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Sipp provider hits back at FOS as court battle starts

Legal representatives for Berkeley Burke have claimed the Financial Ombudsman Service has misapplied the law to the Sipp provider in a court battle that kicked off today.

The judicial review of a FOS decision against the provider is expected to have wide ranging implications, as it could establish with greater certainty whether Sipp providers have a duty of care to vet unregulated investments for their clients.

In 2014, the FOS ruled against Berkeley Burke for failing to carry out adequate due diligence on a £29,000 unregulated collective investment scheme for a client, called Mr Charlton.

Legal representatives for the claimant Berkeley Burke say FOS’s decision is legally incorrect as its ruling misapplies conduct of business rules to Sipp providers and could create due diligence obligations for them retrospectively.

QC Jonathan Kirk representing Berkeley Burke argues the COBS rule to execute the instruction of a client supersedes that of Sipp providers to check if the instruction is appropriate.

He also argues FOS is wrong to rely on former regulator the FSA’s thematic review of Sipp providers in 2009 to apply due diligence obligations to Berkeley Burke in the case of Mr Charlton who made his investment in 2011.

He said: “Principles themselves cannot become a rule making power because once they are used to create new obligation this undermines the existing rules and guidance [in the FCA handbook].

“We are not seeking to suggest a Sipp provider has no responsibility towards their client but the responsibility has to be proportionate.

“This is case is important because if FOS is right and the Sipp provider’s duty of care involves checking if a client’s investment is a good one and complies with domestic law, then this creates a new playing field for Sipp providers.

“The administrative work the Sipp providers must take is that much higher. FOS has analysed the law incorrectly in this context and we ask the judicial review to acknowledge this.”

Responding to Kirk’s initial submission, Judge Jacobs said: “I am not concerned with the fairness of FOS’s decision, but the lawfulness of it. A lot of this seems [the submission] to be about the nature of the decision and not the law.”

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Comments

There are 3 comments at the moment, we would love to hear your opinion too.

  1. Matthew Rodhouse 10th October 2018 at 5:37 pm

    The Supply of Goods and Services Act 1982 applies. From 1982 to the implementation of the Consumer Rights Act 2015 (which contains a similar clause), S.13 has stated that, in a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill. Cases can be identified where this duty is said to apply to financial services.

    So the question is what is reasonable care and skill on the part of the trustees in the circumstances of this SIPP?

    And why has the FCA issued a discussion paper asking whether financial services need a new duty of care when we already have the two mentioned above?

  2. I have every confidence that Judge Jacobs has read all the evidence and will find Berkeley Burke liable for being Irresponsible and negligent in bringing about failed unregulated investments outside of the FCA Regulated protocol of which would have protected Investors money. Dealing in Unregulated activities is not what Regulated Companies should be doing. Because of Berkeley Burke acts of greed, Investors have no way of getting their money back except for Berkeley Burke to be found liable and as they are the only regulated party involved, they will be held accountable.

    • If you apply this rule then no one would be able to purchase commercial property via their SIPP. Or any of the other varied assets that are allowable within a SIPP. The whole point is that a SIPP is “Self Invested” i.e. the investor decides for themselves what to invest in. “Caveat Emptor” should apply so if someone decides for themselves usually through greed or stupidity to invest into something unusual that is their gamble and their responsibility & they should have no right to FOS or FSCS.

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