Russell Kelsall
Russell is a Partner at Walker Morris LLP and its Head of Consumer & Motor Finance. He leads an experienced team of non-contentious and contentious lawyers specialising in consumer, motor and asset finance. He has market-leading expertise in regulated financial products with a particular specialism in consumer credit, mortgages, payment services and savings. He is often instructed to advise on sensitive regulatory issues, including interactions with the Financial Conduct Authority and the Financial Ombudsman Service.
Russell is the author of 'Consumer Credit: Law, Practice and Precedents', an editor of 'Goode: Consumer Credit Law and Practice', 'Goode: Consumer Credit Reports', ‘Butterworths Financial Regulation Service’ (on CONC, MCOB and BCOBS), ‘Asset and Project Finance’ (on equipment leasing) and ‘Practical Lending and Security Precedents’ (on debentures).
Industry guides describe him as an "expert in the industry who knows exactly what to do in any given situation", being "very clued-up and able to give advice in a succinct, practical way”, having an "in-depth knowledge of the Consumer Credit Act", being "very competent in the consumer finance area" and being a "shockingly clever consumer credit expert".
Russell is retained by the Finance & Leasing Association to provide training to its members and has recently (a) advised the FLA on its lobbying of HM Treasury for changes to the regulation of consumer credit (including the need for emergency legislation) and (b) been instructed by the FLA to review best practice guidance for the industry.
Practice Areas
Panels
- Contributing Author
- Q&A Panel
Qualifications
- LLB (Hull)
- LPC (Shef)
4 Contributions by Russell Kelsall
PRACTICE NOTES
FCA consumer credit regime and insolvency: permissions, exclusions, professional body exemptions, FSMA Part XX/XXIV powers, and debt recovery compliance risks (UK)
This Practice Note outlines consumer credit law following the shift of regulatory supervision to the Financial Conduct Authority (FCA). It considers key changes affecting insolvency practitioners (IPs). For further reading on consumer credit agreements, see Practice Notes: Regulated activities relating to consumer credit and The FCA consumer credit regime: an overview of rules on arrears, default and recovery...
Regulatory oversight
From 1 April 2014, oversight of consumer credit moved from the Office of Fair Trading (OFT) to the FCA. As part of this transition, the OFT licensing scheme under the Consumer Credit Act 1974 (CCA 1974) was replaced by the FCA’s authorisation regime under Part IV(A) of the Financial Services and Markets Act 2000 (FSMA 2000)...
If a firm had:
a consumer credit licence on 31 March 2014; and
applied before 1 April 2014 for interim permission under FSMA 2000 and paid the fee
it remained authorised from 1 April 2014, with a landing slot to apply for either full or limited permission. If a firm did not satisfy both of...
Restructuring & Insolvency
PRACTICE NOTES
UK cancellation/withdrawal rights for regulated consumer credit and hire: £60,260 threshold, CCA 1974 s66A and s67, CONC 11 distance contracts, CCR 2013 vehicle rental services exclusion
This Practice Note explores the range of cancellation and withdrawal entitlements that apply to credit agreements and consumer hire arrangements governed by the Consumer Credit Act 1974 (CCA 1974). It proceeds on the basis that such agreements are not secured on land and are not used to fund the purchase of land. This Practice Note should be read alongside Practice Note: Right of withdrawal from a credit agreement.
Three categories of agreements
This Practice Note addresses three principal types of agreement:
a regulated credit agreement where the credit advanced is £60,260 or less (a threshold introduced through the UK’s implementation of the Consumer Credit Directive (Directive 2008/48/EC) (CCD) in 2011)
a regulated credit agreement where the credit exceeds £60,260, and
a regulated consumer hire agreement
The various cancellation or withdrawal rights
For these categories, an agreement may attract a withdrawal or cancellation entitlement under the following statutory or regulatory frameworks:
a withdrawal right under CCA 1974, s 66A
a cancellation right under CCA 1974, ss 67–73
a right...
Financial Services
Q&As
Are personal guarantees for consumer client legal fees regulated?
Key legal issues for guarantees
Guarantees constitute contracts and must accordingly meet the four essential elements of a contract, namely:
offer
acceptance
consideration
the intention to create legal relations
As a rule in law, consideration given in the past is ordinarily insufficient. A firm ought not to take a guarantee once it has already agreed to supply services to a client in question. The guarantee must also comply fully with s.4 of the Statute of Frauds 1677. It must thus be recorded in writing and properly signed by the guarantor as required. The Firm should also be alert to potential claims of misrepresentation, duress, and undue influence. It is sound practice to see that the guarantor receives independent legal advice on the implications of giving the guarantee.
Is the guarantee a regulated credit agreement?
Where undertaken by way of business in the United Kingdom, entering into a regulated credit agreement may potentially amount to a regulated activity under the Financial Services and Markets Act 2000...
Practice Compliance
Q&As
Oral loan for friend's property purchase: CCA & FCA authorisation
What is the regulatory regime under the Financial Services and Markets Act 2000 (FSMA 2000)
Under section 19 of the Financial Services and Markets Act 2000, the general prohibition applies: a person must not carry on a regulated activity in the UK, or even purport to do so, unless they are within one of the permitted categories below.
An authorised person (that is, authorised by the Prudential Regulation Authority and/or the Financial Conduct Authority)
An exempt person (for example, an appointed representative)
For an outline of the UK regime governing regulated activities, see Practice Note: What are regulated activities? An activity is regulated if it is of a ‘specified kind’—as listed in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (RAO 2001), SI 2001/544—and it is carried on by way of business.
For further detail on what amounts to carrying on a regulated activity ‘by way of business’ in the UK, refer to Practice Notes: What does ‘by way of business’ mean? and Territorial scope of the general prohibition.
What is a regulated credit agreement?...
Financial Services
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