Radcliffe Chambers
14 Experts
49 Contributions by Radcliffe Chambers Experts
PRACTICE NOTES
The moratorium is integral to any administration aimed at saving a company or enabling the restructuring of a business. This Practice Note explains what the moratorium is, how it applies in practice, and the considerations the court will assess when faced with an application to lift it.
The purpose of the moratorium
The objective of the moratorium is to provide the company or its administrators with breathing space to develop and implement proposals, and to examine the position of the company, its business and its assets. As outlined in the section below, ‘The effect of the moratorium’, it imposes a stay on proceedings, actions and other steps against the company or its property for the relevant period, save with the consent of the administrator (if appointed) or with the court’s permission (leave).
Within administration there are two forms of moratorium: the moratorium and the interim
Restructuring & Insolvency
PRACTICE NOTES
Age discrimination—the statutory framework
Rules outlawing age discrimination entered UK statute in 2006, arising from shifts in EU law—most notably the Archived Directive 2000/78/EC (Archived Equal Treatment Framework Directive), as it had effect immediately before IP completion day (ie 11 pm on 31 December 2020). Although the Archived Equal Treatment Framework Directive, like other EU directives, has been transposed into UK domestic legislation, the directive itself does not form part of domestic law (not even as assimilated law), and stands outside it. The UK measures enacted in 2006 to give effect to the Archived Equal Treatment Framework Directive and other EU law applied to employment generally, rather than being confined to pension schemes. The current statutory architecture is set out in the Equality Act 2010 (EqA 2010) and, in respect of pension schemes, the Equality Act (Age Exceptions for Pension Schemes) Order 2010, SI
Pensions
PRACTICE NOTES
Exceptions for age discrimination under the Equality Act 2010
The general non-discrimination rule for occupational pension schemes in section 61 of the Equality Act 2010 (EqA 2010) imposes a broad duty that extends to age discrimination just as fully as to any other category of discrimination. Even so, EqA 2010 authorises specific exceptions, under which certain rules, practices, actions or decisions adopted within occupational pension schemes are treated as not breaching that duty. There is also power to prescribe exceptions for personal pension schemes, provided such exceptions relate solely to contributions. The exceptions themselves are set out in the Equality Act (Age Exceptions for Pension Schemes) Order 2010, SI 2010/2133 (the Age Exceptions Order), which came into force on 1 October 2010. Since that date, a number of minor amendments have been made, chiefly to reflect the end of
Pensions
PRACTICE NOTES
Refer to our Practice Note: Pensions Ombudsman determination tracker for the key determinations by the Pensions Ombudsman we’ve covered...
Family
PRACTICE NOTES
Statutory framework
At present, four principal pension schemes operate in England and Wales for members of the armed forces. These are:
Armed Forces Pension Scheme 1975 (AFPS 1975) — formerly open only to the regular forces; closed to new members from 6 April 2006 and stopped future accrual from 1 April 2022
Armed Forces Pension Scheme 2005 (AFPS 2005) — likewise for the regular forces only; also closed to future accrual from 1 April 2022
Reserve Forces Pension Scheme 2005 (RFPS 2005) — open to full time reservists; again closed to future accrual from 1 April 2022
Armed Forces Pension Scheme 2015 (AFPS 2015) — open to the regular forces and all reservists; effective from 1 April 2015
There are also several other schemes, run by the same manager, that provide pension or other occupational benefits to armed forces
Pensions
PRACTICE NOTES
This Practice Note includes references to case law from the Court of Justice of the European Union. For guidance on whether EU judgments are binding on UK courts, see Practice Note: Assimilated law — Assimilated case law.
The equal pay principle and pensions
In its judgment in the Barber case delivered on 17 May 1990, the Court of Justice of the European Union decided that pensions payable under a private occupational pension scheme constitute deferred remuneration. Accordingly, the right to equal pay in Article 119 of the Treaty of Rome (the predecessor to Article 157 of the Treaty on the Functioning of the European Union (TFEU)) extends to the element of a person’s remuneration made up of pension benefits in the same way as to any other part of their pay. The Court in Barber also concluded that the equal pay right has direct effect in
Pensions
PRACTICE NOTES
Charitable appeals
Appeals for charity are commonplace, yet it is often overlooked that when members of the public contribute to an appeal for a purpose that is charitable in law, a trust for that purpose arises automatically by operation of law. This remains true even where the written terms are remarkably brief, eg ‘Save the Rembrandt for the Nation!’ or ‘Little Snoring Village Hall Roof Appeal’, or where there is no written notice at all but only an oral statement such as ‘A retiring collection will be made for Cancer Research’. The act of giving for a charitable purpose places those who receive the funds under a fiduciary obligation to apply them to that purpose, and to no other. Put another way, the recipients hold the money as charitable trustees. The nature of the purposes and appeals, the intended audience, and the amount sought (and in fact
Private Client
PRACTICE NOTES
Although wide-ranging reforms were proposed in the Charities Act 1993 and, later, the Charities Act 2006, neither set of provisions has been commenced, nor are they expected to be in the near term. As a result, rules on public charitable collections—meaning raising funds from the public for charitable or similar aims—remain rooted in statutes from 1916 and 1939. The Charities Act 2022, implemented in phases from Spring 2023, leaves the regime for charitable public collections untouched.
current legislative framework
Section 5 (as amended) of the Police, Factories, etc (Miscellaneous Provisions) Act 1916 (PFE(MP)A 1916), together with the Street Collections (Metropolitan Police District) Regulations 1979 (SI 1979/1230) and any regulations made under that provision, governs collections carried out in the street (which includes a shop doorway or shopping precinct). This framework overrides street trading rules, even where funds are raised by selling goods, provided there is an
Private Client
PRACTICE NOTES
There are numerous trusteeship positions that can emerge from the way a charitable trust is structured and run, ranging from a traditional all‑purpose trustee to a more confined or specialist capacity, such as a bare trustee or a nominee.
Functions of trustees of charitable trusts
At its most straightforward, there is one collective of individual trustees and, for a charitable (rather than a private) trust, their number is unrestricted even where the trust assets include land. In that arrangement, the trustees take responsibility for:
holding legal title to the trust property
making all decisions on banking, property management, insurance and investments
recruiting staff and entering into contracts
receiving and applying income, and, where authorised to spend it, capital, to meet administrative costs and advance the charity’s purposes
preparing the annual return and accounts
otherwise meeting charity law
Private Client
PRACTICE NOTES
Charity trustees’ responsibilities—and the resulting potential liabilities—fall into three groups: statutory duties, fiduciary obligations owed to the charity, and common law duties owed to third parties. The Charities Act 2022, which revises the Charities Act 2011 (CA 2011) following the Law Commission Report on various technical matters in charity law, has not yet come fully into force. The main unresolved point relates to ex gratia payments by charities, eg to a deserving yet disappointed beneficiary under a Will that, owing to a technicality, leaves a benefit to a charity. Any enquiry in this area calls for checking the most current legislative position.
Statutory duties
The CA 2011 sets out a range of specific duties for charity trustees...
Private Client
PRACTICE NOTES
Charity trustees exercise authority sourced from several places: the express terms of the charity’s governing document, the Charities Act 2011 (CA 2011) and other legislation, and from common law and statutory principles arising from the charity’s nature as a legal person and as an entity in its own right.
All such powers must be used only to advance the charity’s objects and to preserve its assets; where trustees apply a power for some other end, or act in a way that is not in the charity’s best interests, the decision may, if intentional, be a ‘fraud on a power’, or otherwise a negligent (or inadvertent) breach of trust for which the trustees could be held personally liable.
Powers and the charity format
The character of the charity itself may determine, in part, the range of powers open to the trustees, and therefore be relevant to what they can
Private Client
PRACTICE NOTES
Pension scheme disputes—jurisdictions for resolution
Disagreements about pension schemes can be settled in three distinct forums, each operating its own rules on costs:
the courts
the Pensions Regulator
the Pensions Ombudsman
The courts
Many pension issues are pursued through the civil courts. Claims, particularly those concerning occupational schemes constituted as trusts and supervised under the court’s inherent jurisdiction, are allocated to the Chancery Division of the High Court, specifically the Pensions Sub‑List of the Business List (BL (Ch)) within the Business and Property Courts of England and Wales. Such matters are commonly brought by trustees, the scheme employer or beneficiaries to resolve questions about the governance or administration of the scheme’s trusts.
The Pensions Regulator
The Pensions Regulator has a broad supervisory mandate and may take a proactive, interventionist stance towards employers, trustees and associated persons to protect pension scheme funds. Actions taken by the
Pensions
PRACTICE NOTES
This considers the legal rules engaged when parties are in civil dispute over the disposal of a deceased person’s body, including transporting the body out of the jurisdiction, the timing and method of disposal, and the ceremonies to be observed. Unsurprisingly, the emotions involved in such disagreements are often intense.
Entitlement to possession of a corpse
In English law, as Kay J stated in Williams v Williams, ‘there can be no property in the dead body of a human being’. Consequently, any direction in the deceased’s Will instructing the executors to hand the body to another individual had no effect. Generally, the same approach applies to body parts, as affirmed in R v Kelly, although that case acknowledged exceptions. As a general statement, the principle that a corpse cannot be owned remains sound. Rather than rights comparable to property in chattels,
Private Client
PRACTICE NOTES
What are guaranteed minimum pensions?
Guaranteed minimum pensions (GMPs) came into being on 6 April 1978, arriving at the very moment the State Earnings-Related Pension Scheme (SERPS) was launched. The legislation in force at the time — namely the Social Security Act 1975 and the Social Security Pensions Act 1975 — allowed an employee’s employment to be contracted out of SERPS provided particular conditions were met. In essence, those conditions required the employee to be enrolled in a pension scheme that promised to pay a pension of at least a guaranteed minimum amount. That guaranteed minimum was intended to match the pension the employee would otherwise have received under SERPS. Generally, it was expected that the benefits actually payable from the relevant scheme would exceed the GMP. The principal appeal of contracting-out was that, because the state would not be required to pay SERPS as well as the
Pensions
PRACTICE NOTES
Statutory framework
In England, there are three pension arrangements in place for firefighters, collectively referred to as the Firefighters’ Pension Scheme. These are:
Firefighters’ Pension Scheme 1992 (FPS 1992), which stopped accepting new members from 6 April 2006 and ended future accrual on 1 April 2022
Firefighters’ Pension Scheme 2006 (FPS 2006, or NFPS – the New Firefighters’ Pension Scheme), which likewise closed to future accrual with effect from 1 April 2022
Firefighters’ Pension Scheme 2015 (FPS 2015), which commenced on 1 April 2015
FPS 1992 also covered fire and rescue personnel in Scotland and Wales. FPS 2006 did not, and separate new schemes were put in place by the Firefighters’ Pension Scheme (Scotland) Order 2007, SSI 2007/199, and the Firefighters’ Pension Scheme (Wales) Order 2007, SI 2007/1072. In 2014 and 2015, distinct successor schemes were also introduced for England, Scotland and Wales,
Pensions
PRACTICE NOTES
This Practice Note includes references to case law from the Court of Justice of the European Union. For guidance on whether EU judgments are binding on UK courts, see Practice Note: Assimilated law — Assimilated case law.
Legislative framework
Broadly, employees engaged on fixed-term contracts are protected against:
treatment that is less favourable than that afforded to colleagues on contracts of indefinite duration, and
abuse arising from a succession of fixed-term contracts
These statutory protections derive from the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034 (the Fixed-term Regulations). The Fixed-term Regulations took effect on 1 October 2002 to give effect, in domestic law, to the provisions of the Archived Fixed-term Work Directive 1999 (as it had effect immediately before IP completion day). Although the Fixed-term Regulations form part of domestic law, the directive itself does not. The directive was adopted to give
Pensions
PRACTICE NOTES
It is widely accepted that corporate collapse can frequently give rise to fraud allegations. The Insolvency Act 1986 (IA 1986) includes ten provisions whose titles contain the term ‘fraud’ or ‘fraudulent’ in their headings—although, when analysing provisions such as IA 1986, s 423 (transactions defrauding creditors), as this Practice Note will consider below, it becomes clear that, at least in that context, ‘fraud’ in the modern legal sense is not a required component or element. Enquiries into fraud following the insolvency of a company (or that of a corporate group) can take many forms in practice, including, in particular, ventures incorporated purely as a vehicle for fraud or those involving some manner of group investment, which likely produced an unlawful collective investment scheme (CIS) that breaches, among others, the Financial Services and Markets Act 2000...
Restructuring & Insolvency
PRACTICE NOTES
Charity trustees
Section 177 of the Charities Act 2011 (CA 2011, s 177) treats ‘charity trustees’—the individuals who direct and oversee a charity’s management and administration—as the charity’s decision-makers, and this notion is deliberately adaptable in scope and application. It is designed to fit any charitable legal form and to suit every model of governance that a charity may adopt. Where the charity is a company—ie a company limited by guarantee (or, on rare occasions, by shares) with exclusively charitable purposes—the company’s directors are regarded as the ‘charity trustees’ for the purposes of charity law. However, the term points to the governing body, rather than the wider senior management team, generally speaking. In some circumstances, for example where there is a two‑tier governance arrangement, individuals performing different functions within the organisation can nevertheless fall within the category of charity trustees. This potential
Private Client
PRACTICE NOTES
Statutory framework
The Judicial Pension Scheme comprises a range of arrangements:
Judicial Pension Scheme 1981 (JPS 1981). Salaried judges appointed before 31 March 1995 typically fall within this unfunded, final salary arrangement, created under the Judicial Pensions Act 1981 (JPA 1981)
Judicial Pension Scheme 1993 (JPS 1993 or JUPRA). Salaried judges appointed between 31 March 1995 and 31 March 2015 generally participate in this unfunded, final salary arrangement, established under the Judicial Pensions and Retirement Act 1993 (JPRA 1993).
Note that:
there is a right to elect to move from JPS 1981 to JUPRA at any point up to six months after retirement. For further details, see: Eligibility, below
the Ministry of Justice (MoJ) conducted an options exercise in 2023 enabling certain members of the Judicial Pension Scheme 2015 (JPS 2015) to make a retrospective choice to be in
Pensions
PRACTICE NOTES
ARCHIVED: This archived Practice Note concerns the judicial pension scheme created by the Judicial Pensions and Retirement Act 1993 (referred to as the Judicial Pension Scheme 1993 (JPS 1993) or JUPRA). It is no longer maintained. The Practice Note also includes references to the Judicial Pension Scheme 1981 (JPS 1981).
Statutory framework
The Judicial Pension Scheme comprises several schemes:
JPS 1981. Salaried judges appointed before 31 March 1995 generally belong to this unfunded final salary scheme, which was set up under the Judicial Pensions Act 1981 (JPA 1981)
JUPRA. Salaried judges appointed between 31 March 1995 and 31 March 2015 usually belong to this unfunded final salary scheme, which was established under the Judicial Pensions and Retirement Act 1993 (JPRA 1993).
Note that:
there is a right of election to move from the JPS 1981 to JUPRA at any time up to a date six
Pensions
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