“3. Advisers of the Appointed Representative are not authorised until notified by the Company in writing. 6. The Appointed Representative is prohibited from carrying on any of the activities detailed in the authorisation schedule as a Principal or as an Appointed Representative of another Principal. 7. It is a condition of the Agreement that the Appointed Representative be aware of and abides by the rules of the regulator and that the Appointed Representative shall regularly acquaint himself/herself with any new Rules or Regulations issued by the regulator and adhered to the Company’s Compliance and Procedures Manual, and Training and Competence Manual. 13. The Appointed Representative is responsible for ensuring that Advisers attend all theoretical and practical training provided by the Company or any other organisation approved by the Company. 18. The business submitted by the Appointed Representative remains the property of the Appointed Representative, unless by mutual agreement the business is purchased as a whole from the Appointed Representative by the Company. 21. Commission is payable on indemnity terms where applicable. Until further notice, the level of commission payable for each product to the Appointed Representative is as detailed on the Company website. The Company reserves the right to alter commission levels and payment terms with one months (sic) notice. 23. The Company will pay commission due to the Appointed Representative within 28 days of receipt from the Insurance Company. 31. The contract is deemed to have been terminated when the Company notifies the Appointed Representative in writing. 32. This agreement terminates automatically on the death, act of bankruptcy or insolvency of the Appointed Representative, or the Appointed Representative compound with creditors or the commission of any criminal or other act which in the Company’s opinion precludes the Appointed Representative from a position [of] trust, or the suspension of the Appointed Representative’s membership or authorisation by the regulator.”
“Private Medical Insurance (to be completed by PMI authorized advisors only).”
“The issue of fact finding activities of the non-authorised advisers has been referred to Compliance Management for guidance.”
“Further to your recent Risk Assessment visit, it has become apparent that there are a number of compliance processes and procedures which are not being adhered to within your branch, which are fundamental to the adherence of FSA regulation. All our findings have been assessed on the basis of risk and we have concluded that the risk is too great to allow you to continue as an Appointed Representative of Personal Touch Financial Services Limited. I am therefore writing to inform you that your authorisation is terminated with immediate effect.”
“Arranging deals in investments 25.—(1) Making arrangements for another person (whether as principal or agent) to buy, sell, subscribe for or underwrite a particular investment which is— (a) a security, (b) a contractually based investment, or (c) an investment of the kind specified by article 86, or article 89 so far as relevant to that article, is a specified kind of activity. (2) Making arrangements with a view to a person who participates in the arrangements buying, selling, subscribing for or underwriting investments falling within clause (1)(a), (b) or (c) (whether as principal or agent) is also a specified kind of activity.”
“Arrangements not causing a deal 26. There are excluded from article 25(1) arrangements which do not or would not bring about the transaction to which the arrangements relate.”
“11. The Order sets out a number of exceptions to the broad definition set out in art.25. The main exceptions are at arts.72C, 27, 28 and 33. in broad outline: i) Art.72C deals with the provision of information on an incidental basis ii) Art.27 deals with the mere provision of a means of communication, for example services provided by Internet service providers and telecommunications networks. iii) Art.28 deals with a transaction to which the arranger is a party. iv) Art.33 excludes the activity of an introducer in certain circumstances. The exclusion does not however apply if the arrangements relate to insurance.” i) Art.72C deals with the provision of information on an incidental basis ii) Art.27 deals with the mere provision of a means of communication, for example services provided by Internet service providers and telecommunications networks. iii) Art.28 deals with a transaction to which the arranger is a party. iv) Art.33 excludes the activity of an introducer in certain circumstances. The exclusion does not however apply if the arrangements relate to insurance.”
“12. A useful starting point to determine if an activity is regulated or not is the "Perimeter Guidance" manual issued by the FCA. The introductory words of the manual are as follows: ‘The purpose of this manual is to give guidance about the circumstances in which authorisation is required, or exempt person status is available, including guidance on the activities which are regulated under the Act and the exclusions which are available.’ The guidance is issued under section 139A of FSMA and represents the views of the FCA. It expressly does not bind the court. However, ‘If a person acts in line with the guidance in the circumstances mentioned by it, the FCA will proceed on the footing that the person has complied with the aspects of the requirement to which the guidance relates.’ … 14. PERG 5.6.2 deals with art.25(1) as follows: ‘The activity in article 25(1) is carried on only if the arrangements bring about, or would bring about, the transaction to which the arrangement relates. This is because of the exclusion in article 26 of the Regulated Activities Order (Arrangements not causing a deal). Article 26 excludes from article 25(1) arrangements which do not bring about or would not bring about the transaction to which the arrangements relate. In the FSA's view, a person would bring about a contract of insurance if his involvement in the chain of events leading to the contract of insurance were important enough that, without it, there would be no policy. Examples of this type of activity would include negotiating the terms of the contract of insurance on behalf of the customer with the insurance undertaking and vice versa, or assisting in the completion of a proposal form and sending it to the insurance undertaking. Other examples include where an insurance undertaking enters into a contract of insurance as principal or an intermediary enters into a contract of insurance as agent.’ 15. PERG 5.6.4 deals with art.25(2) as follows: ‘Article 25(2) may, for instance, include activities of persons who help potential policyholders fill in or check application forms in the context of ongoing arrangements between these persons and insurance undertakings. A further example of this activity would be a person introducing customers to an intermediary either for advice or to help arrange an insurance policy. The introduction might be oral or written. By contrast, the FSA considers that a mere passive display of literature advertising insurance (for example, leaving leaflets advertising insurance in a dentist's or vet's waiting room and doing no more) would not amount to the article 25(2) activity.’ 16. PERG 5.6.18 provides as follows: (1) Article 25(2) applies to ongoing arrangements made with a view to transactions taking place from time to time as a result of persons having taken part in the arrangements. So, they will not apply to one-off introductions or introductions that are not part of an ongoing pre-existing arrangement between introducer and introducee. An introducer who merely suggests to a person that he seeks advice or assistance from an authorised person or an exempt person with whom the introducer has no pre-existing agreement that anticipates introductions will be made, will not be making arrangements at all. He will simply be offering general advice or information. (2) The purpose of the arrangements must be for the person who is introduced to, in general terms, enter into a transaction to buy or sell securities or relevant investments. So, arrangements for introducing persons for advice only will not be caught (for example, introductions to a financial planner or to the publisher of an investment newsletter). In other cases, it may be likely that transactions will' be entered into following the provision of advice. Provided the introducer is completely Indifferent as to whether or not a contract of insurance may ultimately be bought (or sold) as a result of the advice given to the person he has introduced, the introducer will not be making arrangements with a view to transactions in investments. This is likely to be the case where the introducer does not receive any pecuniary reward that is linked to the volume of business done as a result of his introductions.’” ‘The activity in article 25(1) is carried on only if the arrangements bring about, or would bring about, the transaction to which the arrangement relates. This is because of the exclusion in article 26 of the Regulated Activities Order (Arrangements not causing a deal). Article 26 excludes from article 25(1) arrangements which do not bring about or would not bring about the transaction to which the arrangements relate. In the FSA's view, a person would bring about a contract of insurance if his involvement in the chain of events leading to the contract of insurance were important enough that, without it, there would be no policy. Examples of this type of activity would include negotiating the terms of the contract of insurance on behalf of the customer with the insurance undertaking and vice versa, or assisting in the completion of a proposal form and sending it to the insurance undertaking. Other examples include where an insurance undertaking enters into a contract of insurance as principal or an intermediary enters into a contract of insurance as agent.’ ‘Article 25(2) may, for instance, include activities of persons who help potential policyholders fill in or check application forms in the context of ongoing arrangements between these persons and insurance undertakings. A further example of this activity would be a person introducing customers to an intermediary either for advice or to help arrange an insurance policy. The introduction might be oral or written. By contrast, the FSA considers that a mere passive display of literature advertising insurance (for example, leaving leaflets advertising insurance in a dentist's or vet's waiting room and doing no more) would not amount to the article 25(2) activity.’ (1) Article 25(2) applies to ongoing arrangements made with a view to transactions taking place from time to time as a result of persons having taken part in the arrangements. So, they will not apply to one-off introductions or introductions that are not part of an ongoing pre-existing arrangement between introducer and introducee. An introducer who merely suggests to a person that he seeks advice or assistance from an authorised person or an exempt person with whom the introducer has no pre-existing agreement that anticipates introductions will be made, will not be making arrangements at all. He will simply be offering general advice or information. (2) The purpose of the arrangements must be for the person who is introduced to, in general terms, enter into a transaction to buy or sell securities or relevant investments. So, arrangements for introducing persons for advice only will not be caught (for example, introductions to a financial planner or to the publisher of an investment newsletter). In other cases, it may be likely that transactions will' be entered into following the provision of advice. Provided the introducer is completely Indifferent as to whether or not a contract of insurance may ultimately be bought (or sold) as a result of the advice given to the person he has introduced, the introducer will not be making arrangements with a view to transactions in investments. This is likely to be the case where the introducer does not receive any pecuniary reward that is linked to the volume of business done as a result of his introductions.’”
“60. It is important to note that PTFS required SS to employ Fact Find questionnaires created by PTFS and that SS did so. It is equally important to note that those Fact Find questionnaires (described at clause 26 above) contained clear instructions that certain parts were "to be completed by PMI authorized advisors only". An instruction that parts of the questionnaire are to be completed only by certain qualified persons strongly suggests that parts not covered by the directive can be completed by a person who is not so qualified. 61. It therefore seems to me that in acting as they did SS are entirely right to say that they were following PTFS's instructions. That does not absolve them from the finding that they are in breach, but in my judgment, taken with my finding that the breach lower end of the spectrum of potential breaches it is an indicator that the breach was not repudiatory.”
“Schuler maintains that the use of the word 'condition' is in itself enough to establish this intention [for the term to be a condition strictly so called]. No doubt some words used by lawyers do have a rigid inflexible meaning. But we must remember that we are seeking to discover intention as disclosed by the contract as a whole. Use of the word 'condition' is an indication - even a strong indication - of such an intention but it is by no means conclusive.”
“The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear.”
“117. The absence of an express obligation to pay commission post termination does not mean that there is no obligation. 118. In my judgment the Claimants are right to say that the right to renewal commission accrued (a) before it became payable and (b) at a time prior to termination of the agreement. I therefore accept that the right to receive commission must continue after termination. As it is put in the opening note: ‘C had a vested right to the commissions and the termination does not deprive it of them’.”