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Financial services

Gough Square financial services barristers are experienced in:

  • Advising on the effects of the Mortgage Credit Directive Order 2015 and consequential amendments to the Financial Services and Markets Act 2000 (“FSMA”) and the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (“the RAO”);
  • Drafting mortgage and security documentation;
  • Advising on the application of, and compliance with, the FCA’s Mortgage (Conduct of Business) Sourcebook (“MCOB”), Consumer Credit Sourcebook (“CONC”), Conduct of Business Sourcebook (“COBS”) and other parts of the FCA Handbook;
  • Reviewing documentation, promotions and procedures for compliance with FSMA and the FPO;
  • Advising on the scope of activities requiring FCA authorisation;
  • Litigating cases of undue influence, breach of fiduciary duty and irresponsible lending;
  • Advising on applications to the Treasury by entities seeking exemption from the general prohibition in FSMA;
  • Advising on the application of the Money Laundering Regulations 2007, Payment Services Regulations 2009, the Financial Services (Distance Marketing) Regulations 2004 and Electronic Money Regulations 2011;
  • Advising on whether arrangements constitute a collective investment scheme under FSMA s235;
  • Advising on the regulatory obligations of friendly societies;
  • Advising on the regulatory obligations and liabilities of FCA approved persons (e.g. in the context of alleged foreign exchange rate manipulation);
  • Drafting appointed representatives agreements (pursuant to FSMA s39);
  • Advising on the ‘passporting’ of permissions by EC firms under the single markets directives;
  • Advising on the scope of the Financial Ombudsman Service’s jurisdiction and the FCA’s DISP rules;
  • Advising on the scope of regulated activities relating to peer-to-peer lending and crowdfunding;
  • Advising on the consequences of carrying on regulated activities under FSMA, in breach of the general prohibition.
  • MFS Portfolio Ltd v Phelan: first instance judgment at [2018] GCCR 16027: four day appeal on the applicability of the exemption in paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001.
  • Burrell & ors v Helical (Bramshott Place) Ltd [2015] EWHC 3727 (Ch): Kate, led by Ian Mill QC, successfully acted for the defendant in a case where the High Court considered the test to be applied in determining whether an agreement provides for credit;
  • Grace & George v Black Horse Ltd [2014] EWCA Civ 1413: limitation and causation of a claim for compensation for inaccurate credit referencing under s.13 of the Data Protection Act;
  • Conlon v Black Horse Ltd [2013] EWCA Civ 1658: PPI mis-selling: non-disclosure of commission (settled three days before further appeal to the Supreme Court);
  • Santander UK plc v Harrison [2013] EWHC 199 (QB): capitalisation of mortgage arrears not credit in the form of a cash loan;
  • London Scottish Finance Ltd v Craig and ors [2013] EWHC 4047 (Ch): debt collection in respect of irredeemably unenforceable agreement; right to recover payments under s106;
  • Harrison v Black Horse Ltd (CA)  [2011] Lloyd’s Rep I.R. 455; [2011] C.T.L.C. 105: PPI mis-selling: non-disclosure of commission;
  • Helden v Strathmore Ltd [2011] EWCA Civ 542; [2011] C.T.L.C. 158: mortgage was enforceable under FSMA although entered in breach of general prohibition; formalities for entering mortgage;
  • Southern Pacific Mortgage Ltd v Heath [2010] Ch 254: multiple agreements; part of mortgage discharging previous mortgage;
  • Hurstanger v Wilson [2007] 1 WLR 2351: undisclosed commissions paid to finance brokers; mortgagee procuring breach of fiduciary duty;
  • Bank of Scotland v Euclidian (No 1) Ltd (QB) [2007] C.T.L.C. 151: construction of indemnity clause in master certificate of insurance re CFA scheme; drafting of cancellable credit agreements in context of litigation funding;
  • Goshawk Dedicated (No. 2) Ltd v Bank of Scotland [2005] EWHC 2906 (Ch), [2006] 2 All ER 610: legal expenses insurance; notice of cancellation rights.

Modern Financial Regulation’ (‘the Blue Book’), Jordan (2013): details the changes introduced by the Financial Services Act 2012, including content relating to the Financial Conduct Authority, consumer credit, payment services and electronic money.