Part 1 Flashcards
(18 cards)
Describe the restrictions a solicitor has concerning referrals to a separate business.
The SRA code of conduct restricts referrals, to a separate business connected to you which is not part of the practice. This applies to situations where you own or manage or are employed by a firm, and a separate business which either:
you own;
owned by;
actively participate in the provision of services, including any direct control over the business or any indirect control through another person. Or you are connected with and is not a solicitors practice regulated by the SRA.
How can a law firm be involved in financial services work in conveyancing.
Advising or arranging a regulated mortgage contract or general non investment insurance contract.
What is the next step if the investment is a specified investment?
Next step is to consider whether the proposed activity constitutes a specified activity under Part 2 of the RAO.
If the firm is carrying on business and conducting a specified activity in respect of a specified investment then it will be carrying out a regulated activity. They will only be able to do this work if an RAO exclusion applies, or is FCA exempt.
If the firm relies on a RAO exclusion, the investment activities will be excluded from the definition of regulated activities. The activities can be carried out without the need for FCA authorisation.
Explain the introducing exclusion
Article 33 RAO ( introducing). Simply introducing a client to an authorised person, or exempt person, with a view to that person ( as opposed to a representative) providing independent financial advice to the client, or undertaking the independent discretionary management of investments for the client, and with the solicitor, having no further contact in relation to the specified activity is covered by the Article 33 exclusion/.
Can a solicitor or law firm arrange, advise on or administer an RMC?
A law form could potentially undertake the specified activity of arranging or advising on a RMC- Article 25.
What are the consequences of carrying on business investment activities in breach of S19 of FMSA.
S23 FMSA makes it a criminal offence to carry on or purport to carry on investment business activities, in breach of S19 where no RAO exclusion applies unless the firm is FCA authorised or exempt. This may lead to unenforceability of agreements made the person in contravention of S19 or could lead to disciplinary action.
What are retention requirements for records of commissions?
6 years
What are the 3 stages of money laundering?
Placement, layering and intergration.
What is an appropriate consent defence?
Once the SAR is submitted, the NCA has 7 working days starting the next working day after the report is filed, to respond to the report. If they grant consent or do not respond within 7 days then transaction may proceed with disclosure defence is available.
What is the prejudicing the investigation offence?
Making a disclosure that is likely to prejudice the investigation which only applies to those outside the regulated sector. An offence is only committed if you know or suspect that the disclosure would or be likely to prejudice the investigation.
- Falsifying or concealing documents which are relevant to the investigation.
How should simplified due diligence be conducted?
Don’t need evidence of nature and purpose of business. Still need to conduct a risk assessment
What is a person deprived of liberty via arrest or detention entitled to under Article 5(4).
To take proceedings whereby the lawfulness of his detention shall be decided speedily by court and released if the detention is not lawful.
What grounds for discrimination are prohibited under Article 14
Sex, race, colour, language, religion, political opinion, property, birth status.
What happens if a single judge, does not declare an application, to the ECHTR inadmissible or strikes it out?
When ECHR examines application submitted by an individual it will be examined by a single judge. The judge will forward it to a committee of 3 judges who by unanimous vote may declare it inadmissible or strike it out without further examination or declare it admissible and render a judgement on merit if there is already well established case law. If no decision taken or judgement rendered a chamber of 7 judges shall decide on admissibility on its individual merits.
What is the margin of appreciation principle?
Judicial principle established by ECHR which is supposed to allow domestic governments some room for manoeuvre in satisfying their convention obligations. Contracting states are allowed a margin of appreciation, therefore they may restrict convention rights based on political, social and cultural traditions. This can be narrow or wide. Where it is narrow, the ECHR scrutinises the contracting states decision in detail. Where the margin is wide the ECHR ensures the contracting state acted in good faith.
How long do derogations subsist?
5 years from the date they came into force unless extended by the secretary of state for 5 years.
What are the 2 main questions when considering damages?
Suitability of award and quantum
