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Exclusion clauses |
| Avoidance of exclusion clauses. |
227. Any provision of the trust deed of an authorised unit trust scheme is void in so far as it would have the effect of exempting the manager or trustee from liability for any failure to exercise due care and diligence in the discharge of his functions in respect of the scheme.
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Ending of authorisation |
| Revocation of authorisation order otherwise than by consent. |
228. - (1) An authorisation order may be revoked by an order made by the Authority if it appears to the Authority that-
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(a) one or more of the requirements for the making of the order are no longer satisfied; |
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(b) the manager or trustee of the scheme concerned has contravened a requirement imposed on him by or under this Act; |
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(c) the manager or trustee of the 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; |
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(d) no regulated activity is being carried on in relation to the scheme and the period of that inactivity began at least twelve months earlier; or |
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(e) none of paragraphs (a) to (d) applies, but it is desirable to revoke the authorisation order in order to protect the interests of participants or potential participants in the scheme. |
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(2) For the purposes of subsection (1)(e), the Authority may take into account any matter relating to-
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(b) the manager or trustee; |
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(c) any person employed by or associated with the manager or trustee in connection with the scheme; |
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(d) any director of the manager or trustee; |
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(e) any person exercising influence over the manager or trustee; |
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(f) any body corporate in the same group as the manager or trustee; |
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(g) any director of any such body corporate; |
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(h) any person exercising influence over any such body corporate. |
| Procedure. |
229. - (1) If the Authority proposes to make an order under section 228 revoking an authorisation order ("a revoking order"), it must give separate warning notices to the manager and the trustee of the scheme.
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(2) If the Authority decides to make a revoking order, it must without delay give each of them a decision notice and-
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(a) either of them may refer the matter to the Tribunal; but |
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(b) neither of them is to be treated as a third party for the purposes of section 349(2) or 350(2). |
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(3) If, having given warning notices, the Authority decides not to make a revoking order, it must give each of them a decision notice.
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| Requests for revocation of authorisation order. |
230. - (1) An authorisation order may be revoked by an order made by the Authority at the request of the manager or trustee of the scheme concerned.
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(2) The Authority may refuse a request to make an order under this section if it considers that-
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(a) the public interest requires that any matter concerning the scheme should be investigated before a decision is taken as to whether the authorisation order should be revoked; or |
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(b) revocation would not be in the interests of the participants or would be incompatible with a Community obligation. |
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(3) If the Authority proposes to refuse a request under this section, it must give separate warning notices to the manager and the trustee of the scheme.
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(4) If the Authority refuses the request, it must without delay give each of them a decision notice and-
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(a) either of them may refer the matter to the Tribunal; but |
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(b) neither of them is to be treated as a third party for the purposes of section 349(2) or 350(2). |
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Powers of intervention |
| Directions. |
231. - (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 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 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 122 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. |
232. - (1) If the Authority could give a direction under section 231, it may also apply to the court for an order-
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(a) removing the manager or the trustee, or both the manager and the trustee, of the scheme; and |
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(b) replacing the person or persons removed with a suitable person or persons nominated by the Authority. |
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(2) The Authority may nominate a person for the purposes of subsection (1)(b) only if it is satisfied that, if the order was made, the requirements of section 217(3) to (6) would be complied with.
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(3) If it appears to the Authority that there is no person it can nominate for the purposes of subsection (1)(b), it may apply to the court for an order-
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(a) removing the manager or the trustee, or both the manager and the trustee, of the scheme; and |
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(b) appointing an authorised person to wind up the scheme. |
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(4) On an application under this section the court may make such order as it thinks fit.
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(5) The court may, on the application of the Authority, rescind any such order as is mentioned in subsection (3) and substitute such an order as is mentioned in subsection (1).
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(6) 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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(7) The jurisdiction conferred by this section may be exercised by-
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(b) in Scotland, the Court of Session. |
