Financial Regulation

11KBW members represent a wide range of firms, individuals, and regulators in the financial services industry. Our barristers act and advise in proceedings related to the Financial Conduct Authority, the Bank of England and the Financial Ombudsman Service.

They regularly advise on matters arising from FSMA and related instruments, and in recent years they have advised on the most high-profile, high-stakes matters in this field.

Members of chambers have written a leading book in this area, Conduct and Pay in the Financial Services Industry: The Regulation of Individuals, published in 2017 as part of the Lloyd’s Commercial Law Library and edited by Thomas Ogg and Richard Leiper KC. Updates to the book can be found here

Areas of Expertise:

Enforcement action against individuals: barristers at 11KBW have considerable expertise relating to the regulation of individuals in the financial services industry, particularly in relation to the approved persons regime, the senior managers regime and the certification regime.  Our members have been instructed in cases relating to LIBOR misconduct, market abuse, and prohibition orders in a regulatory or employment context.  Barristers at 11KBW have experience of international investigations involving the SEC, CFTC, and DoJ, and of international cooperation between regulators generally.  Our expertise in this area dovetails with our unrivalled employment law practice, enabling 11KBW to offer the full range of advice and representation to individuals subject to regulatory and disciplinary action, and in that regard we regularly advise on matters relating to regulatory references.

Remuneration: our members are particularly experienced in matters related to the Remuneration Code, malus, clawback, and the bonus cap.  Our expertise in this area is complimented by our experience in litigating issues such as penalty and restraint of trade, arising from our pre-eminent employment law practice.  Our members have appeared in the leading cases on penalties both generally and in the financial services industry context.

Banking regulation: our experience of advising on matters related to banking regulation powers, and government measures to provide support for banks, is second to none.  In particular, we advise on the Banking Consolidation Directive, powers under the Banking Act 2009 and the National Loans Act 1968, and the meaning and effect of the Banking Special Provisions Act 2008.

Enforcement action against firms and supervisory action: our members have experience relating to the exercise of the regulators’ OIVOP and OIREQ, skilled person and information requirement powers.  Our members are particularly well placed to advise in relation to potential judicial review proceedings arising out of enforcement and supervisory action, in addition to providing representation at the regulators’ domestic tribunals (such as the RDC) and in the Upper Tribunal.

The regulatory perimeter: our members are experienced in the regulators’ policing of the regulatory perimeter, and in advising firms whether they the activities they are undertaking or propose to undertake require authorisation by the FCA or PRA.  Our barristers have experience of the regulators’ powers to apply for injunctions, freezing orders and redress.  Particular issues that frequently call for advice include whether a product constitutes insurance; introducers; deposit taking; and collective investment schemes.

The Financial Ombudsman service: our members have acted for and against the FOS in relation to determinations, and we have acted in judicial reviews arising from such determinations.

Pensions: barristers at 11KBW have extensive experience of litigation arising from decisions of the Pensions Regulator and the Pensions Ombudsman.  This aspect of 11KBW’s practice compliments our members’ work in relation to the Local Government Pension Scheme, the various Civil Service Pension schemes, and the Pension Protection Fund.

Our barristers also have experience of a variety of matters arising under FSMA, including authorisations, changes of control, appointed representatives (particularly IFAs), issues relating to fees paid by firms to the regulators, consumer credit, and public law considerations arising therefrom (including inquiry work).  Members have also been involved in matters relating to private law liabilities arising from breach of FCA Handbook rules.

Examples of the cross-cutting nature of 11KBW’s work in this field include: advising the FCA on matters relating to the publication of information about the investigation into RBS, and simultaneously acting for an individual in disciplinary proceedings brought by the FCA and in his employment tribunal claim against his former employer.