Requirement Notice
1
SUPPLEMENTAL APPLICATION TO REQUEST THAT REQUIREMENTS ARE IMPOSED ON
FIRM
[●] hereby applies, pursuant to Part 4A of the Financial Services and Markets Act 2000, for the
requirements set out in the schedule below.
SCHEDULE
General
1.
This schedule sets out the terms of the requirements to be imposed on [●], to take
immediate effect.
2
Requirements included in the Firm's permission at the request of the Firm under
section 55L of the Financial Services and Markets Act 2000
Terms referred to:
1.
In this Supplemental Requirement, expressions defined shall have the meanings given to
them in the Requirements unless the context otherwise requires.
2.
Expressions defined in the Authority’s Handbook of rules and guidance or in accordance
with paragraph 1 above have the meanings given to them unless the context otherwise
requires.
3.
In this Supplemental Requirement:
3.1
"this
Supplemental
Requirement"
means
the
amendments
to
the
Requirements set out in this document including Annex 1.
3.2
"the Requirements" means the requirements and provisions imposed by the
Authority on 13 August 2013 on the application of the Firm.
4.
The Requirements became effective on 13 August 2013.
5.
The Firm applies for the Requirements to be amended so as to incorporate the
amendments set out in this Supplemental Requirement.
6.
The Requirements shall be supplemented as follows:
6.1
The definition of 'Scheme of Arrangement' at paragraph 1.28 of the Requirements
shall mean the solvent scheme of arrangement under Part 26 of the Companies
Act 2006 as sanctioned by the Court on 14 January 2014 (as subsequently
modified in accordance with its terms) and as described more particularly in Annex
1 to this Supplemental Requirement. Changes to the Scheme of Arrangement as
appended to Part 1 of Annex C to the Requirements are highlighted through
underlined or struck through text.
6.2
All references in the Requirements to “Scheme Document” shall be references to
the Scheme of Arrangement described more particularly in Annex 1 hereto.
6.3
Paragraph 5.1 of Part 3 of Annex C of the Requirements shall be amended so as
to read as follows:
“If a Scheme Creditor disagrees with the amount of compensation payable to him,
he may initiate the Dispute Resolution Procedure to refer the dispute to the
Scheme Adjudicator, provided he does so within the time limits specified in
Clauses 4.5 and 4.8 of the Scheme Document. If a Scheme Creditor disagrees
with the rejection of his Claim Form by the Scheme Administrators, and provided
that the Claim Form was received on or before 22 July 2016, he may initiate the
Dispute Resolution Procedure to refer the dispute to the Scheme Adjudicator,
provided he does so within the time limits specified in Clauses 4.7 to 4.9 of the
Scheme Document.”
3
Annex 1: Terms of the Scheme of Arrangement
THE SCHEME
IN THE HIGH COURT OF JUSTICE
No. 5899 of 2013
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF
CARD PROTECTION PLAN LIMITED
IN THE MATTER OF THE COMPANIES ACT 2006
SCHEME OF ARRANGEMENT
(under Part 26 of the Companies Act 2006)
CARD PROTECTION PLAN LIMITED
and
THE SCHEME CREDITORS
(as defined below)
1.
PRELIMINARY
THE SCHEME
1.1
This document sets out the terms of the scheme of arrangement between CPP and its
Scheme Creditors.
DEFINITIONS
1.2
In this Scheme, unless inconsistent with the subject or context, the following expressions
bear the following meanings:
"Agreed Scheme Claim"
in relation to a Scheme Claim, the Scheme Claim that is
admitted by the Scheme Administrators (or the Scheme
Adjudicator in accordance with Clause 7 (Dispute
Resolution Procedure)) or has been determined in a
final and binding manner in accordance with Clause 4
(Admission of Claims)
"Amendment Date"
the date on which each Card Protection Product was re-
designed to remove the misleading post notification
insurance cover, being the following date in respect of
CPP and each respective Business Partner and Business
Partner Undertaking Affiliate listed below:
Barclays Bank plc
9 August 2011 unless the
Card Protection Product was
bought via a telephone sale,
in which case the relevant
date is 22 July 2011
Santander UK plc
21 March 2011
Santander Insurance
Services UK Limited (a
Business Partner Affiliate of
Santander UK plc)
Santander Cards UK Limited
(a Business Partner Affiliate
of Santander UK plc)
MBNA Limited
1 March 2011
The Royal Bank of Scotland
PLC
18 September 2011 unless
the Card Protection Product
was bought via a telephone
sale, in which case the
relevant date is 22 July
2011
National Westminster Bank
Plc (a Business Partner
Affiliate of The Royal Bank
of Scotland PLC)
18 September 2011 unless
the Card Protection Product
was bought via a telephone
sale, in which case the
relevant date is 22 July
2011
Ulster Bank Limited (a
Business Partner Affiliate of
The Royal Bank of Scotland
PLC)
18 September 2011 unless
the Card Protection Product
was bought via a telephone
sale, in which case the
relevant date is 22 July
2011
HSBC Bank plc
1 March 2011
Marks & Spencer Financial
Services plc (a Business
Partner Affiliate of HSBC
Bank plc)
John Lewis Financial
Services plc (a Business
Partner Affiliate of HSBC
Bank plc)
Canada Square Operations
Limited (formerly Egg
Banking plc)
CitiFinancial Europe plc (a
Business Partner Affiliate of
Canada Square Operations
Limited)
Citibank International plc (a
Business Partner Affiliate of
Canada Square Operations
Limited)
Capital One (Europe) Plc
1 March 2011
Bank of Scotland plc
18 September 2011
“Authority”
the body corporate previously known as the Financial
Services Authority and renamed on 1 April 2013 as the
Financial Conduct Authority
"Bank of Scotland plc"
a company registered in Scotland with registered
5
number SC327000 and registered office at the Mound,
Edinburgh, EH1 1YZ
"Bar Date"
the date falling seven months after the Scheme
Effective Date unless, in respect of a Scheme Creditor,
one or more of the Exceptional Circumstances apply in
which case, in respect of such Scheme Creditor, the Bar
Date shall be the date falling thirteen months after the
Scheme Effective Date
"Barclays Bank plc"
a company registered in England with registered
number 1026167 and registered office at 1 Churchill
Place, London, E14 5HP
"Basis for Admission of
Agreed Scheme Claims"
The Scheme Administrators will admit the claim if they
conclude that this is appropriate in light of the evidence
on the face of the Claim Form
"Business Day"
any day on which banks are open for transactions of
normal banking business in the City of London other
than a Saturday, Sunday or public holiday
"Business Partner Affiliate"
means, in relation to any Business Partner, a Subsidiary
of that Business Partner or a Holding Company of that
Business Partner or any other Subsidiary of that Holding
Company, including but not limited to the Business
Partner Undertaking Affiliates
"Business Partner
Undertaking Affiliate"
means those Business Partner Affiliates who have
signed a Deed of Undertaking, being:
CitiFinancial Europe plc (a Business Partner Affiliate of
Canada Square Operations Limited);
Citibank International plc (a Business Partner Affiliate of
Canada Square Operations Limited);
National Westminster Bank Plc (a Business Partner
Affiliate of The Royal Bank of Scotland PLC);
Santander Insurance Services UK Limited (a Business
Partner Affiliate of Santander UK plc);
Santander Cards UK Limited (a Business Partner
Affiliate of Santander UK plc);
Marks & Spencer Financial Services plc (a Business
Partner Affiliate of HSBC Bank plc);
John Lewis Financial Services Limited (a Business
Partner Affiliate of HSBC Bank plc); and
Ulster Bank Limited (a Business Partner Affiliate of The
Royal Bank of Scotland PLC)
"Business Partner Claim"
any claim, action or other right of any description
however arising in relation to, in connection with, or
arising from, Mis-selling which a Scheme Creditor has
against a Business Partner or a Business Partner
Affiliate under, in connection with, or arising from a
Scheme Card Protection Product and/or a Scheme
Identity Protection Product but only to the extent that
6
the claim, action or other right relates to loss suffered
on or after 14 January 2005. For the avoidance of
doubt, a relevant claim, action or other right shall be a
Business Partner Claim even if the relevant Mis-selling
occurred prior to 14 January 2005, but will only be a
Business Partner Claim to the extent of any loss
suffered on or after 14 January 2005
"Business Partners"
Barclays Bank plc, Santander UK plc, MBNA Limited,
The Royal Bank of Scotland PLC, HSBC Bank plc,
Nationwide Building Society, Clydesdale Bank PLC,
Tesco Personal Finance Plc, Canada Square Operations
Limited (formerly Egg Banking plc), Capital One
(Europe) Plc, Morgan Stanley Bank International
Limited, Home Retail Group Insurance Services and
Bank of Scotland plc, provided that, to the extent that
any such entity becomes insolvent prior to the Scheme
Effective Date, such entity shall cease to be a Business
Partner for the purposes of the Scheme
"Canada Square Operations
Limited"
a company registered in England with registered
number 02999842 and registered office at Citigroup
Centre, Canada Square, Canary Wharf, London E14 5LB
"Capital One (Europe) Plc"
a company registered in England with registered
number 03879023 and registered office at Trent House,
Station Street, Nottingham, NG2 3HX
"Card Protection Product"
a card protection insurance product sold by CPP or a
Business Partner or a Business Partner Affiliate in the
UK under one of the following brands:
CPP Card Protection;
HSBC CardGuard;
M&S Card Safe;
Barclaycard Card Protection;
Barclays Cardholder Protection;
Natwest Card Protection;
Card Protection Plus;
Commercial Card Protection; and
Egg Emergency Cover
"Cash Manager"
has the meaning given to it in the Implementation
Agreement
"Claim Form"
the claim form in respect of a Scheme Card Protection
Product in the form set out in Appendix 2 and/or the
claim form in respect of a Scheme Identity Protection
Product in the form set out in Appendix 3
"Clydesdale Bank Plc"
a company registered in Scotland with registered
number SC001111 and registered office at 30 St
7
"Client Identification
Agreement"
each agreement so titled dated on or about 19 August
2013 between the Scheme Administrators, CPP and
each Business Partner, as amended from time to time
"COMP"
the Compensation Sourcebook from the Authority's
Handbook of Rules and Guidance
"Companies Act"
the Companies Act 2006 (as amended from time to
time)
"Court"
the High Court of Justice in England and Wales
"Court Order"
the order of the Court sanctioning the Scheme under
section 899 of the Companies Act
"CPP"
Card Protection Plan Limited, a company registered in
England
with
registered
number
1490503
and
registered office at Holgate Park, York, YO26 4GA
"Deceased Policyholder"
a Policyholder who, based on the books and records of
CPP as at 27 June 2013 was deceased on or prior to 27
June 2013
"Deed of Undertaking"
a deed of undertaking executed in accordance with
Clause 2.4 of the Scheme
"Deemed Rejection"
has the meaning given to it in Clause 4.6 of this
Scheme
"Dispute Notice"
has the meaning given to it in Clause 7.1 of this
Scheme
"Dispute Resolution
Procedure"
the procedure set out in Clause 7 of this Scheme
"DISP"
the Dispute Resolution Sourcebook from the Authority's
Handbook of Rules and Guidance
"Disputed Scheme Claim"
any Scheme Claim that is referred to the Dispute
Resolution Procedure for determination
"Exceptional
Circumstances"
where a Scheme Creditor can demonstrate in writing to
the satisfaction of the Scheme Administrators that
either:
(i) the Scheme Creditor was out of the country for
six of the seven months following the Scheme
Effective Date; or
(ii) as a result of a certified medical condition (as
evidenced by appropriate documentation), it
was unreasonable to expect the Scheme
Creditor to respond (and such reason is
accepted by the Scheme Administrators in its
absolute discretion) prior to the expiry of the
seven month period following the Scheme
Effective Date; or
(iii) the Scheme Creditor has been requested to re-
submit a new Claim Form in accordance with
Clause 3.5 and the 30 day period for return of
such Claim Form falls on a date after the expiry
of the seven month period from the Scheme
Effective Date
"Excluded Policyholder"
A Policyholder who is a Deceased Policyholder, a No
Loss Policyholder or a Wholesale Policyholder
"Explanatory Statement"
the explanatory statement dated on or about the date
of this document required to be furnished to Scheme
Creditors pursuant to section 897 of the Companies Act
"FCA Handbook"
the FCA Handbook of Rules and Guidance prepared by
the Authority under FSMA (as amended from time to
time)
"FCA Requirement"
a requirement imposed under section 55L FSMA
"FSCS"
the Financial Services Compensation Scheme
"FSCS Rules"
the rules under the compensation module of the FCA
Handbook (as amended from time to time)
"FSMA"
the Financial Services and Markets Act 2000 (as
amended from time to time)
"Group"
CPPGroup plc, a company registered in England with
registered number 7151159 and registered office at
Holgate Park, Holgate Road, York, YO26 4GA, and each
of its subsidiary undertakings
"Holding Company"
in relation to a person, any other person in respect of
which it is a Subsidiary
"Home Retail Group
Insurance Services
Limited"
a company registered in England with registered
number 04109436 and registered office at Avebury,
489-499 Avebury Boulevard, Milton Keynes, MK9 2NW
"HMRC"
Her Majesty's Revenue and Customs
"HMRC Clearance"
means a non-statutory clearance provided by HMRC
giving written confirmation of HMRC's view of the
application of tax law to the transactions and events
taking place under or pursuant to the Scheme
"HMRC Stamp Duty
Clearance"
means a non-statutory clearance provided by HMRC
giving written confirmation of HMRC's view that no
stamp duty is payable in respect of the Scheme
"HSBC Bank plc"
a company registered in England with registered
number 14259 and registered office at 8 Canada
Square, London, E14 5HQ
a CPP identity protection insurance product sold in the
UK by CPP or a Business Partner or a Business Partner
Affiliate under the brand CPP Identity Protection
"Implementation
Agreement"
the implementation agreement dated 19 August 2013
between CPP, the Business Partners, the Scheme
Operating Company, the Cash Manager and the
Scheme Administrators
"Insolvency Event"
means, in relation to a Scheme Participant, any of the
following:
(a)
any resolution is passed or order made for the
winding-up (other than a solvent winding-up),
dissolution or administration of that Scheme
Participant or an administrator is appointed to
that Scheme Participant; or
(b)
a liquidator, receiver, administrator, compulsory
manager, administrative receiver or other
similar officer is appointed in respect of that
Scheme
Participant
or
the
whole
or
substantially the whole of its assets; or
(c)
any analogous event occurs in any jurisdiction
"Insolvent Entity"
has the meaning given to it in Clause 9.1 of this
Scheme
"Insolvent Entity Funds"
has the meaning given to it in Clause 9.1 of this
Scheme
"Material Contract"
(a)
the Implementation Agreement
(b)
each Client Identification Agreement
(c)
the SOC Agreement
(d)
the Deed of Undertaking
"MBNA Limited"
a company registered in England with registered
number 2783251 and registered office at Stansfield
House, Chester Business Park, Chester Cheshire, CH4
9QQ
"Mis-selling"
means where the sale of any Scheme Card Protection
Product and / or Scheme Identity Protection Product or
the way in which the sale of a Scheme Card Protection
Product and / or Scheme Identity Protection Product
was conducted by CPP, a Business Partner or a
Business Partner Affiliate (including, for the avoidance
of doubt, the way in which a Scheme Creditor was
introduced to CPP by a Business Partner or Business
Partner Affiliate) failed to comply with applicable
regulatory rules or with the Authority's Principles for
Businesses or was otherwise in breach of contract or in
breach of any tortious duty of care or any other
requirement of the general law (taking into account
relevant materials published by the Authority, other
relevant regulators, the ombudsman, former schemes,
including industry codes of practice). Mis-selling shall
include (but not be limited to) claims that the
information provided about any Scheme Card Protection
Product and / or Scheme Identity Protection Product
failed to be clear or fair and not misleading, or that
such information was incomplete (for example by
omitting to mention material limitations or exclusions
on the features or benefits provided), or that the sale
was concluded after applying inappropriate pressure.
Where a policy was purchased and subsequently
renewed, references in this definition to "the sale" shall
include the initial sale and each subsequent renewal.
The terms “Mis-sale” and “Mis-sold” shall be
interpreted accordingly
"Morgan Stanley Bank
International Limited"
a company registered in England with registered
number 03722571 and registered office at 25 Cabot
Square, London, E14 4QA
"Nationwide Building
Society"
a building society registered on the Mutuals Public
Register with number 355B whose registered office is at
Nationwide House, Pipers Way, Swindon Wiltshire SN38
1NW
"No Loss Policyholder"
a Policyholder who, based on the books and records of
CPP as at 20 May 2013, would be entitled to a Redress
Amount of less than £5 if such Policyholder was a
Scheme Creditor with an Agreed Scheme Claim
"Notice of Rejection"
has the meaning given to it in Clause 4.6 of the Scheme
"Ombudsman"
the Financial Ombudsman Service
"Policyholder"
any person who has purchased a Card Protection
Product, an Identity Protection Product or both
"Practice Statement Letter" the letter issued to each Scheme Creditor between 27
August 2013 and 16 September 2013 in accordance
with the Practice Statement (Schemes of Arrangement
with Creditors) dated 15 April 2002
"Protected Claim"
has the meaning given to it in COMP 5.2R of the FSCS
Rules
"Redress"
any compensation or refund (of any description) in
respect of, related to, or connected with, a Scheme
Claim
"Redress Amount"
the amount of Redress to be paid to a Scheme Creditor
with an Agreed Scheme Claim equal to:
(A + B) – (C + D)
(i) A is the total amount of payments made by a
Scheme Creditor in respect of a Scheme Card
Protection Product and/or a Scheme Identity
Protection Product on or after 14 January 2005;
(ii) B is an amount calculated as if it were simple
interest at 8% per annum on the amount of
each of the payments referred to in (i) above,
with such simple interest being applied from the
date of payment of each such payment to the
date falling six weeks after the Scheme Effective
Date;
(iii) C is the total amount of payments made to the
Scheme
Creditor
under
a
Scheme
Card
Protection Product and/or a Scheme Identity
Protection Product on or after 14 January 2005
(and shall include, for the avoidance of doubt
(but without limiting the generality of the
foregoing), (a) any payments made to the
customer following a claim by such customer
under a Scheme Card Protection Product and /
or a Scheme Identity Protection Product and /
or (b) any compensation, refund of prepayment,
repayment or other ex gratia payment made to
the customer in respect of any complaint made
by such customer in relation to the sale or
features of a Scheme Card Protection Product
and / or a Scheme Identity Protection Product,
in each case for the period on or after 14
January 2005); and
(iv) D is an amount calculated as if it were simple
interest at 8% per annum on the amount of
each of the payments referred to in (iii) above,
with such simple interest being applied from the
date of each such payment to the date falling
six weeks after the Scheme Effective Date
"Redress Determination"
a written communication from CPP or a Business
Partner or a Business Partner Undertaking Affiliate (in
each case a "Respondent") under the consumer
redress scheme established pursuant to the FCA
Requirement referred to at paragraph 2.2 below, which
(a)
sets
out
the
results
of
the
Respondent's
determination under the consumer redress scheme; (b)
encloses a copy of the Ombudsman's standard
explanatory leaflet; and (c) informs the complainant
that if he is dissatisfied, he may now make a complaint
to the Ombudsman and must do so within six months.
A Redress Determination issued by the Scheme
Adjudicator stating that it is issued on behalf of CPP, a
Business Partner or a Business Partner Undertaking
Affiliate, and identifying CPP, the Business Partner or
the Business Partner Undertaking Affiliate on behalf of
which it is sent, is deemed to be sent by CPP, that
Business Partner or Business Partner Undertaking
Affiliate.
"Registrar of Companies"
the Registrar of Companies in England and Wales
"Release Agreement"
means the release agreement each dated 19 August
2013 made between CPP and each Business Partner
and each relevant Business Partner Affiliate (if any)
"Santander UK plc"
a company registered in England with registered
number 2294747 and registered office at 2 Triton
Square, Regent's Place, London, NW1 3AN
"Scheme"
this scheme of arrangement under Part 26 of the
Companies Act between CPP and its Scheme Creditors
in the form set out in this document or with, or subject
to, any modification, addition or condition which the
Court may think fit to approve or impose, as
appropriate
"Scheme Administrators"
Kevin Gill and Ben Cairns of Ernst & Young LLP of 1
More London Place, London SE1 2AF or such other
persons appointed pursuant to the terms of the Scheme
"Scheme Administrator
Appointment Letter"
the appointment letter pursuant to which the Scheme
Administrators are appointed by CPP and the Business
Partners
"Scheme Adjudicator"
an independent solicitor of at least 10 years standing
appointed by the Scheme Administrators who will act as
an expert, not an arbitrator
any Card Protection Product:
(a)
purchased (or renewed) directly from CPP; or
(b)
purchased (or renewed) from CPP, following an
introduction by a Business Partner or a Business
Partner Affiliate; or
(c)
purchased (or renewed) directly from a
Business Partner or a Business Partner Affiliate.
"Scheme Claim"
any claim, action or other right of any description
however arising in relation to, in connection with, or
arising from, Mis-selling which a Scheme Creditor has
against CPP under, in connection with, or arising from a
Scheme Card Protection Product and/or a Scheme
Identity Protection Product, but only to the extent that
the claim, action or other right relates to loss suffered
on or after 14 January 2005. For the avoidance of
doubt, a relevant claim, action or other right shall be a
Scheme Claim even if the relevant Mis-selling occurred
prior to 14 January 2005, but will only be a Scheme
Claim to the extent of any loss suffered on or after 14
January 2005
"Scheme Creditor"
any Policyholder, other than an Excluded Policyholder,
who purchased (or renewed) a Scheme Card Protection
Product and/or a Scheme Identity Protection Product on
or after 14 January 2005 but, in the case of a Scheme
Card Protection Product, before the Amendment Date,
whether or not they still hold a Scheme Card Protection
Product or Scheme Identity Protection Product
"Scheme Effective Date"
has the meaning given in Clause 2.1 (Scheme Effective
Date) of this Scheme
any Identity Protection Product:
(a)
purchased directly from CPP via a telephone
sale; or
(b)
purchased from CPP via a telephone sale
following an introduction by a Business Partner
or a Business Partner Affiliate,
including, in each case, any subsequent renewal of
such policy
the scheme liabilities release deed poll between (1) the
Scheme Creditors (2) the Business Partners (3)
Business Partner Affiliates and (4) CPP in the form
annexed at Appendix 3
"Scheme Meeting"
the meeting of Scheme Creditors to be held at noon on
7 January 2014 at Wembley Arena, Arena Square,
Engineers Way, London HA9 0AA
"Scheme Obligations
Termination Date"
the date on which the obligations of the Scheme
Participants terminate in accordance with Clause 12.1
of the Scheme
Scheme Processing Services Limited, a company
registered in England with registered number 8379620
and registered office at 35 Great St. Helens, London
EC3A 6AP
"Scheme Participant"
CPP and each of the Business Partners
"SOC Agreement"
the scheme operating agreement in relation to the
liabilities incurred by the Scheme Operating Company
dated 4 April 2013 (as amended from time to time)
between the Scheme Participants, the Cash Manager
and the Scheme Operating Company
"Subsidiary"
means a subsidiary within the meaning of section 1159
of the Companies Act 2006
"Tesco Personal Finance
Plc"
a company registered in Scotland with registered
number SC173199 and registered office at Interpoint
Building, 22 Haymarket Yards, Edinburgh, EH12 5BH
"The Royal Bank of
Scotland PLC"
a company registered in Scotland with registered
number SC090312 and registered office at 36 St.
Andrew Square, Edinburgh, EH2 2YB
"UK" or "United Kingdom"
the United Kingdom of Great Britain and Northern
Ireland
"VAT"
value added tax as provided for in the Value Added Tax
Act 1994 and any other tax of a similar nature
"Wholesale Policyholder"
a Policyholder who:
(a)
purchased or renewed a Card Protection
Product, on or after 14 January 2005 but before
the Amendment Date, other than:
(i) directly from CPP;
(ii) from CPP, following an introduction by a
Business Partner or a Business Partner Affiliate,
as a standalone product; or
(iii) directly from a Business Partner or a Business
Partner Affiliate as a standalone product; or
(b)
purchased or renewed an Identity Protection
Product on or after 14 January 2005, other
than:
(i) directly from CPP; or
(ii) from CPP, following an introduction by a
Business Partner or a Business Partner Affiliate,
as a standalone product
Unless the context otherwise requires or otherwise expressly provides:
1.3.1
references to Clauses are references to the clauses of this Scheme;
1.3.2
references to a statute or statutory provision include the same as subsequently
modified, amended, supplemented or re-enacted from time to time;
1.3.3
references to an agreement, deed or document shall be deemed also to refer to
such agreement, deed or document as amended, supplemented, restated,
verified, replaced and/or novated (in whole or in part) from time to time and to
any agreement, deed or document executed pursuant thereto;
1.3.4
references to (or to any specified provision of) the Scheme shall be construed as
references to this Scheme as in force for the time being;
1.3.5
the singular includes the plural and vice versa and words importing one gender
shall include all genders; and
1.3.6
headings to clauses are for ease of reference only and shall not affect the
interpretation of the Scheme.
2.
SCHEME – EFFECTIVE DATE
2.1
The Scheme Effective Date shall be the date on which the Court Order is delivered to the
Registrar of Companies in accordance with Clause 2.2 below.
2.2
The Scheme will become effective and legally binding on CPP and its Scheme Creditors, in
accordance with its terms, upon the Court Order having been delivered to the Registrar of
Companies, and CPP undertakes to deliver such Court Order to the Registrar of Companies
following the satisfaction of the following conditions precedent:
2.2.1
the Material Contracts have been executed by the parties thereto;
2.2.2
the Release Agreement has been executed by the parties thereto;
2.2.3
the Authority has confirmed that it has no objections to the Scheme;
2.2.4
CPP has applied for and the Authority has agreed to the imposition of an FCA
Requirement (under Sections 404F(7) and 404F(8) FSMA) with the Authority;
2.2.5
each Business Partner and Business Partner Undertaking Affiliate has applied for
and the Authority has agreed to the imposition of an FCA Requirement (under
Sections 404F(7) and 404F(8) FSMA) in respect of the Scheme with the
Authority;
2.2.6
the Authority has exercised its power under Section 404F(7) FSMA to bind the
Ombudsman; and
2.2.7
HMRC Clearance has been received by CPP and the Business Partners; and
2.2.8
the HMRC Stamp Duty Clearance has been delivered to the Registrar of
Companies.
2.3
Each Business Partner has, by executing (respectively) a Deed of Undertaking, agreed to
appear by Counsel on the hearing of the application to sanction the Scheme, to consent
thereto and to undertake to be bound thereby and to execute or procure to be executed
all such documents, and to do or procure to be done all such acts and things, as may be
reasonably necessary to be executed or done by it or him for the purpose of giving effect
to the Scheme.
2.4
Each Business Partner Undertaking Affiliate has, by executing a Deed of Undertaking,
agreed to consent to the Scheme, and undertaken to be bound by it.
2.5
From the Scheme Effective Date and to the extent permitted under applicable law and
regulation and subject to Clauses 7.5 and 7.6 below, no Scheme Creditor shall be entitled
to commence or continue any legal process or commence any regulatory complaint
against:
2.5.1
CPP in connection with any Scheme Claims; and
2.5.2
any Business Partner or any Business Partner Affiliate in connection with any
Business Partner Claims,
provided that in each case (i) there has not been an Insolvency Event in respect of the
relevant Scheme Participant and (ii) the Scheme Participant has not failed to comply with
any payment obligation to such Scheme Creditor under the Scheme.
2.6
The Scheme shall apply to all liabilities (if any) of (i) CPP in respect of Scheme Claims and
(ii) the Business Partners or Business Partner Affiliates in respect of each and any of the
Business Partner Claims.
2.7
For the avoidance of doubt:
2.7.1
all other liabilities of CPP, the Business Partners and Business Partner Affiliates
shall be unaffected by the Scheme;
2.7.2
any claim, action or other right of any description however arising relating to
loss suffered before 14 January 2005 is outside the scope of this Scheme and is
unaffected by the provisions of this Scheme; and
2.7.3
a Scheme Creditor who has made a regulatory complaint which was referred to
the Ombudsman prior to the date of the Practice Statement Letter may continue
to pursue that complaint, although a Scheme Creditor shall not be entitled to
pursue both a regulatory complaint and a claim under the Scheme relating to the
same loss.
2.8
If any sum is due or obligation is to be performed under the terms of the Scheme on a
date other than a Business Day, the relevant payment shall be made, or obligation
performed, on the next Business Day.
3.
RIGHT TO REDRESS
3.1
Redress shall only be payable on Scheme Claims to the extent that such Scheme Claims
are Agreed Scheme Claims.
3.2
Disputes in relation to Scheme Claims or purported Scheme Claims shall be determined in
accordance with the Dispute Resolution Procedure. The amount of any Disputed Scheme
Claim which is agreed pursuant to the Dispute Resolution Procedure will become an
Agreed Scheme Claim.
3.3
Any Scheme Creditor who wishes to receive Redress must complete a Claim Form and
certify on the Claim Form that the content of the completed Claim Form is true and
accurate.
3.4
Claim Forms must be received by the Scheme Administrators on or before the Bar Date. If
a Claim Form is received after the Bar Date, the Claim Form will be rejected or be deemed
rejected (in accordance with Clause 4.6 below) and the Scheme Creditor shall have no
right to Redress. The Bar Date will apply to all Scheme Creditors irrespective of whether or
not they receive actual written notice of the Scheme and / or whether or not they submit
a Claim Form.
3.5
If a Scheme Creditor submits a Claim Form whichso that it is received by the Scheme
Administrators on or before the Bar Date and such Claim Form is spoiled, the Scheme
Administrators shall (on one occasion only) return the Claim Form to the Scheme Creditor
with a new Claim Form and a request to the Scheme Creditor to complete the new Claim
Form and return it within 30 days (or, if later, by the Bar Date). If the Scheme Creditor
fails to submit the new Claim Form within 30 days (or, if later, by the Bar Date), the
Scheme Administrators shall reject the Scheme Claim and the Scheme Creditor shall have
no right to Redress.
3.6
Except as expressly set out in the Scheme, each person claiming to be a Scheme Creditor
shall be responsible for all of its own costs (including the costs of submitting its Claim
Form and, if applicable, of providing such documentary evidence or other evidence as the
Scheme Administrators may require). Neither CPP nor any Business Partner (nor any
Business Partner Affiliate) shall be liable for any costs incurred by the Scheme Creditor in
completing or submitting the Claim Form.
4.
ADMISSION OF CLAIMS
4.1
Upon receipt of a Claim Form, on or prior to the Bar Date, the Scheme Administrators will
assess each Scheme Claim in accordance with the Basis for Admission of Agreed Scheme
Claims.
4.2
If a Scheme Claim is submitted on or before the Bar Date, the Scheme Administrators
shall admit such a Scheme Claim as an Agreed Scheme Claim for an amount equal to the
Redress Amount (calculated by reference to CPP's records) if it fulfils the Basis for
Admission of Agreed Scheme Claims.
4.3
Where a Scheme Claim is admitted as an Agreed Scheme Claim, the Scheme Creditor in
respect of such Agreed Scheme Claim shall be sent a cheque for the amount of such
Agreed Scheme Claim as soon as reasonably practicable following such admittance. The
payment obligations in respect of such cheque shall be met in accordance with Clause 5
below.
4.4
Where the Scheme Creditor encashes such cheque, such Scheme Creditor shall be
deemed to have accepted the amount of the Agreed Scheme Claim and shall have no
recourse to the Dispute Resolution Procedure.
4.5
If a Scheme Creditor is dissatisfied with the value of the cheque sent to the Scheme
Creditor in accordance with Clause 4.4, he shall give written notice to the Scheme
Administrators within 30 Business Days of the date of the letter enclosing the cheque of
his intention to invoke the Dispute Resolution Procedure and return the cheque to the
Scheme Administrators. Any such Scheme Claim shall be treated as a Disputed Scheme
Claim.
4.6
WhereSubject as follows in this Clause 4.6, where the Scheme Administrators reject a
Scheme Claim (including a rejection of a Claim Form pursuant to Clause 3.4), on or before
22 July 2016, such that such Scheme Claim is not an Agreed Scheme Claim, the Scheme
Administrators shall prepare a written statement of their reasons for doing so (a "Notice
of Rejection") and send it as soon as reasonably practicable to the Scheme Creditor.
Any Claim Form received by the Scheme Administrators after 22 July 2016 shall be
deemed to be rejected and the Scheme Administrators shall not be required to send a
Notice of Rejection to the Scheme Creditor that has submitted such claim (a “Deemed
Rejection”).
4.7
IfSubject to Clause 4.9, if a Scheme Creditor is dissatisfied with the Scheme
Administrators' decision with respect to its Claim Form under Clause 4.6 (including a
determination by the Scheme Administrators pursuant to Clause 10.6.2(D)), it shall give
written notice to the Scheme Administrators within 30 Business Days of the date of the
Notice of Rejection of its intention to invoke the Dispute Resolution Procedure. Any such
Scheme Claim shall be treated as a Disputed Scheme Claim.
4.8
The deadlines for invoking the Dispute Resolution Procedure specified in paragraph 4.5
and 4.7 shall not apply if a Scheme Creditor has not received the letter enclosing the
cheque in respect of an Agreed Scheme Claim or the Notice of Rejection within 30
Business Days of submitting its Claim Form, provided that the Scheme Creditor telephones
or write to the Scheme Administrators to notify them of such non-receipt within 60
Business Days of submission of the Claim Form. In such cases, the Scheme Administrators
shall cancel any uncashed cheque issued to the Scheme Creditor and shall send a new
letter enclosing a new cheque or new Notice of Rejection, and the time limit for invoking
the Dispute Resolution Procedure shall run 30 Business Days from the date of such new
letter or new Notice of Rejection, as the case may be.
4.9
The provisions of Clauses 4.7 and 4.8 shall not apply in respect of Deemed Rejections
such that a Scheme Creditor shall not be entitled to invoke the Dispute Resolution
Procedure in respect of a Deemed Rejection.
5.
FUNDING OF REDRESS
5.1
Pursuant to the terms of the Implementation Agreement and each Client Identification
Agreement:
5.1.1
subject to Clause 5.1.2, CPP shall pay the Redress Amount to each Scheme
Creditor with an Agreed Scheme Claim who purchased their Scheme Card
Protection Product or their Scheme Identity Protection Product directly from CPP;
and
5.1.2
CPP shall procure that each Business Partner shall pay on behalf of itself and to
the extent appropriate each of its Business Partner Affiliates the Redress Amount
to each Scheme Creditor with an Agreed Scheme Claim who:
(A)
purchased their Scheme Card Protection Product from (i) CPP following
an introduction by that Business Partner or a Business Partner Affiliate of
such Business Partner or (ii) that Business Partner or a Business Partner
Affiliate of such Business Partner directly; and / or
(B)
purchased their Scheme Identity Protection Product from CPP following
an introduction by that Business Partner or a Business Partner Affiliate of
such Business Partner,
provided that, to the extent that any Business Partner does not pay all or any
part of the Redress Amount it is required to make pursuant to this Clause 5.1.2
following the occurrence of an Insolvency Event (as such term is defined in
Clause 9) in respect of it, then CPP shall pay the unpaid Redress Amount; and
5.1.3
for the purposes of this Clause 5.1, the reference to the term "purchased" when
used in the context of a purchase from CPP following an introduction from a
Business Partner or Business Partner Affiliate of such Business Partner shall
mean (i) the transaction pursuant to which the relevant Scheme Card Protection
Product or the Scheme Identity Protection Product was first acquired,
notwithstanding that such purchase may have occurred prior to 14 January 2005
and notwithstanding that such Scheme Card Protection Product or the Scheme
Identity Protection Product may have been renewed after such initial purchase;
and (ii) each subsequent renewal of the Scheme Card Protection Product or
Scheme Identity Protection Product referred to at (i), such that the purchase and
renewals referred to in (i) and (ii) shall not be treated for the purpose of Clause
5.1.1 as a purchase from CPP but rather as a purchase pursuant to Clause 5.1.2
(A) or (B). For the avoidance of doubt, any claim, action or other right of any
description however arising relating to loss suffered before 14 January 2005 is
outside the scope of this Scheme and is unaffected by the provisions of this
Scheme.
5.2
CPP agrees, provided that payment of such Agreed Scheme Claims by CPP is consistent
with CPP’s obligations pursuant to Clause 5.1.1 above, that it will be responsible for paying
any Agreed Scheme Claim in respect of any Scheme Creditor listed in the Client
Identification Agreement of CPP in respect of the relevant Scheme Card Protection Product
and / or the Scheme Identity Protection Product identified therein.
5.3
Each Business Partner agrees on behalf of itself and to the extent appropriate each of its
Business Partner Affiliates, provided that payment of such Agreed Scheme Claims by the
relevant Business Partner is consistent with such Business Partner’s obligations pursuant
to Clause 5.1.2 above and the Deed of Undertaking, that it will be responsible for paying
any Agreed Scheme Claim in respect of any Scheme Creditor listed in the Client
Identification Agreement of the relevant Business Partner in respect of the relevant
Scheme Card Protection Product and / or the Scheme Identity Protection Product
identified therein.
5.4
If a Scheme Creditor wishes to know which Scheme Participant is responsible for paying
any Redress Amount to such Scheme Creditor, the Scheme Creditor must request that
information in writing from the Scheme Administrators within 60 days of, as applicable (i)
the date of any cheque for a Redress Amount sent to such Scheme Creditor or (ii) the
date of any Notice of Rejection. The Scheme Administrators shall provide the requested
information to the Scheme Creditor promptly.
5.5
Except to the extent expressly set out in Clause 5.1.2 above, CPP shall have no liability to
make any payment whatsoever to any Scheme Creditor whose Agreed Scheme Claim is
payable by a Business Partner pursuant to Clauses 5.1.2 above and no Business Partner
(nor Business Partner Affiliate) shall have any liability to make any payment whatsoever to
any Scheme Creditor whose Agreed Scheme Claim is payable by CPP pursuant to Clause
5.1.1 above.
5.6
Except to the extent expressly set out in Clause 5.1.2 above, if CPP or a Business Partner
fails to pay the Redress Amount due to a Scheme Creditor in accordance with Clause 5.1
above, that Scheme Creditor shall have no right of recourse to any other Scheme
Participant or any Business Partner Affiliate to pay the Redress Amount.
5.7
Any payment made by CPP or any Business Partner pursuant to Clause 5.1 is made
without any admission of liability.
5.8
All Agreed Scheme Claims will be paid in sterling and net of any UK tax payable on the
Redress Amount which is required to be withheld.
5.9
Any Redress Amount due in respect of a Scheme Claim shall be paid as soon as
reasonably practicable after such Scheme Claim becomes an Agreed Scheme Claim, by
cheque in favour of the relevant Scheme Creditor (or in favour of such party as the
Scheme Creditor may direct or as may be required by operation of law) and shall be sent
by post to the relevant Scheme Creditor's last known address (according to the books and
records of CPP). Posting of the cheque to the last known address shall be a good
discharge of such obligation.
5.10
Any cheque not encashed within six months shall be cancelled and the Scheme Claim to
which it relates shall be deemed to have expired and such Scheme Creditor shall not
receive any Redress and shall have no right of recourse to the Dispute Resolution
Procedure.
5.11
All Redress Amounts shall be paid without (and free and clear of any deduction for) set-off
or counterclaim. However, for the avoidance of doubt, in calculating the amount of any
Redress Amount, the formula set out in the definition of Redress Amount shall be utilised.
6.
CANCELLATION OF POLICIES
6.1
If a Scheme Creditor submits a Claim Form in respect of a Scheme Card Protection
Product or a Scheme Identity Protection Product, that Scheme Card Protection Product or
a Scheme Identity Protection Product, that Scheme Card Protection Product or Scheme
Identity Protection Product (as the case may be) shall be automatically cancelled on the
date falling 5 Business Days after the date the cheque or the letter confirming that no
payment is due is posted to the Scheme Creditor unless the Scheme Creditor invokes the
Dispute Resolution Procedure.
6.2
If a Scheme Creditor invokes the Dispute Resolution Procedure then any cancellation that
may have occurred pursuant to Clause 6.1 above (being an automatic cancellation on the
date falling 5 Business Days after the original cheque or original letter confirming that no
payment is due is posted to the Scheme Creditor) shall be deemed not to have taken
effect and the Scheme Card Protection Product or Scheme Identity Protection Product (as
the case may be) shall be automatically cancelled:
6.2.1
if the Scheme Administrators issue a new cheque to the Scheme Creditor
following determination of the Disputed Scheme Claim by the Scheme
Administrators pursuant to Clause 7.1 or the Scheme Adjudicator, on the date
falling 5 Business Days after the Scheme Administrators issue such new cheque;
or
6.2.2
if the Scheme Adjudicator upholds the original decision of the Scheme
Administrators to reject the Scheme Claim, on the date falling 5 Business Days
after the date on which the Redress Determination so informing the Scheme
Creditor is sent.
7.
DISPUTE RESOLUTION PROCEDURE
7.1
If a Scheme Creditor elects in writing (the "Dispute Notice") to commence the Dispute
Resolution Procedure in accordance with Clauses 4.5 or 4.7 the Scheme Administrators
and the Scheme Creditor shall within 30 days of the date of the Dispute Notice seek to
agree the amount (if any) of the Scheme Claim. If agreement is reached, the Scheme
Claim will be admitted in the agreed amount as an Agreed Scheme Claim. If agreement is
not reached the Scheme Administrators shall pass the matter to the Scheme Adjudicator.
7.2
On receipt of the matter from the Scheme Administrators, the Scheme Adjudicator shall
determine in its absolute discretion all matters in dispute as to the existence or proper
value of the Scheme Claim.
7.3
The Scheme Adjudicator may, within 15 Business Days of the receipt of the matter,
request documentary evidence or such other evidence as the Scheme Adjudicator may
require from the Scheme Creditor. Where such a request is made, the Scheme Creditor
must submit such additional information within 15 Business Days of the request. Where it
is not practicable for him to supply the information within 15 Business Days, the Scheme
Creditor may seek an extension of time of an additional 15 Business Days for supplying
such additional information, but must seek such extension within the original 15 Business
Day deadline. If the additional information sought is not provided within 15 Business Days
of the request, or 30 Business Days where an extension has been sought by the Scheme
Creditor, the Scheme Adjudicator shall reject the Scheme Claim by way of a Redress
Determination. The consequences of failing to supply the additional information
requested by the Scheme Adjudicator shall be made clear to the Scheme Creditor when
the Scheme Adjudicator writes to request the information.
7.4
The Scheme Adjudicator shall make its determination within 30 Business Days of the
receipt of the matter or, if additional information is requested, within 30 Business Days of
receipt of that additional information. This determination will be issued to the Scheme
Creditor by way of a Redress Determination. If the Scheme Adjudicator fails to make its
determination, or no Redress Determination is sent to the Scheme Creditor, within such
timeframes the relevant Scheme Creditor shall be entitled to complain to the Ombudsman
pursuant to DISP 2.8.1R(3)(b).
7.5
Subject to Clause 7.6 below, the determination of the Scheme Adjudicator on each and
every issue before it shall be final and binding on the Scheme Administrators, the Scheme
Creditor and each of the Scheme Participants. For the avoidance of doubt there shall be
no right of appeal from the determination of the Scheme Adjudicator and there shall be no
right to make any further claim against or to the Scheme Adjudicator within the Scheme.
The amount payable pursuant to any determination by the Scheme Adjudicator shall not
exceed the Redress Amount.
7.6
If (a) a complaint is referred to the Ombudsman by or on behalf of a Scheme Creditor on
or after 22 August 2013; and (b) within 14 days of the Ombudsman telling the entity
(CPP, a Business Partner or Business Partner Affiliate) against whom the complaint has
been made that the complaint has been referred to the Ombudsman, the relevant entity
tells the Ombudsman in writing that the complaint (or part of the complaint) falls within
the scope of the FCA Requirements referred to at paragraphs 2.2.4 and 2.2.5 above, then
the Ombudsman will determine the complaint by reference to what, in the opinion of the
Ombudsman, the determination under the Scheme should be or should have been and the
Scheme Creditor acknowledges that the Ombudsman is bound by the terms of section
404B of FSMA to take such an approach.
7.7
The Scheme Administrators shall appoint the Scheme Adjudicator and may appoint a
replacement Scheme Adjudicator if a Scheme Adjudicator resigns, or is otherwise
conflicted, or vacates office in accordance with Clause 7.8 below.
7.8
The office of the Scheme Adjudicator shall be vacated by the Scheme Adjudicator if that
Scheme Adjudicator:
7.8.1
dies, becomes bankrupt or mentally disordered;
7.8.2
is convicted of an indictable offence (other than a road traffic offence); or
7.8.3
ceases to be a solicitor.
8.
RELEASE BY SCHEME CREDITORS
8.1
Pursuant to the terms of the Scheme, each Scheme Creditor shall release, in full and final
settlement, all or any Scheme Claims and / or Business Partner Claims it may have in
accordance with this Clause 8.
8.2
Each Scheme Creditor who on or before the Bar Date submits a Claim Form (whether they
have an Agreed Scheme Claim or not) releases and shall grant a release to each of CPP,
the Business Partners and the Business Partner Affiliates in respect of all its Scheme
Claims and Business Partner Claims (if any) provided that all payment obligations to such
Scheme Creditor under the Scheme are satisfied by the relevant Scheme Participant. The
payment obligations under the Scheme shall be deemed to be satisfied by the relevant
Scheme Participant:
8.2.1
on the date falling 30 Business Days after a cheque is posted to a Scheme
Creditor provided that such release shall be deemed not to have been granted if
a Scheme Creditor seeks to cash a cheque sent in accordance with the Scheme
within 6 months of issue and such cheque is not honoured; or
8.2.2
in the case of a Scheme Creditor who has an Agreed Scheme Claim, but does
not receive a cheque because the Redress Amount is equal to or less than zero,
on the date falling 30 Business Days after a letter to that effect is posted to such
a Scheme Creditor; or
8.2.3
in the case of a Scheme Creditor who invokes the Dispute Resolution Procedure
and returns such cheque pursuant to Clause 4.5, the date:
(A)
falling 5 Business Days after the Scheme Administrators issue a cheque
to the Scheme Creditor following the Redress Determination of the
Disputed Scheme Claim; or
(B)
on which the Scheme Adjudicator rejects the Disputed Scheme Claim by
way of a Redress Determination,
save that the Scheme Creditor shall retain the right to make a complaint to the
Ombudsman within six months of the date on which the Scheme Creditor is sent
a Redress Determination.
8.3
Any Scheme Creditor who does not submit a Claim Form on or before the Bar Date
releases and shall grant a release to each of CPP, the Business Partners and the Business
Partner Affiliates in respect of all its Scheme Claims and Business Partner Claims (if any)
on the Bar Date.
8.4
Any Scheme Creditor who is not entitled to receive Redress under the terms of the
Scheme releases and shall grant a release to each of CPP, the Business Partners and the
Business Partner Affiliates in respect of all its Scheme Claims and Business Partner Claims
(if any) on the Bar Date, provided that if such a Scheme Creditor has invoked the Dispute
Resolution Procedure prior to the Bar Date, such Scheme Creditor shall be deemed to
grant the aforementioned release on the earlier of:
8.4.1
if the Scheme Administrators issue a cheque to the relevant Scheme Creditor
following the Redress Determination of the Disputed Claim by the Scheme
Adjudicator, on the date falling 5 Business Days after the Scheme Administrators
issue a new cheque; or
8.4.2
if the Scheme Adjudicator determines that the Scheme Creditor is not entitled to
receive Redress, on the date falling 5 Business Days after the date on which the
Redress Determination so informing the relevant Scheme Creditor is sent,
save that the Scheme Creditor shall retain the right to make a complaint to the
Ombudsman within six months of the date on which the Scheme Creditor is sent a
Redress Determination.
8.5
Each Scheme Creditor hereby irrevocably authorises the Scheme Administrators to enter
into, execute and deliver as a deed on behalf of each Scheme Creditor, a Scheme
Liabilities Release Deed Poll to confirm and/or effect the releases referred to in this Clause
8 above.
8.6
Any release granted by a Scheme Creditor pursuant to this Clause 8 shall be in full, final
and irrevocable settlement of any Scheme Claims and / or Business Partner Claims that
the relevant Scheme Creditor may have.
9.
INSOLVENCY
9.1
If an Insolvency Event occurs with respect to either CPP or any Business Partner (the
"Insolvent Entity"), then the Scheme Administrators shall, to the extent they are able
under applicable law, apply or procure to have applied any funds standing to the credit of
the bank account established in accordance with the terms of the Implementation
Agreement by the Insolvent Entity (the "Insolvent Entity Funds") in the following order
of priority:
9.1.1
first, to honour any cheque issued by the Insolvent Entity in respect of Redress
which remains unpaid;
9.1.2
secondly, in discharge (pro-rata in the event of partial payment) of all amounts
due and payable, or capable of becoming due and payable (whether as at the
date of the Insolvency Event or in the future) from the Insolvent Entity (or,
where the Insolvent Entity is a Business Partner, from CPP in respect of all
amounts which would otherwise have been payable by the Insolvent Entity) to
the Scheme Operating Company and/or the Scheme Administrators under the
Implementation Agreement and the Scheme Administrator Appointment Letter;
9.1.3
thirdly, provided that the Scheme Administrators are satisfied that no further
liabilities are required to be discharged pursuant to Clause 9.1.1 above, in
discharge of any Redress Amounts which are unpaid at the date of the
Insolvency Event that is payable by the Insolvent Entity in accordance with the
terms of the Implementation Agreement and Clause 5. If the Insolvent Entity
Funds are insufficient to pay all Redress Amounts in full, the Scheme
Administrators shall apply the Insolvent Entity Funds in payment of such Redress
Amounts on a pari passu basis;
9.1.4
fourthly, in discharge of any Redress Amounts payable by CPP in respect of any
Agreed Scheme Claim which (i) are agreed after the date of the Insolvency
Event and (ii) would otherwise have been payable by the Insolvent Entity but for
the Insolvency Event. If the Insolvent Entity Funds are insufficient to pay all
such Redress Amounts in full, the Scheme Administrators shall apply the
Insolvent Entity Funds in payment of such Redress Amounts on a pari passu
basis; and
9.1.5
fifthly, any remaining balance shall be paid to the Insolvent Entity on the
Scheme Obligations Termination Date.
9.2
Where the Insolvent Entity is a Business Partner, no Scheme Creditor shall have any right
to payment from another Business Partner or Business Partner Affiliate in respect any
unpaid Redress Amount which would otherwise have been payable by the Insolvent Entity
in accordance with the terms of the Scheme. However, in these circumstances:
9.2.1
the Scheme Creditor with an Agreed Scheme Claim shall have a claim against
CPP in respect of such unpaid Redress Amount;
9.2.2
the Scheme Administrators shall continue to apply the terms of the Scheme in
respect of any subsequent Scheme Claims against the Insolvent Entity and, if
appropriate, shall admit any such Scheme Claim as an Agreed Scheme Claim in
accordance with the terms of the Scheme; and
9.2.3
CPP hereby undertakes to pay the unpaid Redress Amount in respect of any
such Agreed Scheme Claims (whether they become Agreed Scheme Claims
before or after the date of the relevant Insolvency Event) as if such Redress
Amount were payable by it under Clause 5.1.1 above.
9.3
Where the Insolvent Entity is CPP, no Scheme Creditor shall have any right to payment
from a Business Partner or Business Partner Affiliate in respect of any unpaid Redress
Amount which would otherwise have been payable by CPP in accordance with the terms of
the Scheme.
9.4
If any Redress Amount remains unpaid following an Insolvency Event in respect of CPP
(including in circumstances where such Redress Amount is payable by CPP pursuant to
Clause 9.2 above), then:
9.4.1
the unpaid element of the Redress Amount of such an Agreed Scheme Claim
shall cease to be an Agreed Scheme Claim and such Scheme Creditor shall have
the rights which it would have had against CPP and / or the relevant Business
Partner as if the Scheme Effective Date had not occurred in respect of that
Scheme Creditor for the unpaid element of the Redress Amount of the Agreed
Scheme Claim;
9.4.2
no further payment will be made under the Scheme to such Scheme Creditor;
and
9.4.3
it shall be for the FSCS to determine whether or not such unpaid claim shall be a
Protected Claim against any Insolvent Entity and therefore eligible for payment
by the FSCS in accordance with the FSCS Rules; and
9.4.4
the Scheme Administrators shall have no obligation to assist the Scheme
Creditor in making its claim against the FSCS.
9.5
Following the occurrence of an Insolvency Event in respect of CPP and save to the extent
that the Scheme Administrators determine (in their sole discretion) that there are
sufficient Insolvent Entity Funds to meet such a claim in accordance with Clause 9.1
above, the Scheme Administrators shall not be permitted to admit any Scheme Claim that
would fall to be paid by CPP under the terms of the Scheme (including pursuant to Clause
5.1.2 above in the event that an Insolvency Event occurs in respect of a Business Partner)
- any such claim being an “Insolvency Barred Claim”). In such circumstances:
9.5.1
the relevant Scheme Creditor shall, in relation to the Insolvency Barred Claim,
have the rights which it would have had against CPP and / or the relevant
Business Partner as if the Scheme Effective Date had not occurred in respect of
that Scheme Creditor;
9.5.2
no further payment will be made under the Scheme to such Scheme Creditor in
respect of the Insolvency Barred Claim; and
9.5.3
it shall be for the FSCS to determine whether or not such Insolvency Barred
Claim shall be a Protected Claim against any Insolvent Entity and therefore
eligible for payment by the FSCS in accordance with the FSCS Rules.
9.6
Notwithstanding the provisions of this Clause 9, the Scheme shall continue in accordance
with its terms with respect to Scheme Creditors other than those expressly referred to in
Clause 9.4 and 9.5 above.
9.7
None of the Business Partners or Business Partner Affiliates other than the Insolvent Entity
shall be liable for any obligations of the Insolvent Entity under the Scheme.
9.8
Except to the extent expressly set out in clause 5.1.2 above, CPP shall have no liability for
any obligations of any Insolvent Entity under the Scheme (except to the extent that such
Insolvent Entity is CPP itself).
9.9
The Scheme Administrators shall notify each Scheme Creditor entitled to payment from
CPP of the occurrence of any Insolvency Event in respect of CPP and such Scheme
Creditor's right to make a claim to the FSCS.
10.
SCHEME ADMINISTRATORS' POWERS AND DUTIES
10.1
The Scheme Administrators shall be a minimum of two individuals (and not more than
three) who are each licensed insolvency practitioners and/or chartered accountants and
duly qualified in the reasonable opinion of CPP to discharge the functions of the Scheme
Administrators under the Scheme.
10.2
The Scheme Administrators, or any of them, may resign their appointment at any time by
giving not less than 90 days' notice in writing to each Scheme Participant or such shorter
period as may be agreed by each Scheme Participant provided that a new Scheme
Administrator has been appointed in accordance with Clause 10.4 on or prior to that
resignation taking effect.
10.3
The office of the Scheme Administrator shall be vacated by a Scheme Administrator if that
Scheme Administrator:
10.3.1
dies, becomes bankrupt or mentally disordered;
10.3.2
is convicted of an indictable offence (other than a road traffic offence);
10.3.3
resigns his office by 3 months’ notice in writing to CPP; or
10.3.4
ceases to be a chartered accountant.
10.4
If there is a vacancy in the office of the Scheme Administrator, CPP, after consultation
with the Business Partners and agreement by the Authority, shall forthwith appoint as a
replacement Scheme Administrator a qualified chartered accountant.
10.5
The Scheme Administrators shall have the powers, duties and functions conferred upon
them by this Scheme.
10.6
The Scheme Administrators shall:
10.6.1
as soon as reasonably practicable after the Scheme Effective Date (i) write to all
Scheme Creditors of whom they are aware (a) notifying them of the Scheme
Effective Date and (b) inviting them to submit a Claim Form on or before the Bar
Date and (ii) advertise for Scheme Claims in those newspapers as were used to
advertise the Scheme Meeting;
10.6.2
have sole responsibility for:
(A)
determining whether any Scheme Claim is an Agreed Scheme Claim;
(B)
notifying each Scheme Creditor if its claim is a Disputed Scheme Claim
or has been rejected and the reasons for such rejection;
(C)
conduct of Disputed Scheme Claims pursuant to the Dispute
Resolution Procedure or otherwise; and
(D)
determining whether or not the Exceptional Circumstances apply;
10.6.3
issue cheques to Scheme Creditors with Agreed Scheme Claims in accordance
with the terms of the Scheme and the Implementation Agreement;
10.6.4
have the power to do all things ancillary to the matters referred to in Clauses
10.6.1 and 10.6.3 above or which are otherwise required to be done by the
Scheme Administrators in accordance with the Scheme;
10.6.5
have the power to delegate all or any of the functions, powers, rights,
authorities and discretions conferred upon the Scheme Administrators under the
Scheme from time to time and to revoke any such delegation, provided that the
Scheme Administrators shall be responsible for any act or omission of any such
employee or delegate to the same extent as if they had expressly authorised it;
10.6.6
have the power to defend any proceedings against them in respect of carrying
out their functions and exercising their powers under the Scheme; and
10.6.7
have the power to apply to the Court for directions in relation to any particular
matter arising in the course of the Scheme.
10.7
In the absence of manifest error, neither CPP nor the Business Partners will be entitled to
challenge any decision made by the Scheme Administrators as regards Scheme Claims,
Agreed Scheme Claims, the payment of Redress, a Redress Determination or any Redress
Amount.
10.8
Save as expressly provided for herein, the Scheme Administrators shall not have any duty
or responsibility to manage, oversee or conduct the business, property or affairs of CPP
and such duty shall remain solely with the directors of CPP.
10.9
Subject to Clause 10.14, the Scheme Administrators shall not incur any personal liability in
connection with the preparation, adoption, agreement or implementation of the Scheme
or in connection with any ancillary arrangement including, without limitation, the deeds
and agreements referred to in Part D of the Explanatory Statement.
10.10 The functions and powers of the Scheme Administrators under the Scheme may be
performed and exercised jointly or severally and any act required to be done by the
Scheme Administrators pursuant to the Scheme may be done by all or any one or more of
them.
10.11 The Scheme Administrators may perform their duties through agents and employees and
shall be entitled to rely on any communication, instrument, document or information
(whether provided in writing or orally) considered by him to be genuine and correct and
shall be entitled to rely upon the advice of, or information obtained from, any professional
advisor or other person instructed by him considered by them in good faith to be
competent.
10.12 In carrying out their functions and exercising their powers under the Scheme, the Scheme
Administrators shall act bona fide with due care and diligence in the interests of the
Scheme Creditors as a whole and they shall use their powers under the Scheme for the
purpose of ensuring that the Scheme is operated in accordance with its terms.
10.13 In carrying out their duties and functions under the Scheme, the Scheme Administrators
and, where appropriate, the Scheme Adjudicator shall make reasonable adjustments to
the process for administering the Scheme (including without the limitation the process for
assessing and determining Scheme Claims, and (subject to the Bar Date) the deadlines for
submitting Scheme Claims and invoking the Dispute Resolution Procedure) where such
adjustments are considered by the Scheme Administrators or Scheme Adjudicator, as the
case may be, to be reasonably necessary to accommodate the disability of a Scheme
Creditor that is notified or otherwise drawn to the attention of the Scheme Administrators
or Scheme Adjudicator, as the case may be. Such reasonable adjustments shall include,
but not be limited to, providing copies of communications in respect of the Scheme to a
Scheme Creditor in braille, large print or in audio format upon request.
10.14
Save as expressly set out in this Scheme, the Scheme Administrators shall act as agents of
CPP (without personal liability) in respect of all functions and powers conferred on them
under the Scheme. The Scheme Administrators shall, in their capacity as such, incur no
liability to any Scheme Creditor or other person arising from the exercise of any power or
discretion vested in them under the Scheme, except where such liability arises as a result
of their own gross negligence, wilful default, breach of duty, breach of trust, fraud, bad
faith or dishonesty (or as a result of the gross negligence, wilful default, breach of duty,
breach of trust, fraud, bad faith or dishonesty of any employee).
10.15 To the extent permitted by law and in the absence of manifest error, no Scheme Creditor
shall be entitled to challenge the validity of any act done or omitted to be done in good
faith and with due care by the Scheme Administrators in accordance with and to
implement the provisions of the Scheme or the exercise by the Scheme Administrators in
good faith and with due care of any power conferred upon them for the purposes of the
Scheme if exercised in accordance with and to implement the provisions of the Scheme
and the Scheme Administrators shall not be liable for any loss unless such loss is
attributable to their own gross negligence, wilful default, breach of duty, breach of trust,
fraud, bad faith or dishonesty (or to the gross negligence, wilful default, breach of duty,
breach of trust, fraud, bad faith or dishonesty of any employee).
11.
MODIFICATIONS OF THE SCHEME
11.1
The Scheme Participants may, at any hearing to sanction the Scheme, consent to any
modification of the Scheme or terms or conditions that the Court may think fit to approve
or impose.
11.2
Subject to Clause 11.3 below, the Scheme Administrators shall have the power at any time
after the Scheme Effective Date, and if they consider it expedient to do so, to modify the
terms of the Scheme without reference to the Scheme Creditors, so long as such
modification is effected with the consent of each of the Scheme Participants and the
Authority, does not adversely affect the interests under the Scheme of any Scheme
Creditor and is in the best interests of the Scheme Creditors as a whole.
11.3
Where the proposed modification of the Scheme is purely of a technical or legal nature,
the consent of the Authority shall not be required.
12.
TERMINATION OF THE SCHEME
12.1
The Scheme Obligations Termination Date shall be the date on which any one of the
conditions set out in Clause 12.2 has been satisfied.
12.2
The obligations of the Scheme Participants in respect of the Scheme shall terminate on
the earlier of:
12.2.1
the date the Scheme Administrators give notice to the Scheme Participants that
all Agreed Scheme Claims have been paid in full and the Bar Date has expired
and all Disputed Scheme Claims have been finally determined by the Scheme
Administrators in accordance with Clause 7.1 or by the Scheme Adjudicator in
accordance with Clause 7.5, as the case may be; or
12.2.2
the date the Scheme Administrators acting reasonably, and following
consultation with the Scheme Participants, determine that it is no longer possible
to complete the Scheme.
12.3
The Scheme Obligations Termination Date shall be notified to the Scheme Creditors by
way of publication in those newspapers as were used to advertise the Scheme Meeting.
Such notice shall be substantially in the form set out at Appendix 4.
12.4
For the avoidance of doubt, the occurrence of the Scheme Obligations Termination Date
shall mean that no further obligation may arise for any Scheme Participant under the
Scheme, but shall be without prejudice to all other rights and obligations (including
Scheme Creditor releases) under the Scheme.
13.
NOTICE
13.1
A Claim Form or other notice to be given to the Scheme Administrators or CPP:
13.1.1
must be given in writing;
13.1.2
may be sent by post or may be delivered but shall only be deemed served upon
actual receipt, provided that if such receipt occurs on a Saturday, Sunday or
public holiday or after 5.30 p.m. on any Business Day in London such Claim
Form or other such notice shall be deemed to have been received at 9.30 a.m.
on the next Business Day in London; and
13.1.3
must be addressed to the Scheme Administrators at Ernst & Young LLP, 1 More
London Place, London SE1 2AY, FAO Kevin Gill & Ben Cairns.
13.2
Any notice given under the Scheme by the Scheme Administrators to any person shall be
sufficiently served by posting the same by first class (or equivalent) or airmail post to or
leaving the same at the address of such person last known to CPP. If such notice is
posted, it shall be deemed to have been received by the addressee 48 hours after the
same shall have been posted.
13.3
A Claim Form or other notice which is signed by a person authorised by a Scheme Creditor
on his behalf may be rejected by the Scheme Administrators if it is not accompanied by a
power of attorney duly executed by the Scheme Creditor in favour of such person
whereby such person is authorised to execute the notice concerned, or by a copy of such
power of attorney certified as a true copy thereof by a solicitor or notary or a person
authorised to administer oaths in any relevant jurisdiction, together with a statutory
declaration made by the donee of the power stating that such power had not been
revoked prior to its signature of such notice. In the case of a Claim Form or other notice
which is signed on behalf of a Scheme Creditor which is a corporation or other legally
constituted person or a partnership, the Scheme Administrators shall not be required to
make enquiry as to the authority of the signatory to sign such notice on behalf of such
Scheme Creditor.
14.
OBLIGATIONS SEVERAL
The obligations of each Scheme Participant under the Scheme are several. Failure by a
Scheme Participant to perform its obligations under the Scheme does not affect the
obligations of any other Scheme Participant under the Scheme. Save to the extent
expressly provided for in clauses 5.1.2 and 9.2, no Scheme Participant is responsible for
the obligations of any other Scheme Participant under the Scheme.
15.
ASSIGNMENT
No Scheme Creditor may assign its Scheme Claim or any other rights under the Scheme to
any person.
16.
BANKRUPTCY
16.1
To the extent that any Scheme Claim has vested in a trustee in bankruptcy or is subject to
an individual voluntary arrangement (pursuant to Part VIII of the Insolvency Act 1986) in
respect of any Scheme Creditor, references to Scheme Creditor in the Scheme shall be
read as references to such Scheme Creditor’s trustee in bankruptcy or the relevant
supervisor of such an individual voluntary arrangement, who shall be bound by and
subject to the terms of the Scheme (including, but not limited to, the provisions set out in
Clause 8 (Release of Claims) above).
16.2
It shall be the relevant Scheme Creditor’s obligation to inform any relevant trustee in
bankruptcy or supervisor of the existence of any Scheme Claim and neither CPP, nor the
Scheme Administrators nor any Business Partner or Business Partner Affiliate, shall be
responsible for ensuring that such a trustee in bankruptcy or supervisor has notice of the
Scheme.
17.
GOVERNING LAW AND JURISDICTION
17.1
The Scheme and any non-contractual obligations arising out of or in connection with the
Scheme shall be governed by, and construed in accordance with, the laws of England and
Wales and the Scheme Creditors hereby agree that the Court shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute
which may arise out of or in connection with the Explanatory Statement or any provision
of the Scheme, or out of any action taken or omitted to be taken under the Scheme or
any non-contractual obligations arising out of or in connection with the Scheme. For such
purposes, the Scheme Creditors irrevocably submit to the jurisdiction of the Court,
provided, however, that nothing in this Clause 17 shall affect the validity of other
provisions determining governing law and jurisdiction as between CPP and its Scheme
Creditors, whether contained in any contract or otherwise.
17.2
The Scheme shall take effect subject to any prohibition or condition imposed by law.
APPENDIX 1
CLAIM FORM IN RESPECT OF A SCHEME CARD PROTECTION PRODUCT
CARD PROTECTION: COMPENSATION CLAIM FORM
If you have any difficulties completing this form or your name or contact name and / or address in
section A are incorrect please call our freephone number 08000 83 43 93 (outside the UK dial +44
1144 520 800). We are available between 8am and 9pm Monday to Friday, and 8am to 6pm on
Saturdays.
You may be entitled to compensation if you were given misleading or unclear information
when you were sold your card protection policy, and you purchased your policy based on
this information.
If you want to be considered for compensation you must complete, sign and
return this original form to us by [insert deadline date].
If you do not return this original form to us by this date you will lose your right to claim
compensation.
If you are entitled to and paid compensation you will also have cancelled your
policy, so you (and anyone else covered by the policy) will lose the benefits it
provides.
You do not have to complete this form if you think you have not been affected by the
issues described below and want your policy to continue.
Please complete in black ink and use capital letters only. Please return only this original completed
form in the pre-paid envelope provided. Photocopies will not be accepted.
SECTION A: YOUR NAME AND CONTACT DETAILS
[PRE-POPULATED]
WHY YOU MAY BE ENTITLED TO COMPENSATION
The Financial Conduct Authority found the following failings with card protection
policies sold and provided by CPP:
· the policy said it covered you for up to £100,000 (figure varied over time) worth of
unauthorised transactions that occur after you inform CPP that a card was lost or
stolen.
But you did not need this element of the product's cover because the bank or card
issuer was responsible for any transactions after your cards had been reported lost or
stolen.
· the policy said it covered you for up to £5,000 (figure varied over time) worth of
unauthorised transactions that occur before you inform CPP that a card was lost or
stolen.
But we did not explain that you would only be liable for unauthorised transactions in
limited circumstances, as your bank or card issuer would usually cover you for anything
over the first £50 of those transactions.
If you think either of these features affected your decision to buy a card
protection policy, you can apply for compensation. The policy also had other
features which are shown in Appendix A.
SECTION B: WHY YOU WANT TO BE CONSIDERED FOR COMPENSATION
You can also be considered for compensation if you have any other complaints
about the way a card protection policy was sold to you. This may include where
you decided to purchase the policy because CPP sales staff sold it to you even
after you made it clear you did not want it or because they emphasised that you
could cancel the policy after you bought it
You must fill in the box below to explain why you want to be considered for
compensation (please do not write outside the box below).
SECTION C: ONLY COMPLETE IF YOU ARE AN OVERSEAS RESIDENT
If you are currently resident overseas (and not a member of the armed forces) we require
confirmation of the following additional details in order to process your claim:
Place of birth: Date of birth:
SECTION D: DECLARATION – THIS SECTION MUST BE COMPLETED PRIOR TO
RETURNING THE CLAIM FORM
I confirm the information I have given in this form is true to the best of my
knowledge and belief.
I agree to release CPP, the Business Partners, and the Business Partner Affiliates, each as
defined in the scheme from any further liability for any claims I may have against them for the
types of mis-selling covered by this redress scheme as long as they comply with the payment
terms under this redress scheme, as set out more fully in the scheme documents.
Name: Date:
Signed:
Position of Signatory: (Only complete if signing on behalf of company, trust or partnership)
PLEASE RETURN YOUR COMPLETED CLAIM FORM AS SOON AS POSSIBLE AND AT THE
LATEST BY [TBC TIME ON TBC DATE] TO: SCHEME PROCESSING SERVICES LIMITED,
PO BOX 250, WYMONDHAM, NR18 8DG IN THE PREPAID ENVELOPE PROVIDED.
30
APPENDIX 2
CLAIM FORM IN RESPECT OF A SCHEME IDENTITY PROTECTION PRODUCT
IDENTITY PROTECTION: COMPENSATION CLAIM
FORM
If you have any difficulties completing this form or your name or contact name and / or address in
section A are incorrect please call our freephone number 08000 83 43 93 (outside the UK dial +44
1144 520 800). We are available between 8am and 9pm Monday to Friday, and 8am to 6pm on
Saturdays.
If you want to be considered for compensation you must complete, sign and
return this original form to us by [insert deadline date].
If you do not return this original form to us by this date you will lose your right to claim
compensation.
If you are entitled to and paid compensation you will also have cancelled your
policy, so you (and anyone else covered by the policy) will lose the benefits it
provides.
You do not have to complete this form if you think you have not been affected by the
issues described below and want your policy to continue.
Please complete in black ink and use capital letters only. Please return only this original completed
form in the pre-paid envelope provided. Photocopies will not be accepted.
SECTION A: YOUR NAME AND CONTACT DETAILS
[PRE-POPULATED]
WHY YOU MAY BE ENTITLED TO COMPENSATION
The Financial Conduct Authority found failings with CPP’s sale of identity protection policies. You
may be entitled to compensation if you were given misleading or unclear information about your
policy, including:
if the risk of identity theft was exaggerated to you; or
if you were incorrectly told you are liable for debts that someone else takes out using your
details.
You may also have other concerns with the way your identity protection policy was sold to you,
such as if sales staff sold you a policy even after you made it clear you did not want it or
emphasised that you could cancel the policy after you bought it.
If you think any of these issues affected your decision to buy an identity protection
policy, you can apply for compensation. The policy also had other features which are
shown in Appendix A (this will be in Appendix B if you hold both a card and identity
protection product).
SECTION B: WHY YOU WANT TO BE CONSIDERED FOR COMPENSATION
You can also be considered for compensation if you have any other complaints
about the way an identity protection policy was sold to you. This may include
where you decided to purchase the policy because CPP sales staff sold it to you
even after you made it clear you did not want it or because they emphasised that
you could cancel the policy after you bought it
You must fill in the box below to explain why you want to be considered for
compensation (please do not write outside the box below).
SECTION C: ONLY COMPLETE IF YOU ARE AN OVERSEAS RESIDENT
If you are currently resident overseas (and not a member of the armed forces) we require
confirmation of the following additional details in order to process your claim:
Place of birth: Date of birth:
SECTION D: DECLARATION – THIS SECTION MUST BE COMPLETED PRIOR TO
RETURNING THE CLAIM FORM
I confirm the information I have given in this form is true to the best of my
knowledge and belief.
I agree to release CPP, the Business Partners, and the Business Partner Affiliates, each as
defined in the scheme from any further liability for any claims I may have against them for the
types of mis-selling covered by this redress scheme as long as they comply with the payment
terms under this redress scheme, as set out more fully in the scheme documents.
Name: Date:
Signed:
Position of Signatory: (Only complete if signing on behalf of company, trust or partnership)
PLEASE RETURN YOUR COMPLETED CLAIM FORM AS SOON AS POSSIBLE AND AT THE
LATEST BY [TBC TIME ON TBC DATE] TO: SCHEME PROCESSING SERVICES LIMITED,
PO BOX 250, WYMONDHAM, NR18 8DG IN THE PREPAID ENVELOPE PROVIDED.
APPENDIX 3
SCHEME LIABILITIES RELEASE AGREEMENT
THE SCHEME CREDITORS
and
THE BUSINESS PARTNERS
and
CARD PROTECTION PLAN LIMITED
SCHEME LIABILITY RELEASE DEED POLL
In relation to the Scheme
Telephone (+44) 20 7456 2000
Facsimile (+44) 20 7456 2222
Ref BB/NLM
Legally privileged and confidential
Subject to common interest privilege
THIS DEED POLL OF RELEASE (this Deed) is made on 2014
(1)
THE SCHEME CREDITORS, as defined in the Scheme and each acting by its agents and
attorneys as appointed pursuant to the Scheme;
In favour of:
(2)
THE BUSINESS PARTNERS as listed and defined in Schedule 1 to this Deed;
(3)
THE BUSINESS PARTNER AFFILIATES as defined in the Scheme (as such term is
defined below); and
(4)
CARD PROTECTION PLAN LIMITED (Registered no. 01490503), a company
incorporated in the United Kingdom whose registered office is at Holgate Park, York, YO26
4GA ( “CPP”),
together the “Parties”.
(A)
CPP has entered into a scheme of arrangement with the Scheme Creditors under part 26
of the Companies Act 2006, such scheme of arrangement having been sanctioned by the
Court pursuant to an order of the court dated [●] 2014 (the “Scheme”).
(B)
Each of the Scheme Creditors has agreed to be bound by the terms of the Scheme and to
give the releases and waivers set out in this Deed in connection with the Scheme.
DEFINITIONS
Unless otherwise defined in this Deed or the context otherwise requires, words and expressions
used in this Deed shall have the meanings given to them in the Scheme.
IT IS AGREED:
1
Releases and Waivers
1.1
Subject to clause 1.2, each Scheme Creditor (whether they have an Agreed Scheme Claim
or not) hereby fully, irrevocably and unconditionally releases each of CPP, the Business
Partners and the Business Partner Affiliates and their directors and employees to the
fullest extent permissible by applicable law from (and fully, irrevocably and unconditionally
waive) any and all claims, actions, debts, losses, liabilities, demands and proceedings
whatsoever, whether existing, prospective or contingent, known or unknown, which any of
the Scheme Creditors has or, but for this Deed, may in the future have, in any capacity
whatsoever against any and all of CPP, the Business Partners and the Business Partner
Affiliates and their respective directors and employees under or in connection with or
arising out of any Scheme Claim or any Business Partner Claim.
1.2
The release in clause 1.1 will take effect in respect of the relevant Scheme Creditor on the
following dates:
Legally privileged and confidential
Subject to common interest privilege
1.2.1
on the date falling 30 Business Days after a cheque is posted to a Scheme
Creditor in respect of that Scheme Creditor’s Agreed Scheme Claim, provided that
such release shall be deemed not to have been granted if a Scheme Creditor
seeks to cash a cheque sent in accordance with the Scheme which has not been
cancelled in accordance with the Scheme and such cheque is not honoured.
1.2.2
in the case of a Scheme Creditor who invokes the Dispute Resolution Procedure
and returns such cheque pursuant to Clause 4.5 of the Scheme, the date:
(i)
falling 5 Business Days after the Scheme Administrators issue a cheque to
the Scheme Creditor, following determination of the Disputed Scheme
Claim; or
(ii)
on which the Scheme Adjudicator rejects the Disputed Scheme Claim;
1.2.3
in the case of any Scheme Creditor who does not submit a Claim Form, on the Bar
Date; or
1.2.4
in the case of any Scheme Creditor who is not entitled to receive Redress under
the terms of the Scheme, on the Bar Date, provided that if such a Scheme Creditor
has invoked the Dispute Resolution Procedure prior to the Bar Date, such Scheme
Creditor shall be deemed instead to grant the aforementioned release as follows:
(i)
if the Scheme Administrators issue a cheque to the relevant Scheme
Creditor following determination of the Disputed Scheme Claim by the
Scheme Adjudicator, on the date falling 5 Business Days after the Scheme
Administrators issue the new cheque; or
(ii)
if the Scheme Adjudicator determines that the Scheme Creditor is not
entitled to receive Redress, on the date falling 5 Business Days after the
date on which the letter so informing the relevant Scheme Creditor is sent.
2
Execution, Counterparts and Amendment
2.1
This Deed has been executed as a deed and is delivered and takes effect on the date
stated at the beginning of it.
2.2
This Deed may be executed in any number of counterparts, and by each of the Parties on
separate counterparts. Each counterpart is an original, but all counterparts shall together
constitute one and the same instrument. Delivery of a counterpart of this Deed by e-mail
attachment or telecopy shall be an effective mode of delivery.
2.3
This Deed may not be amended, varied, or modified nor any provision waived except with
prior written consent of each party to this Deed provided that any amendment which
adversely affects the rights of a person who is a beneficiary of a release or waiver
hereunder but is not a party hereto may not be made without that person's prior written
consent.
2.4
In the event that any release or waiver given by a party hereto (the “Releasor”) in favour of
another party hereto or other beneficiary hereunder (the “Releasee”) is found by a court of
competent jurisdiction to be unenforceable (an “Unenforceable Release”), the Releasor
Legally privileged and confidential
Subject to common interest privilege
3
agrees that it shall not (and shall not instruct, encourage or support any other person to)
bring or join any action, claim or suit or other proceedings of any kind against the Releasee
in relation to or arising out of any matter or thing which was the subject of such
Unenforceable Release.
3.1
Each of the provisions of this Deed is severable. If any such provision is held to be or
becomes invalid or unenforceable in any respect under the law of any jurisdiction, it shall
have no effect in that respect and the Parties shall use all reasonable efforts to replace it in
that respect with a valid and enforceable substitute provision the effect of which is as close
to its intended effect as possible.
4.1
The specified third party beneficiaries of the releases, waivers, undertakings and/or
commitments referred to in clause 1 shall, in each case, have the right to enforce the
relevant terms by reason of the Contracts (Rights of Third Parties) Act 1999. The rights of
any such third party beneficiary are subject to the other terms and conditions of this Deed.
4.2
Except as provided in clause 4.1, a person who is not a party to this Deed shall have no
right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
5
Governing Law and Jurisdiction
5.1
This Deed and any non-contractual obligations arising out of or in connection with it shall
be governed by, and construed in accordance with, English law.
5.2
The courts of England shall have exclusive jurisdiction to settle any dispute including a
dispute relating to non-contractual obligations arising out of or in connection with this
Deed.
5.3
The English courts are the most appropriate and convenient courts to settle any such
dispute in connection with this Deed. Each of the Parties irrevocably waives any right that it
may have to object to an action being brought in those Courts, to claim that the action has
been brought in an inconvenient forum, or to claim that those Courts do not have
jurisdiction.
5.4
References in this clause 5 to a dispute in connection with this Deed include any dispute
as to the existence, validity or termination of this Deed.
Legally privileged and confidential
Subject to common interest privilege
Schedule 1 – Business Partners
1.
BARCLAYS BANK PLC (Registered no. 01026167), a public limited company
incorporated in the United Kingdom whose registered address is 1 Churchill Place,
London, E14 5HP;
2.
SANTANDER UK PLC (Registered no. 02294747), a public limited company incorporated
in the United Kingdom whose registered address is 2 Triton Square, Regent's Place,
LONDON, NW1 3AN;
3.
MBNA LIMITED (Registered no. 02783251), a private limited company incorporated in the
United Kingdom whose registered address is Stansfield House, Chester Business Park,
Chester, Cheshire, CH4 9QQ;
4.
THE ROYAL BANK OF SCOTLAND PLC (Registered no. SC090312), a public limited
company incorporated in the United Kingdom whose registered address is 36 St Andrew
Square, EDINBURGH, EH2 2YB;
5.
HSBC BANK PLC (Registered no. 00014259), a public limited company incorporated in
the United Kingdom whose registered address is 8 Canada Square, London, E14 5HQ;
6.
NATIONWIDE BUILDING SOCIETY (Registered on the Mutuals Public Register with
number 355B) whose registered address is at Nationwide House, Pipers Way, Swindon
Wiltshire SN38 1NW;
7.
CLYDESDALE BANK PLC (Registered no. SC001111), a public limited company
incorporated in the United Kingdom whose registered address is 30 St Vincent Place,
Glasgow, G1 2HL;
8.
TESCO PERSONAL FINANCE PLC (Registered no. SC173199), a public limited company
incorporated in the United Kingdom whose registered address is Interpoint Building, 22
Haymarket Yards, Edinburgh, EH12 5BH;
9.
CANADA SQUARE OPERATIONS LIMITED (Registered no. 02999842), a private limited
company incorporated in the United Kingdom whose registered address is Citigroup
Centre, Canada Square, Canary Wharf, London E14 5LB;
10.
CAPITAL ONE (EUROPE) PLC (Registered no. 03879023), a public limited company
incorporated in the United Kingdom whose registered address is Trent House, Station
Street, Nottingham, NG2 3HX;
11.
MORGAN STANLEY BANK INTERNATIONAL LIMITED (Registered no. 03722571), a
private limited company incorporated in the United Kingdom whose registered address is
25 Cabot Square, London, E14 4QA;
12.
HOME RETAIL GROUP INSURANCE SERVICES LIMITED (Registered no. 04109436), a
private limited company incorporated in the United Kingdom whose registered address is
Avebury, 489-499 Avebury Boulevard, Milton Keynes, MK9 2NW; and
13.
BANK OF SCOTLAND PLC (Registered no. SC327000), a public limited company
incorporated in the United Kingdom whose registered address is the Mound, Edinburg,
EH1 1YZ,
Legally privileged and confidential
Subject to common interest privilege
(together the “Business Partners”).
In witness of which the Scheme Creditors have executed and delivered this Deed on the date
stated at its beginning:
The Scheme Creditors
SIGNED as a DEED POLL by
[Ben Cairns] [Kevin Gill] of
Ernst and Young LLP, in his
capacity as Scheme
Administrator for and on behalf
of the SCHEME CREDITORS
in the presence of
Name:
Address:
Occupation:
Legally privileged and confidential
Subject to common interest privilege
NOTICE OF SCHEME OBLIGATIONS TERMINATION DATE
No. 5899 of 2013
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF CARD PROTECTION PLAN LIMITED (“CPP”)
IN THE MATTER OF THE COMPANIES ACT 2006
NOTICE IS HEREBY GIVEN that the Scheme Obligations Termination Date (as defined in the
Scheme of Arrangement made between CPP and its respective Scheme Creditors pursuant to Part
26 of the Companies Act 2006 which was sanctioned in the High Court of Justice of England and
Wales on [XX] and became effective on [XX]) occurred on [XX].