A sign of things to come – e-bundling

The Family Court has issued recent guidance on the use of electronic bundles at

This is intended for financial remedies hearings but is useful guidance for anyone planning on working paperlessly or part paperlessly.

Most usefully, it considers the perfectly reasonable situation where counsel and the judge may work paperlessly but there is still an (identical!) paper copy for witness use.

It would be a great leap forward to promote this in the civil courts more generally especially for those who prefer to work electronically – especially for GDPR reasons – remembering that an encrypted device loss is a breach but one which is unlikely to require reporting.

FCA v Avacade – promoting or introducing?

The FCA is, unsurprisingly, pursuing significant proceedings against Avacade, a related company and its directors in relation to unregulated business.

This is an important case as it relates to the responsibility of those unregulated introducers who claim to be “introducers” but the FCA is pursuing as “promoters”.

The importance is that there is a narrow, bland exemption from the requirement to be regulated by the FCA when introducing a customer to a financial product. That is often typified as covering situations such as dental insurance leaflets in a dentist’s office.

Avacade however is alleged to have gone further and promoted to individuals that they transfer their pensions into SIPPs and then invest in the promoted investments (the FCA’s case summarised at p.85)

This is quite important as following SimplySure v Personal Touch Financial Services the threshold to cross into “arranging” (a different regulated activity) is very low and it will be important to see where the line is drawn for “promoting”.

The recent decision of Mr Adam Johnson QC (sitting as a Judge of the Chancery Decision) in FCA v Avacade [2020] EWHC 26 (Ch) concerned the application to adjourn the trial on ill health ground of one of the directors. Having dismissed this we can expect a trial within a window from 13 January 2020.

Rea v Rea – why you want a good solicitor to draft your will

Wills are immensely powerful documents and, at the stroke of a pen, dispose of all of a person’s worldly possessions. So a bit of care is useful when preparing them.

The judge in Rea v Rea [2019] EWHC 2434 (Ch) was highly complimentary of the solicitor (Mrs Sukul) in this case:

Mrs Sukul gave her evidence with clarity and professionalism, as is to be expected of a solicitor with years of experience. It was supported by detailed contemporaneous notes. Mrs Sukul of course has no personal interest in the outcome of this claim. It seems to me that Mrs Sukul approached her instructions from Mrs Rea throughout with consummate care and skill and in a thoroughly professional manner. She gave highly sensible advice in recommending that her client obtained a mental capacity assessment. She recognised that the 2015 Will represented such a significant departure from the 1986 Will that careful precautions needed to be taken to ensure that Mrs Rea understood the implications and knew what she was doing. She addressed the concerns that presented themselves to her by going to considerable lengths to satisfy herself that Mrs Rea was acting with full knowledge of the changes to her will and their consequences. She likewise ensured to her satisfaction that Mrs Rea was acting of her own volition and without any pressure being exerted on her by others. If this level of care and competence was applied in every case there would doubtless be fewer disputes about wills coming before the courts.

Breaking that down, the solicitor:

  • had detailed contemporaneous notes
  • took instructions carefully
  • advised on mental capacity and the risk of a challenge – so to obtain evidence to reduce this prospect
  • noted the issues arising when writing a radically new will which wrote children out
  • ensured that she was satisfied that her client was not being influenced by another

The praise from the judge is wholly deserved.

Against that independent evidential backgroud it is clear that the aggrieved childrens’ case was on the back foot.

That was borne out when their evidence was found, for two of them, to be unreliable; and for the third whilst honest it did not support the case they sought to bring.

The challenge therefore failed and the will writing out three children in favour of the one who cared for their mother was upheld.

Neocleouos v Rees – signing your land away by email

One of the protections in place for certain transactions is a requirement for “signed writing”. This case concerned a contract for sale of land.

This recent case considers an area where the law really hasn’t caught up yet – email signature blocks. In short, is an automated signature added by your email software enough to amount to a signature for legal purposes?

Neocleous says yes!

The judge helpfully considers prior cases on how far an individual has to go to “sign” an email. It was previously viewed that a person manually adding their name, or having their typist do so, was sufficient to “sign” – being intended to authenticate the document.

There are, unsurprisingly, also statutory issues to consider including the Electronic Communications Act 2000 (which gives effect to the E-Signatures Directive) and the Law Commission’s report on this issue. That report concludes that adding a typed signature is sufficient, as is clicking an “I accept” button on a website.

The judge took the view that “signature” had evolved and included the concept of an automatically added signature in Outlook. Especially as from the recipient’s perspective it is not possible to ascertain whether such a signature is manually added or automatic,

This was held intentional as it was known to the sender that this was done, as emphasised by the fact that his email ended with the signoff “Many thanks” and followed by the automatic signature.

This may be a surprise to some but commercially it seems to be an increasing occurrence and signed contracts are created regularly in this fashion.

The full case is at Neocleous v Rees [2019] EWHC 2462 (Ch)

Anderson v Sense – round two goes against the consumer

This is the first of two key decisions expected this year on the responsibility of “principals” for their “appointed representatives” under the Financial Services and Markets Act 2000.

This is a slightly odd arrangement which originates a long time ago and allows a business – the Principal – to appoint individuals or companies – Appointed Representatives – to sell financial products that require regulation. This was historically often done by, for example, insurance companies so that their tied brokers did not need to be separately regulated, of course a customer could go to a whole of market adviser who had to be regulated.

Now, it may seem odd that an Appointed Representative does not need to be regulated, but they only obtain this exemption from being directly regulated because their Principal accepts responsibility for anything done by them under their agreement.

This is important because in Anderson v Sense, Sense are the Principal and the 95 claimants were duped by Sense’s Appointed Representative – Midas – into a Ponzi scheme.

So far, so good, as Midas were Appointed Representatives, the Claimants say Sense are responsible (this is important as fraud tends to lead to insurance being avoided and Sense have the means to actually pay compensation).

Now the court initially rejected the claim on the various grounds it was brought and the Court of Appeal only considered section 39(3) – the statutory basis – and vicarious liability for tort.

The Court of Appeal rejected the notion that once the Principal has accepted responsibility for a generic kind of work, defined by reference to those permissions the Principal has, then even if the Appointed Representative strays from the approved list, then as long as the work is within the permissions granted to the Appointed Representative then the Principal is liable. This was on various basis but ultimately the interpretation of the provisions and the agreement between the Appointed Representative and Principal limited what the Appointed Representative could do to the terms of that agreement and therefore the Principal’s liability was limited to those limits it imposed. So the Appointed Representative undertaking other business was not covered.

The concept if vicarious liability was also considered. However, the Court of Appeal agreed with the trial judge that Midas was carrying on its own business not that of Sense.

One helpful note is that Sense sought to overturn the (now moot) finding that the Ponzi scheme was not a collective investment scheme. This was clearly dismissed and upholds the trend that a CIS will be found when its low threshold is met – even when what is sold is not what is being done as in the case of this fraudulent Ponzi scheme.

Whilst this was unsuccessful, there is mention in it that a question was left open with the Court of Appeal decided Frederick v Positive Solutions – and this similar case of a rogue Appointed Representative which has gone to the Supreme Court and a judgment is awaited!

Joining Trinity Chambers in Newcastle

I am delighted to announce that I have joined Trinity Chambers in Newcastle.

I’m joining the Business and Property Group and continuing with my work in relation to professional negligence, commercial disputes and property, along with my interest in financial services cases.

My new profile can be found at

I am still available across England for advice, advocacy and paperwork.

Mason v Godiva – a mis-sold mortgage?

(full case at

Mr & Mrs Mason were misled by Martyn Balm into a disastrous mortgage.

In 2008, they were sold on the idea of investing in property having sold up their family business and borrowed to obtain capital to start up this venture. Having obtained some funding and been advised (by Mr Balm through another business) as to a potential target site, they were advised on remortgaging the family home to extend the borrowings and invest into the venture.

At this time Mr Balm had been paid a fee in excess of £50,000 to locate the site and obtain a mortgage over the site; and stood to obtain further commissions in remortgaging the family home.

To do this Mr Balm misrepresented the Mason’s earnings, and Mr Mason spotted this when approving the application and required that it be corrected before submission. However it was never corrected.

Sadly, after this remortgaging, in 2011 the loan over the development property was called in and ultimately receivers sold the land and the shortfall on that loan was written off.

The Masons therefore did not have the asset or projected profit to pay off the borrowings invested in the property business.

Accordingly, the Masons sued the lenders for inappropriate lending. Unfortunately in this case, because Godiva’s processes met the standards required for self-certification at the time, and a regulated mortgage broker (Mr Balm) brokered the deal the court could not find that Godiva acted inappropriately or in breach of their duties as lender.

Because no case was brought against Mr Balm nothing is said about his responsibilities or his firm’s responsibilities.

Today, it would be almost impossible to obtain such a self-certified mortgage – because the rules have been made stronger after the financial problems of the last decade – and so cases like this should be rarer and rarer.

When looking at mis-selling cases it is vital to take early effective advice as the last paragraph of the judgment points out. Mr & Mrs Mason are, at 79 and 80 years old, facing repossession and a judgment against them for the outstanding sums.

One slight ray of hope is that the judge directed that a copy be sent to the FCA in order that they can consider the factual matters he determined in respect of Mr Balm’s conduct.

If you have a mis-selling claim and need advice call my clerks on 01823 247 247.

Liberty v Tancred – a rare glimpse inside a poor financial advisory firm

The Commercial Court has given some recent insight into what goes on behind the scenes at a poor financial advice firm – Liberty Partnership Ltd v Tancred [2018] EWHC 2707 (Comm)

Mr & Mrs Tancred ran GD Tancred Financial Services Ltd for many years and, in 2007, sold it to Liberty Partnership Ltd. After the sale a number of complaints arose from past business costing Liberty quite dearly.

When selling the business the Tancreds had to make warranties and assurances regarding the work they had done as this can affect the new owners. These are fairly ordinary warranties in this type of transaction and for a well run business do not present any major issue.

However, Mr & Mrs Tancred are alleged to have been less than forthcoming regarding complaints and regulatory compliance issues they had faced. This has had consequences for Liberty and would have affected the sale price.

The case heard so far is a preliminary issue to decide if the case has been brought inside the time limits. Liberty had to prove that the Tancreds wilfully concealed (or were otherwise fraudulent or dishonest) in respect of each matter complained of in order for the time limits not to apply and the claim to be brought. This is an ordinary feature of English law designed to ensure that the dishonest and fraudulent cannot rely upon a time bar arising out of their dishonesty or fraud. It is accepted that the standard of proof is unchanged from the ordinary civil standard but that there is a reluctance to find dishonesty without clear evidence. So the court determined that the important questions it had to answer were:

  1. Whether there was wilful concealment of the FSA letter dated 24 June 2005 and the letter in response dated 4 July 2005.
  2. Whether there was wilful concealment of the true extent of Ms McKenna’s involvement in the Company’s pension transfer transactions.
  3. Whether there was wilful concealment of breaches of a warranty stating that 360 Services had assumed compliance of all income drawdown products sold by the Company.
  4. Whether there was wilful concealment of a failure to comply with an FSA requirement that the Company should send a letter “in a form… signed off by an external compliance consultant, and to the satisfaction of the FSA, to all existing income withdrawal customers…”
  5. Whether there was wilful concealment of complaints alleged by the Claimant to have been made before the SPA by customers surnamed Aldous, Fox, Holling, Isaacs, Johnson, Smith and Vickers.
  6. Whether there was wilful concealment of matters which eventually gave rise to complaints made after the SPA by customers surnamed Allen, Bloodworth, Clarke, Drury, Holloway, Hornsby, Lingard, Smalley, Smith, Trout, Upex, Vesty and Vickers.
  7. Whether any claims which I may find to have been wilfully concealed under the various issues just identified will not only be outside the contractual limitation period (by reason of the wilful concealment) but will also entitle the Claimant to pursue other similar claims.”

This does mean that the court has to hear the substance of the case, that is whether or not the Tancreds are in breach of the sale agreement, but that a swathe of key findings have been made regarding what occurred. Ultimately the court allowed iii through v to proceed to full trial.

From a consumer perspective the exploration of how the Tancreds ran their business improperly is most useful. It is far from uncommon to see allegations that what the paper file provided by an advisor says against what the consumer says occurred. Mr Tancred was referred to by the judge (at paragraph 137) as a fast-talking salesman who failed to recognise that complaints were upheld because they were his fault and the FSA and consultants had identified problems with how he acted. The judge acknowledged (at paragraph 155) Mr Tancred’s utter incomprehension of his own fallability and noted the Mr Tancred would have wrongly rejected complaints which were later upheld by the FOS.

This type of fast-talking salesman is, fortunately, not too common these days. However, that kind of approach has in the past caused significant losses for clients. The lack of proper complaints handling has left many people feeling unable to do anything – when in fact the duty on a firm is to address the complaint and consider it properly, and then to signpost the FOS.

The complaints where Mr Tancred was wholly failing to acknowledge his culpability or the possibility he was wrong could not proceed as the court could not find he wilfully concealed something he did not acknowledge.

However when it came to consider the obligation for a pension transfer specialist to approve any pension transfer advice (point iii); and the later involvement of compliance consultants in relation to income drawdown advice (point iv) there was good objective evidence from the external parties which contradicted the Tancred’s case and the judge found that there had been deliberate concealment.

With both of these external consultants Mr Tancred was obliged to have them approve specialist types of advice. The judge found that whilst some cases were certainly sent to be approved that none of them actually received approval from the external consultant. Furthermore that a lump sum cheque was produced very late as if to pay the pension consultant for approving advice – when the Tancreds were claiming that individual payments had been made by cheque for each case. This was particularly unimpressive as it was found to be a step to create a false paper trail.

The other issue which will proceed is that the Tancreds were required to write to all their income drawdown clients in terms ordered by the FSA to tell them that they could rearrange their drawdown arrangements at no cost. Liberty brought several witnesses who were supposed to receive this letter – none of them had done.

Ultimately, the judge was compelled to find that where he could not discern wilful concealment that the claims were outside the time limit. Therefore the trial will be about the pension transfer consultant, the compliance consultants and the FSA disciplinary action mailshot

This is a particularly egregious example of misbehaviour but, shows that fast acting clients who pressed their complaints to the Financial Ombudsman did obtain effective redress.

If you are unsure about a complaint it is vital to get good advice from an experienced financial services and pensions barrister quickly to protect your position.

Time limits under international conventions are short – move swiftly or be left behind!

Warner v Scapa FlowCharters [2018] UKSC 52

Mr Warner was sadly involved in an accident on a dive charter and thereafter undertook a dive to 88 metres (far beyond the reach of most divers!). Sadly, Mr Warner encountered difficulties and could not be revived.

Claims were brought by Mr Warner’s widow on her own behalf and on behalf of their infant son. Sadly these were issued nearly 3 years after the incident and planned date of debarkation (the relevant date for a death at sea under the Athens Convention).

No appeal was brought to the Supreme Court against the strikeout of Mrs Warner’s claim; but the Inner House had allowed their son’s claim to proceed as it was extended by domestic law and within the longstop.

The Supreme Court considered carefully the ideas of “suspension” and “interruption” and took a purposive view as to what was meant by the allowance in the Athens Convention for time to be extended beyond the ordinary two year period.

Fortunately for minors the Prescription and Limitation (Scotland) Act 1973 – in similar terms to the Limitation Act 1980 – was found to be a domestic provision which engages that additional year and can therefore provide a further brief window to bring a claim.

Nevertheless, aviation and maritime claims are a potential minefield and should be considered very carefully.

Bringing the gig economy to an ancient profession

Today everyone wants jobs done swiftly and at a fixed up front fee. Ideally by the best person for the job.

Finding lawyers online isn’t exactly difficult. Finding one that can do what you need isn’t much harder but getting the job you want and no more done for a fixed fee seems somewhat elusive.

Well, unless you go to a barrister – whose business model has been fixed fees since before the phrase was invented.

This does mean you don’t get the long term direct support of a solicitor throughout a case, but when you just need a specific job doing you know you get that done.

Fortunately some solicitors are coming around to this idea, but for specific advice, drafting or advocacy barristers are well used to delivering a job at the right price.

PS yes, there are times you pay an hourly rate for a barrister but that’s much rarer.