F1PART 9ARules and Guidance
C5C3CHAPTER 2Rules: modification, waiver, contravention and procedural provisions
Pt. 9A Ch. 2 applied (with modifications) by S.I. 2011/99, Sch. 3 para. 2A(2)(3) (as inserted (13.8.2017 for specified purposes, 13.10.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(c)(iii)(3)(f)(i)(6), Sch. 8 para. 5(31)(a) (with reg. 3))
Pt. 9A Ch. 2 applied (with modifications) (13.8.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(b)(ii)(6), Sch. 6 para. 3(2) (with reg. 3)
Contravention of rules
138CEvidential provisions
1
If a particular rule made by either regulator so provides, contravention of the rule does not give rise to any of the consequences provided for by other provisions of this Act.
2
A rule made by a regulator which so provides must also provide—
a
that contravention may be relied on as tending to establish contravention of such other rule made by that regulator as may be specified, or
b
that compliance may be relied on as tending to establish compliance with such other rule made by that regulator as may be specified.
3
A rule may include the provision mentioned in subsection (1) only if the regulator making the rule considers that it is appropriate for it also to include the provision required by subsection (2).
4
In this section “rule” does not include a rule made under—
a
section 137O (threshold condition code);
b
section 192J (provision of information by parent undertakings).
C2C1C4C5C3138DActions for damages
1
A rule made by the PRA may provide that contravention of the rule is actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.
2
A contravention by an authorised person of a rule made by the FCA is actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.
3
If rules made by the FCA so provide, subsection (2) does not apply to a contravention of a specified provision of the rules.
4
In prescribed cases, a contravention of a rule which by virtue of subsection (1) or (2) would be actionable at the suit of a private person is actionable at the suit of a person who is not a private person, subject to the defences and other incidents applying to actions for breach of statutory duty.
5
In subsections (1), (2) and (3) “rule” does not include—
F2za
rules under section 64A (rules of conduct);
a
Part 6 rules;
b
rules under section 137O (threshold condition code);
c
rules under section 192J (provision of information by parent undertakings);
d
a rule requiring an authorised person to have or maintain financial resources.
6
“Private person” has such meaning as may be prescribed.
138ELimits on effect of contravening rules
1
A person is not guilty of an offence by reason of a contravention of a rule made by either regulator.
2
No such contravention makes any transaction void or unenforceable.
3
Subsection (2) does not apply in relation to—
a
rules made by the FCA under section 137C, F3...
b
product intervention rules made by the FCA under section 137D F4or
c
rules made by the FCA under section 137FBB.
Pt. 9A substituted for ss. 138-164 (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 24(1), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.