UK Finance has recently published its half yearly fraud update for the first half of 2023, its findings are based on data reported to it by its members, which include financial providers, credit, debit and charge card issuers and card payment acquirers.
Opening salvo – enforceability of litigation funding agreements in a post-PACCAR world?
The recent interim judgment of Therium Litigation Funding A IC v Bugsby Property LLC [2023] EWHC 2627 (Comm) appears to give us an early indication of what might become key battlegrounds between Third-Party Funders and certain funded litigants in the wake of the Supreme Court’s impactful determination in R (PACCAR) v Competition Appeal Tribunal [2023] UKSC 28.
Push-ed Back – Supreme Court Considers Quincecare Duty for Authorised Push Payment (“APP”) Fraud Victims
On 12 July 2023, the Supreme Court delivered its widely anticipated judgment in Philipp v Barclays Bank UK PLC. In doing so, the Court has gone back to basics to explain the basis for and scope of a bank’s duty to its customers, and has brought the Quincecare duty back to a narrower footing.
By overturning the Court of Appeal (covered in our previous blog here), and varying the original High Court ruling (which we addressed in another previous blog post), the Supreme Court has again shown that it will not hesitate to redraw the boundaries of duty where it deems them to have been overly broadened. The case also offers useful clarification on the extent of the Quincecare duty, and of banks’ obligations to their customers more generally.
The decision should be a welcome one for banks, notwithstanding that the Financial Services and Markets Act 2023 will soon provide victims of many APP frauds with a different route to recompense (as well as the Contingent Reimbursement Model Code).
Financial Promotions Data Analysed – An Increase in Intervention
Earlier this year, the Financial Conduct Authority published its analysis of its financial promotions data for 2022. That report sheds some interesting light on the FCA’s actions taken against authorised firms, and unauthorised entities and individuals, for breaches of financial promotion rules.
The standout message is clear – the FCA has significantly increased its interventionist activity, in response to what the FCA has said is poor financial promotions compliance.
Financial Ombudsman Service compensation limit increased again – by more than 10%
The Financial Conduct Authority confirmed last month that the limit for compensation that can be awarded by the Financial Ombudsman Service (“FOS”) will be raised from £375,000 to £415,000, for complaints made after 1 April 2023 relating to acts or omissions on or after 1 April 2019 – an increase of over 10%.
A lower limit of £190,000 applies to any complaints made from 1 April 2023 relating to events that occurred prior to 1 April 2019 – again an increase of over 10%, from £170,000 in 2022.
Ready or not, here comes the Consumer Duty
Since July 2022 when the FCA published its rules and guidance to implement the Consumer Duty, much ink has been spilled on what it will mean for affected firms. Now, with the clock ticking down to implementation on 31 July 2023, the FCA has published the findings of its review of a number of larger firms’ plans for complying with the Duty.
“Could do better” is the overall mark on the industry’s homework so far.
What will the Consumer Duty involve?
To recap, the reforms will involve:
- An overarching Consumer Principle requiring firms to act to deliver good outcomes for retail customers when selling products and services.
- Cross-cutting rules providing clarity on FCA expectations, which will require firms to act in good faith, avoid causing foreseeable harm, and enable and support retail customers to pursue their financial objectives.
- Rules relating to the four outcomes the FCA wants to see, around: appropriateness of products and services; transparent pricing and fair value; consumer understanding; and consumer support.
FCA tightens appointed representative regime
In August 2022, the FCA released a policy statement introducing improvements to the appointed representative (“AR“) regime. In its policy statement, the FCA provides feedback on its earlier consultation, and sets out new rules to make authorised financial firms more responsible for their ARs.
In its press release, the FCA says that whilst some principal firms do effectively ensure their ARs comply with rules, “many do not adequately oversee the activities of their ARs“. It says its new rules will “prevent consumers being mis-sold or mis-led by ARs and will prevent misconduct by ARs undermining markets operating fairly and safely“.
Is the FCA catching on to its AFrO and AFO powers?
My colleague Ben Ticehurst, a Director in our UK Government Investigations and White Collar team, recently shared a timely insight on increased use by the Financial Conduct Authority of Account Freezing Orders (“AFrOs”) and Account Forfeiture Orders (“AFOs”) on our Anticorruption Blog. He reports on the recent decision for the FCA to secure its first AFO, a tool used for asset recovery under Part 5 of Proceeds of Crime Act 2002, for £2 million against QPay Europe Limited. Until recently , AFO and AFrO powers, granted by the Criminal Finances Act 2017, have mainly been used by the National Crime Agency, regional police forces, and His Majesty’s Revenue and Customs (“HMRC”). However, given the FCA’s stated intent in their recently published three year strategy to use their “enforcement and intervention powers more actively”, these measures should now be firmly on the radar of compliance teams and MLROs of FCA-regulated entities.
Given the relevance to readers of this blog, we wanted to call this to your attention – check out Ben’s full post here: Account Freezing and Forfeiture Orders: is the FCA waking up to its investigative powers? | The Anticorruption Blog
You’ve been served…well, virtually.
In what is widely touted as the first of its kind in the UK, a recent order made in D’Aloia v Persons Unknown & Others by the High Court marks an expansion of the potential methods for service of claims permitted for English proceedings, by allowing proceedings to be served via airdrop of Non-Fungible Token (NFT). The decision marks a useful step forward for victims of fraud in the crypto-asset space.
FCA future gazing
On 14 July FCA CEO Nikhil Rathi gave a speech at the Peterson Institute for International Economics, setting out a helpful overview of the FCA’s intended future approach to its aspects of its regulatory responsibilities. In addition to emphasising cross-border co-operation, Mr Rathi elaborated the following focus areas:
