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 (or an asset which would be a safe custody asset but for the arrangement)14 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, and14 the application of the custody rules to a firm under this paragraph is set out in14 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

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.

1. (1)

   Firms to which the custody rules apply by virtue of CASS 6.1.1R (1B) or (1E) 12must 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.

3. (3)

   12Firms to which the custody rules apply by virtue of CASS 6.1.1R(1D) must also apply them:

   1. (a)

      to those custody assets which are not UCITS 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 UCITS custodial assets nor safe custody investments.

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 5114 to MiFID]

1. (1)

   [deleted]14

   4
2. (2)

   [deleted]14

   4
3. (3)
   1. (a)

      A firm must not enter into a TTCA in respect of an asset belonging to a retail client. 14

   2. (b)

      Where a firm entered into a TTCA in respect of an asset belonging to a retail client (or one which would belong to a retail client but for the arrangement) before 3 January 2018, the firm must terminate that TTCA.14

      [Note: article 16(10) of MiFID and article 5(5) of the MiFID Delegated Directive]14

4. (4)

   Except for CASS 6.1.6BR to CASS 6.1.9G and provided that the TTCA is not with a retail client, the custody rules do not apply to a firm in respect of an asset which is subject to a TTCA and which would otherwise be a safe custody asset.

   [Note: recital 52 to MiFID]

1. (1)

   9A firm must ensure that any TTCA14 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.

1. (1)

   14A firm must properly consider and document the use of TTCAs in the context of:

   1. (a)

      the relationship between the client’s obligation to the firm; and

   2. (b)

      the safe custody assets subjected to TTCAs by the firm.

2. (2)

   A firm must be able to demonstrate that it has complied with the requirement under (1).

3. (3)

   When considering, and documenting, the appropriateness of the use of TTCAs, a firm must take into account the following factors:

   1. (a)

      whether there is only a very weak connection between the client’s obligation to the firm and the use of TTCAs, including whether the likelihood of a client’s liability to the firm is low or negligible;

   2. (b)

      the extent by which the amount of safe custody assets subject to a TTCA is in excess of the client’s obligations (including where the TTCA applies to all safe custody assets from the point of receipt by the firm) and whether the client might have no obligations at all to the firm; and

   3. (c)

      whether all the client’ssafe custody assets are made subject to TTCAs, without consideration of what obligation the client has to the firm.

4. (4)

   Where a firm uses a TTCA, it must highlight to the client the risks involved and the effect of any TTCA on the client’ssafe custody assets.

[Note: article 6 of the MiFID Delegated Directive]

1. (1)

   9If a client communicates to a firm that it wishes (whether pursuant to a contractual right or otherwise) to terminate a TTCA14 and the client's communication is not in writing, the firm must make a written record of the client's communication which also records the date the communication was received.

2. (2)

   A firm must keep a client's written communication, or a written record of the client's communication in (1), for five years, starting from the date the communication was received by the firm.

3. (3)
   1. (a)

      If a firm agrees to the termination of a TTCA14, it must notify the client of its agreement in writing. The notification must state when the termination is to take effect and whether or not the client'ssafe custody asset will be held under the custody rules by the firm thereafter.

   2. (b)

      If a firm does not agree to terminate a TTCA14, it must notify the client of its disagreement in writing.

4. (4)

   A firm must keep a written record of any notification it makes to a client under (3) for a period of five years, starting from the date the notification was made.

9If a TTCA14 is terminated, then the exemption at CASS 6.1.6R(4)14 no longer applies.

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.

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 9CASS 7.17.2R11 (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 9CASS 7.139 (Segregation of client money) and recorded as being held for the relevant client(s) under 9CASS 7.15 (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

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.

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.

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.

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.

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.

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.

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 16(8)10 of MiFID]

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 2(1)(f)10 of the MiFID Delegated Directive10]

Subject to CASS 6.2.3A-1R, a9firm must effect appropriate registration or recording of legal title to a safe custody asset2 belonging to a client8 in the name of:

1. (1)

   the client, 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;

   6
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 the firm is not a trustee firm but is prevented from registering or recording legal title in the way set out in (1) or (2) and provided that:6

   6
   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 firm if either:6

   1. (a)

      it is not a trustee firm but is prevented from registering or recording legal title in the way set out in (1), (2) or (3) and provided that:6

      6
      1. (i)

         the safe custody asset 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; and6

      2. (ii)

         the firm has notified the client if a professional client, or obtained prior written consent if a retail client.6

   2. (b)

      it is a trustee firm and is prevented from registering or recording legal title in the way set out in (1) or (2).6

      6

9A firm need not comply with CASS 6.2.3 R for any safe custody asset:

1. (1)

   that it has deposited with a third party in accordance with CASS 6.3 (Depositing assets and arranging for assets to be deposited with third parties); and

2. (2)

   for which, because of the arrangements with that third party for depositing the safe custody asset, it is not practicable for the firm to effect appropriate registration or recording of legal title itself.

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.

A firm must accept the same level of responsibility to its client for any nominee company controlled by the firm, or any nominee company controlled by an affiliated company of the firm,6 with respect of any requirements of the custody rules.

A firm may only6 register or record legal title to its own applicable asset6 in the same name as that in which legal title to a client's6safe custody asset2 is registered or recorded if the firm'sapplicable asset is separately identified from the client'ssafe custody asset in the firm's records, and either or both of the conditions in (1) and (2) are met.6

1. (1)

   The firm's holding of its own applicable asset arises incidentally to:6

   6
   1. (a)

      designated investment business it carries on for the account of any client; or6

   2. (b)

      steps taken by the firm to comply with an applicable custody rule;6

   and, in the case of either (a) or (b), the situation where registration or recording of legal title of the firm'sapplicable asset is in the same name as the client'ssafe custody asset under this rule remains in place only to the extent that it is reasonably necessary.6

2. (2)

   The registration or recording of legal title of the firm's own applicable asset in the same name as the client'ssafe custody asset is only as a result of the law or market practice of a jurisdiction outside of the United Kingdom.6

   6

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.

11 CASS 6.2.8G to CASS 6.2.16G do not apply to a firm following its failure.

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.

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.

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.

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.

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)

   [deleted]6

   6
3. (2)

   [deleted]6

   6
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 8related to the holding of those safe custody assets2 that could adversely affect clients' rights.

      2
5. (4)

   [deleted]6

   6

[Note: article 38(1) of the MiFID Delegated Directive8]

1. (1)

   6A firm must make a record of the grounds upon which it satisfies itself as to the appropriateness of its selection and appointment of a third party under CASS 6.3.1 R. The firm must make the record on the date it makes the selection or appointment and must keep it from that date until five years after the firm ceases to use the third party to hold safe custody assets belonging to clients.

2. (2)

   A firm must make a record of each periodic review of its selection and appointment of a third party that it conducts under CASS 6.3.1 R, its considerations and conclusions. The firm must make the record on the date it completes the review and must keep it from that date until five years after the firm ceases to use the third party to hold safe custody assets belonging to clients.

1. (1)

   Subject to (2), a6firm 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 person8 with a third party who is subject to such regulation.

   622
2. (2)

   A firm must not deposit safe custody assets2 held on behalf of a client with a third party in a third country8 which does not regulate the holding and safekeeping of safe custody assets2 for the account of another person8 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 country8; 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 country8.

      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
4. (4)

   The requirements under paragraphs (1) and (2) of this rule also apply when the third party has delegated any of its functions concerning the holding and safekeeping of safe custody assets to another third party.8

[Note: article 3(2)-(4) of the MiFID Delegated Directive8]

6A firm must take the necessary steps to ensure that any client'ssafe custody assets deposited with a third party are identifiable separately from the applicable assets belonging to the firm and from the applicable assets 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.

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.

1. (1)

   8A firm must not grant any security interest, lien or right of set-off to another person over clients’safe custody assets that enable that other person to dispose of the safe custody assets in order to recover debts unless condition (a) or (b) is satisfied:

   1. (a)

      those debts relate to:

      1. (i)

         one or more of the firm’sclients; or

      2. (ii)

         the provision of services by that other person to one or more of the firm’sclients; or

   2. (b)

      to the extent those debts relate to anything else then:

      1. (i)

         the security interest, lien or right of set-off is required by applicable law in a third country jurisdiction in which the safe custody assets are held;

      2. (ii)

         the firm discloses information to the client so that the client is informed of the risks associated with these arrangements; and

      3. (iii)

         the firm has taken reasonable steps to determine that holding safe custody assets subject to that security interest, lien or right of set-off is in the best interests of the firm’sclients.

2. (2)

   Where security interests, liens or rights of set-off are granted by a firm over safe custody assets, or where the firm has been informed that they are granted, these must be recorded in client contracts and the firm’s own books and records to make the ownership status of safe custody assets clear, such as in the event of an insolvency.

[Note: article 2(4) of the MiFID Delegated Directive]

5 CASS 6.3.6AR 9 does not permit a firm to agree to a third party having any recourse or right against client money in a client bank account or standing to the credit of a client transaction account of the kind referred to in:7

1. (1)

   paragraph (d) of CASS 7 Annex 2R; or7

2. (2)

   paragraph (e) of CASS 7 Annex 3R; or7

3. (3)

   paragraph (e) of CASS 7 Annex 4R.7

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 any other person or6client 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 maintained6 by a third party, or otherwise use safe custody assets2 held in such an account for its own account or for the account of any other person6 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 (1)(a) are so6 used.

      2
3. (3)

   For the purposes of obtaining the express prior consent of a 6client under this rule, the consent must be clearly evidenced in writing and6 the signature of the client6 or an equivalent alternative means of affirmative execution6 is required.

4. (4)

   [deleted]4

   4

[Note: article 5(1) and (2) of the MiFID Delegated Directive6]

6A firm must take appropriate measures to prevent the unauthorised use of safe custody assets for its own account or the account of any other person, such as:

1. (1)

   the conclusion of agreements with clients on measures to be taken by the firm in case the client does not have enough provision on its account on the settlement date, such as borrowing of the corresponding securities on behalf of the client or unwinding the position;

2. (2)

   the close monitoring by the firm of its projected ability to deliver on the settlement date;

3. (3)

   the putting in place of remedial measures if the firm cannot deliver on the settlement date; and

4. (4)

   the close monitoring and prompt requesting of undelivered securities outstanding on the settlement day and beyond.

[Note: article 5(3) of the MiFID Delegated Directive]

6A firm must adopt specific arrangements for all clients to ensure that the borrower of clientsafe custody assets provides the appropriate collateral and that the firm monitors the continued appropriateness of such collateral and takes the necessary steps to maintain the balance with the value of the clientsafe custody assets.

[Note: article 5(4) of the MiFID Delegated Directive]

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 5(2), second sub-paragraph of the MiFID Delegated Directive6]

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

A firm must maintain its records and accounts in a way that ensures their accuracy, and in particular their correspondence to the safe custody assets held for clients and that they may be used as an audit trail6.

A firm must maintain a client-specific safe custody asset record.

A 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 (see CASS 6.4.1 R), including in the case of a prime brokerage agreement the disclosure annex referred to in CASS 9.3.1 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:

1. (1)

   the date it was created; and

2. (2)

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

For each internal custody record check, each physical asset reconciliation and each external custody reconciliation carried out by a firm, it must make a record including:

1. (1)

   the date it carried out the relevant process;

2. (2)

   the actions the firm took in carrying out the relevant process; and

3. (3)

   a list of any discrepancies the firm identified and the actions the firm took to resolve those discrepancies.

7 CASS 6.6.11R does not apply to a firm following its failure.

1. (1)

   A firm must perform an internal custody record check:

   1. (a)

      subject to paragraph7 (2), as regularly as is necessary but without allowing more than one month to pass between each internal custody record check; and

   2. (b)

      as soon as reasonably practicable after the date to which the internal custody record check relates.

2. (2)

   A firm that holds no safe custody assets other than physical safe custody assets must perform an internal custody record check as regularly as necessary but, in any case, no less often than its physical asset reconciliations under CASS 6.6.22 R.

A firm must perform an internal custody record check using either the internal custody reconciliation method or the internal system evaluation method. It must not use a combination of these methods.

A firm must only use its internal records (for example its depot and client-specific ledgers for safe custody assets or other internal accounting records) in order to perform an internal custody record check.

A firm may only use the internal custody reconciliation method if:

1. (1)

   it separately maintains an aggregate safe custody asset record and a client-specific safe custody asset record; and

2. (2)

   its aggregate safe custody asset record and its client-specific safe custody asset record are capable of being compared.

The internal custody reconciliation method requires a firm to perform a comparison between its aggregate safe custody asset record and its client-specific safe custody asset record, as at the date of the internal custody record check.

The internal system evaluation method requires a firm to:

1. (1)

   establish a process that evaluates:

   1. (a)

      the completeness and accuracy of the firm's internal records and accounts of safe custody assets held by the firm for clients, in particular whether sufficient information is being completely and accurately recorded by the firm to enable it to:

      1. (i)

         comply with CASS 6.6.4 R; and

      2. (ii)

         readily determine the total of all the safe custody assets that the firm holds for its clients; and

   2. (b)

      whether the firm's systems and controls correctly identify and resolve all discrepancies in its internal records and accounts of safe custody assets held by the firm for clients;

2. (2)

   run the evaluation process established under (1) on the date of each internal custody record check; and

3. (3)

   promptly investigate and, without undue delay, resolve any causes of discrepancies that the evaluation process reveals.

7 CASS 6.6.22R does not apply to a firm following its failure.

A firm that holds physical safe custody assets must perform a physical asset reconciliation for all the physical safe custody assets it holds for clients:

1. (1)

   as regularly as is necessary but without allowing more than six months to pass between each physical asset reconciliation; and

2. (2)

   as soon as reasonably practicable after the date to which the physical asset reconciliation relates.

When performing a physical asset reconciliation a firm must:

1. (1)

   count all the physical safe custody assets held by the firm for clients as at the date to which the physical asset reconciliation relates; and

2. (2)

   compare the count in (1) against what the firm's internal records and accounts state as being in the firm's possession as at the same date.

A firm must perform each physical asset reconciliation under CASS 6.6.24 R using the total count method or the rolling stock method.

If a firm completes a physical asset reconciliation in a single stage, such that the firm:

1. (1)

   performs a single count under CASS 6.6.24R (1) which encompasses all the physical safe custody assets held by the firm for clients as at the date to which the physical asset reconciliation relates; and

2. (2)

   compares that count against the firm's internal records and accounts in accordance with CASS 6.6.24R (2);

then the firm will have used the total count method for that physical asset reconciliation.

If a firm completes a physical asset reconciliation in two or more stages, such that the firm:

1. (1)

   performs two or more counts under CASS 6.6.24R (1) (each on a separate occasion and relating to a different stock line or group of stock lines forming part of the firm's overall holdings of physical safe custody assets) which, once all of the counts are complete, encompass all the physical safe custody assets held by the firm for clients; and

2. (2)

   compares each of those counts against the firm's internal records and accounts in accordance with CASS 6.6.24R (2);

then the firm will have used the rolling stock method for that physical asset reconciliation.

1. (1)

   If a firm wishes to use the rolling stock method to perform a physical asset reconciliation it must first establish and document in writing its reasons for concluding that the way in which it will carry out its physical asset reconciliations is adequately designed to mitigate the risk of the firm's records being manipulated or falsified.

2. (2)

   A firm must retain any documents created under (1) for a period of at least five years after the date it ceases to use the rolling stock method to perform its physical asset reconciliation.

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

In CASS 6.6.34 R, the third parties whose records and accounts a firm is required to reconcile its own internal records and accounts with must include:

1. (1)

   the third parties with which the firm has deposited clients'safe custody assets;

   3
2. (2)

   where the firm has not deposited a client'ssafe custody asset with a third party:

   3
   1. (a)

      the third parties responsible for the registration of legal title to that safe custody asset; or3

      3
   2. (b)

      a person acting as an operator for the purposes of any of the relevant overseas USRs if:3

      1. (i)

         the safe custody asset is an uncertificated unit of a security governed by any of the relevant overseas USRs; and3

      2. (ii)

         the firm has reasonable grounds to be satisfied that the records of that person take into account all instructions issued by that person which require an issuer to register on a register of securities a transfer of title to any uncertificated units.3

7 CASS 6.6.37R does not apply to a firm following its failure.

A firm must conduct external custody reconciliations:

1. (1)

   as regularly as necessary but allowing2 no more than one month to pass2 between each external custody reconciliation; and

2. (2)

   as soon as reasonably practicable after the date to which the external custody reconciliation relates.

7 CASS 6.6.44R to CASS 6.6.46R do not apply to a firm following its failure.

When determining the frequency at which it will undertake its internal custody record checks under CASS 6.6.11 R, physical asset reconciliations under CASS 6.6.22 R, and external custody reconciliations under CASS 6.6.37 R, a firm must have regard to:

1. (1)

   the frequency, number and value of transactions which the firm undertakes in respect of clients'safe custody assets; and

2. (2)

   the risks to which clients'safe custody assets are exposed, such as the nature, volume and complexity of the firm's business and where and with whom safe custody assets are held.

1. (1)

   A firm must make and retain records sufficient to show and explain any decision it has taken under CASS 6.6.44 R when determining the frequency of its internal custody record checks, physical asset reconciliations and external custody reconciliations. Subject to (2), such records must be retained indefinitely.

2. (2)

   If any decision under CASS 6.6.44 R is superseded by a subsequent decision under that rule then the record of that earlier decision retained in accordance with (1) need only be retained for a further period of five years from the subsequent decision.

1. (1)

   Subject to (3), a firm must review the frequency at which it conducts internal custody record checks, physical asset reconciliations and external custody reconciliations at least annually to ensure that it continues to comply with CASS 6.6.11 R, CASS 6.6.22 R and CASS 6.6.37 R, respectively, and has given due consideration to the matters in CASS 6.6.44 R.

2. (2)

   For each review a firm undertakes under (1), it must record the date and the actions it took in reviewing the frequency of its internal custody record checks, physical asset reconciliations and external custody reconciliations.

3. (3)

   A firm need not carry out a review under (1) in respect of its internal custody record checks, physical asset reconciliations and external custody reconciliations, if it already conducts the particular process in respect of all relevant safe custody assets each business day.

1. (1)

   7This rule applies to a firm following its failure.

2. (2)

   A firm must perform an internal custody record check and a physical asset reconciliation that relates to the time of its failure as soon as reasonably practicable after its failure.

3. (3)
   1. (a)

      A firm must perform an external custody reconciliation that relates to the time of its failure as soon as reasonably practicable after its failure.

   2. (b)

      If any records and accounts of the relevant third parties under CASS 6.6.35R relating to the time of the firm’sfailure are unavailable, the firm must use the next available records and accounts to perform the external custody reconciliation under sub-paragraph (a).

4. (4)

   A firm must perform further internal custody record checks and physical asset reconciliations:

   1. (a)

      as regularly as is necessary to ensure that the firm remains in compliance with CASS 6.6.2R, CASS 6.6.3R and CASS 6.6.4R (Records and accounts); and

   2. (b)

      as soon as reasonably practicable after the date to which the internal custody record check or physical asset reconciliation relates.

5. (5)

   A firm must perform further external custody reconciliations on a regular basis:

   1. (a)

      as regularly as is necessary; and

   2. (b)

      as soon as reasonably practicable after the date to which the external custody reconciliation relates.

6. (6)

   A firm must determine the frequency at which it will undertake its internal custody record checks and physical asset reconciliations under paragraph (4), and its external custody reconciliations under paragraph (5) with regard to:

   1. (a)

      the frequency, number and value of transactions which the firm undertakes in respect of clients’safe custody assets;

   2. (b)

      the risks to which clients’safe custody assets are exposed, such as the nature, volume and complexity of the firm’s business, and where and with whom safe custody assets are held; and

   3. (c)

      the need to comply with CASS 6.7.

When a firm identifies a discrepancy as a result of carrying out an internal custody record check, physical asset reconciliation or external custody reconciliation, the firm must:2

1. (1)

   promptly investigate the reason for the discrepancy and resolve it without undue delay; and2

2. (2)

   take appropriate steps under CASS 6.6.54 R for the treatment of any shortfalls until that discrepancy is resolved.2

When a firm identifies a discrepancy outside of its processes for an internal custody record check, physical asset reconciliation or external custody reconciliation, the firm must:2

1. (1)

   take all reasonable steps both to investigate the reason for the discrepancy and to resolve it; and2

2. (2)

   take appropriate steps under CASS 6.6.54 R for the treatment of shortfalls until that discrepancy is resolved.2

1. (1)

   This rule applies where a firm identifies a discrepancy as a result of, or that reveals, a shortfall, which the firm has not yet resolved.

2. (2)

   Subject to paragraphs (3) and (4)7, until the discrepancy is resolved a firm must do one of the following:

   1. (a)

      appropriate a sufficient number of its own applicable assets to cover the value of the shortfall and hold them for the relevant clients under the custody rules in such a way that the applicable assets, or the proceeds of their liquidation, will be available for distribution for the benefit of the relevant clients in the event of the firm'sfailure and, in doing so:

      1. (i)

         ensure that the applicable assets are clearly identifiable as separate from the firm's own property and are recorded by the firm in its client-specific safe custody asset record as being held for the relevant client;

      2. (ii)

         keep a record of the actions the firm has taken under this rule which includes a description of the shortfall, identifies the relevant affected clients, and lists the applicable assets that the firm has appropriated to cover the shortfall; and

      3. (iii)

         update the record made under (ii) whenever the discrepancy is resolved and the firm has re-appropriated the applicable assets; or

   2. (b)

      (provided that doing so is consistent with the firm'spermissions and would result in money being held for the relevant client) in respect of the shortfall under CASS 7.17.2 R2 (statutory trust) appropriate a sufficient amount of its own money to cover the value of the shortfall, hold it for the relevant client as client money under the client money rules and, in doing so:

      1. (i)

         ensure the money is segregated under CASS 7.13 (Segregation of client money) and recorded as being held for the relevant client under CASS 7.15 (Records, accounts and reconciliations);

      2. (ii)

         keep a record of the actions the firm has taken under this rule which includes a description of the shortfall, identifies the relevant affected clients, and specifies the amount of money that the firm has appropriated to cover the shortfall; and

      3. (iii)

         update the record made under (ii) whenever the discrepancy is resolved and the firm has re-appropriated the money; or

   3. (c)

      appropriate a number of applicable assets in accordance with (a) and an amount of money in accordance with (b) which, in aggregate, are sufficient to cover the value of the shortfall.

3. (3)

   If the firm, where justified, concludes that another person is responsible for the discrepancy,2 regardless of any dispute with that other person, or that2 the discrepancy is due to a timing difference between the accounting systems of that other person and that of the firm, the firm must take all reasonable steps to resolve the situation without undue delay with the other person. Until the discrepancy is resolved the firm must consider whether it would be appropriate to notify the affected client of the situation, and may take steps under (2) for the treatment of shortfalls until that discrepancy is resolved.

4. (4)

   A firm that has failed is not required to take steps under paragraph (2) in relation to the firm’s own applicable assets or money in so far as the legal procedure for the firm’sfailure prevents the firm from taking any such steps.7

A firm must inform the FCA in writing without delay if:

1. (1)

   its internal records and accounts of the safe custody assets held by the firm for clients are materially out of date, or materially inaccurate or invalid, so that the firm is no longer able to comply with the requirements in CASS 6.6.2 R to CASS 6.6.4 R; or

2. (2)

   5it 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 6.6.2 R or in article 89(1)(b) or 89(1)(c) (Safekeeping duties with regard to assets held in custody) of the AIFMD level 2 regulation; or

3. (2A)

   5it is a firm acting as trustee or depositary of a UCITS and has not complied with, or is materially unable to comply with, the requirements in:

   1. (a)

      5CASS 6.6.2R; or

   2. (b)

      5article 13(1)(b) or 13(1)(c) (Safekeeping duties with regard to assets held in custody) of the UCITS level 2 regulation; or

4. (3)

   it will be unable, or materially fails, to take the steps required under CASS 6.6.54 R for the treatment of shortfalls; or

5. (4)

   it will be unable, or materially fails, to conduct an internal custody record check in compliance with CASS 6.6.11 R to CASS 6.6.19 R; or

6. (5)

   it will be unable, or materially fails, to conduct a physical asset reconciliation in compliance with CASS 6.6.22 R4 to CASS 6.6.30 R; or

7. (6)

   it will be unable, or materially fails, to conduct an external custody reconciliation in compliance with CASS 6.6.34 R to CASS 6.6.37 R.

1This section applies to a firm following its failure.

1. (1)

   Before a firm takes any steps to dispose of a safe custody asset it must:

   1. (a)

      (subject to paragraph (2)) attempt to return it to the relevant client or transfer it to another person for safekeeping on behalf of the client in accordance with CASS 6.7.8R; and

   2. (b)

      (subject to paragraph (3)) take reasonable steps to notify the client of the firm’s proposed course of action for disposing of the safe custody asset.

2. (2)

   A firm is not required to attempt to return or transfer a safe custody asset under paragraph (1)(a) where the client to whom the safe custody asset belongs has confirmed to the firm that it disclaims all its interests in the safe custody asset.

3. (3)

   A firm is not required to notify a client under paragraph (1)(b) where:

   1. (a)

      the firm is able to return the safe custody asset to the relevant client or transfer it to another person on behalf of the client in accordance with CASS 6.7.8R; or

   2. (b)

      the client to whom the safe custody asset belongs has confirmed to the firm that it disclaims all its interests in the safe custody asset.

If the firm undertook a tracing exercise for the purposes of CASS 6.2.10R(4) (Allocated but unclaimed safe custody assets) before its failure but had not made the charity payment under that rule by the time of its failure then the findings of that exercise may be relied on for the purposes of CASS 6.7.4E(1)(a).

1. (1)

   A firm must make a record of any safe custody asset disposed of in accordance with CASS 6.7.2R at the time of the disposal.

2. (2)

   The record under paragraph (1) must state:

   1. (a)

      the safe custody asset that was disposed of;

   2. (b)

      the value of the consideration received for the safe custody asset disposed of;

   3. (c)

      the name and contact details of the client to whom the safe custody asset was allocated, according to the firm’s records at the time of making the record under this rule; and

   4. (d)

      either:

      1. (i)

         the efforts applied by the firm to determine the client’s correct contact details under CASS 6.7.4E(1)(a); or

      2. (ii)

         if being relied on under CASS 6.7.6R, the efforts applied by the firm to determine the client’s correct contact details for the purposes of CASS 6.2.10R(4) (Allocated but unclaimed safe custody assets).

3. (3)

   A firm must keep the record under paragraph (1) indefinitely.

1. (1)

   This rule applies where, instead of returning a safe custody asset to a client, a firm (Firm A) is able to transfer the safe custody asset to another person (Firm B) for safekeeping on behalf of the client.

2. (2)

   Firm A may only effect such a transfer if, in advance of the transfer, it has obtained a contractual undertaking from Firm B that:

   1. (a)

      where regulation 10C(3) of the IBSA Regulations does not apply, Firm B will return the safe custody asset to the client at the client’s request; and

   2. (b)

      Firm B will notify the client, within 14 days of the transfer of that client’ssafe custody asset having commenced:

      1. (i)

         of the applicable regulatory regime under which the safe custody asset will be held by Firm B;

      2. (ii)

         either:

         1. (A)

            of any relevant compensation scheme limits that may apply in respect of Firm B’s handling of the safe custody asset; or

         2. (B)

            of the fact that Firm B does not participate in a relevant compensation scheme, if that is the case; and

      3. (iii)

         where regulation 10C(3) of the IBSA Regulations does not apply, that the client has the option of having its safe custody asset returned to it by Firm B.