"In order to achieve the investment objective, the [Fund] will operate a diversified investment strategy. The diversified investment strategy will give the [Fund] the possibility of profiting from both income yielding and capital growth investments. The Investment Manager may take equity or debt positions and may use derivative products and/or financial instruments if appropriate. The [Fund] will take income and growth positions in exchange traded companies, fixed interest securities, directly and indirectly held property and international companies."; iii) the fact that the Fund was not subject to any investment, borrowing, leveraged or currency restrictions; iv) risk warnings, including a warning in capital letters that the Fund's "
"… in the performance of its duties and in the exercise of any of the powers and discretions vested in it hereunder to act by responsible officers for the time being appointed for that purpose and to employ and pay an agent to perform or concur in performing any of the services required to be performed hereunder"; and "
“… at the very time that Mr Hadley was organising to commit Trafalgar to contracts with CGrowth and obliged to act in the exclusive best interests of Trafalgar, Mr Hadley was seeking personally to benefit from the sale of VAM to the agent of CGrowth, with whom he was negotiating the CGrowth contracts. Mr Hadley put himself in a position where the personal benefits he stood to gain from the sale of VAM to PPL/Mr Thwaite conflicted with his fiduciary obligations to Trafalgar.”
"Privilege against incrimination of self or spouse or civil partner 14. - (1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty— (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and (b) shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the spouse or civil partner of that person to proceedings for any such criminal offence or for the recovery of any such penalty."
"In the context of an urgent appeal, it is faintly ridiculous that this Court should be required to give a binding ruling whether Moore-Bick LJ's approach in the Kensington case requires this Court to identify the essential characteristics of section 328, applicable in every case, particularly when the participation of the fourth and fifth defendants, if proved, is so obviously fraudulent, and the identity of who it is said to fear prosecution remains, as yet, so nebulous."
"16 But this appeal has been heard as a matter of urgency, and a speedy resolution is required before a further inter partes hearing. For that reason I am prepared to accept the application of Moore-Bick LJ's approach to section 328 and that the Court should confine its attention to what may be discerned as the essential characteristics of that offence. 17 For the purpose of this appeal I am, accordingly, prepared to accept that Flaux J [the judge at first instance] erred in looking beyond what he described as the "technical ingredients of the offence" and basing his conclusion, at least in part, on the facts of the potential offence."
“73. I found no evidence to suggest that a 20% commission was standard or market level for the introduction of leads. On the contrary, I found these levels of fee to be up to 4000% of the fees charged elsewhere by a similar charging model. … 75. Given the regulatory requirements for financial advisers, qualifications, and ongoing continuing professional development, it does not seem plausible to suggest that an adviser or an entity promoting SIPPs or particular investments that could be made through SIPPs would agree to pay 20% of the value of funds invested into a SIPP in order to acquire an introduction, or that they would advise a client to do so.”
"…assent is not to be inferred from silence, unless there is further indication that the putative principal acquiesces in the agency… The reasons for this are close to obvious. Authority to enter into a contract on behalf of another is authority to commit that other to legal obligations to a third party without qualification and thus is not lightly to be inferred when there is no express agreement to that effect. Further, silence or inactivity is inherently equivocal and thus requires something else in the surrounding circumstances to negative that equivocality."
"The relationship of principal and agent can only be established by the consent of the principal and the agent. They will be held to have consented if they had agreed to what amounts in law to such a relationship, even if they do not recognise it themselves and even if they have professed to disclaim it … But the consent must have been given by each of them, either expressly or by implication from the words and conduct. Primarily one looks to what they said and did at the time of the alleged creation of the agency. Earlier words and conduct may afford evidence of a course of dealing in existence at that time and may be taken into account more generally as historical background. Later words and conduct may have some bearing, though likely to be less important."
"[Actual] authority may be express or implied. It is express when it is given by express words, such as when a Board of directors pass a resolution which authorises two of their number to sign cheques. It is implied when it is inferred from the conduct of the parties and the circumstances of the case, such as when the Board of directors appoint one of their number to be managing director. They thereby impliedly authorise him to do all such things as fall within the usual scope of that office."
"(4) Implied actual authority connotes the circumstances, falling short of express words, in which the principal authorises the agent to enter into transactions. (5) A common example of implied actual authority occurs when the principal appoints the agent to a position, such as chief executive of a company, which is generally understood to confer authority to enter into transactions of the type in question. (6) Implied actual authority may also occur where, without being appointed to such a position, the agent enters into transactions as if he had been so appointed and the principal communicates its approval of the agent acting in this way… This type of implied authority derives from a course of conduct by the agent, which with full knowledge is approved by the principal. It was by this type of authority that the defendant company was bound in Hely-Hutchinson v Brayhead Ltd and, in the view of Diplock LJ, could have been bound in Freeman & Lockyer. (7) Ostensible authority may arise from any circumstances in which the principal holds the agent out as having authority to enter into the transaction in question on behalf of the principal. (8) Circumstances giving rise to implied actual authority will generally also give rise to ostensible authority. "
"A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so."
"94. The elements of the cause of action are as follows: i) A combination, arrangement or understanding between two or more people. It is not necessary for the conspirators all to join the conspiracy at the same time, but the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of: Kuwait Oil Tanker at [111]. ii) An intention to injure another individual or separate legal entity, albeit with no need for that to be the sole or predominant intention: Kuwait Oil Tanker at [108]. Moreover: a) The necessary intent can be inferred, and often will need to be inferred, from the primary facts – see Kuwait Oil Tanker at [120-121], citing Bourgoin SA v Minister of Agriculture [1986] 1 QB: "[i]f an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer them". b) Where conspirators intentionally injure the claimant and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests: Lonrho Plc v Fayed[1992] 1AC 448 , 465-466, [1991] B.C.C. 641 ; see also OBG v Allan[2008] 1 AC 1 at [164-165] ("
"a criminal action, a breach of contract, a director’s fiduciary duty to a company or fraud" and more widely breach of fiduciary duty or bribery (see, for example, Fiona Trust v Privalov[2010] EWHC 3199 (Comm) ("
"A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. … The nature of the obligation determines the nature of the breach. The various obligations of a fiduciary merely reflect different aspects of his core duties of loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity…"
“… the key principle is that a fiduciary acts for and only for another. He owes essentially the duty of single-minded loyalty to his beneficiary, meaning that he cannot exercise any power so as to benefit himself. … ‘the distinguishing obligation’ of a fiduciary is that he must act only for the benefit of another in matters covered by his fiduciary duty. That means that he cannot at the same time act for himself.”
"Bribery is an evil practice which threatens the foundations of any civilised society."
"The essential vice inherent in bribery is that it deprives the principal, without his knowledge or informed consent, of the disinterested advice which he is entitled to expect from his agent, free from the potentially corrupting influence of an interest of his own."
"‘It is immaterial whether the agent’s mind had been affected or whether the principal has suffered any loss as a result: “the safety of mankind requires that no agent shall be able to put his principal to the danger of such an inquiry as that”: [Parker v McKenna (1874) 10 Ch App 96 at 124–125, [1874–80] All ER Rep 443 at 456].’"
"For the purposes of the civil law a bribe means the payment of a secret commission, which only means: (i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person's agent."
"Where a prima facie right to rescission is demonstrated, the Court nonetheless retains what is traditionally called a discretion to refuse it where it would be unfair or disproportionate, or to afford some other more suitable remedy, such as equitable compensation or an account."
"21 Restrictions on financial promotion (1) A person ("
"(a) entering or offering to enter into an agreement the making or performance of which by either party constitutes a controlled activity; or (b) exercising any rights conferred by a controlled investment to acquire, dispose of, underwrite or convert a controlled investment."
"19 The general prohibition. (1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is— (a) an authorised person; or (b) an exempt person. (2) The prohibition is referred to in this Act as the general prohibition."
“It is plainly the case that the simple giving of information without any comment will not normally amount to “advice”
“In terms of the transactions, they were part of the same transaction, weren’t they? Because the investment happened through the application form to transfer the pension.”
"iv) Instead, the question is a more straightforward and narrower one. It is simply whether exchanges with consumers took place which, on their proper construction, can be said to qualify as “advice” within the scope of the restriction on article 53 of the RAO. Although the nature or basis of the relationship between the parties is relevant to that question (the answer would be very straightforward if there were an advisory relationship), it seems to me it is not and should not be determinative. Activity corresponding to advice which in truth falls within the perimeter of regulated activity defined by article 53 can no doubt occur in unexpected places, including in the context of relationships which the parties have chosen to characterise as non-advisory, or which might accurately be described for other purposes as not engaging any common law duty of care."
"(v) … that involves looking at the substance and not the form of what has happened, in light of the language in the Order. (vi) To put it another way, there is every reason to suppose that article 53 is there to ensure not only that someone seeking to act as an investment adviser is properly authorised, but also to ensure that where a salesman expresses views which in substance are really advice about the merits of buying or selling particular investments, steps can be taken by the Regulator. (vii) The real question is therefore whether something which can fairly be described as having the quality and character of advice on the merits of buying or selling securities has been given. In my view, the answer to that question in this case is yes."
"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."
"That arrangements must be such as to "bring about" a transaction does not mean that they must "necessarily result" in the transaction taking place …". as well as conclusions (at [97]) that: "… it is important to focus on the words "bring about"
“PERG 5.6.2 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 FCA’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.” “PERG 5.6.4 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 FCA 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.”
"Introducing 33. There are excluded from article 25(2) arrangements where — (a) they are arrangements under which persons (“clients”) will be introduced to another person; (b) the person to whom introductions are to be made is— (i) an authorised person; (ii) an exempt person acting in the course of a business comprising a regulated activity in relation to which he is exempt; or (iii) a person who is not unlawfully carrying on regulated activities in the United Kingdom and whose ordinary business involves him in engaging in an activity of the kind specified by any of articles 14, 21, 25, 37, 40, 45, 51, 52 and 53 (or, so far as relevant to any of those articles, article 64), or would do so apart from any exclusion from any of those articles made by this Order; and (c) the introduction is made with a view to the provision of independent advice or the independent exercise of discretion in relation to investments generally or in relation to any class of investments to which the arrangements relate."
"the provision of independent advice or the independent exercise of discretion in relation to investments generally or in relation to any class of investments to which the arrangements relate"
"A person based outside the United Kingdom may also be carrying on activities in the United Kingdom even if he does not have a place of business maintained by him in the United Kingdom (for example, by means of the internet or other telecommunications system or by occasional visits). In that case, it will be relevant to consider whether what he is doing satisfies the business test as it applies in relation to the activities in question."
"52. The FSMA does not contain an exhaustive description of what constitutes the carrying on of business within the United Kingdom. All that section 418 … provides is that the requirement is to be satisfied in certain specific cases if it would not otherwise be so satisfied. This case is not within those cases. Accordingly, the Court is left with the question whether the activities described above (so far as not disputed), of themselves, constituted the carrying on of business in the United Kingdom. FSMA does not require that the entirety of a business activity be carried on in the United Kingdom. If it did, it would be open to obvious abuse. 53. In my judgment, it is sufficient if the activities in question which took place in this jurisdiction were a significant part of the business activity of running the CIS (if any) constituted by the betting services offered by 147 and TBPS. In this case, the communications with clients and prospective clients, and the maintenance of a bank account and an accommodation address, all of which took place in the United Kingdom, were all business activities. In my judgment they were of sufficient regularity and substance to constitute the carrying on of business here even after Mr Fradley moved his own office to Ireland in April 2003 and gave instructions by post or internet from there. I leave open the question whether the requirement for carrying on business within the jurisdiction can be satisfied in any other case."
"The shares in Titan held by Cavendish Cell 332 are a matter of record. Andrew Jones and Titan had no knowledge of the structure or purpose of Cavendish Cell 332, nor were Andrew Jones or Titan aware of the ultimate beneficial ownership of any assets held within Cavendish Cell 332." and "
"(i) to induce a person to perform improperly a relevant function or activity, or (ii) to reward a person for the improper performance of such a function or activity" or to know or believe that: "the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity."
"the recipient's state of knowledge must be such as to make it unconscionable for him to retain the benefit of the receipt."
"... developed and placed an insurance and risk management program for the operations of CGrowth Capital, comprised of oil operations in the US and to mines in Peru. The attached draft certificate of insurance provides evidence of the coverages and bondholder rights. Those bondholder rights include loss payee and additional insured with respect to policies, so control of proceeds occurs."
"Protect the: • Assets • Revenue Stream(s) • Including protection of lender interest and principal payment obligations • and Liabilities of the Corporation. Any remaining potential exposures to the Corporation shall not be able to produce a damaging blow to the Balance Sheet, where the organization has difficulty continuing its business and meeting its financial obligations."
"the contents of the documents, and the explanation of the benefits covered are, in our opinion, as AON Risk Solutions, the issuer of the documents, state."
"Do you confirm that the loan notes subscribed by Trafalgar are insured and such insurance cover will remain in force until maturity?" with the answer: "
"The ability for the Bond Issuer to repay capital and interest is based upon the project company borrowers repaying."