Financial Services and Markets Act 2000

Part XXV U.K. Injunctions and Restitution

Modifications etc. (not altering text)

C1 Pt. 25 amended (1.12.2001) by S.I. 2001/2657, arts. 1(1), 10(10), 11(10) (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

Pt. 25 amended (1.12.2001) by S.I. 2001/3083, arts. 1(2), 10(10), 11(10); S.I. 2001/3538, art. 2(1)

Pt. 25 extended (1.12.2001) by S.I. 2001/3646, arts. 1(1), 3(1)(a)

C2 Pt. 25 applied (with modifications) (E.W.) (9.7.2013) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Referral Fees) Regulations 2013 (S.I. 2013/1635), regs. 1, 24(1)

C3 Pt. 25 applied (with modifications) (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 1 para. 21 (with reg. 7)

C4 Pt. 25 applied (with modifications) (1.1.2018) by The Packaged Retail and Insurance-based Investment Products Regulations 2017 (S.I. 2017/1127), reg. 1, Sch. 1 para. 5

C5 Pt. 25 applied (with modifications) (3.1.2018) by The Data Reporting Services Regulations 2017 (S.I. 2017/699), regs. 1(2)(b), 36

C6 Pt. 25 applied (with modifications) (27.2.2018) by The Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018 (S.I. 2018/135), regs. 1(2), 22

C7 Pt. 25 applied (with modifications) (1.1.2019) by The Securitisation Regulations 2018 (S.I. 2018/1288), reg. 1, Sch. 1 para. 6 (with Sch. 1 paras. 13, 14)

C8 Pt. 25 applied (with modifications) (10.6.2019) by The Proxy Advisors (Shareholders Rights) Regulations 2019 (S.I. 2019/926), regs. 1, 20, 25

Injunctions U.K.

380 Injunctions. U.K.

(1) If, on the application of the [F1 appropriate 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 [F1 appropriate 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 [F1 appropriate 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 [F2 appropriate regulator], means a requirement—

(i) [F3 which is imposed by or under this Act or by a [F4 qualifying provision] specified, or of a description specified, for the purposes of this subsection by the Treasury by order] F5 ...

(ii) which is imposed by or under any other Act and whose contravention constitutes an offence [F6 mentioned in section 402(1)]; F7 [F8 ...

(iii) which is imposed by the Alternative Investment Fund Managers Regulations 2013;] F9 [F10 ...

(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;] [F11 or]

[F12 (v) which is imposed by a provision made in accordance with the transparency obligations directive (within the meaning of section 103(1));] [F13 , 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—

F14 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) in paragraph (b) omit “which the Secretary of State has power to prosecute under this Act”.

[F15 (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 [F16 qualifying 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 [F16 qualifying 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”.]

Textual Amendments

F1 Words in s. 380(1)-(3) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 19(2) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F2 Words in s. 380(6)(a) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 19(3)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F3 S. 380(6)(i) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 19(3)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F4 Words in s. 380(6)(a)(i) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 70(2); 2020 c. 1, Sch. 5 para. 1(1)

F5 Word in s. 380(6)(a) omitted (22.7.2013) by virtue of The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 27(a)

F6 Words in s. 380(6)(ii) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 19(3)(c) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F7 Word in s. 380(6)(a)(ii) omitted (1.4.2014) by virtue of Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(2); S.I. 2014/377, art. 2(2)(c)

F8 S. 380(6)(a)(iii) and word inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 27(b)

F9 Word in s. 380(6)(a)(iii) omitted (26.11.2015) by virtue of The Transparency Regulations 2015 (S.I. 2015/1755), regs. 1(3), 4(4)(a)

F10 S. 380(6)(a)(iv) and word inserted (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(2); S.I. 2014/377, art. 2(2)(c)

F11 Word in s. 380(6)(a)(iv) inserted (26.11.2015) by The Transparency Regulations 2015 (S.I. 2015/1755), regs. 1(3), 4(4)(b)

F12 S. 380(6)(a)(v) inserted (26.11.2015) by The Transparency Regulations 2015 (S.I. 2015/1755), regs. 1(3), 4(4)(c)

F13 S. 380(6)(a)(vi) and word inserted (18.3.2016) by The Undertakings for Collective Investment in Transferable Securities Regulations 2016 (S.I. 2016/225), regs. 1, 2(6)(d)

F14 S. 380(7)(a) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 19(4) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F15 S. 380(8)-(12) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 19(5) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F16 Words in s. 380(9) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 70(3); 2020 c. 1, Sch. 5 para. 1(1)

Modifications etc. (not altering text)

C9 S. 380 modified (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(2) (as amended (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 77(7)(a)(ii))

C10 S. 380 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 15(2)

C11 S. 380 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 18(3)

C12 S. 380 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services Act 2012 (Consumer Credit) Order 2013 (S.I. 2013/1882), arts. 1(1), 3(8)

C13 S. 380 modified (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(1)(b) (with Pt. 4)

C14 S. 380 applied (with modifications) (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(7)(a)

C15 S. 380(1)(2) modified (1.12.2001) by S.I. 2001/2657, arts. 1(1), 20(3) (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 380(1)(2) modified (1.12.2001) by S.I. 2001/3083, arts. 1(2), 20(3); S.I. 2001/3538, art. 2(1)

C16 S. 380(2) extended (with modifications) (1.12.2001) by S.I. 2001/2657, arts. 1(1), 2 (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 380(2) extended (with modifications) (1.12.2001) by S.I. 2001/3083, arts. 1(2), 2; S.I. 2001/3538, art. 2(1)

S. 380(2) extended (1.12.2001) by S.I. 2001/3646, arts. 1(2), 3(3)(a)

C17 S. 380(3)(a) extended (with modifications) (1.12.2001) by S.I. 2001/2657, arts. 1(1), 4 (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 380(3)(a) extended (with modifications) (1.12.2001) by S.I. 2001/3083, arts. 1(2), 4; S.I. 2001/3538, art. 2(1)

381 Injunctions in cases of market abuse. U.K.

(1) If, on the application of the [F17 FCA], the court is satisfied—

(a) that there is a reasonable likelihood that any person will [F18 contravene 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) that any person is or has [F19 contravened Article 14 or 15 of the market abuse regulation] and that there is a reasonable likelihood that the [F20 contravention] will continue or be repeated,

the court may make an order restraining (or in Scotland an interdict prohibiting) the [F21 contravention].

(2) If on the application of the [F17 FCA] the court is satisfied—

(a) that any person is or has [F22 contravened Article 14 or 15 of the market abuse regulation], and

(b) that there are steps which could be taken for remedying the [F23 contravention],

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 [F17 FCA], the court is satisfied that any person—

(a) may be [F24 contravening Article 14 or 15 of the market abuse regulation]; or

(b) may have [F25 contravened Article 14 or 15 of the market abuse regulation].

(4) The court [F26 may] 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 [F27 contravention] include references to mitigating its effect.

Textual Amendments

F17 Word in s. 381(1)-(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 20(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F18 Words in s. 381(1)(a) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(a)(i)

F19 Words in s. 381(1)(b) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(a)(ii)(aa)

F20 Word in s. 381(1)(b) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(a)(ii)(bb)

F21 Word in s. 381(1) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(a)(iii)

F22 Words in s. 381(2)(a) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(b)(i)

F23 Word in s. 381(2)(b) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(b)(ii)

F24 Words in s. 381(3)(a) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(c)(i)

F25 Words in s. 381(3)(b) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(c)(ii)

F26 Word in s. 381(4) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 20(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F27 Word in s. 381(6) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(14)(d)

Restitution orders U.K.

382 Restitution orders. U.K.

(1) The court may, on the application of the [F28 appropriate 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 [F29 regulator 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 [F30 regulator 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 [F31 appropriate 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 [F32 appropriate regulator], means a requirement—

(i) [F33 which is imposed by or under this Act or by a [F34 qualifying provision] specified, or of a description specified, for the purposes of this subsection by the Treasury by order]; F35 ...

(ii) which is imposed by or under any other Act and whose contravention constitutes an offence [F36 mentioned in section 402(1)]; F37 [F38 ...

(iii) which is imposed by the Alternative Investment Fund Managers Regulations 2013;] [F39 or

(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—

F40 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) in paragraph (b) omit “which the Secretary of State has power to prosecute under this Act”.

[F41 (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 [F42 qualifying 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 [F42 qualifying 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”.]

Textual Amendments

F28 Words in s. 382(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(2) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F29 Words in s. 382(2) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F30 Words in s. 382(3) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F31 Words in s. 382(7) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(4) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F32 Words in s. 382(9)(a) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(5)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F33 S. 382(9)(a)(i) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(5)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F34 Words in s. 382(9)(a)(i) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 71(2); 2020 c. 1, Sch. 5 para. 1(1)

F35 Word in s. 382(9)(a) omitted (22.7.2013) by virtue of The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 28(a)

F36 Words in s. 382(9)(a)(ii) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(5)(c) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F37 Word in s. 382(9)(a)(ii) omitted (1.4.2014) by virtue of Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(3); S.I. 2014/377, art. 2(2)(c)

F38 S. 382(9)(a)(iii) and word inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 28(b)

F39 S. 382(9)(a)(iv) and word inserted (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(3); S.I. 2014/377, art. 2(2)(c)

F40 S. 382(10)(a) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(6) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F41 S. 382(11)-(15) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 21(7) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F42 Words in s. 382(12) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 71(3); 2020 c. 1, Sch. 5 para. 1(1)

Modifications etc. (not altering text)

C18 S. 382 extended (with modifications) (1.12.2001) by S.I. 2001/2657, arts. 1(1), 2 (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 382 extended (with modifications) (1.12.2001) by S.I. 2001/3083, arts. 1(2), 2; S.I. 2001/3538, art. 2(1)

C19 S. 382 modified (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(2)

C20 S. 382 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 16(2)

C21 S. 382 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 18(3)

C22 S. 382 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services Act 2012 (Consumer Credit) Order 2013 (S.I. 2013/1882), arts. 1(1), 3(9)

C23 S. 382 modified (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(1)(c) (with Pt. 4)

C24 S. 382 applied (with modifications) (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(7)(b)

C25 S. 382(3)-(5)(8) applied (with modifications) (26.11.2001) by S.I. 2001/3755, regs. 1, 9(7)(9) (with regs. 39, 45)

383 Restitution orders in cases of market abuse. U.K.

[F43 (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.

F44 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The court may order the person concerned to pay to the [F45 FCA] 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 [F46 FCA] 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 [F47 FCA] 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.

Textual Amendments

F43 S. 383(1) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(15)(a)

F44 S. 383(3) omitted (3.7.2016) by virtue of The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(15)(b)

F45 Word in s. 383(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 22 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F46 Word in s. 383(5) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 22 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F47 Word in s. 383(9) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 22 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Restitution required by [F48 FCA or PRA] U.K.

Textual Amendments

F48 Words in s. 384 cross-heading substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(10) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

384 Power of [F49 FCA or PRA] to require restitution. U.K.

(1) [F50 The appropriate regulator] may exercise the power in subsection (5) if it is satisfied that an authorised person [F51 or 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.

[F52 (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 [F53 contravention 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 [F53 contravention of Article 14 or 15 of the market abuse regulation].

F54 (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 [F55 regulator 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 [F56 regulator concerned] to be just having regard—

(a) in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the [F56 regulator 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 [F56 regulator concerned] to have accrued and to the extent of the loss or other adverse effect.

(6) “Appropriate person” means a person appearing to the [F57 regulator 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) a requirement imposed by or under this Act [F58 or by [F59 a [F60 qualifying provision] specified, or of a description specified, for the purposes of this subsection by the Treasury by order]]; F61 ...

(b) a requirement which is imposed by or under any other Act and whose contravention constitutes an offence [F62 mentioned in section 402(1)] [F63 ; F64 ...

(c) a requirement imposed by the Alternative Investment Fund Managers Regulations 2013]. [F65 and

(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.]

F66 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F67 (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 [F68 qualifying 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 [F68 qualifying 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”.]

Textual Amendments

F49 Words in s. 384 heading substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(9) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F50 Words in s. 384(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(2)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F51 Words in s. 384(1) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(2)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F52 S. 384(2) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(16)(a)

F53 Words in s. 384(3) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(16)(b)

F54 S. 384(4) omitted (3.7.2016) by virtue of The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(16)(c)

F55 Words in s. 384(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(4)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F56 Words in s. 384(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(4)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F57 Words in s. 384(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(5) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F58 Words in s. 384(7)(a) inserted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 15

F59 Words in s. 384(7)(a) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(6)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F60 Words in s. 384(7)(a) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 72(2); 2020 c. 1, Sch. 5 para. 1(1)

F61 Word in s. 384(7) omitted (22.7.2013) by virtue of The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 29(a)

F62 Words in s. 384(7)(b) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(6)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F63 S. 384(7)(c) and word inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 29(b)

F64 Word in s. 384(7)(b) omitted (1.4.2014) by virtue of Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(4); S.I. 2014/377, art. 2(2)(c)

F65 S. 384(7)(d) and word inserted (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(4); S.I. 2014/377, art. 2(2)(c)

F66 S. 384(8) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(7) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F67 S. 384(9)-(13) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(8) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.

F68 Words in s. 384(10) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 72(3); 2020 c. 1, Sch. 5 para. 1(1)

Modifications etc. (not altering text)

C26 S. 384 modified (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(1)

C27 S. 384 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 18(3)

C28 S. 384 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 17(2)

C29 S. 384 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services Act 2012 (Consumer Credit) Order 2013 (S.I. 2013/1882), arts. 1(1), 3(10)

C30 S. 384 modified by S.I. 2002/1775, reg. 12(1)(1A) (as substituted (24.3.2015) by The Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015 (S.I. 2015/852), arts. 1(2), 2(3))

C31 S. 384 modified (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(1)(d) (with Pt. 4)

C32 S. 384 modified (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 82(13)

C33 S. 384 applied (with modifications) (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(7)(c)

C34 S. 384(5) extended (with modifications) (1.12.2001) by S.I. 2001/2657, arts. 1(1), 3 (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 384(5) extended (with modifications) (1.12.2001) by S.I. 2001/3083, arts. 1(2), 3; S.I. 2001/3538, art. 2(1)

385 Warning notices. U.K.

(1) If [F69 a 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 [F70 the regulator] proposes to require the person concerned to pay or distribute as mentioned in section 384(5).

Textual Amendments

F69 Words in s. 385(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 24(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F70 Words in s. 385(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 24(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C35 S. 385 excluded (1.12.2001) by S.I. 2001/3592, arts. 1(2), 61(6) (with art. 23(2))

C36 S. 385 applied (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(7)(d)

386 Decision notices. U.K.

(1) If the [F71 regulator] 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 [F72 regulator] 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.

Textual Amendments

F71 Word in s. 386(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 25 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F72 Word in s. 386(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 25 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C37 S. 386 excluded (1.12.2001) by S.I. 2001/3592, arts. 1(2), 61(6) (with art. 23(2))

C38 S. 386 applied (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(7)(e)

C39 S. 386(1) modified (1.12.2001) by S.I. 2001/3592, arts. 1(2), 70(2) (with art. 23(2))