High Court Rules No Statutory Trust for E-money Company in Liquidation, Sets Precedent for Handling Unclaimed Funds

Citation: [2024] EWHC 369 (Ch)
Judgment on

Introduction

This article provides an analysis of the case Simon Ashley Rowe (as Liquidator of ONESTOPMONEYMANAGER Ltd) v Redbones Limited & Ors [2024] EWHC 369 (Ch), a decision by the High Court of Justice, Business and Property Courts of England and Wales. The judgment, delivered by Chief ICC Judge Briggs, addresses questions underpinning the winding up of a company regulated under electronic money (e-money) and payment services frameworks.

Key Facts

The case pertains to ONESTOPMONEYMANAGER Ltd, a company previously authorized as an electronic money institution, from which Visa withdrew licence participation, leading to the imposition of requirements by the Financial Conduct Authority (FCA) that hindered its operation. Subsequently, the company entered a members’ voluntary liquidation with monies to be returned to identified merchants.

The liquidator, Simon Rowe, encountered difficulties with merchant engagement and compliance with due diligence necessary to release funds. With four merchants unresponsive, the liquidator sought court directions on reglementary regulation, treatment of funds held, and suitable action regarding unclaimed monies.

Regulatory Framework

The key legal principle involves the interpretation of e-money and payment services regulations—the Electronic Money Regulations 2011 (EMR 2011) and the Payment Services Regulations 2017 (PSR 2017). The case highlights the applicability of these frameworks to a company engaged in e-money activities.

Statutory Trust

Another significant legal principle examined relates to the concept of a statutory trust under the regulations. The judgment revisits case law, including Re ipagoo LLP and In re Supercapital Ltd, to determine if the safeguarding provisions in the EMR 2011 and PSR 2017 create a statutory trust for funds received.

Safeguarding Provisions

The safeguarding provisions under EMR 2011 and PSR 2017 require specific handling of relevant funds—an issuer must either segregate funds from others or acquire adequate insurance or guarantees.

Interpretation of EU-derived Legislation

The case underlines the methodology for interpreting EU-derived domestic legislation, as outlined in Re Lehman Brothers International and subsequent cases, including the Ayerst v C&K (Construction) Ltd reference to proprietary rights and use restrictions in the context of trusts.

Outcomes

The court’s determinations are as follows:

  1. Reglementary Regulation: The company is determined to be regulated under the EMR 2011, and the provisions of PSR 2017 apply to any payment services it provided, by extension through regulation 20(6) of the EMR 2011.

  2. Statutory Trust: There is no statutory trust created by the safeguarding provisions within the EMR 2011 and PSR 2017. This aligns with the appellate court’s decision in Re ipagoo LLP, which was applied due to similarities between regulations.

  3. Unclaimed Monies: The court provided a practical approach to deal with unclaimed monies; merchants initially receive a 42-day period to respond with required due diligence, followed by actions such as advertisement and recorded delivery as additional attempts. If unresponsive, funds are to be paid into the Insolvency Service Account.

Conclusion

The judgment in this case underscores the intricate nature of regulation in e-money and payment services within the UK, particularly after the country’s withdrawal from the EU. The lack of a statutory trust for safeguarded funds under both EMR 2011 and PSR 2017 is a salient conclusion impacting how liquidators handle unclaimed funds. The decision will serve as a guiding precedent for similar cases, shaping liquidators’ practices in managing and distributing funds in compliance with regulatory requirements post-insolvency.