The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018

JurisdictionUK Non-devolved
CitationSI 2018/1253

2018 No. 1253

Financial Services And Markets

The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018

Made 28th November 2018

Coming into force in accordance with article 1(2) and (3)

The Treasury make the following Order in exercise of the powers conferred by sections 21(5), (6), (10B) and (12A)1, 22(1B)2, 419A(4), 419B3and 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 20004(“the 2000 Act”).

In the opinion of the Treasury, one of the effects of the following Order is that an activity which is not a regulated activity (within the meaning of the 2000 Act) will become a regulated activity.

In accordance with section 429(1), (3), (4) (d) and (e), (7A) and (7B)5of, and paragraph 26(2) of Schedule 2 to, the 2000 Act, a draft of this Order has been laid before and approved by a resolution of each House of Parliament.

1 Introductory provisions

PART 1

Introductory provisions

Citation, commencement, interpretation and extent
S-1 Citation, commencement, interpretation and extent

Citation, commencement, interpretation and extent

1.—(1) This Order may be cited as the Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018.

(2) This Order comes into force on the day after the day on which it is made for the purpose only of—

(a)

(a) enabling the Financial Conduct Authority—

(i) to make rules;

(ii) to give guidance;

(iii) to impose requirements or make directions;

(iv) to approve rules;

(v) to make a designating instrument pursuant to article 85;

(vi) to claim legal professional privilege or, in Scotland, confidentiality of communications pursuant to article 87; and

(b)

(b) enabling the Financial Ombudsman Service—

(i) to make rules;

(ii) to make standard terms; and

(iii) to claim legal professional privilege or, in Scotland, confidentiality of communications pursuant to article 87.

(3) This Order comes into force on 1st April 2019 for all other purposes.

(4) In this Order “the 2000 Act” means the Financial Services and Markets Act 2000.

(5) Subject to paragraph (6), this Order extends to England and Wales and Scotland.

(6) Articles 90, 93, 95, 96, 101, 102 and 103 extend to England and Wales only.

Carrying on a regulated claims management activity in Great Britain
S-2 Carrying on a regulated claims management activity in Great Britain

Carrying on a regulated claims management activity in Great Britain

2.—(1) A person is to be treated as carrying on a regulated claims management activity in Great Britain when the activity is carried on—

(a)

(a) by a person who is—

(i) an individual who is ordinarily resident in Great Britain; or

(ii) a person, other than an individual, who is constituted under the law of England and Wales or Scotland; or

(b)

(b) in respect of a claimant or pursuer, or potential claimant or potential pursuer who is—

(i) an individual who is ordinarily resident in Great Britain; or

(ii) a person, other than an individual, who is constituted under the law of England and Wales or Scotland.

(2) For the purposes of this article—

(a)

(a) a person is “ordinarily resident” in Great Britain if that person satisfies the requirements of the Statutory Residence Test as set out in Schedule 45 to the Finance Act 20136either—

(i) at the time of the facts giving rise to the claim or potential claim; or

(ii) at the time when the regulated claims management activity is carried out in respect of that claimant or pursuer or potential claimant or potential pursuer;

(b)

(b) the references to the “the UK” in the Statutory Residence Test in Schedule 45 are to be read as if they were expressed as references to “Great Britain”.

2 Amendments to secondary legislation made under the 2000 Act

PART 2

Amendments to secondary legislation made under the 2000 Act

The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001

The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001

S-3 The Financial Services and Markets Act 2000 (Regulated...

3. The Financial Services and Markets Act 2000 (Regulated Activities) Order 20017is amended as follows.

S-4 In article 4 (specified activities: general), after paragraph...

4. In article 4 (specified activities: general), after paragraph (2A)8insert—

S-2B

“2B The kinds of activity specified in Part 3B are specified for the purposes of section 22(1B) of the Act (and accordingly any activity of one of those kinds, when carried on by way of business in Great Britain, is a regulated activity).”.

S-5 In article 64 (agreeing to carry on specified kinds of...

5. In article 64 (agreeing to carry on specified kinds of activity) for “or Part 3A” substitute “, Part 3A or Part 3B”.

S-6 In article 72A (information society services), after paragraph...

6. In article 72A (information society services), after paragraph (1) insert—

S-1A

“1A For the purposes of paragraph (1), “activity” includes regulated claims management activities of a kind specified by articles 89G to 89M.”.

S-7 After Part 3A insert— PART 3B CLAIMS MANAGEMENT ACTIVITIES IN...

7. After Part 3A9insert—

PART 3B

CLAIMS MANAGEMENT ACTIVITIES IN GREAT BRITAIN

The activities

(89F) Specified kinds of claims management activity

(1)

(1) A claims management activity is a specified kind of activity when it is an activity specified in any of articles 89G to 89M.

(2)

(2) For the purposes of this Part—

(a) “claimant” includes, in civil proceedings in Scotland, a pursuer;

(b) “defendant” includes, in civil proceedings in Scotland, a defender;

(c) “personal injury claim” means a claim for personal injury within the meaning of the Civil Procedure Rules 199810in England and Wales and an action for damages for, or arising from, personal injuries within the meaning set out in section 8(7) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 201811in Scotland;

(d) “financial services or financial product claim” includes a claim made under section 75 of the Consumer Credit Act 197412;

(e) “housing disrepair claim” means a claim under section 11 of the Landlord and Tenant Act 198513or section 4 of the Defective Premises Act 197214in England and Wales or an application in respect of the repairing standard under section 22 of the Housing (Scotland) Act 200615, or claims in relation to the disrepair of premises under a term of a tenancy agreement or lease or under the common law relating to nuisance or negligence, but does not include claims for statutory nuisance under section 82 of the Environmental Protection Act 199016;

(f) “a claim for a specified benefit” means a claim for one of the following benefits—

(i) industrial injuries benefit, within the meaning given by section 94 of the Social Security Contributions and Benefits Act 199217;

(ii) any supplement or additional allowance, or increase of benefit or allowance to which a recipient of an industrial injuries benefit may be entitled under that Act or any other Act;

(iii) a benefit under a scheme referred to in paragraph 2 or 4 of Schedule 8 to that Act; or

(iv) a benefit under the Pneumoconiosis etc. (Workers’ Compensation) Act 197918.

(g) “criminal injury claim” means a claim under the Criminal Injuries Compensation Scheme established under the Criminal Injuries Compensation Act 199519;

(h) “employment related claim” includes a claim in relation to wages and salaries and other employment related payments and claims in relation to wrongful or unfair dismissal, redundancy, discrimination and harassment;

(i) “investigating” means carrying out an investigation into, or commissioning the investigation of, the circumstances, merits or foundation of a claim; and

(j) “representing” means representation in writing or orally, regardless of the tribunal, body or person before which or to whom the representation is made.

(3)

(3) A person is to be treated as carrying on a regulated claims management activity in Great Britain when the activity is carried on—

(a) by a person who is—

(i) an individual who is ordinarily resident in Great Britain; or

(ii) a person, other than an individual, who is constituted under the law of England and Wales or Scotland; or

(b) in respect of a claimant or potential claimant who is—

(i) an individual who is ordinarily resident in Great Britain; or

(ii) a person, other than an individual, who is constituted under the law of England and Wales or Scotland.

(4)

(4) For the purposes of this article—

(a) a person is “ordinarily resident” in Great Britain if that person satisfies the requirements of the Statutory Residence Test as set out in Schedule 45 to the Finance Act 201320either—

(i) at the time of the facts giving rise to the claim or potential claim; or

(ii) at the time when the regulated claims management activity is carried out in respect of that claimant or potential claimant;

(b) the references to the “UK” in the Statutory Residence Test in Schedule 45 are to be read as if they were expressed as references to “Great Britain”.

(89G) Seeking out, referrals and identification of claims or potential claims

(1)

(1) Each of the following is a specified kind of activity when carried on in relation to a claim of a kind specified in paragraph (2)—

(a) seeking out persons who may have a claim, unless that activity constitutes the communication of an invitation or inducement to engagement in claims management activity within the meaning of section 21 (restrictions on financial promotion)21of the Act;

(b) referring details of—

(i) a claim or potential claim; or

(ii) a claimant or potential claimant

to another person (including to a person having the right to conduct litigation); and

(c) identifying—

(i) a claim or potential claim; or

(ii) a claimant or potential claimant.

(2)

(2) The kinds of claim are—

(a) a personal injury claim;

(b) a financial services or financial product claim;

(c) a housing disrepair claim;

(d) a claim for a specified benefit;

(e) a criminal injury claim; and

(f) an...

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