A step towards UK crypto-asset regulation? Treasury Committee Report finds current status “clearly not sustainable”

Last month, the House of Commons Treasury Committee published its report on crypto-assets. The report expresses serious concerns about the risks of consumer harm and financial crime and calls for regulation “as a matter of urgency“. Continue Reading

Breaking news. FOS money awards and jurisdiction: all change in 2019?

In a move designed to (in their own words) ‘ensure more complainants receive fair compensation’ and to ‘build consumer trust in the integrity of the industry’, on 16 October 2018 the FCA published a Consultation Paper in which the regulator outlines proposals for increasing the Financial Ombudsman Service money award limit from £150,000 to £350,000 for upheld consumer complaints.

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FCA takes steps to improve pension transfer advice

Safeguarding pensions and retirement income have been high on the FCA’s agenda for a while now. In the FCA Business Plan for 2018/19 it said:

We want to ensure that consumers are equipped to make good decisions to fund their retirement such as through appropriate advice or guidance, and can access good quality, value for money retirement products. We also want to ensure consumers know how to avoid pensions’ scams and poor deals

The FCA has been particularly active in trying to tackle poor quality pension transfer advice as a risk to its consumer protection objective. We have seen significant supervisory and enforcement activity in the area in 2018. There have been high profile issues around transfers from some defined benefit (“DB”) schemes such as the British Steel pension scheme.

On 4 October the FCA published a Policy Statement (PS18/20) on “Improving the quality of pension transfer advice”. The PS takes forward a range of policy proposals on which the FCA had consulted in CP18/7 to address perceived failings in the pension transfer advice market. Continue Reading

Breathe easy, the SFO calls it a day in privilege battle

Last month we reported that the Court of Appeal (The Director of the SFO v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006) had reversed the High Court’s controversial and troubling decision from 2017 that concerned the extent to which litigation privilege could apply to documents generated in the context of internal investigations https://www.finance-disputes.co.uk/2018/09/litigation-privilege-sense-prevails-in-the-court-of-appeal/.

It was announced earlier this week that the SFO will not be pursuing an appeal to the Supreme Court.  So the Court of Appeal decision stands and companies can continue to conduct their own investigations into potential wrongdoings without fear of possibly having to reveal the legal work product to prosecutors, governmental authorities or regulators at a later stage.

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FCA caseload at record levels despite dropping more cases than ever

The Financial Conduct Authority (“FCA”) continues to see its caseload increase to record levels despite the fact that it is dropping more investigations than ever before. Recently published statistics reveal that in the year ending March 2018 a total of 208 investigations were ended compared to 115 in the previous year and 98 in 2015/16.

The FCA’s Enforcement Annual Performance Report 2017/18 reveals that the total number of cases open rose from 410 on 1 April 2017 to 504 as at 31 March 2018 despite the case closures, meaning that an additional 302 cases were opened in that period. Continue Reading

FCA to crack down on conduct in the payment services and e-money sectors

The FCA published a consultation paper on 1 August 2018 to revamp its rules and guidance for payment service providers (“PSPs”) and e-money institutions, alongside proposing a crack down on the marketing and promotion of currency conversion services.

The proposals are designed to tackle recent concerns over confusing and misleading marketing material and exchange rates shown by some e-money and non-bank payment service providers, and to bring the wider money lending industry under consistent FCA rules, ultimately regulating the standards customers can expect. Continue Reading

Litigation privilege: sense prevails in the Court of Appeal

Last week the Court of Appeal (The Director of the SFO v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006) reversed the High Court’s controversial and troubling decision from 2017 that concerned the extent to which litigation privilege could apply to documents generated in the context of internal investigations.

ENRC successfully argued that legal professional privilege protected from disclosure to the SFO certain documents that had been prepared by ENRC’s lawyers and forensic accountants as part of an internal investigation into allegations of financial irregularities at ENRC.

The Court of Appeal’s decision will be welcomed by clients who can once again instruct lawyers to undertake internal investigations into allegations of wrongdoing without fear of possibly having to reveal the legal work product to prosecutors, governmental authorities or regulators at a later stage.

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Crypto-fraud: digital currency scams on the rise

It seems it’s difficult to look anywhere right now without an advert staring back at you for cryptocurrency investments or investment products including a crypto-asset feature: they are on the side of taxis, tube platforms, and the pages of the daily papers. After the semi-meteoric rise (and fall) that was Bitcoin at the end of 2017 it seems some consumers have been jumping on the Bitcoin-bandwagon hoping to gain a quick buck.

And where investors go, scammers follow. So much so that the FCA has recently re-published its warning on cryptocurrency investment scams to highlight this concerning trend.

Both the FCA and Action Fraud report increasing volumes of fraud involving cryptocurrency and cryptocurrency products, or “crypto-fraud”. The scams tend to have the same key features to entice potential victims:

  1. Many will advertise on social media.
  2. They fake recommendations from prominent business people or celebrities to promote the investment, or make it appear as though those individuals endorse the offering.
  3. Following their links will lead to a legitimate-appearing website.
  4. They will give their address as a prominent UK location, usually in the City of London, though most of these scams are reported to be operating from overseas.
  5. The promise will be of high returns achieved quickly.

As the FCA makes clear, cryptocurrencies by themselves are not regulated in the UK and so, whilst some crypto-products do relate to regulated investments within the FCA’s remit, in many cases there is limited protection when things go wrong. In order to avoid being left out of pocket, the FCA and Action Fraud suggest:

  • Researching the offering, and the firm making it.
  • Not being rushed into making an investment decision.
  • Reporting scams to either the FCA or Action Fraud.
  • If it looks too good to be true, it probably is.

With the hope of reaping big rewards from a well-timed cryptocurrency investment still lingering, we can expect to see the unscrupulous to continue to target consumers with crypto-scams.

But for those looking to legitimately trade in or offer regulated crypto-assets, the FCA and PRA have recently written to firms setting out their expectations. You can see our previous blog post on that topic here.