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A fascinating case for computer lawyers was reported in In re Market Wizard Systems (UK) Ltd)(Times 31 July 1998). For the case map see http://www.lawindexpro.co.uk/cgi-bin/casemap.php?case=82047. It was sought to wind up a company on the grounds that it was giving investment advice, but was operating outside the system of regulation of the Financial Services Act. Its basic method of operating was thought unlawful, and the Secretary of State for Trade and Industry intervened. The company claimed itself not to be giving such advice at all. Instead, they sold a software package which would, quite independently of them, make buy and sell recommendations on the basis of information about current conditions supplied to the software from time to time.
The company lost and was wound up. The fundamental argument was about when advice was given for the purposes of the Financial Services Act.
The software package was sold, and at the time of sale, no advice was given. When the program was run, there was no definitive advice given, but rather general recommendations about holding positions and so forth. Of course, there was nobody from the company present at the time when this general advice was given, nor indeed had any such person any involvement with the particular advice given. Even so, the company was told that the time when the section of the Act was to be applied was not limited in this way. The company constructed and delivered the mechanism.
The court said:
The fact that it was the customer who was operating the programme did not change the nature of the advice or its source.'
I have to say that I find the logic unconvincing, but that at the same time this is not the first time that courts have used similar logic. In a similar structure, an originator of computer output has been held liable (R v Fellows) despite not having actually pushed the button. For those seeking to hold back the tide of interfering judges, resource might be had to the argument that this is a case limited to an interpretation of an obscure section of a very particular Act. You might be right, but …
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