Month: October 2019

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Court decides an email signature is sufficient to mean a document is ‘signed’ for the purposes of the Law of Property (Miscellaneous Provisions) Act 1989

On 20 September 2019, the High Court handed down judgment in Neocleous & Another v Rees [2019] EWHC 2462 (Ch) on whether a footer, containing a name, role and contact details, was sufficient to constitute a signature for the purposes of Section 2(3) of the Law of Property (Miscellaneous Provisions) Act 1989.

After hearing submissions, HHJ Pearce decided that it was sufficient:

– There were a series of emails between the parties solicitors which amounted to a single document that was signed for the Defendant by her solicitor.

– While the email footer was created ’automatically’ and sent without any action by the sender, the sender (in setting up the signature) took a conscious action.

– The recipient also had no way of knowing if the signature had been automatically or not.

– Taking an objective approach, the presence of the sender’s name indicated a clear intention to associate the sender with the email, to authenticate it or to sign it.

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FCA publishes further policy statement on overdraft pricing and competition remedies

On 2 October 2019, the UK Financial Conduct Authority published a further policy statement, PS 19/25, on overdraft pricing and competition remedies.

The policy statement makes changes to the definition of ‘private bank’ in the Banking Conduct of Business Sourcebook. It also introduces a requirement for firms to publish a range of overdraft pricing information. Its aim is to increase transparency and raise awareness of a firm’s overdraft charging structures.

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Court of Appeal decides a principal is not responsible for things done by an appointed representative beyond the scope of its authority

On 31 July 2019, the Court of Appeal handed down judgment in Anderson & Others v Sense Network Limited [2019] EWCA Civ 1395 on an important issue: whether a principal is responsible for things done by an appointed representative outside of the scope of the things the principal accepted responsibility for.

After hearing submissions, Lord Justice David Richards decided that the appointed representative agreement restricted the appointed representative “to business using a Company Agency”. Because the advice given to clients did not involve the use of a Company Agency, it fell outside of the business the principal accepted responsibility for.

The principal was therefore not responsible for the advice given by the appointed representative. The appeal, and the claim, was therefore dismissed.

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FCA publishes new webpage on the conversion of individuals from the approved persons regime into the corresponding senior management functions under the SMCR

On 11 October 2019, the UK Financial Conduct Authority published a new webpage explaining the process of converting individuals under the current approved persons regime into corresponding senior management functions under the Senior Managers and Certification Regime.

Individuals wishing to convert must do so by filing a Form K with the FCA no later than 23:59 on 24 November 2019.

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FCA publishes new webpages for change of control notifications

On 14 October 2019, the UK Financial Conduct Authority published two new webpages to help firms making change of control notifications under Section 178 of the Financial Services and Markets Act 2000:

– a new webpage on submitting a change of control notification (see: https://www.fca.org.uk/firms/change-control/submit-change-control-notification); and

– a new webpage on the change of control forms (see: https://www.fca.org.uk/firms/change-control/change-control-notification-forms).

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No need for P2P lending platform to disclose individual lenders’ names for court proceedings

On 6 September 2019, the High Court handed judgment in Milne v Open Access Finance Limited [2019] EWHC 2517 (Ch) following the customer’s application for disclosure of the names of each of the 612 individual lenders who had (at various stages) entered into credit agreements with him using the peer2peer lending platform provided by Open Access Finance Limited (the Platform Provider).

Mr Milne sought disclosure of the lenders’ names so he could bring a claim against them alleging (a) breaches of statutory duty under Section 138D of the Financial Services and Markets Act 2000 and (b) an unfair relationship within the meaning of Section 140A to 140C of the Consumer Credit Act 1974.

The Court refused to order the Platform Provider disclose the individual lenders‘ names. Instead, it made a representative order under Rule 19.6 of the Civil Procedure Rules 1998 appointing the the Platform Provider as the representative defendant.

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Butterworths Financial Regulation Service – updated commentary on CONC published

Issue 107 of Butterworths Financial Regulation Service has now been published. This includes updated material in chapters 1 to 4, 14 and 15 (dealing with CONC 1, 2, 3, 13 and 14) written by Russell Kelsall.

In addition to reviewing the existing commentary, Issue 107 includes new commentary on:

– the FCA’s review of the retained provisions;

– CONC 2.11 (which was introduced on 1 October 2018 and deals with renumeration and performance management policies, procedures and practices);

– the Advertising Standards Authority’s recent increased interest in financial promotions for credit;

– the FCA’s views on the meaning of “enforcement” and the High Court’s decision in McGuffick v Royal Bank of Scotland plc [2009] EWHC 2386 (Comm).

We plan to review the remaining commentary, and publish new commentary, in Issue 108.