RPP 5-11 RPP 5-11 Civil Proceedings
Article 94 provides that where a
Personhas:(a) intentionally, recklessly or negligently committed a breach of duty, requirement, prohibition, obligation or responsibility imposed under the Law; or(b) committed fraud or other dishonest conduct in connection with the matter arising under the Law;
Personis liable to compensate any other Personfor any loss or damage caused to that other Personas a result of such conduct.
Article 94(2) provides that the
Courtmay, on application of the DFSA, or of a Personwho has suffered the loss or damage, make orders for the recovery of damages or for compensation or for the recovery of property or other order as the Courtsees fit, except where such liability is excluded under the Law and Rules administered by the DFSA.
Article 94 gives the
DFSA, and any aggrieved Persons, broad powers to make application for recovery of damages and other orders where there has been an identified contravention of the Laws and Rules administered by the DFSA. An aggrieved Personmay exercise rights provided under Article 94 independently of, or contemporaneously with, the DFSA.
DFSAmay decide not to commence proceedings in every case where there may have been a relevant contravention. This does not, however, prevent any aggrieved Personfrom commencing his own proceedings.
In determining whether to commence proceedings, the
DFSAwill take into account all relevant circumstances. It is not possible to provide an exhaustive list of the circumstances that may be taken into account, as they may depend on the facts of the particular matter. However, the following list indicates some of those matters that may be considered:(a) the nature, seriousness and impact of the suspected contravention and whether the alleged contravention is on-going;(b) whether the conduct and contravention affects, or has the potential to affect, the DFSAobjectives;(c) whether any party who may have suffered some detriment as a result of the alleged contravention is able to take his own remedial action;(d) in circumstances where more than one Personhas suffered loss or damage:(i) the number of those that have suffered loss or damage and the amount of loss or damage involved; and(ii) whether it is convenient or possible for a class of aggrieved Personsto run a proceeding;(e) the cost that the DFSAwould incur in applying for or enforcing any order that it is successful in obtaining;(f) whether the conduct in question can be adequately addressed by the use of other regulatory powers;(g) whether there is information to suggest that the Personis or has been, involved in money laundering, terrorist financing or other form of financial crime or criminal conduct; and(h) whether the DFSAhas a reasonable prospect of success in the relevant proceedings.