Year of Call: 1984

Profile

James is a specialist pensions lawyer; he also has a strong Chancery practice with a particular emphasis on trusts.  In addition, James has considerable experience in arbitration, having recently appeared in one of the largest commercial arbitrations to arise out of the government-sponsored pensions mis-selling review.

General Chancery

James has a strong general Chancery practice involving both advice and litigation, with a particular emphasis on trusts.  (James appeared in Nestle v National Westminster Bank, the leading case on the duties of trustees in relation to investments; for James’s recent article on trustee investment in Trusts & Trustees click here).

Recent Chancery advisory and litigation work has included—

• Advising on a claim against the solicitor-trustees of a will trust made by a residuary beneficiary charity alleging that trust assets had not been properly accounted for.

• Advising a bank and insolvency practitioner as to the enforceability of debentures.

• Advising on the exercise of a power of resettlement by the trustees of a Cayman Islands trust.

• Acting in a claim by a property company to recover substantial unpaid loans.

• Acting on a ‘Beddoes application’ by trustees of a will trust for directions whether to sue former trustees and professional advisers in relation to the sale of trust assets.

• Acting in a claim by a charity against a former charity trustee.

• Acting for a liquidator in a preference claim against former directors of an insolvent company.

• Acting in a claim by former employees, and other creditors, against charity trustees.

• Acting for an East African government in a claim for a ‘finder’s fee’ arising out of its acquisition of new High Commission premises in London.

• Acting in a partnership dispute involving a solicitors’ partnership about the liability for partnerships debts and the ownership of pension and life assurance policies.

• Acting in a minority shareholder dispute arising from the collapse of an equity derivatives business, involving allegations of breaches of the Financial Services and Markets Act 2000 and breaches of director’s duties.

• Acting in a derivative action alleging breaches of director’s duties arising out of the purchase of a development property.

• Acting for the Solicitors Regulatory Authority on an application for freezing orders and Bankers Book Evidence Act orders arising out of the SRA’s intervention in a solicitor’s practice.

Pensions

Much of James’ work involves occupational pension schemes.  James has practised in this area for over 20 years (he appear in the seminal pensions case of Mettoy Pension Trustees v Evans, which, amongst other things, was the first case to apply ‘the rule in Hastings Bass’ in the pensions context).   

Pensions – litigation

James has considerable experience in pensions litigation.  James has appeared in a number of important pension cases in the past 20 years, such as Mettoy Pension Trustees v Evans, Coloroll Pension Trustees v Russell in the ECJ, Edge v The Pensions Ombudsman in the High Court and Court of Appeal, Barclays Bank v Holmes, as well as a host of other reported cases (to view a list of reported cases click here).  James also wrote the Pensions Title in Atkin’s Court Forms, which is a leading guide to pensions litigation. 

Recently, James’ pension litigation work has included—

• Acting in a professional negligence claim by trustees and employers against former advisers arising out of an ineffective Barber-equalisation exercise.

• Acting on an application by HMRC and the FSA to wind-up the administrator of a substantial SIPP provider in a case concerning serious investor-protection issues.

• Acting in a dispute as to the correct level of benefits to be provided under a scheme.

• Acting in a professional negligence claim by trustees and employers against a firm of actuaries; the case concerned the correct commutation factors to be applied.

• Acting in a dispute between a vendor and purchaser under a sale and purchase agreement as to who should be liable for Beckmann pension liabilities on a TUPE transfer.

• Acting in an oral hearing before the Pensions Ombudsman in a claim involving allegations of fraudulent breach of trust.

• Acting in a major commercial arbitration between two Canadian insurance companies arising out of the government-sponsored pensions mis-selling review.

Pensions – advisory

A substantial part of James’ pension work is advisory.  James’ recent pensions advisory work has included—

• Advising as to the effectiveness of a Barber (sex-discrimination) equalisation exercise (James represented the trustees in the important case of Coloroll in the European Court of Justice).

• Advising as to the recoverability of a s75 debt (debt on the employer) on a corporate restructuring (for James’ recent articles on the proposed Occupational Pension Schemes (Employer Debt and Miscellaneous Amendment) Regulations 2010 in the Solicitors Journal click here and Pensions Management click here).

• Advising as to the effect of the Occupational Pension Schemes (Investment) Regulations 2005 on a proposed structure for derivative investments by pension scheme trustees.

• Advising on a ‘coverage dispute’ between pension scheme trustees and trustee liability insurers.

• Advising on a proposal to break the ‘final salary link’ on the termination of future pension accrual.

• Advising on the steps to be taken to achieve Pension Protection Fund entry.

• Advising a pension-risk insurer on the bulk buy-out of pension scheme liabilities.

• Advising on the nature and extent of Beckmann pension liabilities on a TUPE transfer.

• Advising on the pension consequences of a wrongful dismissal claim.

• Advising on the pension aspects on the merger of two charities.

• Advising on a dispute as to a scheme’s benefits; the case raised issues of rectification and estoppel.

• Advising on pension issues arising out of an employer’s participation in the Local Government Pension Scheme.

• Advising on pension issues arising out of the Proceeds of Crime Act.

• Advising on employer covenant issues following the reorganisation of a statutory body.

• Advising HMRC as to the deductibility of VAT by the independent trustee of an insolvent pension scheme.

• Advising on an application to the Pensions Regulator for clearance in the context of the sale of a substantial private company.

• Advising on a claim for age discrimination in the pensions context.

• Advising on the potential liability of directors for wrongful trading under s214 Insolvency Act 1986 in a case where the employer’s pension scheme was in deficit.

Other information

James received a ‘Special Mention’ in the Bar Pro Bono Awards 2008, for his voluntary work representing individuals in social security and war pension cases before the First-tier Tribunal and Upper Tribunal (formerly the Social Security Tribunal, the Pensions Appeal Tribunal and the Social Security Commissioners).

Publications
Pensions Title of Atkins Court Forms, Contributor

Memberships
Association of Pension Lawyers (member of the APL's Legislative and Parliamentary Sub-Committee), Chancery Bar Association, Combar, Association of Contentious Trust and Probate Specialists, Society of Trust and Estate Practitioners, Professional Negligence Bar Association

Qualifications
BA (Oxon)

Chambers UK
"One of the most experienced all-round pension lawyers out there." Both clients and junior lawyers say he is highly accessible, and praise him for his pragmatic and thorough approach. Clifford has a "highly analytical mind which always seems to get the right answer." (2010) Acknowledged as a "fantastically pleasant lawyer who is user-friendly and sensible." He possesses "great efficiency" and has an "excellent understanding of current pensions issues." Commentators note that his "true in-depth experience of the pension industry, coupled with his strong chancery commercial skills, results in him being of real value to clients." (2009) "Thorough, clear and easy to get on with." Firmly established as a "class act", he continues to impress peers, and solicitors acclaim him as "super-sharp, pragmatic and commercial." (2008)

UK Legal 500
"Pragmatic, fast, thorough" and has "clearly always read the papers." "Impeccable. Response times are very good and strength in depth is very impressive." (2009) "Exprienced", "sound" and "responsive". "Always well-briefed." (2008) "Highly recommended for his experience and measured approach." He "continues to provide top quality advice." (2007)

Legal Experts 2008
Pensions