ENFG App 1.8 Restitution orders

The FCA has power to apply to the court for a restitution order under section 382 of the Act and (in the case of market abuse) under section 383 of the Act. It also has an administrative power to require restitution under section 384 of the Act.

In deciding whether to exercise its powers to seek or require restitution, the FCA will consider all the circumstances of the case, including, but not limited to:

1. (1)

   whether quantifiable profits have been made;

2. (2)

   whether there are indefinable losses;

3. (3)

   the number of persons affected;

4. (4)

   FCA costs;

5. (5)

   whether redress is available through the Financial Ombudsman Service or the compensation scheme;

6. (6)

   whether redress is available through another regulator, such as the Takeover Panel;

7. (7)

   whether persons who have suffered losses are able to bring their own civil proceedings;

8. (8)

   whether the firm or unauthorised persons concerned are solvent;

9. (9)

   what other powers are available to the FCA, including to obtain a compulsory insolvency order against the firm or unauthorised person concerned, to apply to the court for the appointment of a receiver, obtain an administration order, winding up order or bankruptcy order against a firm or unauthorised person carrying out regulated activities in breach of the general prohibition; and

10. (10)

    the behaviour of the persons suffering loss.

In cases where it is appropriate to exercise its powers to obtain restitution from firms, the FCA will first consider using its own administrative powers under section 384 of the Act before considering taking court action.