The Symphony Fund & £6000 offer to silence me
This discussion surrounds the very strange handling, by Square Mile International Financial s.r.o, (”SMIF”) of my holding in The Symphony Fund (”The Fund”) and a £6000 offer made to me in 2017 on condition I sign a document promising to keep quiet and never speak of the matter again, to anyone, not even any authority in any jurisdiction – including the Police!
I am going to provide exhibits in this discussion supporting my claim of tort by deceit which I aver a Director of SMIF (hereinafter called DV) is wholly responsible. Spondet peritiam artis, et imperitia culpse enumeratur.
I will describe a shocking sequence of events consisting of fraudulent misrepresentation and deliberate non disclosure of material facts needed to make an informed decision.
I will easily show:-
- I relied on DV's specialist skill and judgement
- He knew I relied on his specialist skill, and intended me to act on his advice
- It was reasonable for me to rely on his advice
- There existed an explicit assumption of responsibility on behalf of DV.
By applying the Hedley Byrne rule, DV unquestionably owed me a duty of care – in fact he even confirmed it later in writing! I relied on his special skill and he knew I was relying on that special skill and it was reasonable for me to do so at the time. DV intended for me to act on the advice which, it turned out, was not only unlawful but not in my best interest and resulted in economic loss – Tort by Deceit. Q.E.D.
So, now for some evidence.
I produce Exhibit 1, this is a letter from DV dated 27th May 2015 communicating to me – an unsophisticated and not High Net Worth investor -to participate in an Unregulated Collective Investment Scheme, or now referred to as Non Mainstream Pooled Investment (”NMPI”).
That letter states, third paragraph, last sentence: “All our advisers throughout Europe, including the UK, are qualified to full UK standards and undertake regular training and review”.
This is repeated on their website:-
“All our consultants demonstrate many years industry experience with leading financial institutions, and all hold UK financial planning qualifications.“
DV again repeats this in an email to me dated 27th May 2016:
“I can confirm that I am qualified to UK adviser standards and have ifs Level 4 diploma for Financial Advisers and Professional Certificate in Banking.“
I cannot confirm DV holds these qualifications as I have seen no evidence of them but it is strange that if he and all other consultants hold all UK financial planning qualifications it begs the question, why they are limited to insurance agents on their regulatory status which they proudly quote later on that page? Why don't they have full permissions to give financial planning advice? This is yet further misrepresentation designed to deceive people into believing he is going to act in their best interest.
However, whether he is qualified as stated or not, he is establishing he has specialist knowledge and skill in financial advice that I come to rely on; it is reasonable in the circumstances for me to rely on it and the law expects DV to demonstrate the degree of competence expected of an ordinary skilled member of that profession when doing their duty properly. In other words, DV makes a claim to a skill or competence and the law requires him to make good on that claim. A practitioner who falls short, with the resulting damages or losses, then he/she is likely to be held negligent.
In that same email, dated 27th May 2016:
“However, with all our clients, we still have a duty of care and still wish to ensure you receive good suitable advise.“
In the well known Hedley Byrne v Heller case, the court held, inter alia, that in relation to negligent mis-statements, a duty of care could arise, but only where there was a special relationship between the recipient and the giver of the negligent advice. There was clearly a special relationship in this instance, hence there existed a duty of care owed to me by the adviser, DV.
Paragraph 3 of Exhibit 1 states that SMIF are “EU licensed financial advisers” and goes on to explain they are passported to operate in the UK stating their FCA register number. However, what is not disclosed is their passport only allows for Insurance Mediation and not Investment Advice or the transfer of my pension. Nor was it explained to me what the implications were of this restriction – but I discovered later from the FCA explained in the next paragraph. An ordinary skilled member of the profession of financial advice, when doing their duty properly, would be well aware of the restrictions of Insurance Mediation.
I produce Exhibit 2 which is a reply from the FCA to my enquiry in 2016 after I had suspected I was in a pension scam. This clearly states, regarding SMIF: “... their passport only allows them to carry out insurance mediation, so theyre not authorised to arrange pension transfers.“
In a further email from the FCA dated 31st May 2016 the FCA confirms: “If you haven’t been dealing with a genuine firm that’s authorised and regulated by us, then you wouldn’t have access to the complaints or compensation scheme that we set out.” This loss of my rights to FCA protection, because the adviser was not authorised to give me investment advice was not disclosed by DV at any time either.
[For the record however, DV has steadfastly maintained: “I have made clear in my emails, we have acted within our permitted regulations ...” and consistently held that they have been inspected by regulators and have not done anything wrong. But, both he and his lawyer have refused to produce any evidence to support these assertions. He and his 2-bit lawyer can say what they like – it isn't worth a dime if they don't produce evidence! They accuse me of defaming his character by calling him a scammer but it's only defamation if not true. I have a shed load of evidence of fraudulent misrepresentations, which I have shared with them and they have so far produced a big fat ZERO to support their lies and deceptions.]
The SMIF website has since been updated and now confirms their authorisation as “Insurance Agents” which of course the footer of the letter (Exhibit 1) does not.
The Symphony Fund was a professional investor fund licensed as such by the Malta Financial Services Authority (”MFSA”) as a sub-fund of the Nascent Platform launched by Custom House Global Malta, now taken over by Apex.
I produce now, Exhibit 3, an extract from the Symphony Fund Offer Supplement, which by the way I was never provided. I obtained this in 2016 from Optimus Pensions Administration Ltd (”OPAL”), the QROP administrators, via the UK regulated IFA that I engaged to repatriate my pension.
The extract clearly shows why I was never provided this document. It unambiguously states this is a professional fund and its promotion to me is unlawful and even quotes, in section 3.3, the UK legislation prohibiting its promotion to me. Clear as daylight. Yet, on the second page of Exhibit 1 DV states: “The version that is suitable for retail pensions is a Malta based and regulated investment fund”, referring of course to the Symphony Fund. This is fraudulent misrepresentation. [Aside: there are three types of misrepresentation, fraudulent, negligent and innocent. Fraudulent is the most severe.]
It is clear and legally expected, given DV has established he possesses specialist skill and judgement in financial advice, that an ordinary skilled member of his profession when doing their duty properly would be aware of the terms of the Symphony Offer Supplement and its prohibition to invite me to participate. It would therefore be expected of DV also to be aware and not invite my participation.
His invitation to me to participate then, falls well short of his obligation which we have already established exists by the Hedley Byrne rule.
After I had published my concerns about my Symphony holding in an email dated 27th Feb 2017 I received an email from SMIF's lawyer on 8th May 2017 in which he said:
“Following various meetings between Square Mile’s shareholders and Symphony, I would like to propose the following on behalf of my clients, having regard to some of the informal discussions having taken place:
The managers of the Symphony Fund have steadfastly stated that the value refunded to you earlier in the process was the correct redemption value of their fund on the redemption date as triggered by your new adviser, even though the fund’s value sharply rose over the following months. That is their final position. However, we agreed informally with them almost two weeks ago that they could reclassify some transactions as clerical errors from your account. Since then, it was calculated that the reclassification exercise would give rise to a refund of a further GBP 6,000. Symphony had agreed, so Square Mile believes, in principle a week ago on Thursday to refund this amount to you subject to a written settlement.
However, this position was changed: last Wednesday, there was a run on the Symphony Fund by all investing trustees, which was specifically triggered by Angie Brooks’ earlier emails to the various publishers. The fund is therefore now being liquidated (on a solvent basis), and so Symphony have taken their offer off the table completely.“
The first thing to note is the phrase: “..even though the fund's value sharply rose over the following months” In my email of 27th Feb 2017 I described the “killer 35 day rule”, which by the way was never explained to me at the time the recommendation to invest was being made by DV – another undisclosed material fact, and I pointed out in my email that any decision to redeem is nothing short of a gamble because of the fund's volatility and the impossibility to predict the NAV in the future – see Nav table in Exhibit 5.
When I redeemed my shares, the fund dropped c.30% and by their own admission shortly after it rose 20-30%. How can such volatility be suitable for regular pension drawdowns? Who would advise 75% of a pension be invested in an illiquid fund locked in for 10 years and the remainder invested in a highly volatile professional fund, for a 60yr old man planning to retire in a couple of years time and start drawing down from that volatile fund? Moreover, the fund's characteristic of extreme volatility was never disclosed either by DV.
Further, in an email dated 29thMay 2016, DV said:”your funds are performing well, and at this time you have suffered no financial loss.“
The NAV for Symphony in May 2016 was down 12% so “performing well ... no financial loss” was yet another fraudulent misrepresentation designed to deceive me.
Advising me to invest in this fund was, from the beginning, a serious breach in the requisite standard of care and, on a balance of probabilities, is the cause of the financial loss I suffered.
[ Aside: Para 1 claiming: “the value refunded to you earlier in the process was the correct redemption value of their fund on the redemption date as triggered by your new adviser” is just one of many anomalies I complained about in my email of 27th Feb 2017. The redemption was triggered, as they put it, on 23rd June 2016 and I received an email from Rebecca Younge of Custom House Global on 15th July confirming receipt of that instruction on 14th July 2016. So it took 15 days after I issue an instruction to the trustee, to get to Custom House Global, which according to the Symphony Offer supplement is when they start the clock for redemption – 35 days from receipt of the instruction – which took us to Sep 1 2016 and so the Aug NAV was used which, by the way, was now c.30% lower than the June/July NAV (Exhibit 5) making a HUGE difference to the redemption figure. No one ever gave an explanation for the 15 day delay in getting my instruction from the trustee to Custom House Global. However, in an email from DV dated 31st May 2016, DV advised: “I can advise that I have to countersign the request to Investors Trust from Optimus to carry out any instructions” which is an unorthodox procedure given I had already engaged a new IFA, who they acknowledge triggered the redemption, so why DV “countersigns” anything was never satisfactorily explained. I posit the delay was with DV, but as I have said, no explanation was ever given. ]
Back to the email from the lawyer, dated 8th May 2017. Accompanying this email was a redacted email detailing a communication between DV and Symphony. I now produce Exhibit 4 which is that redacted email. Although one party is redacted, I believe that party to be a director – Alistair Evans – of Symphony Capital Partners Ltd. who is named in the Symphony Offer Supplement as the promoter of the fund. I had an email exchange with Alistair a year earlier when I complained to him I suspected I was in a scam. I still have those emails and recognise many similarities to what is said here.
I want to draw attention to the first email in the conversation at the bottom, where DV says:– “... the shareholders of Square Mile ... have been informed that the previously agreed offer of £6,000 that was to be made to Mr S (as a goodwill payment to cover administrative errors) has now been taken off the table.“
and Symphony's reply to that:
“Thanks for your email. I can confirm that, by and large, this is the case. The exact amount was slightly less than £6,000 and it was never formally offered to Mr S“
The rest of the denunciation regarding a blog is just a distraction and will not be further discussed here.
What is significant in these emails is an admission that administrative errors occurred that resulted in my holding suffering financial loss to the tune of £6000. Now forgive me if I am wrong here, but if a company discovers they made clerical errors that disadvantaged a client, who, had those errors not been made, would not have suffered loss, then surely they have a legal obligation to make good those errors, not treat it as a “goodwill gesture” and take it “off the table” because some 3rd party publishes a blog on a website I had no control over?
As it happens I requested Angie take down the blog as a favour to me, which she did, and I so advised the trustee, by email on 13th March 2017 – 2 months before this ridiculous email exchange.
However, I have not been reimbursed for administrative errors admitted by Symphony even though the emails state the fund was liquidated solvent.
Now I am convinced there isn't a judge in the land would fail to hold I have suffered economic loss from negligent (if not fraudulent) misrepresentation and unlawfully invited to invest in a fund that should not have been recommended, by an adviser who has established he has specialist knowledge and skill and knows I will rely on that knowledge, that not only lost me 30% of my investment when it was redeemed, but confesses to administrative errors that cost me £6000 that the fund owners refuse to correct because of a blog I had no control over!
What colour is the sky on their planet? How can they believe this is what a “duty of care” means and that they acted as the law would expect them to act? How can they assert they “have done nothing wrong”? They are surely delusional!
Authorities in all jurisdictions simply do not care and all point the finger of responsibility to each other and Action Fraud believe there are no leads to prosecute the actors in this sorry tale – Seriously?
What can a person do when abandoned by the authorities unwilling to act?
There are many more material facts that were not disclosed – which I might expound on in further posts. For example, the Life Assurance Bond with Investors Trust – it was never explained there was an almost 4% surrender charge – and by 4% I mean 4% of the original premium or current account value whichever was higher! It was not disclosed there was a £450 per annum policy charge in addition to 0.49% p.a. of either Initial premium value or account value whichever is higher – in an earlier letter it was simply stated a 0.49% per annum.
These policies are detrimental to any investor because they are biased wholly against the client! Their only use it seems is to get pensions offshore and out of FCA jurisdiction and trick QROPS into believing SMIF are acting within their permitted regulations by selling insurance, but in the FCA email of 31st May 2016, they said: “I understand that you’ve been told that your pension has been invested under ‘insurance rules’. Even though some investments may have an insurance element, they’re still investment products and it’s the investment rules that apply.“
These are clearly material facts that were deliberately undisclosed but necessary for an informed decision by me to proceed and I contend contravene the Fraud Act 2006 s.3.
The advice given to me had more holes in it than a Swiss Cheese and contravened numerous regulations, not least being COBS 2.1.1R the Client's Best Interest Rule which happens to be the UK implementation of an EU Directive No 2009/65/EC and so is applicable in all member states – including the Mickey Mouse ones! Also contravened is COBS 9.2 assessing suitability and Article 12(1)&(2) of EU Directive 2002/92/EC regarding information to be provided by Insurance Intermediaries; COBS 9.4 – suitability reports – never got one; I could also cite Distance selling directives/legislation; Misrepresentation Act 1967; the list just goes on and on and on.
Just how many leads does Action Fraud need?
I have a shed load of evidence supporting all this and despite numerous challenges the actors in this have never provided one iota of evidence supporting their defamatory assertions I am lying!
I will however, acknowledge (but not condone how we got here), the “other” fund I was invested in, did redeem c.99% of my holding and waived their 7% exit fee; and Investors Trust refunded their admin charges and surrender charge, so did OPAL/ICML, the trustee, refund their admin charges and waived their exit charge. All this due to a huge effort by the trustee and I thank them for it. I have stories of others whose trustees are doing didly squat to put right the gross mis-selling.
I acknowledge that all other actors in this tale made a good decision to pull out “completely” and leave me in the state they found me, one arrogant actor chose not to, believing they could bulldoze me into submission. Think again.
The only actor that a) mysteriously redeemed my holding by -30% and b) kept their 5% exit charge was Symphony. Had they not been so greedy I would probably have just closed the matter, retired and moved on. As it is, I feel I have an unresolved issue that I must pursue until I push up daisies!