Santander UK Plc & Anor, Re

Communication arrangements for a proposed ring-fencing transfer scheme should be tailored to the structure of the scheme and the likely effect on different groups of customers. The court must balance sufficient notification, including awareness of any right to participate in the sanction process, against disproportionate communication and risks such as fraud or confusion. General communication may be appropriate for groups who are unlikely reasonably to wish to make submissions, while directly affected customers should ordinarily receive individual notification. Any preliminary approval remains provisional where the directions hearing and skilled person’s report may disclose a need for more specific communication.

Santander UK plc and Abbey National Treasury Services plc sought prospective directions concerning communications for an intended ring-fencing transfer scheme under Part VII of the Financial Services and Markets Act 2000. The scheme would transfer the products of a relatively small number of sophisticated customers, while leaving the great majority of retail and other customers unaffected. The application followed earlier procedural guidance given in Re Barclays Bank plc & ors [2017] EWHC 1482 (Ch) and sought confirmation that the proposed communications programme was consistent with that guidance.

1. The application was granted and the proposed order was approved, subject to the provisional nature of the approval.

2. The court applied the guidance given at the May hearing and in Re Barclays Bank plc & ors [2017] EWHC 1482 (Ch). That guidance contemplated a granular, scheme-specific approach rather than a uniform communication exercise. It was permissible to identify groups who would not reasonably wish to attend or make submissions and to rely for those groups on general methods of communication.

3. The proposed balance was adequate on the information then available. Direct notification was appropriate for transferring customers and non-transferring ANTS customers. More general notification through websites, statements, online banking messages, ATMs, branch posters, press and gazette notices, and media messaging was sufficient at that stage for the much larger group of customers whose products would remain within the Santander UK Group.

4. The court emphasised that the ultimate balance had to be struck at the directions hearing. A skilled person’s report or a change in circumstances might show that more specific communication was required. The approval therefore did not determine finally what communications would be required for the sanction process.

5. The appendix to the order could properly use the active language of the supporting evidence. Translating it into more formal passive drafting would add no useful precision.