FINAL NOTICE

IRN:
DJG01107
FRN:
124257

ACTION

1.
For the reasons given in this notice, the Authority hereby:

a)
imposes on David Gillespie a financial penalty of £10,500 for breaches of

Statements of Principles 1 and 6, pursuant to section 66 of the Act;

b)
withdraws the approval given to Mr Gillespie to perform controlled function

CF1 Director at Pritchard, pursuant to section 63 of the Act; and

c)
makes an order prohibiting Mr Gillespie from performing any function in

relation to any regulated activity carried on by any authorised person,

exempt person or exempt professional firm, pursuant to section 56 of the

Act.

2.
Mr Gillespie agreed to settle at an early stage of the Authority’s investigation. He

therefore qualified for a 30% discount under the Authority’s executive settlement

procedures. Were it not for this discount, the Authority would have imposed a

financial penalty of £15,100 on him.

3.
Mr Gillespie provided verifiable evidence of serious financial hardship. Had it not

been for his reduced financial circumstances, the Authority would have imposed a

financial penalty of £144,000 (or £100,800 adjusted for a 30% discount if settled

early).

SUMMARY OF REASONS

4.
Mr Gillespie breached Statement of Principle 1 during the Relevant Period by

failing to act with integrity in that he recklessly failed to provide adequate

protection for client monies for which he, as the Managing Director and the CF10a

holder at Pritchard, was ultimately responsible. Mr Gillespie was personally

culpable as he recklessly relied upon the existence of an undocumented and

opaque Offshore Facility in attempting to correct a deficit which Pritchard had

wrongfully brought about in its client money resource. He wrongfully included the

Offshore Facility as an available client money resource when reconciling the

amount of client money that needed to be segregated by Pritchard. This failure

contributed to a loss of approximately £3 million to Pritchard’s clients by the time

Pritchard entered into Special Administration.

5.
Mr Gillespie had the primary contact with the overseas company providing the

Offshore Facility and he assured his fellow director, David Welsby, the Finance

Director with responsibility for accounting and performing the internal

reconciliation of client money, of the existence of the Offshore Facility.

6.
As a consequence of Mr Gillespie’s failings as set out in paragraphs 4 and 5

above:

a)
client money was wrongly used to pay business expenses;

b)
Pritchard failed to routinely pay sufficient funds into its client bank account

to cover shortfalls in client money, in breach of the Client Money Rules;

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c)
Pritchard placed reliance upon the Offshore Facility when calculating the

client money resource for inclusion within Pritchard’s internal reconciliation

of client money, despite the fact that such a facility was not permitted to

be included in the resource in accordance with the Client Money Rules; and

d)
the Authority was not informed when the shortfalls could not be rectified

immediately.

7.
Further, despite becoming aware on or before 7 February 2012 that the funds

were not available to Pritchard, but were instead conditional on an agreement

being made with the overseas company providing the facility, Mr Gillespie:

a)
advised Mr Welsby that the Offshore Facility qualified as client money, with

the result that an entry into Pritchard’s accounts was made on 8 February

2012 showing funds being available in cash to cover the client shortfall,

even though Mr Gillespie was aware, or became aware on 7 February

2012, that the release of funds from the Offshore Facility was conditional

on an agreement being made with the overseas company providing the

Offshore Facility, and

b)
failed, at a meeting with the Authority on 8 February, to advise the

Authority of the conditional nature of the Offshore Facility, with the

Authority instead being advised at the meeting that the Offshore Facility

was available to cover any shortfall in the client funds.

8.
In addition, Mr Gillespie breached Statement of Principle 6 by failing to exercise

due skill, care and diligence when providing oversight of CASS matters at

Pritchard. In particular, he:

a)
accepted, on 11 November 2011, approval as Pritchard’s CF10a without

endeavouring to understand the serious responsibilities that the role

conferred, and then failed to remedy that lack of understanding thereafter;

and

b)
failed in his role as CF10a to exercise adequate oversight of the

operational effectiveness of Pritchard’s systems and controls that were

designed to achieve compliance with CASS, including but not limited to

appropriate notification of misuse of client money and a failure to rectify

client money shortfalls.

9.
The Authority is not alleging or implying that Mr Gillespie acted dishonestly when

it uses the term ‘reckless’ in relation to the failings detailed in this notice. The

Authority considers Mr Gillespie’s failings to be serious for the following reasons:

a)
these failings resulted in significant consumer detriment including

contributing to a loss of approximately £3 million of client money;

b)
the failures directly led to Pritchard breaching the Client Money Rules and

Principle 10 throughout the Relevant Period;

c)
the failures resulted in the FSCS having to compensate clients; and

d)
the failures led to Pritchard’s books and records being inaccurate and

therefore increased the cost of the Special Administration.

10.
This action supports the Authority’s operational objectives of securing an

appropriate degree of protection for consumers and protecting and enhancing the

integrity of the UK financial system.

DEFINITIONS

11.
The definitions below are used in this Final Notice:

“the Act” means the Financial Services and Markets Act 2000;

“the Authority” means the body corporate previously known as the Financial

Services Authority and renamed on 1 April 2013 as the Financial Conduct

Authority;

“CASS” means the Client Assets Sourcebook contained in the Authority’s

Handbook;

“Client Money Rules” means Chapter 7 of CASS (as defined above);

“CF10a” means an individual approved by the Authority (as defined above) for the

CASS operational oversight function;

“DEPP” means the Authority’s Decision Procedure & Penalties Manual;

“EG” means the Enforcement Guide;

“FSCS” means Financial Services Compensation Scheme;

“Principle 10” means Principle 10 of the Authority’s Principles for Businesses;

“the Offshore Facility” means the undocumented £2 million overdraft facility

purportedly provided by an offshore company;

“Pritchard” means Pritchard Stockbrokers Limited;

“Relevant Period” means 1 July 2010 to 8 February 2012;

“Statements of Principle” means the Statements of Principle for Approved

Persons;

“Special Administration/ Special Administrators” refers to the regime governed by

the Investment Bank Special Administration Regulations 2011; and

“the Tribunal” means the Upper Tribunal (Tax and Chancery Chamber).

FACTS AND MATTERS

12.
Pritchard was incorporated in England and Wales on 14 April 1986 and authorised

on 1 December 2001 to carry on designated investment business. Mr Gillespie

was approved as a Director (CF1) of the firm at its authorisation and had ultimate

responsibility for the firm throughout the Relevant Period.

13.
Pritchard’s annual accounts for 2010 described its principal activities as that of

“providing securities and financial advice and providing securities and dealing

facilities on an agency basis.” The structure of its business required it to be able

to hold client money. It was authorised to do so in relation to the business it

conducted through its headquarters in Bournemouth and 10 ancillary offices.

14.
Pritchard had been experiencing financial problems since 2009. These financial

problems put pressure on Pritchard’s capital adequacy and client money positions.

Mr Gillespie claims that he sought support from a trading counterparty of

Pritchard via an offshore company, which purportedly offered an undocumented

£2 million Offshore Facility to support Pritchard’s client money position.

15.
On 10 February 2012, due to concerns about Pritchard’s holding of client money,

the Authority secured Pritchard’s assets and imposed a requirement on it to close

out transactions it had already commenced.

16.
On 9 March 2012, Pritchard entered Special Administration. It is estimated that

Pritchard should have held an estimated £26.5 million in client money,

approximately £3 million of which was represented by guarantees and the

Offshore Facility purportedly provided by third parties that were irrecoverable or

unenforceable, which caused the shortfall.

Internal reconciliation of client money

17.
Pritchard followed, under the direction of Mr Welsby, its Finance Director, what is

known as the standard method of internal reconciliation of client money. This is

set out at Annex 1 to the Client Money Rules and requires, on each business day,

a firm to conduct a reconciliation to check whether its client money resource was

at least equal to its client money requirement at the close of the previous day in

order to ensure that it has sufficient client money to repay what it owes its

clients. In the event that the client money resource is insufficient to meet the

requirement, the firm is obliged to transfer funds from its own resources to its

client bank account(s) to cover any shortfall on the same day. If for any reason a

firm cannot do this it is obliged to inform the Authority in writing, without delay.

18.
The internal reconciliation of client money was carried out at Pritchard on a daily

basis in line with the guidance in Annex 1 to the Client Money Rules. However,

on days where Pritchard did not have adequate financial resources in its own

account to cover the shortfall in the client account identified by the internal

reconciliation of client money, a note was kept of the outstanding amount to be

transferred. These amounts were initially recorded in manuscript, and then

latterly electronically, in daily diaries.

19.
In the course of the Relevant Period these daily diaries showed, with the

exception of two days, client money shortfalls ranging between £198,000 and

£2,676,252.

20.
Pritchard, in breach of its regulatory duty, did not at any time in the Relevant

Period inform the Authority of the shortfalls in its client money nor did it make

good the shortfalls. Mr Gillespie, a chartered accountant and Managing Director,

holding the CF3 Chief Executive function from 11 November 2011 until 6 March

2012, and (for the final three months of the Relevant Period) the CF10a of

Pritchard, and the person at Pritchard who had primary contact with the overseas

company which provided the Offshore Facility, was ultimately responsible for this

failure.

7


Steps taken by Mr Gillespie to safeguard Pritchard’s client money: the

21.
Mr Gillespie was aware of Pritchard’s client money shortfalls and deteriorating

financial position, looking as he did at the company accounts on a monthly basis.

He relied on the supposed support he believed was offered by the Offshore

Facility to cover the shortfalls in the client money resource. He described the

support as being in the form of a facility or an overdraft facility that was held with

a UK law firm in an escrow account on behalf of an overseas company, and was

available to Pritchard on demand and free of lien.

22.
The Client Money Rules do not recognise escrow accounts with law firms as being

accounts into which client money can be deposited. Therefore, even if money had

been ring-fenced in such an account, and there is no evidence that was the case,

it could not have been designated as client money by Pritchard when calculating

its client money resource in accordance with the Client Money rules.

23.
Mr Gillespie had the primary contact with the overseas company providing the

Offshore Facility. He conducted negotiations with the contacts responsible for the

Offshore Facility, principally through telephone calls and meetings, of which there

is no documentary evidence. Mr Gillespie nevertheless assured Mr Welsby of the

existence of the Offshore Facility.

24.
Neither Mr Gillespie nor Pritchard’s other officers, staff or professional advisers

have been able to provide any credible evidence of the existence of the Offshore

Facility.

25.
Mr Gillespie, as the primary point of contact with the overseas company which

provided the Offshore Facility, failed to obtain or to put in place any contractual

documents which would have enabled Pritchard to evidence or confirm the

Offshore Facility. Instead, he relied on verbal assurances purportedly provided by

and on behalf of the third party providing the Offshore Facility, and which he

interpreted as meaning that the Offshore Facility existed and was available to be

used by Pritchard.

26.
Mr Gillespie accepted that there was an absence of paperwork to evidence the

Offshore Facility and that he had, alone, negotiated on behalf of Pritchard,

acknowledging that “it all sounds so horribly woolly with hindsight”.

27.
The absence of any documentary or other substantive evidence regarding the

negotiation for the facility, whether in the form of communications with the

overseas company or internally within Pritchard is very serious. It was

compounded throughout the Relevant Period, by Pritchard’s worsening financial

position and the fact that Mr Gillespie knowing this failed to obtain from the

overseas company legally binding documentation regarding the Offshore Facility.

The absence of documentation was, he said, “a continuing topic of conversation”

in Pritchard. In the circumstances, Mr Gillespie’s failure to resolve or even address

the problem was reckless. The Authority notes that Pritchard did not call upon the

Offshore Facility at any time in the Relevant Period. Mr Gillespie believed without

any proper basis for that belief that Pritchard’s client money was not endangered

at any point. Mr Gillespie accepted that “there has been a systematic failure

within the firm.” That failure contributed to the unsecured deficit of more than £3

million in Pritchard’s client money account leading to actual customer detriment

and the ultimate collapse of Pritchard.

Mr Gillespie’s awareness that the Offshore Facility was conditional

28.
Mr Gillespie was, or became, aware on 7 February 2012 that the release of the

funds held pursuant to the Offshore Facility was conditional on an agreement

being made with the Overseas Company providing the Offshore Facility. In

particular, following a telephone conversation with a solicitor acting for the

Overseas Company on 7 February, Mr Gillespie sent an email to the solicitor

stating “I share your reservations concerning the conditional aspect of the funds”,

and subsequently sent an email setting out his understanding that the release of

the funds was subject to the negotiation of a deal between Pritchard and the

Offshore Company. Mr Gillespie advised Mr Welsby on 7 February that the funds

were available and inaccurately stated that they did qualify as client funds, and

did not advise Mr Welsby that the release of the funds was conditional. This led

to an incorrect entry being made on 8 February 2012 into the Pritchard internal

reconciliation of client money to show that the firm had funds available in cash to

support the client money shortfall.

29.
Furthermore, during a meeting on 8 February 2012 between Pritchard and the

Authority, when the entry in the accounts showing funds available to cover the

client shortfall was queried, Mr Gillespie did not advise the Authority of the

conditional nature of the Offshore Facility, with the Authority instead being

advised that the Offshore Facility was available to cover the shortfall in client

funds.

Mr Gillespie’s appreciation of client money issues

30.
On 20 March 2009, the Authority sent letters to compliance officers of all firms

with permissions to hold client money, including Pritchard. These letters made

clear the Authority’s concerns about firms’ CASS compliance and set out the

Authority’s expectations of firms when arranging adequate protection for clients’

assets and money.

31.
On 19 January 2010, the Authority sent letters to all Chief Executive Officers of

firms with permission to hold client money, including Pritchard. These letters

emphasised that the Authority was giving a higher priority “to achieving

compliance with client asset requirements” because it was concerned that firms

were “not always achieving an adequate level of protection”. The letters enclosed

a report which noted that the Authority considered compliance with the Client

Money Rules to be poor across the financial services industry. At the

commencement of and throughout, the Relevant Period, Mr Gillespie therefore

had or should have had a heightened awareness of the importance of affording

adequate protection to client money and the concerns of the Authority in this

respect. The onus was on Mr Gillespie and Pritchard to ensure that Pritchard paid

heed to the Authority’s concerns and acted upon them.

32.
Further to the receipt of the letters to Chief Executive Officers, Mr Gillespie, as

Pritchard’s managing director, wrote to the Authority on 30 June 2010 to confirm

that Pritchard’s directorship had “properly considered the contents of the [Dear

CEO] letter…”. He added, “I further confirm that the firm is in compliance with its

obligations for client money and assets”. Having made such assertions in

response to the Authority’s letters, Mr Gillespie should have known that the

Offshore Facility could not have been included as an available resource in its

calculation of the client money resource.

33.
In October 2010, and following consultation, the Authority announced its intention

to introduce the CF10a controlled function because of the need to combat the

fragmentation of CASS operational oversight in firms. Just over a year later, on

11 November 2011, Pritchard appointed Mr Gillespie to the role without

undertaking any assessment of his knowledge or suitability for it. In interview, Mr

Gillespie said that he assumed the role because he was asked to do so by the

firm’s directorship. He had no knowledge of it being a newly created controlled

function, nor that it specifically entailed assuming responsibility for CASS

oversight. It did not, he considered, add to the responsibilities he ordinarily

undertook. Mr Gillespie accepted that he should have made efforts to understand

what the role of a CF10a entailed.

34.
Individuals with approval to perform controlled functions, and in particular those

involving the exercise of significant influence, must ensure that they understand

their regulatory obligations in order to be able to discharge them adequately and

thereby ensure the safe and compliant operation of the firm for which they are

responsible. This is necessary to safeguard the interests of consumers and the

market generally. Mr Gillespie did not understand and failed to take any steps to

understand his responsibilities as CF10a.

FAILINGS

35.
Based on the facts and matters described above, the Authority considers that in

the Relevant Period Mr Gillespie failed to act with integrity in breach of Statement

of Principle 1, and without due skill, care and diligence in breach of Statement of

Principle 6. The regulatory provisions relevant to this Final Notice are referred to

in the Annex.

36.
Mr Gillespie breached Statement of Principle 1 by failing to act with integrity in

that he recklessly failed to provide adequate protection for client monies for which

he, as the Managing Director, the CF10a of Pritchard, and the person at Pritchard

who had primary contact with the overseas company providing the Offshore

Facility, was ultimately responsible. In the Relevant Period, he recklessly relied

upon the existence and availability of an undocumented overdraft or financial

facility, and which basic and obvious enquiries would have shown to be without

substance, to support Pritchard’s client money resource. His failure adequately to

manage Pritchard’s client money throughout the Relevant Period contributed to a

loss of approximately £3 million of Pritchard’s client money by the time Pritchard

entered into Special Administration. As a consequence of Mr Gillespie’s failings in

relation to the Offshore Facility:

a)
client money was wrongly used to pay business expenses;

b)
Pritchard failed to pay sufficient funds into its client bank account to cover

shortfalls in client money, in breach of the Client Money Rules;

c)
Pritchard placed reliance upon the Offshore Facility when calculating the

client money resource for inclusion within Pritchard’s internal reconciliation

of client money despite the fact that such a facility was not permitted to be

included in the client money resource in accordance with the Client Money

Rules; and

d)
the Authority was not informed when shortfalls could not be immediately

rectified.

37.
Further, Mr Gillespie breached Statement of Principle 1 in that, despite becoming

aware on or before 7 February 2012 that the funds were not available to

Pritchard, but were instead conditional on an agreement being made with the

overseas company providing the facility, he:

a)
advised Mr Welsby that the funds qualified as client money, and did not

correct this; and

b)
allowed the Authority to be advised by Pritchard, at a meeting on 8

February 2012, that the funds qualified as client money, before

subsequently advising that the funds were in fact guarantees. In both

cases this was inappropriate, inaccurate and misleading.

38.
Mr Gillespie breached Statement of Principle 6 by failing to exercise due skill, care

and diligence when providing oversight to CASS matters at Pritchard. In

particular, he:

a)
accepted the CF10a function, on 11 November 2011, without

endeavouring to understand the serious responsibilities that the role

conferred and then failed to remedy that lack of understanding thereafter;

and

b)
failed in his role as CF10a to exercise adequate oversight of the

operational effectiveness of Pritchard’s systems and controls that are

designed to achieve compliance with CASS, including but not limited to

appropriate notification of misuse of client money and a failure to rectify

client money shortfalls.

SANCTION

39.
The Authority’s policy for imposing a financial penalty is set out in Chapter 6 of

DEPP. In respect of conduct occurring on or after 6 March 2010, the Authority

applies a five-step framework to determine the appropriate level of financial

penalty. DEPP 6.5B sets out the details of the five-step framework that applies in

respect of financial penalties imposed on individuals in non-market abuse cases.

Step 1: disgorgement

40.
Pursuant to DEPP 6.5B.1G, at Step 1 the Authority seeks to deprive an individual

of the financial benefit derived directly from the breach where it is practicable to

quantify this.

41.
The Authority has not identified any financial benefit that Mr Gillespie derived

directly from the breach.

42.
Step 1 is therefore £0.

Step 2: the seriousness of the breach

43.
Pursuant to DEPP 6.5B.2G, at Step 2 the Authority determines a figure that

reflects the seriousness of the breach. That figure is based on a percentage of

the individual’s relevant income. The individual’s relevant income is the gross

amount of all benefits received by the individual from the employment in

connection with which the breach occurred, and for the period of the breach.

44.
The period of Mr Gillespie’s breach was from 1 July 2010 to 8 February 2012. The

Authority considers Mr Gillespie’s relevant income for this period to be £120,000.

45.
In deciding on the percentage of the relevant income that forms the basis of the

step 2 figure, the Authority considers the seriousness of the breach and chooses a

percentage between 0% and 40%. This range is divided into five fixed levels

which represent, on a sliding scale, the seriousness of the breach; the more

serious the breach, the higher the level. For penalties imposed on individuals in

non-market abuse cases there are the following five levels:

Level 1 – 0%

Level 2 – 10%

Level 3 – 20%

Level 4 – 30%

Level 5 – 40%.

46.
In assessing the seriousness level, the Authority takes into account various

factors which reflect the impact and nature of the breach, and whether it was

committed deliberately or recklessly. DEPP 6.5B.2G(12) lists factors likely to be

considered ‘level 4 or 5 factors’. Of these, the Authority considers the following

factors to be relevant:

a)
Mr Gillespie was reckless in relying on an undocumented facility; and

b)
Mr Gillespie’s failure to protect adequately client monies contributed to a

£3,021,660 loss of Pritchard’s client money.

47.
The Authority also considers that the following factors are relevant:

a)
The loss outlined above was suffered by consumers, at least some of

whom were individual (i.e. non institutional) investors. The FSCS has

confirmed that there are a number of consumers who have not been fully

compensated due to their investments being for amounts higher than the

FSCS £50,000 claim payment threshold; and

b)
Detriment has been caused to consumers as Pritchard remains in Special

Administration and distributions to creditors, including claimants through

the FSCS, have yet to be completed.

48.
Taking all of these factors into account, the Authority considers the seriousness of

the breach to be level 5 and so the Step 2 figure is 40% of £120,000.

49.
The Step 2 figure is therefore £48,000.

Step 3: mitigating and aggravating factors

50.
Pursuant to DEPP 6.5B.3G, at Step 3 the Authority may increase or decrease the

amount of the financial penalty arrived at after Step 2, but not including any

amount to be disgorged as set out in Step 1, to take into account factors which

aggravate or mitigate the breach.

51.
The Authority considers that there are no mitigating or aggravating features.

52.
The Step 3 figure is therefore £48,000.

Step 4: adjustment for deterrence

53.
Pursuant to DEPP 6.5B.4G, if the Authority considers the figure arrived at after

Step 3 is insufficient to deter the individual who committed the breach, or others,

from committing further or similar breaches, then the Authority may increase the

penalty.

54.
The Authority does consider the penalty against Mr Gillespie to be insufficient and

therefore increases the penalty at Step 4 by way of an uplift of 200%. In so doing

the Authority has paid regard to the following concerns:

a)
The detriment and inconvenience to customers of Pritchard; and

b)
Mr Gillespie’s reckless behaviour contributed to the loss of £3 million of

Pritchard’s client money, including taking into account that he was the

dominant force at Pritchard in introducing, characterising and negotiating

the Offshore Facility.

c)
His failure, on 7/8 February 2012, to advise Mr Welsby and initially the

Authority that the funds were only conditionally available, and therefore

could not qualify as client funds.

55.
The Step 4 figure is therefore £144,000.

Serious financial hardship

56.
Pursuant to DEPP 6.5D.2G, (text of guidance provided in Annex) the Authority will

consider reducing the amount of a penalty if an individual will suffer serious

financial hardship as a result of having to pay the entire penalty. The Authority

accepts that the payment of a penalty of £100,800 would cause Mr Gillespie

serious financial hardship. Mr Gillespie has provided verifiable evidence of

serious financial hardship. The Authority has therefore reduced the penalty to

£15,100.

Step 5: settlement discount

57.
The Authority and Mr Gillespie reached agreement at Stage 1 and so a 30%

discount applies to the Step 4 figure.

58.
The Step 5 figure is therefore £10,500.

59.
The Authority therefore proposes to impose a total financial penalty of £10,500.

PROCEDURAL MATTERS

Decision maker

60.
The decision which gave rise to the obligation to give this Notice was made by the

Settlement Decision Makers.

61.
This Final Notice is given under, and in accordance with, section 390 of the Act.

Manner of and time for Payment

62.
The financial penalty must be paid in three instalments as follows:

a)
£2,500 by 31 January 2015;

b)
£4,000 by 31 January 2016; and

c)
£4,000 by 31 January 2017.

63.
The financial penalty must be paid in full by Mr Gillespie to the Authority by no

later than 31 January 2017.

If the financial penalty is not paid

64.
If all or any of the financial penalty is outstanding on 1 February 2017, the

Authority may recover the outstanding amount as a debt owed by Mr Gillespie

and due to the Authority.

65.
Sections 391(4), 391(6) and 391(7) of the Act apply to the publication of

information about the matter to which this notice relates. Under those provisions,

the Authority must publish such information about the matter to which this notice

relates as the Authority considers appropriate. The information may be published

in such manner as the Authority considers appropriate. However, the Authority

may not publish information if such publication would, in the opinion of the

Authority, be unfair to you or prejudicial to the interests of consumers or

detrimental to the stability of the UK financial system.

66.
The Authority intends to publish such information about the matter to which this

Final Notice relates as it considers appropriate.

Authority contacts

67.
For more information concerning this matter generally, contact Paul Howick

(direct line: 020 7066 7954 /email: paul.howick@fca.org.uk) of the Enforcement

and Financial Crime Division of the Authority.

Megan Forbes

Financial Conduct Authority, Enforcement and Financial Crime Division



ANNEX


RELEVANT STATUTORY AND REGULATORY PROVISIONS

RELEVANT STATUTORY PROVISIONS

a.
The Authority’s statutory objectives, set out in section 1B(3) of the Act, include the

consumer protection objective and the integrity objective.

b.
Section 66 of the Act provides that the Authority may take action against a person

if it appears to the Authority that he is guilty of misconduct and the Authority is

satisfied that it is appropriate in all the circumstances to take action against him.

A person is guilty of misconduct if, while an approved person, he has failed to

comply with a statement of principle issued under section 64 of the Act, or has

been knowingly concerned in a contravention by a relevant authorised person of a

relevant requirement imposed on that authorised person.

c.
Section 56 of the Act provides that the Authority may make an order prohibiting an

individual from performing a specified function, any function falling within a

specified description or any function, if it appears to the Authority that that

individual is not a fit and proper person to perform functions in relation to a

regulated activity carried on by an authorised person, exempt person or a person

to whom, as a result of Part 20, the general prohibition does not apply in relation

to that activity. Such an order may relate to a specified regulated activity, any

regulated activity falling within a specified description, or all regulated activities.

Imposition of financial penalty

d.
Section 206(1) of the Act provides:

“If the Authority considers that an authorised person has contravened a

requirement imposed on him by or under this Act… it may impose on him a

penalty, in respect of the contravention, of such amount as it considers

appropriate."

RELEVANT REGULATORY PROVISIONS

Statements of Principle and Code of Practice for Approved Persons

e.
The Authority’s Statements of Principle and Code of Practice for Approved Persons

(“APER”) have been issued under section 64 of the Act.

f.
Statement of Principle 1 states:

“An approved person must act with integrity in carrying out his accountable

functions.”

g.
The Code of Practice for Approved Persons sets out descriptions of conduct which,

in the opinion of the Authority, do not comply with a Statement of Principle. It also

sets out factors which, in the Authority’s opinion, are to be taken into account in

determining whether an approved person’s conduct complies with a Statement of

Principle.

The Fit and Proper Test for Approved Persons

h.
The part of the Authority’s Handbook entitled “The Fit and Proper Test for Approved

Persons” (“FIT”) sets out the criteria that the Authority will consider when

assessing the fitness and propriety of a candidate for a controlled function. FIT is

also relevant in assessing the continuing fitness and propriety of an approved

person.

i.
FIT 1.3.1G states that the Authority will have regard to a number of factors when

assessing the fitness and propriety of a person. The most important considerations

will be the person’s honesty, integrity and reputation, competence and capability

and financial soundness.

The Enforcement Guide

j.
The Enforcement Guide (“EG”) sets out the Authority’s approach to exercising its

main enforcement powers under the Act.

k.
Chapter 7 of the EG sets out the Authority’s approach to exercising its power to

impose a financial penalty.

l.
Chapter 9 of EG sets out the Authority’s policy in relation to prohibition orders.

m.
EG 9.1 states that the Authority may exercise this power where it considers that,

to achieve any of its regulatory objectives, it is appropriate either to prevent an

individual from performing any functions in relation to regulated activities or to

restrict the functions which he may perform.

DEPP

n.
Chapter 6 of DEPP sets out the Authority’s statement of policy with respect to the

imposition and amount of financial penalties under the Act.

o.
DEPP 6.5D.2G states that:

(1) In assessing whether a penalty would cause an individual serious financial

hardship, the FCA will consider the individual's ability to pay the penalty over

a reasonable period (normally no greater than three years). The FCA's

starting point is that an individual will suffer serious financial hardship only if

during that period his net annual income will fall below £14,000 and his

capital will fall below £16,000 as a result of payment of the penalty. Unless

the FCA believes that both the individual's income and capital will fall below

these respective thresholds as a result of payment of the penalty, the FCA is

unlikely to be satisfied that the penalty will result in serious financial

hardship.

(2) The FCA will consider all relevant circumstances in determining whether the

income and capital threshold levels should be increased in a particular case.

(3) The FCA will consider agreeing to payment of the penalty by instalments

where the individual requires time to realise his assets, for example by

waiting for payment of a salary or by selling property.

(4) For the purposes of considering whether an individual will suffer serious

financial hardship, the FCA will consider as capital anything that could provide

the individual with a source of income, including savings, property (including

personal possessions), investments and land. The FCA will normally consider

as capital the equity that an individual has in the home in which he lives, but

will consider any representations by the individual about this; for example, as

to the exceptionally severe impact a sale of the property might have upon

other occupants of the property or the impracticability of re-mortgaging or

selling the property within a reasonable period.

(5) The FCA may also consider the extent to which the individual has access to

other means of financial support in determining whether he is able to pay the

penalty without being caused serious financial hardship.

(6) Where a penalty is reduced it will be reduced to an amount which the

individual can pay without going below the threshold levels that apply in that

case. If an individual has no income, any reduction in the penalty will be to an

amount that the individual can pay without going below the capital threshold.

(7) There may be cases where, even though the individual has satisfied the FCA

that payment of the financial penalty would cause him serious financial

hardship, the FCA considers the breach to be so serious that it is not

appropriate to reduce the penalty. The FCA will consider all the circumstances

of the case in determining whether this course of action is appropriate,

including whether:

(a) the individual directly derived a financial benefit from the breach and, if

so, the extent of that financial benefit;(b) the individual acted fraudulently or

dishonestly with a view to personal gain;

(c) previous FCA action in respect of similar breaches has failed to improve

industry standards; or

(d) the individual has spent money or dissipated assets in anticipation of FCA

or other enforcement action with a view to frustrating or limiting the impact

of action taken by the FCA or other authorities.

Client Money Rules

p.
The Client Assets section of the Authority’s Handbook (“CASS”) sets out the

requirements relating to holding client assets and client money.

q.
Set out below are relevant extracts from CASS 7.4 and 7.6:

CASS 7.4.1

“A firm, on receiving any client money, must promptly place this money into one or
more accounts opened with any of the following:

(1) a central bank;

(2) a CRD credit institution;

(3) a bank authorised in a third country;

(4) a qualifying money market fund.”

CASS 7.6.1

“A firm must keep such records and accounts as are necessary to enable it, at any

time and without delay, to distinguish client money held for one client from client

money
held
for
any
other
client,
and
from
its
own
money.”

CASS 7.6.2

“A firm must maintain its records and accounts in a way that ensures their

accuracy, and in particular their correspondence to the client money held for

clients.”

CASS 7.6.5

“A firm should ensure that it makes proper records, sufficient to show and explain

the firm's transactions and commitments in respect of its client money.”

CASS 7.6.6

“(1) Carrying out internal reconciliations of records and accounts of the

entitlement of each client for whom the firm holds client money with the records

and accounts of the client money the firm holds in client bank accounts and client

transaction accounts should be one of the steps a firm takes to satisfy its

obligations under CASS 7.6.2 R, and where relevant SYSC 4.1.1 R and SYSC 6.1.1

R.

(2) A firm should perform such internal reconciliations:

(a) as often as is necessary; and

(b) as soon as reasonably practicable after the date to which the reconciliation

relates;

to ensure the accuracy of the firm's records and accounts.

(3) The standard method of internal client money reconciliation sets out a method

of reconciliation of client money balances that the FCA believes should be one of

the steps that a firm takes when carrying out internal reconciliations of client

money.”

CASS 7.6.10

“(1) A firm should perform the required reconciliation of client money balances

with external records:

(a) as regularly as is necessary; and

(b) as soon as reasonably practicable after the date to which the reconciliation

relates;

to ensure the accuracy of its internal accounts and records against those of third

parties by whom client money is held.

(2) In determining whether the frequency is adequate, the firm should consider the

risks which the business is exposed, such as the nature, volume and complexity of

the business, and where and with whom the client money is held.”

CASS 7.6.13

“When any discrepancy arises as a result of a firm's internal reconciliations, the

firm must identify the reason for the discrepancy and ensure that:

(1) any shortfall is paid into a client bank account by the close of business on the

day that the reconciliation is performed; or

(2) any excess is withdrawn within the same time period (but see CASS 7.4.20 G

and CASS 7.4.21 R).”

CASS 7.6.16

“A firm must inform the FCA in writing without delay:

(1) if it has not complied with, or is unable, in any material respect, to comply with

the requirements in CASS 7.6.1 R, CASS 7.6.2 R or CASS 7.6.9 R;

(2) if having carried out a reconciliation it has not complied with, or is unable, in

any material respect, to comply with CASS 7.6.13 R to CASS 7.6.15 R.”