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CASS 6.1 Application

CASS 6.1.1 R RP

This chapter (the custody rules) applies to a firm:21

  1. (1)

    [deleted]2

    2
    1. (a)

      [deleted]2

      2
    2. (b)

      [deleted]2

      2
  2. (1A)

    2when it holds financial instruments belonging to a client in the course of its MiFID business;

    7
  3. (1B)

    2when it is safeguarding and administering investments, in the course of business that is not MiFID business;7

  4. (1C)

    when it is acting as trustee or depositary of an AIF; 7

    9
  5. (1D)

    when it is acting as trustee or depositary of a UCITS; and97

  6. (1E)

    in respect of any arrangement for a client to transfer full ownership of a safe custody asset to the firm which is:

    1. (a)

      in the course of, or in connection with, the firm'sdesignated investment business; and

    2. (b)

      for the purpose of securing or otherwise covering present or future, actual or contingent or prospective obligations, but the application of the custody rules to a firm under this paragraph is limited to the rules and guidance in CASS 6.1.6 R to CASS 6.1.9 G; and10

      9
  7. (1F)

    when it is a small AIFM carrying on excluded custody activities.10

  8. (2)

    [deleted]2

    2
CASS 6.1.1-A R RP

10In applying the custody rules to a small AIFM'sexcluded custody activities, any reference to a firm carrying on the regulated activities of safeguarding and administering investments, safeguarding and administering assets (without arranging) or arranging safeguarding and administration of assets includes those excluded custody activities that would, but for the exclusion in article 72AA of the RAO, amount to whichever of those regulated activities is referred to.

CASS 6.1.1A G RP

2The regulated activity of safeguarding and administering investments covers both the safeguarding and administration of assets (without arranging) andarranging safeguarding and administration of assets,5 when those assets are either safe custody investments or custody assets. A safe custody investment is, in summary, a designated investment which a firm receives or holds on behalf of a client. Custody assets include designated investments, and any other assets that the firm holds or may hold in the same portfolio as a designated investment held for or on behalf of a client.5

CASS 6.1.1B R RP
  1. (1)

    Firms to which the custody rules apply by virtue of CASS 6.1.1R (1B), (1D) or CASS 6.1.1R (1E) must also apply the custody rules to those custody assets which are not safe custody investments in a manner appropriate to the nature and value of those custody assets.10

  2. (2)

    Firms to which the custody rules apply by virtue of CASS 6.1.1R (1C) must also apply the custody rules:10

    1. (a)

      to those custody assets which are not AIF custodial assets but are safe custody investments; and

    2. (b)

      in a manner appropriate to the nature and value of those custody assets, to those custody assets which are neither AIF custodial assets nor safe custody investments.

CASS 6.1.1C G RP

2In accordance with article 42 of the Regulated Activities Order, a firm ("I") will not be arranging safeguarding and administration of assets if it introduces a client to another firm whose permitted activities include the safeguarding and administration of investments, or to an exempt person acting as such, with a view to that other firm or exempt person:

  1. (1)

    providing a safe custody service in the United Kingdom; or

  2. (2)

    arranging for the provision of a safe custody service in the United Kingdom by another person;

and the other firm, exempt person or other person who is to provide the safe custody service is not in the same group as I, and does not remunerate I.

CASS 6.1.2 G RP

Firms are reminded that dividends (actual or payments in lieu), stock lending fees and other payments received for the benefit of a client, and which are due to the clients,2 should be held in accordance with the client money chapter where appropriate.

2
CASS 6.1.3 G

[deleted]2

2

Business in the name of the firm

CASS 6.1.4 R RP

The custody rules do not apply where a firm carries on business in its name but on behalf of the client where that is required by the very nature of the transaction and the client is in agreement.

[Note: recital 26 to MiFID]

CASS 6.1.5 G RP

For example, this chapter does not apply where a firm borrows safe custody assets2 from a client as principal under a stock lending agreement.

2

Title transfer collateral arrangements

CASS 6.1.6 R RP
2 4
  1. (1)

    The custody rules do not apply where a client transfers full ownership of a safe custody asset to a firm for the purpose of securing or otherwise covering present or future, actual, contingent or prospective obligations.

    [Note: recital 27 to MiFID]

    4
  2. (2)

    4Excepted from (1) is a transfer of the full ownership of a safe custody asset:

    1. (a)

      belonging to a retail client;

    2. (b)

      whose purpose is to secure or otherwise cover that client's present or future, actual, contingent or prospective obligations under a contract for differences or6 a rolling spot forex contract that is a future, and in either case where that contract is6 entered into with a firm acting as market maker; and

    3. (c)

      which is made to that firm or to any other personarranging on its behalf.

CASS 6.1.6A R
  1. (1)

    4Subject to (2), where a firm makes arrangements for the purpose of securing or otherwise covering present or future, actual, contingent or prospective obligations of a retail client those arrangements must not provide for the taking of a transfer of full ownership of any of that client'ssafe custody assets.

  2. (2)

    The application of (1) is confined to the taking of a transfer of full ownership:

    1. (a)

      whose purpose is to secure or otherwise cover that retail client's obligations under a contract for differences or6a rolling spot forex contract that is a future, and in either case where that contract is6 entered into with a firm acting as market maker; and

    2. (b)

      which is made to that firm or to any other person arranging on its behalf.

CASS 6.1.6B R RP
  1. (1)

    9A firm must ensure that any arrangement relating to the transfer of full ownership of a client'ssafe custody asset to the firm for the purposes set out in CASS 6.1.6R (1) and CASS 6.1.6AR (1) is the subject of a written agreement made on a durable medium between the firm and the client.

  2. (2)

    Regardless of the form of the agreement in (1) (which may have additional commercial purposes), it must cover the client's agreement to:

    1. (a)

      the terms for the arrangement relating to the transfer of the client's full ownership of the safe custody asset to the firm;

    2. (b)

      any terms under which the ownership of the safe custody asset is to transfer from the firm back to the client; and

    3. (c)

      (to the extent not covered by the terms under (b)), any terms for the termination of:

      1. (i)

        the arrangement under (a); or

      2. (ii)

        the overall agreement in (1).

  3. (3)

    A firm must retain a copy of the agreement under (1) from the date the agreement is entered into and until five years after the agreement is terminated.

CASS 6.1.6C G RP

9The terms referred to in CASS 6.1.6BR (2)(b) may include, for example, terms under which the arrangement relating to the transfer of full ownership of the safe custody asset to the firm is not in effect from time to time, or is contingent on some other condition.

CASS 6.1.7 G

A title transfer financial collateral arrangement under the Financial Collateral Directive is a type of transfer of instruments to cover obligations where the financial instrument will not be regarded as belonging to the client.

CASS 6.1.8 G RP

Firms are reminded of the client's best interests rule, which requires them to act honestly, fairly and professionally in accordance with the best interests of their clients when structuring their business particularly in respect of the effect of that structure on firms' obligations under this chapter.

CASS 6.1.9 G RP

Firms are reminded that, in certain cases, the collateral rules apply where a firm receives collateral from a client in order to secure the obligations of the client.

Prime brokerage agreements

CASS 6.1.9A G RP

3A prime brokerage firm is reminded of the additional obligations in CASS 9.3.1 R which apply to prime brokerage agreements.

Affiliated companies - MiFID business2

CASS 6.1.10 G RP

The fact that a client is an affiliated company in respect of MiFID business2 does not affect the operation of the custody rules in relation to that client.

Affiliated companies - non-MiFID business2

CASS 6.1.10A G

[deleted]9

CASS 6.1.10B R RP

9In respect of a firm's business falling under CASS 6.1.1R (1B), the custody rules do not apply to the firm when it is safeguarding and administering investments on behalf of an affiliated company, unless:

  1. (1)

    the firm has been notified that the designated investment belongs to a client of the affiliated company; or

  2. (2)

    the affiliated company is a client dealt with at arm's length.

CASS 6.1.11 G

[deleted]2

2

Delivery versus payment transaction exemption9

CASS 6.1.12 R RP
  1. (1)

    Subject to (2) and CASS 6.1.12B R and with the written agreement of the relevant client, a9firm need not treat this chapter as applying in respect of a delivery versus payment transaction through a commercial settlement system if:9

    929
    1. (a)

      in respect of a client's purchase, the firm intends for the asset in question to be due to the client within one business day following the client's fulfilment of its payment obligation to the firm;9 or

      9
    2. (b)

      in respect of a client's sale, the firm intends for the asset in question to be due to the firm within one business day following the firm's fulfilment of its payment obligation to the client.9

      9
    9
  2. (2)

    If the payment or delivery by the firm to the client has not occurred by the close of business on the third business day following the date on which a firm makes use of the exemption under (1), the firm must stop using that exemption for the transaction.9

    9
  3. (3)

    If the period referred to in CASS 6.1.12R (2) has expired before such a delivery versus payment transaction through a commercial settlement system has settled, a firm may, until settlement and provided that doing so is consistent with the firm'spermissions and it complies with (4), segregate the firm's own money as client money (in accordance with the client money rules) of an amount equivalent to the value at which that safe custody asset is reasonably expected to settle instead of holding the client'ssafe custody assets (in accordance with the custody rules).9

  4. (4)

    Where a firm intends to segregate money as client money instead of the client'ssafe custody asset under (3) it must, before doing so, ensure that this would result in money being held for the relevant client in respect of the shortfall under CASS 7.7.2 R (statutory trust).9

  5. (5)

    Where a firm segregates an amount of client money instead of the client'ssafe custody assets under (3) it must also:

    1. (a)

      ensure the money is segregated under CASS 7.499 (Segregation of client money) and recorded as being held for the relevant client(s) under CASS 7.69 (Records, accounts and reconciliations);

    2. (b)

      keep a record of the actions the firm has taken under this rule which includes a description of the safe custody asset in question, identifies the relevant affected client, and specifies the amount of money that the firm has appropriated as client money to cover the value of the safe custody asset; and

    3. (c)

      update the record made under (5)(b) when the transaction in question has settled and the firm has re-appropriated the money.9

CASS 6.1.12A G RP
  1. (1)

    9The amount of client money a firm segregates for the purposes of CASS 6.1.12R (3) may be determined by the previous day's closing mark to market valuation of the relevant safe custody asset or, if in relation to a particular safe custody asset none is available, the most recent available valuation.

  2. (2)

    Where a firm is segregating money for the purposes of CASS 6.1.12R (3) it should, as regularly as necessary, and having regard to Principle 10:

    1. (a)

      review the value of the safe custody asset in question in line with (1); and

    2. (b)

      where the firm has found that the value of the safe custody asset has changed, adjust the amount of money it has appropriated to ensure that these monies are sufficient to cover the latest value of the safe custody asset.

CASS 6.1.12B R RP

9A firm cannot, in respect of a particular delivery versus payment transaction, make use of the exemption under CASS 6.1.12 R in either or both of the following circumstances:

  1. (1)

    it is not a direct member or participant of the relevant commercial settlement system, nor is it sponsored by such a member or participant, in accordance with the terms and conditions of that commercial settlement system;

  2. (2)

    the transaction in question is being settled by another person on behalf of the firm through an account held at the relevant commercial settlement system by that other person.

CASS 6.1.12C G RP

9Where a firm does not meet the requirements in CASS 6.1.12 R or CASS 6.1.12B R for use of the exemption in CASS 6.1.12 R, the firm is subject to the custody rules in respect of any safe custody asset it holds in connection with the delivery versus payment transaction in question.

CASS 6.1.12D G RP
  1. (1)

    9In line with CASS 6.1.12 R, where a firm receives a safe custody asset from a client in respect of a delivery versus payment transaction the firm is carrying out through a commercial settlement system in respect of a client's sale, and the firm has not fulfilled its payment obligation to the client by close of business on the third business day following the date of the client's fulfilment of its delivery obligation to the firm, the firm should consider whether the custody rules apply in respect of the safe custody asset pursuant to CASS 6.1.1R (1A) to CASS 6.1.1R (1D).

  2. (2)

    Upon settlement of a delivery versus payment transaction a firm is carrying out through a commercial settlement system (including when it is settled within the three business day period referred to in CASS 6.1.12 R), in respect of:

    1. (a)

      a client's purchase, the custody rules apply to the relevant safe custody asset the firm receives upon settlement; and

    2. (b)

      a client's sale, the client money rules will apply to the relevant money received on settlement.

CASS 6.1.12E R RP
  1. (1)

    9If a firm makes use of the exemption under CASS 6.1.12 R, it must obtain the client's written agreement to the firm's use of this exemption.

  2. (2)

    In respect of each client, the written agreement in (1) must be retained during the time that the firm makes use, or intends to make use, of the exemption under CASS 6.1.12 R in respect of that client'ssafe custody assets.

CASS 6.1.13 G

[deleted]2

2
CASS 6.1.14 G

[deleted]2

2

Temporary handling of safe custody assets2

CASS 6.1.15 G RP

The custody rules do not apply if a firm temporarily handles a safe custody asset2 belonging to a client. A firm should temporarily handle a safe custody asset2 for no longer than is reasonably necessary. In most transactions this would be no longer than one business day, but it may be longer or shorter depending upon the transaction in question. For example, when a firm executes an order to sell shares which have not been registered on a de-materialised exchange, handling documents for longer periods may be reasonably necessary. However, in the case of safe custody assets2 in bearer form, the firm is expected to handle them for less than one business day. When a firm temporarily handles safe custody assets,2 it is still obliged to comply with Principle 10 (Clients' assets).

2 2 2 2
CASS 6.1.16 G RP

When a firm temporarily handles a safe custody asset,2 in order to comply with its obligation to act in accordance with Principle 10 (Clients' assets), the following are guides to good practice:

2
  1. (1)

    a firm should keep the safe custody asset2 secure, record it as belonging to that client, and forward it to the client or in accordance with the client's instructions as soon as practicable after receiving it; and

    2
  2. (2)

    a firm should make and retain a record of the fact that the firm has handled that safe custody asset2 and of the details of the client concerned and of any action the firm has taken.

    2

Exemptions which do not apply to MiFID business

CASS 6.1.16A R RP

2The exemptions in CASS 6.1.16B R to CASS 6.1.16D G do not apply to a MiFID investment firm which holds financial instruments belonging to a client in the course of MiFID business.

CASS 6.1.16B R

[deleted]7

7

Managers of AIFs and UCITS

CASS 6.1.16BA G RP
10
  1. (1)

    The custody rules do not apply to a firm that is managing an AIF or managing a UCITS in relation to excluded custody activities, except where the firm is a small AIFM.10

  2. (2)

    The custody rules can apply to a firm that is managing an AIF or managing a UCITS in relation to activities that are not excluded custody activities. For example, where the firm:10

    1. (a)

      holds financial instruments belonging to a client in the course of its MiFID business (see CASS 6.1.1R (1A)); or

    2. (b)

      is safeguarding and administering investments, in the course of business that is not MiFID business (see CASS 6.1.1R (1B)).

Personal investment firms

CASS 6.1.16C R RP

2The custody rules do not apply to a personal investment firm when it temporarily holds a designated investment, other than in bearer form, belonging to a client, if the firm:

  1. (1)

    keeps it secure, records it as belonging to that client, and forwards it to the client or in accordance with the client's instructions, as soon as practicable after receiving it;

  2. (2)

    retains the designated investment for no longer than the firm has taken reasonable steps to determine is necessary to check for errors and to receive the final document in connection with any series of transactions to which the documents relate; and

  3. (3)

    makes a record, which must then be retained for a period of 5 years after the record is made, of all the designated investments handled in accordance with (1) and (2) together with the details of the clients concerned and of any action the firm has taken.

CASS 6.1.16D G RP

2Administrative convenience alone should not lead a personal investment firm to rely on CASS 6.1.16C R. Personal investment firms should consider what is in the client's interest and not rely on CASS 6.1.16C R as a matter of course.

Trustees and depositaries (except depositaries of AIFs)

CASS 6.1.16E R RP

2The specialist regime in CASS 6.1.16F R to CASS 6.1.16I G does not apply to a MiFID investment firm which holds financial instruments belonging to a client in the course of MiFID business.

CASS 6.1.16F R RP

2When a trustee firm or depositary acts as a custodian for a trust or collective investment scheme, (except for a firmacting as trustee or depositary of an AIF),7 and:

  1. (1)

    the trust or scheme is established by written instrument; and

  2. (2)

    the trustee firm or depositary has taken reasonable steps to determine that the relevant law and provisions of the trust instrument or scheme constitution will provide protections at least equivalent to the custody rules for the trust property or scheme property;

the trustee firm or depositary need comply only with the custody rules listed in the table below.

Reference

Rule

CASS 6.1.1 R to CASS 6.1.9 G and CASS 6.1.15 G to CASS 6.1.16C R

Application

CASS 6.1.16E R to CASS 6.1.16I G

Trustees and depositaries

CASS 6.1.22 G to CASS 6.1.24 G

General purpose

CASS 6.2.1 R and CASS 6.2.2 R

Protection of clients' safe custody assets

CASS 6.2.3 R and CASS 6.2.6 G

Registration and recording

CASS 6.2.7 R

Holding9

9 CASS 6.3.1 R to CASS 6.3.4B G9

9

Depositing safe custody assets with third parties

CASS 6.4.1 R and CASS 6.4.2 G

Use of safe custody assets

CASS 6.5.

Records, accounts and reconciliations

CASS 6.1.16G G RP

2The reasonable steps referred in CASS 6.1.16FR (2) could include obtaining an appropriate legal opinion to that effect.

CASS 6.1.16H R

[deleted]9

9
CASS 6.1.16I G RP

2A trustee firm or depositary that just arranges safeguarding and administration of assets may also take advantage of the exemption in CASS 6.1.16J R (Arrangers).

Depositaries of AIFs

CASS 6.1.16IA R RP
  1. (1)

    7Subject to (2), when a firm is acting as trustee or depositary of an AIF the firm need comply only with the custody rules in the table below:

    Reference

    Rule

    CASS 6.1.1 R, CASS 6.1.9 G, CASS 6.1.9A G and CASS 6.1.16IB G

    Application

    CASS 6.1.22 G to CASS 6.1.24 G

    General purpose

    CASS 6.2.3 R and CASS 6.2.4 R to CASS 6.2.6 G

    Registration and recording

    CASS 6.2.7 R

    Holding

    CASS 6.3.1R (1A) and CASS 6.3.1R (4)

    Arranging registration9

    CASS 6.5.1 R, CASS 6.5.2A R, CASS 6.5.3 R, CASS 6.5.13R (1A) and CASS 6.5.14 G

    Records, accounts and reconciliations

  2. (2)

    When a firm is acting as trustee or depositary of an AIF that is an authorised AIF the firm must, in addition to the custody rules in (1), also comply with the custody rules in the table below:

    Reference

    Rule

    CASS 6.1.1BR (2)10

    10

    Application

    CASS 6.5.4G (1A) to CASS 6.5.4G (4), CASS 6.5.5 R, CASS 6.5.7A G, CASS 6.5.8A G8 , CASS 6.5.9 G and CASS 6.5.15 G

    8

    Records, accounts and reconciliations

CASS 6.1.16IB G RP

7 Firms acting as trustee or depositary of an AIF are reminded of the obligations in FUND 3.11 (Depositaries) and Chapter IV (Depositary) of the AIFMD level 2 regulation which apply in addition to those in CASS 6.

CASS 6.1.16IC G RP

7A firm (Firm A) to which another firmacting as trustee or depositary of an AIF (Firm B) has delegated safekeeping functions in accordance9 with FUND 3.11.28 R9 (Delegation: safekeeping) will not itself be acting as trustee or depositary of an AIF for that AIF. CASS 6.1.16IA R will not apply to Firm A in respect of that AIF. However, Firm A may be safeguarding and administering investments in respect of that AIF.

9 9

Arrangers

CASS 6.1.16J R RP

2Only the custody rules in the table below apply to a firm when arranging safeguarding and administration of assets.

Reference

Rule

CASS 6.1.1 R to CASS 6.1.9 G and CASS 6.1.15 G to CASS 6.1.16B R

Application

CASS 6.1.16J R

Arrangers9

9 CASS 6.1.16K R

Records

CASS 6.1.22 G to CASS 6.1.24 G

General purpose

CASS 6.3.1R (1A) and CASS 6.3.2 G

Arranging for assets to be deposited with third parties

9 CASS 6.3.4A R and CASS 6.3.4B G

Third-party custody agreements

CASS 6.1.16K R RP

2When a firmarranges safeguarding and administration of assets, it must ensure that proper records of the arrangements9 are made and retained for a period of 5 years after they are made.

9
CASS 6.1.17 R
  1. (1)

    [deleted]2

    2
  2. (1A)

    [deleted]2

    2
  3. (2)

    [deleted]2

    2
  4. (3)

    [deleted]2

    2
CASS 6.1.18 G

[deleted]2

2
CASS 6.1.19 G

[deleted]2

2
CASS 6.1.20 G

[deleted]2

2
CASS 6.1.20A G

[deleted]2

2
CASS 6.1.21 R

[deleted]2

2

General purpose

CASS 6.1.22 G RP

Principle 10 (Clients' assets) requires a firm to arrange adequate protection for clients' assets when it is responsible for them. As part of these protections, the custody rules require a firm to take appropriate steps to protect safe custody assets2 for which it is responsible.

2
CASS 6.1.23 G RP

The rules in this chapter are designed primarily to restrict the commingling of client and the firm's assets and minimise the risk of the client'ssafe custody assets2 being used by the firm without the client's agreement or contrary to the client's wishes, or being treated as the firm's assets in the event of its insolvency.

2
CASS 6.1.24 G RP

The custody rules also, where relevant,2 implement the provisions of MiFID which regulate the obligations of a firm when it holds financial instruments belonging to a client in the course of its MiFID business.2

CASS 6.2 Holding of client assets

Requirement to protect clients' safe custody assets2

CASS 6.2.1 R RP

1A firm must, when holding safe custody assets2 belonging to clients, make adequate arrangements so as to safeguard clients' ownership rights, especially in the event of the firm's insolvency, and to prevent the use of safe custody assets2 belonging to a client on the firm's own account except with the client's express consent.

[Note: article 13(7) of MiFID]

2 2

Requirement to have adequate organisational arrangements

CASS 6.2.2 R RP

A firm must introduce adequate organisational arrangements to minimise the risk of the loss or diminution of clients' safe custody assets,2 or the rights in connection with those safe custody assets,2 as a result of the misuse of the safe custody assets,2 fraud, poor administration, inadequate record-keeping or negligence.

[Note: article 16(1)(f) of the MiFID implementing Directive]

2 2 2

Registration and recording of legal title2

CASS 6.2.3 R RP

To the extent practicable, a firm must effect appropriate registration or recording of legal title to a safe custody asset2 in the name of:

2
  1. (1)

    the client (or, where appropriate, the trustee firm), unless the client is an authorised person acting on behalf of its client, in which case it may be registered in the name of the client of that authorised person;

  2. (2)

    a nominee company which is controlled by:

    1. (a)

      the firm;

    2. (b)

      an affiliated company;

    3. (c)

      a recognised investment exchange; or

      5
    4. (d)

      a third party with whom financial instruments are deposited under CASS 6.3 (Depositing assets and arranging for assets to be deposited with third parties);3

  3. (3)

    any other third party if:

    1. (a)

      the safe custody asset2 is subject to the law or market practice of a jurisdiction outside the United Kingdom and the firm has taken reasonable steps to determine that it is in the client's best interests to register or record it in that way, or that it is not feasible to do otherwise, because of the nature of the applicable law or market practice; and

      2
    2. (b)

      the firm has notified the client in writing;

  4. (4)

    the firmif:

    1. (a)

      the safe custody asset2 is subject to the law or market practice of a jurisdiction outside the United Kingdom and the firm has taken reasonable steps to determine that it is in the client's best interests to register or record it in that way, or that it is not feasible to do otherwise, because of the nature of the applicable law or market practice; and

      2
    2. (b)

      the firm has notified the client if a professional client, or obtained prior written consent if a retail client.

CASS 6.2.3A R RP

4If:

  1. (1)

    the safe custody asset is an emission auction product that is a financial instrument; and

  2. (2)

    it is not practicable or possible for a firm to effect registration or recording of legal title in this asset in the manner set out in CASS 6.2.3 R,

the firm must register or record legal title in its name provided it has notified the client in writing.

CASS 6.2.4 R RP

A firm must accept the same level of responsibility to its client for any nominee company controlled by the firm with respect of any requirements of the custody rules.

CASS 6.2.5 R RP

A firm may register or record legal title to its own applicable assets2 in the same name as that in which legal title to a safe custody asset2 is registered or recorded, but only if:

2 2
  1. (1)

    the firm'sapplicable assets2 are separately identified in the firm's records from the safe custody assets;2 or

    22
  2. (2)

    the firm registers or records a safe custody asset2 in accordance with CASS 6.2.3R (4).

    2
CASS 6.2.6 G RP

A firm when complying with CASS 6.2.3R (3) or CASS 6.2.3R (4) will be expected to demonstrate that adequate investigations have been made of the market concerned by reference to local sources, which may include an appropriate legal opinion.

CASS 6.2.7 R RP

A firm must ensure that any documents of title to applicable assets2 in bearer form, belonging to the firm and which it holds in its physical possession, are kept separately from any document of title to a client's safe custody assets2 in bearer form.

2 2

Allocated but unclaimed safe custody assets6

CASS 6.2.8 G RP

6The purpose of CASS 6.2.10 R is to set out the requirements a firm must comply with if it chooses to divest itself of a client's unclaimed safe custody assets.

CASS 6.2.9 G RP

6Before acting in accordance with CASS 6.2.10 R to CASS 6.2.16 G, a firm should consider whether its actions are permitted by law and consistent with the arrangements under which the safe custody assets are held. These provisions relate to a firm's obligations as an authorised person.

CASS 6.2.10 R RP

6A firm may either (i) liquidate an unclaimed safe custody asset it holds for a client, at market value, and pay away the proceeds or (ii) pay away an unclaimed safe custody asset it holds for a client, in either case, to a registered charity of its choice provided:

  1. (1)

    this is permitted by law and consistent with the arrangements under which that safe custody asset is held;

  2. (2)

    it has held that safe custody asset for at least 12 years;

  3. (3)

    in the 12 years preceding the divestment of that safe custody asset, it has not received instructions relating to any safe custody assets from or on behalf of the client concerned;

  4. (4)

    it can demonstrate that it has taken reasonable steps to trace the client concerned and return that safe custody asset; and

  5. (5)

    the firm complies with CASS 6.2.14 R: the undertaking requirement.

CASS 6.2.11 E RP
  1. (1)

    6Taking reasonable steps in CASS 6.2.10R (4) includes following this course of conduct:

    1. (a)

      determining, as far as reasonably possible, the correct contact details for the relevant client;

    2. (b)

      writing to the client at the last known address either by post or by electronic mail to inform it:

      1. (i)

        of the name of the firm with which the client first deposited the safe custody asset in question;

      2. (ii)

        of the firm's intention to pay the safe custody asset to charity under CASS 6.2.10 R if it does not receive instructions from the client within 28 days;

    3. (c)

      where the client has not responded after the 28 days referred to in (b) attempting to communicate the information set out in (b) to the client on at least one further occasion by any means other than that used in (b) including by post, electronic mail, telephone or media advertisement;

    4. (d)

      subject to (e) and (f), where the client has not responded within 28 days following the most recent communication, writing again to the client at the last known address either by post or by electronic mail to inform them that:

      1. (i)

        as the firm received no instructions from the client, it will in 28 days pay the safe custody asset to charity under CASS 6.2.10 R; and

      2. (ii)

        an undertaking will be provided by the firm or a member of its group to pay to the client concerned a sum equal to the value of the safe custody asset at the time it was liquidated or paid away in the event of the client seeking to claim the safe custody asset in future;

    5. (e)

      if the firm has carried out the steps in (b) or (c) and in response has received positive confirmation in writing that the client is no longer at a particular address, the firm should not use that address for the purposes of (d);

    6. (f)

      if, after carrying out the steps in (a), (b) and (c), the firm has obtained positive confirmation that none of the contact details it holds for the relevant client are accurate or, if utilised, the communication is unlikely to reach the client, the firm does not have to comply with (d); and

    7. (g)

      waiting a further 28 days following the most recent communication under this rule before divesting itself of the safe custody asset under CASS 6.2.10 R.

  2. (2)

    Compliance with (1) may be relied on as tending to establish compliance with CASS 6.2.10R (4).

  3. (3)

    Contravention of (1) may be relied on as tending to establish contravention of CASS 6.2.10R (4).

CASS 6.2.12 G RP

6For the purpose of CASS 6.2.11E (1)(a), a firm may use any available means to determine the correct contact details for the relevant client, including telephoning the client, searching internal records, media advertising, searching public records, mortality screening, using credit reference agencies or tracing agents.

CASS 6.2.13 R RP

6Where a firm liquidates a safe custody asset under CASS 6.2.10 R, it must pay away the proceeds to charity as soon as practicable.

CASS 6.2.14 R RP

6Where a firm divests itself of a client'ssafe custody asset under CASS 6.2.10 R, it must comply with either (1)(a) or (1)(b) and, in either case, (2).

  1. (1)
    1. (a)

      The firm must unconditionally undertake to pay to the client concerned a sum equal to the value of the safe custody asset at the time it was liquidated or paid away in the event of the client seeking to claim the safe custody asset in future.

    2. (b)

      The firm must ensure that an unconditional undertaking in the terms set out in (1)(a)7 is made by a member of its group and there is suitable information available for relevant clients to identify the member of the group granting the undertaking.

  2. (2)

    Any undertaking under this rule must be:

    1. (a)

      authorised by the firm'sgoverning body where (1)(a)7 applies or the governing body of the group member where (1)(b)7 applies;

    2. (b)

      legally enforceable by any person that had a legally enforceable claim to the unclaimed safe custody asset in question at the time it was divested by the firm, or by an assign or successor in title to such claim; and

    3. (c)

      retained by the firm, and, where (1)(b)7 applies, by the group member, indefinitely.

CASS 6.2.15 R RP
  1. (1)

    6If a firm pays away a client's unclaimed safe custody assets to charity or liquidates a client's unclaimed safe custody assets and pays the proceeds to charity under CASS 6.2.10 R it must make and retain, or where the firm already has such records, retain:

    1. (a)

      records of all safe custody assets divested under CASS 6.2.10 R (including details of the value of each asset at that time and the identity of the client to whom the asset was allocated);

    2. (b)

      all relevant documentation (including charity receipts); and

    3. (c)

      details of the communications the firm had or attempted to make with the client concerned pursuant to CASS 6.2.10R (4).

  2. (2)

    Records in (1) must be retained indefinitely.

  3. (3)

    If a member of the firm'sgroup has provided an undertaking under CASS 6.2.14R (1)(b) then the records in (1) must be readily accessible to that group member.

Costs associated with divesting allocated but unclaimed client assets

CASS 6.2.16 G RP

6Any costs associated with the firm divesting itself of safe custody assets pursuant to CASS 6.2.10 R to CASS 6.2.15 R should be paid for from the firm's own funds, including:

  1. (1)

    any costs associated with the firm carrying out the steps in CASS 6.2.10R (4) or CASS 6.2.11 E; and

  2. (2)

    the cost of any insurance purchased by a firm or the relevant member of its group to cover any legally enforceable claim in respect of the assets divested under CASS 6.2.10 R.

CASS 6.3 Depositing assets and arranging for assets to be deposited with third parties2

CASS 6.3.1 R RP
  1. (1)

    1A firm may deposit safe custody assets2 held by it on behalf of its clients into an account or accounts opened with a third party, but only if it exercises all due skill, care and diligence in the selection, appointment and periodic review of the third party and of the arrangements for the holding and safekeeping of those safe custody assets.2

    22
  2. (1A)

    A firm which arranges the registration of a safe custody investment through a third party must exercise all due skill, care and diligence in the selection and appointment of the third party.2

  3. (2)

    A firm must take the necessary steps to ensure that any client'ssafe custody assets2 deposited with a third party, in accordance with this rule are identifiable separately from the applicable assets2 belonging to the firm and from the applicable assets2 belonging to that third party, by means of differently titled accounts on the books of the third party or other equivalent measures that achieve the same level of protection.

    222
  4. (3)

    When a firm makes the selection, appointment and conducts the periodic review referred to 2under this rule, it must take into account:

    1. (a)

      the expertise and market reputation of the third party; and

    2. (b)

      any legal requirements or market practices related to the holding of those safe custody assets2 that could adversely affect clients' rights.

      2
  5. (4)

    A firm must make a record of the grounds upon which it satisfies itself as to the appropriateness of its selection of a third party as required in this rule. The firm must make the record on the date it makes the selection and must keep it from the date of such selection until five years after the firm ceases to use the third party to hold safe custody assets2 belonging to clients.

    2

[Note: articles 16(1)(d) and 17(1) of the MiFID implementing Directive]

CASS 6.3.2 G RP

In discharging its obligations under this section, a firm should also consider, together with any other relevant matters:

  1. (1)

    once a safe custody asset2 has been lodged by the firm with the third party, the third party's performance of its services to the firm;

    2
  2. (2)

    the arrangements that the third party has in place for holding and safeguarding the safe custody asset;2

    2
  3. (3)

    current industry standard reports, for example Financial Reporting and Auditing Group (FRAG) 21 report or its equivalent;

  4. (4)

    the capital or financial resources of the third party;

  5. (5)

    the credit rating of the third party; and and

  6. (6)

    any other activities undertaken by the third party and, if relevant, any affiliated company.

CASS 6.3.3 G

[deleted]6

CASS 6.3.4 R RP
  1. (1)

    A firm must only deposit safe custody assets2 with a third party in a jurisdiction which specifically regulates and supervises the safekeeping of safe custody assets2 for the account of another person with a third party who is subject to such regulation.

    22
  2. (2)

    A firm must not deposit safe custody assets2 held on behalf of a client with a third party in a country that is not an EEA State (third country) and which does not regulate the holding and safekeeping of safe custody assets2 for the account of another person unless:

    22
    1. (a)

      the nature of the safe custody assets2 or of the investment services connected with those safe custody assets2 requires them to be deposited with a third party in that third country; or

      22
    2. (b)

      the safe custody assets2 are held on behalf of a professional client and the client requests the firm in writing to deposit them with a third party in that third country.

      2
  3. (3)

    [deleted]2

    2
    1. (a)

      [deleted]2

      2
    2. (b)

      [deleted]2

      2
      1. (i)

        [deleted]2

        2
      2. (ii)

        [deleted]2

        2
      3. (iii)

        [deleted]2

        2

[Note: article 17(2) and (3) of the MiFID implementing Directive]

Third-party custody agreements6

CASS 6.3.4A R RP

6A firm must have entered into a written agreement with any person with whom it deposits clients'safe custody assets under CASS 6.3.1 R, or with whom it arranges safeguarding and administration of assets which are clients'safe custody assets. This agreement must, at minimum:

  1. (1)

    set out the binding terms of the arrangement between the firm and the third party;

  2. (2)

    be in force for the duration of that arrangement; and

  3. (3)

    clearly set out the custody service(s) that the third party is contracted to provide.

CASS 6.3.4B G RP

6A firm should consider carefully the terms of any agreement entered into with a third party under CASS 6.3.4A R. The following terms are examples of the issues that should be addressed in these agreements (where relevant):

  1. (1)

    that the title of the account in the third party's books and records indicates that any safe custody asset credited to it does not belong to the firm;

  2. (2)

    that the third party will hold or record a safe custody asset belonging to the firm'sclient separately from any applicable asset belonging to the firm or to the third party;

  3. (3)

    the arrangements for registration or recording of the safe custody asset, if this will not be registered in the firm'sclient's name;

  4. (4)

    the restrictions over the circumstances in which the third party may withdraw assets from the account;

  5. (5)

    the procedures and authorities for the passing of instructions to, or by, the firm;

  6. (6)

    the procedures for the claiming and receiving of dividends, interest payments and other entitlements accruing to the firm'sclient; and

  7. (7)

    the provisions detailing the extent of the third party's liability in the event of the loss of a safe custody asset caused by the fraud, wilful default or negligence of the third party or an agent appointed by him.

CASS 6.3.5 R

Subject to CASS 6.3.6 R, in relation to a third party with which a firm deposits safe custody assets belonging to a client, a firm must ensure that any5 agreement with that third party relating to the custody of those assets does not include the grant to that party, or to any other person, of a lien or a right of retention or sale over the safe custody assets, or a right of set-off over any client money derived from those safe custody assets.3

5 5
CASS 6.3.6 R

A firm may conclude an agreement with a third party relating to the custody of safe custody assets which confers on that5 party, or on another person instructed by that party to provide custody services for those assets,5 a lien, right of retention or sale, or right of set-off in favour of that party or that other person only if that lien or right:

5 5 5
  1. (1)

    is confined to those safe custody assets held in an account with that third party or that other person and extends only to5 properly incurred charges and liabilities arising from the provision of custody services in respect of safe custody assets held in that account; or5

    55
  2. (2)

    arises under the operating terms of a securities depository, securities settlement system or central counterparty in whose account safe custody assets5 are recorded or held, and provided that it does so for the purpose only of facilitating the settlement of trades involving the assets held in that account; or5

    55
  3. (3)

    arises in relation to those safe custody assets5 held in a jurisdiction outside the United Kingdom,5 provided that:

    5
    1. (a)

      it does so as a result of local applicable law in that jurisdiction or is necessary for that firm to gain access to the local market in that jurisdiction;5 and

      5
    2. (b)

      in respect of each client to which those assets belong, either:5

      1. (i)

        the firm has taken reasonable steps to determine that holding those assets subject to that lien or right is in the best interests of that client; or5

      2. (ii)

        where a client is a professional client, the firm is instructed by that client to hold those assets in that jurisdiction notwithstanding the existence of that lien or right.5

CASS 6.3.7 G

5A firm will be considered to be acting on the instructions of its professional client under CASS 6.3.6R (3)(b)(ii) where:

  1. (1)

    the firm has received an individual instruction or has a standing instruction in its terms of business which results in it holding safe custody assets in the relevant jurisdiction; and

  2. (2)

    prior to acting on the instruction, the firm has expressly informed the client that holding that client'ssafe custody assets in the relevant jurisdiction will involve the granting of a lien or right over those assets. The firm may do this by discussing the lien or right individually with the client or by including reference to it in terms of business (which may themselves cross refer to a separate list of relevant jurisdictions to which CASS 6.3.6R (3)(a) applies maintained on the firm's website in a form accessible to clients) or by a similar method.

CASS 6.3.8 R

5For the purpose of CASS 6.3.6 R, references to a safe custody asset include any client money derived from that safe custody asset. Client money derived from a safe custody asset may be regarded as held in the same account as that safe custody asset even though that money and those assets may be recorded separately.

CASS 6.3.9 R RP

5 CASS 6.3.6 R does not permit a firm to agree to a right of set-off of the kind prohibited by either CASS 7.8.1 R or CASS 7.8.2 R in relation to client money.

CASS 6.4 Use of safe custody assets2

CASS 6.4.1 R RP
  1. (1)

    1A firm must not enter into arrangements for securities financing transactions in respect of safe custody assets2 held by it on behalf of a client or otherwise use such safe custody assets2 for its own account or the account of another client of the firm, unless:

    22
    1. (a)

      the client has given express prior consent to the use of the safe custody assets2 on specified terms; and

      2
    2. (b)

      the use of that client'ssafe custody assets2 is restricted to the specified terms to which the client consents.

      2
  2. (2)

    A firm must not enter into arrangements for securities financing transactions in respect of safe custody assets2 held by it on behalf of a client in an omnibus account held by a third party, or otherwise use safe custody assets2 held in such an account for its own account or for the account of another client unless, in addition to the conditions set out in (1):

    22
    1. (a)

      each client whose safe custody assets2 are held together in an omnibus account has given express prior consent in accordance with (1)(a); or

      2
    2. (b)

      the firm has in place systems and controls which ensure that only safe custody assets2 belonging to clients who have given express prior consent in accordance with the requirements of (1)(a) are used.

      2
  3. (3)

    For the purposes of obtaining the express prior consent of a retail client under this rule the signature of the retail client or an equivalent alternative mechanism is required.

  4. (4)

    [deleted]4

    4

[Note: article 19 of the MiFID implementing Directive]

CASS 6.4.1A G RP

5The FCA expects firms which enter into arrangements under CASS 6.4.1 R with retail clients to only enter into securities financing transactions and not otherwise use retail client'ssafe custody assets.

CASS 6.4.2 G RP

Firms are reminded of the client's best interests rule, which requires the firm to act honestly, fairly and professionally in accordance with the best interests of their clients. For any transactions involving retail clients carried out under this section the FCA expects that:5

5
  1. (1)

    the firm ensures that relevant collateral is provided by the borrower in favour of the client;

  2. (2)

    the current realisable value of the safe custody asset2 and of the relevant collateral is monitored daily; and

    2
  3. (3)

    the firm provides relevant collateral to make up the difference where the current realisable value of the collateral falls below that of the safe custody asset2 , unless otherwise agreed in writing by the client.

    2
CASS 6.4.3 R RP

Where a firm uses safe custody assets2 as permitted in this section, the records of the firm must include details of the client on whose instructions the use of the safe custody assets2 has been effected, as well as the number of safe custody assets2 used belonging to each client who has given consent, so as to enable the correct allocation of any loss.

[Note: article 19(2) of the MiFID implementing Directive]

2 2 2

CASS 6.5 Records, accounts and reconciliations

Records and accounts

CASS 6.5.1 R

1A firm must keep such records and accounts as necessary to enable it at any time and without delay to distinguish safe custody assets2 held for one client from safe custody assets2 held for any other client, and from the firm's own applicable assets.2

[Note: article 16(1)(a) of the MiFID implementing Directive]

2 2 2
CASS 6.5.2 R

A firm must maintain its records and accounts in a way that ensures their accuracy, and in particular their correspondence to the safe custody assets2 held for clients.

[Note: article 16(1)(b) of the MiFID implementing Directive]

2
CASS 6.5.2A R

3A firm must keep a copy of every executed client agreement that includes that firm's right to use safe custody assets for its own account, including in the case of a prime brokerage agreement the disclosure annex referred to in CASS 9.3.1 R.

Record keeping

CASS 6.5.3 R

Unless otherwise stated, a firm must ensure that any record made under the custody rules is retained for a period of five years starting from the later of:6

6
  1. (1)

    the date it was created; and6

  2. (2)

    (if it has been modified since the date it was created), the date it was most recently modified.6

Internal reconciliation of safe custody assets held for clients2

CASS 6.5.4 G
  1. (1)

    Carrying out internal reconciliations of the safe custody assets2 held for each client with the safe custody assets2 held by the firm and third parties is an important step in the discharge of the firm's obligations under CASS 6.5.2 R (Records and accounts) and,4 where relevant,2SYSC 4.1.1 R (General requirements)4 and SYSC 6.1.1 R (Compliance).4

    222
  2. (1A)

    For a firmacting as trustee or depositary of an AIF that is an authorised AIF, carrying out internal reconciliations of the safe custody assets held for each client with the safe custody assets held by the firm and third parties is an important step in the discharge of the firm's obligations under article 89(1)(b) (Safekeeping duties with regard to assets held in custody) of the AIFMD level 2 regulation and, where relevant, SYSC 4.1.1 R (General requirements) and SYSC 6.1.1 R (Compliance).5

  3. (2)

    A firm should perform such internal reconciliations:

    1. (a)

      as often as is necessary; and

    2. (b)

      as soon as reasonably practicable after the date to which the reconciliation relates;

    to ensure the accuracy of the firm's records and accounts.

  4. (3)

    Reconciliation methods which can be adopted for these purposes include the 'total count method', which requires that all safe custody assets2 be counted and reconciled as at the same date.

    2
  5. (4)

    If a firm chooses to use an alternative reconciliation method (for example the 'rolling stock method') it needs to ensure that:

    1. (a)

      all of a particular safe custody asset2 are counted and reconciled as at the same date; and

      2
    2. (b)

      all safe custody assets2 are counted and reconciled during a period of six months.

      2
CASS 6.5.5 R

[deleted]6

6

Reconciliations with external records

CASS 6.5.6 R

A firm must conduct on a regular basis, reconciliations between its internal accounts and records and those of any third parties by whom those safe custody assets2 are held.

[Note: article 16(1)(c) of the MiFID implementing Directive]

2
CASS 6.5.7 G

Where a firm deposits safe custody assets2 belonging to a client with a third party, in complying with the requirements of CASS 6.5.6 R, the firm should seek to ensure that the third party will deliver to the firm a statement as at a date or dates specified by the firm which details the description and amounts of all the safe custody assets2 credited to the account, and that this statement is delivered in adequate time to allow the firm to carry out the periodic reconciliations required in CASS 6.5.6 R.

2 2
CASS 6.5.7A G

5If a firmacting as trustee or depositary of an AIF that is an authorised AIF deposits safe custody assets belonging to a client with a third party, under article 89(1)(c) (Safekeeping duties with regard to assets held in custody) of the AIFMD level 2 regulation, the firm should seek to ensure that the third party will deliver to the firm a statement as at a date or dates specified by the firm which details the description and amounts of all the safe custody assets credited to the account, and that this statement is delivered in adequate time to allow the firm to carry out the periodic reconciliations required under article 89(1)(c) (Safekeeping duties with regard to assets held in custody) of the AIFMD level 2 regulation.

Frequency of external reconciliations

CASS 6.5.8 G

A firm should perform the reconciliation required by CASS 6.5.6 R:

  1. (1)

    as regularly as is necessary; and

  2. (2)

    as soon as reasonably practicable after the date to which the reconciliation relates;

to ensure the accuracy of its internal accounts and records against those of third parties by whom safe custody assets2 are held.

2
CASS 6.5.8A G

5A firmacting as trustee or depositary of an AIF that is an authorised AIF should perform the reconciliation under article 89(1)(c) (Safekeeping duties with regard to assets held in custody) of the AIFMD level 2 regulation:

  1. (1)

    as regularly as is necessary; and

  2. (2)

    as soon as reasonably practicable after the date to which the reconciliation relates;

to ensure the accuracy of its internal accounts and records against those of third parties by whom safe custody assets are held.

Independence of person conducting reconciliations

CASS 6.5.9 G

Whenever possible, a firm should ensure that reconciliations are carried out by a person (for example an employee of the firm) who is independent of the production or maintenance of the records to be reconciled.

2

Reconciliation discrepancies

CASS 6.5.10 R

A firm must promptly correct any discrepancies which are revealed in the reconciliations envisaged by this section, and make good, or provide the equivalent of, any unreconciled shortfall for which there are reasonable grounds for concluding that the firm is responsible.

CASS 6.5.11 G

Items recorded or held within a suspense or error account fall within the scope of discrepancies.

CASS 6.5.12 G

A firm may, where justified, conclude that another person is responsible for an irreconcilable shortfall despite the existence of a dispute with that other person about the unreconciled item. In those circumstances, the firm is not required to make good the shortfall but is expected to take reasonable steps to resolve the position with the other person.

Notification requirements

CASS 6.5.13 R

A firm must inform the FCA in writing without delay:

  1. (1)

    if it has not complied with, or is unable, in any material respect, to comply with the requirements in CASS 6.5.1 R, CASS 6.5.2 R or CASS 6.5.6 R; or

  2. (1A)

    if it is a firmacting as trustee or depositary of an AIF and has not complied with, or is materially unable to comply with, the requirements in CASS 6.5.1 R and/or articles 89(1)(b) or 89(1)(c) (Safekeeping duties with regard to assets held in custody) of the AIFMD level 2 regulation; or 5

  3. (2)

    if, having carried out a reconciliation, it has not complied with, or is unable, in any material respect, to comply with CASS 6.5.10 R.

Audit of compliance with the custody rules

CASS 6.5.14 G

Firms are reminded that the auditor of the firm has to confirm in the report submitted to the FCA under SUP 3.10 (Duties of auditors: notification and report on client assets) that the firm has maintained systems adequate to enable it to comply with the custody rules.4