Sections 380 (2) and 382 Financial Services and Markets Act 2000 were not mutually exclusive. The preconditions for s. 380 (2) were that (1) a relevant contravention had to have taken place; and (2) there had to be steps intended to and reasonably capable of remedying that contravention. The solicitors knowingly concerned in the contravention could be sanctioned within s. 380 (2).
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An unauthorised collective investment scheme would be investment business carried on in the UK, for the purposes of section 235 of the Financial Services and Markets Act 2000, if the activities in question which took place in the UK were a significant part of the business activity running the collective investment scheme.
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The Court was entitled to draw adverse inferences from a party's decision not to give or call evidence as to matter within the knowledge of the witness or his employees. The weight would vary in each case. Where the witness had been the directing mind of a group and his control of the group had been gravely criticised, a decision not to testify was a strong indication that the witness had no satisfactory answer to what had been alleged judged by different standards.
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Where personal guarantees had been provided in respect of an initial loan of £100,000 and a further advance was made of £150,000 and the guarantors of the initial loan signed a letter agreeing to that advance, then although not express in the letter, the personal guarantees extended to the full amount.
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The test for liability for dishonest assistance in Royal Brunei Airlines v Tan had not been altered by Twinsectra. It requires a dishonest state of mind on the part of the person who assists in a breach of trust. Such a state of mind may consist in knowledge that the transaction is one in which he cannot honestly participate or in suspicion combined with a conscious decision not to make inquiries which might result in knowledge. Although a dishonest state of mind is a subjective mental state, th ...
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Although the Tribunal was enjoined to consider whether to publicise its decision arising out of an unchallenged reference from the Authority’s decision, it would generally be in the public interest to publish such a decision.
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Third Party Rights: The tribunal considered the rights of a third party in a market abuse case under s. 393 of the Financial Services and Markets Act 2000 and the application of rule 13 of the Financial Services and Markets Tribunal Rules 2001.
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Schemes of Arrangement: The Court’s jurisdiction and approach when creditors oppose a scheme of arrangement in respect of an insurer in run-off.
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Procedure: Time would be extended for filing a reference notice where there would be no prejudice to the Authority but prejudice to the applicant. Where the applicant had been convicted of crimes of dishonesty the Suspension Notice should remain in effect pending the outcome of the reference.
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Authorisation: The HSF2 Form questions relating to disclosure of spent convictions and bankruptcy were clear and unambiguous. It was not for the Applicant to decide what matters he should disclose to the Authority. Rather he must answer the questions accurately and leave the decision of relevance to the Authority. Matters arising a considerable time ago were relevant where there was a sufficiently close similarity between the nature of the applicant’s business activities relating to th ...
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