House of Commons Public Bill Committee Proceedings

House of Commons

Session 2009 - 10
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Other Bills before Parliament

15

House of Commons

Tuesday 12 January 2010

Public Bill Committee Proceedings

Financial Services Bill

[eleventh and twelfth SittingS]

Mr Mark Hoban

Not called  53

Clause  11,  page  8,  line  28,  leave out paragraph (c).

Mr Colin Breed

Dr Vincent Cable

Withdrawn  55

Clause  11,  page  8,  line  33,  at end insert ‘; and

(c)
the regulatory objectives of the Authority.’.

Mr Mark Hoban

Withdrawn  54

Clause  11,  page  9,  line  11,  after ‘void’, insert ‘where that agreement was signed

after 19 November 2009.’.

Ian Pearson

Agreed to  56

Clause  11,  page  9,  line  17,  at end insert—

‘( )
A provision that, at the time the rules are made, is contained in an agreement

made before that time may not be rendered void under subsection (9)(b) unless it

is subsequently amended so as to contravene a prohibition under subsection

(9)(a).’.

Clause, as amended, Agreed to.

Rob Marris

Withdrawn  57

Clause  12,  page  11,  line  5,  at end insert ‘or requiring the authorised person to be

broken up into several persons by a date specified by the Authority.’.

Clause Agreed to.

Public Bill Committee Proceedings: 12 January 2010
16

Financial Services Bill, continued

Clause 13 Agreed to.

Mr Mark Hoban

Withdrawn  58

Clause  18,  page  23,  line  9,  at end add—

‘(7)
Proceedings may be authorised under subsection (1) only if the representative—

(a)
is authorised to act as representative on an ad hoc basis under the civil

Procedure rules, or

(b)
is authorised to act as representative and on such terms as specified by

order of the Lord Chancellor, in accordance with criteria to be published

by the Lord Chancellor for the purposes of this section.

(8)
An application by a body to be authorised under subsection (7) is to be made in a

form approved by the Lord Chancellor for the purpose.

(9)
Before issuing criteria or authorising a body under subsection (7)(b) the Lord

Chancellor shall consult the Lord Chief Justice.

(10)
The Lord Chief Justice may nominate a judicial office holder to carry out the

functions under subsection (8).

(11)
In this section—

“judicial office holder” has the same meaning as in section 109(4) of the

Constitutional Reform Act 2005;

“court” means in England and Wales, the High Court, or, in Scotland, the

Court of Session.’.

Clause Agreed to.

Clauses 19 and 20 Agreed to.

Mr Mark Hoban

Withdrawn  59

Clause  21,  page  24,  line  14,  at end insert ‘, and

‘(c)
is brought by or on behalf of (and is limited to) persons who are

consumers;’.

Mr Mark Hoban

Not called  60

Clause  21,  page  25,  line  15,  at end add—

‘(8)
In this section “consumer” means any natural person, who in the matters to which

the claim relates, is acting for purposes which are outside his trade, business or

profession.’.

Clause Agreed to.

Public Bill Committee Proceedings: 12 January 2010
17

Financial Services Bill, continued

Mr Mark Hoban

Withdrawn  61

Clause  22,  page  25,  line  19,  leave out from ‘Authority’ to ‘are’ in line 20 and insert

‘and the Office of Fair Trading’.

Mr Mark Hoban

Withdrawn  62

Clause  22,  page  25,  leave out lines 22 to 29.

Mr Mark Hoban

Withdrawn  63

Clause  22,  page  25,  line  30,  leave out paragraph (e) and insert—

‘(e)
suspend any limitation provision applicable to members of a class

represented within the collective proceedings,’.

Mr Mark Hoban

Not called  64

Clause  22,  page  25,  line  35,  leave out subsection (3) and insert—

‘(3)
Regulations made by virtue of subsection (2)(e)—

(a)
shall provide that any applicable limitation period will be suspended in

favour of a class member on a specified date and will resume running

against the class member on the occurrence of specified events, and

(b)
may make similar provision with respect to the period within which any

appeal in collective proceedings is being finally determined.


No provision may be made about periods before the commencement of collective

proceedings.’.

Clause Agreed to.

Mr Mark Hoban

Withdrawn  65

Clause  23,  page  26,  line  20,  leave out paragraph (a) and insert—

‘(a)
to make a single award of damages in respect of all or some of those

claims if the aggregate of the defendant’s liability to some or all class

members can be determined by a reasonably accurate assessment and

without proof by individual class members,’.

Mr Mark Hoban

Not called  66

Clause  23,  page  26,  line  25,  at end insert—

‘(3A)
The regulations must require the court, before making an order under subsection

(3), to provide the defendant with an opportunity to make submissions to the court

in respect of any matter relating to a proposed aggregate damages award.’.

Mr Mark Hoban

Withdrawn  67

Clause  23,  page  26,  line  38,  leave out from ‘applied’ to end of line 39 and insert ‘in

a manner that may reasonably be expected to benefit class members.’.

Public Bill Committee Proceedings: 12 January 2010
18

Financial Services Bill, continued

Clause Agreed to.

Mr Mark Hoban

Withdrawn  68

Clause  24,  page  27,  line  19,  after ‘about’, insert ‘disclosure and’.

Mr Mark Hoban

Not called  69

Clause  24,  page  28,  line  12,  at end add—

‘(8)
Rules under subsection (2)(a) must require the court only to make a collective

proceedings order if it is satisfied that—

(a)
collective proceedings are the most appropriate means for the fair and

efficient resolution of the common issues of fact or law;

(b)
there is a person, certified or authorised body suitable to be authorised to

bring collective proceedings as representative claimant; and

(c)
the collective proceedings have a real prospect of success.

(9)
Rules under subsection (2)(d) and (e) must require the court, when considering

the suitability of any proposed representative, to be satisfied that such person—

(a)
would fairly and adequately represent the interests of the class;

(b)
does not have an interest that is in conflict with the interests of class

members;

(c)
has prepared a plan for the collective proceedings that sets out a method

to the satisfaction of the court for bringing the proceedings on behalf of

the class and for notifying class members of the fact and progress of the

proceedings;

(d)
has in place adequate resources for the conduct of the collective

proceedings, which shall include adequate resources for the conduct of

the collective proceedings (including any adverse costs awards).

(10)
Rules under subsection (2)(j) shall provide—

(a)
that the representative shall be liable for the claimants’ costs, except—

(i)
where the court authorises a sub-class representative, who shall

be liable for the costs associated with the determination of the

issues common to the sub-class;

(ii)
the costs of the determination of class members’ own individual

claims, for which individual class members shall be liable;

(b)
that the general rule shall be that the unsuccessful party shall pay the

costs of the successful party, although the court may make a different

order;

(c)
that security for costs shall be available against a claimant who is acting

as a representative if there is reason to believe that he will be unable to

pay the defendant’s costs if so ordered to do.

(11)
Rules under subsection (2)(h) must provide that a party to collective proceedings

may obtain disclosure of documents in the possession of class members other

than the representative with the permission of the court.

(12)
Rules under subsection (2)(i) must provide that—

(a)
a settlement of collective proceedings shall not take effect unless the

court conducts a hearing as to the fairness of the proposed settlement,

upon notice to the parties prescribed under the rules, and approves the

Public Bill Committee Proceedings: 12 January 2010
19

Financial Services Bill, continued

contents of the settlement agreement on terms which it considers to be

appropriate; and

(b)
when approved, a settlement—

(i)
binds every class member who has not opted out of or been

excluded from collective proceedings;

(ii)
binds every class member who has opted into collective

proceedings; and

(iii)
does not bind a party to the collective proceedings in any

subsequent proceeding between the party and a person who

opted out of, had been excluded from or who has failed to opt

into collective proceedings.

(13)
The rules may not permit a person to substitute as a representative in proceedings

brought on an “opt-out” basis unless such person is a body exercising public

functions and is authorised to act as representative by the Lord Chancellor under

section 18(7)(b).’.

Clause Agreed to.

Ian Pearson

Agreed to  85

Clause  25,  page  28,  line  34,  at end insert—

‘(8)
The Treasury may by order amend subsection (2)(b) so that, in Scotland, the

definition of “the court” is extended to include the sheriff.

(9)
An order under subsection (8) is subject to negative resolution procedure.’.

Clause, as amended, Agreed to.

[Adjourned until Thursday at 9.00 am



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