Clayton Utz, AMP cave in to ASIC's 'fees for no service' notes demand

After months of withholding notes from interviews of current and former AMP representatives, law firm Clayton Utz has finally coughed up documents requested by the Australian Securities and Investments Commission (ASIC).

The notes formed the basis for Clayton Utz's October 2017 report on on fees for no service (FFNS) that was considered in the Financial Royal Commission.

ASIC had sought the documents in October 2018, but AMP wanted them withheld claiming they were subject to legal professional privilege (LPP).

The financial watchdog's response was to escalate the matter in December, seeking an order compelling Clayton Utz to produce the papers.

The regulator has today announced that on 7 March, the same day the two companies were due to file their evidence in the proceedings, Clayton Utz produced the notes with no claim of LPP by AMP.

AMP agreed to pay ASIC's costs and the proceedings were dismissed by consent the next day.

"ASIC is determined to take enforcement action against the major banks and financial service providers and to use all legal powers necessary to investigate the significant issue of fees for no service," ASIC Deputy Chair Daniel Crennan QC said.

"Entities should take seriously their obligations under statutory notices issued by ASIC, including producing documents in accordance with the specified timeframe and not preventing the disclosure of documents to ASIC by making inappropriate LPP claims. These interruptions delay and frustrate ASIC's proper investigation.

"ASIC is pleased that the documents have now been produced but is disappointed that the matter was not resolved sooner."

The watchdog released another update today criticising most of the six major banking and financial services institutions under scrutiny for failing to produce further reviews to identify "systemic FFNS failures" beyond those already known.

ASIC Commissioner Danielle Press said the institutions had taken too long to conduct these reviews, and welcomed the Government's commitment to give ASIC new directions powers that could speed up remediation programs in the future.

"These reviews have been unreasonably delayed," Press said.

"ASIC acknowledges that they are large scale reviews they relate to systemic failures over long periods with reviews going back six to 10 years and cover 36 licensees from the six institutions that currently authorise more than 7,000 advisers.

"However, we believe the institutions have failed to sufficiently prioritise and resource their reviews, particularly as ASIC advised them to commence the reviews in mid-2015 or early 2016."

The main reasons cited for these delays include poor record-keeping and systems, a failure by some to propose reasonable customer-centric methodologies to identify and compensate customers despite ASIC's clear articulation of expectations, and the approach by some entities to take a "legalistic approach" to determine which services they were required to provide.

The mere offer of an annual review is not sufficient in the eyes of ASIC.