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Pension fund assets safe from creditors

  • Ireland
  • General

01-04-2013

The Commercial Court sets the rules

On 2 October, 2012 the Commercial Division of the High Court delivered a judgment which provides some welcome clarity on the extent to which pension fund assets may be attached by creditors. This topic has been extensively debated in the pensions and banking industries since a High Court decision in 2010 saw Brendan Murtagh lose his approved retirement fund to judgment creditors.

The judgment was made on foot of an application by Eversheds on behalf of two individual clients (the ‘Applicants’) who were judgment debtors of a bank. The Applicants were members of small, self-dministered trust-based occupational pension schemes. They had yet to retire and no benefits had been paid out of their respective schemes.

The traditional view within the pensions industry had been that pension fund assets in a pre-retirement scenario are generally ring-fenced from attachment by creditors. However, in March 2012, the creditor bank made a successful ex parte application appointing a receiver by way of equitable execution over the Applicants’ pension funds. The Applicants sought to discharge the Order appointing the receiver.

Mr Justice McGovern held that pension fund assets are not amenable to attachment via the appointment of a receiver by way of equitable execution. His reasoning was based principally on the following conclusions:

  1. Under the terms of the pension deeds neither of the Applicants had legal or beneficial ownership of the assets within the pension funds pending retirement.
  2. Under terms of the scheme rules, the Applicants’ right to receive a pension on retirement was subject to the agreement of the pension fund trustees. 
  3. The pension funds were established under irrevocable trusts for the sole purpose of providing retirement benefits.
  4. The pension funds were established in accordance with the relevant requirements of the Taxes
    Consolidation Act, 1997 and had been approved by the Revenue Commissioners as being established under irrevocable trusts.
  5. The terms of the pension deeds expressly prohibited the assignment of benefits from the pension funds themselves.

This decision represents a significant legal precedent. It confirms that assets within occupational pension schemes in a pre-retirement scenario are not capable of attachment by creditors. It identifies clear boundaries on the extent to which lenders may pursue a borrower’s pension fund assets in a default situation.

This decision is a welcome development for a pensions industry which is facing significant challenges on a number of fronts. The features of these schemes, on which Mr Justice McGovern based his reasoning, are common to many Revenue approved occupational pension schemes in Ireland. As such, in the  absence of legislation change the judgment is likely to draw a line under attempts by creditors seeking to pursue borrowers’ pension fund assets pre-retirement in loan default situations.

For lenders, it also provides certainty surrounding what assets may not be in play when it comes to enforcing judgments against defaulting borrowers; something which had been uncertain when it came to pension fund assets before Mr Justice McGovern’s decision.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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