The Pensions (Northern Ireland) Order 1995

Independent trustees

Circumstances in which following provisions apply

22.—(1) This Article applies in relation to a trust scheme—

(a) if a person (referred to in this Article and Articles 23 to 26 as “the practitioner”) begins to act as an insolvency practitioner in relation to a company which, or an individual who, is the employer in relation to the scheme, or

(b) if the official receiver becomes—

(i) the liquidator or provisional liquidator of a company which is the employer in relation to the scheme, or

(ii) the receiver and the manager, or the trustee, of the estate of a bankrupt who is the employer in relation to the scheme.

(2) Where this Article applies in relation to a scheme, it ceases to do so—

(a) if some person other than the employer mentioned in paragraph (1) becomes the employer, or

(b) if at any time neither the practitioner nor the official receiver is acting in relation to the employer;

but this paragraph does not affect the application of this Article in relation to the scheme on any subsequent occasion when the conditions specified in paragraph (1)(a) or (b) are satisfied in relation to it.

(3) In this Article and Articles 23 to 26—

“acting as an insolvency practitioner” and “official receiver” shall be construed in accordance with Articles 3 and 2 of the Insolvency (Northern Ireland) Order 1989, “bankrupt” has the meaning given by Article 9 of the Insolvency (Northern Ireland) Order 1989(1),

“company” means a company within the meaning given by Article 3 of the Companies (Northern Ireland) Order 1986(2) or a company which may be wound up under Part VI of the Insolvency (Northern Ireland) Order 1989 (unregistered companies).

Requirement for independent trustee

23.—(1) While Article 22 applies in relation to a scheme, the practitioner or official receiver must—

(a) satisfy himself that at all times at least one of the trustees of the scheme is an independent person, and

(b) if at any time he is not so satisfied, appoint under this sub-paragraph, or secure the appointment of, an independent person as a trustee of the scheme.

(2) The duty under paragraph (1)(b) must be performed as soon as reasonably practicable and, if a period is prescribed for the purposes of that paragraph, within that period.

(3) For the purposes of paragraph (1) a person is independent only if—

(a) he has no interest in the assets of the employer or of the scheme, otherwise than as trustee of the scheme,

(b) he is neither connected with, nor an associate of—

(i) the employer,

(ii) any person for the time being acting as an insolvency practitioner in relation to the employer, or

(iii) the official receiver, acting in any of the capacities mentioned in Article 22(1)(b) in relation to the employer, and

(c) he satisfies any prescribed requirements;

and any reference in this Part to an independent trustee shall be construed accordingly.

(4) Where, apart from this paragraph, the duties imposed by paragraph (1) in relation to a scheme would fall to be discharged at the same time by two or more persons acting in different capacities, those duties shall be discharged—

(a) if the employer is a company, by the person or persons acting as the company’s liquidator, provisional liquidator or administrator, or

(b) if the employer is an individual, by the person or persons acting as his trustee in bankruptcy.

(5) References in this Article to an individual include, except where the context otherwise requires, references to a partnership.

Members' powers to apply to High Court to enforce duty

24.  If—

(a) Article 22 applies in relation to a trust scheme, but

(b) the practitioner or official receiver neglects or refuses to discharge any duty imposed on him by Article 23(1) in relation to the scheme,

any member of the scheme may apply to the High Court for an order requiring him to discharge his duties under Article 23(1).

Appointment and powers of independent trustees: further provisions

25.—(1) If, immediately before the appointment of an independent trustee under Article 23(1)(b), there is no trustee of the scheme other than the employer, the employer shall cease to be a trustee upon the appointment of the independent trustee.

(2) While Article 22 applies in relation to a scheme—

(a) any power vested in the trustees of the scheme and exercisable at their discretion may be exercised only by the independent trustee, and

(b) any power—

(i) which the scheme confers on the employer (otherwise than as trustee of the scheme), and

(ii) which is exercisable by him at his discretion but only as trustee of the power,

may be exercised only by the independent trustee,

but if, in either case, there is more than one independent trustee, the power may also by exercised with the consent of at least half of those trustees by any person who could exercise it apart from this paragraph.

(3) While Article 22 applies in relation to a scheme, no independent trustee of the scheme may be removed from being a trustee by virtue only of any provision of the scheme.

(4) If a trustee appointed under Article 23(1)(b) ceases to be an independent person, then—

(a) he must immediately give written notice of that fact to the practitioner or official receiver by whom the duties under that provision fall to be discharged, and

(b) subject to paragraph (5), he shall cease to be a trustee of the scheme.

(5) If, in a case where paragraph (4) applies, there is no other trustee of the scheme than the former independent trustee, he shall not cease by virtue of that paragraph to be a trustee until such time as another trustee is appointed.

(6) A trustee appointed under Article 23(1)(b) is entitled to be paid out of the scheme’s resources his reasonable fees for acting in that capacity and any expenses reasonably incurred by him in doing so, and to be so paid in priority to all other claims falling to be met out of the scheme’s resources.

Insolvency practitioner or official receiver to give information to trustees

26.—(1) Not withstanding anything in Article 133 of the Insolvency (Northern Ireland) Order 1989(3) (court orders for inspection, etc.), while Article 22 applies in relation to a scheme, the practitioner or official receiver must provide the trustees of the scheme, as soon as practicable after the receipt of a request, with any information which the trustees may reasonably require for the purposes of the scheme.

(2) Any expenses incurred by the practitioner or official receiver in complying with a request under paragraph (1) are recoverable by him as part of the expenses incurred by him in discharge of his duties.

(3) The practitioner or official receiver is not required under paragraph (1) to take any action which involves expenses that cannot be so recovered, unless the trustees of the scheme undertake to meet them.

(1)

1989 NI 19.

(2)

1986 NI 6.

(3)

1989 NI 19.