Robert Ham KC

Pensions

Robert was one of the first trust practitioners to specialise in occupational pension work. He appeared in the first modern case in the Court of Appeal – Kerr v British Leyland – and the first modern case to go to the House of Lords – the National Grid case.

More recently, he appeared in the first case in which the Pensions Regulator issued an FSD – Sea Containers. He also appeared in the first case in which the Regulator sought a contribution notice – Bonas – both before the Determinations Panel and the Upper Tribunal, as a result of which a multimillion-pound claim against his clients was settled for a nominal £60,000.

Robert has been involved in other moral hazard cases, several of which settled shortly before a Determinations Panel hearing, while others were disposed of at an earlier stage. He regularly advises on transactions where the parties are concerned that the Regulator might wish to invoke its moral hazard powers.

Robert has acted as an expert witness in the American and Canadian insolvency proceedings relating to the Nortel Group, where the trustees of the UK scheme and the PPF are seeking to prove in respect of an FSD. The Determinations Panel issued an FSD but the North American courts have declined to recognise it. The Canadian court is about to consider the matter and to make its own assessment of the Canadian parent company’s liability to an FSD and a contribution notice enforcing it.

Robert continues to be actively engaged in all aspects of pensions advisory and litigious work, now that it has moved on from working out how trust law principles operate in the pensions field, to working out how to apply complex and often imperfect primary legislation. He recently persuaded a judge that a notice given by an employer (Dresser- Rand) could be treated as a valid exercise of a power to make interim amendments by notice created by a subsequent deed that did not exist at the date of the notice itself.

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