All too frequently errors are made in trust documentation or the administration of pension schemes. As a Trustee there are four steps you must take straight away when you become aware of an error.
- Contact your solicitor – It is important to consider early on whether steps need to be taken to protect your position. The error may be the fault of a professional. There are various rules which govern making claims against professionals, including the time available to do so. Failure to bring a claim within the time available will mean that the pension scheme will not be able to pursue those at fault.
- Check insurance policies and consider funding options – If there is no insurance policy in place that provides cover for legal costs and expenses then discuss with your solicitor other funding options such as After the Event Insurance.
- Gather and preserve evidence – Disclosable documents may be gathered from the Employer, Scheme Actuary, Administrators, Trustees and Members. It may be necessary to consider whether a Court Order requiring a third party to disclose documents is needed.
- Maintain Litigation Privilege – Litigation Privilege keeps documents that have been produced where litigation is either in progress or there is a reasonable prospect that it will happen from being disclosed to your opponent. There is a requirement however that litigation is the dominant purpose for which the document was created. In order to claim privilege the document must be confidential. Avoid therefore wide internal circulation of documents regarding the claim and make sure they do not enter the public domain. Take care also of creating documents that if not covered by privilege will be disclosable to your opponent. For example Board Minutes discussing action to be taken following legal advice that do not contain the details of the advice given would not be protected.
Above all, the most important step is to take legal advice.
This blog post was written by Thea Maertens. For further information, please contact:
Thea Maertens, associate, Commercial Dispute Resolution
T: 0121 202 1455