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Andrew Spink QC

Andrew Spink QC

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Year of Call:

1985

Silk:

2003


Andrew Spink QC is a highly respected advocate with 30 years’ experience at the Bar, of which 14 years have been as a successful QC.

Andrew has a broad-based business law practice, specialising particularly in disputes relating to the interpretation or breach of most types of commercial contract and trust deed, claims for breach of fiduciary duty, freezing injunctions and asset recovery, CPR Part 8 claims as well as hostile CPR Part 7 claims for damages and other relief in the context of pensions and other commercial trusts, banking and financial services, and professional negligence claims. As well as appearing as an advocate, he is highly sought after for the provision of expert technical and strategic advice to clients both in relation to complex commercial civil disputes and in non-contentious situations (corporate mergers or takeovers, or in relation to the many issues arising in the administration of large occupational pension schemes, including dealing with the UK Pensions Regulator, advising on pensions issues in the area of corporate insolvency, or over issues of contractual interpretation in day-to-day commercial business life).

Andrew is also experienced in cases involving mediation or other forms of alternative dispute resolution, together with regulatory cases in front of the Determinations Panel of the Pensions Regulator and the Upper Tribunal (Tax and Chancery Chamber). This is a relatively new and fast-developing pensions jurisdiction where Andrew has been involved in several of the most significant recent cases. Andrew’s clients include individuals, partnerships, companies (including financial institutions), pension scheme trustees / employers / members, Government departments, and participants in multiparty group actions.

Andrew is ranked in the top tier (Band 1) for Pensions in Chambers & Partners, which also notes that “He is an extremely well-respected silk, winning glowing praise from market sources for his exceptional advocacy skills and client-focused approach”.

Over the years, Andrew has been variously described in the legal directories as “terrifyingly good in court”, “highly valued”, “seriously good”, “reliable, commercial and pragmatic” and “very personable and down to earth.” “[He is] Terrifyingly good and incisive” and “He has a very good client manner; he puts clients at ease and always seems in control.”   The Legal 500 adds that he is “definitely someone you want on your side…he has extensive expertise and is a real pleasure to work with.”

Andrew is joint head of Outer Temple Chambers and Head of the Business Department.

Pensions & Trusts

Andrew has been listed as a leading silk in pensions in Chambers & Partners and Legal 500 ever since being appointed QC in 2003. Over that time, he has appeared in many of the leading pieces of litigation in the Chancery Division and in the newer and fast-developing field of work involving the Pensions Regulator.

Pensions – Litigation Cases

IBM – “The Project Waltz Proceedings” (2013 –  ongoing)

Andrew acted for the Trustee throughout in this seminal piece of pensions commercial litigation, which concerned the validity of the introduction of powers into the deeds of two of IBM’s pension schemes (having regard to the fetter on the pre-existing power of amendment); the scope of those powers; whether IBM used those powers for an improper purpose in purporting to terminate further accrual; and whether IBM breached its duty of good faith to its employees; and thereafter what the appropriate remedies were for the breaches of duty that were found to have occurred. This was part of one of the most massive pieces of hostile litigation in the Chancery courts in recent years and was probably the largest ever pensions trial to date, involving in the first (“breach”) trial a huge e-disclosure exercise, 7 weeks in court, over 23 witnesses and 10 counsel. In the second (“remedies”) trial, Andrew led a team of 6 counsel including 2 other silks on behalf of the Trustee, which successfully developed and ran the many legally complex and novel remedies arguments on behalf of the members. There were four subsequent consequential judgments covering a variety of topics including the availability of prospective costs orders on a cross-appeal by members (making a total of 6 judgments). The case is proceeding to the Court of Appeal with a 9-day hearing estimate on both breach and remedies issues, to be heard in May 2017.

Merchant Navy Ratings Pension Trustees v P&O (& Others) (2013 – 2015)

A major piece of commercial litigation with significant financial and legal implications arising out of a dispute between the Trustee of and the many shipping companies contributing to the Merchant Navy Ratings Pension Fund. With hundreds of millions of pounds at stake as between the competing contributors and 7 QCs appearing this was understandably one of The Lawyer’s Top 20 Cases for 2014. Andrew represented the P&O Group, which took the leading role representing a large group of scheme employers in opposition to the Trustee’s deficit reduction plans. His role involved cross-examining the Chairman of the Trustee over 2 days, as well as having to deal with wide-ranging legal issues. The case produced the leading judgment on whether and if so in what circumstances and to what extent trustees can take into account the interests of scheme employers when considering how to act. This case followed on from the earlier first instance and Court of Appeal decisions in Stena v MNRPF Trustees [2011] EWCA Civ 543, which concerned whether the Trustee had the power to introduce a new contribution rule by amendment, a case in which Andrew also acted for P&O.

AB Action Group v Department for Work & Pensions (2013)

Advising on potential age discrimination issues arising in the context of the Government’s “A Day” pensions legislation in the Finance Act 2004.

Philips Pension Trustees Limited & Philips Electronics UK Limited v AON Hewitt & AllianceBernstein (2011 – ongoing)

Fiercely fought Part 7 claims for damages by the employer and trustees of a massive UK pension scheme against the scheme’s former investment strategy consultants and one of its fund managers, arising out of the scheme’s investment in 2007 of £2 billion of trust assets in credit default swaps and £500 million in US sub-prime mortgage backed assets, which caused the scheme massive losses during the Credit Crunch. The issues include the scope of the duty owed by the Defendants to the trustee/employer, the risks inherent in the financial products, and an important issue as to whether or not the investment consultant was an authorised person carrying on regulated activities for the purposes of FSMA 2000. The court was engaged for several days in 2016 on a strike out application and the matter is now proceeding to trial in 2017.

Atos UK IT Ltd & Ors v Atos Pension Schemes Ltd (2014 – ongoing)

Andrew acts for the scheme employers in Part 8 proceedings due for hearing in 2016/17 concerning the construction of provisions in the trust deed and rules of 3 pension schemes governing the appropriate index for increases in pensions. The case will focus on the meaning of “RPI” in the scheme rules, and on whether the rules give the Trustee and Employer a power to select an alternative index.

Wedgwood Pension Plan Trustee Ltd v Salt (2014 – ongoing)

Andrew acts for the trustee in Part 8 proceedings due for hearing in 2016/17 concerning (a) the effectiveness of a purported closure of the scheme to future accrual and, if effective, whether the final salary link was nonetheless preserved, having regard to fetter on power of amendment; and (b) rectification.

Archer & Ors v Travis Perkins & Ors (2011 – 2014)

Andrew acted for the Employers of the BSS Group Pension Scheme in Part 8 proceedings brought by the Scheme Trustees raising issues about whether actions taken in 1990- 1993 and 1996 respectively were effective so as to equalise the Scheme in light of Barber v Guardian Royal Exchange Insurance Group
and also whether a particular cohort of members who joined the Scheme were bound by an enforceable contractual agreement or estoppel with the result that they should be treated as having normal retirement ages of 65 even if the purported equalisations in 1993 and 1996 had been ineffective as regards other members of the Scheme. The case settled very shortly before the start of a 10-day trial.

Dalriada litigation (3 separate claims 2011 – 2013)

Andrew successfully represented an independent trustee against the Pensions Regulator in the Chancery Division in an important test case for the pensions industry to determine whether some of the many “pensions liberation” schemes currently operating in the market (membership of which can result in beneficiaries receiving loans from the scheme or other sources) fall within the statutory definition of “occupational pensions schemes” (Dalriada v Nidd Vale). The decision has had a significant impact on the way in which such schemes are regulated and the level of statutory protection available to members. He also acted for the independent trustee appointed by the Pensions Regulator in both of the previous leading cases resolving important tax and trust issues arising in the pensions liberation context (Dalriada v Faulds; Dalriada v Woodward).

Other cases of note – Court of Appeal

Court of Appeal cases in the field of Pensions in which Andrew has acted include the appeals against certain aspects of Warren J’s decision in the massive Pilots National Pension Fund litigation (one of The Lawyer’s Top 10 Cases of 2010), Stena v MNRPF Trustees in 2011 (see above) and in the leading equalisation case concerning the Foster Wheeler Pension Plan.

Other cases of note – first instance

Andrew has also represented the trustee in the leading decision on the approach to be taken to Courage-style fetters on powers of amendment, Re IMG Pension Plan, and the representative beneficiary in Danks v QinetiQ Holdings Ltd, in which Vos J considered the power of trustees to change the index used to make increases in pensions in payment and to revalue deferred benefits from RPI to CPI. He also appeared in two well-known rectification claims: Pioneer GB Ltd v Webb & ors and in AMP v Barker.

 

Pensions – Regulatory Cases

Andrew has been involved in a number of the leading cases involving regulatory intervention by the UK Pensions Regulator, including its attempts to exercise its financial support direction (“FSD”) jurisdiction extra-territorially.

Guinness Peat Group Plc (“GPG”) and the Coats UK Pension Plan (2014 – ongoing)

Andrew is instructed as leading counsel by the Trustees of the Coats UK Pension Plan in what is probably the largest and most complex on-going regulatory action brought by the Pension Regulator in respect of one of the UK’s largest schemes (with in the region of 27,000 members). The Pensions Regulator is seeking Financial Support Directions against various GPG entities and the case raises the hugely important questions concerning the “insufficiently resourced” jurisdiction. The action has been hotly contested by GPG and the case is consequently proceeding as what is effectively a massive piece of multi-party commercial litigation.

Carrington Wire (2012 – 2015)

Andrew acted for the Trustee of the Carrington Wire DB Pension Scheme in a case in which the Pensions Regulator sought Contribution Notices against Severstal (one of the largest mining companies in the world) and the director of the corporate purchaser of Severstal’s former UK business. Andrew acted for the Trustees who sought to recover the multi-million pound scheme deficit from these Targets. The case was ground-breaking given that it was the first time the Regulator had sought to invoke the “material detriment” test set out in Section 38A of the Pensions Act 2004. Important issues of construction of that section arose, as well as heavily disputed issues of fact. The case settled against Severstal, but proceeded successfully against the director in March 2015 with important rulings on the issues of law being made.

Lehman (2010 – 2014)

The Lehman litigation has been the largest and most wide-ranging series of UK proceedings arising out of the ‘moral hazard’ legislation. Andrew acted on behalf of 4 Lehman companies from the outset of the case in 2010 when 2 of those companies successfully secured a determination that no FSD should be issued against them. Upon the Trustees initiating a reference from that determination to the Upper Tribunal, his clients’ application to strike out the reference became the first ever pensions case to reach the Court of Appeal from the Upper Tribunal and is the leading case on the Regulator’s FSD jurisdiction. The underlying references went back to the UT and were proceeding to a 3-week hearing in February 2015 before settlement.

Chemtura (2011)

Andrew acted on behalf of all six members of the worldwide Chemtura Group of companies against which the Regulator was seeking the issuing of a Financial Support Direction, the matter settling shortly before a Determinations Panel hearing.

Nortel (2010)

Andrew provided expert evidence on UK pensions legal issues to the Court in Ontario in proceedings arising there out of the Regulator’s attempt to obtain a Financial Support Direction against members of the Nortel Group of companies.

 

Pensions – Advisory Work

Project Taurus (2015)

Andrew was instructed jointly by Philips Electronics UK Ltd (sponsoring employer) and the Trustee of the Philips Pension Fund to advise on key aspects of the de-risking of the Fund by way of a circa £2.4 billion transaction with Pension Insurance Corporation PLC (PIC). The transaction, which was announced in November 2015, involved the entering into a bulk annuity policy with PIC that will transfer to PIC responsibility for payment of retirement benefits owed to approximately 26,000 current and former UK employees and their beneficiaries. The transaction results in the transfer of £2.4 billion of the Fund’s defined benefit obligations to PIC and is expected to give rise to the largest full pension buy-out in the UK.

New workplace savings pension vehicle (2015 – ongoing)

Andrew has been advising on technical issues arising under the pensions legislation (in particular the scope of the definition of “occupational pension scheme”) in the context of the development of a proposed new workplace savings pension vehicle.

AB Action Group v Department for Work & Pensions (2013)

Advising on potential age discrimination issues arising in the context of the Government’s “A Day” pensions legislation in the Finance Act 2004.

Other advice in the context of large final salary pension schemes

Andrew has given advice on numerous occasions in recent years to the employers and trustees of several major schemes on the pensions implications of corporate acquisitions, restructuring and insolvency, continuing problems over equalisation, construction of powers of amendment, closure to accrual, breaking final salary linkage and other benefit restructuring proposals including bulk transfers without consent, non-pensionable agreements and other South West Trains agreements, section 75 debt issues and (post-IBM) on whether historic benefit restructurings might be vulnerable to arguments that the employer acted in breach of the Imperial duty and/or its contractual duty of trust and confidence owed to its employees.

UK Government and Local Government pension issues

Andrew has advised the Ministry of Defence on a number of pensions-related issues, as well a large local government pension scheme on its powers of investment.

Employment – related pensions advice

Andrew has given advice both to employers and employees on particular issues that have arisen concerning individual pension rights under employment contracts.

Commercial & Chancery

Commercial – Cases

Mengiste & anor v Endowment Fund For The Rehabilitation Of Tigray & Ors (“EFFORT”) (2012 – 2016)

Two strands: (1) [2013] EWHC 599 (Ch) (2) [2013] EWHC 857 (Ch), [2013] EWHC 1087 (Ch), [2013] EWCA Civ 1003; [2014] P.N.L.R. 4

Strand 1: Chancery commercial claim seeking to have judgments obtained in Ethiopia by the Defendants set aside and damages awarded on the grounds of an alleged fraudulent conspiracy in the prosecution of the original claims. Raised complex issues of Ethiopian law (including issues about the ambit of restitutionary causes of action) as well as an important jurisdictional forum issue as to whether a claimant in civil proceedings against defendants with alleged links to the Ethiopian government could expect to receive a fair trial of his action in Ethiopia or whether the action should be tried in England. Andrew’s cross-examination of the other side’s Ethiopian law expert, described by the Judge as a “thorough and comprehensive destruction”, was instrumental in securing a resounding victory for his clients. In 2015, the claimants sought to have the stay of their action imposed in 2013 lifted. Their application was unsuccessful at first instance but is now proceeding to the Court of Appeal, for hearing in 2016.

Strand 2: Application for wasted costs by successful Defendants on Strand 1 against solicitors representing unsuccessful Claimants on grounds that Strand 1 claims were effectively an abuse of process owing to fundamentally inappropriate expert evidence relied on by Claimants to which solicitors should not have leant their support. Went to Court of Appeal on decision of Strand 1 trial judge not to recuse himself and on his substantive stage 1 wasted costs decision. A leading decision on both recusal and wasted costs.

X v Y (Law Firm) (2014 – 2015)

Andrew acted for an international law firm in a claim against it for injunctive relief concerning whether it should be permitted to continue to act for a party to an international commercial arbitration in London on the grounds of conflict and/or having come into possession of confidential/privileged information. He also gave advice to that party concerning English legal and procedural issues arising in the context of related commercial litigation in New York.

Pavel Sukhoruchkin & Others v Marc Giebels van Bekestein & Others (Hadar Fund) (2013 – 2014)

A multi-party, multi-jurisdictional high value shareholder dispute concerning various alleged frauds, breaches of fiduciary duties and numerous other claims in respect of an investment fund in the Cayman Islands and its investment manager in the BVI. The case was listed for a five-day interlocutory hearing in July 2014 in the Chancery Division for permission to continue a double-derivative claim (brought by the Defendants in a counter-claim) and a strike out application (of some (but not all) other elements of the counterclaim) by the Claimants. Andrew acted for the directors of the corporate entities central to the dispute.

Gate Gourmet Luxembourg IV SARL v Morby & Other Related Actions (2010 – 2011)

Three related commercial and insolvency matters in the Chancery Division arising out of disputes between companies over alleged breaches of warranty in a share purchase agreement, breaches of fiduciary duty and trust by company directors and preferential payments.

Ruttle v DEFRA / Farm Assist v DEFRA (2002 – 2009)

A series of hard-fought commercial claims against DEFRA in the Technology and Construction Court in which Andrew acted for companies involved in the clean-up works following the 2000 and 2001 outbreaks in the UK of Swine Fever and Foot and Mouth. These raised a large number of complex construction issues in the areas of contractual and statutory interpretation, corporate insolvency, assignment of causes of action, legal professional privilege and quantum. There were two trips to the Court of Appeal, in both of which Andrew’s client was successful, most recently in relation to the recoverability of interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Supreme Court Act 1981.

Professional Negligence

Professional Negligence – Cases

Philips Pension Trustees Limited & Philips Electronics UK Limited v AON Hewitt & AllianceBernstein (2011 – ongoing)

Fiercely fought Part 7 claims for professional negligence (in the investment field) by the employer and trustees of a massive UK pension scheme against the scheme’s former investment strategy consultants and one of its fund managers, arising out of the scheme’s investment in 2007 of £2 billion of trust assets in credit default swaps and £500 million in US sub-prime mortgage backed assets, which caused the scheme massive losses during the Credit Crunch. The issues include the scope of the duty owed by the Defendants to the trustee/employer, the risks inherent in the financial products, and an important issue as to whether or not the investment consultant was an authorised person carrying on regulated activities for the purposes of FSMA 2000.

Legal professional negligence claim – pensions law – RAA (2014 – ongoing)

Andrew is advising the pensions team of a well-known law firm in relation to a claim brought by scheme trustees and the Pension Protection Fund for damages for alleged negligence in relation to the law firm’s advice in connection with a regulated apportionment agreement entered into by the trustees.

Actuarial professional negligence claim – failure to equalise (2012)

Andrew advised a major actuarial firm on a claim brought against it by trustees of a pension scheme arising out of an alleged failure to equalise benefits, which was successfully settled at a mediation. The claim raised issues relating to scope and breach of duty, construction of amendment powers, causation, quantum and limitation.

Legal professional negligence claim – pensions law – equalisation / failed amendment (2011 – 2013)

Andrew advised and represented at a mediation the pensions team of a well-known law firm in a claim against them for professional negligence alleged to have occurred in the context of benefit changes purportedly introduced into pension scheme rules but which fell foul of the scope of the power of amendment

Legal professional negligence claim – pensions law – pension increases / failed amendment (2011)

Andrew advised the trustees and principal employer of a final salary scheme in relation to a claim against the scheme’s former solicitors for negligence arising out of an alleged failure to comply with the power of amendment in the scheme rules when purporting to reduce the annual rate of increase on pensions in payment. The issue related to the correct actuarial basis for calculating the trustees’ or employer’s losses.

Actuarial negligence claim – failure to equalise (2011)

Andrew advised a pension scheme’s trustees and principal employer on a claim against the scheme’s former actuarial advisers for negligent advice relating to an allegedly failed equalisation of normal retirement ages. The issues included scope and breach of duty and limitation.

Philips v Hewitt (No. 1) (2006 – 2009)

Andrew advised the trustee and employers of the Philips Pension Plan in its successfully settled claim against Hewitt, based upon allegations of actuarial negligence.

 

Professional Negligence – Advisory Work

Andrew has wide experience of advising, on both sides, in relation to legal and actuarial negligence alleged to have occurred in the context of failed attempts to equalize normal retirement ages post-Barber, as well as in many other pensions-related contexts. As well as raising breach of duty, causation and (often complex) quantum questions, these cases almost invariably involve issues over limitation.

Banking

Banking & Financial Services – Cases

Philips Pension Trustees Limited & Philips Electronics UK Limited v AON Hewitt & AllianceBernstein (2011- ongoing)

Claims by the employer and trustees of one of the biggest UK pension schemes against the scheme’s former investment strategy consultants (one of the UK’s biggest) and one of its fund managers, arising out of the scheme’s investment in 2007 of £2 billion of trust assets in credit default swaps and £500 million in US sub-prime mortgage backed assets, which caused the scheme massive losses during the Credit Crunch. The issues include the risks inherent in and the market perception of the financial products, and an important and untested issue as to whether or not the scheme’s investment strategy consultant was an authorised person carrying on regulated activities for the purposes FSMA 2000.

Warners Retail Ltd -v- National Westiminster Bank and Barclays Bank (2014)

Action against bank for misselling of interest rate hedging products to a company in 2006 and 2007, in this case bank cancellable swaps, in relation to the selling of which the bank owed a statutory duty to observe FSA conduct of business rules. The swaps were entered into to hedge loans made by the bank to the company. Issues arose as to the suitability of the swaps for the customer, the relevant standard of practice in the banking industry at the time, causation and quantum, and as to the appropriateness and need for expert evidence.

Axa Sun Life v Ideal Financial Planning & ors (2011) [2011] EWCA Civ 133

Court of Appeal decision in case involving issues of contractual estoppel, various contractual construction issues including the scope of an “entire agreement” clause, a “conclusive evidence” evidence clause and an exclusion clause, misrepresentation, whether an exclusion clause fell within the scope of the Unfair Contract Terms Act 1977 and, if it did, whether it was reasonable for the appellant to rely on it. All issues arose in relation to the appellant’s standard form agreement under which it appointed the various respondents to act as its representatives to sell investments and other products on its behalf.

Various Claimants v Various Banks (2009-10)

Advised in relation to allegations of negligence, breach of contract and statutory and fiduciary duty made against the financial services/wealth management departments of a number of banks by a group of investors whose assets were invested on their behalf by or on the advice of those banks in the collapsed AIG Enhanced Variable Rate Fund marketed as an alternative to a cash deposit account.

Equitable Life (2007)

Advised in 2007 in relation to the group action brought by several hundred investors against Equitable Life involving allegations of mis-selling of with-profit pension annuities.

 

Banking & Financial Services – Advisory Work

New workplace savings pension vehicle (2015 – ongoing)

Advising on technical issues arising under the pensions legislation (in particular the scope of the definition of “occupational pension scheme”) in the context of the development of a proposed new financial product.

P Trust v M Financial Services Ltd (2010)

Advising a network of IFAs  authorised and regulated by the FSA under FSMA 2000  on a claim arising out of loan-backed purchases by sophisticated investors of portfolios of traded endowment policies in the context of a Final Notice having been issued against the product provider. Issues included whether there had been breaches of fiduciary duty in relation to commission, non-disclosure and unsuitability of the product and date of crystallisation of loss and quantum.

A v B (2010)

Advising in relation to a proposed claim arising out of advice given by an IFA to a high-earning senior academic member of a fully funded final salary pension scheme to leave the pension scheme and invest the transfer value in a SIPP.

Disciplinary & Regulatory

Regulatory Pensions Work – Cases

Andrew has been involved in a number of the leading cases involving regulatory intervention by the UK Pensions Regulator, including its attempts to exercise its financial support direction (“FSD”) jurisdiction extra-territorially.

Guinness Peat Group Plc (“GPG”) and the Coats UK Pension Plan (2014 – ongoing)

Andrew is instructed as leading counsel by the Trustees of the Coats UK Pension Plan in what is probably the largest and most complex on-going regulatory action brought by the Pension Regulator in respect of one of the UK’s largest schemes (with in the region of 27,000 members). The Pensions Regulator is seeking Financial Support Directions against various GPG entities and the case raises the hugely important questions concerning the “insufficiently resourced” jurisdiction. The action has been hotly contested by GPG and the case is consequently proceeding as what is effectively a massive piece of multi-party commercial litigation.

 Carrington Wire (2012 – 2015)

Andrew acted for the Trustee of the Carrington Wire DB Pension Scheme in a case in which the Pensions Regulator sought Contribution Notices against Severstal (one of the largest mining companies in the world) and the director of the corporate purchaser of Severstal’s former UK business. Andrew acted for the Trustees who sought to recover the multi-million pound scheme deficit from these Targets. The case was ground-breaking given that it was the first time the Regulator had sought to invoke the “material detriment” test set out in Section 38A of the Pensions Act 2004. Important issues of construction of that section arose, as well as heavily disputed issues of fact. The case settled against Severstal, but proceeded successfully against the director in March 2015 with important rulings on the issues of law being made.

Lehman (2010 – 2014)

The Lehman litigation has been the largest and most wide-ranging series of UK proceedings arising out of the ‘moral hazard’ legislation. Andrew acted on behalf of 4 Lehman companies from the outset of the case in 2010 when 2 of those companies successfully secured a determination that no FSD should be issued against them. Upon the Trustees initiating a reference from that determination to the Upper Tribunal, his clients’ application to strike out the reference became the first ever pensions case to reach the Court of Appeal from the Upper Tribunal and is the leading case on the Regulator’s FSD jurisdiction. The underlying references went back to the UT and were proceeding to a 3-week hearing in February 2015 before settlement.

Chemtura (2011)

Andrew acted on behalf of all six members of the worldwide Chemtura Group of companies against which the Regulator was seeking the issuing of a Financial Support Direction, the matter settling shortly before a Determinations Panel hearing.

Nortel (2010)

Andrew provided expert evidence on UK pensions legal issues to the Court in Ontario in proceedings arising there out of the Regulator’s attempt to obtain a Financial Support Direction against members of the Nortel Group of companies.

Financial Services

Financial Services & Banking – Cases

Philips Pension Trustees Limited & Philips Electronics UK Limited v AON Hewitt & AllianceBernstein (2011- ongoing)

Claims by the employer and trustees of one of the biggest UK pension schemes against the scheme’s former investment strategy consultants (one of the UK’s biggest) and one of its fund managers, arising out of the scheme’s investment in 2007 of £2 billion of trust assets in credit default swaps and £500 million in US sub-prime mortgage backed assets, which caused the scheme massive losses during the Credit Crunch. The issues include the risks inherent in and the market perception of the financial products, and an important and untested issue as to whether or not the scheme’s investment strategy consultant was an authorised person carrying on regulated activities for the purposes FSMA 2000.

Warners Retail Ltd -v- National Westiminster Bank and Barclays Bank (2014)

Action against bank for misselling of interest rate hedging products to a company in 2006 and 2007, in this case bank cancellable swaps, in relation to the selling of which the bank owed a statutory duty to observe FSA conduct of business rules. The swaps were entered into to hedge loans made by the bank to the company. Issues arose as to the suitability of the swaps for the customer, the relevant standard of practice in the banking industry at the time, causation and quantum, and as to the appropriateness and need for expert evidence.

Axa Sun Life v Ideal Financial Planning & ors (2011) [2011] EWCA Civ 133

Court of Appeal decision in case involving issues of contractual estoppel, various contractual construction issues including the scope of an “entire agreement” clause, a “conclusive evidence” evidence clause and an exclusion clause, misrepresentation, whether an exclusion clause fell within the scope of the Unfair Contract Terms Act 1977 and, if it did, whether it was reasonable for the appellant to rely on it. All issues arose in relation to the appellant’s standard form agreement under which it appointed the various respondents to act as its representatives to sell investments and other products on its behalf.

Various Claimants v Various Banks (2009-10)

Advised in relation to allegations of negligence, breach of contract and statutory and fiduciary duty made against the financial services/wealth management departments of a number of banks by a group of investors whose assets were invested on their behalf by or on the advice of those banks in the collapsed AIG Enhanced Variable Rate Fund marketed as an alternative to a cash deposit account.

Equitable Life (2007)

Advised in 2007 in relation to the group action brought by several hundred investors against Equitable Life involving allegations of mis-selling of with-profit pension annuities.

 

Financial Services & Banking – Advisory Work

New workplace savings pension vehicle (2015 – ongoing)

Advising on technical issues arising under the pensions legislation (in particular the scope of the definition of “occupational pension scheme”) in the context of the development of a proposed new financial product.

P Trust v M Financial Services Ltd (2010)

Advising a network of IFAs  authorised and regulated by the FSA under FSMA 2000  on a claim arising out of loan-backed purchases by sophisticated investors of portfolios of traded endowment policies in the context of a Final Notice having been issued against the product provider. Issues included whether there had been breaches of fiduciary duty in relation to commission, non-disclosure and unsuitability of the product and date of crystallisation of loss and quantum.

A v B (2010)

Advising in relation to a proposed claim arising out of advice given by an IFA to a high-earning senior academic member of a fully funded final salary pension scheme to leave the pension scheme and invest the transfer value in a SIPP.

Arbitration

Acting as counsel

X v Y (Law Firm) (2014 – 2015)

Andrew acted for an international law firm in a claim against it for injunctive relief concerning whether it should be permitted to continue to act for a party to an international commercial arbitration in London on the grounds of conflict and/or having come into possession of confidential/privileged information. He also gave advice to that party concerning English legal and procedural issues arising in the context of related commercial litigation in New York.

Arbitral Appointments

2014 appointment in pension scheme dispute.

Judicial decisions

Re: West of England Ship Owners Insurance Services Ltd RBS [2014] 20 (Ch)

This was one of Andrew’s own judgments handed down in his capacity as a Deputy Judge of the Chancery Division. It involved issues of construction intermingled with public law in the context of an appeal from a decision of the Pension Protection Fund Ombudsman to uphold a challenge by pension scheme trustees against the annual levy imposed on the scheme by the Pension Protection Fund (“PPF”). The case required Andrew to resolve (for the first time in the English High Court) a controversial and important issue about the extent to which pension scheme trustees may challenge such a decision by the PPF, as well as a number of other issues relating to the scope of the powers of the PPF Ombudsman.

Alternative Dispute Resolution

Andrew has represented parties in countless mediations over the years in all areas of his practice, acting for both claimants and defendants, most recently in a number of professional negligence claims arising in the pension scheme context – involving allegations of negligence against actuaries, investment advisers and lawyers.

Appointments & Memberships

As of July 2017, Andrew is the new Chair of the Commercial Bar Association (COMBAR), having previously served as COMBAR’s Vice Chair as well as Chair of its International Committee, which is responsible for coordinating the Association’s activities in all non-UK jurisdictions.

Before that, Andrew was Chair of COMBAR’s North American Committee and organised the annual North American Meetings for 2012 and 2013.

Internationally, Andrew is a registered advocate at the Dubai International Financial Centre.

In the UK, he sits as a Deputy High Court Judge in both the Chancery and Queen’s Bench Divisions and has been a Civil Recorder since 2005. He was appointed a Deputy High Court Judge in the QBD in 2008 and the Chancery Division in 2011.

Andrew was elected as a Bencher of the Middle Temple in 2010.

He is joint head of Outer Temple Chambers and Head of the Business Department.

Awards

Andrew has been a Civil Recorder since 2005 and was appointed a Deputy High Court Judge in the QBD in 2008 and in the Chancery Division in 2011. He was elected as a Bencher of the Middle Temple in 2010.

Languages

  • French

Areas of Law


Recommendations


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Testimonials


“He is an extremely practical and commercial QC who puts clients at ease.” Pensions, Chambers & Partners 2018

“He is technically excellent and driven by the client’s goals.” Pensions, Chambers & Partners 2018

“Masters very technical briefs quickly.” Professional Negligence, Legal 500 2017

“A powerful advocate, who has the ear of the court and can be relied on in an emergency.” Pensions, Legal 500 2017

“Any opinion of his carries weight with the other side.” Pensions, Chambers & Partners 2017

“He takes everything into account, thinks outside the box and thinks commercially.” Pensions, Chambers & Partners 2017

“A leader in the field.” Pensions, Legal 500 2016

“He has a very measured type of approach and he is very thorough.” Pensions, Chambers & Partners 2016

“A superb thinker who processes all of the arguments and delivers first-rate analysis.” Pensions, Chambers & Partners 2016

“An excellent barrister who comes up with well-considered, persuasive answers. A good man to use in practice and not just academically. He has the ability to convey incredibly difficult matters clearly, and is terrifyingly good. He is tactically brilliant and is an exceptionally good all-rounder.” Pensions, Chambers & Partners 2015

“Great with clients and as an advocate.” Pensions, Legal 500 2015

“Terrifyingly good and incisive.” “He has a very good client manner; he puts clients at ease and always seems in control.” Pensions, Chambers & Partners 2014

“He has brilliant commercial instincts and extraordinary attention to detail.” Pensions, Legal 500 2014

“Extremely easy to work with, responsive, hard-working and a lawyer who understands the issues clients face.” Noted for having “one of the best attitudes to client service at the Bar”, he received glowing praise from instructing solicitors across the country, who were taken with his “commercial and robust” advice. Pensions, Chambers & Partners, 2013

Andrew Spink QC is “terrifyingly good in court.” Pensions, Legal 500 2013

Andrew Spink QC has demonstrated that “he can mix it with the best, and do so with an easy, commercial manner.” Pensions, Chambers & Partners 2012

Andrew Spink QC demonstrates “great leadership and tactical nous.” Pensions, Legal 500 2012

“Highly regarded as someone who is “not only strong technically, but is also very hands-on and practical.” Especially good when in court, “he has an impressive portfolio of cases.” Pensions, Chambers & Partners 2011

“Definitely someone you want on your side”, “he has extensive expertise and is a real pleasure to work with.” Pensions, Legal 500 2011

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