C1 Part XXV Injunctions and Restitution
Restitution required by F2FCA or PRA
Words in s. 384 cross-heading substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(10) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
C3C5C4384 Power of F11FCA or PRA to require restitution.
1
F3The appropriate regulator may exercise the power in subsection (5) if it is satisfied that an authorised person F6or recognised investment exchange (“the person concerned”) has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and—
a
that profits have accrued to him as a result of the contravention; or
b
that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.
2
The F5FCA may exercise the power in subsection (5) 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 (3) is fulfilled,
3
The condition is—
a
that profits have accrued to the person concerned as a result of the market abuse; or
b
that one or more persons have suffered loss or been otherwise adversely affected as a result of the market abuse.
4
But the F13FCA may not exercise that power as a result of subsection (2) if, having considered any representations made to it in response to a warning notice, there are reasonable grounds for it to be satisfied that—
a
the person concerned believed, on reasonable grounds, that his behaviour did not fall within paragraph (a) or (b) of that subsection; 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 that subsection.
C25
The power referred to in subsections (1) and (2) is a power to require the person concerned, in accordance with such arrangements as the F8regulator exercising the power (“the regulator concerned”) considers appropriate, to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the F9regulator concerned to be just having regard—
a
in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the F9regulator concerned to have accrued;
b
in a case within paragraph (b) of subsection (1) or (3), to the extent of the loss or other adverse effect;
c
in a case within paragraphs (a) and (b) of subsection (1) or (3), to the profits appearing to the F9regulator concerned to have accrued and to the extent of the loss or other adverse effect.
6
“Appropriate person” means a person appearing to the F7regulator concerned to be someone—
a
to whom the profits mentioned in paragraph (a) of subsection (1) or (3) are attributable; or
b
who has suffered the loss or adverse effect mentioned in paragraph (b) of subsection (1) or (3).
7
“Relevant requirement” means—
a
b
a requirement which is imposed by or under any other Act and whose contravention constitutes an offence F14mentioned in section 402(1).
F108
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F49
The PRA is the “appropriate regulator” in the case of a contravention of—
a
a requirement that is imposed by the PRA under any provision of this Act,
b
a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
c
a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
10
In the case of a contravention of a requirement that is imposed by a qualifying EU provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying EU provision for the purposes of this section.
11
In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is the regulator which has power to prosecute the offence (see section 401).
12
The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.
13
The Treasury may by order amend the definition of “appropriate regulator”.
Pt. 25 amended (1.12.2001) by S.I. 2001/2657, arts. 1(1), 10(10), 11(10) (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)
Pt. 25 amended (1.12.2001) by S.I. 2001/3083, arts. 1(2), 10(10), 11(10); S.I. 2001/3538, art. 2(1)
Pt. 25 extended (1.12.2001) by S.I. 2001/3646, arts. 1(1), 3(1)(a)