In this Update we take a look at key legal developments for trustees of occupational pension schemes over the past quarter. These include some important cases such as the decision in Virgin Media Limited v NTL Pension Trustees II Limited regarding the consequences of failing to obtain a section 37 certificate, and the decision in British Broadcasting Corporation v BBC Pension Trust Limited regarding whether a reference to members' "interests" in a scheme amendment power included the right to continue to accrue future service benefits.

In BRASS Trustees Ltd v Goldstone the High Court has approved a decision by a scheme trustee to issue winding up petitions against the pension scheme's sponsoring employers. The trustee sought the court's approval under rules which allow a trustee to seek the court's approval where the decision a trustee is about to make is "particularly momentous".

1. State of the Restructuring Market

1.1 Market Trends and Changes

State of the Restructuring and Insolvency Market

There were 27,359 insolvencies in France as of the end of September 2021, down 25.1% from the same period in 2020, and down 47.9% from September 2019. Such reduction is relatively stable across all sectors, including those most severely affected by the health-related restrictions, such as accommodation and food services (down 44.2% year-on-year) and trade (down 28.1% year on year).

Fewer Insolvencies for More Opportunities

At the end of 2021, corporate bankruptcies (for most company sizes and in most sectors) were at their lowest level compared to the pre-COVID-19 figures from 2019, with a 50% drop in insolvency proceedings and a 10% decrease in pre-insolvency situations. This was largely due to the temporary impact of government emergency measures and support, including:

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LEGISLATION

CORPORATE INSOLVENCY AND GOVERNANCE ACT RECEIVES ROYAL ASSENT 

The Corporate Insolvency and Governance Act 2020 received Royal Assent on 25 June 2020. As reported in our last Update, the Act brings in some major changes to the insolvency regime which are potentially relevant to scheme trustees seeking to enforce their rights against sponsoring employers, in particular:  

The recently published Pension Schemes Bill provides for major extensions of the Pensions Regulator's powers, including the creation of new criminal offences which are very broad in scope and could potentially catch a wide range of people. Whilst the Bill is not set to become law this side of the general election, it seems likely that a future government will seek to enact the measures contained in the Bill, many of which are likely to command cross-party support. 

It is now clear that the Pensions Regulator will take a much tougher approach in future towards employers and scheme funding. The new approach comes after a select committee of MPs looking into the BHS collapse criticised the Regulator for being reactive, slow-moving and reluctant to exercise its powers.

The two key areas where we expect the Regulator to be more aggressive are scheme funding and "moral hazard" powers.

Court holds Bankrupt cannot be forced to draw scheme benefits to pay creditors

In its judgment in Horton v Henry the Court of Appeal has held that where a bankrupt member has acquired a right to draw benefits, but has not yet done so (a) his rights under the scheme are not "income" over which the court can make an income payments order under section 310 of the Insolvency Act 1986; and (b) the trustee in bankruptcy cannot compel the member to take his benefits.

Background

MPs' Report on the financial collapse of BHS: what are the key pensions implications?

MPs have published a report on the events leading to the financial collapse of BHS shortly after its sale by Sir Philip Green. As a consequence of BHS's insolvency, its defined benefit pension schemes will enter the PPF.