Category: Financial Services

Needler Financial Services Ltd v Taber: ChD 31 Jul 2001

The claimant had been negligently advised to swap to a personal pension plan. He was to receive damages in respect of that loss, but, in the meantime, the pension company, of which he had become a member de-mutualised, and he became entitled to shares in the new company. The adviser sought to reduce the damages payable by the value of the shares. There was in fact no sufficient connection between the negligent act and the benefit received. The demutualisation in no way arose as a consequence of the negligence, even though it would not have been received but for relying upon the advice.

Judges:

Morritt VC,

Citations:

Times 09-Aug-2001, Gazette 27-Sep-2001, [2001] EWHC Ch 5, [2002] 3 All ER 501

Links:

Bailii

Statutes:

Financial Services Act 1986 62

Jurisdiction:

England and Wales

Cited by:

Cited – Primavera v Allied Dunbar Assurance Plc CA 4-Oct-2002
The claimant purchased a pension plan relying upon advice from the defendant. Since discovering the error, the plan had in fact prospered. The respondent appealed the judges failure to allow fully for the improvement when assessing damages.
Lists of cited by and citing cases may be incomplete.

Financial Services, Damages, Professional Negligence

Updated: 01 February 2022; Ref: scu.136177

Grace Bay II Holdings Sarl and Others, Regina (on The Application of) v The Pensions Regulator and Others: Admn 10 Jan 2017

Challenge to prospective regulatory action against the claimants in respect of pensions schemes of which they had charge.

Judges:

Whpple J

Citations:

[2017] EWHC 7 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Financial Services

Updated: 28 January 2022; Ref: scu.573209

Granada Group Ltd v The Law Debenture Pension Trust Corporation Plc: CA 16 Dec 2016

This appeal concerns the legality of pension arrangements for former directors of Granada Group Ltd. Andrews J held a trial on liability only, at the conclusion of which she decided that the arrangements were lawful.

Lewison, Christopher Clarke, Hamblen LJJ
[2016] EWCA Civ 1289
Bailii
England and Wales

Employment, Financial Services

Updated: 27 January 2022; Ref: scu.572415

Michel Van De Wiele Nv v The Pensions Regulator: UTTC 17 Jan 2011

CONTRIBUTION NOTICE under section 38 Pensions Act 2004 – revival of application to issue against person not referring decision of Determination Panel to Tribunal – not permitted – discussion of extent of admissibility of evidence and argument on referral to Tribunal.

[2011] UKUT (FS)
Bailii
England and Wales

Financial Services

Updated: 26 January 2022; Ref: scu.440797

Frederick and Others v Positive Financial Solutions (Financial Services) Ltd: ChD 5 Aug 2016

The Claimants seek to recover from the Defendant, Positive Solutions (Financial Services) Ltd (Positive Solutions), compensation for losses that they have allegedly suffered as a result of the conduct of a Mr Qureshi and a Mr Warren.

Master Bowles
[2016] EWHC 2030 (Ch)
Bailii
Financial Services and Markets Act 2000
England and Wales

Vicarious Liability, Financial Services

Updated: 22 January 2022; Ref: scu.568635

Spector Photo Group and Van Raemdonck v Commissie voor het Bank, Financie en Assurantiewezen (CBFA): ECJ 23 Dec 2009

ECJ Directive 2003/6 Insider dealing – Use of inside information – Sanctions – Conditions

[2009] EUECJ C-45/08
Bailii
Citing:
Preliminary Ruling – Spector Photo Group and Van Raemdonck v Commissie voor het Bank, Financie en Assurantiewezen (CBFA) ECJ 10-Sep-2009
ECJ (Approximation Of Laws) Opinion – Insider trading Using inside information Directive 2003/6 / EC . .

Lists of cited by and citing cases may be incomplete.

European, Financial Services

Updated: 20 January 2022; Ref: scu.567370

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, pension. Under the original rules, members of the scheme in service (actives) required the consent of the trustees and the company to take early retirement; those who had left service (deferreds) required the trustees’ consent. The company claimed that the omission of the requirement for consent in the new rules was in error and that it was always intended that the right should be subject to consent of the company and trustees. The cost to the company of there being no requirement of consent was considerable, particularly with regard to the valuation of the benefits of deferreds. The memoranda and minutes of the trustees’ meetings made no reference to consent being required for early retirement.
Held: In relation to the actives, there was insufficient evidence that the absence in the new rules of the need for consent for early retirement between 60 and 65 on an unreduced pension failed to give effect to the intentions of the company and the trustees. But with regard to the deferreds, there was no positive intention to change their position. Rectification was refused, even as regards the deferreds, because ‘The evidence shows that, when they executed the deed, they had no clear common understanding of what it provided, and no clear common intention as to what it should provide. The only common thread of intention which appears to link the signatories was an intention to sign, wholly blindly, the document which was put before them on the basis that, as it was prepared by [the scheme administrators and scheme solicitors], it must be one they could safely sign. In short, their intention was no more complicated than to sign a deed in the form produced to them, whatever it in fact provided, and knowing that in material respects it had gone beyond the limits of what had been resolved …’ In any event there was no outward expression of accord. Responding to the argument that, since this was not a contract case, the applicable principles were those in Re Butlin’s Settlement, and there was no need for outward expression of accord, ‘I agree… that the present claim is not one to rectify a contract, since no authority has been cited to me which expressly identifies the rectification requirements in a claim such as the present. I agree also that it may be said that to apply the Rose v Pim requirement of an outward expression of accord to the present case does involve a development of the principles. If so, however, I take the view that such a development requires only the smallest of steps.’

Rimer J
[2000] Pensions LR 15
England and Wales
Citing:
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 – 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 by:
Cited – 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 . .
Cited – Trustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .

Lists of cited by and citing cases may be incomplete.

Equity, Financial Services

Updated: 20 January 2022; Ref: scu.184574

Nestle 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 there was not much for the bank to be proud of in its administration of the trusts.

Dillon, Staughton, Leggatt LJJ
[1992] EWCA Civ 12, [1993] 1 WLR 1260, [1994] 1 All ER 118
Bailii
Aministration of Justice Act 1985 50
England and Wales
Citing:
Cited – In re Sharp 1845
(Year?) Cotton LJ discussed a power to invest ‘upon the debentures or securities of any railway or other public company’ and said:- ‘It is true that he refers to railway companies, but he also adds, ‘or any other public company’; and I think it . .
Cited – Robinson v Robinson CA 1851
The trustee defendants had been directed by their testator to realise his investments and invest the proceeds in one or other of two forms of investment; but the trustees had delayed the realisation of the testator’s investments. When they actually . .
Cited – Speight v Gaunt HL 26-Nov-1883
A trustee is required to use the same degree of prudence and diligence as a person of ordinary prudence would have done if he had been conducting his own affairs. . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – In 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 . .
Cited – Lavarack v Woods of Colchester Ltd CA 1967
Damages for wrongful dismissal could not confer on an employee extra benefits that the contract did not oblige the employer to confer. There is a clear distinction between expectations, however reasonable, and contractual obligations.
Diplock . .
Cited – Otter v Church Adams Tatham and Co ChD 1953
The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed . .
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – 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. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Financial Services, Negligence

Updated: 19 January 2022; Ref: scu.262624

Northern Rock v Caldwell and Another: UTTC 4 Oct 2011

UTTC NATIONALISATION OF SHARES IN NORTHERN ROCK PLC – Compensation Scheme – meaning and effect of statutory valuation assumptions – assumption that financial assistance withdrawn – interpretation in compliance with human rights – whether decision as to amount of compensation was a reasonable decision – jurisdiction of Upper Tribunal

[2011] UKUT 408 (TCC)
Bailii
England and Wales

Human Rights, Financial Services

Updated: 18 January 2022; Ref: scu.448066

PDHL Ltd v Financial Conduct Authority: UTTC 5 Feb 2016

UTTC FINANCIAL SERVICES – Further 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 130 (TCC)
Bailii
England and Wales

Financial Services

Updated: 14 January 2022; Ref: scu.562423

PDHL Ltd v Financial Conduct Authority UKUT 129: UTTC 28 Jan 2016

UTTC FINANCIAL SERVICES – Decision Notice refusing permission for authorisation to carry on 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
Privacy – application for direction to prohibit publication of Decision Notice and for Register not to contain particulars of the reference – whether prohibition justified -no- application dismissed- Rule 14 and para 3(3) Schedule 3 The Tribunal Procedure (Upper Tribunal) Rules 2008

[2016] UKUT 129 (TCC)
Bailii
England and Wales

Financial Services

Updated: 14 January 2022; Ref: scu.562415

Lehman Brothers Luxembourg Investments Sarl v Lehman Brothers UK Holdings Ltd: ChD 21 Mar 2016

The parties asked the court to rule on a question which has arisen about the legal status of certain payments made, or expected to be made, to the Company by the administrators of its wholly-owned subsidiary, Lehman Brothers UK Holdings Limited (‘LBUKH’). The payments in question are part repayments of subordinated loans made by the Company to LBUKH under three subordinated loan facility agreements (two long term, and one short term) made between June 2004 and July 2005. The issue, in short, is whether the repayments should be held in trust for LBUKH and/or any as yet unknown creditors of LBUKH, or whether the repayments are held by the Company free from any trust and are available, in particular, for distribution to the Company’s own creditors.

Henderson J
[2016] EWHC 617 (Ch)
Bailii
England and Wales

Insolvency, Financial Services

Updated: 12 January 2022; Ref: scu.561523

Aon 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 good any shortfall in the scheme.
Held: Compulsory contributions were payable in each year which were calculated from the employees earnings. Payments could be reduced only if the scheme was in surplus. It would be a money purchase scheme if all the benefits were money purchase benefits calculated from contributions not counting as average salary benefits. In this scheme the benefits were calculated according to average earnings, and the employer’s appeal failed. The statutory words ‘calculated by reference to’ mean ‘calculated only by reference to, in the sense that the benefit in question must be the direct product of the contributions.’

Mummery, Chadwick, Jonathan Parker LJJ
[2005] EWCA Civ 1004, Times 09-Sep-2005, [2006] ICR 18, [2006] 1 WLR 97
Bailii
Pensions Schemes Act 1993 181(3), Pensions Act 1995 124(5) 56 75(1)
England and Wales
Citing:
Appeal from – AON 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 . .
Cited – Barclays Bank plc v Holmes 2000
A pension in payment is an entitlement under a pension scheme. . .
Cited – National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others HL 7-Jun-2001
The release by the trustees of a sum due to the pension scheme from the employers, did not make funds payable to the employer, so as to trigger the clause within the scheme trust deed which would restrain such a payment. Where an actuarial surplus . .

Cited by:
Cited – 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: 10 January 2022; Ref: scu.229046

Trustee Solutions Ltd and others v Dubery and Another: ChD 21 Jun 2006

The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and the amendment was ineffective. No estoppel arose as against the members: ‘An avoidance of pedantry, and the need to protect beneficiaries may well be powerful factors in choosing between rival constructions; but once the requirements of a valid means of alteration of the rules has been determined as a matter of construction, either a document satisfies those requirements or it does not.’ and ‘it was a substantive requirement of a document amending the rules that it was signed by the trustees and by or on behalf of the company. Since, in my judgment, the court has no power to authorise a departure from the rules, or to waive one of their requirements, it follows that the rules have never been validly amended. ‘
As to the estoppel, a group estoppel was alleged, saying that the amendments had been given effect since 1991. In fact those who had left the scheme, and who might have asserted the estoppel had been treated as if the amendment had not been made, and ‘the entitlement to pension of members who have the right to retire for part of their service and who had attained the age of 60 at the date of winding up falls within section 73 (3) (b) of the Pensions Act 1995. ‘

Lewison J
[2006] EWHC 1426 (Ch), [2006] Pens LR 177, [2007] 1 All ER 308, [2007] ICR 412, [2006] PLR 177, Times 07-Aug-2006
Bailii
Pensions Act 1995 73
England and Wales
Citing:
Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
Cited – Coloroll Pension Trustees v Russell and others (Judgment) ECJ 28-Sep-1994
The trustees of a pension fund have the same equal treatment obligations as do employers. The effect of the judgment in Barber was that: ‘i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male . .
Cited – Bestrustees v Stuart 2001
The court considered the validity of a purported alteration in the rules of a pension scheme. It was said to have altered the rules in accordance with a power of alteration contained in clause 16 of the scheme under consideration.
Held: ‘I . .
Cited – Everard v Paterson CEC 1816
The plaintiff sued on a bond which was conditional on performance of an arbitrators’ award ‘made in writing under their hands’. The pleading alleged that the arbitrators had made and published their award in writing; but it did not allege that the . .
Cited – Chadwick v Clarke CCC 1845
The plaintiff and defendant were directors of an insurance company. The board resolved to rent a house from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to . .
Cited – Technocrats International Inc v Fredic Ltd QBD 23-Nov-2004
The court was asked to consider the effectiveness of an unsigned assignment of a chose in action: ‘An assignment is only a legal assignment if it complies with s.136 of the 1925 Act. What that section requires is that there should be an ‘absolute . .
Cited – Redrow Plc v Pedley and Lewis ChD 12-Feb-2002
The company had a final salary pension scheme. The respondents were variously trustees of the scheme, and representative employees. To calculate benefits, it was necessary to determine the ‘total remuneration from the Employers’. The employees . .
Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
Cited – Chadwick v Clarke CCC 1845
The plaintiff and defendant were directors of an insurance company. The board resolved to rent a house from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to . .
Cited – Waterson’s Trustees v St Giles Boys’ Club IHCS 1943
The House considered a testamentary direction by the testatrix to give effect to any ‘informal writing under my hand’. At her death she left holograph directions, but they were not subscribed with a signature.
Held: This document was not . .
Cited – Steria Ltd and others v Hutchison and others ChD 21-Dec-2005
. .
Cited – Hearn v Younger 2005
. .
Cited – Icarus (Hertford) Ltd v Driscoll ChD 1990
. .
Cited – Hoover Ltd v Hetherington ChD 2002
. .
Cited – ITN v Ward ChD 1997
. .
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 by:
Appeal from – Trustee Solutions Ltd and others v Dubery and Another CA 26-Jul-2007
When apportioning the assets of a pension fund on its winding up under the statutory scheme, the trustees had to take careful note of the differing historic retirement ages throught the scheme and between men and women. . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Discrimination, Financial Services, Insolvency

Updated: 08 January 2022; Ref: scu.242661

LBG Capital No 1 Plc and Another v BNY Mellon Corporate Trustee Services Ltd: CA 10 Dec 2015

The court was asked whether Issuers were entitled to redeem, pursuant to their terms, certain contingent convertible securities.
Held:
The reference to ‘the Consolidated Core Tier 1’ in para (2) of the Definition should, in the events which have happened, be treated as a reference to ‘its then regulatory equivalent’ – ie the Common Equity Tier 1 Capital. This conclusion involved a departure from the strictly literal meaning of the definition of ‘Core Tier 1 Capital’ in clause 19, but the departure was justified because it was ‘clear that something has gone wrong with the language and [it was] clear what a reasonable person would have understood the parties to have meant’
Gloster LJ departed from the literal meaning of the closing words of para (2) of the Definition because:
(i) it was notorious at the time of the issue of the ECNs that the regulatory requirements as to financial institutions’ capital would be ‘strengthened and changed’,
(ii) it was envisaged in the TandCs, in particular in clause 19, that expressions such as ‘Regulatory Capital Requirements’ and ‘Core Tier 1 Capital’ could change their meaning;
(iii) indeed, it was inherent in the terms of the Definition that this was so;
(iv) it was obvious that changes of substance might lead to changes of nomenclature; and
(v) one of the essential features of the ECNs was that, if necessary, they could be converted into LBG core capital, whatever expression was used to define it. She concluded that, given these points, coupled with the existence of the ECN maturity dates, it made no commercial sense to limit the reference to ‘Core Tier 1 Capital’ in para (2) of the Definition to CT1 Capital, as opposed to holding that it could, in the events which had happened apply to CET1 Capital. The error would ‘have been obvious to a reasonable addressee of the Exchange Offer Memorandum’.
Briggs LJ said: ‘In order to resist early redemption of the ECNs is it sufficient that they continue to be taken into account for some purpose or purposes in the stress-test now applied by the [PRA], which in my view they do, or must they play a part in enabling LBG to pass that test, which they clearly no longer do, because of the change in the Regulatory Capital Requirements which had the effect of elevating the pass ratio to a level above the Conversion Trigger.’

Gloster, Briggs, Sales LJJ
[2015] EWCA Civ 1257
Bailii
England and Wales
Citing:
At ChD – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another ChD 3-Jun-2015
The court was asked whether the defendants, wholly-owned subsidiaries of Lloyds Banking Group plc, are now entitled to redeem certain enhanced capital notes in advance of their respective maturity dates. That turns on whether or not a Capital . .
Cited – Sigma 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 . .

Cited by:
At CA – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Banking

Updated: 08 January 2022; Ref: scu.556789

The Financial Conduct Authority v Da Vinci Invest Ltd: ChD 12 Aug 2015

Trial of a claim by the Financial Conduct Authority, for a final injunction and a financial penalty against the Defendants for market abuse. The market manipulation in question is alleged to have taken place in 2010 and 2011 in the course of high volume trading in contracts for differences in relation to shares traded on the London Stock Exchange.

Snowden J
[2015] EWHC 2401 (Ch)
Bailii
England and Wales

Financial Services

Updated: 03 January 2022; Ref: scu.551290

Bayliss and Co (Financial Services) Ltd v The Financial Conduct Authority: UTTC 21 May 2015

UTTC FINANCIAL SERVICES – independent financial adviser – whether approved person able to demonstrate that he provided suitable advice – whether he took reasonable steps to ensure compliance with regulatory standards-Statements of Principle 2 and 7 Financial Penalty-whether action precluded by limitation – s66(4), (5) FSMA – appropriate level of penalty – s66(3) FSMA Fitness and properness of approved person-withdrawal of approvals and prohibition order in relation to significant influence functions – s56 and 63 FSMA Cancellation of firm’s permission – s 55J FSMA

[2015] UKUT 265 (TCC)
Bailii
England and Wales

Financial Services

Updated: 01 January 2022; Ref: scu.549089

The 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 carbon credits in respect of forest areas in Australia, Sierra Leone and the Amazon.

Sir Terence Etherton Ch, Christopher Clarke, Vos LJJ
[2015] EWCA Civ 284, [2015] 2 BCLC 502, [2015] WLR(D) 140, [2016] 1 All ER 321, [2015] Bus LR 767, [2016] 1 All ER (Comm) 384
Bailii, WLRD
Financial Services and Markets Act 2000 235
England and Wales
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 29 December 2021; Ref: scu.544736

Deutsche Borse v Commission: ECFI 9 Mar 2015

ECJ Judgment – Competition – Concentrations – Financial instruments sector – European derivatives market – Decision declaring that the concentration is incompatible with the internal market – Assessment of the effects of the transaction on competition – Efficiency gains – Commitments

S. Papasavvas (Rapporteur), P
T-175/12, [2015] EUECJ T-175/12, ECLI:EU:T:2015:148
Bailii
European

Commercial, Financial Services

Updated: 28 December 2021; Ref: scu.544272

Tael One Partners Ltd v Morgan Stanley and Co International Plc: SC 11 Mar 2015

This appeal raises a question of contractual interpretation. Its significance lies in the fact that the contractual condition in question forms part of the Loan Market Association standard terms and conditions for par trade transactions which are a recommended set of terms published by the LMA and commonly used in the secondary loan market. Tael had sought summary judgment in its claim against the defendant under a standard form contract relating to Premium Payments order, The Court of Appeal refused such judgment, and Teal now appealed.
Held: The appeal was rejected. The word ‘accrue’ describes the coming into being of a right or an obligation. The amount may not fall due until a future date, but an entitlement may nevertheless have accrued. Interest or fees might accrue, in that sense, by reference to the lapse of time, but this was not such a situation. An entitlement to a payment premium under the loan agreement accrues on a defined event. The payment premium is expressed as an amount equal to the difference between the total of several other amounts, on the one hand, and an amount equal to interest calculated at a given rate, on the other hand, so it might be said that part of the premium relates to the period before the settlement date. That does not however mean that the premium can be regarded, retrospectively, as having notionally accrued over that period. The method of calculation of the premium should not be confused with the accrual of the right to it.

Lord Neuberger, President, Lord Kerr, Lord Reed, Lord Toulson, Lord Hodge
[2015] UKSC 12, [2015] WLR(D) 122, [2015] BUS LR 278, UKSC 2013/0127
Bailii, Bailii Summary, WLRD, SC, SC Summary
England and Wales
Citing:
Appeal from – Tael One Partners Ltd v Morgan Stanley and Co International Plc CA 1-May-2013
Morgan Stanley appealed against summary judgment given against it in respect of the application of the terms of a standard form assignment of a Loan agreement.
Held: The words ‘which are expressed to accrue by reference to the lapse of time’, . .
At first instance – Tael One Partners Ltd v Morgan Stanley and Co International Plc ComC 9-Jul-2012
Each party sought summary judgment.
Held: Popplewell J granted Tael’s application and dismissed Morgan Stanley’s. The payment premium was similar to interest and performed an analogous function. The cost of the borrowing was more than the . .
Cited – In re Howell KBD 1895
The court considered whether, a tenant having become bankrupt during the currency of a quarter, that part of the quarter’s rent apportionable to the part of the quarter before the order of adjudication should be held to be rent ‘accrued due’, within . .
Cited – Aitken v South Hams District Council HL 8-Jul-1994
A notice was served in 1983 under section 58 of the Control of Pollution Act 1974 requiring the abatement of a noise nuisance. That section was repealed by the Environmental Protection Act 1990, with effect from 1st January 1991, and a new procedure . .
Cited – In re Lysaght CA 1898
The testator bequeathed certain shares and declared that they ‘shall carry the interest accruing thereon at my death.’
Held: But for this clause the Apportionment Act would have allowed the residuary legatees to take the benefit of the . .

Lists of cited by and citing cases may be incomplete.

Contract, Financial Services

Updated: 28 December 2021; Ref: scu.544223

Massey v The Financial Services Authority: UTTC 3 Feb 2011

UTTC MARKET ABUSE – Conditions in FSMA s118(2) – Whether applicant an insider within s118B(e) – Yes – Whether information not generally available – Yes – Whether information of a precise nature within meaning of s118C(2) – Yes – Whether information likely to have a significant effect on price within meaning of s118C(6) – Yes – Defence under s123(2)(a) of belief on reasonable grounds that not market abuse – Defence not made out – Penalty to be imposed – Whether applicant fit and proper – No – Prohibition.

[2011] UKUT B4 (FS)
Bailii
England and Wales

Financial Services

Updated: 28 December 2021; Ref: scu.440803

Chancery (UK) Llp, Regina (on The Application of) v The Financial Ombudsman Service Ltd and Another: Admn 20 Feb 2015

Challenges by judicial review of a decision of the Financial Ombudsman Service Ltd, holding that it had jurisdiction to consider a complaint made against it by Sir Ian Robinson, the Interested Party, through Rebus Investment Solutions Ltd, Rebus, a claims management company. Chancery contended that the FOS had no jurisdiction to deal with the complaint, because the advice which it had given concerned, to put it neutrally, entry into a tax avoidance scheme rather than investment. Tax avoidance advice, it contended, fell outside the scope of the FOS jurisdiction.

Ouseley J
[2015] EWHC 407 (Admin)
Bailii

Financial Services

Updated: 28 December 2021; Ref: scu.543089

United 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 Authority in exceptional circumstances

V Skouris, P
[2014] EUECJ C-270/12, ECLI:EU:C:2014:18, [2014] WLR(D) 17
Bailii, WLRD
Regulation (EU) No 236/2012 28
European
Citing:
Opinion – 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 . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 24 December 2021; Ref: scu.540522

The Trustee of The Singer and Friedlander Ltd Pension and Assurance Scheme v Corbett: ChD 16 Oct 2014

The court was asked whether the trustee of a pension scheme is able to assign the debt owed to the pension scheme which is created by s75

Girss J
[2014] EWHC 3038 (Ch), [2015] Pens LR 31, [2015] WLR(D) 242, [2015] 1 CH 571, [2015] 3 WLR 787
Bailii, WLRD
Pensions Act 1995 75
England and Wales

Financial Services

Updated: 23 December 2021; Ref: scu.538970

In re Prudential Annuities Ltd and Others: ChD 13 Nov 2014

Application for the sanction of the court to an insurance business transfer scheme under which the entire long-term insurance business of Prudential Annuities Limited . . is to be transferred to The Prudential Assurance Company Limited. Ancillary orders are sought under s112 of the Financial Services and Markets Act 2000.

Birss J
[2014] EWHC 4770 (Ch)
Bailii
Fiancial Services and Markets Act 2000 112
England and Wales

Financial Services

Updated: 23 December 2021; Ref: scu.538722

Securities and Investments Board v Financial Intermediaries, Managers and Brokers Regulatory Association Ltd: ChD 1991

The 1986 Act conferred no power to make rules in respect of any liability incurred before the commencement date of the First Schedule whereby the definition of ‘Investment Business’ came into force.

Morritt J
[1991] 3 WLR 889, [1991] 4 All ER 398, [1992] Ch 268
Financial Services Act 1986
England and Wales

Financial Services

Updated: 23 December 2021; Ref: scu.551308

Van Caster And Van Caster (Judgment): ECJ 9 Oct 2014

ECJ Reference for a preliminary ruling – Free movement of capital – Article 63 TFEU – Taxation of income from investment funds – Investment fund’s obligations to communicate and publish certain information – Flat-rate taxation of income from investment funds which do not comply with communication and publication obligations

A. Tizzano, P
C-326/12, [2014] EUECJ C-326/12
Bailii
TFEU 53
European

Financial Services

Updated: 22 December 2021; Ref: scu.537479

United Company Rusal Plc, Regina (on The Application of) v The London Metal Exchange: CA 8 Oct 2014

The excange produced new rules for its members which had adversely affected the appellant. The appellant had sought orders as to the validity of the new rules.

Arden, McComber, Gloster LJJ
[2014] EWCA Civ 1271
Bailii
England and Wales
Citing:
Appeal from – United Company Rusal Plc, Regina (on The Application of) v The London Metal Exchange Admn 27-Mar-2014
The claimant challenged the introduction of new rules for the storage of metals for the members of the respondent, which was anticipated to lead to a fall in the price of aluminium. They said that the consultation process had been procedurally . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 22 December 2021; Ref: scu.537424

Arcadia Group Ltd v Arcadia Group Pension Trust Ltd and Another: ChD 31 Jul 2014

The parties were employer and trustees in respect of a company’s pension scheme. They disputed the extent t which, if any, the Consumer Prices Index published by the Office for National Statistics can be adopted in place of its Retail Prices Index for the purposes of calculating increases in pensions in payment and (in the case of the AGPS) revaluation of deferred pensions.

Newey J
[2014] EWHC 2683 (Ch), [2014] WLR(D) 354
Bailii, WLRD
England and Wales

Financial Services

Updated: 18 December 2021; Ref: scu.535478

Sebastian Holdings, Inc v Deutsche Bank Ag: CA 30 Jul 2014

The court considered whether it should grant leave to appeal and if so under what conditions. The claim was a very substantial one resulting from claims under a guarantee after losses made in the financial markets crash of 2008.

Longmore, Tomplinson LJJ
[2014] EWCA Civ 1100
Bailii
England and Wales

Financial Services

Updated: 18 December 2021; Ref: scu.535458

Barings Plc (In Liquidation) and Another, Barings Futures (Singapore) Pte Ltd (In Liquidation) v Coopers and Lybrand (A Firm) and Others, Mattar and 36 Others: ChD 17 Oct 2003

BFS was a company incorporated in Singapore which conducted its internal affairs in Singapore Dollars. It was by statute required to render its accounts in that currency. It paid its staff in Singapore Dollars. It sought damages in Singapore dollars.
Held: The currency ‘which most truly expresses BFS loss’ was the Japanese Yen and any judgment for damages should be expressed in that currency. The rate of interest should be awarded as the rate of the currency of the award of damages.

The Hon Mr Justice Evans-Lombe
[2003] EWHC 2371 (Ch)
Bailii
England and Wales
Citing:
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – The Despina R, The Folias HL 1979
The House dealt with the issue of the proper currency for the award of damages. There had been a collision at sea. In The Folias, damages in contract were claimed by charterers of a ship against the owners to be recouped compensation that they had . .
Mentioned – The Pacific Colocotronis CA 1981
. .
Cited – The Texaco Melbourne 1994
In deciding what should be the appropriate currency for a damages award, no account should be taken of fluctuations in the value of currencies between the date of breach and the date of judgment. . .
Cited – Ketteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .
Cited – Helming Schiffahrts GMBH v Malta Drydocks Corporation 1977
A German ship owning company claimed in contract arising from a contract for the construction of two ships in Malta. The currency of account specified by the contract was Maltese Pounds. The court awarded interest on the judgment, although in . .

Cited by:
Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Damages, Financial Services

Updated: 13 December 2021; Ref: scu.186811

In re Scientific Instrument Pension Plan Trusts: ChD 1999

The court accepted the application to pension trust deeds of the principle, whereby a forfeiture provision in a will or other trust instrument, purporting to forfeit an absolute or life interest in the event of voluntary or involuntary alienation, is ‘void as repugnant to the essential alienability of the interest given’.

Rattee J
[1999] Ch 53
England and Wales
Cited by:
Cited – Fisher and others v Harrison and others CA 29-Jul-2003
The respondent had the benefit of a single member company pension scheme. He sold the company, but the purchasers, now assignees of the pension, and appellants alleged breach of warranty in the company sale, and sought to prevent further payments . .

Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 13 December 2021; Ref: scu.186307

In re MF Global UK Ltd (In Special Administration): ChD 14 Jun 2013

The bank’s administrators sought directions for the management of money held in trust for its clients.

David Richards J
[2013] EWHC 1655 (Ch), [2013] WLR(D) 236, [2013] 1 WLR 3874, [2013] 2 BCLC 426, [2013] WTLR 1239
Bailii, WLRD
Investment Bank Special Administration Regulations 2011
England and Wales

Financial Services

Updated: 13 December 2021; Ref: scu.510870

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
England and Wales

Contract, Financial Services

Updated: 13 December 2021; Ref: scu.512319

The Mayor and Burgesses of the London Borough of Newham v Skingle and the Pensions Ombudsman: ChD 23 May 2002

The applicant was a retired local government worker. His pension was determined by his final salary. He worked many hours overtime. Was that overtime to be included when calculating his pension? The regulations included all payments, but not non-contractual overtime.
Held: The regulations were not clear. The contract provided overtime rates, so the ombudsman had found the payments to have been made under the contract. The employers contended that non-contractual overtime meant only overtime which was not obligatory. The Ombudsman erred in construing the regulations, and so the case was remitted, but he was correct in construing the contract.

The Honourable Mr Justice Jacob
Times 15-Jul-2002, Gazette 18-Jul-2002, [2002] EWHC 1013 (Ch), [2003] IRLR 72, [2002] 3 All ER 287, [2002] ICR 1118, [2002] OPLR 259, [2003] Pens LR 73
Bailii
Pensions Schemes Act 1993 151(4), Local Government Pension Scheme Regulations 1995
England and Wales
Cited by:
Appeal from – London Borough of Newham v Skingle CA 20-Feb-2003
Local Government pensions . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Local Government, Employment

Updated: 11 December 2021; Ref: scu.171273

Financial Services Authority (Decision Notice): ICO 29 May 2012

ICO The complainant requested the following information in relation to the Parliamentary Ombudsman’s report of 2008 into the Equitable Life crisis in 1998:- I wish to identify the names of the eight life companies referred to in para. 74 who gave ‘general cause for concern’ and the one life company (other than Equitable Life) who was ‘of particular concern’. The Commissioner’s decision is that the Financial Services Authority (FSA) has incorrectly applied the exemption under section 43(2) of FOIA to the requested information. The FSA has also breached sections 1(1)(b) and 10(1) of FOIA. The Commissioner requires the public authority to disclose the requested information to the complainant.
Section of Act/EIR and Finding: FOI 1 – Complaint Upheld, FOI 10 – Complaint Upheld, FOI 43 – Complaint Upheld

[2012] UKICO FS50417870
Bailii
England and Wales

Information, Financial Services

Updated: 10 December 2021; Ref: scu.529482

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:
Cited – Staubitz-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 . .
Cited – Interedil 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 . .
Cited – Trillium (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 from – Olympic 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 Instance – Olympic 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