S&B Consultancy Services Ltd v Bourn & Anors [2022] EWHC 2359 (Comm) (20 September 2022)

S&B Consultancy Services Ltd v Bourn & Anors [2022] EWHC 2359 (Comm) (20 September 2022)

The application raises a novel point of law regarding the scope of 'performance' under section 26(3) FSMA, which has not been determined in previous cases. It is not appropriate to summarily determine this issue on assumed facts in an area of developing jurisprudence. The Defendants' section 26 defence has a real prospect of success and should proceed to trial for full factual investigation and legal argument.

Citation
[2022] EWHC 2359 (Comm)
Parties
Claimant: S&B Consultancy Services Limited; Defendant: Robert Bourn; Defendant: Matthew Banks
Jurisdiction
England and Wales
Judgment Date
20 September 2022
Procedural Posture
Commercial Court Claim / Application for Strike Out And/or Summary Judgment
Outcome
Application dismissed
Legal Topics
Enforceability of Contracts Under FSMA, Summary Judgment, Strike Out Applications, Regulated Activities, Interpretation of Section 26 FSMA
Financial Services Law Contract Law Civil Procedure Enforceability of Contracts Under FSMA Summary Judgment Strike Out Applications Regulated Activities Interpretation of Section 26 FSMA

Case Brief

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Parties

S&B Consultancy Services Limited

Claimant

Robert Bourn

Defendant

Matthew Banks

Defendant

Procedural Posture

Commercial Court Claim / Application for Strike Out And/or Summary Judgment

Legal Issues

  1. 1 Whether the Introductory Agency Agreement (IAA) is unenforceable under section 26 of the Financial Services and Markets Act 2000 (FSMA) due to alleged regulated activities by the Claimant in breach of section 19 FSMA
  2. 2 Whether the performance of the IAA constituted or was part of the regulated activity for the purposes of section 26(3) FSMA
  3. 3 Whether the defence based on section 26 FSMA has a real prospect of success and should proceed to trial

Ratio Decidendi

The application raises a novel point of law regarding the scope of 'performance' under section 26(3) FSMA, which has not been determined in previous cases. It is not appropriate to summarily determine this issue on assumed facts in an area of developing jurisprudence. The Defendants' section 26 defence has a real prospect of success and should proceed to trial for full factual investigation and legal argument.

Court Disposition

Application dismissed

Orders

  • Claimant's application for summary judgment and/or strike out of paragraphs 43 to 54 of the Defence is dismissed.