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CMA publishes final decision to vary Part 6 of the Retail Banking Market Investigation Order 2017

On 4 December 2019, the UK Competition and Markets Authority (the CMA) published:

– its final decision to vary the Retail Banking Market Investigation Order 2017 (the Order) and remove Part 6 of the Order;

– a notice of variation to the Order; and

– the Retail Banking Market Investigation Order 2017 Variation Order 2019 (the Variation Order) and an explanatory note to the Variation Order.

The broad effect of the Variation Order is to remove the requirement (set out in the Order) for alerts to be sent to overdraft customers. The reason the CMA has made the Order is because of the introduction of similar rules in Chapter 8 to the Banking: Conduct of Business Sourcebook (BCOBS) and, in particular, the provisions in BCOBS 8.4.

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FCA fines firm for TCF breaches

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

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

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

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

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

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

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

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Seven payment services firms agree to extend industry code for ‘no blame’ authorised push payment victims

On 28 November 2019, UK Finance published a press release saying seven payment services firms have agreed to extend the period of interim funding for the reimbursement of authorised push payment victims in a ‘no blame’ situation. The interim funding period is now expected to last until at least 31 March 2020 to allow further proposals and discussions to take place.

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Butterworths Financial Regulation Service – updated commentary on CONC published

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

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

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

– rent-to-own (in CONC 5B);

– overdrafts (in CONC 5C and 5D);

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

– agreements secured on land (in CONC 15).

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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.