Prudential Regulation Authority Rulebook

28.1

This Chapter applies to the FSCS.

28.2

The FSCS may determine that the payment of compensation by the FSCS shall have all or any of the following effects:

1. (1) the FSCS shall immediately and automatically be subrogated, subject to such conditions as the FSCS determines are appropriate, to all or any part (as determined by the FSCS) of the rights and claims in the UK and elsewhere of the compensation recipient against the DGS member and/or any third party (whether such rights are legal, equitable or of any other nature whatsoever and in whatever capacity the DGS member or third party is acting) in respect of or arising out of the compensation recipient’s deposits being unavailable;
2. (2) the FSCS may claim and take legal or any other proceedings or steps in the United Kingdom or elsewhere to enforce such rights in its own name or in the name of, and on behalf of, the compensation recipient or in both names against the relevant credit institution and/or any third party;
3. (3) the subrogated rights and claims conferred on the FSCS shall be rights of recovery and claims against the relevant credit institution and/or any third party which are equivalent (including as to amount and priority and whether or not the relevant DGS member is insolvent) to and not exceed the rights and claims that the compensation recipient would have had; and/or
4. (4) such rights and/or obligations (as determined by the FSCS) as between the firm and the compensation recipient arising out of the compensation recipient’s deposit being unavailable, shall be transferred to, and subsist between, another firm and the compensation recipient provided that the firm has consented (but the transferred rights and/or obligations shall be treated as existing between the firm and the FSCS to the extent of any subrogation, transfer or assignment for the purposes of (1) to (3) and 28.3).

[Note: Art. 9(2) of the DGSD]

28.3

1. (1) The FSCS may determine that, if it is necessary or desirable in conjunction with the exercise of the FSCS's powers under 28.2, that the compensation recipient shall be treated as having irrevocably and unconditionally appointed the chairman of the FSCS for the time being to be their attorney and agent and on their behalf and in their name or otherwise to do such things and execute such deeds and documents as may be required under such laws of the UK, another EEA State or any other state or country to create or give effect to such assignment or transfer or otherwise give full effect to those powers.
2. (2) The execution of any deed or document under (1) shall be as effective as if made in writing by the compensation recipient or by his agent lawfully authorised in writing or by will.

28.4

1. (1) The powers conferred on the FSCS in 28.2 and 28.3 to make a determination must be exercised in writing.
2. (2) An instrument by which the FSCS makes a determination must specify the provision under which it is made, the date and the time from which it takes effect and the DGS member and the eligible deposits or classes of eligible deposit in respect of which it applies.
3. (3) The FSCS must take appropriate steps to publish the determination as soon as possible after it is made. Such publication must be accompanied by a statement explaining the effect of 28.2 and the FSCS’s determination.
4. (4) Failure to comply with any requirement under this rule does not affect the validity of the determination.
5. (5) A determination by the FSCS under 28.2 may be amended, remade or revoked at any time and subject to the same conditions.

28.5

1. (1) The production of a copy of the determination purporting to be made by the FSCS under this Chapter:
1. (a) on which is endorsed a certificate, signed by a member of the FSCS’s staff authorised by it for that purpose; and
2. (b) which contains the required statements;
2. is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.
3. (2) The required statements are:
1. (a) that the determination was made by the FSCS; and
2. (b) that the copy is a true copy of the determination.
4. (3) A certificate purporting to be signed as mentioned in (1) is to be taken to have been properly signed unless the contrary is shown.
5. (4) A person who wishes in any legal proceedings to rely on a determination may require the FSCS to endorse a copy of the determination with a certificate of the kind mentioned in (1).