Berkeley Burke wins leave to take FOS SIPP case to Court of Appeal

Hannah Godfrey reports...

Embattled SIPP administrator Berkeley Burke has been granted permission to appeal the judgement delivered against it in October last year.

Lord Justice Hickinbottom in the Court of Appeal, Civil Division, granted the appeal, which will be held at the Court of Appeal sometime in autumn 2019.

The appeal is in respect of last year’s High Court decision that rejected the self-invested personal pension (SIPP) provider’s claim against a Financial Ombudsman Service (FOS) decision.

In the original decision, the ombudsman ruled the SIPP administrator had to compensate a client after it failed to carry out appropriate due diligence on their investment.

Berkeley Burke, which facilitated the investment, argued it carried out the due diligence expected of it at the time, according to Conduct of Business Sourcebook (COBS) rules, and that the FOS subsequently placed undue responsibility by applying FCA Principles 2 and 6 in a way that created a new and unexpected duty of care on the part of SIPP operators.

‘All reasonable steps’

Hickinbottom said: “I am persuaded that this decision is potentially of considerable and wider importance within the industry and for customers, and that the issues raised by it should be considered by this court, which has not considered them before.”

A statement from Berkeley Burke said: “[We] 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 Financial Conduct Authority – shall apply to all parties uniformly and with the intended effect in which they were drafted.”