Sipp provider granted appeal in Fos case

Sipp provider granted appeal in Fos case

A pension provider who lost a judicial review in the High Court over the alleged mis-selling of self-invested personal pensions (Sipps) has been granted permission to appeal the decision.

In October 2018 Berkeley Burke lost its fight against a decision from 2014, in which the Financial Ombudsman Service ruled the Sipp provider had to compensate a client after it failed to carry out adviser-style due diligence on his investment. 

The High Court’s dismissal meant the ombudsman's ruling stood, but Berkeley Burke made clear its intention to appeal the decision at the time of the ruling - an application that has now been granted.   

Lord Justice Hickinbottom of the Court of Appeal granted the permission, claiming the decision was potentially one of "considerable and wider importance within the industry and for customers."

The appeal is expected to be heard in the autumn.

The original Fos decision ordered Berkeley Burke to repay Wayne Charlton after he lost part of his pension to unregulated investment Sustainable AgroEnergy, which had promised returns of between 8 and 9 per cent.

The company purported to provide agricultural land leases in Cambodia, where they would grow jatropha trees for biofuel.

But in 2012 the company was investigated by the Serious Fraud Office and went into administration. 

In the High Court ruling against Berkeley Burke in October, Mr Justice Jacobs listed four instances when he felt a Sipp operator should intervene; 

1) when the proposed investment is not eligible for the tax benefits of being put in a Sipp.

2) when the rules on what can be put into a Sipp change.

3) when the provider receives information which casts doubt on the integrity of those promoting the investment.

4) when the Sipp provider has learnt of problems, such as a possible insolvency, which affect the proposed investment.

A Berkeley Burke spokesperson said the firm maintains the ombudsman "erred in law" applying the FCA principles in a way that created a "new and unexpected duty of care" on the part of Sipp operators to investigate investments before accepting them into a Sipp.

The spokesperson added: "Berkeley Burke shall continue to take all reasonable steps to pursue this case and defend its position through the appeal process, to ensure that both regulated financial service operators and their customers can continue to conduct business with the certainty that the rules of conduct of the appropriately appointed independent regulator – in this instance the FCA – shall apply to all parties uniformly and with the intended effect in which they were drafted."