Professional & Financial Risks
Enhancing the cross-border distribution of collective investment funds
The European Commission has published a draft Regulation and Directive on the cross-border distribution of investment funds. The aim is to establish a genuine internal capital market by addressing fragmentation and removing regulatory barriers (namely Member States’ marketing requirements, regulatory fees and notification and administrative requirements), which can all prevent the cross-border distribution of investment funds in the European Union.
Read moreFrederick & Others v Positive Solutions Limited – a win for principals on vicarious liability
The Court of Appeal has reinforced the idea that liability will only attach to a principal in cases where a tort committed by an agent can be shown to have been completed as an integral part of the business activities of the principal. Furthermore, all elements composing the tort must take place within the course of the agency. The case thickens the lines defining what conduct of an agent could lead to recovery from the principal.
Read moreBad news for litigants in person?
When a litigant in person fails to correctly serve a claim form they can expect the courts to take a firm approach, following the Supreme Court's decision in Barton v Wright Hassall
Read moreInsuring Cryptocurrency risk, and why a duck might not actually be a duck
Cryptocurrencies have dominated headlines with their soaring value and accelerating use. Their regulation has remained somewhat of an afterthought, however. This blog post looks at some of the pitfalls and the larger implications for financial professionals and the insurance industry that the risks of cryptocurrency present.
Read moreFOS consultation on SME access to Ombudsman service
The FCA is currently consulting on proposed new rules to allow larger small and medium sized enterprises to refer complaints to the FOS.
Read moreTo each his own: which papers belong to the solicitor?
Although it has previously been established that clients don't necessarily own all of their solicitors' file, clients don't always appreciate this when making a file request. Some recent case law provides support to solicitors when dealing with such requests.
Read moreName and Shame: HM Land Registry to publish list of worst offenders
HM Land Registry has announced plans to publish a list of the top 500 entities responsible for the highest number of applications and ranking them by their track record of correctly completing Land Registry forms and applications.
Read moreUnauthorised introducers, the Pension Ombudsman and SSASs
The Pension Ombudsman has rejected a complaint against a SSAS provider in relation to investments in carbon credit investments made on the instigation of an unauthorised introducer. In contrast to FOS decisions we have seen, the Pension Ombudsman appeared to put the onus and risk on the consumer for engaging with an unauthorised introducer.
Read moreBroken bonds - the FCA clamps down on firm promoting mini-bonds
According to a recent article in Citywire, the FCA has ordered a firm promoting mini-binds to "cease all regulated activity" following a series of losses being incurred by investors in respect of mini-bonds.
Read moreFavourable approach for insurers to the construction of exclusion clauses
In a recent decision the Commercial Court has followed the Supreme Court in the Impact Funding case. It declined to apply the contra proferentem rule to an exclusion clause in an insurance policy. Insurers will welcome the decision.
Read morePE funds: Risks to LP limited liability status
One of the key attributes of an English limited partnership is that the general partner has unlimited liability for the debts and obligations of the limited partnership.
Read moreTransferring limited partnership interests
A limited partner may assign its interest in a limited partnership, subject to the general partner's consent and any contrary agreement between the limited partners.
Read moreAre there dark clouds on the horizon for SIPP providers?
According to Citywire, the FCA is poised to complete further supervisory work on the SIPP industry with a specific focus on non-standard investments. We understand that the FCA has questioned SIPP providers on the number of high risk investments they hold following a spate of complaints about such products in recent years.
Read moreOver the Insured's Dead Body
One year on from the entry into force of the Third Parties (Rights Against Insurers) Act 2010 and the fun and games are just getting started.
Read moreA level playing Field?
Frank Field's Work and Pensions Select Committee is intending to review the impartiality of defined benefit pension transfer advice. What could this mean for the advisory industry and its PI insurers?
Read moreFCA's review into non-advised retirement product sales
The FCA has published its retirement outcomes review interim report. The report forms part of the FCA's assessment of the impact of the pension freedoms on the pension market and consumer behaviour. Although the focus of the report is non-advised sales it provides a useful insight for all those involved in the pensions market in relation to (1) customer behaviour post the introduction of the pension freedoms and (2) how the pension market is responding to those reforms. The report also puts forward some proposed "remedies" in relation to areas where the FCA considers behaviour may be detrimentally impacting customers. The remedies include permitting customers to access part of their pension at an earlier date in what appears to be an attempt by the FCA to steer customers away from drawdown products.
Read moreA Simple Twist of ATE
This blog considers the pitfalls of over-reliance on ATE cover and suggested solutions.
Read moreConveyancing liability
The perils of reports on title: Orientfield Holdings Limited v Bird & Bird
Read moreCorporate crime – the new offence of failure to prevent tax evasion
At the end of April, the Criminal Finances Act 2017 was passed, bringing to life a new raft of measures aimed at increasing state powers to tackle financial crime. The rules are set to come into force in September 2017 and include new powers to obtain information, share knowledge and recover criminal property. Of most relevance to the professional community is the new power to prosecute corporate bodies whose agents or employees fail to prevent the facilitation of tax evasion carried out by another person, including customers and suppliers.
Read moreA case of unintended consequences
Supreme Court Judgment of Lowick Rose LLP (formerly known as Hurst Morrison Thomson LLP) (in liquidation) v Swynson Ltd and another [2017] UKSC 32
Read moreComplaints against insolvency practitioners hold steady
The insolvency service has published the latest figures for complaints against insolvency practitioners made to the Complaints Gateway during 2016. The statistics indicate that the Gateway has received a reasonably steady level of complaints since it was established in 2013 but promisingly for practitioners the Gateway does appear to be weeding out more complaints with the Gateway having rejected 29% of complaints in 2016, compared to 18% in the Gateway's first year.
Read moreWhose file is it anyway: What should a solicitor provide to a client when met with a request for "the file"?
The Law Society has published new guidance on what a solicitor should do when a client requests a copy of its file.
Read moreAltogether now – aggregation in solicitors' professional negligence claims
The Supreme Court in AIG Europe Limited v Woodman and others [2017] UKSC 18 provides welcome clarification of how you can aggregate claims against solicitors under the SRA's Minimum Terms and Conditions.
Read moreSupreme Court judgment on SAAMCo
On 22 March 2017 the Supreme Court handed down its decision on the application of SAAMCo to claims against professionals.
Read moreBetween a rock and a hard place
Difficulties for lenders arising out of limitation
Read moreBDO report finds fraud at a 5-year high
There has been a cascade of negative headlines in recent months about increased incidences of fraud in the UK. Stretched police resources, combined with an array of opportunities for online exploitation of businesses and consumers, are perceived to have made it a good time to be a fraudster.
Read moreBuyer’s solicitor beware!
Is it safe to act for a purchaser in a property transaction?
Read moreAdjudication costs not recoverable as costs of proceedings
The Technology & Construction Court ("TCC") has recently considered whether there are circumstances in which a party can recover adjudication costs; the position, ordinarily, being that the costs of adjudication are not recoverable from the other side.
Read moreEnhanced annuity non-advised sales – not as bad as first feared?
The FCA's thematic review into non-advised enhanced annuity sales found no evidence of an industry wide or systemic failure to provide customers with information about enhanced annuities or the open market option. There will not be a general industry wide remedial action.
Read moreUncrystallised personal pensions safe from creditors
The Court of Appeal has resolved previously conflicting case law to confirm that a bankrupt cannot be obliged to crystallise his pension benefits in order to produce income to pay off creditors.
Read moreNew Guidance on when lawyers can attend an SFO section 2 interview
On 6 June 2016, the SFO issued 3 short guidance notes to replace the Operational Handbook that had previously governed interviews under Section 2 of the Criminal Justice Act 1987 (Section 2).
Read moreThe unexpected effect of Brexit on Part 36 offers
Insurers may need to check the adequacy of any Part 36 offer they have made in claims where the claimant seeks damages in a foreign currency and may also need to reconsider whether to accept any Part 36 offer made by a claimant in such a case. This is particularly so where the Part 36 offer was made in sterling.
Read moreHigh Court encourages use of FOS to resolve disputes
The Commercial Court has encouraged the use of the FOS to resolve disputes, by granting a stay to enable claimants to benefit from what it described as a more economical and informal process.
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The "new" Third Parties (Rights Against Insurers) Act and late payment of insurance claims
After a delay of just six years, it was finally confirmed this week that the Third Parties (Rights Against Insurers) Act 2010 will come into force on 1 August 2016.
Read moreMining for claims: a year on from Proctor v Raleys
A year has now passed since the Court of Appeal's decision in Proctor v Raleys, a judgment which highlighted the difficulties defendant solicitors will face in stating that they gave sufficient advice if the advice they gave was contained in precedent letters and questionnaires (especially if they didn't actually meet the client, as was the case with the unfortunate Mr Raley).
Read moreGetting the lie of the land: Conveyancers liable to Land Registry for mortgage fraud
Hot on the heels of the decision in Purrunsing v A'Court & Co (in which the High Court found conveyancers on both sides of a property fraud to be liable for the loss suffered by the buyer) comes another blow for property solicitors in the High Court decision in Chief Land Registrar v Caffrey & Co.
Read moreCourt refuses s61 relief in claim by buyer against seller's solicitors
In a decision handed down earlier this month, the High Court in Purrunsing -v- (1) A'Court & Co. (a firm); (2) House Owners Conveyancers Limited [2016] EWHC 789 refused relief under section 61 Trustee Act 1925 to a firm of solicitors and a firm of licensed conveyancers who acted in the sale of a property by a fraudster.
Read moreCybersecurity – not just a small firm matter
Law firms are increasingly becoming the target of Cybercriminals, driven by a perception that the industry's attempts to address security measures still lag behind other professional sectors.
Read moreHere today, gone tomorrow – Calderbank offers and costs protection
A recent case highlights a mistake to avoid when trying to obtain costs protection from Calderbank offers.
Read morePanama Papers – what does the leak mean for professional advisers?
The headlines have been full of stories about the so-called Panama Papers since their release 10 days ago.
Read moreIt can still be too late – Denton re-visited
The Court of Appeal in British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] EWCA Civ 153 has reminded all solicitors that Court Orders are there to be complied with, and dire consequences can still follow if they are breached, despite the more generous guidance given in Denton v TH White Ltd [2014] EWCA Civ 906.
Read moreBrokers' block notification guidance provided by the Court
The Court has provided guidance on making block notifications to PI insurers, in a key area relating to broker's professional liability exposure.
Read moreUnder-settlements – what factors does the Court take into account
In Dunhill v W Brook and Co and Crossley a damages claim was brought against solicitors and counsel for under-settling a personal injury claim.
Read moreSolicitors can owe a limited duty of care to third parties
In Caliendo v Mischon de Reya, the Court found that a firm of solicitors had not been retained, either expressly or impliedly, to represent the majority shareholders in respect of the sale of their shareholding in a football club.
Read moreThe end of the low cost insurance scheme?
The Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) have taken disciplinary action against Mr Shay Reches, the firms Coverall and Millburn, and four other related individuals in relation to solicitors' professional indemnity insurance and other insurance scheme failures.
Read moreLitigants in person – approach with caution?
The increase in recent years of the number of litigants in person (LiPs) is largely due to the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the Act), which came into force on 1 April 2013.
Read moreResolving mistakes in trust deeds and wills – a new, cheaper and quicker approach?
Claims are often made against professionals arising out of errors in trust deeds and wills.
Read moreDon't leave me this way: SRA to split from the Law Society?
From almost a standing start around ten years ago, solicitors are now among the most regulated professionals in the UK.
Read moreStand and deliver: what documents must a solicitor deliver up to its client when asked for 'the file'?
Most compliance managers or complaints partners will experience that sinking feeling when yet another file request lands on their desks, often with the distinct aroma of a 'fishing expedition'.
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