Nicolas Stallworthy QC

Call date: 1993

Date of silk: 2011

Areas of Law:	Financial Services, Pensions, Professional Negligence, Business & Banking

Practice summary

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Nicolas Stallworthy specializes in pensions and commercial trust law (particularly in relation to occupational pension schemes). Nick was described by Sir Andrew Park in Smithson v Hamilton [2007] EWHC 2900 at [11] as a "formidable expert in all aspects of the law relating to pension schemes".

Nick has wide experience of almost every aspect of pensions law.

In particular, his cases have concerned equalisation; rectification; the setting aside of trustees' deeds under the principles in Re: Hastings-Bass and/or on grounds of mistake; pension scheme funding and investment issues; the distribution of surpluses; employer debts, insolvency and the winding up of pension schemes; Financial Support Directions, Contribution Notices and other applications before the Determinations Panel of the Pensions Regulator; the Pensions Protection Fund; maladministration and breaches of trust/fiduciary duty by trustees; tracing/restitution of trust property; applications for Beddoe relief; pensions mis-selling; and complaints to, oral hearings before and appeals from the Pensions Ombudsman.

Nick also undertakes general chancery work (commercial and contractual litigation) and professional negligence cases (particularly relating to solicitors, actuaries, scheme administrators, benefits consultants and financial advisers).

A selection of recent cases

IBM UK Pensions Trust Ltd v Metcalfe & Others
[2012] EWHC 125
For representative beneficiary successfully resisting termination of his prospective costs order to fund participation in the ‘C Plan Proceedings’, in which rectification is sought of the early retirement provisions within 7 or 8 deeds executed over the last 29 years. The trial in these ‘C Plan Proceedings’ is listed for 2 weeks in May 2012. This is part of the massive IBM litigation, for which the trial in the related Project Waltz Proceedings is listed for 4 weeks in February 2013.

Re the Box Clever Pension Scheme
Determinations Panel of the Pensions Regulator, 2011
For the Pensions Regulator, successfully securing a Financial Support Direction against ITV, Granada Ltd, Granada Group Ltd, Granada Media Ltd and Granada Rental & Retail Ltd. Concerned the collapse of the Box Clever joint venture set up in 2000 to run businesses including Rumbelows, Radio Rentals, Rediffusion, Visonhire, Telebank and Direct Vision. The first such case raising serious issues as to whether the targets were ‘connected or associated’ with the insufficiently resourced employers at the relevant time, which depends (amongst other matters) on the correct interpretation of the terms of a debenture. The scheme’s deficit is c.£62 million.

Dalriada v Faulds, Athena Pension Services Ltd and Minerva Pension Services Ltd
[2011] EWHC 3391
For representative beneficiary in test case concerning 6 pension schemes. Loans made pursuant to a “Pension Reciprocation Plan”, under which various defined contribution (money purchase) pension schemes would “invest” funds by way of personal loans to each others’ members, were invalid because they would otherwise constitute unauthorised payments (triggering tax charges), by virtue of section 173 of the Finance Act 2004. The first judicial guidance on the unauthorised payments regime under the Finance Act 2004.

Re: Nortel and Lehman Brothers
[2010] EWHC 3010
[2011] EWCA Civ 1124; and appeal in Supreme Court pending
For trustees of the Lehman Brothers Pension Scheme, successfully securing declarations that the Financial Support Direction (and any ensuring Contribution Notice) was enforceable within targets’ administrations.

Dollond v The Trustees of the BTG Pension Fund
[2011] EWHC 1373
For the Trustees of the BTG Pension Fund, successfully defending appeal from a decision of the Pensions Ombudsman. The member’s arguments that he entitled to Limited Price Indexation of all of his Guaranteed Minimum Pension were rejected: there was no contractual obligation or estoppel requiring the Trustees to provide such index-linking nor any maladministration on their part in declining to provide such index-linking.

Bridge Trustees Ltd v Yates
[2008] EWHC 964
[2010] EWCA Civ 179
[2011] UKSC 42
For representative beneficiary in proceedings determining the meaning of the term “money purchase benefits” in England’s pensions legislation, interpreting the phrase “benefits derived from the payment by any member of voluntary contributions” and explaining the operation of section 73 of the Pensions Act 1995 in relation to hybrid schemes (including the definition of ‘underpin benefits’ within Reg. 13 of the Winding Up Regulations 1996),

Capita ATL Pension Trustees Ltd v Zurinskas
[2010] EWHC 3365
For trustees of the Sea Containers 1983 Pension Scheme in proceedings resolving questions about the validity of equalisation (partly by way of compromise),

Re: the Lehman Brothers Pension Scheme
Determinations Panel of the Pensions Regulator, 2010
For trustees of the Lehman Brothers Pension Scheme, successfully securing a Financial Support Direction against 6 targets within the Lehman Brothers Group

Re: the IMG Pension Plan, HR Trustees Ltd v (1) German & (2) IMG (UK) Ltd
[2009] EWHC 2785
[2010] EWCA Civ 1349 – full appeal pending
For trustee seeking directions as to the validity of a DB to DC conversion in 1992. Considered the validity of amendments to an amendment power to delete a fetter; the effect of that fetter (similar in terms to the fetter in Courage); the sufficiency of trustees’ decision-making in the exercise of their amendment power (Turner v Turner); the extent to which the trusts of a scheme may be modified by extrinsic contracts (South West Trains v Wightman); estoppel; and the ambit of section 91 of the Pensions Act 1995 in connection with the compromise of uncertain entitlements.

DAS Services Ltd v Gait-Parker & Others
[2010] EWHC 2592
For representative beneficiary; rectification by summary judgment of two successive deeds in which a particular drafting error appeared

Re: PD Teesport Ltd, PNPF Trust Co Ltd v Taylor & Others [2009] EWHC 1693; and [2010] EWHC 1573
For representative beneficiary resisting joinder of hostile party to the massive Pilots National Pension Fund litigation in which all interests were otherwise to be represented by representative parties

Premier Farnell plc & Others v Canham & Others
24 March 2010, HHJ Simon Brown QC, Leeds District Registry of the High Court
For trustees; rectification by summary judgment of two successive deeds in which a particular drafting error appeared.

Re: the Derfshaw Retirement Benefits Scheme,
Determinations Panel of the Pensions Regulator, 2009
For independent trustee successfully obtaining determination that the scheme be wound up under section 11 of the Pensions Act 1995, winding up not having previously been initiated (so that the statutory debt could now be certified on a buy-out basis).

Capital Cranfield Trustees Limited v Beck & Tabor, Re: the A.C. Skelton Pension & Life Assurance Scheme
[2008] EWHC 3181
Directions as to whether a definition of Normal Retirement Date ("NRD") under the Rules including the words "such day as the Employers shall determine in any particular case and notify in writing to the Member concerned" afforded a power by which NRD could be equalized for ongoing accrual by existing members simply by an announcement

Re: the Focus Pension Scheme and the Do-It-All Pension Plan
Determinations Panel of the Pensions Regulator, 2008
For the trustees of two pensions schemes in proceedings seeking financial support directions against a private equity house in connection with the insufficient resourcing of employers participating in the schemes. Settled the day before the hearing on confidential terms.

Foster Wheeler Ltd v Hanley & others
[2008] EWHC 2926
Decision revisiting Hodgson v Toray Textiles and the operation of European & domestic law where a pension scheme has been amended to equalize NRD for men and women, but without making express provision for the retained rights of members with pension accrued by reference to an NRD at age 60.

Hearn v Dobson
[2008] EWHC 1620
For successful representative beneficiary in what is understood to be the first decision relating to the multi-employer modifications of the Scheme Specific Funding Regime; concerned issues as to whether partial termination provisions in scheme rules created a sectionalised scheme for the purposes of legislation.
Smithson v Hamilton
[2007] EWHC 2900
[2008] EWCA Civ 996
For representative beneficiary; successfully resisting claim that early retirement provisions for deferred members are invalid under the principles in Re Hastings-Bass and/or Gibbon v Mitchell; landmark decision restricting the application of those principles; compromised favourably on appeal.

Alexander Forbes Trustee Services Ltd v Clarke & Others

[2008] EWHC 153
For successful representative beneficiary, in a test case investigating the boundaries of the decision in Cripps v Trustee Solutions Ltd.
Re: the Sea Containers 1983 Pension Scheme
Determinations Panel of the Pensions Regulator, 2007
For trustees (with Brian Green QC) in oral hearing before Pensions Regulator’s Determination Panel leading to first ever determination to issue a Financial Support Direction

Trustee Solutions Ltd v Dubery & Cripps
[2006] EWHC 1426 (Ch)
[2007] EWCA Civ 771
For Trustees in an application determining the meaning of a requirement for “writing under hand” under an amendment rule; and the operation of s.73 of the Pensions Act 1995 in fixing a priority order where members have periods of accrual to which different Normal Retirement Dates apply

Steria Ltd & Others v Hutchison & Others
[2005] EWHC 2993 (Ch)
[2006] EWCA Civ 1551
For scheme member; at first instance successfully defended appeal from the Pensions Ombudsman in the first High Court decision upholding a booklet estoppel since Icarus (Hertford) Ltd v Driscoll [1990] PLR 1; and the first ever decision expressly upholding a booklet estoppel despite a disclaimer within the booklet stating that the scheme’s deed & rules prevail in the event of inconsistency. Overturned on appeal.

Harland & Wolff Pension Trustees Ltd v Aon Consulting Financial Services Ltd
[2006] EWHC 1778 (Ch)
For Defendant consultancy in professional negligence action re: equalization of a pension scheme; parties agreed that domestic law permitted retrospective increase in NRD w.e.f. 17 May 1990 to prevent ‘Barber window’ ever opening; preliminary issue as to whether European law precluded such a step; held that Smith v Avdel meant that European law did preclude such a step, but that this decision “unprincipled” & inconsistent with Fisscher v Voorhuis Hengelo, so permission to appeal granted: led by Nicholas Paines QC

Capital Cranfield Trustees Ltd v Pinsent Curtis
[2005] EWCA Civ 860
For trustee suing former solicitors for c.£18 million for negligently failing to advise that trustee was entitled under the pension scheme's rules to claim a ‘buy out' contribution from the employer prior to the employer terminating its liability to contribute; preliminary issue as to whether ‘buy out' contributions were claimable as a matter of construction of the scheme's contribution rule; first UK authority on the construction of such a standard contribution rule
Stevens & Ors v Bell (the British Airways litigation)
[2002] EWCA 672
Distribution of Pension Scheme Assets and construction of documents
Hoover Ltd v Hetherington & Others
[2002] PLR 297
Concerned the construction of the early retirement provisions of the Hoover (1987) Pension Scheme, estoppel and the duty of good faith.
Bradstock Group Pension Scheme Trustees Ltd v Bradstock Group Plc
[2002] EWHC 651 (Ch)
The first court decision concerning the compromise of an employers’ debts under section 75 of the Pensions Act 1995.