Undue influence 


I think you'll need to be of a 'certain age' to recognise the image above.   It's a dashboard ashtray fitted to the old Austin Mini cars, and made of a black, bakelite-type material.  Notoriously flimsy, the thing used to simply fall out of the dashboard, aided and abetted by the pervasive vibration in those old cars.  I assume that if you were a smoker, that peccadillo (the falling out bit) may have been a bit of an irritation, depending upon how much one enjoyed ingesting cigarette ash.  No doubt hard-core smokers would welcome it as a kind of ultimate experience of the genre.

I wasn't a smoker, so the old Mini ashtray served two practical functions.  One was as a kind of fidget toy for compulsive fiddlers - but in this respect the rewards weren't all that great, even by 1980s standards.  And secondly as a barometer of how horrible a car was likely to be if one was contemplating purchasing it second-hand.  As a would-be purchaser, one was always looking for a nice clean, unused ashtray, because this raised the probability that perhaps the rest of the vehicle was not fatally contaminated with grot.

Of course, there were plenty of other things to be concerned about when purchasing a second-hand Mini:  rotten subframes, corrosion around the battery (in the tiny boot), incurable oil leaks, pitting of the brake pipes and seized brake pads to name just a few.  All of these had the potential for considerable extra expense, and some would cheerfully kill you.  So, within the bigger context of purchasing a set of wheels, perhaps the status of the ash-tray is perhaps a rather less decisively significant factor.  It is entirely possible that one might simply end up purchasing a nice-smelling rust-heap.

The FCA has published some guidance flagging up the risks for Advisers who work with professional introducers.  There are clearly some concerns about a kind of undue influence that such introducers may actually have over the scope of the advice being given by the IFA.  We have seen a little of this in the past - a Chartered Accountant who clearly had developed a great fondness for SIPPs, so great in fact that the resulting introductions to the IFA almost required the IFA to rubber-stamp his suggestion.  I myself, in a previous incarnation, worked in connection with an Accountant who was greatly enamoured of Structured Products, and in his whimsical way had acquired the belief that these things were somehow suitable for almost everyone he met.  Under such circumstances, especially where the Adviser (a) wishes to develop the referral relationship, or (b) feels somehow dependent upon those referrals, it may at times be difficult to say "Whoa!" and re-establish the fundamental principle that it is the authorised Adviser who is responsible for determining the suitability of product-selection.

On one level, it seems a superfluous thing to draw attention to this matter.  Given the (now) very heavy compliance responsibilities upon the adviser, as well as the potentially humungous penalties later on for even a hint of non-compliance, why would a professional Adviser succumb to this kind of undue influence?  It ought to be impossible, and yet we are often less than clear about our role, especially in the realm of conflicts of interest.  There are very good reasons why the Adviser is the authorised person, whereas the Introducer is not - it is important that we have a clear grasp of both our status and our responsibility.  The key criteria for choosing a car is not a peripheral matter such as the state of the ashtray, there's much more important stuff to get right before we consider that.

MiFID II has implications for Suitability

We have published our pre-emptive analysis of the guidance, based upon COBS 9A.  ValidPathers need to get to grips with this.


Kevin Moss, 03/11/2017