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Powers of intervention |
| Directions. |
227. - (1) The Authority may give a direction under this section if it appears to the Authority that-
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(a) one or more of the requirements for the making of an authorisation order under section 213 declaring a scheme to be an authorised unit trust scheme are no longer satisfied; |
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(b) the manager or trustee of an authorised unit trust scheme has contravened, or is likely to contravene, a requirement imposed on him by or under this Act; |
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(c) the manager or trustee of such a scheme has, in purported compliance with any such requirement, knowingly or recklessly given the Authority information which is false or misleading in a material particular; or |
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(d) none of paragraphs (a) to (c) applies, but it is desirable to give a direction in order to protect the interests of participants or potential participants in such a scheme. |
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(2) A direction under this section may-
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(a) require the manager of the scheme to cease the issue or redemption, or both the issue and redemption, of units under the scheme on a date specified in the direction until such further date as is specified in that or another direction; |
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(b) require the manager and trustee of the scheme to wind it up by such date as is specified in the direction or, if no date is specified, as soon as practicable. |
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(3) If the authorisation order declaring a scheme to be an authorised unit trust scheme is revoked, the revocation does not affect any direction under this section which is then in force.
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(4) A direction may be given under this section in relation to a scheme in the case of which the authorisation order has been revoked if a direction under this section was already in force at the time of revocation.
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(5) If a person contravenes a direction under this section, section 120 applies to the contravention as it applies to a contravention mentioned in that section.
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(6) The Authority may, either on its own initiative or on the application of the manager or trustee of the scheme concerned, revoke or vary a direction given under this section if it appears to the Authority-
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(a) in the case of revocation, that it is no longer necessary for the direction to take effect or continue in force; |
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(b) in the case of variation, that the direction should take effect or continue in force in a different form. |
| Applications to the court. |
228. - (1) If the Authority has power to give a direction under section 227 in relation to an authorised unit trust scheme or, by virtue of subsection (4) of that section, in relation to a scheme which has been an authorised unit trust scheme, the Authority may apply to the court-
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(a) for an order removing the manager or trustee, or both the manager and trustee, of the scheme and replacing either or both of them with a person or persons nominated by the Authority and appearing to it to satisfy the requirements of section 213(2) to (5); or |
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(b) if it appears to the Authority that no, or no suitable, person satisfying those requirements is available, for an order removing the manager or trustee, or both the manager and trustee, and appointing an authorised person to wind the scheme up. |
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(2) On an application under this section the court may make such order as it thinks fit.
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(3) The court may, on the application of the Authority, rescind any such order as is mentioned in subsection (1)(b) and substitute such an order as is mentioned in subsection (1)(a).
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(4) The Authority must give written notice of the making of an application under this section to the manager and trustee of the scheme concerned.
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(5) The jurisdiction conferred by this section may be exercised by-
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(b) in Scotland, the Court of Session. |
| Procedure: giving directions and varying them otherwise than as requested. |
229. - (1) If the Authority proposes to-
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(a) give a direction under section 227, |
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(b) vary such a direction on its own initiative, or |
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(c) vary such a direction on the application of the manager or trustee of the scheme concerned, but otherwise than in accordance with that application,
it must (except where section 232 applies) give separate warning notices to the manager and trustee, setting out the terms of the direction or variation. |
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(2) If the Authority decides-
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(a) to give a direction under section 227, or |
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(b) to vary a direction as mentioned in subsection (1)(b) or (c),
it must without delay give separate decision notices to the manager and trustee of the scheme, setting out the terms of the direction or variation. |
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(3) If the Authority gives a decision notice, it is to be regarded as giving the direction or making the variation to which the notice relates (with effect from the date specified in the notice), and the notice has effect accordingly.
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(4) If the Authority decides to-
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(a) give a direction under section 227, or |
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(b) vary a direction as mentioned in subsection (1)(b) or (c),
the trustee or manager of the scheme may refer the matter to the Tribunal. |
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(5) Neither the manager nor the trustee of the scheme is to be treated as a third party for the purposes of section 338(2) or 339(2).
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(6) If, having given warning notices, the Authority decides not to give a direction, it must give each of them a decision notice.
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| Procedure: refusal to revoke or vary direction. |
230. - (1) If on an application under section 227(6) for a direction to be revoked or varied the Authority proposes to refuse to revoke or vary the direction, it must give the applicant a warning notice.
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(2) Section 338(2) does not apply in relation to the reasons given in the warning notice.
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(3) If the Authority refuses to revoke or vary the direction-
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(a) it must give the applicant a decision notice; and |
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(b) the applicant may refer the matter to the Tribunal. |
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(4) Section 339(2) does not apply in relation to the reasons given in the decision notice.
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| Procedure: revocation of direction and grant of request for variation. |
231. - (1) If the Authority decides on its own initiative to revoke a direction under section 227 it must give separate written notices of its decision to the manager and trustee of the scheme.
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(2) If on an application under section 227(6) for a direction to be revoked or varied the Authority decides to revoke the direction or vary it in accordance with the application, it must give the applicant written notice of its decision.
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(3) A notice under this section must specify the date on which the decision takes effect.
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(4) The Authority may publish such information about the revocation or variation, in such way, as it considers appropriate.
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| Procedure in cases of urgency. |
232. - (1) If the Authority considers that it should-
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(a) give a direction under section 227, |
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(b) vary such a direction on its own initiative, or |
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(c) vary such a direction on the application of the manager or trustee of the scheme concerned, but otherwise than in accordance with that application,
as a matter of urgency, it may do so by giving the manager and trustee of the scheme concerned a decision notice. |
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(2) The decision notice must-
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(a) set out the terms of the direction or variation; |
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(b) give the Authority's reasons for the exercise of its power under subsection (1); and |
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(c) specify a reasonable period (which may not be less than 28 days) within which the person to whom it is given may make representations to the Authority. |
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(3) The Authority must decide, within a reasonable period after the period for making representations has ended, whether to-
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(a) confirm or rescind its original decision; or |
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(b) give a different direction under section 227 (if the decision notice was given under subsection (1)(a)) or make a different variation (if it was given under subsection (1)(b) or (c)). |
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(4) If the Authority decides to confirm or rescind its original decision, it must give written notice of its decision to the manager and trustee of the scheme.
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(5) If the Authority decides to give a different direction or make a different variation it must give the manager and trustee a decision notice.
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(6) A decision notice under subsection (5) must set out the terms of the new direction or variation.
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(7) If the Authority gives a decision notice under subsection (1) or (5) it is to be regarded-
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(a) as giving the direction or making the variation to which the notice relates, and |
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(b) in the case of a notice under subsection (5) relating to a new direction, as revoking the existing direction under section 227,
with effect from the date specified in the notice, and the notice has effect accordingly. |
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(8) Section 339(2) does not apply in relation to the reasons given in a decision notice under subsection (1) or (5).
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(9) A person to whom a decision notice is given under subsection (1) or (5) may refer the matter to the Tribunal.
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(10) If-
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(a) a direction is given or varied as provided by subsection (1), |
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(b) a reference is made to the Tribunal under subsection (9), and |
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(c) no decision under subsection (3) is made before the reference is dealt with,
the Tribunal must determine whether the decision to give the direction or make the variation was (at the time it was made) reasonable in all the circumstances. |
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(11) In determining that question, the Tribunal must have regard to-
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(a) the risk, had the direction not been given or the variation made, to persons for whose protection it was given or made; and |
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(b) the likely effect of the direction or variation on the person making the reference. |
