The Financial Conduct Authority v Avacade Ltd & Ors [2021] EWCA Civ 1206 (04 August 2021)

The Financial Conduct Authority v Avacade Ltd & Ors [2021] EWCA Civ 1206 (04 August 2021)

The arrangements made by Avacade and AA with consumers constituted 'making arrangements' within Article 25(2) RAO for the purposes of s.19 FSMA, as they were indivisible and had as their purpose the transfer of pensions into SIPPs and subsequent investment in commission-generating products. The introduction exception in Article 33 did not apply as the required independent advice or discretion was not provided. The restitution orders were properly made as the regulated activity was not confined to step 2. New grounds of appeal based on Adams v Options UK Personal Pensions LLP could not be raised as they did not meet the stringent criteria of CPR 52.30.

Citation
[2021] EWCA Civ 1206
Parties
Claimant/respondent: The Financial Conduct Authority; Defendant/appellant: Avacade Limited (in liquidation) (trading as Avacade Investment Options); Defendant/appellant: Alexandra Associates (U.K.) Limited (trading as Avacade Future Solutions); Defendant/appellant: Craig Stanley Lummis; Defendant/appellant: Lee Edward Lummis; Defendant: Raymond George Fox
Jurisdiction
England and Wales
Judgment Date
04 August 2021
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal dismissed
Legal Topics
Regulated Activities, Financial Promotions, Restitution Orders, Personal Pensions, Sipps, Knowingly Concerned Liability, Statutory Interpretation
Financial Regulation Civil Procedure Regulated Activities Financial Promotions Restitution Orders Personal Pensions Sipps Knowingly Concerned Liability +1 more

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Parties

The Financial Conduct Authority

Claimant/respondent

Avacade Limited (in liquidation) (trading as Avacade Investment Options)

Defendant/appellant

Alexandra Associates (U.K.) Limited (trading as Avacade Future Solutions)

Defendant/appellant

Craig Stanley Lummis

Defendant/appellant

Lee Edward Lummis

Defendant/appellant

Raymond George Fox

Defendant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the appellants contravened s.19 FSMA by making arrangements within Article 25(2) RAO
  2. 2 Whether the schemes involved regulated activities under FSMA
  3. 3 Whether restitution orders were properly made under s.382 FSMA

Ratio Decidendi

The arrangements made by Avacade and AA with consumers constituted 'making arrangements' within Article 25(2) RAO for the purposes of s.19 FSMA, as they were indivisible and had as their purpose the transfer of pensions into SIPPs and subsequent investment in commission-generating products. The introduction exception in Article 33 did not apply as the required independent advice or discretion was not provided. The restitution orders were properly made as the regulated activity was not confined to step 2. New grounds of appeal based on Adams v Options UK Personal Pensions LLP could not be raised as they did not meet the stringent criteria of CPR 52.30.

Court Disposition

Appeal dismissed

Orders

  • Appeal by AA, CL, and LL dismissed; orders of the High Court and restitution orders affirmed.