Financial Services Seminar 4 th June 2014 Jenni Richards QC, Damian Falkowski and Saima Hanif
Financial Services Seminar4th June 2014
Jenni Richards QC,
Damian Falkowski and
Saima Hanif
Enforcement
Trends and Priorities
Saima Hanif
4 June 2014
Individual Liability
• High profile fines e.g. £662K for bond trader
Mark Stevenson (March 2014)
• Increasing use of attestations
• More to come: Financial Services (Banking
Reform) Act 2013
• BUT:
“the big fish swim straight past”
(Andrew Tyrie, PCBS Chair)
Corporate Liability
• More aggressive fines (JP Morgan, £137.6m)
• Increased use of s166 skilled persons’
reports
• Breaches of listing rules:
- £14million fine against Prudential;
- £2.4 million fine against Lamprell plc;
- £175,000 fine against Nestor Healthcare
• Emphasis on the importance of Principle 11
Future Priorities
Previously:
• Reactive enforcement
Now:
• Pre-emptive;
• FCA 2014/2015 Business Plan: High-cost
short-term credit market (including payday
lenders); retirement income products
• Thematic Review: disclosure of costs
The Backlash
• Aggressive regulation comes with
consequences
• Serious fallout from:
– KeyData
– Insurance industry review leak
• Treasury review of the enforcement
decision making process.
The transition of Consumer
Credit regulation from OFT
to FCA
Damian Falkowski
4th June 2014
• From April 2014 regulation moved from the Office of Fair Trading to
the FCA.
• The FCA takes on a £200 bn per annum industry.
• The shift from Consumer Credit Act / OFT to FCA - a more rigorous,
consumer-orientated approach.
• All existing businesses required permission from the FCA from April
2014 with full authorisation between by April 2016 if they wish to
continue in business.
• The FCA's high level requirements applied e.g. Principles for
Business, Systems & Controls, Treating Customers Fairly, Conduct
Risk, Dispute Resolution (DISP).
• FCA Consumer Credit conduct of business rules to replace the
Consumer Credit Act rules and OFT Guidelines
The background to Consumer Credit regulation
• “The Chancery mends no man's bargain” per Lord Nottingham in Maynard v Moseley
(1676) 3 Swan 651.
• Usury laws repealed in 1854 and until 1900 no regulation (apart from Bill of Sales Act
and pawnbroking legislation)
• Result: Report of the House of Commons Select Committee on Moneylending,
published in 1898, one lender charging interest up to 3,000%.
• Annual Report of the Director General of Fair Trading 1987 p.17 noted annual
percentage rate of charge of about 14m% in one case and 18m % in another.
• Money-lenders Act 1900 and 1927
• 1900 Act: no licensing system. 1927 Act remedied this and imposed strict rules as to
seeking business (e.g. no agent canvassing or unsolicited advertising) and the form
of documentation with unenforceablity for non-compliance.
The background to Consumer Credit regulation cont..
• Orakpo v Manson Investments Ltd [1978] A.C. 95
“My Lords, the Moneylenders Acts 1900 to 1927, which are to be
construed as one Act, were designed to protect unsophisticated
borrowers from being overreached by unscrupulous moneylenders. As
the present case shows, however, they are capable of being used by
unscrupulous borrowers to avoid paying their just debts to
moneylenders…” Per Lord Diplock
• Crowther Report and the Consumer Credit Act 1974
Consumer Credit Act 1974
• Came into force in 1974 but for the largest part no commencement
until May 1985
• Structure: Part I Formerly 'Director General of Fair Trading' then 'Office of Fair Trading' (the OFT)
Part II Credit agreements, hire agreements and linked transactions
Part III Licensing of credit and hire businesses
Part IV Seeking business
Part V Entry into credit or hire agreements
Part VI Matters arising during currency of credit or hire agreements
Part VII Default and termination
Part VIII Security
Part IX Judicial control
Part X Ancillary credit businesses
Part XI Enforcement of Act
Part XII Supplemental
Protection of borrowers?
Old law: Extortionate credit bargains
Section 138 When bargains are extortionate
(1) A credit bargain is extortionate if it—
(a) requires the debtor or a relative of his to make payments
(whether unconditionally, or on certain contingencies) which
are grossly exorbitant, or
(b) otherwise grossly contravenes ordinary principles of fair
dealing.
(2) In determining whether a credit bargain is extortionate, regard shall
be had to such evidence as is adduced concerning—
(a) interest rates prevailing at the time it was made,
(b) the factors mentioned in subsection (3) to (5), and
(c) any other relevant considerations.
Protection of borrowers? cont…
• Only approx. 30 ECB cases came to court in 30 years 1
• Davies v Directloans Ltd. [1986] 1 W.L.R. 823:
“These words are not defined by the Act of 1974 and must be given their
ordinary meaning. “Exorbitant” is defined by the Shorter English Dictionary as
“Exceeding ordinary or proper bounds; excessive; outrageously large”;
“grossly” is defined as “excessively; flagrantly”.
1 DTI White Paper “Fair, Clear and Competitive – The Consumer Credit Market in the 21st Century” December 2003.
No enforcement orders in cases of infringement, section
127 CCA 1974 e.g.:
Part of credit or total charge for credit?
• Wilson v First County Trust Ltd [2001] Q.B. 407 – document fee of £250 incorrectly included as
part of “credit”.
Second mortgage difficulties:
• Watchtower Investments Ltd v Payne [2001] EWCA Civ 1159
• But on very similar facts see: McGinn v Grangewood Securities Ltd [2002] EWCA Civ 522
• “1. These appeals raise a number of issues under the Consumer Credit Act 1974(“the Act”) which
has recently provided so much work for the courts. Like others, this case demonstrates the
unsatisfactory state of the law at present. Simplification of a part of the law which is intended to
protect consumers is surely long overdue so as to make it comprehensible to layman and lawyer
alike. At present it is certainly not comprehensible to the former and is scarcely comprehensible to
the latter…
• 75, It appears to me to be little short of scandalous that a lender should set up a scheme which it
intended should permit it to make substantial interest charges payable by the debtor without being
required to make the position absolutely clear. As the judge recognised, the reference to
backloading in the internal documents makes it clear that the lender always intended to exercise
its discretion in the credit agreement to defer the debtor's obligation to pay the legal fees on
completion, but only on terms that the debtor paid interest at the contractual rate.”
• Per Clarke LJ
• Hurstanger Ltd v Wilson [2007] 1 W.L.R. 235. November 1997 Office of Fair
Trading guidelines “Non-Status Lending: Guidelines for Lenders and
Brokers” – commissions must be disclosed; but rescission refused.
• Dimond v Lovell [2002] 1 A.C. 384 (car hire) “agreement irredeemably
unenforceable” for want of a signed document containing “all the prescribed
terms”.
No enforcement orders in cases of infringement, section
127 CCA 1974 e.g.:
Financial Services and Markets Act 2000 (FSMA 2000)
• Various unregulated or lightly regulated financial activities brought
under FSA control.
• Secured lending now under FSMA: “regulated mortgage contracts”
from 31 October 2004.
• Loans to individuals or trustees, secured by a first legal mortgage on
land, where at least 40% of the loan is to be used for “residential
purposes” under FSA control while second mortgage lending (e.g.
sub-prime) remained OFT regulated.
Consumer Credit Act 2006
Changes included:
• Unfair relationship replaced extortionate credit bargain, with retrospective effect, for
exiting agreements (but ECB continued to apply to “completed” agreements).
• No more “irredeemably” unenforceable consequences for new agreements –
jurisdiction given to court to enforce improperly executed agreements.
• Further exemptions, e.g. high net worth individuals, removal of financial limits,
business exemption.
• New information requirements.
• New default rules.
• Consumer Credit Appeal Tribunal established
• Financial Ombudsman scheme.
Consumer Credit Directive – Directive Directive
2008/48/EC
“The Consumer Credit Directive is a deeply flawed document. To attempt
maximum harmonisation of the laws of the 27 member states on so complex a
subject as consumer credit was a task only to be undertaken by a hero or an
idiot. In this case, emphatically the latter. The starting point is, of course, that
the exercise was completely unnecessary. There was no evidence that
divergence between consumer credit law in the member states was actually
impeding Europe-wide competition. Secondly there was the impossibility of
achieving a workable harmonisation between, say, consumer credit in the UK,
which has the most sophisticated consumer credit law and the most
sophisticated consumer credit system in Europe (possibly in the world) and
consumer credit in the emerging nations of the former Soviet Block where the
financial innovations of the thirteen century Lombards had yet to be fully
absorbed.”
Goode: Consumer Credit Law and Practice para [21.54]
House of Commons Committee of Public Accounts:
Regulating Consumer Credit
Eighth Report of Session 2013–14Key conclusions:
• The OFT does not have the information on lenders it needs to regulate them
effectively.
• The OFT lacks a proper understanding of how different people use consumer credit
and the significant harm that consumers can suffer if firms do not comply with the
regulations.
• The OFT has been far too passive.
• The OFT has been under resourced relative to the scale of the problems, and it has
not used its powers to vary the licence fees it charges.
• Effective consumer protection is hampered by a lack of clear information and low
levels of financial understanding.
• Regulation is not addressing the poor practices of some credit providers, which are
leading some consumers into serious difficulties and unmanageable debts.
• The devolution of the social fund loans scheme to local authorities offers a real
opportunity to support social responsible lending to the financially excluded at local
level.
• There are signs that the OFT is starting to take the kind of action required to clamp
down on unscrupulous payday lenders.
Public law challenges & financial
regulation
Jenni Richards QC
CASELAW UPDATE
• R (Wilford) v FSA [2013] EWCA Civ 677 & [2013] EWCA Civ 674
• W sought judicial review of Decision Notice issued under s. 67
FSMA, claiming that it failed to address the submissions he had
made to the RDC and that the RDC had therefore failed to give
adequate reasons.
• The RDC had found that W failed to ensure that finance department
brought potentially important financial information to his personal
attention promptly, failed to make active inquiries on 13 May 2008
within the finance department about what information of possible
relevance might be available, failed properly to review draft April
financial results pack when it was issued, failed to appreciate the
significance of the information it contained and verified the trading
statement in the circular when he had no reasonable basis for doing
so.
• FSA argued that the appropriate course was for W to refer the matter to the
Upper Tribunal under section 67(7) FMSA
• FSA submitted that compliance with section 388 FSMA required RDC to do
no more than make clear the reasons for its decision; RDC was not
required to deal in detail with each and every submission made to it. W
argued that the reasons failed to inform him why the RDC had rejected his
case, and that he could not therefore make an informed decision whether to
refer the matter to the Tribunal.
• Before Silber J, W’s claim succeeded, on the basis that the reasons were
inadequate and a referral to the Upper Tribunal did not provide a suitable
remedy. Judge held that since the Upper Tribunal’s jurisdiction was to
consider the matter afresh it had no power to require the FSA to give
reasons and so no power to remedy the particular breach.
.
• Silber J quashed the Decision Notice.
• FSA appealed.
• Court of Appeal allowed the appeal. Emphasised context:– Although RDC required to act fairly, and give fair consideration to any representations, it
remains organ of the FSA and the Decision Notice is the final step in the FSA’s process
– The statutory right to refer to the Upper Tribunal enables the person subject to that process
to remove the matter from the FSA sphere for a fresh decision by an expert tribunal
exercising a judicial function
– The Upper Tribunal is an integral part of the overall regulatory scheme.
• Starting point is that only in exceptional cases will court entertain JR if there
is an alternative remedy
• Would be surprising if Parliament had intended disputes relating to the
FSA’s procedure to be reviewed by the courts, save in the most exceptional
cases
• Upper Tribunal may not be able to quash the Decision Notice and require
RDC to give better reasons, but it can reconsider whole matter afresh and
thus deal with substance of allegations against W
• In any event, the RDC had not failed to give adequate reasons. The failure
to respond to W’s individual submissions was not a breach of the duty to
give reasons.
• What is necessary is that the RDC should leave the recipient in no real
doubt as to why it has decided to give the notice. In deciding how full its
reasons should be, the RDC is entitled to take into account the fact that the
recipient will be familiar with the arguments.
• RDC was entitled to concentrate on main issues and unnecessary for it to
discuss all the arguments in detail or give more extended reasons for its
findings
• (Comment in judgment of Pill LJ: agreed that appeal should be allowed but
“would expect a clearer and more focused approach by RDCs. It is the
quality of the reasoning rather than its length that is important.”
• R (T) v SSHD/SSJ, FCA and PRA intervening, on appeal from
[2013] EWCA 2515
• Appeal to the Supreme Court from decision of the Court of Appeal,
where it concluded that the Rehabilitation of Offenders Act 1974
(Exceptions) Order – which required in certain circumstances
disclosure of and permitted reliance on otherwise spent convictions
and cautions - was incompatible with Article 8 and ultra vires
• FCA and PRA intervened to argue that those parts of the Exceptions
Order which entitled them to ask for and consider information about
spent convictions/cautions raised different issues and the Court of
Appeal ought not to have ruled the entire Order to be ultra vires
• Judgment from the Supreme Court still awaited
Challenges to FOS
Walker’s Application [2013] NIQB 12
• W applied for judicial review of the decision of the Financial Services
Ombudsman (FSO) not to uphold his complaint about the behaviour of the
Bank of Ireland
• The FSO argued, in reliance on a decision of Collins J in R (Duff) v FSO
[2006] EWHC 1704, that there was a suitable alternative remedy and
therefore judicial review should be dismissed. The alternative remedy
contended for was the entitlement to sue the bank. Duff had suggested
that it would be very rare for there to be a JR of an ombudsman’s decision
by an applicant whose claim had not been upheld.
• Horner J could find no subsequent case in which Collins J’s decision had
been followed and expressed his disagreement with it. He found that
proceedings against the bank would not fulfil the necessary criteria – such
proceedings would be lengthy and expensive, an unequal struggle, and
could not be said to be adequate, effective or suitable.
• Court should treat decision of the FSO with respect and give it a reasonably
generous margin of appreciation to reflect the particular expertise of the
DSO. Court cannot second guess the FSO who is much better qualified to
say what is fair and reasonable in circumstances which relate to the
financial services industry.
• Applying these principles, the conclusion of the FSO was one which he was
entitled to reach on the facts
• The complaint that the FSO failed to reconsider his final decision had no
substance: the FSO was functus officio once he made his final decision
and could not reopen it.
R (Bankole) v Financial Ombudsman Service [2012] EWHC 3555 (Admin)
• JR of decision of FOS to treat B’s complaint about conduct of Lloyds TSB
as being out of time
• The bank had written to B rejecting his complaint in June 2008; he denied
ever receiving that letter. There had been subsequent correspondence with
the bank. B complained to FOS Jan 2009.
• Following investigation, FOS made a finding of fact that he had received the
final response letter from the bank, and that his complaint had not been
made within 6 months.
• Sales J held that it was clear from the scheme of the rules in DISP that the
scheme envisages that it will be FOS who determines whether or not a
complaint is made within the specified time limits, subject only to review on
usual judicial review grounds; the time limit is not a matter of precedent fact
• Decision was not irrational, but a conclusion of fact lawfully open to FOS
• Under the rules, the time limits are taken to run from the time when a proper
final response is given; the time limits do not revive simply because there is
further correspondence pertaining to the complaint
• Although FOS had not expressly considered in his decision letter whether
exceptional circumstances justifying an extension of time arose, B had not
sought to suggest to FOS that there was any additional exceptional
circumstance
• R (London Capital Group) v FOS [2013] EWHC 2425 (Admin)
• Issue was whether the FOS had jurisdiction to deal with complaint about the
management of a foreign exchange trading account
• London Capital provided services including financial spread betting and
foreign exchange trading accounts. One of its customers, S, made a
complaint to FOS that London Capital had mismanaged the account.
• FOS decided it did have jurisdiction and would therefore consider the
complaint; London Capital issued JR claim of that decision, claiming that the
operation of the account did not involve dealing in any investments of the
kind specified in article 85 of the Regulated Activities Order.
• Judgment contains a discussion on the meaning and effect of article 85.
• The purpose of the contract and the intention of the parties had to be
interpreted objectively by construing the terms of the contract in its factual
seeting.
• Conclusion was that FOS had jurisdiction under s. 226 FSMA
R (Calland) v FOS [2013] EWHC 1327 (Admin)
• JR of decision of FOS upholding in part a complaint against the claimant (an
IFA) and ordering compensation of £48k.
• C challenged the decision on the grounds that (a) the time taken by FOS to
reach a determination was unreasonable and a breach of C’s rights at
common law and under Art 6 – the investigation related to services provided
in 1992 and had lasted more than 6 ½ years; (b) the decision was taken
without convening an oral hearing; (c) the investigation was unfair.
• FOS argued that: (a) the main reason why the determination took so long
was C’s own conduct, including sustained procedural and jurisdictional
objections to FOS’s investigations and a refusal for a significant period to
cooperate or engage with the complaint; (b) there was no relevant disputed
issue of fact which required an oral hearing, and such a hearing almost 20
years after the events in question was unlikely to have been helpful; (c)
FOS acted with scrupulous fairness to C throughout.
• The Judge found as follows:– As to delay, although it might seem extraordinary that it took so long to determine a fairly
straightforward matter, this was largely explained by the procedural and jurisdictional
objections made by C, “who was determined to fight every point and did so at great length”.
This was the principal cause of the substantial delay. There was one period of delay for
which FOS could be held responsible (from Nov 2007 to Oct 2009). But the proceedings had
to be viewed as a whole, and the time taken during this period did not constitute a breach of
his Art 6 rights.
– As to an oral hearing, the principles were as set out by the Court of Appeal in R (Heather
Moor & Edgecomb Ltd) v FOS [2008] EWCA Civ 642: the default position is no need for an
oral hearing and one must be held only when that is necessary fairly to determine the dispute
in question.
– The presence of a disputed issue of fact does not automatically mean that an oral hearing is
necessary – there may be a contemporaneous written record, or the answer may be obvious:
“there need be an oral hearing only where the dispute cannot fairly be resolved without
hearing oral evidence”
– This was not a case in which fairness demanded an oral hearing.
– There were no other grounds of unfairness which justified quashing the decision. Although
the complaint had been solicited by FOS, the complainant clearly did wish to complain.
OTHER DEVELOPMENTS IN JUDICIAL REVIEW
(1) A useful reminder of the Tameside duty of sufficient inquiry in R (on the
application of Plantagenet Alliance Ltd) v Secretary of State for Justice &
Ors [2014] EWHC 1662 (QB):
• A public body has a duty to carry out a sufficient inquiry prior to making its
decision: did the body ask itself the right question and take reasonable
steps to acquaint itself with the relevant information to enable it to answer it
correctly?
• The obligation upon the decision-maker is only to take such steps to inform
himself as are reasonable.
• Subject to a Wednesbury challenge, it is for the public body, and not the
court to decide upon the manner and intensity of inquiry to be undertaken
• The court should not intervene merely because it considers that further
inquiries would have been sensible or desirable.
• The court should establish what material was before the authority and
should only strike down a decision by the authority not to make further
inquiries if no reasonable council possessed of that material could suppose
that the inquiries they had made were sufficient
• The principle that the decision-maker must call his own attention to
considerations relevant to his decision, a duty which in practice may require
him to consult outside bodies with a particular knowledge or involvement in
the case, does not spring from a duty of procedural fairness to the applicant,
but from the decision maker’s duty so to inform himself as to arrive at a
rational conclusion
• The wider the discretion conferred on the decision maker, the more
important it must be that he has all relevant material to enable him properly
to exercise it
(2) R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68
• The Supreme Court upheld the judgment of the Court of Appeal that certain
Regulations made under the Jobseeker’s Act 1995 were ultra vires:– Where Parliament in a statute has required that something be prescribed in delegated
legislation, it envisages and requires that the delegated legislation adds something to what is
contained in the primary legislation
– Description of a scheme in regulations is important for Parliamentary oversight and to enable
those required to participate in the scheme to ascertain whether the requirement has been
made in accordance with Parliamentary authority
– The Regulations contained no detail about the scheme and were unlawful.
• The Supreme Court further held that where a public body administers a
policy or scheme, fairness requires that sufficient must be published to
enable a person who is affected by its operation to make informed and
meaningful representations to the decision-maker
(3) R (Osborn & Booth) v Parole Board [2013] UKSC 61
- When right to an oral hearing (before Parole Board) might be necessary
- Impossible to define all the circumstances in which an oral hearing will be
necessary, but such circumstances will often include the following:- Where important facts are in dispute
- Where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly
to determine its credibility (“The board should guard against any tendency to underestimate the
importance of issues of fact which may be disputed or open to explanation or mitigation”).
- Where cannot otherwise properly or fairly make an independent assessment of risk, or of the means
by which it should be managed and addressed.
- Where it is necessary in order to enable the individual or his representatives to put their case
effectively or to test the views of others
- Where it would be unfair for a “paper” decision to be made
- Board should consider whether its assessment may benefit from the closer examination which an oral
hearing can provide
- should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its
decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a
decision with important implications for him, where he has something useful to contribute.
• The Court also emphasised that:
– The board must be, and appear to be, independent and impartial. It should not be
predisposed to favour the official account of events, or official assessments of risk, over the
case advanced by the prisoner.
– The board should guard against any temptation to refuse oral hearings as a means of saving
time, trouble and expense.
– In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in
doubt whether to do so or not.
– The common law duty to act fairly, as it applies in this context, is influenced by the
requirements of article 5.4 as interpreted by the European Court of Human Rights.
Compliance with the common law duty should result in compliance also with the
requirements of article 5.4 in relation to procedural fairness.
– A breach of the requirements of procedural fairness under article 5.4 will not normally result
in an award of damages under section 8 of the Human Rights Act 1998 unless the prisoner
has suffered a consequent deprivation of liberty.
• (4) Duty to consult? R (Plantagenet Alliance) v SSJ [2014] EWHC 1662• 1. There is no general duty to consult at common law (the government of the country would grind
to a halt if every decision-maker were required in every case to consult everyone who might be
affected by his decision)
• 2. There are four main circumstances where a duty to consult may arise:
– where there is a statutory duty to consult.
– where there has been a promise to consult.
– where there has been an established practice of consultation.
– where, in exceptional cases, a failure to consult would lead to conspicuous unfairness.
– Absent these factors, there will be no obligation on a public body to consult
• 3. The Common Law will be slow to require a public body to engage in consultation where there
has been no assurance, either of consultation (procedural expectation), or as to the continuance
of a policy to consult (substantive expectation)
• 4. A duty to consult, i.e. in relation to measures which may adversely affect an identified interest
group or sector of society, is not open-ended. The duty must have defined limits which hold good
for all such measures
• 5. The Common Law will not require consultation as a condition of the exercise of a statutory
function where a duty to consult would require a specificity which the courts cannot furnish without
assuming the role of a legislator
• 6. The courts should not add a burden of consultation which the democratically elected body
decided not to impose
• 7. The Common Law will, however, supply the omissions of the legislature by importing Common
Law principles of fairness, good faith and consultation where it is necessary to do
• 8. Where a public authority charged with a duty of making a decision promises to follow a certain
procedure before reaching that decision, good administration requires that it should be bound by
its undertaking as to procedure provided that this does not conflict with the authority’s statutory
duty
• 9. The doctrine of legitimate expectation does not embrace expectations arising (merely) from the
scale or context of particular decisions, since otherwise the duty of consultation would be entirely
open-ended and no public authority could tell with any confidence in which circumstances a duty
of consultation was be cast upon them (
• 0. A legitimate expectation may be created by an express representation that there will be
consultation or a practice of the requisite clarity, unequivocality and unconditionality
• 11. Even where a requisite legitimate expectation is created, it must further be shown that there
would be unfairness amounting to an abuse of power for the public authority not to be held to its
promise
• (5) Unlawful consultation:
• In particular, the failure to provide sufficient information, or to make the proposal
sufficiently clear, or to provide any information about the consequences of the
proposal. See, e.g.
– R (Hunt) v North Somerset Council [2013] EWCA Civ 1320: simply publishing
material about the proposals insufficient – such publication may have brought the
proposal to people’s attention but did not explain in concrete terms what the
proposals amounted to and cannot be regarded as having been directed at
ascertaining people’s views
– R (LH)_v Shropshire CC [2014] EWCA Civ 404
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