376 Continuation of contracts of long-term insurance where insurer in liquidation.
(1) This section applies in relation to the winding up of an insurer which effects or carries out contracts of long-term insurance.
(2) Unless the court otherwise orders, the liquidator must carry on the insurer’s business so far as it consists of carrying out the insurer’s contracts of long-term insurance with a view to its being transferred as a going concern to a person who may lawfully carry out those contracts.
(3) In carrying on the business, the liquidator—
(a) may agree to the variation of any contracts of insurance in existence when the winding up order is made; but
(b) must not effect any new contracts of insurance.
(4) If the liquidator is satisfied that the interests of the creditors in respect of liabilities of the insurer attributable to contracts of long-term insurance effected by it require the appointment of a special manager, he may apply to the court.
(5) On such an application, the court may appoint a special manager to act during such time as the court may direct.
(6) The special manager is to have such powers, including any of the powers of a receiver or manager, as the court may direct.
(7) Section 177(5) of the 1986 Act (or Article 151(5) of the 1989 Order) applies to a special manager appointed under subsection (5) as it applies to a special manager appointed under section 177 of the 1986 Act (or Article 151 of the 1989 Order).
(8) If the court thinks fit, it may reduce the value of one or more of the contracts of long-term insurance effected by the insurer.
(9) Any reduction is to be on such terms and subject to such conditions (if any) as the court thinks fit.
(10) The court may, on the application of an official, appoint an independent actuary to investigate the insurer’s business so far as it consists of carrying out its contracts of long-term insurance and to report to the official—
(a) on the desirability or otherwise of that part of the insurer’s business being continued; and
(b) on any reduction in the contracts of long-term insurance effected by the insurer that may be necessary for successful continuation of that part of the insurer’s business.
(11) “Official” means—
(a) the liquidator;
(b) a special manager appointed under subsection (5); or
(c) the PRA.
(11A) The PRA must—
(a) consult the FCA before making an application under subsection (10), and
(b) provide the FCA with a copy of any actuary's report made to the PRA under that subsection.
(11B) In the event that the activity of effecting or carrying out long-term contracts of insurance as principal is not to any extent a PRA-regulated activity—
(a) the reference in subsection (11)(c) to the PRA is to be read as a reference to the FCA, and
(b) subsection (11A) does not apply.
(12) The liquidator may make an application in the name of the insurer and on its behalf under Part VII without obtaining the permission that would otherwise be required by Article 142 of, and Schedule 2 to, the 1989 Order.
(1) A “write-down order” is an order of the court directing that the value of one or more of an insurer’s liabilities is reduced on such terms as may be specified in the order.
(2) The court may make a write-down order in relation to an insurer if it is satisfied that—
(a) the insurer is, or is likely to become, unable to pay its debts (within the meaning given to that expression by section 123 of the 1986 Act or Article 103 of the 1989 Order), and
(b) making the order is reasonably likely to lead to a better outcome for the insurer’s policyholders and other creditors (taken as a whole) than not making the order.
(3) A write-down order—
(a) takes effect on the later of—
(i) the date specified in the order, and
(ii) the date on which the appointment of a person to act as the manager of the order first takes effect (see section 377G(7));
(b) ceases to have effect in accordance with section 377H;
(c) may be revoked or varied in accordance with section 377I.
(4) A write-down order may not be made in relation to an insurer—
(a) which is in administration (within the meaning of Schedule B1 to the 1986 Act or Schedule B1 to the 1989 Order), or
(b) which is in liquidation by virtue of—
(i) a resolution for voluntary winding up, or
(ii) a winding-up order under section 125 of the 1986 Act or Article 105 of the 1989 Order.
(5) A write-down order may not reduce the value of an excluded liability (within the meaning given by section 377B).
(6) A liability, to the extent of its reduction by a write-down order under this section, is to be treated as extinguished unless and until revived by section 377H or 377I.
(7) In this section, “creditor” includes a contingent or prospective creditor.
(1) Each of the following is an “excluded liability”—
(a) a liability with an original maturity of less than 7 days;
(b) an amount payable in respect of goods delivered, or a service provided, on or after the date on which the write-down order is made;
(c) an amount in respect of remuneration or expenses of a person appointed under section 377G to act as the manager of the write-down order (including amounts incurred before, as well as after, the person’s appointment in connection with the order or the application for the order);
(d) an amount secured on property of any kind, other than an amount secured by a charge which, as created, was a floating charge;
(e) an amount payable in respect of wages or salary arising under a contract of employment;
(f) a contribution or other sum payable in respect of an occupational pension scheme;
(g) an amount payable in respect of redundancy payments;
(h) an amount payable under a contract or other instrument involving financial services.
(2) In this section—
“contract or other instrument involving financial services” has the meaning given by Schedule ZA2 to the 1986 Act, but does not include an agreement which is, or forms part of, an arrangement involving the issue of a capital market investment (see paragraph 6 of that Schedule);
“floating charge” has the meaning given by section 251 of the 1986 Act or paragraph (1) of Article 5 of the 1989 Order;
“redundancy payment” means—
a redundancy payment under Part 11 of the Employment Rights Act 1996 or Part 12 of the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16)), or
a payment made to a person who agrees to the termination of their employment in circumstances where they would have been entitled to a redundancy payment under that Part if dismissed;
“wages or salary” includes—
a sum payable in respect of a period of holiday;
a sum payable in respect of a period of absence through illness or other good cause;
a sum payable in lieu of holiday.
(1) An application to the court for a write-down order in relation to an insurer may be made only by—
(a) the Treasury;
(b) the PRA;
(c) the insurer;
(d) a shareholder of the insurer;
(e) a policyholder or other creditor (including a contingent or prospective creditor) of the insurer.
(2) An application for a write-down order may not be withdrawn without the permission of the court.
(3) A person other than the PRA or the Treasury—
(a) must obtain the consent of the PRA before making an application for a write-down order;
(b) must notify the PRA before seeking the court’s permission to withdraw an application for a write-down order.
(4) Consent under subsection (3)—
(a) must be in writing, and
(b) must be filed with the court with the relevant application.
(5) The PRA must consult the FCA before—
(a) making an application for a write-down order, or
(b) giving or refusing consent for a person to make an application for a write-down order.
377D Powers of the FCA and PRA to participate in proceedings
(1) This section applies if an application is made to the court for a write-down order.
(2) The FCA and the PRA are entitled to be heard—
(a) at any hearing relating to the application, and
(b) if an order is made, at any hearing relating to the order.
(3) Any notice or other document required to be sent to a creditor of the insurer—
(a) in relation to the application, or
(b) if an order is made, in relation to the order,
must also be sent to the FCA and the PRA.
On an application for a write-down order, the court may—
(a) if, on hearing the application, it is satisfied of the matters in section 377A(2), make a write-down order in the terms sought, or in such other terms as the court thinks appropriate;
(b) dismiss the application;
(c) adjourn the hearing conditionally or unconditionally;
(d) make any other order which the court thinks appropriate.
(1) This section applies where a write-down order is made in relation to an insurer.
(2) As soon as reasonably practicable after the order is made, the insurer must notify the FCA, the PRA and each affected person that the order has been made.
(3) An “affected person” is a person of a description specified in rules made by the PRA for the purposes of this section.
(4) Notification under this section—
(a) must include such other information as may be specified in rules made by the PRA for the purposes of this section, and
(b) must be given in such form and manner as may be specified in rules made by the PRA for the purposes of this section.
(5) Failure to notify an affected person in accordance with this section, or rules made by the PRA for the purposes of this section, does not affect the validity of the write-down order in relation to that person or any other person.
(1) The court may by order appoint one or more eligible persons to act as the manager of a write-down order (“the manager”).
(2) An order under subsection (1) may—
(a) be made at the same time as the write-down order or at a later date (but see section 377A(3)(a));
(b) appoint a person in addition to or instead of a person who is for the time being appointed;
(c) give such directions about the carrying out of the person’s functions as the manager as the court thinks appropriate.
(3) The court may by order terminate the appointment of a person who is for the time being appointed to act as the manager of a write-down order.
(4) Sections 377C and 377D apply to an application to the court for an order under subsection (1) or (3) as they apply to an application for a write-down order but—
(a) if the application is for the appointment of a person in addition to, or instead of, a person for the time being appointed, section 377C(1) applies as if the persons mentioned included a person for the time being appointed;
(b) section 377C(2) does not apply.
(5) The court may appoint a person to act as the manager of a write-down order only if—
(a) the PRA has provided the court with a statement that the person is suitably qualified, and
(b) the person has provided the court with a statement that the person consents so to act.
(6) Where it is proposed that more than one person should act as the manager, the statement under subsection (5)(b) must specify—
(a) which of the functions of the manager (if any) are to be exercised by the persons acting jointly, and
(b) which of the functions of the manager (if any) are to be exercised by any or all of the persons.
(7) The appointment of a person to act as the manager—
(a) takes effect at the time specified in the order by which the person is appointed, and
(b) ceases to have effect at the time specified in the order by which the person’s appointment is terminated (whether by being replaced by another person or otherwise).
(8) Schedule 19A makes further provision about the manager of a write-down order.
(1) A reduction in the value of a liability of an insurer under a write-down order ceases to have effect—
(a) on such date as may be specified in the order (and different dates may be specified in relation to different liabilities or liabilities of different types), or
(b) if earlier, or if no such date is specified, the date on which a termination event happens (or, if more than one termination event happens, the earliest of those dates).
(2) In the following table—
(a) the first column specifies each event which is a termination event for the purposes of this section, and
(b) the second column specifies, in relation to each termination event, the date on which the event happens for the purposes of this section.
Event | Date event happens
The write-down order being— revoked, or varied so as to remove the liability in question from its scope, by an order under section 377I | The date specified in the order under section 377I as the date on which the revocation or variation is to take effect, or if no date is specified, the date on which the order under section 377I is made
The insurer ceasing to have permission under Part 4A to carry out contracts of insurance | The date on which the withdrawal of permission takes effect
The transfer of the liability in question pursuant to an insurance business transfer scheme which has effect in accordance with an order under section 111(1) | The date on which the transfer takes effect
The making of a winding-up order against the insurer | The date on which the order is made
The voluntary winding up of the insurer | The date on which the liquidator is appointed
The coming into force of a voluntary arrangement (under Part 1 of the 1986 Act or Part 2 of the 1989 Order) in relation to the insurer | The date on which the voluntary arrangement comes into force
The insurer entering administration | The date on which the appointment of an administrator takes effect.
(3) Where a write-down order is varied, this section applies as if references to the write-down order were to the order as varied.
377I Variation or revocation of a write-down order
(1) The court may, by order—
(a) revoke a write-down order, or
(b) vary (or further vary) a write-down order.
(2) Section 377A(2)(b) applies to the making of an order under this section as it applies to the making of the write-down order.
(3) In varying (or further varying) a write-down order the court may, in particular—
(a) remove one or more of the insurer’s liabilities from the scope of the order (but removing all such liabilities from the scope of the order takes effect as a termination of the order);
(b) bring one or more of the insurer’s liabilities within the scope of the order (on such terms as the court may specify);
(c) further reduce the value of one or more of the insurer’s liabilities;
(d) increase the value of one or more of the insurer’s liabilities to any amount less than the value the liability had before the write-down order took effect;
(e) vary any term specified in the order, including the period for which a reduction in the value of a liability has effect;
(f) make any other order that the court thinks appropriate.
(4) Sections 377C to 377F apply to an application for an order under this section as they apply to an application for a write-down order but with the following modifications—
(a) section 377C(1) applies as if the list of persons entitled to make an application included—
(i) the FCA;
(ii) the scheme manager of the Financial Services Compensation Scheme (see section 212(1));
(iii) a person appointed under section 377G to act as the manager of the write-down order;
(b) if the person making the application is the scheme manager of the Financial Services Compensation Scheme, section 377C(3) does not apply.
(5) The scheme manager of the Financial Services Compensation Scheme must consult the FCA and the PRA before making an application to vary or revoke a write-down order.
(6) Where a provisional liquidator of the insurer has been appointed under section 135 of the 1986 Act or Article 115 of the 1989 Order, a person appointed to act as the manager of a write-down order must obtain the consent of the provisional liquidator before making an application for an order under this section.
In Schedule 19B—
(a) Part 1 makes provision about the enforcement of a liability of an insurer while a write-down order has effect;
(b) Part 2 makes provision about the disposal of an insurer’s assets and the making of certain payments by an insurer while a write-down order has effect;
(c) Part 3 makes provision about the treatment of an insurer’s liabilities for the purposes of certain provisions relating to insolvency while a write-down order has effect;
(d) Part 4 makes provision about interest payable in respect of liabilities reduced under a write-down order or prevented from being enforced while a write-down order has effect.
377K Insurers in financial difficulties: enforcement of contracts
Schedule 19C makes provision about the enforcement of certain contracts to which an insurer is a party while the insurer is in financial difficulties (within the meaning given by the Schedule).
(1) The Treasury may by regulations provide for the treatment of the assets of an insurer on its winding up.
(2) The regulations may, in particular, provide for—
(a) assets representing a particular part of the insurer’s business to be available only for meeting liabilities attributable to that part of the insurer’s business;
(b) separate general meetings of the creditors to be held in respect of liabilities attributable to a particular part of the insurer’s business.
(1) Winding-up rules may include provision—
(a) for determining the amount of the liabilities of an insurer to policyholders of any class or description for the purpose of proof in a winding up; and
(b) generally for carrying into effect the provisions of this Part with respect to the winding up of insurers.
(2) Winding-up rules may, in particular, make provision for all or any of the following matters—
(a) the identification of assets and liabilities;
(b) the apportionment, between assets of different classes or descriptions, of—
(i) the costs, charges and expenses of the winding up; and
(ii) any debts of the insurer of a specified class or description;
(c) the determination of the amount of liabilities of a specified description;
(d) the application of assets for meeting liabilities of a specified description;
(e) the application of assets representing any excess of a specified description.
(3) “Specified” means specified in winding-up rules.
(4) “Winding-up rules” means rules made under section 411 of the 1986 Act (or Article 359 of the 1989 Order).
(5) Nothing in this section affects the power to make winding-up rules under the 1986 Act or the 1989 Order.
379A Power to apply settlement finality regime to payment institutions
(1) The Treasury may by regulations made by statutory instrument provide for the application to payment institutions, as participants in payment or securities settlement systems, of provision in subordinate legislation—
(a) modifying the law of insolvency or related law in relation to such systems, or
(b) relating to the securing of rights and obligations.
(2) “Payment institution” means—
(a) an authorised payment institution or small payment institution within the meaning of the Payment Services Regulations 2017, or
(b) a person whose head office, registered office or place of residence, as the case may be, is outside the United Kingdom and whose functions correspond to those of an institution within paragraph (a).
(3) “Payment or securities settlement system” means arrangements between a number of participants for or in connection with the clearing or execution of instructions by participants relating to any of the following—
(a) the placing of money at the disposal of a recipient;
(b) the assumption or discharge of a payment obligation;
(c) the transfer of the title to, or an interest in, securities.
(4) “Subordinate legislation” has the same meaning as in the Interpretation Act 1978.
(5) Regulations under this section may—
(a) make consequential, supplemental or transitional provision;
(b) amend subordinate legislation.
(6) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(1) If, on the application of the appropriate regulator or the Secretary of State, the court is satisfied—
(a) that there is a reasonable likelihood that any person will contravene a relevant requirement, or
(b) that any person has contravened a relevant requirement and that there is a reasonable likelihood that the contravention will continue or be repeated,
the court may make an order restraining (or in Scotland an interdict prohibiting) the contravention.
(2) If on the application of the appropriate regulator or the Secretary of State the court is satisfied—
(a) that any person has contravened a relevant requirement, and
(b) that there are steps which could be taken for remedying the contravention,
the court may make an order requiring that person, and any other person who appears to have been knowingly concerned in the contravention, to take such steps as the court may direct to remedy it.
(3) If, on the application of the appropriate regulator or the Secretary of State, the court is satisfied that any person may have—
(a) contravened a relevant requirement, or
(b) been knowingly concerned in the contravention of such a requirement,
it may make an order restraining (or in Scotland an interdict prohibiting) him from disposing of, or otherwise dealing with, any assets of his which it is satisfied he is reasonably likely to dispose of or otherwise deal with.
(4) The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(5) In subsection (2), references to remedying a contravention include references to mitigating its effect.
(6) “Relevant requirement”—
(a) in relation to an application by the appropriate regulator, means a requirement—
(i) which is imposed by or under this Act or by a qualifying provision specified, or of a description specified, for the purposes of this subsection by the Treasury by order ...
(ii) which is imposed by or under any other Act and whose contravention constitutes an offence mentioned in section 402(1); ...
(iii) which is imposed by the Alternative Investment Fund Managers Regulations 2013; ...
(iv) which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under that Part; or
(v) which is imposed by a provision made in accordance with the transparency obligations directive (within the meaning of section 103(1)); , or
(vi) which is imposed by the Undertakings for Collective Investment in Transferable Securities Regulations 2011.
(b) in relation to an application by the Secretary of State, means a requirement which is imposed by or under this Act and whose contravention constitutes an offence which the Secretary of State has power to prosecute under this Act.
(7) In the application of subsection (6) to Scotland—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) in paragraph (b) omit “which the Secretary of State has power to prosecute under this Act”.
(8) The PRA is the “appropriate regulator” in the case of a contravention of—
(a) a requirement that is imposed by the PRA under any provision of this Act,
(b) a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
(c) a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
(9) In the case of a contravention of a requirement that is imposed by a qualifying provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying provision for the purposes of this section.
(10) In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is whichever of the PRA or the FCA has power to prosecute the offence (see section 401).
(11) The FCA is the “appropriate regulator” in the case of a contravention of any other requirement , other than a case falling within paragraph 26 of Schedule 17A.
(12) The Treasury may by order amend the definition of “appropriate regulator”.
(1) If, on the application of the FCA, the court is satisfied—
(a) that there is a reasonable likelihood that any person will contravene Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation, or
(b) that any person is or has contravened Article 14 or 15 of the market abuse regulation and that there is a reasonable likelihood that the contravention will continue or be repeated,
the court may make an order restraining (or in Scotland an interdict prohibiting) the contravention.
(2) If on the application of the FCA the court is satisfied—
(a) that any person is or has contravened Article 14 or 15 of the market abuse regulation, and
(b) that there are steps which could be taken for remedying the contravention,
the court may make an order requiring him to take such steps as the court may direct to remedy it.
(3) Subsection (4) applies if, on the application of the FCA, the court is satisfied that any person—
(a) may be contravening Article 14 or 15 of the market abuse regulation; or
(b) may have contravened Article 14 or 15 of the market abuse regulation.
(4) The court may make an order restraining (or in Scotland an interdict prohibiting) the person concerned from disposing of, or otherwise dealing with, any assets of his which it is satisfied that he is reasonably likely to dispose of, or otherwise deal with.
(5) The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(6) In subsection (2), references to remedying any contravention include references to mitigating its effect.
(1) The court may, on the application of the appropriate regulator or the Secretary of State, make an order under subsection (2) if it is satisfied that a person has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and—
(a) that profits have accrued to him as a result of the contravention; or
(b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.
(2) The court may order the person concerned to pay to the regulator concerned such sum as appears to the court to be just having regard—
(a) in a case within paragraph (a) of subsection (1), to the profits appearing to the court to have accrued;
(b) in a case within paragraph (b) of that subsection, to the extent of the loss or other adverse effect;
(c) in a case within both of those paragraphs, to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect.
(3) Any amount paid to the regulator concerned in pursuance of an order under subsection (2) must be paid by it to such qualifying person or distributed by it among such qualifying persons as the court may direct.
(4) On an application under subsection (1) the court may require the person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes—
(a) establishing whether any and, if so, what profits have accrued to him as mentioned in paragraph (a) of that subsection;
(b) establishing whether any person or persons have suffered any loss or adverse effect as mentioned in paragraph (b) of that subsection and, if so, the extent of that loss or adverse effect; and
(c) determining how any amounts are to be paid or distributed under subsection (3).
(5) The court may require any accounts or other information supplied under subsection (4) to be verified in such manner as it may direct.
(6) The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(7) Nothing in this section affects the right of any person other than the appropriate regulator or the Secretary of State to bring proceedings in respect of the matters to which this section applies.
(8) “Qualifying person” means a person appearing to the court to be someone—
(a) to whom the profits mentioned in subsection (1)(a) are attributable; or
(b) who has suffered the loss or adverse effect mentioned in subsection (1)(b).
(9) “Relevant requirement”—
(a) in relation to an application by the appropriate regulator, means a requirement—
(i) which is imposed by or under this Act or by a qualifying provision specified, or of a description specified, for the purposes of this subsection by the Treasury by order; ...
(ii) which is imposed by or under any other Act and whose contravention constitutes an offence mentioned in section 402(1); ...
(iii) which is imposed by the Alternative Investment Fund Managers Regulations 2013; or
(iv) which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under that Part;
(b) in relation to an application by the Secretary of State, means a requirement which is imposed by or under this Act and whose contravention constitutes an offence which the Secretary of State has power to prosecute under this Act.
(10) In the application of subsection (9) to Scotland—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) in paragraph (b) omit “which the Secretary of State has power to prosecute under this Act”.
(11) The PRA is the “appropriate regulator” in the case of a contravention of—
(a) a requirement that is imposed by the PRA under any provision of this Act,
(b) a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
(c) a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
(12) In the case of a contravention of a requirement that is imposed by a qualifying provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying provision for the purposes of this section.
(13) In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is the regulator which has power to prosecute the offence (see section 401).
(14) The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.
(15) The Treasury may by order amend the definition of “appropriate regulator”.
(1) The court may, on the application of the FCA, make an order under subsection (4) if it is satisfied that—
(a) a person (“the person concerned”) has contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation; and
(b) the condition mentioned in subsection (2) is fulfilled.
(2) The condition is—
(a) that profits have accrued to the person concerned as a result; or
(b) that one or more persons have suffered loss or been otherwise adversely affected as a result.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) The court may order the person concerned to pay to the FCA such sum as appears to the court to be just having regard—
(a) in a case within paragraph (a) of subsection (2), to the profits appearing to the court to have accrued;
(b) in a case within paragraph (b) of that subsection, to the extent of the loss or other adverse effect;
(c) in a case within both of those paragraphs, to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect.
(5) Any amount paid to the FCA in pursuance of an order under subsection (4) must be paid by it to such qualifying person or distributed by it among such qualifying persons as the court may direct.
(6) On an application under subsection (1) the court may require the person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes—
(a) establishing whether any and, if so, what profits have accrued to him as mentioned in subsection (2)(a);
(b) establishing whether any person or persons have suffered any loss or adverse effect as mentioned in subsection (2)(b) and, if so, the extent of that loss or adverse effect; and
(c) determining how any amounts are to be paid or distributed under subsection (5).
(7) The court may require any accounts or other information supplied under subsection (6) to be verified in such manner as it may direct.
(8) The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(9) Nothing in this section affects the right of any person other than the FCA to bring proceedings in respect of the matters to which this section applies.
(10) “Qualifying person” means a person appearing to the court to be someone—
(a) to whom the profits mentioned in paragraph (a) of subsection (2) are attributable; or
(b) who has suffered the loss or adverse effect mentioned in paragraph (b) of that subsection.
(1) The appropriate regulator may exercise the power in subsection (5) if it is satisfied that an authorised person or recognised investment exchange (“the person concerned”) has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and—
(a) that profits have accrued to him as a result of the contravention; or
(b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.
(2) The FCA may exercise the power in subsection (5) if it is satisfied that—
(a) a person (“the person concerned”) has contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation; and
(b) the condition mentioned in subsection (3) is fulfilled.
(3) The condition is—
(a) that profits have accrued to the person concerned as a result of the contravention of Article 14 or 15 of the market abuse regulation; or
(b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention of Article 14 or 15 of the market abuse regulation.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) The power referred to in subsections (1) and (2) is a power to require the person concerned, in accordance with such arrangements as the regulator exercising the power (“the regulator concerned”) considers appropriate, to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the regulator concerned to be just having regard—
(a) in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the regulator concerned to have accrued;
(b) in a case within paragraph (b) of subsection (1) or (3), to the extent of the loss or other adverse effect;
(c) in a case within paragraphs (a) and (b) of subsection (1) or (3), to the profits appearing to the regulator concerned to have accrued and to the extent of the loss or other adverse effect.
(6) “Appropriate person” means a person appearing to the regulator concerned to be someone—
(a) to whom the profits mentioned in paragraph (a) of subsection (1) or (3) are attributable; or
(b) who has suffered the loss or adverse effect mentioned in paragraph (b) of subsection (1) or (3).
(7) “Relevant requirement” means—
(a) a requirement imposed by or under this Act or by a qualifying provision specified, or of a description specified, for the purposes of this subsection by the Treasury by order; ...
(b) a requirement which is imposed by or under any other Act and whose contravention constitutes an offence mentioned in section 402(1) ; ...
(c) a requirement imposed by the Alternative Investment Fund Managers Regulations 2013; or
(d) a requirement which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under that Part. that Part; or
(e) a requirement imposed by or under Chapter 2 of Part 2 of the Financial Services and Markets Act 2000 (Cryptoassets) Regulations 2026.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) The PRA is the “appropriate regulator” in the case of a contravention of—
(a) a requirement that is imposed by the PRA under any provision of this Act,
(b) a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
(c) a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
(10) In the case of a contravention of a requirement that is imposed by a qualifying provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying provision for the purposes of this section.
(11) In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is the regulator which has power to prosecute the offence (see section 401).
(12) The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.
(13) The Treasury may by order amend the definition of “appropriate regulator”.
(1) If a regulator proposes to exercise the power under section 384(5) in relation to a person, it must give him a warning notice.
(2) A warning notice under this section must specify the amount which the regulator proposes to require the person concerned to pay or distribute as mentioned in section 384(5).
(1) If the regulator decides to exercise the power under section 384(5), it must give a decision notice to the person in relation to whom the power is exercised.
(2) The decision notice must—
(a) state the amount that he is to pay or distribute as mentioned in section 384(5);
(b) identify the person or persons to whom that amount is to be paid or among whom that amount is to be distributed; and
(c) state the arrangements in accordance with which the payment or distribution is to be made.
(3) If the regulator decides to exercise the power under section 384(5), the person in relation to whom it is exercised may refer the matter to the Tribunal.
(1) A warning notice must—
(a) state the action which the regulator giving the notice (“the regulator concerned”) proposes to take;
(b) be in writing;
(c) give reasons for the proposed action;
(d) state whether section 394 applies; and
(e) if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it.
(1A) Where the PRA is the regulator concerned and the FCA proposes to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) , 55I(8) or 61(2D), the warning notice given by the PRA must—
(a) state that fact, and
(b) give the reasons for the FCA's proposal.
(2) A warning notice must specify a reasonable period (which may not be less than 14 days) within which the person to whom it is given may make representations to the regulator concerned.
(3) The regulator concerned may extend the period specified in the notice.
(3A) Where the PRA receives any representations in response to a warning notice given by it under section 55X(1) or (2) or 62(2) in a case falling within subsection (1A) it must—
(a) if the representations are in writing, give a copy to the FCA, or
(b) if they are not in writing and have not been given directly to the FCA by the person making them, provide the FCA with a record of them.
(4) The regulator concerned must then decide, within a reasonable period, whether to give the person concerned a decision notice.
(1) A decision notice must—
(a) be in writing;
(b) give the reasons of the regulator giving the notice (“the regulator concerned”) for the decision to take the action to which the notice relates;
(c) state whether section 394 applies;
(d) if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it; and
(e) give an indication of—
(i) any right to have the matter referred to the Tribunal which is given by this Act; and
(ii) the procedure on such a reference.
(1A) Where the PRA is the regulator concerned and the FCA has decided to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) , 55I(8) or 61(2D), the decision notice given by the PRA must—
(a) state that fact, and
(b) give the reasons for the FCA's decision.
(2) If the decision notice was preceded by a warning notice, the action to which the decision notice relates must be action under the same Part as the action proposed in the warning notice.
(3) The regulator concerned may, before it takes the action to which a decision notice (“the original notice”) relates, give the person concerned a further decision notice which relates to different action in respect of the same matter.
(4) The regulator concerned may give a further decision notice as a result of subsection (3) only if the person to whom the original notice was given consents.
(5) If the person to whom a decision notice is given under subsection (3) had the right to refer the matter to which the original decision notice related to the Tribunal, he has that right as respects the decision notice under subsection (3).
(1) If a regulator decides not to take—
(a) the action proposed in a warning notice given by it, or
(b) the action to which a decision notice given by it relates,
it must give a notice of discontinuance to the person to whom the warning notice or decision notice was given.
(2) But subsection (1) does not apply if the discontinuance of the proceedings concerned results in the granting of an application made by the person to whom the warning or decision notice was given.
(3) A notice of discontinuance must identify the proceedings which are being discontinued.
(1) If a regulator has given a person a decision notice and the matter was not referred to the Tribunal within the time required by Tribunal Procedure Rules, the regulator must, on taking the action to which the decision notice relates, give the person concerned and any person to whom the decision notice was copied a final notice.
(2) If a regulator has given a person a decision notice and the matter was referred to the Tribunal, the regulator must, on taking action in accordance with any directions given by—
(a) the Tribunal, or
(b) a court on an appeal against the decision of the Tribunal,
give that person and any person to whom the decision notice was copied the notice required by subsection (2A).
(2A) The notice required by this subsection is—
(a) in a case where the regulator is acting in accordance with a direction given by the Tribunal under section 133(6)(b), or by the court on an appeal from a decision by the Tribunal under section 133(6), a further decision notice, and
(b) in any other case, a final notice.
(3) A final notice about a statement must—
(a) set out the terms of the statement;
(b) give details of the manner in which, and the date on which, the statement will be published.
(4) A final notice about an order must—
(a) set out the terms of the order;
(b) state the date from which the order has effect.
(5) A final notice about a penalty must—
(a) state the amount of the penalty;
(b) state the manner in which, and the period within which, the penalty is to be paid;
(c) give details of the way in which the penalty will be recovered if it is not paid by the date stated in the notice.
(6) A final notice about a requirement to make a payment or distribution in accordance with section 384(5) must state—
(a) the persons to whom,
(b) the manner in which, and
(c) the period within which,
it must be made.
(7) In any other case, the final notice must—
(a) give details of the action being taken;
(b) state the date on which the action is to be taken.
(8) The period stated under subsection (5)(b) or (6)(c) may not be less than 14 days beginning with the date on which the final notice is given.
(9) If all or any of the amount of a penalty payable under a final notice is outstanding at the end of the period stated under subsection (5)(b), the regulator giving the notice may recover the outstanding amount as a debt due to it.
(10) If all or any of a required payment or distribution has not been made at the end of a period stated in a final notice under subsection (6)(c), the obligation to make the payment is enforceable, on the application of the regulator giving the notice, by injunction or, in Scotland, by an order under section 45 of the Court of Session Act 1988.
(1) In the case of a warning notice falling within subsection (1ZB)—
(a) neither the regulator giving the notice nor a person to whom it is given or copied may publish the notice,
(b) a person to whom the notice is given or copied may not publish any details concerning the notice unless the regulator giving the notice has published those details, and
(c) after consulting the persons to whom the notice is given or copied, the regulator giving the notice may publish such information about the matter to which the notice relates as it considers appropriate.
(1ZA) In the case of a warning notice not falling within subsection (1ZB), neither the regulator giving the notice nor a person to whom it is given or copied may publish the notice or any details concerning it.
(1ZB) A warning notice falls within this subsection if it is given under—
(a) section 63B;
(b) section 67;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) section 88B;
(e) section 89K;
(f) section 89R;
(g) section 92;
(h) section 126;
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ia) section 142N;
(ib) section 143T;
(ic) section 143X;
(j) section 192L;
(k) section 207;
(ka) section 309V;
(kb) section 309Z4;
(l) section 312G;
(la) section 312S;
(m) section 345B (whether as a result of section 345(2) or 345A(3) or section 249(1) or 261K(1)).
(n) regulation 41(1) of the Public Offers and Admissions to Trading Regulations 2024.
(1A) A person to whom a decision notice is given or copied may not publish the notice or any details concerning it unless the regulator giving the notice has published the notice or those details.
(2) A notice of discontinuance must state that, if the person to whom the notice is given consents, the regulator giving the notice may publish such information as it considers appropriate about the matter to which the discontinued proceedings related.
(3) A copy of a notice of discontinuance must be accompanied by a statement that, if the person to whom the notice is copied consents, the regulator giving the notice may publish such information as it considers appropriate about the matter to which the discontinued proceedings related, so far as relevant to that person.
(4) The regulator giving a decision or final notice must publish such information about the matter to which the notice relates as it considers appropriate.
(4A) Subsection (4) is subject to sections 391A , 391B , 391C 391D, 391E and 391F.
(5) When a supervisory notice takes effect, the regulator giving the notice must publish such information about the matter to which the notice relates as it considers appropriate.
(5A) Subsection (5) does not apply in relation to a notice given in accordance with section 137S(5) or (8)(a) (but see section 137S(11)).
(6) The FCA may not publish information under this section if, in its opinion, publication of the information would be—
(a) unfair to the person with respect to whom the action was taken (or was proposed to be taken),
(b) prejudicial to the interests of consumers, or
(c) detrimental to the stability of the UK financial system.
(6A) The PRA may not publish information under this section if, in its opinion, publication of the information would be—
(a) unfair to the person with respect to whom the action was taken (or was proposed to be taken),
(b) prejudicial to the safety and soundness of PRA-authorised persons, or
(c) in a case where section 2C applies, prejudicial to securing the appropriate degree of protection for policyholders.
(7) Information is to be published under this section in such manner as the regulator considers appropriate.
(7A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) For the purposes of determining when a supervisory notice takes effect, a matter to which the notice relates is open to review if—
(a) the period during which any person may refer the matter to the Tribunal is still running;
(b) the matter has been referred to the Tribunal but has not been dealt with;
(c) the matter has been referred to the Tribunal and dealt with but the period during which an appeal may be brought against the Tribunal’s decision is still running; or
(d) such an appeal has been brought but has not been determined.
(8A) Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a CSD requirement, this section has effect subject to Article 62 of the CSD regulation (publication of decisions).
(8AA) A “CSD requirement” is a requirement imposed by—
(a) the CSD regulation,
(b) any EU regulation, originally made under the CSD regulation, which is assimilated direct legislation, or
(c) any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the CSD regulation on or after IP completion day.
(8B) Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a market abuse requirement, this section has effect subject to Article 34 of the market abuse regulation (publication of decisions).
(8BA) A “market abuse requirement” is a requirement imposed by—
(a) the market abuse regulation,
(b) any EU regulation, originally made under the market abuse regulation, which is assimilated direct legislation, or
(c) any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the market abuse regulation on or after IP completion day.
(8C) Where a decision notice, final notice or supervisory notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by or under Article 4 or 15 of the SFT regulation, this section has effect subject to Article 26 of the SFT regulation (publication of decisions).
(8D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8E) Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by—
(a) the EU Benchmarks Regulation 2016,
(b) any EU regulation, originally made under the EU Benchmarks Regulation 2016, which is assimilated direct legislation, or
(c) any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the EU Benchmarks Regulation on or after IP completion day,
this section has effect subject to Article 45 of the EU Benchmarks Regulation 2016 (publication of decisions).
(8F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) “Notice of discontinuance” means a notice given under section 389.
(10) “Supervisory notice” has the same meaning as in section 395.
(11) Section 425A (meaning of “consumers”) applies for the purposes of this section.
391A Publication: special provisions relating to capital requirements
(1) This section applies where a decision notice or final notice relates to the imposition of a penalty for breach of—
(a) a provision made in or under this Act for the purpose of implementing the capital requirements directive, or
(b) a provision of the capital requirements regulation.
(2) Where a regulator publishes information under section 391(4) about a matter to which a decision notice relates and the person to whom the notice is given refers the matter to the Tribunal, the regulator must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3) Subject to subsection (4), where a regulator gives a final notice, the regulator must publish information on the type and nature of the breach and the identity of the person on whom the penalty is imposed.
(4) Information about a matter to which a final notice relates must be published anonymously where—
(a) the penalty is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b) publication would jeopardise the stability of financial markets or an ongoing criminal investigation; or
(c) publication would cause, insofar as it can be determined, disproportionate damage to the persons involved.
(5) Where subsection (4) applies, the regulator may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the penalty is imposed.
(6) Where a regulator publishes information in accordance with subsections (2) to (5), the regulator must—
(a) publish the information on its official website; and
(b) ensure the information remains on its official website for at least five years, unless the information is personal data and the data protection legislation requires the information to be retained for a different period; ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
391B Publication: special provisions relating to transparency obligations
(1) This section applies where a decision notice, final notice or notice under section 89M relates to the imposition of a sanction or measure for breach of a provision made in or under this Act for the purpose of implementing the transparency obligations directive.
(2) Where the FCA publishes information under section 391(4) or subsection (3) about a matter to which a decision notice or a notice under section 89M relates and the person to whom the notice is given refers the matter to the Tribunal—
(a) the FCA must include information to that effect in the publication at the time of the publication, or,
(b) if the matter is referred to the Tribunal after the publication, the FCA must update the publication or publish that information separately.
(3) Subject to subsection (4), where the FCA gives a final notice or a notice under section 89M, it must publish information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4) Information about a matter to which a final notice or a notice under section 89M relates may be published anonymously where—
(a) the sanction is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b) failing to publish anonymously would seriously jeopardise the stability of the financial system or an ongoing official investigation; or
(c) failing to publish anonymously would cause, insofar as it can be determined, disproportionate and serious damage to the persons involved.
(5) Where subsection (4) applies, the FCA may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.
(6) In this section, the “transparency obligations directive” has the same meaning as in section 103(1).
391C Publication: special provisions relating to UCITS
(1) This section applies where a supervisory notice, decision notice or final notice relates to the imposition of a sanction or measure for breach of a provision made in or under this Act for the purpose of implementing the UCITS directive.
(2) Where the FCA publishes information under section 391(4) or (5) about a matter to which a decision notice or supervisory notice relates and the person to whom the notice is given refers the matter to the Tribunal, the FCA must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3) Subject to subsection (4), where the FCA gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4) Subject to subsection (6), information about a matter to which a final notice relates must be published anonymously where—
(a) the sanction or measure is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b) failing to publish anonymously would jeopardise the stability of financial markets or an ongoing investigation; or
(c) failing to publish anonymously would cause, insofar as it can be determined, disproportionate damage to the persons involved.
(5) Where subsection (4) applies, the FCA may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.
(6) Information about a matter to which a final notice relates must not be published where anonymous publication under subsection (4) is considered by the FCA to be insufficient to ensure—
(a) that the stability of the financial markets would not be put in jeopardy; or
(b) that the publication would be proportionate with regard to sanctions or measures which are considered by the FCA to be of a minor nature.
(7) Where the FCA publishes information in accordance with subsections (2) to (5), the FCA must—
(a) ensure the information remains on its official website for at least five years, unless the information is personal data and the data protection legislation requires the information to be retained for a different period; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
391D Publication: special provisions relating to markets in financial instruments
(1) This section applies where a supervisory notice, decision notice or final notice relates to the imposition of a sanction or measure for breach of—
(a) a provision made in or under this Act for the purpose of implementing the markets in financial instruments directive, or
(b) a provision of the markets in financial instruments regulation.
(2) Where a regulator publishes information under section 391(4) or (5) about a matter to which a supervisory notice or decision notice relates and the person to whom the notice is given refers the matter to the Tribunal, the regulator must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3) Subject to subsections (4), (5), and (8) where a regulator gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4) Subject to subsection (7) and (8), information about a matter to which a final notice relates must be published in accordance with subsection (5) where—
(a) a regulator considers it to be disproportionate to publish the identity of a legal person on whom the sanction or measure is imposed following an assessment by the regulator of the proportionality of publishing the person’s identity;
(b) a regulator considers it to be disproportionate to publish the personal data of an individual on whom the sanction or measure is imposed following an assessment by the regulator of the proportionality of publishing the personal data; or
(c) the publication of information under subsection (3) would jeopardise the stability of the financial markets or an ongoing investigation.
(5) Where subsection (4) applies, a regulator must—
(a) defer the publication of the information about a matter to which a final notice relates until such time as subsection (4) ceases to apply; or
(b) publish the information on an anonymous basis if publication on that basis would ensure the effective protection of any anonymised personal data in the information.
(6) Where subsection (5)(b) applies, the regulator may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.
(7) The regulator may make arrangements for the postponed publication of any personal data that is anonymised in information it publishes under subsection (5)(b) if—
(a) publication of the data is postponed for a reasonable period of time; and
(b) the regulator considers that subsection (5)(b) will no longer apply in respect of that data at the time of the postponed publication.
(8) Information about a matter to which a final notice relates must not be published if publication in accordance with subsection (5) is considered by the regulator insufficient to ensure—
(a) that the stability of the financial markets would not be put in jeopardy; or
(b) that the publication of the information would be proportionate with regard to sanctions or measures which are considered by the regulator to be of a minor nature.
(9) Where a regulator publishes information in accordance with subsections (2) to (7), the regulator must—
(a) ensure the information remains on its official website for at least five years, unless the information is personal data and the data protection legislation requires the information to be retained for a different period; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
391E Publication: special provisions relating to insurance distribution
(1) This section applies where a supervisory notice, decision notice or final notice relates to the imposition of a sanction or measure for breach of a provision made in or under this Act for the purpose of implementing the insurance distribution directive.
(2) Where a regulator publishes information under section 391(4) or (5) about a matter to which a decision notice or supervisory notice relates and the person to whom the notice is given refers the matter to the Tribunal, the regulator must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3) Subject to subsection (4), where the regulator gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4) The regulator may publish the information anonymously, defer publication of the information or withhold some, or all, of the information where—
(a) following an obligatory prior assessment, the regulator considers that publication of the identity of the person, or any personal data, would be disproportionate; or
(b) the regulator considers that publication would jeopardise the stability of financial markets or an ongoing investigation.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In this section “supervisory notice” has the same meaning as in section 395.
Sections 393 and 394 apply to—
(a) a warning notice given in accordance with section 55Z(1), 57(1), 63(3), 63B(1), 67(1), 88(4)(b), section 88B(1), 92(1), 126(1), ... 142T(1), 143N(1), 143T(1), 143U(2), 143X(1), 192L(1) , 192R(8), 192Z(1), 207(1) or (1A), 208A(3), 255(1), 261V(1), 271N(2), 271R(3), 280(1), 282B(3), 309C(1)(b), 309P(1)(b), 309V(1), 309Z4(1), section 312G(1), 312S(1), 331(1), 345B(1) (whether as a result of section 345(2), 345A(3) or section 249(1) or 261K(1)) , 385(1) or 412B(4) or (8) or paragraph 5(6) of Schedule 6A;
(aa) a warning notice given in accordance with regulation 41(1) of the Public Offers and Admissions to Trading Regulations 2024;
(b) a decision notice given in accordance with section 55Z(2), 57(3), 63(4), 63B(3), 67(4), 88(6)(b), section 88B(5), 92(4), 127(1), ... 142T(4), 143N(2), 143T(3), 143U(2), 143X(5), 192L(4) , 192R(9), 192Z(4), 208(1) or (1A), 208A(4), 255(2), 261V(2), 271N(3), 271R(4), 280(2), 282B(4), 309C(3), 309P(2), 309V(3), 309Z4(6) section 312H(1), 312S(3), 331(3), 345B(4) (whether as a result of section 345(2), 345A(3) or section 249(1) or 261K(1)) , 386(1) or 412B(5) or (9) or paragraph 5(7) of Schedule 6A.
(c) a decision notice given in accordance with regulation 41(4) of the Public Offers and Admissions to Trading Regulations 2024.
(1) If any of the reasons contained in a warning notice to which this section applies relates to a matter which—
(a) identifies a person (“the third party”) other than the person to whom the notice is given, and
(b) in the opinion of the regulator giving the notice, is prejudicial to the third party,
a copy of the notice must be given to the third party.
(2) Subsection (1) does not require a copy to be given to the third party if the regulator giving the notice —
(a) has given him a separate warning notice in relation to the same matter; or
(b) gives him such a notice at the same time as it gives the warning notice which identifies him.
(3) The notice copied to a third party under subsection (1) must specify a reasonable period (which may not be less than 14 days) within which he may make representations to the regulator giving the notice.
(4) If any of the reasons contained in a decision notice to which this section applies relates to a matter which—
(a) identifies a person (“the third party”) other than the person to whom the decision notice is given, and
(b) in the opinion of the regulator giving the notice, is prejudicial to the third party,
a copy of the notice must be given to the third party.
(5) If the decision notice was preceded by a warning notice, a copy of the decision notice must (unless it has been given under subsection (4)) be given to each person to whom the warning notice was copied.
(6) Subsection (4) does not require a copy to be given to the third party if the regulator giving the notice—
(a) has given him a separate decision notice in relation to the same matter; or
(b) gives him such a notice at the same time as it gives the decision notice which identifies him.
(7) Neither subsection (1) nor subsection (4) requires a copy of a notice to be given to a third party if the regulator giving the notice considers it impracticable to do so.
(8) Subsections (9) to (11) apply if the person to whom a decision notice is given has a right to refer the matter to the Tribunal.
(9) A person to whom a copy of the notice is given under this section may refer to the Tribunal—
(a) the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
(b) any opinion expressed by the regulator giving the notice in relation to him.
(10) The copy must be accompanied by an indication of the third party’s right to make a reference under subsection (9) and of the procedure on such a reference.
(11) A person who alleges that a copy of the notice should have been given to him, but was not, may refer to the Tribunal the alleged failure and—
(a) the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
(b) any opinion expressed by the regulator giving the notice in relation to him.
(12) Section 394 applies to a third party as it applies to the person to whom the notice to which this section applies was given, in so far as the material to which access must be given under that section relates to the matter which identifies the third party.
(13) A copy of a notice given to a third party under this section must be accompanied by a description of the effect of section 394 as it applies to him.
(14) Any person to whom a warning notice or decision notice was copied under this section must be given a copy of a notice of discontinuance applicable to the proceedings to which the warning notice or decision notice related.
(1) If a regulator gives a person (“A”) a notice to which this section applies, it must—
(a) allow him access to the material on which it relied in taking the decision which gave rise to the obligation to give the notice;
(b) allow him access to any secondary material which , in the regulator's opinion, might undermine that decision.
(2) But the regulator giving the notice does not have to allow A access to material under subsection (1) if the material is excluded material or it—
(a) relates to a case involving a person other than A; and
(b) was taken into account by the regulator giving the notice in A’s case only for purposes of comparison with other cases.
(3) The regulator giving the notice may refuse access A to particular material which it would otherwise have to allow him access to if, in its opinion, allowing him access to the material—
(a) would not be in the public interest; or
(b) would not be fair, having regard to—
(i) the likely significance of the material to A in relation to the matter in respect of which he has been given a notice to which this section applies; and
(ii) the potential prejudice to the commercial interests of a person other than A which would be caused by the material’s disclosure.
(4) If the regulator giving the notice does not allow A access to material because it is excluded material consisting of a protected item, it must give A written notice of—
(a) the existence of the protected item; and
(b) the regulator's decision not to allow him access to it.
(5) If the regulator giving the notice refuses under subsection (3) to allow A access to material, it must give him written notice of—
(a) the refusal; and
(b) the reasons for it.
(6) “Secondary material” means material, other than material falling within paragraph (a) of subsection (1) which—
(a) was considered by the regulator giving the notice in reaching the decision mentioned in that paragraph; or
(b) was obtained by the regulator giving the notice in connection with the matter to which that notice relates but which was not considered by it in reaching that decision.
(7) “Excluded material” means material which—
(a) is material the disclosure of which for the purposes of or in connection with any legal proceedings is prohibited by section 56 of the Investigatory Powers Act 2016; or
(c) is a protected item (as defined in section 413).
(1) Each regulator must determine the procedure that it proposes to follow in relation to the following—
(a) a decision which gives rise to an obligation to give a supervisory notice,
(b) in the case of the FCA, a decision which—
(i) gives rise to an obligation for it to give a warning notice or decision notice, or
(ii) gives rise to an obligation for the PRA to include a statement under section 387(1A) in a warning notice or a statement under section 388(1A) in a decision notice,
(c) in the case of the PRA, a decision which gives rise to an obligation for it to give a warning notice or decision notice, other than a decision which depends entirely on a decision of the FCA of the kind mentioned in paragraph (b)(ii), and
(d) a decision under section 391(1)(c) to publish information about the matter to which a warning notice relates.
(2) That procedure must be designed to secure, among other things that—
(a) a decision falling within any of paragraphs (a) to (c) of subsection (1) is taken—
(i) by a person not directly involved in establishing the evidence on which the decision is based, or
(ii) by 2 or more persons who include a person not directly involved in establishing that evidence,
(b) a decision falling within paragraph (d) of subsection (1) is taken—
(i) by a person other than the person by whom the decision was first proposed, or
(ii) by 2 or more persons not including the person by whom the decision was first proposed, and
(c) a decision falling within paragraph (d) of subsection (1) is taken in accordance with a procedure which is, as far as possible, the same as that applicable to a decision which gives rise to an obligation to give a warning notice and which falls within paragraph (b) or (c) of subsection (1).
(3) But the procedure may permit a decision which gives rise to an obligation to give a supervisory notice to be taken otherwise than as mentioned in subsection (2) if the person taking the decision is of a level of seniority laid down by the procedure and—
(a) in the case of procedure proposed by the FCA, the FCA considers that, in the particular case, it is necessary in order to advance one or more of its operational objectives, or
(b) in the case of procedure proposed by the PRA, the PRA considers that, in the particular case, it is necessary in order to advance any of its objectives.
(4) A level of seniority laid down by the procedure for the purposes of subsection (3)(b) must be appropriate to the importance of the decision.
(5) Each regulator must issue a statement of its procedure.
(6) The statement must be published in the way appearing to the regulator issuing it to be best calculated to bring the statement to the attention of the public.
(7) The regulator issuing the statement may charge a reasonable fee for providing a person with a copy of the statement.
(8) The regulator issuing a statement under this section must, without delay, give the Treasury a copy of the statement.
(9) When a regulator gives a supervisory notice, or a warning notice or decision notice, other than a warning notice or decision notice relating to a decision of the PRA that is required by a a decision of the FCA of the kind mentioned in subsection (1)(b)(ii) the regulator must follow its stated procedure.
(9A) When the FCA takes a decision falling within subsection (1)(b)(ii), it must follow its stated procedure.
(10) If a regulator changes its procedure in a material way, it must publish a revised statement.
(11) A regulator's failure in a particular case to follow its procedure as set out in the latest published statement does not affect the validity of a notice given in that case.
(12) But subsection (11) does not prevent the Tribunal from taking into account any such failure in considering a matter referred to it.
(13) “Supervisory notice” means a notice or notification given in accordance with section—
(za) 55XA(1) or (5) (where subsection (6) applies);
(a) 55Y(4), (7) or (8)(b);
(aa) 63ZC(4), (8) or (9)(b);
(ab) 71H(2), (3), (4), (9) or (11)(a);
(ac) section 71V or 71X;
(b) 78(2) or (5);
(bza) 78A(2) or (8)(b);
(bzb) section 88F(2), (5) or (6)(b);
(bzc) section 89V(2), (5) or (6)(b);
(ba) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(bb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(bbza) 122I;
(bbzb) section 122IA;
(bbzc) 131W;
(bba) section 137S(5) or (8)(a);
(bbb) section 143O(3), (6) or (8)(b);
(bc) 191B(1);
(bd) section 192U(1), (7) or (8);
(c) 197(3), (6) or (7)(b);
(d) 259(3), (8) or (9)(b);
(da) 261Z1(3), (8) or (9)(b);
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ea) section 271M(3), (6) or (7)(b);
(f) 282(3), (6) or (7)(b);
(fa) 301J(1);
(fb) 309R (5), (8) or (10)(b);
(g) 321(2) or (5);
(j) regulation 38 of the Public Offers and Admissions to Trading Regulations 2024.
(1) Before issuing a statement of its procedure under section 395, the regulator must publish a draft of the proposed statement in the way appearing to it to be best calculated to bring the draft to the attention of the public.
(2) The draft must be accompanied by notice that representations about the proposal may be made to the regulator publishing the draft within a specified time.
(3) Before a regulator issues the proposed statement of its procedure, it must have regard to any representations made to it in accordance with subsection (2).
(4) If the regulator issues the proposed statement of its procedure, it must publish an account, in general terms, of—
(a) the representations made to it in accordance with subsection (2); and
(b) its response to them.
(5) If the statement of the regulator's procedure differs from the draft published by it under subsection (1) in a way which is , in its opinion, significant, it must (in addition to complying with subsection (4)) publish details of the difference.
(6) The regulator publishing a draft under subsection (1) may charge a reasonable fee for providing a person with a copy of the draft.
(7) This section also applies to a proposal to revise a statement of policy.