Category: Financial Services

Independent Trustee Services Ltd v Hope and Others: ChD 10 Nov 2009

The applicants were trustees of a pension scheme who sought directions from the court, wishing to buy annuities for scheme members. The proposal sought to maximise the benefit of the Pension Protection Fund.
Held: It was not a proper exercise of the Trustees’ powers to apply a disproportionately large part of the fund in anticipation of relying on future payments from the Fund. The Fund was designed to compensate for lost funds and operated as a fund of last resort. The proposal fell well outside the range of proper applications of funds even though it was not in breach of any express term of the trust.

Judges:

Henderson J

Citations:

[2009] EWHC 2810 (Ch), Times 18-Nov-2009

Links:

Bailii

Statutes:

Pensions Act 2004

Jurisdiction:

England and Wales

Financial Services, Trusts

Updated: 23 July 2022; Ref: scu.377850

Khan v Financial Services Authority: FSMT 21 May 2009

FSMT APPLICATION FOR PERMISSION – intending mortgage and insurance intermediary – lack of qualification and little evidence of experience – attempt to mislead Authority – whether Threshold Conditions 4 and 5 satisfied – no – Decision Notice refusing permission upheld – reference dismissed

Citations:

[2009] UKFSM FSM068

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services

Updated: 23 July 2022; Ref: scu.373726

Uberoi 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 Anthony May PQBD said: ‘In my judgment the structure and content of the 2000 Act amply demonstrate that it must have been the Parliamentary intention that the FSA would be able to institute proceedings under Part V of the 1993 Act without consent from outside. In the light of section 61(2) of the 1993 Act, and not overlooking paragraph 4 of Schedule 1 to the 1987 Act and the absence of such provision in the 2000 Act, section 402(1) is not tightly drawn. But the implication is to my mind abundantly plain. It is achieved by reading the words ‘may institute’ in section 402(1) as having the same meaning and effect as the same words in the passive voice ‘may be instituted by’ in section 401(2), so that the FSA may institute proceedings under section 402(1) on their own initiative and without the antecedent need to obtain the consent of the Secretary of State or the DPP. If a narrow argument of literal construction might not lead to that result, in my judgment the narrow argument is overwhelmed by the obvious general Parliamentary intention and the specific intention to be derived from those two sections.’

Judges:

Sir Anthony May P

Citations:

[2008] EWHC 3191 (Admin), [2009] 1 WLR 1905, [2009] Bus LR 1544, [2009] Lloyds Rep FC 152, [2009] Crim LR 445

Links:

Bailii

Statutes:

Criminal Justice Act 1993 402(1)(a)

Cited by:

Cited – 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Financial Services

Updated: 23 July 2022; Ref: scu.293973

Regina v Institute of Chartered Accounts and Others, Ex Parte Brindle and Others: CA 12 Jan 1994

The Bank’s liquidator action was to be concluded before a disciplinary enquiry, and the enquiry should be stayed accordingly.

Citations:

Times 12-Jan-1994, [1994] BCC 297

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Chance, ex parte Smith QBD 1995
The applicant sought to delay disciplinary proceedings by the accountancy body pending the outcome of civil litigation over a related matter.
Held: ‘ . . as Parliament has entrusted the initial valuation of the case against the applicants to . .
Cited – Land and others v the Executive Counsel of the Joint Disciplinary Scheme QBD 15-Oct-2002
The applicants were partners and staff in Ernst and Young. They sought a stay of disciplinary proceedings brought against them by the accountancy regulators pending resolution of the civil claim against them in respect of closely related issues . .
Cited – Regina v Executive Counsel of the JDS, ex parte Hipps ChD 1996
The court considered the law as to whether disciplinary procedings should be stayed pending the outcome of civil proceedings.
Held: The court was not reviewing the decision not to adjourn the proceedings, but exercising an original . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Administrative

Updated: 23 July 2022; Ref: scu.86952

Regina v Investor’s Compensation Scheme, ex Parte Bowden: QBD 17 Feb 1993

The Investors’ Compensation Scheme must exercise discretion in quantifying a claim. An investor’s right to make a claim under the scheme survives his death and passes to his personal representative.

Citations:

Independent 17-Feb-1993, Gazette 07-Apr-1993

Statutes:

Financial Services Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another CA 30-Jun-1994
The Scheme must award compensation in accordance with accepted methods of calculating damages. It had no authority to limit payment of legal fees of applicants to andpound;500.00. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Financial Services

Updated: 23 July 2022; Ref: scu.86956

Westwood Independent Financial Planners v Financial Conduct Authority: UTTC 22 Nov 2013

UTTC FINANCIAL SERVICES – alleged breaches of Principle 7 (communication of information) and Principle 9 (suitability of advice) of Principles for Businesses and related Conduct of Business Rules in relation to Geared Traded Endowment Policies – whether Authority and Tribunal have jurisdiction – yes – whether Applicant breached Principles and COB Rules – yes – whether financial penalty appropriate – yes – amount of penalty confirmed – reference dismissed

Citations:

[2013] UKUT B9 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services

Updated: 23 July 2022; Ref: scu.521027

Regina v Occupational Pensions Regulatory Authority and Another Ex Parte Littlewoods Pensions Trust Ltd: ChD 4 Jun 1997

Acts by pensions trustees creating a righteous indignation only, and not affecting the financial interests of the members, were not challengeable under the Act.

Citations:

Gazette 04-Jun-1997, Times 16-Jun-1997

Statutes:

Pension Schemes Act 1993 99(4)(a)(iii)

Jurisdiction:

England and Wales

Financial Services

Updated: 21 July 2022; Ref: scu.87484

Deutsche Bank Ag and Others v Unitech Global Ltd and Another: ComC 20 Sep 2013

Defendant’s request for summary dismissal of claims saying that they had no real prospect fo success. The claimant said the applications were an abuse of process.

Judges:

Teare J

Citations:

[2013] EWHC 2793 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Deutsche Bank Ag and Others v Unitech Global Ltd and Others ComC 28-Feb-2013
Applications for leave to amend pleadings. . .

Cited by:

See Also – Deutsche Bank Ag and Others v Unitech Global Ltd and Others ComC 3-Oct-2014
. .
See Also – Deutsche Bank Ag and Others v Unitech Global Ltd and Others CA 3-Mar-2016
Second interlocutory appeal in the battle between Deutsche Bank and other creditors who have brought two actions in the Commercial Court to recover amounts due under loan or swap agreements which used LIBOR as a reference rate in the calculation of . .
See Also – Deutsche Bank Ag and Others v Unitech Global Limited and Others ComC 15-Apr-2019
. .
Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 21 July 2022; Ref: scu.515371

In re an Inquiry Under The Company Securities (Insider Dealing) Act 1985: HL 1988

The term ‘necessary’ will take its colour from its context; in ordinary usage it may mean, at one end of the scale, ‘indispensable’ and at the other ‘useful’ or ‘expedient’.
Lord Griffiths said: ‘What then is meant by the words ‘necessary . . for the prevention of . . crime’ in section 10? I do not think that much light is thrown upon this question by an elaborate discussion of the meaning of the word ‘necessary’. ‘Necessary’ is a word in common usage in everyday speech with which everyone is familiar. Like all words, it will take colour from its context; for example, most people would regard it as ‘necessary’ to do everything possible to prevent a catastrophe but would not regard it as ‘necessary’ to do everything possible to prevent some minor inconvenience. Furthermore, whether a particular measure is necessary, although described as a question of fact for the purpose of section 10, involves the exercise of a judgment upon the established facts. In the exercise of that judgment different people may come to different conclusions on the same facts; for an example of this one has to look no further than Secretary of State for Defence v Guardian Newspapers Ltd. But this cannot be avoided and the task of the judge will not be lightened by substituting for the familiar word ‘necessary’ some other set of words with a similar meaning. I do not myself think that it helps to consider the meaning of ‘necessary’ when used in the narrow context of discovery of documents and then apply it to the very broad considerations that will arise when considering the four heads of public interest identified in section 10. I therefore derive no assistance from the discussion of the word ‘necessary’ in Air Canada v Secretary of State for Trade [1983] 2 AC 394.
I doubt if it is possible to go further than to say that ‘necessary’ has a meaning that lies somewhere between ‘indispensable’ on the one hand, and ‘useful’ or ‘expedient’ on the other, and to leave it to the judge to decide towards which end of the scale of meaning he will place it on the facts of any particular case. The nearest paraphrase I can suggest is ‘really needed’.’

Judges:

Lord Griffiths

Citations:

[1988] AC 660

Statutes:

Company Securities (Insider Dealing) Act 1985 10

Jurisdiction:

England and Wales

Citing:

Cited – Air Canada v Secretary of State for Trade HL 1983
The court considered the test to be applied before a document could be ordered to be discovered.
Held: (Majority) Discovery is an exception to the adversarial character of the legal process. It assists both the parties and the court to . .

Cited by:

Cited – AMM v HXW QBD 7-Oct-2010
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Crime

Updated: 21 July 2022; Ref: scu.424975

Martin-Artajo v Financial Conduct Authority: UTTC 11 Jul 2014

UTTC FINANCIAL SERVICES – procedure – application to make reference out of time – whether Tribunal satisfied that in all the circumstances application should be granted – yes – Rule 2 and Schedule 3 Paragraph 2(2) Tribunal Procedure (Upper Tribunal) Rules 2008

Citations:

[2014] UKUT 340 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services

Updated: 19 July 2022; Ref: scu.535706

IG Markets Ltd v Crinion: Merc 3 Apr 2012

The claimant provided facilities for trading in financial derivatives, and had acted for the defendants. It now sought to recover substantial losses incurred on their accounts. The defendants denied that the sums were payable, on the basis that the claimant had not obtained the necessary client agreements required by the claimant’s regulator.

Judges:

Simon Brown QC

Citations:

[2012] EWHC B4 (Mercantile)

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services

Updated: 19 July 2022; Ref: scu.452838

Bunce, Regina (on the Application of) v Pensions Appeal Tribunal: Admn 5 Mar 2008

Citations:

[2008] EWHC 2268 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal From – Bunce, Regina (on the Application of) v Pensions Appeal Tribunal CA 7-Apr-2009
The claimant renewed his application for leave to appeal against refusal of a judicial review of a decision of the Pensions Appeal Tribunal. He was injured in a motorcycle accident whilst on National Service in 1951. He challenged a decision to . .
Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 19 July 2022; Ref: scu.276978

Allied Domecq (Holdings) Ltd v Allied Domecq First Pension Trust Ltd and Another: CA 16 Oct 2008

Appeal from an order in proceedings brought under CPR Pt 8 by Allied Domecq (Holdings) Limited against the trustees of two occupational pension schemes in respect of which it is an employer. The issue raised in the proceedings was whether, under the rules of the schemes, the rates of contributions payable by the employer are determined by the actuary (or on the advice of the actuary) without the agreement of the employer.

Judges:

Ward, Smith LJJ, Sir John Chadwick

Citations:

[2008] EWCA Civ 1084, [2008] Pens LR 425

Links:

Bailii

Statutes:

Occupational Pension Schemes (Scheme Funding) Regulations 2005 5(3)(b) 8(2)(e)

Jurisdiction:

England and Wales

Financial Services

Updated: 19 July 2022; Ref: scu.276942

Secretary of State for Defence, Regina (on the Application of) v Pensions Appeal Tribunal: Admn 14 Jul 2008

Judges:

Underhill J

Citations:

[2008] EWHC 2168 (Admin)

Links:

Bailii

Statutes:

Naval, Military and Air Forces Etc (Disablement and Death) Services Pensions Order 1983

Jurisdiction:

England and Wales

Armed Forces, Financial Services

Updated: 19 July 2022; Ref: scu.276243

In Re Market Wizard Systems (UK) Ltd: ChD 31 Jul 1998

A computer giving advice of share sale holding and selling positions was giving advice regulatable under the Financial Services Act, and the company selling the software committed the offence when the software was sold even though ‘advice’ was much later.

Citations:

Gazette 03-Sep-1998, Times 31-Jul-1998

Statutes:

Financial Services Act 1986 Sch 1 Para 15, Insolvency Act 1986

Jurisdiction:

England and Wales

Financial Services

Updated: 19 July 2022; Ref: scu.82047

Gallaher Limited v Gallaher Pensions Limited, C Foster, D Silver: ChD 21 Jan 2005

Construction of amendments to pension scheme.

Judges:

Etherton, The Honourable Mr Justice Etherton

Citations:

[2005] EWHC 42 (Ch), [2005] Pens LR 103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Stannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .

Cited by:

Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 18 July 2022; Ref: scu.222179

Securities and Investments Board v Lloyd-Wright and Another: ChD 23 Jun 1993

The SIB sought injunctions pursuant to the 1986 Act, three to prevent continued breaches of the law and fourth, an asset freezing order. It was argued that although it might be right to dispense with a cross-undertaking in damages in relation to the first three injunctions, a Mareva was quite different and that ‘such an order was draconian in its nature, and not strictly law enforcement.’
Held: A material factor was whether the public body applicant enjoyed an immunity from damages claims. Since (a) the SIB was authorised by statute ‘to claim monetary restitution for the benefit of those who may have suffered losses as a result of the unauthorised business’, and, since (b) the remedy whether monetary or injunctive was ‘one provided by statute and is provided to the [SIB], not for [their] own benefit but for the benefit of the public at large or those who have suffered from the infringement . .’, it was appropriate for there to be no cross-undertaking in damages. In each case the injunction was sought as a means of law enforcement and that the fact that a Mareva was draconian did not prevent it being law enforcement but merely reflected the worldwide nature of the defendants’ activities.

Citations:

Times 23-Jun-1993, [1993] 4 All ER 210

Statutes:

Financial Services Act 1986, Financial Services Act 1986

Jurisdiction:

England and Wales

Citing:

Applied – In re Highfield Commodities Ltd ChD 1985
The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I . .

Cited by:

Cited – The Financial Services Authority v Sinaloa Gold Plc and Others SC 27-Feb-2013
The FSA sought injunctions to restrain the activities of the first defendants, including asset freezing orders under section 380 of the 2000 Act. The defendant’s bankers objected that they would be prejudiced by the restrictions without the FSA . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Financial Services

Updated: 17 July 2022; Ref: scu.89151

IBM United Kingdom Pensions Trust Ltd v Metcalfe and Others: ChD 1 Feb 2012

Judges:

Warren J

Citations:

[2012] EWHC 125 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Re IBM Pension Plan ChD 2012
The court considered an application to rectify a pension scheme.
Held: Warren J said: ‘There needs to be cogent evidence of the intentions of both the trustee and the employer where the power of amendment requires the consent of both. . . In a . .

Cited by:

See Also – IBM United Kingdom Pensions Trust Ltd v IBM United Kingdom Holdings Ltd and Others ChD 12-Oct-2012
Application for further amendment of deed of amendment relating to company pension scheme. . .
Lists of cited by and citing cases may be incomplete.

Equity, Financial Services

Updated: 17 July 2022; Ref: scu.450564

Bridge Trustees Ltd v Yates and others: ChD 1 May 2008

Judges:

Sarah Asplin QC

Citations:

[2008] EWHC 964 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 17 July 2022; Ref: scu.270626

Heather 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 alternative dispute resolution should not be stifled by the imposition of legal doctrine; that the opportunity for the development of new ideas was fitting to financial service industries operating in consumer markets should be appreciated for the benefits they can bring; that on the other hand transparency, consistency and accessibility as to the principles which inform the ombudsman’s determinations remain virtues in this new setting; and that publicity as to those principles and those determinations can assist in that regard.’

Judges:

Laws, Rix, Stanley Burnton LJJ

Citations:

[2008] EWCA Civ 642, [2008] Bus LR 1486, (2008) 158 NLJ 897

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000

Jurisdiction:

England and Wales

Cited by:

See Also – Financial Ombudsman Service v Heather Moor and Edgecomb Ltd CA 11-Jun-2008
The FOS appealed refusal of a court to award it legal costs on successfully defending claims in the County Court. It said that the cases had raised an issue of importance. . .
Cited – 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 15 July 2022; Ref: scu.268798

Financial Ombudsman Service v Heather Moor and Edgecomb Ltd: CA 11 Jun 2008

The FOS appealed refusal of a court to award it legal costs on successfully defending claims in the County Court. It said that the cases had raised an issue of importance.

Citations:

[2008] EWCA Civ 643

Links:

Bailii

Statutes:

Financial Services and Markets Act 2000

Jurisdiction:

England and Wales

Citing:

See Also – Heather 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 . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Costs

Updated: 15 July 2022; Ref: scu.268796

Davidson and Tatham v Financial Services Authority: FSMT 16 May 2006

FSMT MARKET ABUSE – company to be listed on the Alternative Investment Market – take up of shares in the placing slow – the idea emerged that if a spread bet were placed then the spread betting firm would hedge the bet through a contract for differences with a counterparty who would then hedge the contract for differences by purchasing shares in the placing thus completing the placing – whether either or both of the Applicants engaged in market abuse – no – whether penalties should have been imposed – no – whether the amounts of the penalties were appropriate – no – whether Mr Tatham was in breach of Principles 2 and 3 – no – references determined in favour of the Applicants – FSMA 2000 Ss 64, 66, 118 and 123

Citations:

[2006] UKFSM FSM031

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268210

Rotton Park / Winson Green Credit Union Ltd v Financial Services Authority: FSMT 11 Apr 2006

FSMT SUPERVISORY NOTICE – Immediate effect – Application for suspension of immediate effect – Credit Union – Failure to maintain positive capital in breach of FSA Rule CRED 8.3.1 R – Notice required Credit Union to make no new loans, redemptions of shares or repayments of deposits – Whether requirements in Supervisory Notice should be suspended pending hearing of reference – No – Application dismissed

Citations:

[2002] UKFSM FSM029

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268208

HPA v Financial Services Authority: FSMT 5 Mar 2003

FSMT SUPERVISORY NOTICE – Suspension of immediate effect – Variation of Part IV permission – Threshold Condition No.4 – Failure of Applicant to maintain PII – Whether Supervisory Notice varying permission should be suspended pending hearing of reference – No – FSandMT Rules 2001 No.2476 r.11(1)(e)

Citations:

[2003] UKFSM FSM005

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268222

Rotton Park / Winson Green Credit Union Ltd v Financial Services Authority: FSMT 24 Jul 2006

FSMT CREDIT UNION – Adequacy of resources – Value of Credit Union’s assets less than value of its liabilities – Whether removal of permission to accept deposits and imposition of requirements not to make new loans, redeem members’ shares or repay any deposits is appropriate – Yes

Citations:

[2006] UKFSM FSM038

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268216

PS Mortgages Ltd and Olutola v Financial Services Authority: FSMT 8 Nov 2006

FSMT Fit and proper person – Sections 40 and 60 Financial Services and Markets Act 2000 – Disciplinary finding by professional body and Applicant’s omission to disclose it on application for approval – References dismissed

Citations:

[2006] UKFSM FSM042

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services

Updated: 15 July 2022; Ref: scu.268220

Davidson and Tatham (Cost Decision): FSMT 11 Oct 2006

FSMT COSTS – whether the disputed decision of the Authority was unreasonable – yes – whether the Authority acted vexatiously, frivolously or unreasonably in connection with the proceedings – no – FSMA 2000 Sch 13 para 13(1) and (2)

Citations:

[2006] UKFSM FSM040

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services, Costs

Updated: 15 July 2022; Ref: scu.268219

Vsodha v Financial Services Authority: FSMT 16 May 2006

FSMT REGULATED ACTIVITIES – Permission – Refusal of application – Threshold Conditions 4 and 5 – Numerous previous complaints – Failure to disclose previous warning – Whether Tribunal satisfied as to Applicant’s suitability – No – Reference dismissed

Citations:

[2002] UKFSM FSM033

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268213

Young and Eversure Financial Services Ltd v Financial Services Authority: FSMT 27 Apr 2006

FSMT AUTHORIZATION – Suitability – Fitness and propriety – Applicant firm’s connections with other persons in a relevant relationship – Those other persons refused approval on grounds of non-disclosure – No other person to carry out controlled functions – Whether Applicant firm satisfies ‘fit and proper’ test – No – Threshold Condition 5
APPROVED PERSONS – Fit and proper to perform the controlled function – Non-disclosure by director seeking approval of earlier unsuccessful application to Lloyd’s – Whether applicant fit and proper – No – FSandMT 2000 s.61(1)

Citations:

[2002] UKFSM FSM032

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268209

Jabre (Decision on Jurisdiction) v Financial Services Authority: FSMT 10 Jul 2006

FSMT TRIBUNAL – Jurisdiction – Matter referred – Decision to fine Applicant for market abuse and breaches of Principles 2 and 3 – Decision referred to Tribunal – Authority’s statement of case contends that Tribunal should determine as appropriate action the withdrawal of Applicant’s approval or the prohibition of the Applicant – Whether Authority’s contention as to the appropriate action relates to the ‘matter referred’ – Yes – Financial Services and Markets Act 2000, s.133

Citations:

[2002] UKFSM FSM035

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268215

Sonaike v Financial Services Authority: FSMT 7 Oct 2005

FSMT REGULATED ACTIVITIES – Variation of permission – Conviction of Applicant for offences involving dishonesty – Applicant failed to notify arrest, charge and conviction in questionnaires issued by Authority – Removal of all regulated activities – Cancellation of permission – Reference dismissed

Citations:

[2005] UKFSM FSM024

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268221

Jabre and Financial Services Authority (Decision on Market Abuse) v Financial Services Authority: FSMT 10 Jul 2006

FSMT MARKET ABUSE – Confidential information – Sales through Tokyo market of shares quoted on London Stock Exchange – Allegation that sales followed receipt by Applicant of confidential information – Tokyo market is not a ‘prescribed market’ – Whether shares so sold were ‘traded on a market to which this section applies’ i.e. the London Stock Exchange – Yes – Financial Services and Markets Act 2000 s.118(1)(a)

Citations:

[2006] UKFSM FSM036

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268214

Parker v Financial Services Authority: FSMT 11 May 2006

FSMT MARKET ABUSE – senior accountant employed by listed company – knowledge of company’s difficult relations with major customer and likely effect on turnover and profit – knowledge that talks about takeover of company by larger competitor abandoned – whether informed or able to conclude that profit warning to market inevitable in near future – whether information relevant – yes – whether information generally available – no – whether knowledge influenced Applicant’s sales of shares and spread betting in advance of announcement leading to dramatic fall in price of company’s shares -yes – whether Applicant’s conduct part of an existing strategy amounting to a safe harbour – no – FSMA ss 118, 119, 122, 123 – COMC- burden and standard of proof- reference dismissed
PENALTY – principles to be applied in determining amount of financial penalty – FSMA s 124 – ENF 14 – recovery of abusive profit – measure of additional penal element – penalty reduced to reflect true level of abusive profit but penal element substantially undisturbed

Citations:

[2006] UKFSM FSM037

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268212

University of Nottingham v Eyett and Another: ChD 13 Nov 1998

Appeal by the University against a determination of the Pensions Ombudsman, whereby the Pensions Ombudsman upheld a complaint by Mr Eyett that the University in its capacity as his employer had been guilty of maladministration of the University’s pension scheme

Judges:

Hart J

Citations:

[1998] EWHC 317 (Ch), [1999] OPLR 55, [1999] ICR 721, [1999] IRLR 87, [1999] 2 All ER 437, [1999] Pens LR 17, [1999] ELR 141

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Financial Services

Updated: 15 July 2022; Ref: scu.263757

AMP (UK) Plc and Another v Barker and Others: ChD 8 Dec 2000

The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed that there had been a mistake, but chose not to correct it. The potential cost to the Scheme of such an increase in early leaver benefits would be enormous.
Held: When one is considering the intentions of a collective body such as a group of trustees it is their collective intention which is relevant. It would be a very odd case if that collective intention were not objectively manifested. The claimant had failed to show convincingly a continuing common intention by the Trustees to affect only incapacity benefits. Nevertheless, the employees were affected by the mistake, that the rectification sought would be effective. Rectification was therefore granted. There is a wide equitable jurisdiction to relieve from the consequences of mistake, and the court would have decided that this would have been an appropriate case for setting aside NPI’s consent for mistake.
Lawrence Collins J described the rule that rectification is not available if the mistake relates only to the consequences of the transaction or the advantages to be gained by entering into it as: ‘simply a formula designed to ensure that the policy involved in equitable relief is effectuated to keep it within reasonable bounds and to ensure that it is not used simply when parties are mistaken about the commercial effects of their transactions or have second thoughts about them. The cases certainly establish that relief may be available if there is a mistake as to law or the legal consequences of an agreement or settlement . . ‘

Judges:

Mr Justice Lawrence Collins

Citations:

HC 001897, [2000] EWHC Ch 42, [2001] OPLR 197, [2001] Pens LR 77

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Walker v Armstrong 1856
The court considered a request for rectification of a document. . .
Cited – Lackersteen v Lackersteen 1860
The court has power to rectify a settlement notwithstanding that it is a voluntary settlement and not the result of a bargain, such as an ante-nuptial marriage settlement. . .
Cited – Bonhote v Henderson 1895
The court refused to allow rectification of a voluntary settlement, since the mistake was demonstrated by a prior agreement. . .
Cited – Frederick E Rose (London) Limited v William H Pim Junior and Co Limited 1953
The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this . .
Cited – Behrens v Heilbut 1956
A voluntary settlement was rectified despite it not being a representation of a previously negotiated bargain. . .
Cited – Joscelyne v Nissen CA 1970
A father entered into a written contract with his daughter by which he transferred to her his car hire business in return for her agreement to pay him a pension and discharge certain expenses. In their discussions it had been agreed between them . .
Cited – Re Butlin’s Settlement Trusts 1976
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the . .
Cited – The Olympic Pride (Etablissements Georges et Paul Levy v Adderley Navigation Co Panama SA 1980
In the case of a bilateral transaction, there must be convincing proof that the concluded instrument does not represent the common intention of the parties to allow rectification. The policy reason for the need for convincing proof is that certainty . .
Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – Grand Metropolitan plc v Wm Hill Group Ltd 1997
The court considered the standard of evidence required to allow rectification of a document. . .
Cited – Lansing Linder Ltd v Alber ChD 2000
Pension scheme rules were amended varying the ages etc for retirement. The rules gave the company power to amend the rules with the consent of the Trustees. The original rules permitted early retirement on an immediate, but actuarially reduced, . .
Cited – Hanley v Pearson 1879
Rectification was ordered of a voluntary settlement on the uncontradicted affidavit evidence of the settlor without any need for objective manifestation of intention. . .
Cited – McDonald and Others v Horn and Others CA 8-Aug-1994
A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority . .
Cited – Lady Hood of Avalon v Mackinnon 1909
Lady Hood made an appointment in favour of her elder daughter, in order to place her in the same position as her younger daughter to whom she had already made large appointments. But in doing so she (and her solicitor) had forgotten that she had, . .
Cited – Whiteside v Whiteside CA 1950
The husband had executed a deed in favour of his former wife after dissolution of their marriage covenanting to pay a specified sum per annum free of income tax up to but not exceeding a stated amount. This provision was in substitution for one . .
Cited – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
Cited – Re Earl of Coventry’s Indenture 1974
. .
Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Cited – Kerr v British Leyland (Staff Trustees) Ltd 26-Mar-1986
In confirming that trustees did not have an uncontrolled discretion to determine whether the incapacity of a beneficiary of the trust was permanent, the Court held ‘Now this is not a case of trust where the beneficiaries are simply volunteers. The . .
Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Cited – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
Cited – Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd 1991
A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s . .
Cited – Stannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .
Cited – Breadner v Granville-Grossman ChD 2000
‘it cannot be right, whenever trustees do something which they later regret and think they ought not to have done, they can say they never did it in the first place’
It was not correct to suggest that whenever trustees do something which they . .
Cited – Green v Cobham ChD 19-Jan-2000
cw The Trustees had overlooked the fact that a Will Trust and two sub-settlements together constituted a single composite settlement for the purposes of CGT with a single body of trustees. As a result of his . .

Cited by:

Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Equity, Financial Services

Updated: 15 July 2022; Ref: scu.135647

McWilliam and Another v Norton Finance (UK) Ltd (T/A Norton Finance In Liquidation): CA 11 Mar 2015

Whether a credit broker, a member of the Finance Industry Standards Association, operating in the circumstances prevailing in 2006, owed to its consumer clients a fiduciary duty such that it is liable to account to its clients for commissions received without their informed consent.

Judges:

Lord Justice Tomlinson

Citations:

[2015] EWCA Civ 186

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Financial Services

Updated: 15 July 2022; Ref: scu.544226

Haworth Final Decision v Financial Services Authority: FSMT 28 Mar 2007

FSMT AUTHORISATION – Part IV permission – Cancellation – Fit and proper person – Whether Applicant falls short of Threshold Condition 5 – Whether Applicant has failed to conduct business with integrity and in compliance with proper standards and failed to treat customer fairly – Yes – Reference dismissed

Citations:

[2007] UKFSM FSM045

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268195

Elliot v Financial Services Authority: FSMT 16 Mar 2006

FSMT REGULATED ACTIVITIES – performance of – prohibition order – whether Applicant a fit and proper person to perform functions in relation to regulated activities carried on by an authorised person – no – whether the Authority had power to make a prohibition order – yes – reference determined in favour of the Authority – Financial Services and Markets Act 2000 s 56

Citations:

[2002] UKFSM FSM027

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268207

Agarwala (T/A Abbex Insurance) v Financial Services Authority: FSMT 5 Feb 2007

FSMT AUTHORIZATION – Part IV permission – Cancellation – Fit and proper person – Whether Applicant falls short of Threshold Condition 5 – Whether Applicant has failed to conduct business with integrity and in compliance with proper standards and failed to treat customers fairly and failed to be open and co-operative with the Authority – Yes – Reference dismissed

Citations:

[2002] UKFSM FSM044

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268194

NDI Insurance Brokers Ltd v Financial Services Authority: FSMT 15 Jan 2006

FSMT APPLICATION FOR PERMISSION – non-investment insurance activities – application refused on grounds that controlling shareholder whose approval as Director (CF1) was included in application was not fit and proper (Threshold Condition 5) and because in consequence the company would not have the requisite resources (Threshold Condition 4) – Tribunal finding that director not fit and proper but no other reason to refuse application – whether resignation of director and disposal of his shares sufficient to distance himself from company – whether company then able to satisfy Threshold Condition 4 -jurisdiction of Tribunal to direct granting of permission in response to application in changed circumstances – reference allowed in part

Citations:

[2002] UKFSM FSM030

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268205

Baldwin v Financial Services Authority: FSMT 24 Jan 2006

FSMT MARKET ABUSE – Conditions – Information not generally available to the market – Transactions in 2003 – Whether Applicants traded in shares in reliance on inside information, being information not generally available to market – No – Condition (a) of s.118(2) of FSandMA 2000 not satisfied – No penalty to be imposed PROCEDURE – Submission of no case to answer – Tribunal’s discretion in dealing with submission

Citations:

[2006] UKFSM FSM026

Links:

Bailii

Citing:

See Als – Baldwin (Costs Decision) FSMT 24-Jan-2006
FSMT COSTS – FSandMA 2000 Sch 13 paragraph 13 – Test of reasonableness – Whether costs to be awarded under paragraph 13(2) on ground that decision of FSA was unreasonable – No – Whether relevant conduct under . .
Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 15 July 2022; Ref: scu.268204

Hussain v Financial Services Authority: FSMT 23 Nov 2007

REGULATED ACTIVITIES – own-initiative variation of permission – supervisory notice varying a Part IV permission by removing all regulate activities with immediate effect – failure by applicant to disclose convictions for dishonesty when making application – failure to disclose further conviction for dishonesty occurring after permission granted – applicant communicating with Authority in abusive, insulting and threatening terms – applicant’s refusal to comply with notice despite failing in application to Tribunal to have it suspended – refusal to submit final RMAR – failure to notify clients of withdrawal of permissions – whether fit and proper person – no – supervisory notice correct action for Authority to take – reference dismissed

Citations:

[2007] UKFSM FSM051

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268202

Townrow v Financial Services Authority: FSMT 12 Jan 2006

FSMT REGULATED ACTIVITIES – Performance – Prohibition Order – Fit and proper person – Failure to reply to enquiries from Regulator – Trading while not authorised on account of dissolution of partnership – Failure to conduct proper pensions review – Non-payment of redress to customers – Trading without professional indemnity cover – Failure to make proper disclosure in application for approval – Whether applicant not a fit and proper person to perform functions relating to regulated activities – Reference dismissed – FSMA 2000 s 32 – FSMA 2000 s 56 PRACTICE – guidance on form of chronology – guidance on core bundle

Citations:

[2006] UKFSM FSM025

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268206

Henton Revised v Financial Services Authority: FSMT 9 Nov 2007

FSMT PROHIBITION ORDER – whether Applicant fit and proper to perform functions in relation to all regulated activities carried on by authorised persons generally – no in respect of all currently regulated activities – Financial Services and Markets Act 2000 s 56

Citations:

[2007] UKFSM FSM049

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268201

Baldwin (Costs Decision): FSMT 24 Jan 2006

FSMT COSTS – FSandMA 2000 Sch 13 paragraph 13 – Test of reasonableness – Whether costs to be awarded under paragraph 13(2) on ground that decision of FSA was unreasonable – No – Whether relevant conduct under paragraph 13(1) limited to conduct in the course of the proceedings – No – Whether costs to be awarded under paragraph 13(1) on ground of unreasonable conduct prior to proceedings – No

Citations:

[2006] UKFSM FSM028

Links:

Bailii

Cited by:

See Als – Baldwin v Financial Services Authority FSMT 24-Jan-2006
FSMT MARKET ABUSE – Conditions – Information not generally available to the market – Transactions in 2003 – Whether Applicants traded in shares in reliance on inside information, being information not generally . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Costs

Updated: 15 July 2022; Ref: scu.268203

Edwards and Another v Financial Services Authority: FSMT 8 Nov 2007

FSMT APPROVAL – Controlled function – Investment adviser – Whether fit and proper – Individual agent made three mortgage agency applications for his principal – Agent submitted his personal bank details and not those of principal – Errors corrected once drawn to his attention – Whether despite those errors individual agent remains a fit and proper person – Yes, by majority vote of Tribunal – FSMT 2000 ss 59 and 60

Citations:

[2007] UKFSM FSM050

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services

Updated: 15 July 2022; Ref: scu.268200

Fox Hayes v Financial Services Authority: FSMT 5 Oct 2007

FSMT FINANCIAL PROMOTIONS – approval of non-real time financial promotions for unauthorized overseas persons – whether Applicant was able to show that it had taken reasonable steps to ensure that promotions clear, fair and not misleading – yes – whether Applicant had no reason to doubt that the overseas persons would deal with customers in the UK in an honest and reliable way – yes until mid-November 2003 but no thereafter – whether Applicant arranged for confirmation (that the promotions complied with the rules) to be carried out by an individual with appropriate expertise – yes – whether Applicant conducted its business with due skill, care and diligence – yes – whether penalty of andpound;150,000 excessive – further submissions invited – FSMA 2000 Ss 21, 138 and 206 – Conduct of Business Rules 3.6.1; 3.8.4; 3.12.6; Principles for Businesses, Principle 2

Citations:

[2007] UKFSM FSM047

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268199

Hussain v Financial Services Authority: FSMT 29 Jun 2007

FSMT 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 breach of threshold condition 5 – In application for permission to conduct regulated activities the Applicant failed to disclose relevant convictions – Applicant failed to disclose convictions taking place after his approval – Applicant refuses to cease carrying out regulated activities notwithstanding the notice – Whether Tribunal satisfied that the direction to suspend the effect of the notice would not prejudice the interests of the consumers – No – Whether necessary for notice to take effect immediately – Yes – Whether register should include no particulars about the reference – No – Applications dismissed – Financial Services and Markets Tribunal Rules 2001 SI 2001 NO2476 Rule 10(1)(e), Rule 10(6) and Rule 10(9)

Citations:

[2007] UKFSM FSM053

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268197

Henton v Financial Services Authority: FSMT 4 May 2007

FSMT PRELIMINARY ISSUE – Applicant prohibited from performing any function in relation to any regulated activity carried on by an authorised or exempt person or exempt professional firm because it appeared to the Authority that he was not a fit and proper person – Applicant had been found to be dishonest by the High Court in a civil trial – whether the judgment of the High Court was admissible evidence in the reference – yes – whether it would be an abuse of process to permit the Applicant to challenge the findings of the High Court by adducing relevant evidence, and presenting relevant arguments, to the Tribunal – no – Financial Services and Markets Act 2000 s 56

Citations:

[2007] UKFSM FSM048

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268196

Agarwala v Financial Services Authority: FSMT 15 Jan 2007

FSMT SUPERVISORY NOTICE – application for a direction to suspend effect of Notice until reference disposed of – Notice varied a Part IV permission by removal of all regulated activities with immediate effect -reason for Notice being breach of threshold conditions and Principles 1 (conducting business with integrity); 6 (treating customers fairly); and 11 (dealing with FSA in an open and co-operative way) -in his applications for permission to conduct regulated activities the Applicant had failed to disclose that he had been erased from the Register of Practising Insurance Brokers in 1993; that he had been expelled from membership of the Personal Investment Authority in 1997; and that the Financial Ombudsman Service had expressed the preliminary view in 2003 that advice to a client about pension arrangements had not been suitable and that the Applicant should pay redress if there had been any loss – whether Tribunal satisfied that a 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 – whether removal of all regulated activities proportionate to the concerns being addressed by the Notice – yes – application dismissed – Financial Services and Markets Tribunal Rules 2001 SI 2001 No. 2476; Rule 10(1((e) and 10(6)

Citations:

[2007] UKFSM FSM052

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268192

Litaid Ltd v Financial Services Authority: FSMT 10 Jan 2008

FSMT Variation of Part IV Permission – Failure to submit Retail Mediation Activities Return on time – Failure to obtain professional indemnity insurance – whether failure showed that Applicant not conducting business soundly and prudently – Condition 5 – whether failure to respond to Authority in relation to Retail Mediation Activities Return involved a breach of Principle 11 (Relations with Regulators)

Citations:

[2008] UKFSM FSM055

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268189

Mcintosh and La Mortgage Services v Financial Services Authority: FSMT 7 Jan 2008

FSMT APPROVED PERSON – withdrawal of approval – whether person to whom the approval was given was fit and proper to perform the function to which the approval related – no – FSMA 2000 s 63 – AUTHORISED PERSON – cancellation of permission – whether resources of authorised person adequate in relation to regulated activities – no – whether authorised person fit and proper – FSMA 2000 s 45 and Sch 5 paras 4 and 5

Citations:

[2008] UKFSM FSM054

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268190

Piggott v Financial Services Authority: FSMT 2 Jan 2007

FSMT REGULATED ACTIVITIES – prohibition order – whether Applicant a fit and proper person to perform functions in relation to regulated activities carried on by an authorised person – no – use of forged documents – whether abuse of process to go behind court decisions in which forged documents accepted as valid – no.

Citations:

[2007] UKFSM FSM043

Links:

Bailii

Financial Services

Updated: 15 July 2022; Ref: scu.268193

Vive-Kananda and Others v The Pensions Regulator: UTTC 9 May 2019

PENSIONS REGULATOR – penalty for failure to complete necessary valuations for pension scheme – whether trustees failed to take all reasonable steps to secure compliance – no – whether amount of penalty appropriate – yes – references dismissed

Citations:

[2019] UKUT 138 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services

Updated: 14 July 2022; Ref: scu.639521

Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions: CA 7 Feb 2008

Complaint was made as to a leaflet PEC 3 issued by the Department in 1996, intended to summarise the changes introduced by the Pensions Act 1995, and their purpose. One answer given was: ‘The Government wanted to remove any worries people had about the safety of their occupational (company) pension following the Maxwell affair.’ The Ombudsman found the leaflet inaccurate in not conveying the limitations of the protection, which would not remove ‘any worries’ but at most offered ‘a reasonable expectation – but not a guarantee’ of achieving benefits equivalent to those lost. The Department rejected the criticism, saying it was reasonable to expect people to obtain more detailed information about a specific pension scheme, rather than relying on ‘brief, general and introductory material’ such as was issued by the Department. Judicial review was sought. It was agreed that recommendations of the Ombudsman as opposed to findings, were not binding.
The court was asked whether the findings of the Ombudsman were binding. The claimants argued that findings were binding unless flawed or irrational; the SS said he was entitled, acting rationally, to prefer his own view, without needing to show that the Ombudsman’s view was itself flawed.
Held: It was not enough that the Secretary of State had formed the view that people would not be misled. It was the Ombudsman who had the primary task of assessing the nature of the maladministration and its consequences. The Secretary of State was entitled to disagree with her assessment for cogent reasons, but not to disregard it.
The purpose of the legislation was to give MPs ‘access to the services of an independent and authoritative investigator as ‘a better instrument which they can use to protect the citizen”. The Ombudsman is a ‘servant of Parliament’, but it did not follow that a minister, called to account before Parliament, was precluded ‘from explaining, as part of his justification for the decision to provide no remedy in respect of the complaint, his reasons for rejecting the commissioner’s finding of maladministration’ Such a bar would be ‘wholly foreign’. Parliament did not create a requirement that a public body whose conduct had been the subject of an investigation to accept the Ombudsman’s findings of maladministration.
Sir John Chadwick concluded: ‘It follows that unless compelled by authority to hold otherwise, I would conclude that . . .the Secretary of State, acting rationally, is entitled to reject a finding of maladministration and prefer his own view. But, as I shall explain, it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the ombudsman’s findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies the 1967 Act. To put the point another way, it is not enough for a minister who decides to reject the ombudsman’s finding of maladministration simply to assert that he had a choice: he must have a reason for rejecting a finding which the ombudsman has made after an investigation under the powers conferred by the Act.’
and ‘ . . It is not . . a general rule that facts found in the course of a statutory investigation can only be impugned on Wednesbury grounds: although, plainly, if the investigator can be shown to have acted irrationally, that will be a powerful reason for rejecting his findings. The true rule . . .is that the party seeking to reject the findings must himself avoid irrationality: the focus of the court must be on his decision to reject, rather than on the decision of the fact-finder.’
Sir John agreed with counsel for the claimants that ‘. . the relevant test is not whether a reasonable Secretary of State could himself conclude that failure to disclose risks in official leaflets was [not] maladministrative. Such a test would fail to take into account the fact that Parliament has conferred on the Ombudsman the function of making findings of maladministration and that the decision under review is a decision to reject that conclusion. The question is not whether the defendant himself considers that there was maladministration, but whether in the circumstances his rejection of the Ombudsman’s finding to this effect is based on cogent reasons.’
Sir John Chadwick said: ‘On the basis of those reasons it is submitted that the Secretary of State ‘was rationally entitled to conclude’ that the reader of leaflet PEC 3 would not be so misled into thinking that the MFR provided a guarantee that all occupational pensions were safe and secure in all circumstances. If he was entitled so to conclude, then (it is said) he was entitled to reject the Ombudsman’s finding on that point.
For my part, I am not persuaded that that is the correct approach: I am not persuaded that the Secretary of State was entitled to reject the Ombudsman’s finding merely because he preferred another view which could not be characterised as irrational. As I have said, earlier in this judgment, it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the Ombudsman’s findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies 1967 Act: he must have a reason (other than simply a preference for his own view) for rejecting a finding which the Ombudsman has made after an investigation under the powers conferred by the Act . .
the judge observed . . that no reasonable Secretary of State could rationally disagree with the Ombudsman’s view that the information in the leaflet PEC 3 was incomplete and potentially misleading. I am satisfied that the judge was correct in that observation; but, for my part, I prefer to say that, in the circumstances of this case, it was irrational for the Secretary of State to reject the Ombudsman’s finding to that effect.’

Sir John Chadwick concluded: ‘It follows that unless compelled by authority to hold otherwise, I would conclude that . . the Secretary of State, acting rationally, is entitled to reject a finding of maladministration and prefer his own view. But, as I shall explain, it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the ombudsman’s findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies the 1967 Act. To put the point another way, it is not enough for a minister who decides to reject the ombudsman’s finding of maladministration simply to assert that he had a choice: he must have a reason for rejecting a finding which the ombudsman has made after an investigation under the powers conferred by the Act.’
and ‘. . It is not . . a general rule that facts found in the course of a statutory investigation can only be impugned on Wednesbury grounds: although, plainly, if the investigator can be shown to have acted irrationally, that will be a powerful reason for rejecting his findings. The true rule . . .is that the party seeking to reject the findings must himself avoid irrationality: the focus of the court must be on his decision to reject, rather than on the decision of the fact-finder.’
Sir John agreed with counsel for the claimants that ‘. . the relevant test is not whether a reasonable Secretary of State could himself conclude that failure to disclose risks in official leaflets was [not] maladministrative. Such a test would fail to take into account the fact that Parliament has conferred on the Ombudsman the function of making findings of maladministration and that the decision under review is a decision to reject that conclusion. The question is not whether the defendant himself considers that there was maladministration, but whether in the circumstances his rejection of the Ombudsman’s finding to this effect is based on cogent reasons.’
Sir John Chadwick said: ‘On the basis of those reasons it is submitted that the Secretary of State ‘was rationally entitled to conclude’ that the reader of leaflet PEC 3 would not be so misled into thinking that the MFR provided a guarantee that all occupational pensions were safe and secure in all circumstances. If he was entitled so to conclude, then (it is said) he was entitled to reject the Ombudsman’s finding on that point.
For my part, I am not persuaded that that is the correct approach: I am not persuaded that the Secretary of State was entitled to reject the Ombudsman’s finding merely because he preferred another view which could not be characterised as irrational. As I have said, earlier in this judgment, it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the Ombudsman’s findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies 1967 Act: he must have a reason (other than simply a preference for his own view) for rejecting a finding which the Ombudsman has made after an investigation under the powers conferred by the Act . .
the judge observed . . that no reasonable Secretary of State could rationally disagree with the Ombudsman’s view that the information in the leaflet PEC 3 was incomplete and potentially misleading. I am satisfied that the judge was correct in that observation; but, for my part, I prefer to say that, in the circumstances of this case, it was irrational for the Secretary of State to reject the Ombudsman’s finding to that effect.’

Judges:

Wall LJ, Blackburne J, Sir John Chadwick

Citations:

[2008] EWCA Civ 36, [2009] QB 114, [2008] Pens LR 103, [2008] 3 All ER 1116, [2008] 3 WLR 1059

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Bradley 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 . .
Approved – Regina v Commissioner for Local Administration ex parte Eastleigh Borough Council CA 1988
Maladministration includes bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude and arbitrariness in reaching a decision or exercising a discretion, but that it has nothing to do with the intrinsic merits of the . .

Cited by:

Cited – Office of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
Applied – Equitable Members Action Group, Regina (On the Application of) v Her Majesty’s Treasury Admn 15-Oct-2009
The applicants sought judicial review of the defendant’s response to a report of the Parliamentary Ombudsman finding maladministration by the defendant in rejecting the recommendation for compensation.
Held: The respondent’s rejection of the . .
Cited – Gallagher and Another, Regina (on The Application of) v Basildon District Council Admn 9-Nov-2010
The claimant challenged the refusal of the Council to pay compensation as recommended by the Ombudsman. The Council had gathered personal details and information of the claimants in the course of a planning dispute, and then published that . .
Cited – JR55, Re Application for Judicial Review (Northern Ireland) SC 11-May-2016
The Court was asked about the powers of the Complaints Commissioner under the 1996 Order, and in particular about his powers in relation to general medical practitioners working in the National Health Service and whether, and if so in what . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Administrative

Updated: 13 July 2022; Ref: scu.264122

Pitmans Trustees Limited, Whitehead, Bracey-Wright v The Telecommunications Group Plc: ChD 10 Feb 2004

Judges:

The Vice-Chancellor

Citations:

[2004] EWHC 181 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms 1972
The Secretary of State proposed to introduce new regulations for the training of agricultural workers. It sent a notice inviting representations from a body representing the mushroom growing industry, but the letter was not received. The regulation . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Employment, Administrative

Updated: 13 July 2022; Ref: scu.193413

Regina v Secretary of State for Home Department, ex parte Christian Norgren: Admn 18 Feb 2000

The extradition of the defendant was requested by the US for breaches of insider dealing legislation. He claimed the issue of the order by the Home Secretary claiming it was not an extradition crime since at the time, the English equivalent offence related only to dealing on the Stock Exchange in London.
Held: The decision in issue would be that of the magistrate, not the Home Secretary. The notice was correct on its face and should stand.

Judges:

Lord Bingham CJ, Klevan J

Citations:

Gazette 16-Mar-2000, [2000] EWHC QB 143, [2000] EWHC Admin 296, [2000] 3 WLR 181, [2000] QB 817

Links:

Bailii

Statutes:

Extradition Act 1989, Company Securities (Insider Dealing) Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Extradition, Crime

Updated: 13 July 2022; Ref: scu.140110

Lombard North Central v Butterworth: CA 31 Jul 1986

The defendant entered into a hire-purchase contract for a computer, time being stipulated to be ‘of the essence’ in relation to the payment obligations. He defendant defaulted, and the plaintiff took possession of the goods, and and sought payment of the balance due.
Held: Time is of the essence where the parties have expressly stipulated in their contract that time is to be of the essence. The same result will follow if the contract contains a clause to the effect that any breach of such a clause will entitle the innocent party to terminate (or cancel) the agreement. The injured party is relieved of any obligation that remains unperformed on his part. In addition the injured party may claim for damages on the basis that upon termination of the contract the obligations of both parties remaining unperformed are brought to an end.
Mustill LJ said: ‘A stipulation that time is of the essence in relation to a particular contractual term, denotes that timely performance is a condition of the contract. The consequence is that delay in performance is treated as going to the root of the contract, without regard to the magnitude of the breach. It follows that where a promisor fails to give timely performance of an obligation in respect of which time is expressly stated to be of the essence, the injured party may elect to terminate and recover damages in respect of the promisor’s outstanding obligations, without regard to the magnitude of the breach.’

Judges:

Lawton, Mustill, Nicholls LJJ

Citations:

[1986] EWCA Civ 5, [1987] QB 527, [1987] 1 All ER 267, [1987] 2 WLR 7

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bettini v Gye QBD 1876
Mr Bettini agreed to sing for Mr Gye in concerts and operas in London between March and July 1875. The contract said he was to be in London ‘without fall’ at least six days before the 30th March for rehearsals. Because of illness, he did not arrive . .
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Bunge Corporation (New York) v Tradax Export Sa (Panama) HL 25-Feb-1981
The FOB contract for the sale of goods required the buyers to give notice of the probable readiness of the ships on which the goods were to be carried. The notice was given four days too late. The sellers declared the buyers in default and claimed . .
Cited – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Distinguished – Financings Ltd v Baldock CA 1963
The hirer took delivery of a vehicle under an HP contract. he plaintiff exercised a contractual right to terminate the hiring and take possession of the vehicle when the defendant failed to pay the first two monthly instalments.
Held: Where an . .
Cited – Bunge Corporation (New York) v Tradax Export Sa (Panama) HL 25-Feb-1981
The FOB contract for the sale of goods required the buyers to give notice of the probable readiness of the ships on which the goods were to be carried. The notice was given four days too late. The sellers declared the buyers in default and claimed . .

Cited by:

Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Contract

Updated: 12 July 2022; Ref: scu.262652