Provenance of Pension Pot Assets: Is your pension protected?

In Manolete Partners Plc v White (2023) EWHC 567 (Ch), the High Court held that a former director of an insolvent company be compelled to drawdown his benefits under an occupational pension scheme to meet an unsatisfied judgment debt.

With the principal asset of the director’s pension having been procured using company monies, the High Court was satisfied that the director’s breach of fiduciary duties justified the making of such an order. The court was further satisfied that directing payment of the pension funds to a bank account in the former director’s name would avoid any breach of section 91(2) of the Pensions Act 1995, which prohibits the court from making an order restraining a person entitled to an occupational pension (where that entitlement or right cannot be assigned) from receiving the benefit of that pension.

Background

Mr White was the controlling director and shareholder of Lloyds British Testing Limited (“LBT”) from 2002 up to the company entering administration in late 2016. LBT subsequently moved into creditors’ voluntary liquidation on 28 November 2017. During his tenure as a director of LBT, Mr White caused the company to make various payments to supplement his lavish lifestyle in breach of his director’s duties.

LBT and the liquidators asserted claims against Mr White for breach of his fiduciary duties owed to LBT, by causing LBT to make such payments in the months preceding LBT entering administration.

Manolete took an assignment of the claims against Mr White on 26 August 2020. Manolete issued an application against Mr White on 19 April 2021 and judgment was subsequently entered against Mr White in the sum of £996,014.22 (the “Judgment Debt”) for breach of fiduciary duty. Mr White failed to pay the Judgment Debt.

Manolete sought an order compelling Mr White to drawdown his occupational pension to satisfy the Judgment Debt.

Manolete’s Application

Mr White was the sole beneficiary of LBT’s occupational pension scheme and had previously drawn a 25% tax-free cash lump sum. The only asset within the pension scheme was a leasehold property purchased by LBT, which generated £60,000 of income per year.

In its application to court, Manolete argued that Mr White should not be allowed to retain the benefit of the property’s substantive capital value or income.

Mr White defended the application on the grounds that the court could not deprive him of the benefit of his occupational pension pursuant to section 91(2) of the Pensions Act 1995.

High Court Decision

Applying Blight v Brewster, the High Court compelled the judgment debtor to drawdown his pension and to delegate his pension powers pursuant to section 37 Senior Courts Act 1981. Whilst the court made clear that the order must go no further than requiring the debtor to take steps under the pension scheme rules, it was held that this could include requiring the debtor to delegate the power of election to exercise his drawdown rights.

Following Bacci v Green (2022) EWHC 486 (Ch), the High Court held that section 91(2) Pensions Act 1995 would not prevent the court from granting the relief sought providing that the drawdown funds were paid to a bank account in Mr White’s name. In doing so, Mr White was not restrained from receiving the benefit of the pension meaning there was no contravention of the section 91(2) prohibition.

The High Court also applied Brake v Guy [2022] EWHC 1746 (Ch) confirming that the nature of the Judgment Debt was irrelevant to the exercise of the court’s discretion to grant the order. The court did however place significant emphasis on the asset within the pension fund and, in particular, that it had derived entirely from funds provided by the company.

Implications

Whereas previous cases involving the drawdown of pension pots to settle unpaid judgment debts have concerned fraud and the associated debts arising out of such fraud, the decision in Manolete demonstrates a widening of the court’s discretion to compel a debtor to drawdown available pension funds where the unpaid judgment debt is a result of a director’s breach of fiduciary duties. What is also apparent from the judgment however is that each case is heavily fact dependent. Indeed, it remains to be seen how willing the court would be to compel a debtor to drawdown pension funds that had not been procured using or comprise of company funds.

Manolete is the latest judgment in a raft of cases dealing with the drawdown of pension pots in recent years. Notwithstanding such regular court appearances, the long-standing tension between public policy interests, to encourage individuals to save for retirement, and the ability to access pension funds in the administration of justice remains. So, whilst insolvency practitioners may be emboldened to pursue pension pots to satisfy unpaid judgment debts, such temptation may need to be tempered pending close consideration of pension pot assets.

Our Restructuring and Insolvency team has considerable experience in advising businesses, directors and individuals facing financial distress. Should you require any assistance, please contact any member of the Restructuring & Insolvency team. We are experts in this field and are here to help.

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