Entire Section

  • RPP 5-15 RPP 5-15 Settlement Guidance

    • RPP 5-15-1

      A settlement is a resolution, between the DFSA and a Person who is subject to potential enforcement action, to agree an outcome resulting from an investigation. A Person who is or may be the subject of any form of enforcement action arising out of, or during the course of, an investigation may enter into settlement discussions with the DFSA.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

    • RPP 5-15-2

      Settlement discussions are possible at any stage of the enforcement process, either before or after enforcement action has commenced. However, to be eligible for a discount on the amount of a financial penalty, settlement must be agreed within the period specified by the DFSA (see section 6-8). When considering whether or not to enter into negotiations for settlement, or a settlement agreement, the DFSA will consider its objectives.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
      Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • RPP 5-15-3

      The DFSA generally considers that settlement of an investigation advances its objectives in that it may result in, for example, consumers obtaining compensation sooner, the saving of DFSA and industry resources, and the promotion of good business and regulatory practices.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
      Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • RPP 5-15-4

      The DFSA's general view is that settlement discussions should take place as early as possible. However, the DFSA will only be able to settle when it is confident it has sufficient understanding of the nature and gravity of the suspected misconduct to make a reasonable assessment of the appropriate outcome.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

    • RPP 5-15-5

      The DFSA conducts settlement discussions on a "without prejudice" basis; namely, that no party to the discussions may subsequently rely upon any admissions or statements made during the course of the settlement discussion or on any document recording those discussions.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

    • RPP 5-15-6

      The DFSA will only settle when the agreed terms result in what the DFSA considers to be an appropriate regulatory outcome.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition

    • RPP 5-15-7

      Settlement in particular circumstances should not be regarded as binding precedent for future settlement discussions.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
      Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • RPP 5-15-8

      Where appropriate, the DFSA will provide the other party to a settlement discussion with copies of relevant material which it has relied upon in making findings in an investigation. However, some information may not be provided at the settlement stage. This would include information which is privileged, or information which the DFSA does not have the right or authority to disclose to the other party, such as information provided to the DFSA in confidence by another regulator.

      Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
      Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • Settlement Decision Makers

      • RPP 5-15-9

        The process for reaching a settled outcome is different to the process for the DFSA to exercise formally a discretionary power. For example, most of the DFSA’s formal decision making policy in chapter 7 of RPP and many of the requirements in Schedule 3 to the Regulatory Law do not apply.

        Added by Notice of Updates (Made 11th February 2020). February 2020 Edition

      • RPP 5-15-10

        The decision about whether to accept a settlement offer will be taken by a senior member of DFSA staff who has not been directly involved in establishing the evidence on which the decision to take the action is based. That person is referred to as a Settlement Decision Maker.

        Added by Notice of Updates (Made 11th February 2020). February 2020 Edition

      • RPP 5-15-11

        Settlement Decision Makers will generally come from the same pool of staff as persons who may be on a Decision Making Committee (DMC) (see section 7-7). The DMC is the DFSA’s decision maker for enforcement decisions in cases that have not been resolved through settlement. If a Settlement Decision Maker has been involved in considering a matter which ultimately does not result in agreement, then that person will generally not be a member of the DMC for that matter.

        Added by Notice of Updates (Made 11th February 2020). February 2020 Edition

      • RPP 5-15-12

        The case team will conduct the settlement negotiations with the Person(s) concerned. If agreement is reached, the case team will recommend to the Settlement Decision Maker that the settlement be approved. It will be for the Settlement Decision Maker to decide, on behalf of the DFSA, whether to accept the settlement on the agreed terms. If approved, the agreed terms will then be included in the appropriate form of settlement as set out in the following paragraphs.

        Added by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • Form of Settlement

      • RPP 5-15-13

        The DFSA will generally only settle an enforcement matter on the basis of either:

        (a) a notice of decision setting out the action taken (see 5-15-14); or
        (b) an Enforceable Undertaking (EU) (see 5-15-15).

        In appropriate cases, the DFSA may settle a matter on the basis of both a notice of decision and an EU. Any settlement entered into by the DFSA, which results in a notice of decision, will be documented in the form of a legally enforceable agreement executed by all parties.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • Notice of Decision

      • RPP 5-15-14

        When the DFSA agrees to settle an enforcement matter, the outcome of the settlement may result in an agreed notice of decision. The issue of such a notice promotes consistency of regulatory outcomes and transparency of approach to enforcement decision making.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • Enforceable Undertakings

      • RPP 5-15-15

        An EU is a written promise, made under Article 89, to do or refrain from doing a specified act or acts. It is an alternative mechanism for addressing the DFSA's concerns, including regulating contraventions of the Law. It may, amongst other things, include remedial actions that are not otherwise available under a notice of decision.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 28th January 2016). February 2016 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • Acceptance of an Enforceable Undertaking

      • RPP 5-15-16

        An EU may be given by a Person and accepted by the DFSA at any time, either before, during or after an investigation, the making of a decision or the commencement of litigation or proceedings in the Court. The DFSA does not have the power to require a Person to enter into an EU nor can a Person compel the DFSA to accept an EU. This does not mean, however, that the DFSA cannot propose an EU to a Person, during the course of settlement negotiations, or provide a Person with a draft EU to provide guidance as to the terms of an EU that the DFSA would be willing to accept.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

      • RPP 5-15-17

        The DFSA may accept an EU that it considers necessary or desirable in pursuit of its objectives. Article 89 does not prescribe a particular structure or format to an EU or the circumstances in which an EU would be acceptable to the DFSA. The DFSA will consider all the relevant circumstances of a matter when deciding whether to accept an EU including whether other regulatory tools, for example a notice of decision, might achieve a more appropriate outcome in the particular matter. However, in the context of an enforcement matter, the DFSA will generally only accept an EU that:

        (a) contains an admission or acknowledgement of any contraventions of the Law or the DFSA's concerns;
        (b) contains undertakings that address the DFSA's concerns; and
        (c) contains an agreement to make the EU public, and an agreement not to make public statements that conflict with the spirit of the EU.
        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 28th January 2016). February 2016 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

      • RPP 5-15-18

        A Person offering an EU to the DFSA may also undertake in the EU to pay a pecuniary penalty and/or the DFSA's costs, including any costs associated with compliance with the EU.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

      • RPP 5-15-19

        An EU will not take effect until it is formally accepted by the Chief Executive of the DFSA or his delegate.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • Variation or Withdrawal

      • RPP 5-15-20

        Once accepted by the DFSA, an EU can only be withdrawn or varied with the consent of the DFSA in writing. The DFSA will only consider a request to vary an undertaking if:

        (a) the variation will not alter the spirit of the original undertaking;
        (b) compliance with any one or more terms of the undertaking is subsequently found to be impractical or impossible; or
        (c) there has been a material change in the circumstances which led to the undertaking being given.
        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition

    • Compliance with an EU or Decision

      • RPP 5-15-21

        If the DFSA considers that a Person has not complied with a term of the EU or a decision, the DFSA may apply to the Court for appropriate orders. The DFSA may publish the fact of the application to the Court and any subsequent orders of the Court. The DFSA will also seek the costs of the application.

        Added by Notice of Updates (Made 23rd November 2014). November 2014 Edition
        Amended by Notice of Updates (Made 11th February 2020). February 2020 Edition