ENF 6.3 Section 380: the power

Under section 380 of the Act (Injunctions), the FSA has power to apply to court for an injunction against persons, whether authorised or not, in connection with a contravention of a 'relevant requirement'. (The Secretary of State for Trade and Industry may also apply for injunctions under this section of the Act).

Sections 380(6)(a) and (7)(a) state that in relation to an application by the FSA, 'relevant requirement' means a requirement:

1. (1)

   'which is imposed by or under the Act; or

2. (2)

   which is imposed by or under any other Act and whose contravention constitutes an offence which the FSA has power to prosecute under the Act (or in the case of Scotland, which is imposed by or under any other Act and whose contravention constitutes an offence under Part V of the Criminal Justice Act 1993 (insider dealing) or under prescribed regulations relating to money laundering)'.

Sections 380(1), (2) and (3) set out the grounds on which the court may grant an injunction.

1. (1)

   Under section 380(1), the FSA may apply to court for an injunction restraining or prohibiting a contravention of a relevant requirement.

2. (2)

   Section 380(1) states, 'If, on the application of the FSA or the Secretary of State, the court is satisfied:

   1. (a)

      that there is a reasonable likelihood that any person will contravene a relevant requirement; or

   2. (b)

      that any person has contravened a relevant requirement and that there is a reasonable likelihood that the contravention will continue or be repeated,

   the court may make an order restraining (or in Scotland an interdict prohibiting) the contravention.'

1. (1)

   Under section 380(2), the FSA may apply to court for an injunction directing a person to remedy a contravention of a relevant requirement.

2. (2)

   Section 380(2) states, 'If on the application of the FSA or the Secretary of State the court is satisfied:

   1. (a)

      that any person has contravened a relevant requirement; and

   2. (b)

      that there are steps which could be taken for remedying the contravention,

   the court may make an order requiring that person, and any other person who appears to have been knowingly concerned in the contravention, to take such steps as the court may direct to remedy it.'

Under section 380(5), 'remedying a contravention' (see ENF 6.3.5 G) includes mitigating the effect of that contravention.

1. (1)

   Under section 380(3), the FSA may apply to court for an injunction to secure assets.

2. (2)

   Section 380(3) states, 'If, on the application of the FSA or the Secretary of State, the court is satisfied that any person may have:

   1. (a)

      contravened a relevant requirement; or

   2. (b)

      been knowingly concerned in the contravention of such a requirement,

   it may make an order restraining (or in Scotland an interdict prohibiting) him from disposing of, or otherwise dealing with, any assets of his which it is satisfied he is reasonably likely to dispose of or otherwise deal with.'