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The Court of Appeal allowed Personal Touch Financial Services’ appeal against a decision at first instance. The appeal concerned an appointed representative agreement between Personal Touch and Simplysure that enabled Simplysure to sell private medical health insurance on behalf of Personal Touch.

At first instance, Personal Touch was found to have unlawfully terminated the appointed representative agreement despite the fact that Simplysure was found to have been conducting its business in breach of the general prohibition. In particular, Simplysure had allowed advisors who were not authorised by Personal Touch to complete parts of fact-finds with potential customers. The Court of Appeal confirmed that that activity fell within the scope of “arranging deals in investments” (Regulated Activities Order 2001, article 25) and that the scope of that activity was “deliberately wide”. However, in construing the term relied upon by Personal Touch, the Court noted that the parties had chosen to describe it as a “condition of the agreement”. The Court observed that such language, whilst not definitive, must be given due weight when considering whether or not the term is a condition, intermediate term or warranty. The Judge at first instance had failed to give the chosen language any weight and in so doing he erred. In the regulatory context of the agreement, the clear words could only mean that the parties intended the term to be a condition.

In addition, the Court of Appeal overturned the finding that the Appellant was liable to Usay Business for future renewal commissions connected with policies sold under the appointed representative agreement. 

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/461.html

Simon Pritchard acted for Personal Touch Financial Services. 

 

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