Norman Charles Webber and Department for Education, The Pensions Ombudsman
Emily Campbell appeared for the Pensions Ombudsman in a case which raised the issue of the correct approach to statutory limitation in complaints before the Ombudsman which concern the overpayment of pension. The Judge held that the date which stops the clock for limitation purposes is the date when the trustees’ letter of response to the complaint is received.
Clark v HMRC
Jonathan Davey QC has been successful in an important First-tier Tribunal case regarding the meaning of “payment” and “in respect of” in the context of the unauthorised payment legislative regime relating to registered pension schemes (Finance Act 2004). In considering the “payment” issue the First-tier Tribunal (Judge Roger Berner) preferred the reasoning of the Court of Appeal in Venables v Hornby [2001] STC 1221 over the reasoning of the High Court inThorpe v Revenue and Customs Commissioners [2009] STC 2108. A further hearing to address matters flowing from the First-tier Tribunal’s decision is due to be heard in early 2017.
Pollock v Reed [2015] EWHC 3685 (Ch)
The embargo on publication of the judgment of Asplin J given on 18 December 2015 in the “secret case” has now been lifted.
The case relates to Project Gravity, a proposed restructuring of the benefits under a scheme with more than 3,000 members and a solvency deficit of £600 million. The evidence was that without a restructuring the scheme would go into winding-up and enter the PPF. The trustees sought court approval of a bulk transfer without member consent to a newly-established scheme, whose benefits were lower than the headline benefits under the old scheme, but no worse and in most cases better than PPF benefits, and which would have a capped guarantee from the employer’s US parent.
Asplin J indicated that she would have blessed the trustees’ decision to carry out Project Gravity as a reasonable and proper one, but held with regret that it was not permissible under the Preservation Regulations, rejecting the argument of the trustees and the employer that the Regulations required or permitted the scheme actuary to take into account the security of benefits when deciding whether the members could be transferred without consent.
Nine Wilberforce Chambers barristers appeared in the case: Edward Sawyer and Simon Atkinson (along with Andrew Spink QC) for the trustees, Jonathan Evans QC for the representative beneficiary, Robert Ham QC and Jonathan Chew for the employer, Andrew Mold for the PPF and Michael Tennet QC, Jonathan Hilliard QC and Bobby Friedman for the Pensions Regulator.
(1) Antonio Caliendo (2) Barnaby Holdings LLC v Mishcon de Reya [2016] EWHC 150 (Ch)
Mr Justice Arnold handed down judgment in favour of Mishcon de Reya in this long-running and bitterly fought professional negligence case about the sale of QPR football club, one of the Lawyer’s “Top 20” cases of 2015.
The claim concerned the terms of the share sale agreement by QPR’s former chairman, Antonio Caliendo, to Flavio Briatore and Bernie Ecclestone. After a trial which lasted for most of December 2015, the Judge held that Mishcons were not retained by Mr Caliendo, were not negligent and the claims also failed on causation in any event.
Ian Croxford Q.C., Clare Stanley Q.C. and Jonathan Chew, instructed by Robin Simon partner, Michael Robin, acted for Mishcon de Reya. Alan Gourgey QC was instructed by DLA Piper for Caliendo.
Download the Judgment here (Crown Copyright)
Re BCA Pension Trustees Limited: a new approach to construction.
In December 2015, Snowden J handed down judgment in the first reported case of the use of s.48 of the Administration of Justice Act 1985 in the context of pension schemes. The case caused considerable interest, being described in the pensions press as “ground breaking”. As well as giving valuable guidance on the use of this procedure, including the requirement to inform members of its use, the Court approved the application of the still-novel principle of “rectification by construction”, which may well prove to be a significant extension of traditional means of construing difficult pension scheme provisions.
Paul Newman QC appeared for the successful applicant.
Download the Judgment here (Crown Copyright)
Cavendish Square Holding BV v Talal El Makdessi [2013] EWCA Civ 1539 and [2015] EWCA Civ 402
The Supreme Court handed down judgment in the cases of Cavendish Square Holding BV v Makdessi and ParkingEye Limited v Beavis, in which Joanna Smith QC and James McCreath acted for the successful appellant, Cavendish.
For the first time in a century, the highest Court has considered the extent and rationale of the doctrine of penalties, and has re-cast the test for discerning whether or not a clause is penal.
The judgment can be downloaded here: https://www.supremecourt.uk/cases/uksc-2013-0280.html (Crown Copyright)
Roger Charles Maddock v American Leisure Group Limited [2015 EWHC 1913 (CH)]
Roger Charles Maddock v American Leisure Group Limited [2015 EWHC 1913 (CH)]. Ian Croxford QC and Clare Stanley QC acted for the successful applicant setting aside service of a $100 million + damages claim.
The judgment provides welcome clarification of the interplay between the common law rules on submission to the jurisdiction and the deemed statutory submission in CPR 11(5) , and the circumstances in which a defendant may obtain an extension of time to make a r. 11(5) application (in this case nearly a year out of time).
Melanie Dawn Freedman v Michael Freedman & Others
Clare Stanley QC acted for the claimant in a successful application to set aside a settlement on the grounds of equitable mistake. Judith Bryant and Jonathan Davey represented the beneficiaries of the settlement in supporting the application.
The mistake made by the claimant in creating the settlement was that she did not appreciate that there would be charges to inheritance tax associated with the settlement, and that as a consequence of those charges she would be unable to repay a loan made to her by her father as had been agreed. HMRC argued that the claimant’s mistake was not sufficient to set aside the settlement because it arose from ignorance of the tax position rather than any conscious belief, or tacit assumption in relation to the tax consequences. HMRC also argued that the mistake was not sufficiently serious to justify setting aside the settlement.
Proudman J reviewed the law on mistake, and the decision in Pitt v Holt in particular, and decided that the claimant had made a distinct and serious mistake and that, taking the matter in the round, it would be unconscionable for the donees to profit from that mistake and insist on their rights under the settlement.
Wood v Waddington
Court of Appeal decision on easements
The Court of Appeal has today delivered judgment in Wood v Waddington. Mr and Mrs Wood, the appellants, claimed several rights of way over the land of their neighbour, Mr Waddington. The rights were said to have arisen when the two properties, which had formerly been in common ownership, were divided up for sale in 1998. The Court of Appeal held that Mr and Mrs Wood’s land did benefit from the claimed rights of way, by virtue of section 62 of the Law of Property Act 1925.
Simon Atkinson was led by Jonathan Karas QC, of Falcon Chambers, and appeared for the appellants.
IBM United Kingdom Holdings Ltd & Anr v Dalgleish & Ors
The IBM litigation concerns the most current of pension problems, namely when and how an employer like IBM can close its pension schemes to future accrual in the face of opposition from members. As pension schemes become ever more costly for those that fund them, the ability of employers to bring them to an end becomes ever more important.
This ground breaking case, which has yielded 4 judgments of 1000 sides, has laid down for the first time the employer’s duty of good faith when it decides whether to close the scheme, and what happens if it breaches this duty, along with dealing with a number of other important pension problems along the way.
Barristers from Wilberforce Chambers are involved for all parties, right from the Company (Paul Newman QC, Emily Campbell) through to the representative beneficiary (Ben Faulkner and Bobby Friedman) and the trustee (Jonathan Evans QC, Andrew Mold and Edward Sawyer).
This latest Judgment determines what remedies members are entitled to, after IBM purported to implement a suite of changes to its pension schemes, which Warren J has already found amounted to a breach of IBM’s duties of trust and confidence. It is a substantial victory for over 4,500 members, who will be entitled to have the changes effectively unwound, and who will be entitled to damages for any additional losses they have suffered. This Judgment is not the end of the story, however, as further consequential issues are still to be resolved by Warren J, and IBM has announced its intention to appeal.