CASS 7.9 Client money distribution

This section (the client money (MiFID business) distribution rules) applies to a firm that holds client money which is subject to the client money rules when a primary pooling event or a secondary pooling event occurs.

A primary pooling event occurs:

1. (1)

   on the failure of the firm;

2. (2)

   on the vesting of assets in a trustee in accordance with an 'assets requirement' imposed under section 48(1)(b) of the Act;

3. (3)

   on the coming into force of a requirement for all client money held by the firm; or

4. (4)

   when the firm notifies, or is in breach of its duty to notify, the FSA, in accordance with CASS 7.6.16 R (Notification requirements), that it is unable correctly to identify and allocate in its records all valid claims arising as a result of a secondary pooling event.

CASS 7.9.4 R (4) does not apply so long as:

1. (1)

   the firm is taking steps, in consultation with the FSA, to establish those records; and

2. (2)

   there are reasonable grounds to conclude that the records will be capable of rectification within a reasonable period.

If a primary pooling event occurs:

1. (1)

   client money held in each client money account of the firm is treated as pooled; and

2. (2)

   the firm must distribute that client money in accordance with CASS 7.7.2 R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7 R.

1. (1)

   When, in respect of a client, there is a positive individual client balance and a negative client equity balance, the credit must be offset against the debit reducing the individual client balance for that client.

2. (2)

   When, in respect of a client, there is a negative individual client balance and a positive client equity balance, the credit must be offset against the debit reducing client equity balance for that client.

Client money received by the firm after a primary pooling event must not be pooled with client money held in any client money account operated by the firm at the time of the primary pooling event. It must be placed in a client bank account that has been opened after that event and must be handled in accordance with the client money rules, and returned to the relevant client without delay, except to the extent that:

1. (1)

   it is client money relating to a transaction that has not settled at the time of the primary pooling event; or

2. (2)

   it is client money relating to a client, for whom the client money entitlement, calculated in accordance with CASS 7.9.7 R, shows that money is due from the client to the firm at the time of the primary pooling event.

If a firm receives a mixed remittance after a primary pooling event, it must:

1. (1)

   pay the full sum into the separate client bank account opened in accordance with CASS 7.9.9 R; and

2. (2)

   pay the money that is not client money out of that client bank account into a firm's own bank account within one business day of the day on which the firm would normally expect the remittance to be cleared.

If both a primary pooling event and a secondary pooling event occur, the provisions of this section relating to a primary pooling event apply.

A secondary pooling event occurs on the failure of a third party to which client money held by the firm has been transferred under CASS 7.4.1 R (1) to CASS 7.4.1 R (3) (Depositing client money) or CASS 7.5.2 R (Transfer of client money to a third party).

CASS 7.9.19 R to CASS 7.9.31 R do not apply if, on the failure of the third party, the firm repays to its clients or pays into a client bank account, at an unaffected bank, an amount equal to the amount of client money which would have been held if a shortfall had not occurred at that third party.

If a secondary pooling event occurs as a result of the failure of a bank where one or more general client bank accounts are held, then:

1. (1)

   in relation to every general client bank account of the firm, the provisions of CASS 7.9.21 R, CASS 7.9.26 R and CASS 7.9.27 R will apply;

2. (2)

   in relation to every designated client bank account held by the firm with the failed bank, the provisions of CASS 7.9.23 R, CASS 7.9.26 R and CASS 7.9.27 R will apply;

3. (3)

   in relation to each designated client fund account held by the firm with the failed bank, the provisions of CASS 7.9.24 R, CASS 7.9.26 R and CASS 7.9.27 R will apply;

4. (4)

   any money held at a bank, other than the bank that has failed, in designated client bank accounts, is not pooled with any other client money; and

5. (5)

   any money held in a designated client fund account, no part of which is held by the bank that has failed, is not pooled with any other client money.

If a secondary pooling event occurs as a result of the failure of a bank where one or more designated client bank accounts or designated client fund accounts are held, then:

1. (1)

   in relation to every designated client bank account held by the firm with the failed bank, the provisions of CASS 7.9.23 R, CASS 7.9.26 R and CASS 7.9.27 R will apply; and

2. (2)

   in relation to each designated client fund account held by the firm with the failed bank, the provisions of CASS 7.9.24 R, CASS 7.9.26 R and CASS 7.9.27 R will apply.

Money held in each general client bank account and client transaction account of the firm must be treated as pooled and:

1. (1)

   any shortfall in client money held, or which should have been held, in general client bank accounts and client transaction accounts, that has arisen as a result of the failure of the bank, must be borne by all the clients whose client money is held in either a general client bank account or client transaction account of the firm, rateably in accordance with their entitlements;

2. (2)

   a new client money entitlement must be calculated for each client by the firm, to reflect the requirements in (1), and the firm's records must be amended to reflect the reduced client money entitlement;

3. (3)

   the firm must make and retain a record of each client's share of the client money shortfall at the failed bank until the client is repaid; and

4. (4)

   the firm must use the new client money entitlements, calculated in accordance with (2), for the purposes of reconciliations pursuant to CASS 7.6.2 R (Records and accounts), SYSC 4.1.1 R (General organisational requirements) and SYSC 6.1.1 R (Compliance) (as described in CASS 7.6.6 G).

For each client with a designated client bank account held at the failed bank:

1. (1)

   any shortfall in client money held, or which should have been held, in designated client bank accounts that has arisen as a result of the failure, must be borne by all the clients whose client money is held in a designated client bank account of the firm at the failed bank, rateably in accordance with their entitlements;

2. (2)

   a new client money entitlement must be calculated for each of the relevant clients by the firm, and the firm's records must be amended to reflect the reduced client money entitlement;

3. (3)

   the firm must make and retain a record of each client's share of the client money shortfall at the failed bank until the client is repaid; and

4. (4)

   the firm must use the new client money entitlements, calculated in accordance with (2), for the purposes of reconciliations pursuant to CASS 7.6.2 R (Records and accounts), SYSC 4.1.1 R (General organisational requirements) and SYSC 6.1.1 R (Compliance) (as described in CASS 7.6.6 G).

Money held in each designated client fund account with the failed bank must be treated as pooled with any other designated client fund accounts of the firm which contain part of the same designated fund and:

1. (1)

   any shortfall in client money held, or which should have been held, in designated client fund accounts that has arisen as a result of the failure, must be borne by each of the clients whose client money is held in that designated fund, rateably in accordance with their entitlements;

2. (2)

   a new client money entitlement must be calculated for each client by the firm, in accordance with (1), and the firm's records must be amended to reflect the reduced client money entitlement;

3. (3)

   the firm must make and retain a record of each client's share of the client money shortfall at the failed bank until the client is repaid; and

4. (4)

   the firm must use the new client money entitlements, calculated in accordance with (2), for the purposes of reconciliations pursuant to CASS 7.6.2 R (Records and accounts), SYSC 4.1.1 R (General organisational requirements) and SYSC 6.1.1 R (Compliance) (as described in CASS 7.6.6 G).

A client whose money was held, or which should have been held, in a designated client bank account with a bank that has failed is not entitled to claim in respect of that money against any other client bank account or client transaction account of the firm.

Client money received by the firm after the failure of a bank, that would otherwise have been paid into a client bank account at that bank:

1. (1)

   must not be transferred to the failed bank unless specifically instructed by the client in order to settle an obligation of that client to the failed bank; and

2. (2)

   must be, subject to (1), placed in a separate client bank account that has been opened after the secondary pooling event and either:

   1. (a)

      on the written instruction of the client, transferred to a bank other than the one that has failed; or

   2. (b)

      returned to the client as soon as possible.

If a firm receives a mixed remittance after the secondary pooling event which consists of client money that would have been paid into a general client bank account, a designated client bank account or a designated client fund account maintained at the bank that has failed, it must:

1. (1)

   pay the full sum into a client bank account other than one operated at the bank that has failed; and

2. (2)

   pay the money that is not client money out of that client bank account within one business day of the day on which the firm would normally expect the remittance to be cleared.

If a secondary pooling event occurs as a result of the failure of an intermediate broker, settlement agent or OTC counterparty, then in relation to every general client bank account and client transaction account of the firm, the provisions of CASS 7.9.30 R and CASS 7.9.31 R will apply.

Money held in each general client bank account and client transaction account of the firm must be treated as pooled and:

1. (1)

   any shortfall in client money held, or which should have been held, in general client bank accounts and client transaction account, that has arisen as a result of the failure, must be borne by all the clients whose client money is held in either a general client bank account or a client transaction accounts of the firm, rateably in accordance with their entitlements;

2. (2)

   a new client money entitlement must be calculated for each client by the firm, to reflect the requirements of (1), and the firm's records must be amended to reflect the reduced client money entitlement;

3. (3)

   the firm must make and retain a record of each client's share of the client money shortfall at the failed intermediate broker, settlement agent or OTC counterparty until the client is repaid; and

4. (4)

   the firm must use the new client money entitlements, calculated in accordance with (2), for the purposes of reconciliations pursuant to CASS 7.6.2 R (Records and accounts), SYSC 4.1.1 R (General organisational requirements) and SYSC 6.1.1 R (Compliance) (as described in CASS 7.6.6 G).

Client money received by the firm after the failure of an intermediate broker, settlement agent or OTC counterparty, that would otherwise have been paid into a client transaction account at that intermediate broker, settlement agent or OTC counterparty:

1. (1)

   must not be transferred to the failed third party unless specifically instructed by the client in order to settle an obligation of that client to the failed intermediate broker, settlement agent or OTC counterparty; and

2. (2)

   must be, subject to (1), placed in a separate client bank account that has been opened after the secondary pooling event and either:

   1. (a)

      on the written instruction of the client, transferred to a third party other than the one that has failed; or

   2. (b)

      returned to the client as soon as possible.

On the failure of a third party with which money is held, a firm must notify the FSA:

1. (1)

   as soon as it becomes aware of the failure of any bank, intermediate broker, settlement agent, OTC counterparty or other entity with which it has placed, or to which it has passed, client money; and

2. (2)

   as soon as reasonably practical, whether it intends to make good any shortfall that has arisen or may arise and of the amounts involved.