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• Usury laws repealed in 1854 and until 1900 no regulation (apart from Bill of Sales Act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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