Pensions litigation


Our specialist litigation team is unique in its 100% focus on pensions-related litigation. We cover the full spectrum of ‘dispute’ work from member complaints right through to appeal court and regulatory litigation.

For many of our clients, we are embedded in the client team and provide ongoing risk management advice and services as well as acting in relation to disputes and litigation.

Living and breathing pensions litigation means that we have a depth and breadth of experience that can be called upon, whatever the circumstances.

Court litigation

Our team has a wealth of experience in handling a wide array of litigation in the courts of England and Wales and we do not shy away from seeing a claim through to trial where the circumstances justify it. However, we see the measure of a successful litigator as not how many legal claims are brought before the Court. Instead, we put our clients’ wishes first and continuously strive to provide the best solution to their unique circumstances.

Case study

A few recent High Court cases where we have been involved are set out below.  But you may be more interested to hear about one that did not go to court, and the steps we took avoid it.

As a firm, we had acted for an employer client for a number of years.  Out of the blue, the pension scheme’s administrators had identified a problem with the pension increases wording in one of their deeds.  It was at that stage that our litigation team got involved.

Although the drafting was complex, a strict reading of the rules would have resulted in the scheme’s liabilities being increased by millions.  But, crucially, on careful analysis of the rules in their context, it was clear that there had been a mistake in the drafting and what the intention was.

Working constructively with the trustee’s legal advisers, we instructed Leading Counsel and obtained robust advice that there was a strong basis to apply ‘corrective construction’ and that it would be appropriate for the trustee to continue to administer the scheme on that basis without the need to obtain a court ruling to that effect.

Notable cases

  • Ove Arup & Partners International Ltd [2020] EWCH 1064 (Ch)
  • ITV Network Limited [2019] EWHC 266 (Ch)
  • Lloyds Bank plc [2019] EWHC 3775 (Ch)
  • Wedgwood Pension Plan Trustee Limited v Keith Salt  [2018] EWHC 79 (Ch)
  • Pollock and others v Reed and others (involving the Halcrow Pension Scheme) [2015] EWCH 3685 (Ch.)

Member disputes

Members, or groups of members, who are unhappy or who have raised formal complaints can present a significant challenge for schemes. We regularly deal with individual member disputes on a wide range of issues including DB to DC transfers, cyber threats, data breaches, misstatement claims, auto-enrolment and DC investments. We also assist with disputes between employers and trustees regarding the funding of pension schemes, with involvement of the Pensions Regulator (TPR).

Case study

We regularly advise clients on member complaints under the IDRP and before the Pensions Ombudsman and we are well versed in the position that the Ombudsman is likely to take in relation to the wide range of complaints that are made to him.

On occasion we will see complaints that have merit and we will work with clients to resolve these at the earliest opportunity.  A recent example of this is a claim that was made by a member in relation to the failure to carry out appropriate due diligence on the scheme he was transferring to.

The member had lost their entire pension and claimed that this was the result of the trustee’s failure to follow the appropriate processes in making the transfer.  We initially directed the member to the Financial Services Compensation Scheme which resulted in a substantial recovery.  We then agreed a settlement of a portion of the balance of the member’s loss to reflect the fact that his case had some merit but was not guaranteed to succeed.  This avoided the cost of a complaint to the Pensions Ombudsman and ensured that the member was appropriately compensated.

Regulatory and risk

Our team has been involved in the exercise of TPR’s powers right from the start, with its first financial support direction (Sea Containers) and one of its first scheme funding enforcement actions (EMI). We have continued to be involved in a variety of enforcement actions since then including:

  • Trustee suspension and prohibition orders
  • Investigations into, and the imposition of penalties for, auto-enrolment breaches
  • Employer contribution breaches involving master trusts and consequential rectification orders and penalties
  • Improvement notices, third party notices, and the appointment of a “skilled person”
  • Anti-avoidance enforcement action.

As the pensions regulatory landscape continues to change, so too do the risks and governance challenges.  We have spoken and written widely in relation to TPR’s new powers under the Pension Schemes Act 2021 and are highly experienced in advising on strategies to minimise future risk as well as managing regulatory investigations and responding to enforcement proceedings.

Case study

TPR had informed our client, the trustee of a DB pension scheme, that it was unhappy with the basis upon which an earlier actuarial valuation had been agreed and was opening an investigation into whether to seek to exercise its formal ‘scheme funding’ powers.  TPR’s concerns related to the appropriateness of the recovery plan.

We guided the trustee through the process – responding as appropriate to the investigation, whilst also seeking to maintain a constructive dialogue with both TPR and the employer.  Issues such as the application of legal privilege to disclosure orders were carefully navigated.  The focus of all parties ultimately turned to the next valuation and, against the background of having preserved a constructive working relationship with both the employer and TPR, it was swiftly agreed and TPR’s investigation was brought to an end.

Professional negligence

We have dealt with a number of negligence actions against professional advisers and/or administrators in relation to significant and costly errors. Often such actions arise off the back of matters which we have been involved with for some time, meaning that we can proceed with action swiftly and efficiently. We can draw on our expertise in a number of areas, including data protection and DB to DC transfer issues, in assessing the tactics to use to move such claims towards settlement.

Fraud (including cyber and data fraud)

Pension scheme trustees and administrators have important duties around handling personal data. As schemes are increasingly at risk of data breaches and cyber attacks, they are also subject to greater scrutiny from members, industry bodies, and claims management companies. Added to that, data breaches in the industry frequently catch the attention of the mainstream media. Our team understand the practical issues that come into play when devising a strategy and action plan to respond to the risk of data breaches and cyber attacks and what to do in the event of one.

Meet the team

Peter Murphy

I have been a pensions litigator for over 20 years, and have encountered pretty much everything in that time.  Litigation, and even the prospect of litigation, tends to happen when something has gone wrong (or at least someone thinks so).  The litigation process itself can also be combative and, at times, stressful.  I aim to bear the strain of dealing with those difficult circumstances (without adding to it!) and to achieve the best available outcome for my clients.

View Peter’s full bio.

James Bingham

Whilst my love of winning fits hand in glove with my role as a litigator, the most enjoyment I get from my job is helping clients achieve the right outcome for them.  My role is not to force a particular route but rather to understand the needs of my clients and to ensure that we agree an approach and ultimately a resolution that is appropriate to their situation.  The aim is for clients to have absolute confidence in our team and know that if they ever have a problem we bring an unparalleled breadth of knowledge but, most importantly a calm, pragmatic and client-focused approach to dealing with this. 

View James’s full bio.

Arshad Khan

I have bags of experience of both Court proceedings and individual member disputes.  As a team player I get most out of working collaboratively with clients since most cases require a collective effort to resolve via scheme trustees, the pensions manager, actuarial team and the scheme’s administrators.  What I love are the dynamics of each case and the fact that they are all so different both in the history of how they got there and how they can be resolved fairly and fully.  What is also rewarding for clients is that they take lessons learned from a particular dispute and apply those across other areas of activity to help avoid future problems. 

View Arshad’s full bio.

Sarah Donnan

As the newest member of the litigation team, I am really enjoying getting to know our clients and understanding their needs. I’ve worked in various litigation roles, most recently in the Government Legal Department’s commercial litigation team, and hope to bring a unique perspective and approach to our clients’ cases. I aim to be a reliable source for our clients to turn to and know that with the team’s vast knowledge and experience our clients are in safe hands.

View Sarah’s full bio.

Recent experience

  • Acting for the Halcrow Trustees, we brought a test case in exercising Trustees’ powers and propriety in a benefit restructuring situation
  • We acted for the trustees of the Coats Pension Scheme in relation to TPR’s ‘moral hazard’ powers. We also acted for the trustees of the Sea Containers scheme in proceedings when the first ever Financial Support Direction was issued, and have acted for parties and other stakeholders in relation to numerous other instances of intervention by TPR
  • We acted for Honda on a complex construction issue in the Court of Appeal
  • We acted for the Trustees of the Arup Pension Scheme in a case concerning a potential switch from RPI to CPI in respect of the Scheme’s pension increases
  • We acted for the EMI trustees in a funding dispute which was settled the week before a scheduling hearing before TPR’s Determinations Panel

Testimonials

Legal 500

‘Peter Murphy is one of the top partners is this field and Arshad Khan is also highly impressive.’

‘The Sackers dispute resolution team is first class, covering the full breadth of contentious activities.’

‘They communicate in a practical and accessible way that allows good understanding of the issues. They set clear expectations of the possible outcome in advance and have been proven to be right to date, which is important for building trust in the future. They also recognise the practical difficulties that arise in the real world and how they compare with the theoretically ideal position and are effective at finding ways to bridge the gap between the two. Finally, they are responsive, stick to the agreed deadlines and provide progress updates at suitable times to keep all parties well informed.’

‘Pragmatic and empathetic – very much feel that they understand the issues from our point of view’

‘We value their diversity, specialist expert knowledge and collaborative style of working with us. Unlike many law firms they provide clear billing and annual expenditure summaries broken down per person and area of specialism, which is extremely useful and transparent.’

‘Sackers are one of the leading pensions practices and are second to none in this field. They have a very deep team of pensions experts and I have been impressed with everyone that I have come across.’

‘The Sackers dispute resolution team is first class,  covering the full breadth of contentious activities’

Chambers

‘[Arshad] is approachable, methodical and professional.’

‘[James] is calm, practical and collaborative.’
‘[Peter] is pragmatic and helpful, with excellent communication skills over complex legal matters.’
“Responsive, efficient and practical.”
“A very deep team of pensions experts.”
“Very competent and knowledgeable in their field.”