ON APPEAL FROM CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
HIS HONOUR JUDGE SIMON BARKER QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE SULLIVAN
| Argentum Lex Wealth Management Limited
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Mr O Hilton (instructed by Beale & Co) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Longmore:
"Further to our recent telephone and email conversations in which you indicated that Wynyard Asset Management Limited was transferring all its liabilities past and present to Argentum Lex Wealth Management, I would appreciate if you would complete the attached form for our records. This is a new process we have introduced and places a requirement on and records that the firm is taking on the liabilities of its/the predecessor firm. I look forward to receiving the completed document and please do not hesitate to contact me should you have any questions regarding this matter."
"(6) A complainant is eligible, in relation to the compulsory jurisdiction of the ombudsman scheme, if he falls within a class of person specified in the rules as eligible.
(7) The rules --
(a) may include provision for persons other than individuals to be eligible; but
(b) may not provide for authorised persons to be eligible except in specified circumstances or in relation to complaints of a specified kind.
(8) The jurisdiction of the scheme which results from this section is referred to in this Act as 'the compulsory jurisdiction'."
"When the business of the firm passes to the applicant, we need to be sure that all the regulatory obligations of the firm including obligations in respect of past business are accepted by the applicant. As part of the change of legal status process we require the deed poll set out in this section to be completed. This acknowledges the applicant's acceptance of responsibility, particularly in relation to complaints and any requirements to review past business. Such responsibility is joint and several. The deed poll does not relieve the firm from any liabilities that it may have for its past business once it ceases to be authorised."
"10.1 Deed poll in relation to the past business of the firm
By this Deed Poll, the applicant hereby confirms that:
1. The FSA and the Financial Ombudsman Service may treat the regulated activities and investment business previously carried on by the firm, or by a predecessor of the firm and for which the firm has accepted responsibility, as regulated activities and investment business carried on by the applicant; and
2. The applicant undertakes to treat such activities and business as regulated activities and investment business carried on by itself;
And accordingly, in particular:
3. The applicant accepts responsibility jointly and severally with the firm for the acts and omissions of the firm or the firm's predecessor in carrying out such activities and business;
4. The applicant accepts liability jointly and severally with the firm for any damages that may be payable in respect of those acts and omissions, whether such liability arises in contract, in tort or otherwise, and whether it is present or future, actual and contingent;
5. The applicant will carry out and complete any required past business review of such activities and business, including the review of any pension business conducted by the firm or the firm's predecessor in line with the provisions of a deemed scheme under section 404 of the Financial Services and Markets Act 2000 (FSMA), and meet the costs of providing redress to any person to whom, in line with our standards and specification for the review, such redress may be due:
6. For any complaints which have been made and/or may be made by or on behalf of any person in respect of those activities or business, the complainant has the same rights against the applicant as he would have had against the firm or the firm's predecessor if it had remained authorised; the Financial Ombudsman Service has the same jurisdiction and powers in relation to the applicant as if the applicant had been the firm or its predecessor; and the applicant will comply with the relevant requirements on the proper handling of such complaints, including the requirement to comply promptly with any award of the Financial Ombudsman Service and pay any levies and/or case fees regarding these complaints. "
"This Deed Poll is entered into for the benefit of, and is enforceable against the applicant by, the FSA, the Financial Ombudsman Service Limited and any eligible complainant who has a complaint in respect of such activities and business, whether under the Contracts (Rights of Third Parties) Act 1999 or by any other common law or statutory means of a third party taking benefit and enforcing any aspect of its instrument.
This Deed Poll may only be varied, amended, terminated or rescinded with the prior consent of the FSA.
The applicant confirms that the directors/partners members of the applicant be made aware of this deed poll and an appropriate board/partners/committee resolution dated [such and such] has been passed."
Lord Justice Ward:
Lord Justice Sullivan:
Order: Appeal allowed