out a complete scheme for the operation of the prosecution provisions. The FSA does have the power to prosecute offences beyond those referred to in sections 401 and 402 of FSMA 2000 and, in particular, it has the power to prosecute the appellants for offences contrary to sections 327 and 328 of POCA 2002.

Richards LJ, Irwin J, Baker QC J
[2009] EWCA Crim 1941, Times 20-Oct-2009, [2009] WLR (D) 294, [2010] Bus LR 734, [2010] 1 Cr App Rep 14, [2010] Lloyd’s Rep FC 16, [2010] 1 All ER 1183, [2010] Crim LR 772
Bailii
Proceeds of Crime Act 2002 327 328, Financial Services and Markets Act 2000 401 402, Prosecution of Offences Act 1985 6
England and Wales
Citing:
CitedUberoi and Another, Regina (on the Application of) v City of Westminster Magistrates’ Court and others Admn 2-Dec-2008
Section 402(1)(a) of the 1993 Act has the effect of allowing the Financial Services Authority to bring proceedings for an offence of insider dealing under Part V without first obtaining the consent of the Secrretary of Sate or the DPP.
Sir . .
CitedRegina v Criminal Cases Review Commission, ex parte Hunt CA 24-Nov-2000
The Commissioners of the Inland Revenue did have power to conduct a prosecution at the Crown Court without first obtaining the consent of the Attorney General, even though it was a police officer had actually laid the charge. A prosecution was . .
CitedEwing, Regina (on the Application of) v Davis Admn 2-Jul-2007
The court considered whether the District Judge had been correct to refuse to issue summonses for private prosecutions where there was a suggestion that only a private dispute at stake.
Held: It ‘never was any requirement that a private . .
CitedJones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
CitedSecuriplan Plc and Others, Regina (on the Application of) v Security Industry Authority and Another Admn 25-Jul-2008
Whether the Authority had standing to continue prosecutions for breaches of licensing conditions. . .
CitedRegina (Gladstone plc) v Manchester City Magistrates Court QBD 18-Nov-2004
It was alleged that at the company’s annual genneral meeting the proposed defendant had assaulted the company’s chairman. The company prosecuted him. The magistrate dismissed the charge saying that the company had no standing to conduct such a . .

Cited by:
CitedScopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
Appeal fromRollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Financial Services

Updated: 01 November 2021; Ref: scu.375943

Miah v Financial Conduct Authority: UTTC 2 May 2015

UTTC FINANCIAL SERVICES – application for the Tribunal to extend time for a reference made out of time – decision notice issued pursuant to settlement agreement entered into between applicant and the FSA – application of principles in Data Select – whether good reasons for delay in making the reference – weight to be afforded to settlement agreement – merits of applicant’s case on reference

[2015] UKUT 181 (TCC)
Bailii
England and Wales

Financial Services

Updated: 01 November 2021; Ref: scu.549097

Scott v Southern Pacific Mortgages Ltd and Others: SC 22 Oct 2014

The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section 29(2)(a)(ii) of, and Schedule 3, paragraph 2, to the Land Registration Act 2002.
Held: The appeal failed. The vendors acquired no more than personal rights against the purchasers when they agreed to sell their properties on the basis of the purchasers’ promises that they would be entitled to remain in occupation. Those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers’ acquisition of the legal estate on completion, and then Cann would apply, with the effect that the acquisition of the legal estate and the grant of the charge would be one indivisible transaction, and the vendors would not be able to assert against the lenders their interests arising only on completion.
Lady Hale said: ‘the purchaser of land cannot create a proprietary interest in the land, which is capable of being an overriding interest, until his contract has been completed. If all the purchaser ever acquires is an equity of redemption, he cannot create an interest which is inconsistent with the terms of his mortgage.’

Lady Hale, Lord Wilson, Lord Sumption, Lord Reed, Lord Collins
[2014] UKSC 52, [2014] HLR 48, [2015] 1 AC 385, [2014] 3 WLR 1163, [2014] WLR(D) 447, UKSC 2012/0102
Bailii, Bailii Summary, WLRD, Bailii Summary, SC, SC Summary
Financial Services and Markets Act 2000, Land Registration Act 2002 29(2)(a)(ii)
England and Wales
Citing:
Appeal fromCook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
CitedBannister v Bannister 1948
A claim that the owner had agreed to let the occupier live in a cottage rent free for as long as she wished was treated as a claim based on constructive trust, on the basis that the purchaser fraudulently set up ‘the absolute character of the . .
MentionedChurch of England Buidling Society v Piskor CA 1954
Weekly tenancies had been granted by the purchaser of the property, title to which was unregistered, before completion. The society now sought possession of the property. The tenants argued that although their tenancies were equitable, they were . .
CitedStrand Securities Ltd v Caswell CA 2-Feb-1965
The leaving of furniture in a flat or having a key to the flat or making occasional use of it was not enough to constitute actual occupation. Where A permits B to occupy land on B’s own behalf by way of gratuitous licence, A’s capacity as licensor . .
CitedLloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
CitedShaw v Foster HL 14-Mar-1872
As regards the trusteeship which arises for a vendor of land after exchange of contracts: ‘there cannot be any doubt of the relation subsisting in the eye of a Court of Equity between the vendor and the purchaser. The vendor was a trustee of the . .
CitedLysaght v Edwards ChD 20-Mar-1876
The testator had agreed to sell a farm, but died before completion.
Held: The farm passed under a devise of ‘all the real estate which at my death might be vested in me as trustee.’ On the making of contract for the purchase of land, the . .
CitedEgmont v Smith CA 1877
The court discussed the position of a vendor of land between exchange and completion: ‘He is certainly a trustee for the purchaser, a trustee, no doubt, with peculiar duties and liabilities, for it is a fallacy to suppose that every trustee has the . .
CitedRayner v Preston CA 8-Apr-1881
The vendors agreed to sell a house which they had insured against fire risk. The house was damaged by fire after contract but before completion, and the issue was whether the purchaser was entitled to the benefit of the insurance.
Held: . .
CitedCumberland Consolidated Holdings Limited v Ireland CA 1946
A vendor of a warehouse left in the cellars of a warehouse rubbish including bags of hardened cement which would be difficult to remove, and which affected the value of the property and precluded the proper use of the cellar. The buyer complained . .
CitedAbbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
CitedMortgage Corporation Ltd v Nationwide Credit Corporation Ltd, Nationwide Building Society CA 20-May-1993
A notice of a charge, short of registration, does not give priority over an earlier un-registered charge. The effect of the notice was limited to that stated in the Act. . .
CitedNational and Provincial Building Society v Ahmed CA 1995
A mortgagor’s equity of redemption is extinguished when the mortgagee, in the exercise of his power of sale, enters into a contract of sale of the mortgaged property.
Millett LJ said: ‘The purpose of making an order under section 36 of the . .
CitedNationwide Anglia Building Society v Ahmed CA 1995
The First Defendant agreed to purchase a business from the Second Defendant for andpound;160,000. andpound;80,000 was raised by way of a secured loan from the plaintiff and was paid to the Second Defendant. The balance of andpound;80,000 was left . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
CitedBirmingham Midshires Mortgage Services Ltd v Sabherwal CA 17-Dec-1999
An equity arising from a proprietary estoppel is not an ‘equitable interest’ capable of being overreached pursuant to section 2 of the Law of Property Act 1925. . .
CitedEnglewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
CitedTasker v Small 3-Jun-1836
The words in a Settlement to raise Money by ‘Mortgage, Annuity or otherwise,’ authorises a Sale of a reversionary Estate.
Lord Cottenham LC said that the rule by which a purchaser becomes in equity the owner of the property sold ‘applies only . .
CitedInland Revenue Commissioners v G Angus and Co CA 1889
Lord Esher MR rejected an argument that a specifically enforceable contract or agreement for the sale of land is in truth a conveyance: ‘And it is said that, when an agreement is such that equity will grant specific performance of it, it is to be . .
CitedUniversal Permanent Building Society v Cooke CA 1951
The mortgagor agreed to buy a shop with living accommodation above. She let the flat to her sister before completion, and by the date of the mortgage, the sister was in possession. After default, the lender sought possession under the mortgage, but . .
ApprovedCoventry Permanent Economic Building Society v Jones ChD 1951
The contracting purchaser of a property agreed, prior to completion, to let the ground floor of the property to two tenants. She subsequently borrowed a sum of money from the plaintiffs to enable her to complete the purchase. On completion, she . .
CitedOughtred v Inland Revenue Commissioners HL 4-Nov-1959
The taxpayer and her son owned through a trust the entire beneficial interest in the shares of a company. She agreed to transfer other shares to him in return for his interest in the shares subject to the trust, releasing the trust. The Revenue . .
CitedChang v Registrar of Titles 11-Feb-1976
(High Court of Australia) The court discussed the trusteeship arising on a contract for the sale of land.
Mason J said: ‘It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold . .
CitedBerkley v Poulett and others CA 29-Oct-1976
Lord Poulett sold the Hinton St George Estate to X, and X sub-sold the house and grounds to Y. Both transactions were subsequently completed. Y brought action against the executors of Lord Poulett, and the main question which subsequently arose was . .
CitedKern Corporation Ltd v Walter Reid Trading Pty Ltd 1987
(High Court of Australia) The court discussed the status of the owner of land between exchange and completion on a sale: ‘it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . .
CitedBirmingham Midshires Mortgage Services Ltd v Sabherwal CA 17-Dec-1999
An equity arising from a proprietary estoppel is not an ‘equitable interest’ capable of being overreached pursuant to section 2 of the Law of Property Act 1925. . .
CitedTanwar Enterprises Pty Ltd v Cauchi 7-Oct-2003
High Court of Australia – Vendor and purchaser – Contracts for sale of land – Default by purchaser – Notice of termination – Supplemental deed requiring completion by stipulated date – Time of essence – Default by purchaser – Notice of termination – . .
CitedJerome v Kelly (Her Majesty’s Inspector of Taxes) HL 13-May-2004
In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
CitedCuthbertson v Irving 24-Jun-1859
Martin B said: ‘There are some points in the law relating to estoppels which seem clear. First, when a lessor without any legal estate or title demises to another, the parties themselves are estopped from disputing the validity of the lease on that . .
CitedRe Birmingham, deceased; Savage v Stannard 1957
An unpaid vendor’s lien arises the moment the contract is entered into. It is discharged on completion to the extent that the purchase money is paid. . .
CitedSargaison v Roberts ChD 1969
The court was asked as to a taxpayer’s entitlement to tax allowances under section 314 of the 1952 Act, and whether, for the purposes of the legislation, a transfer by the taxpayer into trust of a farm and the simultaneous grant by the trustees to . .
CitedLondon and Cheshire Insurance Co Ltd v Laplagrene Property Co Ltd ChD 1971
. .
CitedWatson v Goldsbrough 1986
Licensees of land owned by the wife’s parents agreed that an angling club could have fishing rights if they improved the ponds.
Held: The estoppel was fed when the licensees acquired the legal estate. . .
CitedUCB Bank plc v Beasley 1995
. .
CitedBarclays Bank Plc v Estates and Commercial Limited CA 20-Feb-1996
Millett LJ discussed the assertion of a vendor’s lien where a third party would be adversely affected: ‘A party with an equitable charge can be taken to agree to the postponement of his property against any party who was allowed to his knowledge to . .
CitedBell and others v General Accident Fire and Life Assurance Corporation Ltd CA 11-Dec-1997
The court was asked: ‘whether a company which has granted a lease of business premises in circumstances which would ordinarily mean that the provisions of the Landlord and Tenant Act 1954 (‘the Act’) applied can invoke s. 24 A of that Act even . .
CitedCuthbertson v Irving 7-Jul-1860
Held: Decision affirmed. Neither the lessee nor the lessor can dispute one another’s title and if the lessor without a legal estate later acquires one, the estoppel is ‘fed’ . .
Wrongly DecidedWoolwich Equitable Building Society v Marshall ChD 1952
. .
CitedWilliams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
CitedPaddington Building Society v Mendelsohn 1985
(Bristol County Court) The relevant date for identifying occupation for section 70 was the date of execution of the building society’s charge. On appeal the case was decided on a different point. . .
CitedBristol and West Building Society v Henning CA 2-Apr-1985
. .
CitedWaya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Financial Services

Leading Case

Updated: 01 November 2021; Ref: scu.537832

Fox Hayes v Financial Services Authority: UTTC 30 Mar 2010

UTTC PENALTY – Authorised Person – Partnership – Decision Notice imposing penalty issued after termination of Partnership – whether regulatory authority has power to impose penalty on dissolved partnership – whether partners are personally liable – who rank as partners in dissolved partnership – FSMA 2000 32(1), 40(1(c) and 206(1).

Sir Stephen Oliver QC
[2010] UKUT B15 (FS)
Bailii
Financial Services and Markets Act 2000 32(1) 40(1)(c) 206(1)
England and Wales

Financial Services

Updated: 01 November 2021; Ref: scu.428149

Orakpo v Manson Investments Ltd: HL 1977

Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of payments of interest and moneys due but was successful in his defence that all the transactions including those which provided security rights to the creditor were unenforceable.
Held: While the Acts were designed to protect unsophisticated borrowers from being overreached by unscrupulous moneylenders, they were capable of being used by unscrupulous borrowers to avoid paying their just debts to moneylenders. Whether a remedy in subrogation to redress the unjust enrichment might be available was considered, but it was not open to the court to mitigate the harshness to the moneylender and the undeserved enrichment of the borrower which had resulted from the technical failure to observe the provisions of the Act.
Lord Diplock stated the principle in relation to such provisions as follows: ‘Agreements or securities that are unenforceable are not devoid of all legal effect. Payments made voluntarily pursuant to their terms are not recoverable and I regard it as open to question whether the unenforceability of a higher ranking security which is not void ab initio excludes the doctrine of the merger in it of a lower ranking security in respect of the same charge, at any rate when the higher ranking security remains potentially enforceable in the hands of an assignee.’
As to subrogation: ‘It is a convenient way of describing a transfer of rights from one person to another, without assignment or assent of the person from whom the rights are transferred and which takes place by operation of law in a whole variety of widely different circumstances.’ and as an example ‘One of the sets of circumstances in which a right of subrogation arises is when a liability of a borrower B to an existing creditor C secured on the property of B is discharged out of moneys provided by the lender L and paid to C either by L himself at B’s request and on B’s behalf or directly by B pursuant to his agreement with L. In these circumstances L is prima facie entitled to be treated as if he were the transferee of the benefit of C’s security on the property to the extent that the moneys lent by L to B were applied to the discharge of B’s liability to C. This subrogation of L to the security upon the property of B is based upon the presumed mutual intentions of L and B; in other words where a contract of loan provides that moneys lent by L to B are to be applied in discharging a liability of B to C secured on property, it is an implied term of that contract that L is to be subrogated to C’s security.’
As to unjust enrichment, Lord Diplock said: ‘My Lords, there is no general doctrine of unjust enrichment recognised in English law. What it does is to provide specific remedies in particular cases of what might be classified as unjust enrichment in a legal system that is based upon the civil law. There are some circumstances in which the remedy takes the form of ‘subrogation’, but this expression embraces more than a single concept in English law. It is a convenient way of describing a transfer of rights from one person to another, without assignment or assent of the person from whom the rights are transferred and which takes place by operation of law in a whole variety of widely different circumstances. Some rights by subrogation are contractual in their origin, as in the case of contracts of insurance. Others, such as the right of an innocent lender to recover from a company moneys borrowed ultra vires to the extent that these have been expended on discharging the company’s lawful debts, are in no way based on contract and appear to defeat classification except as an empirical remedy to prevent a particular kind of unjust enrichment.’
Lord Salmon said: ‘The test as to whether the courts will apply the doctrine of subrogation to the facts of any particular case is entirely empirical. It is, I think, impossible to formulate any narrower principle than that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be.’

Lords Diplock, Salmon and Keith
[1978] AC 95, [1977] 3 All ER 1
Moneylenders Act 1927 6 13(1)
England and Wales
Cited by:
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedCastle Phillips Finance v Piddington CA 1995
The wife charged the matrimonial home to Lloyds to secure the husband’s indebtedness. The husband subsequently agreed with Barclays for the indebtedness to be refinanced. The husband and an accomplice forged her signature on a transfer of the . .
CitedDimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
AppliedCheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
CitedMcGuffick v The Royal Bank of Scotland Plc ComC 6-Oct-2009
Requirements for Enforcing Consumer Loan Agreement
The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could . .
CitedBankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Consumer, Financial Services, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.184428

Ollerenshaw and Reeh v FSA: UTTC 10 Dec 2012

UTTC MISCONDUCT – fit and proper person – Limitation – Payment Protection Insurance – alleged pressure to sell unsuitable products and to favour a particular lender – allegedly inadequate compliance – failure to provide Authority with information- misleading Authority – financial penalty

[2012] UKUT B30 (TCC)
Bailii
England and Wales

Financial Services

Updated: 31 October 2021; Ref: scu.468860

Emptage v Financial Services Compensation Scheme Ltd: CA 18 Jun 2013

The claimants had acted on mortgage advice given by a company regulated by the FSA, as a result of which, on the collapse of the property market in Spain, they had lost their investment and their home which had been charged to assist in the purchase of it. The company giving the advice had not been insured, and they now sought compensation from the defendant, appealling against rejection of their claim.
Held: The appeal failed. The judge was correct to find that the FSCS had erred in its approach by nor seeing that the whole thing was one indivisible arangement central to which was the charging of the claimant’s home, and in particular that the advice to take on an interest only charge exposed her to unnecessary risk.

Moore-Bick, Sullivan, Underhill LJJ
[2013] EWCA Civ 729
Bailii
Financial Services and Markets Act 2000 213
England and Wales
Citing:
CitedRegina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another HL 18-Jul-1995
A regulated firm, Fisher Prew-Smith, ran a scheme whereby elderly homeowners were persuaded to invest money in equity-linked funds by mortgaging their homes on terms that the interest would roll up unless and until the total mortgage debt reached a . .
Appeal fromEmptage v Financial Services Compensation Scheme Ltd Admn 11-Oct-2012
The claimant had on her mortgage adviser’s advice charged her existing property to purchase property in Spain. After the investment failed, she lost the house. On the financial failure of the adviser without being insred, she claimed against the . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 31 October 2021; Ref: scu.510910

Jeffery v FSA: UTTC 7 Dec 2012

UTTC FINANCIAL SERVICES – application for recusal of judge – apparent bias – fair-minded and informed observer – whether sharing of office or other proximity to judge formerly chairman of RDC and involved in the case whilst employed by the FSA would lead observer to conclude that there was a real possibility of bias

[2012] UKUT B31 (TCC), FS/2010/0039
Bailii
England and Wales

Financial Services, Natural Justice

Updated: 31 October 2021; Ref: scu.468859