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SUP 18.2 Insurance business transfers

Purpose

SUP 18.2.1G

Transfers may7 enable firms to manage their affairs more effectively. However they represent an interference in the contracts between a firm and its customers, without the consent of each customer,7, and may also affect the rights of third parties. An important protection is the requirement for the consent of the court.

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The regulators

SUP 18.2.1AG
  1. (1)

    7Part VII of the Act prescribes certain statutory functions in relation to insurance business transfer schemes for both the PRA and the FCA. In accordance with the Act, the PRA and the FCA maintain a Memorandum of Understanding, which describes each regulator’s role in relation to the exercise of its functions under the Act relating to matters of common regulatory interest and how each regulator intends to ensure the coordinated exercise of such functions. Under the Memorandum of Understanding, the PRA will lead the process for insurance business transfers and will be responsible for specific regulatory functions connected with Part VII applications, including the provision of certificates under section 111 of the Act. Further, the PRA will consult with the FCA both at the outset and throughout the insurance business transfer process. As such, the scheme promoters should first approach the PRA but should also consider whether any aspect of their proposals should be discussed with the FCA at an early stage. Scheme promoters should also consider SUP 18.2.13 G.

  2. (2)

    By virtue of section 110 of the Act, both the PRA and the FCA are entitled to be heard in the proceedings. The Memorandum of Understanding confirms that both the PRA and the FCA may provide the court with written representations setting out their views on the proposed transfer scheme, for example, by way of a report to the court. Each regulator will decide in relation to each insurance business transfer whether it is necessary or appropriate to prepare a report bearing in mind its objectives and other relevant matters.

  3. (3)

    As set out in the Memorandum of Understanding, before nominating or approving an independent expert under section 109(2)(b) of the Act or approving the form of a scheme report under section 109(3) the PRA will first consult the FCA. Further, where the PRA is the appropriate regulator it will consult appropriately with the FCA before approving the notices required under the Financial Services and Markets Act 2000 (Control of Business Transfers) (Requirements on Applicants) Regulations 2001(SI 2001/3625).

SUP 18.2.1BG

7In exercising its functions under the Act, each regulator will, so far as is reasonably possible, act in a way which is compatible with, and most appropriate for advancing, its statutory objectives as set out in the Act and will have regard to the regulatory principles in section 3B of the Act.

SUP 18.2.2G

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SUP 18.2.3G

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SUP 18.2.4G

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SUP 18.2.5G

Transfers may have both positive and negative effects on individual consumers.A key concern in this regard for each regulator will be to be satisfy itself that each consumer has adequate information and reasonable time within which to determine whether or not he is adversely affected and, if adversely affected, whether to make representations to the court.7

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SUP 18.2.6G

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SUP 18.2.7G

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SUP 18.2.8G

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SUP 18.2.9G

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SUP 18.2.10G

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SUP 18.2.11G

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Procedure: initial steps

SUP 18.2.12G

When an insurance business transfer scheme is being considered, the scheme promoters should discuss the scheme with the appropriate regulator7 as soon as reasonably practical, to enable the regulators7 to consider what issues are likely to arise, and to enable a practical timetable for the scheme to be established.7

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  1. (1)

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  2. (2)

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  3. (3)

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  4. (4)

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  5. (5)

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SUP 18.2.13G

The initial documentary7 information on the scheme should be provided to the PRA, who will share it with the FCA, and7 should include its broad outline and its purpose. Each regulator may7 indicate to the promoters how closely it wishes to monitor the progress of the scheme, including the extent to which it wishes to see draft documentation.

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Independent expert: qualifications

SUP 18.2.14G

Under section 109(2) of the Act a scheme report may only be made by a person:

  1. (1)

    appearing to the appropriate regulator7 to have the skills necessary to enable him to make a proper report; and

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  2. (2)

    nominated or approved for the purpose by the appropriate regulator7.

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SUP 18.2.14AG

The promoters should ensure that any relevant fees are paid before any application will be considered.

SUP 18.2.15G

The general principles set out in SUP 5.4.8 G, for suitability of a skilled person, apply also to the independent expert. The regulators expect7 the independent expert making the scheme report to be a natural person, who:

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  1. (1)

    is independent, that is any direct or indirect interest or connection he has or has had in either the transferor or transferee should not be such as to prejudice his status in the eyes of the court; and

  2. (2)

    has relevant knowledge, both practical and theoretical, and experience of the types of insurance business transacted by the transferor and transferee.

SUP 18.2.16G

For a transfer of long-term insurance business the independent expert should be an actuary familiar with the role and responsibilities of the actuarial function holder and (if the relevant insurance business includes with-profits insurance business) a with-profits actuary.2

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SUP 18.2.17G

For a transfer of general insurance business the independent expert should normally be competent at assessing technical provisions and the uncertainties of the liabilities they represent (such as an actuary). Exceptionally, where issues other than the ability of the transferee to meet the liabilities to be transferred are much more significant in assessing the likely effects of the scheme, this criterion might not be applied. In such a case the independent expert would be expected to take advice from an appropriately qualified practitioner about the adequacy of the financial resources of the transferee.

SUP 18.2.18G

The independent expert would not normally be expected to be knowledgeable:

  1. (1)

    about general insurance business if the business being transferred is long-term insurance business only; nor

  2. (2)

    about long-term insurance business if the business being transferred is general insurance business only;

but, where either the transferor or transferee is a composite, he should understand the relevance of the general insurance business to the security of the long-term insurance business policyholders and vice versa and may need to seek independent specialist advice.

Independent expert: appointment

SUP 18.2.19G

The suitability of a person to act as an independent expert depends on the nature of the scheme and the firms concerned. On the basis of the preliminary information supplied by the scheme promoters (and any other knowledge it has of the circumstances and the firms), the appropriate regulator7 will consider what skills are needed to make a proper report on the scheme and what criteria should therefore be applied to the choice of independent expert. The appropriate regulator7 will inform the promoters of any such criteria it is minded to apply.

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SUP 18.2.20G

Under section 107(2) of the Act, the application to the court may be made by the transferor or the transferee or both. As soon as reasonably practical, the intended applicant should choose their nominee for independent expert in the light of any criteria advised by the appropriate regulator. The intended applicant(s) should then advise the appropriate regulator of their choice, unless the appropriate regulator7 wishes them to defer nomination or to make its own nomination. The notification should be accompanied by reasons why the party considers the nominee to be a suitable person to act as independent expert. Relevant details provided should usually include information about the nominee’s experience and qualifications; the proposed terms and conditions of the nominee’s appointment, including any remuneration arrangements; and any current or previous professional or commercial arrangements with the transferor or transferee or their associated companies, including the remuneration (direct or indirect) for those arrangements with the nominee and/or with any professional firm or company in which the nominee has or has had any interest.7.

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SUP 18.2.21G

The regulators7 may wish to have preliminary discussions with the nominee about the transfer before the appropriate regulator determines if7 he is suitably qualified to address issues arising from the transfer. The regulators7 will consider the suitability of the nominee and the appropriate regulator will7 inform the firm that nominated him whether he has been approved7. Since the nature of the scheme is a factor in determining the suitability of the nominee, the appropriate regulator7 cannot approve a nominee before the broad outlines of the scheme have been determined.

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SUP 18.2.22G

The appropriate regulator7 may itself nominate the independent expert, either where it indicates that a nomination is not required by the parties, or where it does not approve the parties' own nomination. In either case the appropriate regulator7 will inform the promoters of its nominee.

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SUP 18.2.23G

Firms should co-operate fully with the independent expert and provide him with access to all relevant information and appropriate staff.

Consultation with EEA regulators and/or other foreign regulators7

SUP 18.2.23AG

7Under the terms of the Memorandum of Understanding, the PRA will lead when carrying out consultation with EEA regulators and/or other foreign regulators.

SUP 18.2.24G

The guidance set out in SUP 18.2.25 G to SUP 18.2.30 G derives from the requirements of the Solvency II Directive6 and the associated agreements between EEA regulators. Schedule 12 of the Act implements some of these requirements.

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SUP 18.2.25G
  1. (1)

    If the transferee is (or will be) an EEA firm (authorised in its Home State to carry on insurance business under the Solvency II Directive6) or a Swiss general insurance company, then the appropriate regulator7 has to consult the transferee's Home State regulator, who has 3 months to respond. It will be necessary for the appropriate regulator7 to obtain from the transferee's Home State regulator a certificate confirming that the transferee will meet the Home State's solvency margin requirements (if any) after the transfer.

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  2. (1A)

    7If the transferee is (or will be) an EEA firm (authorised in its Home State to carry on insurance business under the Reinsurance Directive) it will be necessary for the appropriate regulator to obtain from the transferee’s Home State regulator a certificate confirming that the transferee will meet the Home State's solvency margin requirements (if any) after the transfer.

  3. (2)

    If the transferee is authorised in the United Kingdom, the appropriate regulator7 will need to certify that the transferee will meet its solvency margin requirements after the transfer. If the appropriate regulator7 has required of a UK firm a “recovery plan” of the kind mentioned in the PRA Rulebook: Solvency II firms: Undertakings in Difficulty,6 the appropriate regulator7 will not issue a certificate for so long as it considers that policyholders' rights are threatened within the meaning of these paragraphs.7

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SUP 18.2.26G

The transferor will need to provide the appropriate regulator7 with the information that the Home State regulator requires from the appropriate regulator7. This information includes:

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  1. (1)

    the transfer agreement or a draft, with:

    1. (a)

      the names and addresses of the transferor and transferee; and

    2. (b)

      the classes of insurance business and details of the nature of the risks or commitments to be transferred;

  2. (2)

    for the business to be transferred (both before and after reinsurance):

    1. (a)

      the amount of technical provisions;

    2. (b)

      the amount of premiums (in the most recent financial period); and

    3. (c)

      for general insurance business, the claims incurred (in the most recent financial period);

  3. (3)

    details of assets to be transferred;

  4. (4)

    details of any guarantees (including reinsurance arrangements),7 whether provided by the transferor or a third party, to protect the provisions for the business transferred against deterioration; and

  5. (5)

    the states of the risks or the states of the commitments of the business7 being transferred.

SUP 18.2.27G

If the transferee is not (and will not be) authorised and will be neither an EEA firm nor a Swiss general insurance company, then the appropriate regulator7 will need to consult the transferee's7 insurance supervisor in the place where the business is to be transferred. The appropriate regulator7 will need confirmation from this supervisor that the transferee will meet his solvency margin requirements there (if any) after the transfer.

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SUP 18.2.28G

If the transferor is a UK insurer (other than a pure reinsurer)7 and the business to be transferred includes business carried on from a branch in another EEA State, then the appropriate regulator7 has to consult the Host State regulator, who has 3 months to respond. The appropriate regulator7 will need to be given the information that the Host State regulator requires from it. This information should identify the parties to the transfer and include the transfer agreement or draft transfer agreement or a summary containing relevant information, and describe arrangements for settling claims if the branch is to be closed.

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SUP 18.2.29G

If the transferor is a7 UK insurer and the business to be transferred includes a long-term insurance contract (other than reinsurance) for which the state of the commitment is an EEA state other than the United Kingdom, then the appropriate regulator7 has to consult the Host State regulator. If the transferor is a7 UK insurer and the business to be transferred includes a general insurance contract (other than reinsurance) for which the state of the risk is an EEA state other than the United Kingdom, then the appropriate regulator7 must consult the Host State regulator. The appropriate regulator7 will need to be given the information that the Host State regulator requires from it. This information should identify the parties to the transfer and include the transfer agreement or draft transfer agreement or a summary containing relevant information. It would be helpful (especially for long-term insurance business) if a draft of the scheme report was also available. The appropriate regulator will also need to have sufficient information about the business proposed to be transferred to be satisfied that the applicants have undertaken sufficient steps to identify the state of the risk or the state of the commitment, as the case may be.7The consent of the Host State regulator to the transfer is required, unless he does not respond within 3 months.

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SUP 18.2.30G

Where the transferor is a7 UK-deposit insurer and, following the transfer, it will no longer be carrying on insurance business in the United Kingdom, the appropriate regulator7 will need to collaborate with regulatory bodies in the other EEA States in which it is carrying on business to ensure that effective supervision of the business carried on in the EEA continues. The transferor should cooperate with the appropriate regulator7 and the other regulatory bodies in this process and demonstrate that it will meet the requirements of its regulators following the transfer.

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Form of scheme report

SUP 18.2.31G

Under section 109 of the Act, a scheme report must accompany an application to the court to approve an insurance business transfer scheme. This report must be made in a form approved by the appropriate regulator. The appropriate regulator would generally expect a scheme report to contain at least the information specified in SUP 18.2.33 G before giving its approval.7

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SUP 18.2.31AG

7When the appropriate regulator has approved the form of a scheme report, the scheme promoter may expect to receive written confirmation to that effect from that regulator.

SUP 18.2.32G

There may be matters relating to the scheme or the parties to the transfer that the regulators wish7 to draw to the attention of the independent expert. The regulators7 may also wish the report to address particular issues. The independent expert should therefore contact the regulators7 at an early stage to establish whether there are such matters or issues. The independent expert should form his own opinion on such issues, which may differ from the opinion of the regulators7.

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SUP 18.2.33G

The scheme report should comply with the applicable rules on expert evidence and contain the following information:

  1. (1)

    who appointed the independent expert and who is bearing the costs of that appointment;

  2. (2)

    confirmation that the independent expert has been approved or nominated by the appropriate regulator7;

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  3. (3)

    a statement of the7 independent expert's professional qualifications and (where appropriate) descriptions of the experience that fits him for the role;

  4. (4)

    whether the independent expert has, or has had, direct or indirect interest in any of the parties which might be thought to influence his independence, and details of any such interest;

  5. (5)

    the scope of the report;

  6. (6)

    the purpose of the scheme;

  7. (7)

    a summary of the terms of the scheme in so far as they are relevant to the report;

  8. (8)

    what documents, reports and other material information the independent expert has considered in preparing his report and whether any information that he requested has not been provided;

  9. (9)

    the extent to which the independent expert has relied on:

    1. (a)

      information provided by others; and

    2. (b)

      the judgment of others;

  10. (10)

    the people on whom the independent expert has relied and why, in his opinion, such reliance is reasonable;

  11. (11)

    his opinion of the likely effects of the scheme on policyholders (this term is defined to include persons with certain rights and contingent rights under the policies), distinguishing between:

    1. (a)

      transferring policyholders;

    2. (b)

      policyholders of the transferor whose contracts will not be transferred; and

    3. (c)

      policyholders of the transferee;

  12. (11A)

    7his opinion on the likely effects of the scheme on any reinsurer of a transferor, any of whose contracts of reinsurance are to be transferred by the scheme;

  13. (12)

    what matters (if any) that the independent expert has not taken into account or evaluated in the report that might, in his opinion, be relevant to policyholders' consideration of the scheme; and

  14. (13)

    for each opinion that the independent expert expresses in the report, an outline of his reasons.

SUP 18.2.34G

The purpose of the scheme report is to inform the court and the independent expert, therefore, 7has a duty to the court. However reliance will also be placed on it by policyholders, by reinsurers,7 by others affected by the scheme and by the regulators7. The amount of detail that it is appropriate to include will depend on the complexity of the scheme, the materiality of the details themselves and the circumstances.

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SUP 18.2.35G

The summary of the terms of the scheme should include:

  1. (1)

    a description of any reinsurance arrangements that it is proposed should pass to the transferee under the scheme; and

  2. (2)

    a description of any guarantees or additional reinsurance that will cover the transferred business or the business of the transferor that will not be transferred.

SUP 18.2.36G

The independent expert's opinion of the likely effects of the scheme on policyholders should:

  1. (1)

    include a comparison of the likely effects if it is or is not implemented;

  2. (2)

    state whether he considered alternative arrangements and, if so, what;

  3. (3)

    where different groups of policyholders are likely to be affected differently by the scheme, include comment on those differences he considers may be material to the policyholders; and

  4. (4)

    include his views on:

    1. (a)

      the effect of the scheme on the security of policyholders' contractual rights, including the likelihood and potential effects of the insolvency of the insurer;

    2. (b)

      the likely effects of the scheme on matters such as investment management, new business strategy, administration, expense levels and valuation bases in so far as they may affect:

      1. (i)

        the security of policyholders' contractual rights;

      2. (ii)

        levels of service provided to policyholders; or

      3. (iii)

        for long-term insurance business, the reasonable expectations of policyholders; and

    3. (c)

      the cost and tax effects of the scheme, in so far as they may affect the security of policyholders' contractual rights, or for long-term insurance business, their reasonable expectations.

SUP 18.2.37G

The independent expert is not expected to comment on the likely effects on new policyholders, that is, those whose contracts are entered into after the effective date of the transfer.

SUP 18.2.38G

For any mutual company involved in the scheme, the report should:

  1. (1)

    describe the effect of the scheme on the proprietary rights of members of the company, including the significance of any loss or dilution of the rights of those members to secure or prevent further changes which could affect their entitlements as policyholders;

  2. (2)

    state whether, and to what extent, members will receive compensation under the scheme for any diminution of proprietary rights; and

  3. (3)

    comment on the appropriateness of any compensation, paying particular attention to any differences in treatment between members with voting rights and those without.

SUP 18.2.39G

For a scheme involving long-term insurance business, the report should:

  1. (1)

    describe the effect of the scheme on the nature and value of any rights of policyholders to participate in profits;

  2. (2)

    if any such rights will be diluted by the scheme, how any compensation offered to policyholders as a group (such as the injection of funds, allocation of shares, or cash payments) compares with the value of that dilution, and whether the extent and method of its proposed division is equitable as between different classes and generations of policyholders;

  3. (3)

    describe the likely effect of the scheme on the approach used to determine:

    1. (a)

      the amounts of any non-guaranteed benefits such as bonuses and surrender values; and

    2. (b)

      the levels of any discretionary charges;

  4. (4)

    describe what safeguards are provided by the scheme against a subsequent change of approach to these matters that could act to the detriment of existing policyholders of either firm;

  5. (5)

    include the independent expert's overall assessment of the likely effects of the scheme on the reasonable expectations of long-term insurance businesspolicyholders;

  6. (6)

    state whether the independent expert is satisfied that for each firm the scheme is equitable to all classes and generations of its policyholders; and

  7. (7)

    state whether, in the independent expert's opinion, for each relevant firm the scheme has sufficient safeguards (such as principles of financial management or certification by a with-profits actuary or actuarial function holder2) to ensure that the scheme operates as presented.

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SUP 18.2.40G

Where the transfer forms part of a wider chain of events or corporate restructuring, it may not be appropriate to consider the transfer in isolation and the independent expert should seek sufficient explanations on corporate plans to enable him to understand the wider picture. Likewise he will need information on the operational plans of the transferee and, if only part of the business of the transferor is transferred, of the transferor. These will need to have sufficient detail to allow him to understand in broad terms how the business will be run.

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SUP 18.2.41G

A transfer may provide for benefits to be reduced for some or all of the policies being transferred. This might happen if the transferor is in financial difficulties. If there is such a proposal, the independent expert should report on what reductions he considers ought to be made, unless either:

  1. (1)

    the information required is not available and will not become available in time for his report, for instance it might depend on future events; or

  2. (2)

    otherwise, he is unable to report on this aspect in the time available.

Under such circumstances, the transfer might be urgent and it might be appropriate for the reduction in benefits to take place after the event, by means of an order under section 112 of the Act. Each regulator7 would wish to consider any such reduction against its statutory objectives7 and section 113 of the Act7 allows the court, on the application of either regulator,7 to appoint an independent actuary to report on any such post-transfer reduction in benefits.

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Notice provisions

SUP 18.2.42G

Under the Financial Services and Markets Act 2000 (Control of Business Transfers)(Requirements on Applicants) Regulations 2001 (SI 2001/3625), unless the court directs otherwise, notice of the application must be sent to all policyholders of the parties and reinsurers (or a person acting on its behalf) any of whose contracts of reinsurance are proposed to be transferred as part of the insurance business transfer scheme.

It may also be appropriate to give notice to others affected, for example, to anyone with an interest in the policies being transferred who has notified the transferor of their interest.7

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SUP 18.2.43G

The regulations referred to in SUP 18.2.42 G require that notice of the application must be published in:

  1. (1)

    the London, Edinburgh and Belfast Gazettes; and

  2. (2)

    unless the court directs otherwise, in accordance with requirements in those regulations.7

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Wider publication may be appropriate in some circumstances.

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SUP 18.2.44G

The regulations referred to in SUP 18.2.42 G77 require that the appropriate regulator7 approves in advance the notices sent to policyholders and published in the press.

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SUP 18.2.45G

Where a transfer involves underwriting7 members of Lloyd's as transferor or transferee, any notice requirements of the Society will also apply.

SUP 18.2.46G

The regulators are7 entitled to be heard by the court on any application for a transfer. A consideration for the regulators7 in determining whether to oppose a transfer would be their7 view on whether adequate steps had been taken to tell policyholders and, as appropriate, other affected persons,7about the transfer and whether they had adequate information and time to consider it. The regulators7 would not normally consider adequate a period of less than six weeks between sending notices to policyholders and the date of the court hearing. Therefore it would be sensible, before requesting from7 the court a waiver of the publication requirements or the requirement to send statements direct to policyholders, to consult the regulators7 on their7 views about what waivers might be appropriate and what substitute arrangements might be made. The regulators7 will take into account the practicality and costs of sending notices to policyholders (especially for firms in financial difficulty), the likely benefits for policyholders of receiving notices and the efficacy of other arrangements proposed for informing policyholders (including additional advertising or, where appropriate, electronic communication).

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SUP 18.2.47G

As the consent (or presumed consent) of the Host State is required for a transfer covering contracts for which another EEA State is the state of the risk (for general insurance business) or the state of the commitment (for long-term insurance business), it is advisable to obtain the consent of regulatory body in the Host State to any waiver of publication in that state. The approval of the court will still be required.

Statement to policyholders

SUP 18.2.48G

It would normally be appropriate to include with the notice referred to in SUP 18.2.42 G a statement setting out the terms of the scheme and containing a summary of the scheme report. Ideally every recipient should understand in broad terms from the summary how the scheme is likely to affect him. This objective will be most nearly achieved if the summary is clear and concise while containing sufficient detail for the purpose. A lengthy summary or one that was hard to understand would not be appropriate. Regulations require the scheme report, the notice and the statement to be made available to anyone requesting them. The internet can be used for this purpose if it is suitable for the person making the request.

SUP 18.2.49G

Where the transferee is a friendly society, the notice should include information about the meeting at which a special resolution in accordance with paragraph 7 of Schedule 12 to the Friendly Societies Act 1992 is to be voted on, including the date of the meeting, how notice of the meeting is to be given to members and the terms of the special resolution. After the meeting the friendly society should inform the appropriate regulator7 whether the special resolution has been passed. The court will also need to be informed, so one7 way of informing the appropriate regulator7 may be to include it in the affidavit to the court.

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SUP 18.2.50G

The regulators7 should be given the opportunity to comment on the statement referred to in SUP 18.2.48 G before it is sent, unless the promoters have been informed in writing that this is not necessary7.

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Assessment of scheme and the regulators' report(s) to the court7

SUP 18.2.51G

The assessment is a continuing process, starting when the scheme promoters first approach the appropriate regulator7 about a proposed scheme. Each regulator will have an interest in assessing the scheme.7Among the considerations that may be relevant to both the depth of consideration each gives to, and each regulator's7 opinion on, a scheme are:

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  1. (1)

    the potential risk posed by the transfer to its statutory objectives7;

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  2. (2)

    the purpose of the scheme;

  3. (3)

    how the security of policyholders' (who include persons with certain rights and contingent rights under the policies) contractual rights appears to be affected;

  4. (4)

    how the scheme compares with possible alternatives, particularly those that do not require approval (whether by the court or the appropriate regulator7);

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  5. (5)

    how policyholders' rights and reasonable expectations appear to be affected;

  6. (6)

    the compensation offered to policyholders for any loss of rights or expectations;

  7. (6A)

    7how any reinsurer of a transferor, any of whose contracts of reinsurance are to be transferred by the scheme may be affected;

  8. (7)

    how for other persons (besides policyholders and reinsurers7) who have an interest in policies, their rights and the security of those rights appear to be affected;

  9. (8)

    the opportunity given to policyholders and other persons affected by the scheme7 to consider the scheme, that is whether they have been properly notified, whether they have had adequate information and whether they have had adequate time to consider that information;

  10. (9)

    the opinion of the independent expert;

  11. (10)

    for a transfer that involves underwriting members or former members7 of Lloyd's as transferor or transferee, the effect on the Society;

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  12. (11)

    the views of other regulatory bodies consulted in connection with the proposed transfer; and

  13. (12)

    any views expressed by policyholders, reinsurers or any other affected parties7.

SUP 18.2.52G

The scheme report will be an important factor in the view each of the regulators7 forms on a scheme. Considerable reliance will be placed7 on the opinions of the independent expert and the reasons for them. However each regulator7 will form its own view taking into account other relevant7 information and having regard to its statutory objectives.7

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SUP 18.2.53G

The regulators are7 likely to object to a scheme if they conclude7 that it is unfair to a class of policyholders, unless the policyholders of that class have approved the scheme on the basis of information the regulators consider to be adequate,7 clear and accurate.

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SUP 18.2.53AG

7If at any time the regulators, or either of them, conclude that policyholders and/or, as appropriate, other relevant affected persons have not had adequate information and/or sufficient time to consider information, they will seek to resolve such issues with the scheme promoters. This may require further notification. If either regulator remains unsatisfied that such policyholders and/or other persons have received adequate information and sufficient time to consider it they are likely to object to a transfer.

SUP 18.2.54G

Either regulator7 may exercise its other powers under the Act, if it considers this a more effective method of advancing its statutory objectives7.

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SUP 18.2.55G

Neither regulator is required under its statutory objectives7 to object to a scheme merely because some other scheme might have been in the better interests of policyholders, if the scheme itself is not adverse to their interests. However there may be circumstances where either regulator might7 require a firm to consider or to implement an alternative scheme.

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SUP 18.2.56G

Where a transfer involves underwriting members or former members7 of Lloyd's as transferor or transferee, the appropriate regulator7 will consult the Society. Where the business of a syndicate is being transferred, the transfer involves all members participating in the relevant syndicate years.

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SUP 18.2.57G

Regulations require that copies of the application to the court, the scheme report and the statement for policyholders referred to in SUP 18.2.48 G are also given to the appropriate regulator.7

7
SUP 18.2.57AG

7The provision of reports from one or other (or both) regulators to assist the court is common practice. In most cases, a first report will be provided to the court in advance of the directions hearing and a second report will be provided to the court in advance of the final hearing. Where additional information needs to be given to the court by either regulator, this will be provided using the most appropriate format for the circumstances in each case, and may include the provision of one or more additional reports to the court.

SUP 18.2.57BG

7When assessing a proposed scheme under Part VII of the Act each regulator will, taking into account all relevant matters in each case, consider whether it should provide a report to the court. As it will lead the Part VII process for insurance business transfers, the PRA will usually provide such a report.

SUP 18.2.57CG

7In order to enable each of the regulators to assess the scheme and to facilitate the process, the parties to the proposed scheme will need to ensure timely provision of all relevant information to each regulator for its consideration of that scheme.

SUP 18.2.57DG

7In relation to the matters at SUP 18.2.57A G to SUP 18.2.57C G above and to facilitate the provision to the court of a first report in advance of a directions hearing, near final versions of relevant documents will need to be made available to each of the regulators as soon as practicable. Scheme promoters should be aware that where such documents are produced less than six weeks before the date set for the hearing the regulators will be less likely to be in a position to complete their assessment in advance of the hearing. Final versions of any such documents should be provided as soon as they are available.

SUP 18.2.57EG

7Relevant documents in SUP 18.2.57D G above will usually include:

  1. (1)

    the scheme report;

  2. (2)

    if the business to be transferred includes long-term insurance business, copies of reports on the transfer by the actuarial function holder and (if the insurance business includes with-profits business) the with-profits actuary of both firms;

  3. (3)

    draft notices under article 3 of the Financial Services and Markets Act 2000 (Control of Business Transfers)(Requirements on Applicants) Regulations 2001(SI 2001/3625), as amended by the Financial Services and Markets Act 2000 (Control of Business Transfers)(Requirements on Applicants) (Amendment) Regulations 2008 (SI 2008/1467) and the Financial Services and Markets Act 2000 (Amendments to Part 7) Regulations 2008 (SI 2008/1468);

  4. (4)

    where a proposed transfer involves an underwriting member or former underwriting member of the Society as transferor or transferee, a copy of the resolution or certificate required by article 4 of the Financial Services and Markets Act 2000(Control of Transfers of Business Done at Lloyd's) Order 2001 (SI 2001/3626), as amended by the Financial Services and Markets Act 2000 (Control of Transfers of Business Done at Lloyd's) (Amendment) Order 2008 (SI 2008/1725;

  5. (5)

    any witness statements or other evidence which the parties to the proposed transfer intend to submit to the court for the directions hearing;

  6. (6)

    the draft order.

SUP 18.2.57FG

7Matters included at SUP 18.2.57EG (5) should include sufficient information to enable:

  1. (1)

    the appropriate regulator to decide which other non-UK regulators must be consulted. This information should be provided to the appropriate regulator as soon as it is available;

  2. (2)

    the appropriate regulator to decide whether to approve the notices at SUP 18.2.57EG (3); and

  3. (3)

    each regulator to form an opinion on any matters arising in connection with press advertising and notifications, including in relation to any waivers the parties to the proposed transfer intend to seek from the court under article 4 of those regulations.

SUP 18.2.57GG

7A copy of any order made at the directions hearing should be provided by the applicant to the appropriate regulator as soon as it is available.

SUP 18.2.57HG

7In relation to the matters at SUP 18.2.57A G to SUP 18.2.57C G and to facilitate the provision to the court of a second or final report in advance of the final hearing, near-final versions of relevant documents will need to be made available to each of the regulators as soon as practicable. Scheme promoters should be aware that where such documents are produced less than six weeks before the date set for that hearing, the regulators will be less likely to be in a position to complete their assessment in advance of the hearing. Final versions of any such documents should be provided as soon as they are available.

SUP 18.2.58G

[deleted]7

2227
SUP 18.2.58AG

7Relevant documents in SUP 18.2.57H G will usually include:

  1. (1)

    any witness statements or other evidence which the parties to the proposed transfer intend to submit to the court for the final hearing;

  2. (2)

    the notice or notices published and sent in accordance with the order of the court at SUP 18.2.57G G;

  3. (3)

    proof of publication of the notice or notices at (2);

  4. (4)

    any final and/or additional reports of the independent expert;

  5. (5)

    any objections or other representations received from policyholders and/or other affected persons together with any responses to any such objections or representations;

  6. (6)

    the draft final order.

SUP 18.2.59G

[deleted]7

7
SUP 18.2.59AG

7Provided that any necessary consents have been obtained in respect of confidential information, where either regulator has made a report it will give a copy of its report to the court and will give a copy of its report as filed with the court to each of the parties to the proposed transfer as soon as practicable after such filing.

SUP 18.2.59BG

7Provided that any necessary consents have been obtained in respect of confidential information, the parties to the proposed transfer should give a copy of any report at SUP 18.2.59A G to the independent expert.

SUP 18.2.59CG

7The parties to the proposed transfer should, in each case, consider whether it would facilitate the effective running of the process to give copies to any other person, including any person who alleges that he would be adversely affected by the carrying out of the scheme and intends to be heard in accordance with section 110 of the Act. Where any such provision is to be made, any necessary consents should first be obtained in respect of confidential information.

SUP 18.2.59DG

7The court is likely to wish to know the opinion of each of the regulators. Each regulator will decide in each case, taking all relevant matters into account, the most effective method to make known to the court its opinion.

SUP 18.2.59EG

7Where either regulator has indicated to the parties to the proposed transfer that it intends to appear at any hearing before the court in relation to a proposed scheme under Part VII of the Act a copy set of the bundle of documents filed with the court should be provided to it as soon as practicable.

Post-transfer advertising7

SUP 18.2.60G

[deleted]7

7
SUP 18.2.61G

7Under section 114 of the Act the court must direct that notice of the transfer be published by the transferee in any EEA State other than the United Kingdom which is the state of the commitment or the state of the risk as regards any policy included in the transfer which evidences a contract of insurance (other than a contract of reinsurance). The regulators would expect the transferee to publish notice in at least one national newspaper in each relevant EEA State. Such publication should include the notification of the transfer to the policyholders in the state of the commitment or the state of the risk. The parties should also be mindful of relevant provisions of the national laws of the relevant state of the commitment or the state of the risk.

SUP 18.2.62G

7Under section 114A of the Act the court may direct that notice of a transfer be published by the transferee in any EEA State which is the state of the commitment or the state of the risk as regards any policy included in the transfer which evidences a contract of reinsurance.