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LPC Law Notes Advanced Commercial Litigation Notes

Regulatory Disputes Notes

Updated Regulatory Disputes Notes

Advanced Commercial Litigation Notes

Advanced Commercial Litigation

Approximately 25 pages

A collection of the best LPC Advanced Commercial Litigation notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Advanced Commercial Litigation notes available in the UK this year. This colle...

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Advanced Commercial Litigation

Regulatory Disputes

Reporting to the FCA

Firms have an obligation to report in Principle 11 FCA Principles of Business and SUP 15.3. Additionally individuals have an obligation to disclose under Principle 4.

After the report has been disclosed the firm should:

  • Contact their customers and make them aware of the report and disclosure under Principle 6

  • The firm must also take steps to stop any breaches and deal with any underlying problems

  • Employees may also need to be suspended and be investigated

  • The firms should be careful about document creation and destruction (be careful of s.177 FSMA)

  • Insurers should be notified

FCA Powers

Sanctions

If the investigate then the following sanctions can be imposed:

  1. Fines - the amount is unpredictable although can be reduced if they reach a settlement at an early stage, up to 30% off is available

  2. Restitution Orders - made by the firm to pay back the money lost

  3. Injunctions - preventing acts or omissions of the firm or individuals

  4. Insolvency proceedings

  5. Revoke authority - the firm and individual’s authority to carry out regulated activities

  6. Criminal prosecutions

Third Party Claims

Firms may face claims under s.138D FSMA which allows those who have suffered loss as a result of an unauthorised person to make a claim.

Claims can be made by third parties such as employees and customers (such as breach of contract, misrepresentation and negligence). Claims can also be referred to the Financial Ombudsman.

Publicity

Under s.391(1) FSMA the FCA can freely print information about a warning notice as long as the firm has been consulted. In relation to Decision and Final Notices the FCA must publish information that it considers appropriate (s.391(4) FSMA).

However, the FCA cannot publish information that would be unfair, prejudicial to consumers or detrimental to the financial system in the UK (s.391(6) FMSA).

Privilege & the FCA

FCA

If the FCA is applying for documents then apply the rules under s.413 FSMA in which firms are not required to disclose ‘protected documents’ that fall into the following definition:

  • Communications between a lawyer and their client (or a third person) - s.413(2)(a)-(b)

  • In connection with legal advice or legal proceedings - s.413(3)(a)-(b)

Common Law Rules

If a party to litigation is applying for disclosure of documents then apply the common law privilege rules: litigation privilege, legal advice privilege, without prejudice privilege and common interest privilege.

FCA & Judicial Review

The FCA is amenable to judicial review, however judicial review is a remedy of last resort and should only be used when...

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