“384 Power of Authority to require restitution (1) The Authority may exercise the power in subsection (5) if it is satisfied that an authorised person (“the person concerned”) has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and— (a) that profits have accrued to him as a result of the contravention; or (b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention. (2) The Authority may exercise the power in subsection (5) if it is satisfied that a person (“the person concerned”)— (a) has engaged in market abuse, or (b) by taking or refraining from taking any action has required or encouraged another person or persons to engage in behaviour which, if engaged in by the person concerned, would amount to market abuse, and the condition mentioned in subsection (3) is fulfilled, (3) The condition is— (a) that profits have accrued to the person concerned as a result of the market abuse; or (b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the market abuse. (4) But the Authority may not exercise that power as a result of subsection (2) if, having considered any representations made to it in response to a warning notice, there are reasonable grounds for it to be satisfied that— (a) the person concerned believed, on reasonable grounds, that his behaviour did not fall within paragraph (a) or (b) of that subsection; or (b) he took all reasonable precautions and exercised all due diligence to avoid behaving in a way which fell within paragraph (a) or (b) of that subsection. (5) The power referred to in subsections (1) and (2) is a power to require the person concerned, in accordance with such arrangements as the Authority considers appropriate, to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the Authority to be just having regard— (a) in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the Authority to have accrued; (b) in a case within paragraph (b) of subsection (1) or (3), to the extent of the loss or other adverse effect; (c) in a case within paragraphs (a) and (b) of subsection (1) or (3), to the profits appearing to the Authority to have accrued and to the extent of the loss or other adverse effect.” (a) that profits have accrued to him as a result of the contravention; or (b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention. (b) by taking or refraining from taking any action has required or encouraged another person or persons to engage in behaviour which, if engaged in by the person concerned, would amount to market abuse, (a) that profits have accrued to the person concerned as a result of the market abuse; or (b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the market abuse. (a) the person concerned believed, on reasonable grounds, that his behaviour did not fall within paragraph (a) or (b) of that subsection; or (b) he took all reasonable precautions and exercised all due diligence to avoid behaving in a way which fell within paragraph (a) or (b) of that subsection. (a) in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the Authority to have accrued; (b) in a case within paragraph (b) of subsection (1) or (3), to the extent of the loss or other adverse effect; (c) in a case within paragraphs (a) and (b) of subsection (1) or (3), to the profits appearing to the Authority to have accrued and to the extent of the loss or other adverse effect.”
“Where a firm identifies (from its complaints or otherwise) recurring or systemic problems in its provision of, or failure to provide, a financial service, it should (in accordance with Principle 6 (Customers' interests) and to the extent that it applies) consider whether it ought to act with regard to the position of customers who may have suffered detriment from, or been potentially disadvantaged by, such problems but who have not complained and, if so, take appropriate and proportionate measures to ensure that those customers are given appropriate redress or a proper opportunity to obtain it. In particular, the firm should: (1) ascertain the scope and severity of the consumer detriment that might have arisen; and (2) consider whether it is fair and reasonable for the firm to undertake proactively a redress or remediation exercise, which may include contacting customers who have not complained.”
“A contravention of the rules in PRIN does not give rise to a right of action by a private person under section 138D of the Act (and each of those rules is specified under section 138D(3) of the Act as a provision giving rise to no such right of action).”
“Consumer redress schemes can only be used to require redress in relation to those failures in respect of which a remedy or relief would be available in legal proceedings. A consumer redress scheme could not, therefore, be used to require redress for: (1) breaches of the Principles (FCA rules currently provide that breaches of the Principles do not give rise to a right of action in court under section 138D of the Act – a change to this would be subject to the consultation requirements under the Act in the usual way); or (2) breaches of any other FCA rules where the right of action under section 138D of the Act has been switched off in the rules (e.g. the rules in the SYSC sourcebook); or (3) departure from FCA guidance; or (4) non-compliance with any non-binding code of practice (e.g. industry guidance confirmed by the FCA).”
“after carefully considering your circumstances we have assessed you as a non-Sophisticated customer, at the time you were sold a Vanilla Collar and a Vanilla Swap. Consequently, you are entitled to have this (sic) sales reviewed. If the review team finds that we did not meet all of our regulatory requirements, you may be entitled to redress.” 33. In the section “What will happen Next?” it is stated: “If you choose to have the sales included in the review, we will thoroughly examine the circumstances surrounding the transactions taking into account all the records we have at the bank along with any additional information you supply that you feel may be relevant. We will then write to let you know our proposed outcome.”
“please note we expect the circumstances where it will be appropriate to pay third-party advisor costs will be the exception rather than the rule. However, we will consider this on a case by case basis in consultation with the independent reviewer and following FCA guidance.”
“The sale of the swap will be reviewed by Barclays, under the scrutiny of an independent reviewer, through the review process. A decision will be reached as to whether or not the swap was mis-sold to the company, and if so, the type of redress which should be offered.”
“An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff.”
“where the defendant has voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice”
“The presence of such an exclusion clause whilst not being directly binding between the parties, cannot be excluded from a general consideration of the contractual structure against which the contractor demonstrates reliance on, and the engineer accepts responsibility for, a duty in tort, if any, arising out of the proximity established between them by the existence of that very contract.”
“When confronted by a novel situation the court does not … consider [the stages of the three-fold test] in isolation. It does so by comparison with established categories of negligence to see whether the facts amount to no more than a small extension of a situation already covered by authority, or whether a finding of the existence of a duty of care would effect a significant extension to the law of negligence”
“The question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done”
“a distinctly unpromising start to [the Appellants’] quest to persuade the court that there exist at common law duties of care co-extensive with those prescribed by the COB Rules, since one justification for the finding of such co-extensive, or as it is sometimes put by the Appellants, concurrent duties, the one rooted in statute and the other rooted in the common law, is said to be the more generous limitation period available in respect of the latter.”