UT/2023/000092 - [2024] UKUT 00035 (TCC)

Nvayo make a number of other points in support of suspension. None, however, are relevant to the question of satisfying the tribunal that there is no prejudice to the relevant persons sought to be protected if the suspension application were to be granted. The evidence given on the impacts on others such as employees and contractors and on the business’s worth if the requirements are not lifted, all fall into that category. Similarly, Mr Auld’s submissions emphasising Nvayo’s record of responsiveness and engagement with the Authority’s concerns, while of course are to be welcomed, do not address the specific risks at issue, for instance of pay-outs on files that are AML non-compliant.

Mr Auld also emphasised that the body of Nvayo’s customers is known, certain and confined. (This was based on the evidence Mr Jacklin gave regarding Nvayo’s customers having to already be members of affiliate companies, and the fact that Nvayo did not directly market its services or solicit customers.) But I do not see how the point assists Nvayo’s case. Insofar as there is an interest in protecting future consumers from the relevant risks (fitness and propriety concerns regarding the UBO and bank account closure) those risks are not mitigated because of the channel through which the customers have arrived to Nvayo. As regards AML risks there was nothing to suggest the filter of being pre-cleared as a member of the affiliate company’s program or a consumer of its concierge services would lessen the relevant AML risk as regards the customer coming to Nvayo.

Finally, Mr Auld also invited the tribunal to consider, to the extent there was any concern over the uncertainty of particular events happening such as the sale of Mr Scanlon’s interest, or retention of a bank account, whether an order for suspension could be granted but on a conditional basis. Putting aside whether an order drafted along such lines, which would effectively amount to the suspension of the suspension order would fall within the scope of the Rule 5(5) power, that did not seem to me to be necessary or desirable. As Mr Temple pointed out various contingencies are already catered for in the exceptions built into the requirements (which applied in essence where the Authority could be satisfied the relevant concerns it had could be met). Also, if it turns out that the issues which have stood in the way of a grant of suspension have been removed (but the Authority still disagree that justifies the requirements no longer applying or suspension of such requirements) it would remain open to Nvayo to make a fresh suspension application on the basis of the changed circumstances.