Malcolm Waters QC acts regularly for financial services firms in litigation, drafting and advisory work relating primarily to legal and regulatory issues arising in connection with their retail lending and deposit-taking business. (His work in these areas frequently overlaps with his work in the consumer credit field, which is covered separately under Consumer Credit.) He also specialises in the legal and regulatory regimes applicable to mutual institutions (including building societies, friendly societies and industrial and provident societies).
He has extensive experience in drafting and advising on standard form mortgage and loan documentation, and in dealing with issues relating to the creation and enforcement of mortgages and other securities.
He has specialist expertise in applying the Unfair Terms in Consumer Contracts Regulations 1999 to standard form contracts, particularly those relating to mortgages, unsecured loans, current accounts and savings accounts. Topics regularly covered by his work in this field include the fairness of terms conferring unilateral powers on the firm to vary the interest rate or other charges payable by the customer, powers to amend other terms of the contract or product features, the scope of the so-called ‘core terms’ exemption and the effect of the ‘greylist’ of indicatively unfair terms in Schedule 2 to the Regulations.
He also acts regularly in cases involving other legal and regulatory regimes which provide protection for consumers in the financial services area, including the unfair relationships provisions of the Consumer Credit Act 1974, the Consumer Protection from Unfair Trading Regulations 2008, the Payment Services Regulations 2009, MCOB, BCOBS and the Lending Code. His work in these areas covers claims in proceedings before the civil courts, regulatory intervention by the FCA and complaints to the FOS.
He provides specialist advice on the law relating to building societies, friendly societies and industrial and provident societies. He was involved in all the building society transfers of business which took place in the 1980s and 1990s and, more recently, appeared for the transferor societies at the hearings to confirm the mergers of the Lambeth and Portman Building Societies, the Portman and Nationwide Building Societies, the Derbyshire and Nationwide Building Societies and the Cheshire and Nationwide Building Societies. He also appeared for Britannia Building Society at the hearing seeking confirmation of its merger with the Co-operative Financial Services (which was the first transaction to proceed under the new legislation which permits mergers between different types of mutual organisation) and for Kent Reliance Building Society at the hearing to confirm the transfer of its business to OneSavings plc (a transaction under the same legislation, which had the novel feature of being facilitated by private equity investment).
Recent directory comment has included the following:
He is senior editor of Wurtzburg and Mills on Building Society Law (which he co-edits jointly with colleagues, Elizabeth Ovey and Mark Fell), a looseleaf work which is kept up to date with regular releases.
He is also the author, along with Elizabeth Ovey and Mark Fell, of Retail Mortgages: Law, Regulation and Procedure, 2013, Sweet & Maxwell.
He was (together with Elizabeth Ovey) a contributing editor of The Law of Investor Protection, 2nd edition, and consultant editor of the title on Mutual Institutions in the current (fifth) edition of Halsbury’s Laws of England: http://lexisweb.co.uk/guides/sources/halsbury-s-laws-of-england.
He was also consultant editor of the title on Friendly Societies in the preceding (fourth) edition of Halsbury’s Laws of England (2007 reissue).
He is happy to provide seminars on unfair terms/unfair treatment in the retail financial services area.