Einde inhoudsopgave
Cross-border Enforcement of Listed Companies' Duties to Inform (IVOR nr. 87) 2012/6.7.2.1
6.7.2.1 Section 90 FSMA 2000 claim
mr.drs. T.M.C. Arons, datum 07-05-2012
- Datum
07-05-2012
- Auteur
mr.drs. T.M.C. Arons
- JCDI
JCDI:ADS364795:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Hudson (2008), para. 23-23. The measure of compensation under the s. 152 of the Financial Services Act 1986 was also based on the measure used for claims in tort.
South Australia Asset Management Corp v York Montague [1997] A.C. 191 with commentary from Alcock (1997).
Spreadex v Sekhon [2008] EWHC (Ch.) per Justice Morgan at paras 153-154: 'The next question is therefore: what loss was suffered by Dr Sekhon as a result of the contravention of COB 7.10.5 R? Prima facie, Dr Sekhon is right to say that the loss he has suffered as a result of the contravention involves comparing the position he would have been in if all of his open positions had been closed on 14th September 2006 with the position he was actually in where his positions remained open thereafter, in some cases until 22nd November 2006. The parties agree that there is no SAAMCO cap (see South Australia Asset Management Corporation v York Montague Ltd (SAAMCO) [1997] AC 191) which would disable Dr Sekhon from recovering for the adverse market movement after 14th September 2006. However, Spreadex submits that because the duty under COB 7.10.5 R is only owed to 'a private customer' and because Dr Sekhon became an intermediate customer, and therefore ceased to be a private customer, on 5th October 2006, Spreadex is only liable for the deterioration in Dr Sekhon's position between 14th September 2006 and 5th October 2006. This argument makes it necessary to consider whether Dr Sekhon did become an intermediate customer on 5th October 2006 and, if so, whether that means that his ability to claim his losses stops as at that date.'
Alcock (2011), p. 251.
Justification for this distinction is that the elements to be proven for rescission are more burdensome than the elements to be proven for liability on the basis of s. 90 FSMA 2000.
It is suggested in the legai literature that the appropriate measure of compensation in a claim based on section 90 FSMA 2000 is the same measure as applied to claims in tort.1 A common law claim for damages in tort of negligence, as will be discussed in section 6.7.2.3, is limited by reference to the scope of duty and foreseeability (SAAMCO-cap).2 In a claim for damages on the basis of section 150 FSMA 2000, the litigating parties agreed that there is no SAAMCO-cap.3 It is not very likely that the SAAMCO-cap does not apply for claims based on section 90 FSMA 2000.4 Section 90 does not seek to restore the claimant to the position which he would have had but for the misrepresentation (restitutio in integrum),5it holds the person responsible liable to compensate for losses incurred as a result of the misinformation. Concludingly, the measure of damages is the same as applied to claims in tort for negligence. Therefore, the recoverable losses are limited to foreseeable losses and losses that fall within the scope of duty owed to the claimant.