The Payment Services Regulations 2009

Supervision and enforcement

Power of OFT to investigate

98.—(1) The OFT may conduct an investigation where there are reasonable grounds for suspecting that any rule or condition governing access to, or participation in, a payment system contravenes regulation 97(1) or (3).

(2) Where the investigation relates to a possible breach of regulation 97(1)(b)(ii), the OFT must consult the Bank of England and the Authority.

OFT power to require information

99.—(1) For the purposes of an investigation under regulation 98 the OFT may require any person—

(a)to produce to it or to a person appointed by it, at a specified time and place, any specified document, or

(b)to provide to it or to a person appointed by it, at a specified time and place, any specified information,

which the OFT considers relates to any matter relevant to the investigation.

(2) The power conferred by paragraph (1) is to be exercised by a notice indicating the subject matter and purpose of the investigation.

(3) Information required to be provided under paragraph (1) must be provided in the specified manner and form, or, if that is not possible, in the nearest equivalent manner and form.

(4) The power conferred by paragraph (1) to require a person to produce a document includes power—

(a)to require them to provide an explanation of the document, or

(b)if the document is not produced, to require them to state, to the best of their knowledge and belief, where it is.

(5) In this regulation—

“document” includes information recorded in any form;

“information” includes estimates and forecasts;

“specified” means—

Failure to comply with information requirement

100.—(1) If, on an application made by the OFT, it appears to the court that a person (the “information defaulter”) has failed to do something that they were required to do under regulation 99, the court may make an order under this regulation.

(2) An order under this regulation may require the information defaulter—

(a)to do the thing that they failed to do within such period as may be specified in the order;

(b)otherwise to take such steps to remedy the consequence of the failure as may be so specified.

(3) In this regulation, “the court” means—

(a)in England and Wales and Northern Ireland, the High Court or the county court;

(b)in Scotland, the Court of Session or the sheriff court.

Privileged communications

101.—(1) A person is not required under regulation 99 to produce or disclose a privileged communication.

(2) In paragraph (1) “privileged communication” means a communication—

(a)between a professional legal adviser and their client, or

(b)made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,

which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.

(3) In the application of this regulation to Scotland the reference in paragraph (2) to—

(a)proceedings in the High Court is to be read as a reference to legal proceedings generally; and

(b)an entitlement on grounds of legal professional privilege is to be read as a reference to an entitlement on the grounds of confidentiality of communications.

Notice of OFT decision

102.  Before the OFT, as the result of an investigation under regulation 98, makes a decision that any rules or conditions governing access to, or participation in, a payment system contravene regulation 97(1) or (3), the OFT must—

(a)give notice to the person (or persons) who the OFT considers are responsible for the contravention, and

(b)give that person (or those persons) an opportunity to make representations.

Publication of OFT decision

103.  Where the OFT makes a decision after an investigation under regulation 98, the OFT must publish its decision, together with its reasons for making it.

Enforcement of decisions

104.—(1) If the OFT makes a decision that any rules or conditions governing access to, or participation in, a payment system contravene regulation 97(1) or (3), the OFT may give such directions as the OFT considers appropriate to such person or persons as it considers appropriate.

(2) A direction under paragraph (1) may (in particular)—

(a)require the person concerned to change any rule or condition so that it no longer contravenes regulation 97(1) or (3); and

(b)relate to the conduct of the person in implementing any rule or condition.

(3) A direction under paragraph (1) must be given in writing.

(4) If a person fails, without reasonable excuse, to comply with a direction under paragraph (1), the OFT may apply to the High Court (or, in Scotland, the Court of Session) for an order requiring that person to comply with the direction within a time specified in the order.

(5) An order under paragraph (4) may provide for all of the costs of, or incidental to, the application for the order to be borne by the person in default.

Power of OFT to impose financial penalties

105.—(1) Where the OFT is satisfied that any rules or conditions governing access to, or participation in, a payment system contravene regulation 97(1) or (3), the OFT may impose a penalty of such amount as it considers appropriate on such persons as it considers appropriate.

(2) The OFT may impose a penalty on a person under paragraph (1) only if the OFT is satisfied that the infringement has been committed intentionally or negligently by that person.

(3) Notice of a penalty under this regulation must—

(a)be in writing; and

(b)specify the date before which the penalty is required to be paid.

(4) The date specified must not be earlier than the end of the period within which an appeal against the notice may be brought under regulation 106.

(5) Any sums received by the OFT under this regulation are to be paid into the Consolidated Fund.