Part XXV Injunctions and Restitution
Injunctions
380 Injunctions.
(1)
If, on the application of the F1appropriate regulator or the Secretary of State, the court is satisfied—
(a)
that there is a reasonable likelihood that any person will contravene a relevant requirement, or
(b)
that any person has contravened a relevant requirement and that there is a reasonable likelihood that the contravention will continue or be repeated,
the court may make an order restraining (or in Scotland an interdict prohibiting) the contravention.
(2)
If on the application of the F1appropriate regulator or the Secretary of State the court is satisfied—
(a)
that any person has contravened a relevant requirement, and
(b)
that there are steps which could be taken for remedying the contravention,
the court may make an order requiring that person, and any other person who appears to have been knowingly concerned in the contravention, to take such steps as the court may direct to remedy it.
(3)
If, on the application of the F1appropriate regulator or the Secretary of State, the court is satisfied that any person may have—
(a)
contravened a relevant requirement, or
(b)
been knowingly concerned in the contravention of such a requirement,
it may make an order restraining (or in Scotland an interdict prohibiting) him from disposing of, or otherwise dealing with, any assets of his which it is satisfied he is reasonably likely to dispose of or otherwise deal with.
(4)
The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(5)
In subsection (2), references to remedying a contravention include references to mitigating its effect.
(6)
“Relevant requirement”—
(a)
in relation to an application by the F2appropriate regulator, means a requirement—
(i)
(ii)
(iv)
which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under that Part; F10or
F11(v)
which is imposed by a provision made in accordance with the transparency obligations directive (within the meaning of section 103(1)); F12, or
(vi)
which is imposed by the Undertakings for Collective Investment in Transferable Securities Regulations 2011.
(b)
in relation to an application by the Secretary of State, means a requirement which is imposed by or under this Act and whose contravention constitutes an offence which the Secretary of State has power to prosecute under this Act.
(7)
In the application of subsection (6) to Scotland—
F13(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)
in paragraph (b) omit “which the Secretary of State has power to prosecute under this Act”.
F14(8)
The PRA is the “appropriate regulator” in the case of a contravention of—
(a)
a requirement that is imposed by the PRA under any provision of this Act,
(b)
a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
(c)
a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
(9)
In the case of a contravention of a requirement that is imposed by a qualifying EU provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying EU provision for the purposes of this section.
(10)
In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is whichever of the PRA or the FCA has power to prosecute the offence (see section 401).
(11)
The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.
(12)
The Treasury may by order amend the definition of “appropriate regulator”.
381 Injunctions in cases of market abuse.
(1)
If, on the application of the F15FCA, the court is satisfied—
(a)
that there is a reasonable likelihood that any person will F16contravene Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation, or
(b)
the court may make an order restraining (or in Scotland an interdict prohibiting) the F19contravention.
(2)
If on the application of the F15FCA the court is satisfied—
(a)
that any person is or has F20contravened Article 14 or 15 of the market abuse regulation, and
(b)
that there are steps which could be taken for remedying the F21contravention,
the court may make an order requiring him to take such steps as the court may direct to remedy it.
(3)
Subsection (4) applies if, on the application of the F15FCA, the court is satisfied that any person—
(a)
may be F22contravening Article 14 or 15 of the market abuse regulation; or
(b)
may have F23contravened Article 14 or 15 of the market abuse regulation.
(4)
The court F24may make an order restraining (or in Scotland an interdict prohibiting) the person concerned from disposing of, or otherwise dealing with, any assets of his which it is satisfied that he is reasonably likely to dispose of, or otherwise deal with.
(5)
The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(6)
In subsection (2), references to remedying any F25contravention include references to mitigating its effect.
Restitution orders
382 Restitution orders.
(1)
The court may, on the application of the F26appropriate regulator or the Secretary of State, make an order under subsection (2) if it is satisfied that a person has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and—
(a)
that profits have accrued to him as a result of the contravention; or
(b)
that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.
(2)
The court may order the person concerned to pay to the F27regulator concerned such sum as appears to the court to be just having regard—
(a)
in a case within paragraph (a) of subsection (1), to the profits appearing to the court to have accrued;
(b)
in a case within paragraph (b) of that subsection, to the extent of the loss or other adverse effect;
(c)
in a case within both of those paragraphs, to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect.
(3)
Any amount paid to the F28regulator concerned in pursuance of an order under subsection (2) must be paid by it to such qualifying person or distributed by it among such qualifying persons as the court may direct.
(4)
On an application under subsection (1) the court may require the person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes—
(a)
establishing whether any and, if so, what profits have accrued to him as mentioned in paragraph (a) of that subsection;
(b)
establishing whether any person or persons have suffered any loss or adverse effect as mentioned in paragraph (b) of that subsection and, if so, the extent of that loss or adverse effect; and
(c)
determining how any amounts are to be paid or distributed under subsection (3).
(5)
The court may require any accounts or other information supplied under subsection (4) to be verified in such manner as it may direct.
(6)
The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(7)
Nothing in this section affects the right of any person other than the F29appropriate regulator or the Secretary of State to bring proceedings in respect of the matters to which this section applies.
(8)
“Qualifying person” means a person appearing to the court to be someone—
(a)
to whom the profits mentioned in subsection (1)(a) are attributable; or
(b)
who has suffered the loss or adverse effect mentioned in subsection (1)(b).
(9)
“Relevant requirement”—
(a)
in relation to an application by the F30appropriate regulator, means a requirement—
(i)
(ii)
(iii)
which is imposed by the Alternative Investment Fund Managers Regulations 2013; F36or
(iv)
which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under that Part;
(b)
in relation to an application by the Secretary of State, means a requirement which is imposed by or under this Act and whose contravention constitutes an offence which the Secretary of State has power to prosecute under this Act.
(10)
In the application of subsection (9) to Scotland—
F37(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)
in paragraph (b) omit “which the Secretary of State has power to prosecute under this Act”.
F38(11)
The PRA is the “appropriate regulator” in the case of a contravention of—
(a)
a requirement that is imposed by the PRA under any provision of this Act,
(b)
a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
(c)
a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
(12)
In the case of a contravention of a requirement that is imposed by a qualifying EU provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying EU provision for the purposes of this section.
(13)
In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is the regulator which has power to prosecute the offence (see section 401).
(14)
The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.
(15)
The Treasury may by order amend the definition of “appropriate regulator”.
383 Restitution orders in cases of market abuse.
F39(1)
The court may, on the application of the FCA, make an order under subsection (4) if it is satisfied that—
(a)
a person (“the person concerned”) has contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation; and
(b)
the condition mentioned in subsection (2) is fulfilled.
(2)
The condition is—
(a)
that profits have accrued to the person concerned as a result; or
(b)
that one or more persons have suffered loss or been otherwise adversely affected as a result.
F40(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
The court may order the person concerned to pay to the F41FCA such sum as appears to the court to be just having regard—
(a)
in a case within paragraph (a) of subsection (2), to the profits appearing to the court to have accrued;
(b)
in a case within paragraph (b) of that subsection, to the extent of the loss or other adverse effect;
(c)
in a case within both of those paragraphs, to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect.
(5)
Any amount paid to the F42FCA in pursuance of an order under subsection (4) must be paid by it to such qualifying person or distributed by it among such qualifying persons as the court may direct.
(6)
On an application under subsection (1) the court may require the person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes—
(a)
establishing whether any and, if so, what profits have accrued to him as mentioned in subsection (2)(a);
(b)
establishing whether any person or persons have suffered any loss or adverse effect as mentioned in subsection (2)(b) and, if so, the extent of that loss or adverse effect; and
(c)
determining how any amounts are to be paid or distributed under subsection (5).
(7)
The court may require any accounts or other information supplied under subsection (6) to be verified in such manner as it may direct.
(8)
The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
(9)
Nothing in this section affects the right of any person other than the F43FCA to bring proceedings in respect of the matters to which this section applies.
(10)
“Qualifying person” means a person appearing to the court to be someone—
(a)
to whom the profits mentioned in paragraph (a) of subsection (2) are attributable; or
(b)
who has suffered the loss or adverse effect mentioned in paragraph (b) of that subsection.
Restitution required by F44FCA or PRA
384 Power of F45FCA or PRA to require restitution.
(1)
F46The appropriate regulator may exercise the power in subsection (5) if it is satisfied that an authorised person F47or recognised investment exchange (“the person concerned”) has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and—
(a)
that profits have accrued to him as a result of the contravention; or
(b)
that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.
F48(2)
The FCA may exercise the power in subsection (5) if it is satisfied that—
(a)
a person (“the person concerned”) has contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation; and
(b)
the condition mentioned in subsection (3) is fulfilled.
(3)
The condition is—
(a)
that profits have accrued to the person concerned as a result of the F49contravention of Article 14 or 15 of the market abuse regulation; or
(b)
that one or more persons have suffered loss or been otherwise adversely affected as a result of the F49contravention of Article 14 or 15 of the market abuse regulation.
F50(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)
The power referred to in subsections (1) and (2) is a power to require the person concerned, in accordance with such arrangements as the F51regulator exercising the power (“the regulator concerned”) considers appropriate, to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the F52regulator concerned to be just having regard—
(a)
in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the F52regulator concerned to have accrued;
(b)
in a case within paragraph (b) of subsection (1) or (3), to the extent of the loss or other adverse effect;
(c)
in a case within paragraphs (a) and (b) of subsection (1) or (3), to the profits appearing to the F52regulator concerned to have accrued and to the extent of the loss or other adverse effect.
(6)
“Appropriate person” means a person appearing to the F53regulator concerned to be someone—
(a)
to whom the profits mentioned in paragraph (a) of subsection (1) or (3) are attributable; or
(b)
who has suffered the loss or adverse effect mentioned in paragraph (b) of subsection (1) or (3).
(7)
“Relevant requirement” means—
(a)
(b)
(c)
a requirement imposed by the Alternative Investment Fund Managers Regulations 2013. F60and
(d)
a requirement which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under that Part.
F61(8)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F62(9)
The PRA is the “appropriate regulator” in the case of a contravention of—
(a)
a requirement that is imposed by the PRA under any provision of this Act,
(b)
a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
(c)
a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
(10)
In the case of a contravention of a requirement that is imposed by a qualifying EU provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying EU provision for the purposes of this section.
(11)
In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is the regulator which has power to prosecute the offence (see section 401).
(12)
The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.
(13)
The Treasury may by order amend the definition of “appropriate regulator”.
385 Warning notices.
(1)
If F63a regulator proposes to exercise the power under section 384(5) in relation to a person, it must give him a warning notice.
(2)
A warning notice under this section must specify the amount which F64the regulator proposes to require the person concerned to pay or distribute as mentioned in section 384(5).
386 Decision notices.
(1)
If the F65regulator decides to exercise the power under section 384(5), it must give a decision notice to the person in relation to whom the power is exercised.
(2)
The decision notice must—
(a)
state the amount that he is to pay or distribute as mentioned in section 384(5);
(b)
identify the person or persons to whom that amount is to be paid or among whom that amount is to be distributed; and
(c)
state the arrangements in accordance with which the payment or distribution is to be made.
(3)
If the F66regulator decides to exercise the power under section 384(5), the person in relation to whom it is exercised may refer the matter to the Tribunal.