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Financial services

14 March 2014
Issue: 7598 / Categories: Case law , Law digest , In Court
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Financial Conduct Authority v Capital Alternatives Ltd and others [2014] All ER (D) 03 (Mar)

Section 235 of the Financial Services and Markets Act 2000 was not to be construed narrowly, but conservatively. The application of s 235 depended on the specific facts of the case as determined by the court. It was settled law that the Financial Conduct Authority did not have to prove breaches of the Act beyond reasonable doubt. Further, that “arrangements” had a wide meaning and might include non-contractual arrangements which existed on their own or on parallel with contractual arrangements. Section 235 referred to the “purpose or effect” of the arrangements. What mattered was the way in which the scheme was run in practice, not contractual terms, which might not reflect reality. It would be possible for investors’ participation in important decisions to justify finding that the operator’s management was not “as a whole” within s 235(3)(b), while not being sufficient to amount to day-to-day control within s 235(2). Equally, there was no reason to exclude the complete absence of any investor

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MOVERS & SHAKERS

CBI South-East Council—Mike Wilson

CBI South-East Council—Mike Wilson

Blake Morgan managing partner appointed chair of CBI South-East Council

Birketts—Phillippa O’Neill

Birketts—Phillippa O’Neill

Commercial dispute resolution team welcomes partner in Cambridge

Charles Russell Speechlys—Matthew Griffin

Charles Russell Speechlys—Matthew Griffin

Firm strengthens international funds capability with senior hire

NEWS
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James Naylor of Naylor Solicitors dissects the government’s plan to outlaw upward-only rent review (UORR) clauses in new commercial leases under Schedule 31 of the English Devolution and Community Empowerment Bill, in this week's NLJ. The reform, he explains, marks a seismic shift in landlord-tenant power dynamics: rents will no longer rise inexorably, and tenants gain statutory caps and procedural rights
Writing in NLJ this week, James Harrison and Jenna Coad of Penningtons Manches Cooper chart the Privy Council’s demolition of the long-standing ‘shareholder rule’ in Jardine Strategic v Oasis Investments
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