FCA Handbook - FPCOB Sch 3 Right of action for damages

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FPCOB Sch 3 Right of action for damages

The table below sets out the rules in FPCOB the contravention of which by an authorised person may be actionable under section 138D of the Act (Actions for damages) by a person who suffers loss as a result of the contravention.

If a “Yes” appears in the column headed “For private person?”, the rule may be actionable by a “private person” under section 138D (or, in certain circumstances, that person’s fiduciary or representative; see article 6(2) and (3)(c) of the Financial Services and Markets Act 2000 (Rights of Action) Regulations 2001 (SI 2001/2256)). A “Yes” in the column headed “Removed” indicates that the FCA has removed the right of action under section 138D(2) of the Act. If so, a reference to the rule in which it is removed is also given.

The column headed “For other person?” indicates whether the rule may be actionable by a person other than a private person (or his fiduciary or representative) under article 6(2) and (3) of those Regulations. If so, an indication of the type of person by whom the rule may be actionable is given.

Rights of action under section 138D
Chapter	Section/ Annex	Paragraph	For private person?	Removed?	Removed?
The fair, clear and not misleading rule in FPCOB 4.2.1R			Yes	In part (Note 1)	No
Any rule in FPCOB which prohibits an authorised person from seeking to make provision excluding or restricting any duty or liability			Yes	No	Yes	Any other person
The prudential rules for firms carrying on regulated funeral plan activity in FPCOB 15			No	Yes (see FPCOB 15.11.1R)	No
All other rules in FPCOB			Yes	No	No
Notes
1.	FPCOB 4.2.10R provides that if, in relation to a particular communication or financial promotion, a firm takes reasonable steps to ensure it complies with the fair, clear and not misleading rule, a contravention of that rule does not give rise to a right of action under section 138D of the Act.