Author: Russell J Kelsall

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FCA fines firm for TCF breaches

On 20 November 2019, the UK Financial Conduct Authority (the FCA) published a final notice imposing a fine of £1,867,900 on Henderson Investment Funds Limited for failing to treat customers fairly under Principle 6 of the FCA’s Principles for Businesses.

The FCA decided the firm failed to treat its customers fairly because, between November 2011 and August 2016, the firm ”significantly” reduced the level of active management for retail investors (but not for institutional investors) which led to retail investors being treated “substantially different”.

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FCA publishes new web page and guidance for firms approving financial promotions of unauthorised firms

On 26 November 2019, the UK Financial Conduct Authority published a new webpage and guidance for firms approving financial promotions of unauthorised firms. The guidance claims to be setting out “some practical implications of our existing requirements, rather than setting out new standards”. The FCA flags it has particular concerns over ‘mini bonds’.

This webpage follows the FCA decision to issue a ‘Dear CEO’ letter to firms in April 2019.

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Complaints Commissioner publishes complaint decision on FCA’s failure to deal with an application for authorisation in time

On 7 November 2019, the Complaints Commissioner issued a decision following a complaint by an application that the UK Financial Conduct Authority (the FCA) failed to explain, or keep to, the statutory deadline for dealing with an application for authorisation. On 3 December 2019, the FCA issued a note saying it accepted the criticisms and recommendations.

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Butterworths Financial Regulation Service – updated commentary on CONC published

Issue 108 of Butterworths Financial Regulation Service has now been published. This includes updated material, and new chapters, in chapters 5, 6A to 6D, 10, 11, 13 and 16 (dealing with CONC 4, 5A, 5B, 5C, 5D, 9, 10, 12 and 15) written by Russell Kelsall.

In addition to reviewing the existing commentary on CONC 4 (including the FCA’s consultation paper, CP 19/28, on commissions), Issue 108 includes new commentary on:

– high-cost short-term credit (in CONC 5A);

– rent-to-own (in CONC 5B);

– overdrafts (in CONC 5C and 5D);

– prudential rules for debt management firms (in CONC 10);

– agreements secured on land (in CONC 15).

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Law Commission publishes its report on the electronic execution of documents

On 4 September 2019, the Law Commission published a webpage summarising its findings following its report into the electronic execution of documents. The webpage includes a very useful summary of the law. This broadly says that electronic signatures are generally (except for some exceptions) lawful and do not need to be signed in a particular way. But there are more complications for deeds which must be signed in the presence of the witness.

The Law Commission has recommended setting up a working party to consider some practical solutions (for example, video witnessing of deeds) and a further review of the law on deeds.

You can download:

– the summary paper by clicking here; or

– the full report by clicking here.

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Cycle insurance provider gives undertaking to the FCA on the fairness of a term

On 26 June 2019, the UK Financial Conduct Authority published an undertaking given by ETA Services Limited about the fairness of a term in its cycle insurance policy. The undertaking was given under the Consumer Rights Act 2015.

The FCA’s concern was over the transparency of a term allowing ETA Services Limited to reject a claim if a bicycle had not been secured using an approved lock. This term appeared to conflict with another term saying a claim would be rejected if the bicycle had been left in a communal building and not secured to an immovable object (so no mention of an approved lock).

ETA Services Limited told the FCA that since 1 April 2019, the terms had been revised so that, to be covered, a bicycle needed to be secured using an approved lock when left in communal buildings. ETA Services Limited, and the insurer, also assured the FCA that redress had been paid to consumers who had claims rejected because they did not use an approved lock in communal areas.

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FCA publishes undertaking given by James Brearley & Sons Limited about the fairness of a term allowing it to immediately end a contract

On 9 May 2019, the UK Financial Conduct Authority published an undertaking given by James Brearley & Sons Limited about a term allowing it to end a contract by giving “written notice at any time”.

The FCA considered such a term was potentially unfair under Regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 and Section 62(4) of the Consumer Rights Act 2015.

The firm agreed to stop using the term and replace it with a term saying it needed to give a customer twenty business days’ notice if it wanted to stop providing the services to them.

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FCA publishes its ‘Approach to Supervision’ and ‘Approach to Enforcement’

On 24 April 2019, the UK Financial Conduct Authority published its ‘Approach to Supervision’ and its ‘Approach to Enforcement’.

Both of these approach documents provide a helpful insight to firms on the FCA’s approach to both supervision and enforcement.

The FCA’s approach to enforcement gives the following insights:

– The “overriding principle in our approach to enforcement is a commitment to achieve fair and just outcomes in response to misconduct. Wrongdoers must be held to account and our rules and requirements must be obeyed”;

– “Not all breach’s of our rules or requirements constitute serious misconduct. Many breaches can be addressed and remedied elsewhere (and we expect them to be) without the need for enforcement action, especially where the error is technical or minor”;

– “Firms and individuals should not wait for an investigation to end before acting in a way they think is right”; and

– “We aim to make sure the sanction is sufficient to deter the firm or individual from re-offending and deter others from offending”.

The FCA’s approach to supervision also gives the following insights:

– “We expect firms and their employees to meet [our] standards and hold them to account when they fail to meet them”;

– The supervisory principles (a) are forward looking, (b) focus on strategy and business models, (c) focus on culture and governance, (d) focus on individual and firm accountability, (e) are proportionate and risk-based, (f) involve two-way communication, (g) are co-ordinated and (h) put right systemic harm that has happened and stop it happening again;

– Culture and business models are still key things the FCA considers important;

– The FCA continues to adopt a decision-making framework (see, for example, Chapter 4; there are some real nuggets of information here).