Michael Tennet KC

Pensions

Litigation concerning employers’ contribution obligations under scheme rules

• MNRPF V Stena Line [2015] 046 PBLR 169 [2015] EWHC 448 (ch). Acted for successful Trustee in Merchant Navy Ratings Pension Scheme, which successfully sought approval of as to the exercise of its powers to allocate liability for contributions between employers and former employers in multi-employer industry wide scheme.
• PNPF v Taylor [2010] 060 PBLR (Ch). Acted for successful Trustee in Pilots Pension Scheme in seeking directions as to its ability to seek contributions from employers and former employers.
• MNOPF Trustees v Everard [2005] PLR 225 Acted for claimant Trustee which successfully sought approval of the exercise of its powers to seek contributions from employers and former employers.

Employers’ statutory contribution obligations

• Re EMI. Acted for Pensions Regulator in first case on the use of its powers under s.231 of the PA 2004 to impose schedule of contributions on an employer.
• PNPF v Taylor [2010] 060 PBLR (Ch). See above. The case raised important issues as to the interrelationship between the statutory contribution regime and the regime under the rules of the scheme, and the limits of the former regime.
• Currently acting in regulatory proceedings under section 231 of the Pensions Act 2004

Trustee’s duties to employers

• MNRPF V Stena Line [2015] 046 PBLR 169 [2015] EWHC 448 (Ch). See above. Successfully acted for Trustee in a case dealing the extent to which Trustees could and should take account of the interests of employers in decision making.
• British Airways v Airways Pension Scheme Trustee: Acted for employer at first instance and in CA [2017] 085 PBLR (104) – [2017] EWCA Civ 1212 in successful challenge to the Trustees power to award discretionary increases while the scheme was in deficit Application to adduce expert evidence reported at British Airways Plc v Spencer & Ors [2015] Pens. L.R. 519

Employers’ duties to the beneficiaries

• IBM United Kingdom Holdings Ltd v Dalgleish [paras 353-478. Acted for the representative beneficiary at first instance 2014] EWHC 980 (Ch); (2014) IDS Pensions LR 335 and CA [2018] 067 PBLR (035) – [2018] EWCA Civ 1533 in case which defined the limits of an employer’s so-called Imperial duty to maintain trust and confidence in exercising discretionary powers under an OPS.
• Prudential Staff Pension Trustee v Prudential [2011] 055 PBLR – [2011] EWHC 960 (Ch) successfully defended employer against claims of breach of the employer’s Imperial duty to maintain trust and confidence.

Trustees, duties in relation to the PPF

• Independent Trustee Services Limited v Hope [2009] 75 PBLR (Ch), the Times 10 November 2009, (successfully acted for the Pensions Regulator in a dispute as to Trustee’s duties in relation to the interests of the PPF.

CPI /RPI increases

• The Qinetiq Pension Scheme [2012] 036 PBLR (025) – [2012] EWHC 570 (Ch). Acted for Trustees seeking Court Approval to change the basis of indexation of benefits from RPI – CPI. Have subsequently advised other schemes in relation to this issue.
• Mitchells & Butlers Pension Fund v Mitchells & Butlers [2022] 003 PBLR – [2021] EWHC 3017 (Ch). Acted for Trustee in successful proceedings against the employer concerning the ability of the employer to reduce the rate of increases to pensions under the scheme. The case involved issues for rectification, invalidity, and construction of the amendment power.
• Re the Britvic Pension Plan. Acting for Trustee in an ongoing dispute as to the validity of a purported power to reduce the rate of increases to pensions under the scheme.
• BA v BA Pensions Trustees (see above.) Acted for the employer in a case concerning the Trustees powers to award discretionary increases above CPI while the scheme is in deficit and their duties to the employer.

Moral Hazard

• Regularly instructed by both the Regulator, trustees and employers in relation to FSD and Contribution Notice and other regulatory proceedings including:
• Re Nortel Networks UK [2010] 066 PBLR (Ch). Acted for Trustee of scheme in successful proceedings for a FSD before Determinations Panel of the Regulator.
• Trustees of the Nortel Scheme v NNL (in administration) and NNI (in administration) [2015] Acting for the trustees of the Nortel scheme in enforcing FSD claims against Nortel group companies in Europe, the US (Chapter 11 insolvency proceedings) and Canada (CCAA proceedings).
• Re Telent [2008] 05 PBLR. Acted for the Pensions Regulator in successful proceedings for the appointment of independent trustees.
• Currently acting in regulatory proceedings under section 43 of the Pensions Act 2004

Pension claims in insolvency proceedings/section 75

• Gleave v PPF [2008] EWHC 1099 (Ch). Successfully represented the Pension Protection Fund in insolvency proceedings as to the correct way to quantify a section 75 debt in the T&N insolvency.
• Bloom v Pension Regulator [2014] AC 209 (Supreme Court) [2012] 1 All ER 1455 (Court of Appeal) The Times 4 March 2011, acted for trustee of scheme in proceedings which established the priority of a FSD in the Nortel insolvency.
• Trustees of the Nortel Scheme v NNL (in administration) and NNI (in administration) [2015] Acted for the trustees of the Nortel scheme in enforcing claims against Nortel group companies in the US (Chapter 11 insolvency proceedings) and Canada (CCAA proceedings). Proceedings took place in Toronto and Delaware June – September 2014. Successfully argued for pro rata allocation of dispute over division of $US 7.9 billion sale proceeds of Nortel’s global business in proceedings in Toronto and Delaware.

Variation of pension benefits by contract

• SWT v Wightman [1998] PLR 114. Successfully acted for an employer in leading case as to the variation of pension entitlements by contract.

Winding up / restructuring

• Advised on numerous occasions (and acted in confidential proceedings) as to the legality of restructuring arrangements designed to reduce pension scheme liabilities.

Pension Scheme rectification

• Mitchells & Butlers Pension Fund v Mitchells & Butlers [2022] 003 PBLR – [2021] EWHC 3017 (Ch) (see above).
• Lansing Linde v Alber [2000] PLR 15. Successfully represented a beneficiary in first reported rectification case in relation to a pension scheme.
• AMP v Barker [2001] PLR 77. Successfully represented the employer in first successful rectification claim in relation to a pension scheme.
• Gallaher v Gallaher Pensions Ltd [2005] PLR 103 Successfully represented an employer in contested rectification proceedings.
• Drake Insurance plc v MacDonald [2005] EWHC 3287 (Ch) [2005] EWHC 3287 (Ch); [2005] O.P.L.R. 395; [2005] Pens. L.R. 401 Successfully acted for the Claimant in early reported case on the use of non-contested procedures to decide rectification cases.
• Has acted on numerous other summary applications for rectification e.g. Merchant Navy Officers Pension Fund Trustees v Watkins [2013] EWHC 4741 (Ch)

Recovery of assets

• NBC Pension Trustees Ltd v Harrod [1999] 2 All ER 993. Successfully represented the trustees of the National Bus pension schemes in their action against the UK Government, which led to the recovery of almost £300m for pensioners and to various application for directions as to the distribution of that sum.

Winding up – Disposals of surplus

• NBC Pension Trustees Ltd v Harrod [1999] 2 All ER 993. (see above) Successfully represented the trustees of the National Bus pension schemes in their action against the UK Government, which led to the recovery of almost £300m for pensioners and to various application for directions as to the distribution of that sum.

Money purchase benefits

• Aon Trust Corporation Ltd v KPMG [2006] 1 WLR 97 (CA). Successfully represented a member of scheme in successful proceedings to establish the “money purchase” nature of scheme and the employer’s funding obligation.
• Have advised subsequently on the implications of Houldsworth v Bridge Trustees and Secretary of State for Work and Pensions [2011] 078 PBLR – [2011] UKSC 42 and the consequential amending regulations.

Public sector pensions

• Advised charitable body as to how to restructure and limit liabilities under the LGPS (Administering Authority was Kensington & Chelsea).
• Advised Community Admissions Body in dispute with Hampshire CC as to its obligations on cessation of participation in Local Government Pensions Scheme (including implications of CA decision in South Tyneside v Lord Chancellor)
• Represented Mitie Property Services in 2 week trial over obligations under an admissions agreement and under the LGPS: Wolverhampton County Council v Mitie Property Services [2015]
• Advised L.B. of Lewisham on its obligations as administrator of the LGPS.
• Advised Westminster Council in relation to its obligations as an employing authority
• Advised LB Redbridge in relation to its rights and obligations under the LGPS concerning an admitted body
• Advises regularly on the Local Government Pension Scheme especially in relation to admitted bodies and admission agreement
• Advised the Department of Constitutional Affairs in relation to its discussions with the judges as to the impact of the ‘A-day’ changes on their pensions.

Early retirement / redundancy

• Agco v Massey Ferguson Works Pension Trust Limited PLR 241 (CA). Successfully represented employer in dispute as to an entitlement of employees made redundant to early retirement pensions. Leading case on the meaning of “retirement”.

Pension Ombudsman

• Henderson v Stephenson Harwood [2005] 03 PL. Successfully represented an employer in an appeal from pensions ombudsman.

 

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