Your IndustryNov 17 2016

IFAs fight for their independence in High Court

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IFAs fight for their independence in High Court

Independent financial advisers who say they cannot make a living due to restrictive terms in their contracts are at the centre of a High Court test case.

The five advisers worked on a self-employed basis for Affinity Financial until July but departed after the firm was taken over by Wealth at Work (WAW).

Restrictive covenants in their contracts banned them from soliciting or canvassing any Affinity's customers with whom they dealt for 12 months.

Now Affinity is asking senior judge, Mr Justice Jay, to hold them to the restriction - but the five say it is simply unenforceable.

Affinity's barrister, Thomas Croxford, argues the covenant is entirely reasonable and "standard" in the industry.

The year-long restriction is no more than necessary and the firm is legitimately protecting its business from unfair competition, he told the court.

But the five, with the backing of 22 other former Affinity IFAs in the same position, are fighting the case tooth and nail.

Their barrister, Chris Quinn, says the firm is intent on unlawfully restricting their freedom to advise clients, contrary to the public interest.

He told the court Affinity had built its reputation on its independence, with IFAs able to advise customers on an unrestricted basis across the whole market.

However, he claimed that, since the takeover, Affinity had focused on selling WAW's bespoke discretionary funds to clients.

The firm also shifted away from using self-employed IFAs to employing advisers, he told the court.

The five either declined to accept employment contracts, or were not offered them, and their consultancy agreements terminated on July 31.

Affinity says the covenant means that the five cannot solicit or canvas any of its clients, with whom they dealt in the 12 months prior to termination, until July 31 2017.

Mr Quinn claimed that, due to the dispute, Affinity had "withheld" more than £570,000 earned by the five prior to their departure.

However, the firm had said that it would pay them the money forthwith if the court rules that the covenant is unenforceable.

Affinity denies that it is now favouring WAW products and insists that it is giving its clients a broad spectrum of advice, as it always has done.

But the five say there was a shift towards selling WAW products after the takeover and that "stripped away" their right to give independent advice.

Mr Quinn claimed that Affinity had been transformed and was now operating as a "wealth manager" or "discretionary fund manager".

The five and other IFAs had been "heavily incentivised to persuade their customers to switch their holdings to WAW's platform", he told the court.

Affinity says it is still focused on giving broad-based advice, but Mr Quinn alleged that "this is not the message that was very clearly conveyed" to the five.

The move away from advising clients across the whole financial market amounted to a "repudiatory breach" of the IFAs' contracts, he claimed.

All of them had worked in financial services before joining Affinity, said Mr Quinn, and were "encouraged" to bring their clients with them.

But now Affinity was trying to ban the five from soliciting or canvassing their "own clients" who they had dealt with for many years.

Affinity says that, even if the covenant is viewed as unreasonable, that can be cured by the "blue pencil" method of deleting certain clauses.

But Mr Quinn said such radical amendments would fundamentally change its character so that it no longer reflected what had been agreed.

The barrister added that "interfering" with the five's dealings with their clients for such an extended period was in any event "not in the public interest".

Affinity could make "no credible claim" that the five had misused confidential information, said Mr Quinn. 

There was "no evidence" that any of them had themselves breached the covenant or "induced" others to do so.

"To the contrary, the simultaneous mass rejection by Affinity IFAs of he WAW model speaks volumes", he told the judge.

"Given the fundamentally different role that they were being offered by WAW, and their belief that they were being told by WAW that they would have to 'churn' their clients' investments were they to meet their previous income, no inducement was required."