EG 11.1 1Restitution orders under sections 382, 383 and 384 of the Act: the FCA's general approach
1Decisions about whether to apply to the civil courts for restitution orders under the Act will be made by
the RDC Chairman or, in an urgent case and if the Chairman is not available, by an RDC Deputy Chairman. In an exceptionally urgent case the matter will be decided by the director of Enforcement or, in his or her absence, another member of the FCA's executive of at least director of division level.
1An exceptionally urgent case in these circumstances is one where the FCA staff believe that a decision to begin proceedings
- (1)
should be taken before it is possible to follow the procedure described in paragraph 11.1.1; and
- (2)
it is necessary to protect the interests of consumers or potential consumers.
1The FCA has power to apply to the court for a restitution order under section 382 of the Act and (in the case of market abuse) under section 383 of the Act. It also has an administrative power to require restitution under section 384 of the Act. When deciding whether to exercise these powers, the FCA will consider whether this would be the best use of the FCA's limited resources taking into account, for example, the likely amount of any recovery and the costs of achieving and distributing any sums. It will also consider, before exercising its powers: other ways that persons might obtain redress, and whether it would be more efficient or cost-effective for them to use these means instead; and any proposals by the person concerned to offer redress to any consumers or other persons who have suffered loss, and the adequacy of those proposals. The FCA expects, therefore, to exercise its formal restitution powers on rare occasions only.
1Instances in which the FCA might consider using its powers to obtain restitution for eligible counterparties are likely to be very limited.