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| Restitution orders in cases of market abuse. |
333. - (1) The court may, on the application of the Authority, make an order under subsection (2) if it is satisfied that a person has engaged in market abuse and-
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(a) that profits have accrued to him as a result; or |
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(b) that one or more persons have suffered loss or been otherwise adversely affected as a result. |
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(2) The court may order the person concerned to pay to the Authority such sum as appears to the court to be just having regard-
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(a) in a case within paragraph (a) of subsection (1), to the profits appearing to the court to have accrued; |
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(b) in a case within paragraph (b) of that subsection, to the extent of the loss or other adverse effect; |
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(c) in a case within both of those paragraphs, to the profits appearing to the court to have accrued and to the extent of the loss or other adverse effect. |
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(3) Any amount paid to the Authority in pursuance of an order under subsection (2) must be paid by it to such qualifying person or distributed by it among such qualifying persons as the court may direct.
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(4) On an application under subsection (1) the court may require the person concerned to supply it with such accounts or other information as it may require for any one or more of the following purposes-
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(a) establishing whether any and, if so, what profits have accrued to him as mentioned in paragraph (a) of that subsection; |
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(b) establishing whether any person or persons have suffered any loss or adverse effect as mentioned in paragraph (b) of that subsection and, if so, the extent of that loss or adverse effect; and |
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(c) determining how any amounts are to be paid or distributed under subsection (3). |
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(5) The court may require any accounts or other information supplied under subsection (4) to be verified in such manner as it may direct.
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(6) The jurisdiction conferred by this section is exercisable by the High Court and the Court of Session.
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(7) Nothing in this section affects the right of any person other than the Authority to bring proceedings in respect of the matters to which this section applies.
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(8) "Qualifying person" means a person appearing to the court to be someone-
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(a) to whom the profits mentioned in paragraph (a) of subsection (1) are attributable; or |
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(b) who has suffered the loss or adverse effect mentioned in paragraph (b) of that subsection. |
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Restitution required by Authority |
| Power of Authority to require restitution. |
334. - (1) The Authority may exercise the power in subsection (3) if it is satisfied that an authorised person ("the person concerned") has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and-
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(a) that profits have accrued to him as a result of the contravention; or |
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(b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention. |
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(2) The Authority may exercise the power in subsection (3) if it is satisfied that a person ("the person concerned") has engaged in market abuse and-
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(a) that profits have accrued to him as a result of the market abuse; or |
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(b) that one or more persons have suffered loss or been otherwise adversely affected as a result of the market abuse. |
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(3) The power referred to in subsections (1) and (2) is a power to require the person concerned, in accordance with such arrangements as the Authority considers appropriate, to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the Authority to be just having regard-
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(a) in a case within paragraph (a) of subsection (1) or (2), to the profits appearing to the Authority to have accrued; |
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(b) in a case within paragraph (b) of subsection (1) or (2), to the extent of the loss or other adverse effect; |
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(c) in a case within paragraphs (a) and (b) of subsection (1) or (2), to the profits appearing to the Authority to have accrued and to the extent of the loss or other adverse effect. |
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(4) "Appropriate person" means a person appearing to the Authority to be someone-
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(a) to whom the profits mentioned in paragraph (a) of subsection (1) or (2) are attributable; or |
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(b) who has suffered the loss or adverse effect mentioned in paragraph (b) of subsection (1) or (2). |
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(5) "Relevant requirement" means-
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(a) a requirement imposed by or under this Act; and |
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(b) a requirement which is imposed by or under any other Act and whose contravention constitutes an offence in relation to which this Act confers power to prosecute on the Authority. |
| Warning notices. |
335. - (1) If the Authority proposes to exercise the power under section 334(3) in relation to a person, it must give him a warning notice.
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(2) A warning notice under this section must specify the amount which the Authority proposes to require the person concerned to pay or distribute as mentioned in section 334(3).
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(3) Section 338(2) does not require a copy of a warning notice under this section to be given to a person in relation to whom the Authority proposes to exercise, or has exercised, the power under section 334(3) in respect of the matter which identifies him.
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| Decision notices. |
336. - (1) If the Authority decides to exercise the power under section 334(3), it must give a decision notice to the person in relation to whom the power is exercised.
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(2) The decision notice must-
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(a) state the amount that he is to pay or distribute as mentioned in section 334(3); |
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(b) identify the person or persons to whom that amount is to be paid or among whom that amount is to be distributed; and |
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(c) state the arrangements in accordance with which the payment or distribution is to be made. |
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(3) Section 339(2) does not require a copy of the decision notice to be given to a person in relation to whom the Authority proposes to exercise, or has exercised, the power under section 334(3) in respect of the matter which identifies him.
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(4) If the Authority decides to exercise the power under section 334(3), the person in relation to whom it is exercised may refer the matter to the Tribunal.
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| Notice for payment. |
337. - (1) If the Authority exercises the power under section 334(3), it must give the person in relation to whom the power is exercised a notice under this section (a "notice for payment").
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(2) A notice for payment must-
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(b) require the person concerned, before the end of such period as may be specified in the notice, to make the payment or distribution set out in the notice in accordance the arrangements set out in the notice. |
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(3) The specified period may not be less than 14 days beginning with the date on which the notice for payment is given.
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(4) The obligation imposed on a person by virtue of subsection (2)(b) is enforceable, on the application of the Authority, by injunction or, in Scotland, by an order under section 45 of the Court of Session Act 1988.
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