Financial Services and Markets Act 2000, section 384

Power of FCA or PRA to require restitution

Part XXV Injunctions and Restitution

(1) [F2878 The appropriate regulator F2878] may exercise the power in subsection (5) if it is satisfied that an authorised person[F2879 or recognised investment exchange F2879] (“the person concerned”) has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and—

(a)that profits have accrued to him as a result of the contravention; or

(b)that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.

[F2880 (2)The FCA may exercise the power in subsection (5) if it is satisfied that—

(a) a person (“the person concerned”) has contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation; and

(b)the condition mentioned in subsection (3) is fulfilled.F2880]

(3)The condition is—

(a)that profits have accrued to the person concerned as a result of the [F2881contravention of Article 14 or 15 of the market abuse regulationF2881] ; or

(b)that one or more persons have suffered loss or been otherwise adversely affected as a result of the [F2881contravention of Article 14 or 15 of the market abuse regulationF2881] .

F2882 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The power referred to in subsections (1) and (2) is a power to require the person concerned, in accordance with such arrangements as the [F2883 regulator exercising the power (“the regulator concerned”) F2883] considers appropriate, to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the [F2884 regulator concerned F2884] to be just having regard—

(a)in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the [F2884regulator concernedF2884] to have accrued;

(b)in a case within paragraph (b) of subsection (1) or (3), to the extent of the loss or other adverse effect;

(c)in a case within paragraphs (a) and (b) of subsection (1) or (3), to the profits appearing to the [F2884regulator concernedF2884] to have accrued and to the extent of the loss or other adverse effect.

(6) “Appropriate person” means a person appearing to the [F2885 regulator concerned F2885] to be someone—

(a)to whom the profits mentioned in paragraph (a) of subsection (1) or (3) are attributable; or

(b)who has suffered the loss or adverse effect mentioned in paragraph (b) of subsection (1) or (3).

(7) “Relevant requirement” means—

(a)F2889a requirement imposed by or under this Act [F2886or by [F2887 a [F2888 qualifying provisionF2888] specified, or of a description specified, for the purposes of this subsection by the Treasury by orderF2887,F2886]] ; ...

(b)a requirement which is imposed by or under any other Act and whose contravention constitutes an offence [F2890mentioned in section 402(1)F2890][F2891 ; F2892...

(c)a requirement imposed by the Alternative Investment Fund Managers Regulations 2013F2891] ; [[F2893,F2894 orF2894]

(d)a requirement which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under [F2895 that Part.F2895] [F2895 that Part; orF2895,F2893]]

[F2896 (e)a requirement imposed by or under Chapter 2 of Part 2 of the Financial Services and Markets Act 2000 (Cryptoassets) Regulations 2026.F2896]

F2897 (8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2898 (9) The PRA is the “appropriate regulator” in the case of a contravention of—

(a)a requirement that is imposed by the PRA under any provision of this Act,

(b)a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or

(c)a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.

(10) In the case of a contravention of a requirement that is imposed by a [F2899 qualifying provision F2899] , “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the [F2899 qualifying provision F2899] for the purposes of this section.

(11) In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is the regulator which has power to prosecute the offence (see section 401).

(12) The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.

(13) The Treasury may by order amend the definition of “appropriate regulator”. F2898]

Read section 384 in the full Act → Definitions (12) Cases (10)

Definitions used in section 384

appropriate regulator

(11) The FCA is the “appropriate regulator” in the case of a contravention of any other requirement , other than a case falling within paragraph 26 of Schedule 17A .

Defined in s.380(11) · 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
recognised investment exchange

“recognised CSD”, “recognised clearing house” and “recognised investment exchange” have the meaning given in section 285;

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

(a) “recognised investment exchange” means an investment exchange in relation to which a recognition order is in force;

Defined in s.285(1) · see it in the full Act
relevant requirement

(3) For the purposes of that power, “relevant requirement” is to be read in accordance with paragraph 26(2) of this Schedule (subject to sub-paragraph (3A)) .

Defined in Sch.17A para.28(3) · 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
market abuse regulation

“market abuse regulation” means Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC , 2003/125/EC and 2004/72/EC , as it forms part of assimilated law ;

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

“regulator” has the meaning given in section 3A(2);

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

(1) In this Act “qualifying provision” means a provision of any of the following—

(a) assimilated direct legislation;

(b)technical standards made in accordance with Chapter 2A of Part 9A;

(ba)other subordinate legislation made under assimilated direct legislation;

(c)subordinate legislation ... made by virtue of regulations made under section 8 of the European Union (Withdrawal) Act 2018.

Defined in s.425C(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
the PRA

“the PRA” means the Prudential Regulation Authority;

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

(5) In this Act “PRA-authorised person” means an authorised person who has permission—

(a)given under Part 4A, or

(b)resulting from any other provision of this Act,

Defined in s.2B(5) · see it in the full Act

“PRA-authorised person” has the meaning given in section 2B(5);

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

“prohibition order” (except in the expression “Part 9C prohibition order” or “Part 18C prohibition order” ) has the meaning given in section 56(2);

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

Cases considering section 384 (10)

The Financial Conduct Authority v BlueCrest Capital Management

[2024] EWCA Civ 1125 · 2 October 2024

Used to demonstrate that statutory restitution may be ordered without actionability or loss, and that redress powers are neither mutually exclusive nor necessarily subject to identical conditions (see paras [61]-[62]).

The All-Party Parliamentary Group on Fair Banking Group, R (on the application of) v The Financial Conduct Authority

[2025] EWHC 525 (Admin) · 7 March 2025

The FCA’s power to require restitution without a formal limitation period remained subject to the relevance of lapse of time and delay. Those considerations rationally supported declining further redress action. (see paras [15], [67], [70], [109]-[115])

Chopra & Anor v Bank of Singapore Ltd & Anor

[2015] EWHC 1549 (Ch) · 2 June 2015Limits

The proposed restitution claim could not proceed because the power was conferred on the FCA and PRA, not the court, and the provision concerned authorised persons. (see paras [70]-[71])

What each judgment says about section 384 is in the case-law panel in the full Act.

Explanatory note

671.This section gives the Authority the direct power to require an authorised person to pay restitution, without having to go through the court, although the authorised person does have the right to refer the matter to the Tribunal under section 386.  The Authority can order restitution to be paid by:

  • authorised persons who have contravened a requirement under the Act or who have committed an offence mentioned in section 402;

  • authorised persons who have been knowingly involved in such a contravention;

  • any person, whether authorised or not, who has engaged in market abuse.

672.The Secretary of State has no direct powers under this Part to require restitution.

673.The grounds for the Authority using this power are set out in subsections (1) and (2). These are that the Authority is satisfied that the person has done the misdeed and that, because of it, either profits have accrued to that person or one or more people have suffered loss or been adversely affected.

674.The Authority may require someone to pay restitution of an amount which it considers to be just, taking into account the profits that have accrued and/or the extent of the loss or adverse effect suffered.  The money is to be paid to people who have been directly affected by the contravention or offence, or to whom profits are attributable, as under sections 382 and 383.  Where restitution is sought via a court order, the money is paid initially to the Authority, but when the Authority uses its power under this section to require restitution directly, subsection (5) provides for the money to be paid straight to the final recipients.  The Authority may determine the arrangements for payment.

All the explanatory notes for the Act

Amendments and notes

36 notes from legislation.gov.uk

Amendments

  1. F2877Words in s. 384 heading substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(9) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  2. F2878Words in s. 384(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(2)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  3. F2879Words in s. 384(1) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(2)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  4. F2880S. 384(2) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(16)(a)
  5. F2881Words in s. 384(3) substituted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(16)(b)
  6. F2882S. 384(4) omitted (3.7.2016) by virtue of The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(16)(c)
  7. F2883Words in s. 384(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(4)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  8. F2884Words in s. 384(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(4)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  9. F2885Words in s. 384(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(5) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  10. F2889Word in s. 384(7) omitted (22.7.2013) by virtue of The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 29(a)
  11. F2886Words in s. 384(7)(a) inserted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 15
  12. F2887Words in s. 384(7)(a) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(6)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  13. F2888Words in s. 384(7)(a) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 72(2); 2020 c. 1, Sch. 5 para. 1(1)
  14. F2890Words in s. 384(7)(b) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(6)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  15. F2891S. 384(7)(c) and word inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 29(b)
  16. F2892Word in s. 384(7)(b) omitted (1.4.2014) by virtue of Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(4); S.I. 2014/377, art. 2(2)(c)
  17. F2893S. 384(7)(d) and word inserted (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 10 para. 3(4); S.I. 2014/377, art. 2(2)(c)
  18. F2894Word in s. 384(7)(c) omitted (25.2.2026 for specified purposes) by virtue of The Financial Services and Markets Act 2000 (Cryptoassets) Regulations 2026 (S.I. 2026/102), regs. 1(2)(3), 41(5)(a) (with regs. 53-56) text omitted for certain specified purposes only, see the commentary.
  19. F2895Words in s. 384(7)(d) substituted (25.2.2026 for specified purposes) by The Financial Services and Markets Act 2000 (Cryptoassets) Regulations 2026 (S.I. 2026/102), regs. 1(2)(3), 41(5)(b) (with regs. 53-56) text substituted for certain specified purposes only, see the commentary. Note: in some cases two versions of the measure may be present: the original version and substituted version.
  20. F2896S. 384(7)(e) inserted (25.2.2026 for specified purposes) by The Financial Services and Markets Act 2000 (Cryptoassets) Regulations 2026 (S.I. 2026/102), regs. 1(2)(3), 41(5)(c) (with regs. 53-56) text inserted for certain specified purposes only, see the commentary.
  21. F2897S. 384(8) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(7) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  22. F2898S. 384(9)-(13) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 23(8) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
  23. F2899Words in s. 384(10) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 72(3); 2020 c. 1, Sch. 5 para. 1(1)

Modifications

  1. C1287S. 384 modified (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(1)
  2. C1288S. 384 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 18(3)
  3. C1289S. 384 applied (with modifications) (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 17(2)
  4. C1290S. 384 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services Act 2012 (Consumer Credit) Order 2013 (S.I. 2013/1882), arts. 1(1), 3(10)
  5. C1291S. 384 modified by S.I. 2002/1775, reg. 12(1)(1A) (as substituted (24.3.2015) by The Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015 (S.I. 2015/852), arts. 1(2), 2(3))
  6. C1292S. 384 modified (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(1)(d) (with Pt. 4)
  7. C1293S. 384 modified (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 82(13)
  8. C1294S. 384 applied (with modifications) (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(7)(c)
  9. C1295S. 384 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. 23 (with art. 11)
  10. C1296S. 384 modified (15.7.2025 for specified purposes, 15.7.2026 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities etc.) (Amendment) Order 2025 (S.I. 2025/859), arts. 1(2)(3), 10(6)
  11. C1297S. 384 applied (with modifications) (22.11.2024 for specified purposes, 6.4.2026 in so far as not already in force) by The Consumer Composite Investments (Designated Activities) Regulations 2024 (S.I. 2024/1198), reg. 2(1)(c)(2), Sch. 1 para. 2; S.I. 2025/1078, reg. 7(b)
  12. C1298S. 384 applied (with modifications) (14.1.2025 for specified purposes, 13.7.2026 in so far as not already in force) by The Short Selling Regulations 2025 (S.I. 2025/29), regs. 2(2)(3), 24, 25, Sch. 1 Pts. 1, 2; S.I. 2026/587, reg. 2(b)
  13. C1299S. 384(5) extended (with modifications) (1.12.2001) by S.I. 2001/2657, arts. 1(1), 3 (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)