383 Restitution orders in cases of market abuse.U.K.
(1)The court may, on the application of the [F1FCA], make an order under subsection (4) if it is satisfied that a person (“the person concerned”)—
(a)has engaged in market abuse, or
(b)by taking or refraining from taking any action has required or encouraged another person or persons to engage in behaviour which, if engaged in by the person concerned, would amount to market abuse,
and the condition mentioned in subsection (2) is fulfilled.
(2)The condition is—
(a)that profits have accrued to the person concerned as a result; or
(b)that one or more persons have suffered loss or been otherwise adversely affected as a result.
(3)But the court may not make an order under subsection (4) if it is satisfied that—
(a)the person concerned believed, on reasonable grounds, that his behaviour did not fall within paragraph (a) or (b) of subsection (1); or
(b)he took all reasonable precautions and exercised all due diligence to avoid behaving in a way which fell within paragraph (a) or (b) of subsection (1).
(4)The court may order the person concerned to pay to the [F2FCA] such sum as appears to the court to be just having regard—
(a)in a case within paragraph (a) of subsection (2), to the profits appearing to the court to have accrued;
(b)in a case within paragraph (b) of that subsection, to the extent of the loss or other adverse effect;
(c)in a case within both of those paragraphs, to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect.
(5)Any amount paid to the [F3FCA] in pursuance of an order under subsection (4) must be paid by it to such qualifying person or distributed by it among such qualifying persons as the court may direct.
(6)On an application under subsection (1) the court may require the person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes—
(a)establishing whether any and, if so, what profits have accrued to him as mentioned in subsection (2)(a);
(b)establishing whether any person or persons have suffered any loss or adverse effect as mentioned in subsection (2)(b) and, if so, the extent of that loss or adverse effect; and
(c)determining how any amounts are to be paid or distributed under subsection (5).
(7)The court may require any accounts or other information supplied under subsection (6) to be verified in such manner as it may direct.
(8)The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(9)Nothing in this section affects the right of any person other than the [F4FCA] to bring proceedings in respect of the matters to which this section applies.
(10)“Qualifying person” means a person appearing to the court to be someone—
(a)to whom the profits mentioned in paragraph (a) of subsection (2) are attributable; or
(b)who has suffered the loss or adverse effect mentioned in paragraph (b) of that subsection.
Textual Amendments
F1Word in s. 383(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 22 (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F2Word in s. 383(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 22 (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F3Word in s. 383(5) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 22 (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F4Word in s. 383(9) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 22 (with Sch. 20); S.I. 2013/423, art. 3, Sch.