The Financial Services and Markets Act 2000 (Transitional Provisions and Savings) (Civil Remedies, Discipline, Criminal Offences etc.) (No. 2) Order 2001

Restitution by the Authority

3.  (1)  Paragraph (2) applies if—

(a)an authorised person (within the meaning of the Act) was, immediately before commencement, a member of a recognised self-regulating organisation or a recognised self-regulating organisation for friendly societies;

(b)the Authority is satisfied that before commencement—

(i)he failed to comply with any of the provisions specified in rule 1.3.1(6) of the PIA rules (cases in which a member is liable to disciplinary action);

(ii)he committed an act of misconduct within the meaning of rule 7.23A(3) of the SFA rules; or

(iii)he committed a relevant IMRO contravention;

(c)that organisation had, immediately before commencement, a power that corresponded to the power of the Authority under section 384(5) (power to order restitution) in relation to that failure, misconduct or contravention (or would have had such a power had an application been made to it by or on behalf of a person who had suffered loss or been otherwise adversely affected as a result of the conduct of the person concerned) but had not exercised that power; and

(d)the Authority is satisfied that one or more persons has suffered loss or been otherwise adversely affected as a result of the conduct specified by sub-paragraph (b).

(2) The Authority may, subject to paragraph (3), exercise the power in subsection (5) of section 384 in relation to that conduct as if it were a case within paragraph (b) of subsection (1) of that section.

(3) The Authority may exercise the power in section 384(5) in relation to conduct comprising an act of misconduct for the purposes of the SFA rules only on the application by or on behalf of a person who has suffered loss or been otherwise adversely affected as a result of the contravention.

(4) In exercising, or deciding whether to exercise, its powers under section 384(5) in relation to any conduct of the kind specified by paragraph (1)(b), the Authority must have regard to any statement made by the relevant recognised self-regulating organisation or recognised self-regulating organisation for friendly societies which was in force when the conduct in question took place with respect to its policy on the taking of disciplinary action and the award of, and amount of, restitution (whether issued as guidance, contained in the rules of that organisation or otherwise).