Nick is the Practice Director at Wilberforce Chambers.
Nick works with the Practice Management Team and our barristers at Wilberforce to deliver a high level of service to all our clients. He sits on the Management Board and is responsible for instigating and delivering agreed business strategies. Nick has specialist experience delivering professional services to domestic, international and offshore legal markets.
Paul has a litigation and advisory practice concentrating on financial and private client disputes, most notably pensions, financial services and trusts. A substantial proportion of Paul’s practice also involves advising on and acting in liability and negligence disputes involving professionals.
As well as representing some of the highest profile pension schemes in the UK and several major life insurers, Paul has acted for the Pensions Regulator, the PPF and the Financial Services Compensation Scheme. He has been heavily involved in advising on, and appearing in cases relating to, various provisions of the Pensions Act 2004 and he also has extensive experience of advising and litigating on various public sector and industry-wide pension schemes.
An increasing amount of Paul’s work relates to Self-Invested Personal Pension Schemes (or SIPPs). Paul acts for investors, providers and trustees in respect of claims for mis-selling of SIPPs and mis-investments within SIPPS.
The regulation of the auto-enrolment regime has taken up an increasing amount of Paul’s work more recently, with Paul representing several organisations involved in the gig economy who are in discussions or disputes with the Pensions Regulator about their auto-enrolment obligations.
A substantial proportion of Paul’s work has involved dealing with errors in pension schemes, and he has used this experience to produce a book, A Practitioner’s Guide to Correcting Mistakes in Pension Schemes, which was published by Bloomsbury Professional in March 2022. For this, Paul was awarded the prestigious Wallace Medal by the Association of Pension Lawyers.
Paul is the founder and general editor of www.pensionsbarrister.com, a website featuring articles from pensions barristers and podcast interviews with prominent pensions practitioners.
Paul has an interest in legal history and is a member of the Selden Society. In his spare time, he is researching for a part-time PhD at the London School of Economics on the topic of law reporting in the Georgian era, for which he has been awarded a London Arts & Humanities Partnership Research Studentship.
David advises and litigates in a broad range of commercial matters including professional liability, regulatory, sports related matters and EU transport regulation, as well as mainstream commercial litigation. Over the past twenty years David’s practice has developed to extend to a variety of overseas jurisdictions, most notably in a number of Caribbean countries (Anguilla, Antigua, BVI, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, Turks and Caicos Islands) but also Ireland, Bermuda, Gibraltar and Switzerland.
In 2009 David was instructed by the Foreign and Commonwealth Office and the Governor of the Turks and Caicos Islands as leading counsel to head the Islands’ Civil Recovery project. Since then David has been extensively involved in planning and executing the ensuing claims. Some have been resolved without litigation but many have been litigated. So far in excess of $21 million in cash and more than 2,447 acres of land have been recovered. David has conducted a large number of trials in the Supreme Court, appeals to the Court of Appeal and the Privy Council, mostly in the field of civil fraud/ asset recovery but also in relation to related issues such as land registration and stamp duty. In Attorney General of the Turks and Caicos Islands v Akita [2017] AC 590, David succeeded in a case which explores the extent to which an account of profits may be recovered in unconscionable receipt claims.
David’s years of experience with the Turks and Caicos Civil Recovery programme have developed his skills of working in a team. The Turks and Caicos team was made up of other counsel, London commercial litigation solicitors, members of the Attorney General’s Chambers, as well as external advisors and experts (forensic accountants, surveyors, valuers, and others). David brings that experience to his more conventional commercial litigation, with positive effect.
Gilead is ranked as a leading silk in various categories of The Legal 500 and Chambers & Partners. He is also featured in Legal Week’s Private Client Global Elite and the CityWealth LeadersList “Top 10 Trust Litigation Barristers” list. He has been described in Who’s Who Legal as “one of the top silks in our research this year”, and is one of silks in the “Most Highly Regarded” category.
Gilead’s practice has a strong international element. He has appeared in the courts of Hong Kong, the BVI, Bermuda, Cayman and Nevis, and has been involved in litigation in Jersey, Guernsey and Gibraltar. He provided expert advice in relation to the Panama Papers in Imran Khan’s action against Nawaz Sharif in the Pakistan Supreme Court which led to Sharif being removed as prime minister.
Gilead specialises in complex, high-value disputes, often involving allegations of fraud, breaches of trust and fiduciary duties, and professional negligence. He also has “a notable specialism in matters involving art and antiquities” (Chambers & Partners).
Before coming to the Bar, Gilead enjoyed a brief career in publishing, editing books on photography, popular science and astronomy. He also spent a couple of years teaching in pre-revolutionary Iran. After completing his pupillage, he worked in the Litigation Department of Freshfields before taking up a tenancy at 7 New Square. He joined Wilberforce Chambers in December 2015.
Tim was awarded ‘Chancery Silk of the Year’ at the Chambers & Partners UK Bar Awards 2023. He is a specialist in high-value multi-jurisdictional commercial litigation, WFOs, Search Orders, commercial fraud and asset tracing, shareholder disputes, court-appointed receiverships, banking and financial services related claims, commercial arbitration, breach of confidence, ‘soft’ intellectual property and more recently cryptocurrency disputes.
He has been instructed recently to advise and act in many high-profile commercial cases, including acting for the main defendant and the 17th defendant during a 20-week Commercial Court trial in Suppipat v Narongdej 2023] EWHC 1988 (Comm), a $1Bn claim under Thai law and s.423 of the Insolvency Act 1986, for the Bank in Invest Bank v El Husseini [2023] EWHC 2302 (Comm), an important Commercial Court decision concerning enforcement of foreign judgments at common law, for Luxembourg investment funds in a fraud and abuse of process claim in the BVI in VDHI v MBFX (1st instance and Court of Appeal) and for 2 of the 6 defendants In Abu Dhabi Commercial Bank v Shetty & others [2022] EWHC 529 (Comm) – a $1B+ claim arising out of the collapse into administration of NMC Health PLC (2020-2022).
He has been involved in a number of important recent cases in the developing area of receiverships by way of equitable execution and cross-border recognition of court appointed receivers, including being retained by English Court Appointed Receivers in litigation in the Turks and Caicos Islands, and he is the author of the chapter on cross-border recognition of court appointed receivers in Kerr & Hunter on Receivers and Administrators, 21st Edition. He has also been involved in many of the leading recent cases on collective investment schemes in the Supreme Court and Court of Appeal. During the COVID lockdown, he obtained a diploma in Cryptocurrency at LSE, and has been instructed recently on fraud claims involving the misappropriation of cryptocurrency, including the leading case on crypto trust claims, Wang v Darby [2022] Bus L.R 121.
Tim is called to the Bar in the BVI, and regularly litigates not only in the London Commercial Court and the BVI but also in Cayman and other offshore jurisdictions. Tim is ranked in the directories in both commercial chancery and civil fraud.
Daniel practices in the fields of restructuring and insolvency, company law and commercial dispute resolution, including arbitration.
In both the insolvency and company law fields he is highly experienced in bringing and defending claims against directors, including claims for misfeasance / breach of duty, asset recovery cases and disqualification proceedings. He regularly acts on claims against directors arising from participation in tax schemes and tax evasion.
His insolvency practice has a particular emphasis on cases with an international element, particularly offshore asset recovery cases.
In the company law field, he is frequently instructed on cases concerning minority shareholders’ rights and disputes over the control of companies (including petitions under section 994, just and equitable winding up and derivative actions).
He undertakes a broad range of commercial litigation, with experience of arbitrations under the LCIA, HKIAC and SCC Arbitration Rules.
He has particular experience advising and acting in cases engaging issues of compliance with FCA (and equivalent offshore regulators) requirements, including advising upon on collective investment schemes, claims management companies, debt management companies and the regulation of investor funds.
He is a member of the R3 Fraud Group Committee which makes recommendations for reform and helps R3 respond to government consultations on fraud issues.
Tom has a broad commercial chancery practice, spanning business, trusts and property disputes in the UK and abroad. His practice is evenly split between led and non-led work. Tom regularly appears in a range of domestic courts and tribunals and, increasingly, in courts and tribunals in other jurisdictions. He also undertakes a broad range of advisory and drafting work.
The bulk of Tom’s practice comprises: Commercial and contractual disputes; Contentious trusts, wills and probate; Residential and commercial property; Civil fraud and asset recovery; Corporate and personal insolvency; Professional negligence cases arising from the above areas.
Tom is recognised in the leading directories for his Commercial Chancery, Trusts and Real Estate practices.
Tom’s practice has an increasingly international focus and he has recent experience on substantial disputes (litigation and arbitration) in the British Virgin Islands, Jersey, Guernsey, Cayman Islands, the Dubai International Financial Centre, Turks & Caicos, Hong Kong and Bermuda.
That experience builds upon secondments between 2013 and 2015 with Campbells (Cayman and BVI) and Mourant (Guernsey). He maintains a practicing certificate in the BVI and is a Registered Part II Legal Practitioner in the DIFC Courts. He enjoys, and has considerable experience, working as a part of team of lawyers in different jurisdictions.
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Commentary by Jia Wei Lee
In 2016, the Government issued guidance to local authorities administering the local government pension scheme (“LGPS”) which had the effect of restricting divestments from UK defence companies and foreign countries. In response, the Palestine Solidarity Campaign, a company dedicated to campaigning in support of the rights of the Palestinian people, sought judicial review of this guidance. In R (on the application of Palestine Solidarity Campaign Ltd and another) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16, the Supreme Court ruled by a bare majority in favour of the PSC.
With much attention being paid to trustees’ use of environment, social and governance (ESG) criteria in investing, the Supreme Court’s decision may be thought to provide some important guidance as to the extent to LGPS administrators, and indeed trustees more generally, may account for non-financial factors. This was certainly the flavour of the media coverage, which at least implied that the Supreme Court had issued carte blanche for local authorities to divest on ethical grounds. An article published on Pensions-Expert.com, dated 1st May 2020, was headlined “Supreme Court lifts ban on political investments by local council pensions”[1], while a statement by the PSC’s solicitors from 28th April 2020 said that “LGPS members now have the freedom to pursue their own principles in respect of the role of the arms trade and foreign countries in violations of human rights around the world, when determining how their pension monies are invested.”[2]
However, the Supreme Court’s decision is in fact quite limited, confined to a finding that the Government may not restrict LGPS investments on non-commercial grounds. It does not go as far as saying that local authorities may divest on purely ethical grounds. In that regard, the LGPS may ultimately find itself limited by the long-standing rule that pension trustees, save in particular circumstances, may not generally take account of non-financial factors.
Relevant background
The LGPS is a statutory occupational pension scheme established by regulations made under the Superannuation Act 1972, and having effect as if made pursuant to the Public Service Pensions Act 2013 (“the 2013 Act”). Unlike most other public sector schemes, the LGPS is a funded scheme. Local authorities administer 89 distinct funds, ringfenced from local authority resources, into which the local authorities (in their capacity as employer) and employees make contributions. It is therefore very similar to a normal DB pension trust.
Regulation 7 of the Local Government Pension Scheme Regulations 2013 (SI 2013/2356) (“the 2013 Regulations”), made pursuant to the 2013 Act, provided that a local authority must formulate an investment strategy in accordance with guidance issued from time to time by the Secretary of State. The guidance in question was issued by the Secretary of State on 15th September 2016 (“the Guidance”).
The Guidance contained the following instruction:
“However, the Government has made clear that using pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries are inappropriate, other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”
The Guidance also provided, by way of summary, that:
“In formulating and maintaining their policy on social, environmental and corporate governance factors, an administering authority… should not pursue policies that are contrary to UK foreign policy or UK defence policy”
It is these two passages of the Guidance that were the subject of challenge by the appellants.
The Supreme Court’s decision
The Supreme Court, by a 3-2 majority, found that the Secretary of State had exceeded his powers in giving the Guidance. His power to issue regulations and guidance was limited to that which would promote the policy and objects of the Act (the Padfield principle). The majority concluded that the LGPS was not a part of the machinery of the state. Rather, it arose from the contributions of employees and employers an element of the employee’s remuneration, and administering authorities ought therefore to regard themselves as “quasi-trustees who should act in the best interests of their members” (see [30]). Accordingly, it was in the majority’s view not open to the Secretary of State to direct that authorities “give effect to [his] own policies in preference to those which they themselves thought it right to adopt in fulfilment of their fiduciary duties” (see [44]).
By contrast the minority considered that, although LGPS pensions were earned by members, the public interest was engaged because of the relevant authority’s duty to make good any deficit in the fund using taxpayer monies. For that reason, the minority concluded that the policy and objects of the 2013 Act included the “working out of the role of central government in relation to the newly-created schemes and in ensuring the right balance is struck between the public interest and the interests of fund members”, a purpose which embraced the issuance of the Guidance.
What did the Supreme Court not decide?
The Supreme Court were only concerned with the lawfulness of the Guidance. But absent such limiting instruction, it remains a largely open question whether local authorities could, in the exercise of their own powers of investment, take into account non-financial factors.
The furthest that the Supreme Court comes in this regard is to endorse the Law Commission’s report titled “Fiduciary Duties of Investment Intermediaries” (2014, Law Com No 350). At [43], Lord Carnwath says of the Law Commission report:
“[This] report in turn may be seen as having settled a long-running debate as to the extent to which pension trustees could take account of non-financial factors dating back to cases such as Cowan v Scargill [1985] Ch 270 (see for example Lord Nicholls Trustees and their Broader Community: where Duty. Morality and Ethics Converge (1996) Australian Law Journal Vol 70, p 206). There appears now to be general acceptance that the criteria proposed by the Law Commission are lawful and appropriate. I agree.”
The criteria to which Lord Carnwath was referring to was in fact adopted almost word for word in the Guidance. In particular, both the Law Commission Report and the Guidance state that non-financial factors may only be taken into account by LGPS administrators if (i) the trustees had good reason to think that scheme members would share the concern; and (ii) the decision should not involve a risk of significant financial detriment to the fund.
Taken together with the majority’s observation that LGPS administrators are quasi-trustees, it seems to follow that local authorities, in making investment decisions, are bound may have regard to non-financial factors if doing so would not involve a risk of significant financial detriment.
A number of points arise from this. First, it is doubtful that the Law Commission’s report has “settled” the debate over how and whether trustees are entitled to take account of non-financial factors. The rule that trustees may take account of non-financial factors if it does not involve a risk of significant financial detriment is taken from Harries v Church Commissioners [1992] 1 WLR 1241, at p1248. However, Sir Donald Nicholls V-C’s judgment in Harries was specifically confined to trustees of a charity, where it would of course be perfectly sensible to take account of moral or ethical factors. But there is no suggestion in Harries that this rule can be extended to trusts generally, and indeed Nicholls V-C was careful to distinguish Cowan v Scargill [1985] Ch 270, in which Megarry V-C held that non-financial factors should very rarely be taken account of by trustees. So the Law Commissions’ report is in fact based on dubious authority, and certainly cannot purport to have “settled” the debate”.
Second, it is debatable whether local authorities, in the exercise of their investment powers, are subject to exactly the same fiduciary duties as ordinary trustees would be. As the minority in the Supreme Court note, taxpayers have an interest in ensuring local authorities do not run a deficit. In addition, active members are not the only beneficiaries of the LGPS (or indeed, any other pension scheme). There are other persons, such as dependants or persons interested under a members’ estate, who have entitlements under the LGPS. It is therefore questionable whether it is fair to say that local authorities are entitled to take account of ethical factors so long as scheme members share these concerns, given local authorities appear at least on face to owe duties to persons beyond just scheme members.
For these reasons, while the Supreme Court has provided some welcome insight into the application of the Padfield doctrine, one should be careful of reading too much into their judgment. Local authorities, and indeed trustees more generally, will still have to grapple with the controversial question of whether ESG criteria can be used in making investment decisions.
[1] https://www.pensions-expert.com/Investment/Supreme-Court-lifts-ban-on-political-investments-by-local-council-pensions?ct=true
[2] https://www.palestinecampaign.org/palestine-solidarity-campaign-defeats-uk-government-over-pensions-divestment/
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Commentary by Michael Furness KC.
“I am aware that it has been reported that the two provisions, Sections 15 and 16 of the Act, have the effect of enabling national museums for the first time to restitute items from their collections, based on moral grounds. However, I am also advised that when your Lordships and the House of Commons debated the Charities Bill, no such intent was considered, nor agreed on. Given this, the Government are deferring the commencement of the sections of the Act, which we initially expected to be part of the first tranche of commencements in the autumn, until we fully understand the implications for national museums and other charities.”[6]
However, as the recent Charity Commission decisions show, for non-statutory charities Re Snowden is already being used to authorise restitution of artefacts on moral grounds. It remains to be seen whether the government takes any action to cut down its application in that area.
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The views expressed in this material are those of the individual author(s) and do not necessarily reflect the views of Wilberforce Chambers or its members. This material is provided free of charge by Wilberforce Chambers for general information only and is not intended to provide legal advice. No responsibility for any consequences of relying on this as legal advice is assumed by the author or the publisher; if you are not a solicitor, you are strongly advised to obtain specific advice from a lawyer. The contents of this material must not be reproduced without the consent of the author.
[1] https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2017/09/6.3781_LC_HC304_Technical-Issues-in-Charity-Law_FINAL_080917_WEB.pdf
[2] See for example this article in the Guardian of 25 September 2022:
[3] https://bills.parliament.uk/publications/41673/documents/319
[4] The debate on the first reading is at:
https://hansard.parliament.uk/Lords/2021-07-07/debates/F09E7E75-B3C1-4913-87ED-4EF83E840271/CharitiesBill(HL)?highlight=charities%20act%202022#contribution-C3F23729-A9F2-4DC8-96EC-42D3BAF3095E. Note that at Col. 372GC the minister responded to a question about what constituted a moral obligation by giving the example of a charity receiving an undeserved benefit under a will. Nothing of significance was said on the second and third readings.
[5] https://www.gov.uk/guidance/charities-act-2022-guidance-for-charities
[6] https://hansard.parliament.uk/lords/2022-10-13/debates/2A9B0A96-9EE5-4F84-824D-EFB3B214043C/NationalHeritageAct1983
