Financial Services and Markets Act 2000, section 138D

Actions for damages

PART 9A Rules and Guidance

(1)A rule made by the PRA may provide that contravention of the rule is actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.

(2)A contravention by an authorised person of a rule made by the FCA is actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.

(3)If rules made by the FCA so provide, subsection (2) does not apply to a contravention of a specified provision of the rules.

(4)In prescribed cases, a contravention of a rule which by virtue of subsection (1) or (2) would be actionable at the suit of a private person is actionable at the suit of a person who is not a private person, subject to the defences and other incidents applying to actions for breach of statutory duty.

(5) In subsections (1), (2) and (3) “rule” does not include—

[F1118 (za)rules under section 64A (rules of conduct);F1118]

[F1119 (zaa)rules under Part 5A;F1119]

(a)Part 6 rules;

(b)rules under section 137O (threshold condition code);

(c)rules under section 192J (provision of information by parent undertakings);

(d)a rule requiring an authorised person to have or maintain financial resources.

(6) “Private person” has such meaning as may be prescribed.

Read section 138D in the full Act → Definitions (6) Cases (57)

Definitions used in section 138D

rule

“rule” means a rule made by the FCA or the PRA under this Act;

Defined in s.417(1) · see it in the full Act
the PRA

“the PRA” means the Prudential Regulation Authority;

Defined in s.417(1) · see it in the full Act
authorised person

“authorised person” has the meaning given in section 31(2);

Defined in s.417(1) · see it in the full Act

(2) In this Act “authorised person” means a person who is authorised for the purposes of this Act.

Defined in s.31(2) · see it in the full Act
the FCA

(2) The Financial Conduct Authority is in this Act referred to as “the FCA”.

Defined in s.1A(2) · see it in the full Act

“the FCA” means the Financial Conduct Authority;

Defined in s.417(1) · see it in the full Act
Specified

(5) “Specified” means specified in an order made by the Treasury.

Defined in s.22(5) · see it in the full Act
prescribed

“prescribed” (where not otherwise defined) means prescribed in regulations made by the Treasury;

Defined in s.417(1) · see it in the full Act

Cases considering section 138D (57)

Options UK Personal Pensions LLP v Financial Ombudsman Service Limited

[2024] EWCA Civ 541 · 20 May 2024Limits

Contravention of an FCA rule is actionable by a private person who suffers resulting loss, subject to provision otherwise. The court held that actionability does not limit an ombudsman's reliance on non-actionable regulatory standards. (see paras [47]; [75]–[76]; [84]) Recognised as permitting a rule to exclude a private action. Such exclusion does not remove the rule's other regulatory functions or prevent ombudsman redress. (see paras [47]; [75]–[76])

CGL Group Ltd & Ors v The Royal Bank of Scotland Plc & National Westminster Bank Plc & Ors (Rev. 1)

[2017] EWCA Civ 1073 · 24 July 2017Limits

The section confines actions for breach of regulatory rules to prescribed classes and permits some rights of action to be excluded. Recognising a co-extensive common law duty to corporate customers would circumvent those statutory choices (see paras [85]-[87]).

Mark Grogan v IG Index Ltd

[2026] EWHC 1998 (Ch) · 31 July 2026

The court treated a contravention of an FCA rule by an authorised person as actionable by a private person suffering consequential loss, subject to the ordinary defences and incidents of breach-of-statutory-duty claims. It supplied the statutory basis for the damages claim, although no contravention was proved. (see paras [75]-[77])

37 more judgments, and what each says about section 138D, are in the case-law panel in the full Act.

Amendments and notes

8 notes from legislation.gov.uk

Amendments

  1. F1118S. 138D(5)(za) inserted (25.7.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 9; S.I. 2014/1819, art. 2(4)(b)
  2. F1119S. 138D(5)(zaa) inserted (29.8.2023) by Financial Services and Markets Act 2023 (c. 29), ss. 8(6), 86(3); S.I. 2023/779, reg. 4(e)

Modifications

  1. C488S. 138D applied by S.R. 2004/335, reg. 25(6) (as amended) (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 87(6)
  2. C489S. 138D modified by S.I. 2002/1775, reg. 3(2)(a) (as amended) (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 77(4)(b)
  3. C490S. 138D applied (with modifications) (13.8.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(b)(ii)(6), Sch. 6 para. 3(3) (with reg. 3)
  4. C491S. 138D applied (with modifications) (8.6.2023 for specified purposes, 7.10.2023 in so far as not already in force) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 (S.I. 2023/612), art. 1(2), Sch. para. 12 (with art. 11)
  5. C492S. 138D applied (with modifications) (18.9.2023) by S.I. 2011/99, Sch. 3 para. 2A(3) (as substituted by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 2(3)(a)(v))
  6. C493S. 138D applied (with modifications) (18.9.2023) by S.I. 2017/752, Sch. 6 para. 3(3) (as substituted by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 4(5)(a)(v))