Mr Justice Jacobs ruled in favour of Sense and against the 95 claimants who were clients of Alistair Greig, who owned and ran Midas Financial Solutions (Scotland) Ltd (MFSS).
The claimants alleged Sense was liable for their losses but Mr Justice Jacobs disagreed in a ruling which came just months after Tenet was found liable for the unregulated activities of one of its appointed representatives.
In explaining why he made the opposite ruling to the Tenet case, Mr Justice Jacobs said it was because the situation with Sense was the reverse.
He said the Tenet case involved an adviser - convicted fraudster Alok Dhanda - providing regulated advice to disinvest from one product and invest in an unregulated one, but in this case no regulated advice was provided.
Mr Justice Jacobs said: "In [the Tenet case], the claimants were able to identify authorised advice to which the (allegedly) unauthorised advice was closely connected. In the present case, however, the situation is the reverse. MFSS was running an unauthorised deposit-taking scheme.
"Any advice that was given in connection therewith was therefore closely connected with unauthorised activities, and therefore must fall outside the scope of [the Financial Services & Markets Act]."
The claimants also sought to prove Sense had failed to monitor the firm properly, but Mr Justice Jacobs disagreed and said MFSS had made "determined efforts" to hide the scheme from its network, citing testimony provided by former FCA specialist Rory Percival.
Mr Justice Jacobs said: "Ultimately, the issue is whether Sense put in place and operated a reasonable control environment in terms of monitoring the activities of MFSS. Mr Percival, who has considerable experience in this area, considered that Sense's control environment in terms of monitoring MFSS was reasonable. The claimants have failed to persuade me to take a contrary view."
He added: "As Sense rightly pointed out, determined efforts were made to ensure that nothing about the scheme was revealed on the documents that were uploaded to [Intelligent Office], and there is no reason to think that any hard copy files would have been any more revealing.
"Similarly, even if [...] the staff within MFSS should have been asked about the existence of other bank accounts used by MFSS, the overwhelming likelihood is that Sense would not have been told about the account that was used for the scheme. It was well understood within MFSS that Sense was not to be told about the scheme."
MFSS was a financial advice business based in Aberdeen which was a continuation of a scheme Mr Greig had operated when he had previously worked for a firm known as Park Row Associates Ltd.
It continued after Mr Greig founded MFSS in 2006 and after September 2007, when MFSS became an appointed representative of Sense.
As part of the scheme investors, most of whom were resident in Scotland and in particular in the Aberdeen area, were offered the opportunity to receive high guaranteed interest rates on short-term deposits.
When the deposit reached maturity, the investors would receive or be credited with interest but in reality the interest that was paid, and any capital returned, was not the product of successful investment but came from funds subscribed by participants in the scheme.
But in August 2014 the whistle on the scheme was blown by Keith Ingram, an employee of and financial adviser at MFSS, who provided information about the scheme to Sense.
Mr Ingram's information led to a raid on MFSS's offices by the Financial Conduct Authority and the police.
At the time of the enforcement action there was around £379,000 in the firm's account but some 279 members of the public had invested £12.8m and were owed £13.6m upon the maturity of their investments.
Mr Greig is now facing criminal prosecution in Scotland.
damian.fantato@ft.com
