“5.5.3R(1) Cash and near cash must not be retained in the scheme 5 property except to the extent that this may reasonably be regarded as necessary in order to enable: (a) the pursuit of the scheme’s investment objectives; or (b) redemption of units; or 10 (c) efficient management of the authorised fund in accordance with its investment objectives; or (d) other purposes which may reasonably be regarded as ancillary to the investment objectives of the authorised fund. (2) During the period of the initial offer the scheme property may consist of 15 cash and near cash without limitation. 5.6.3R(1) An authorised fund manager must ensure that, taking account of the investment objectives and policy of the non-UCITS retail scheme as stated in its most recently published prospectus the scheme property of the scheme aims to provide a prudent spread of risk 20 (2) The rules in this section relating to spread of investments do not apply during any period in which it is not reasonably practical to comply, provided that (1) is complied with during such period.”
“The fund will seek to achieve its objective by investing directly in a broad range of collective investment schemes, transferable securities, bonds, money market instruments, cash, derivative instruments, forward transactions 5 and other instruments that the investment manager considers to be appropriate from time to time.”
“The phrase “possibly may conflict” requires consideration. In my 40 view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events 31 not contemplated as real sensible possibilities by any reasonable person, result in a conflict.”
“First, agency is a contract made between principal and agent; second, like every other contract, the rights and duties of the principal and 10 agent are dependent upon the terms of the contract between them, whether express or implied. It is not possible to say that all agents owe the same duties to their principals: it is always necessary to have regard to the express or implied terms of the contract.”
“As noted above, conflicts of interest may also arise in relation 5 to members of AFP partners and staff. In such circumstances, the individual concerned should ensure that they have no involvement in the transaction which gives rise to the conflict. Due to the practical difficulty of notifying clients of material interests, AFP will 10 rely on its policy of independence (a copy of AFP’s Independence Policy is Appendix 9 to the Manual).”
“As of5th July 2006 Arch will have its first fund’s [sic] under management. This 25 opens Arch up to new areas of risk which are captured in the latest SYSC including dealing procedures and the potential for reputational risk as a result of the higher exposure of Arch to a wider audience that includes retail individuals.”
“13. The meaning of integrity was considered by the Tribunal in Hoodless and Blackwell v FSA (2003). The Tribunal observed at [19]: 30 “In our view “integrity” connotes moral soundness, rectitude and steady adherence to an ethical code. A person lacks integrity if unable to appreciate the distinction between what is honest or dishonest by ordinary standards. (This presupposes, of course, circumstances where ordinary 35 standards are clear. Where there are genuinely grey areas, a finding of lack of integrity would not be appropriate.)”
“Even though a person might not have been dishonest, if they either lack an ethical compass, or their ethical compass to a 10 material extent points them in the wrong direction, that person will lack integrity.”
“The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an 35 obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if … one genuinely does not perceive the risk.”
“It is only where a risk is “unacceptable” but is nevertheless consciously disregarded that conduct becomes “reckless”
“The duty and standard of care to be expected from Mr Nye was accepted as being that which applied to any profession or calling which required special skill, knowledge or experience. The test is that formulated in a medical negligence case-Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 . Where there is a conflict as to 15 whether he has discharged that duty, the courts approach the matter upon the basis of considering whether there was evidence that at the time a responsible body of architects would have taken the view that the way in which the subject of enquiry had carried out his duties was an appropriate way of carrying out the duty, and would not hold him guilty of negligence merely because there was a body of competent professional 20 opinion which held that he was at fault. The onus of proving negligence, of course, rests firmly upon the person who alleges it…”
“From time to time and in particular during periods of uncertain or volatile markets the Investment Manager may choose to hold a substantial proportion of the property of the [Sub-Funds] in money market instruments and/5 or cash deposits.”
“Normally, a [Sub-Fund] will be fully invested save for an amount to enable 10 redemption of shares, efficient management of the [Sub-Fund] in relation to their strategic objective and other purposes which may be reasonably regarded as ancillary to the investment object of the sub-funds. This amount will vary depending upon prevailing circumstances and although it would not normally exceed 10% of the total value of the [Sub-Fund], there may be times when 15 the Investment Manager considers stock markets to be overpriced or that a period of instability exists which presents unusual risks. In such cases or during such periods, a higher level of liquidity may be maintained, and if considered prudent, the amount of cash or near cash instruments held would be increased. Unless market conditions were deemed unusually risky, the increased amount and period would not be expected to 20 exceed 30% and six months respectively.”
“Their Lordships consider that the proper approach to the construction of the Act of 1974 is not to decide what label to apply to it, procedural or 5 otherwise, but to see whether the statute, if applied retrospectively to a particular type of case would impair existing rights and obligations.”
“In their Lordships’ view, an accrued right to plead a time bar, which is acquired after 10 the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable.”
“The rule is clearly established that, apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective….This statute does not alter the character of the offence, or take away 35 any defence which was formerly open to the prisoner. It is a mere matter of procedure, and according to all the authorities it is therefore retrospective.”
“Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or 10 abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action the statute might well be classed as procedural. But if the time is enlarged when a person is out of time 15 to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of 20 action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.”