EMAIL TO SAM INSTONE AND JAMES MCLEOD OF AES INTERNATIONAL

Dear Sam and James

It was a surprise to find that AES have decided to conduct the business of determining PPS’ and AES’ negligence and liabilities regarding Ark on Facebook.  I would have thought that Stephen Ward’s email of 18.7.14 could have been dealt with in a more dignified and professional manner – and kept within the confines of the Class Action members, HMRC, Dalriada, tPR, FCA and the police authorities.

However, AES obviously could not have come to this decision lightly, so I am happy to proceed with all details in the public domain.  This is clearly in the interests of the Ark victims and I would therefore thank AES for allowing proper transparency so that all the interested parties can move towards proper compensation for the losses suffered by so many.

Just a couple of humble suggestions, however.  Paul Clarke should not use fake Facebook profiles and pictures (he has been posing as Batman, the sloth from Ice Age, a dog, a woman and John Smith). Also, he should really learn to spell (“Don’t trust Angela Brooks… That’s foe sure…. She has been rumbled”) doesn’t really inspire confidence.  Naturally, my response to Ward’s email was also posted on Facebook and am happy to continue keeping all future correspondence in full view of all social media platforms.  It is not for me to question your choice of social media expert, but it would be better if Clarke avoids “trolling” since he is likely to be outlawed and it really won’t do the AES’ image much good (there have already been complaints about Clarke’s behaviour yesterday on various forums).  It would be helpful, also, if you could clarify Clarke’s role with AES – he claims he is an AES financial adviser, but you have stated that he is merely a “lay introducer contracted to AES” (however, as an aside, he also appears to be in the tattoo business).

Kindly address the numbered points below as a matter of urgency:

1. Please let me have confirmation of Paul Clarke’s qualifications and regulation.

2. Mr. Ward has claimed that: “PPS is regulated as a tied agent of AES International – AES is regulated by the CNMV and thus, as their tied agents, so are PPS.”   I can’t find AES on the CNMV register – please send me a link to your registration.  On 26th March AES informed me that PPS was a “tied agent of AES for MIFID investment business, not including pensions“.  So which regulation does PPS have – CNMV or MIFID?  Or both or neither?

3. Mr. Ward also states: “It is for AES to decide (as PPS are their agents) what PPS are allowed to do and what they are not allowed to do. In its business PPS operates within Spanish law; Ms Brooks has not specifically named any law broken by PPS: if she cannot do so, then her saying criminal activity has happened is untrue.”

I am sure you are aware that it is illegal to act as a financial adviser in Spain without being regulated or covered by professional indemnity insurance.  Since AES decided to “allow” PPS to operate the Ark pension schemes, and then – when Ark got shut down – proceed with the organised pension loan business (Marazion, Dorrixo, Evergreen, Southlands, Headforte et al) then I assume AES will be taking responsibility for making a claim on their professional indemnity insurance for the losses and liabilities suffered by all the victims.  When specifically asked about PII, Mr. Ward states: “AES maintains Professional Indemnity Insurance in line with the legal requirements within the EU” although he does not categorically state whether this covers “Advising on investments (except on Pension Transfers and Pension Opt Outs)”.  However, I assume that since AES decides what PPS can and cannot do, AES must ensure they do not carry out any unregulated and/or uninsured business while being a tied agent.  That would be really silly.

So, in light of the above, please provide contact details for your professional indemnity cover brokers, as we need to know the extent and level of cover AES has for claims. It is clear from multiple sets of documentary evidence and witness statements provided to HMRC and copied to me that Mr. Ward and Mr. Collins of PPS repeatedly claimed in writing that the MPVA’s were tax free, HMRC compliant and legal.  At no point did PPS ever draw attention to the risk of the loans being taxed or that it would be at 55% or that the loans would need to be paid back in the event of the schemes not being found to be compliant.  This was both negligence and fraud in accordance with tPR’s Scorpion announcements.  It was also publicly stated – at seminars organised and promoted by Mr. Ward and Mr. Collins – in front of hundreds of witnesses – that Mr. Ward was the principle designer and organiser of the Ark schemes.

4. Kindly let me have a copy of AES’ written permission to PPS to operate/promote/sell Ark, Marazion etc.  It is clear that AES gave permission for these activities to take place and even supported them by introducing clients to them (without drawing clients’ attention to the high-risk nature of the pension/loan structures, or the underlying assets).

5. Please provide me with evidence that you did not exercise your right to prohibit or restrict the types of investment in relation to which PPS represented “other counter-parties”.  It is particularly important that you give a full explanation as to why – in the wake of the Ark disaster – you did not prevent Mr. Ward from continuing to set up an elaborate pension loan project as outlined in the “Draft to introducers” (attached).  He was clearly aware that pension liberation was categorically and publicly declared as fraud by tPR and yet he is determined to operate 50% to 60% pension loans and create the illusion that the loans are not connected to the pension transfers (which of course they are, as you can see by Mr. Ward’s attached draft).

I am sure that in accordance with PPS’ clear obligations to notify AES immediately of any “event occurring or any act or omission that requires notification to the FSA or relevant national regulator (The CNMV)” Mr. Ward would have sent you a copy of the PPS Draft to introducers so that AES would have been fully aware that he intended operating pension liberation fraud which was not covered by regulation.  Or insurance?

6. As PPS agreed to pay to AES 12.5% of gross commission per month, it would be much appreciated if you would refund these commissions to the Ark victims forthwith.  Mr. Ward was charging the Ark victims 3% commission, plus receiving a “kick back” of 2% from Ark, plus a further administration fee per client of between 1k and 1.8k so he would have earned many hundreds of thousands of pounds, and 12.5% of that would have paid to AES.  In addition to this, kindly immediately refund the 5% which Paul Clarke charged two of the Ark victims who are members of the Class Action.

7. Please provide a copy of the explicit agreement in writing for the fees payable by Ark clients, and subsequently Marazion pension loan clients.  Also, I will need you to confirm the review of PPS’ annual accounts to 31.7.2011, 31.7.2012 and 31.7.2013 – because the Ark revenue earned by PPS has clearly not been declared in Spain.  By conducting your review of PPS’ accounts you will naturally have spotted this and I do not understand why the returns were not corrected.  Unless they were declared in the UK for some reason?  Kindly explain.

8. Kindly provide evidence that PPS has indemnified AES in respect of costs arising as a result of negligence, breach of contract or fraud or otherwise.  Also, please let me have details of all the compliance checks that AES has carried out in respect of PPS, and an explanation as to why the pension loan/liberation operations did not have sanctions placed on them in the first  place, and have been allowed to continue to the present day with no intervention from AES.

9.  Let me have your comments on what arrangements have been agreed between AES and PPS as to who is responsible for the advice given in the event of regulatory failing or a client complaint.  As you are aware, both AES and PPS are trying to deny responsibility for the advice given in the matter of Ark – although both parties have a clear responsibility to address this properly and compensate the victims for the financial damage they have suffered.  I am afraid it is no good AES protesting that Ark was not a regulated activity and therefore falls outside AES’ responsibility.  AES knew full well – as was their clear responsibility – what Mr. Ward was doing and that he was providing advice on Ark since 1.8.2010.  AES did nothing to sanction this or take any action to protect future victims as outlined in the PPS Draft.  And, anyway, AES themselves were clearly “introducing” clients to PPS for the Ark schemes knowing full well that this was an unregulated and possibly uninsured activity.

10.  Finally, kindly give me an explanation as to why AES have not terminated their Tied Agent agreement with PPS.  AES have a clear responsibility to do this in the event that PPS is “in breach of the Rules or any applicable legislation or regulations, or conducts the business in a manner which may prejudice AES’ authorisation by the FSA or if PPS or any of its directors, proprietors, partners, agents or employees gives any false or misleading information”.  PPS (Ward, Collins, Burns, Tunmore et al) have clearly given false and misleading information to hundreds of Ark and Marazion victims (possibly thousands).  They claimed that the “loans” were tax free; that the schemes were lawful; that the assets of the schemes had good track records (when they had none and were never likely to do so) seems to me, and to all the victims, to be about as false and misleading as it is possible to get.

Regards, Angela Brooks – Chairman, Ark Class Action  PPS Draft to introducers(1)