Trustee dishonesty and wrongdoing
The case involved complaints made by members and the current trustee of the pension schemes, Dalriada Trustees Limited (Dalriada), concerning the following pension schemes:
- Commando 2012 Pension Scheme
- Donington MC Pension Scheme
- Dominator 2012 Pension Scheme.
After extensive investigation, the Ombudsman has upheld these complaints against Mr Stuart Garner, as trustee of the Schemes at the time, and where applicable, LD Administration Limited (LD), as Administrator of the Schemes between 2014 and 2018.
Dalriada was also joined as a respondent to the complaints, as it was named by some applicants; the Ombudsman dismissed those complaints, but Dalriada was retained for the purpose of carrying out the Ombudsman’s directions.
The Schemes were established in 2012 and Mr Garner was appointed as sole trustee of each Scheme. Mr Garner was also the sole director of Manorcrest Limited, the Scheme’s principal employer. The Schemes were promoted to prospective members, by individuals who were subsequently jailed for fraud, as an opportunity to invest in the Norton Motorcycles business. Members were incentivised to transfer their pension funds from other pension arrangements into their respective Schemes by being offered a tax-free “commission” on completion of their transfer.
Mr Garner, as trustee of the Schemes (referred to, in that capacity, as the Trustee), invested members’ entire funds under the Schemes in preference share capital in Norton Motorcycle Holdings Limited (Holdings), of which Mr Garner was the sole director and a shareholder. The Trustee took no written advice in relation to that investment.
The basis of the complaints is that:
- the manner of investing the Schemes’ funds does not accord with the Schemes’ purpose
- the Trustee has acted under a conflict of interests
- the Trustee has breached his investment duties and has committed multiple breaches of trust
- the Trustee and LD have failed to provide an adequate administration process for any of the Schemes, bringing into question the accuracy of benefit statements and other information issued to members.
Although the Ombudsman found that the Schemes had not been, in law, initially set up for an improper purpose, he upheld the other aspects of the complaints, finding that:
- the Trustee acted dishonestly and in breach of his duty of no conflict, his duty not to profit and his duty to act with prudence
- the investments made by the Trustee in Holdings’ preference shares on behalf of each of the Schemes were made in breach of the Trustee’s statutory, investment and trust law duties
- the Trustee has breached his statutory duties to have in place adequate controls to: manage conflicts of interest; and ensure the effective administration of the Schemes
- the Trustee has breached his statutory duty to have acquired knowledge and understanding of the law relating to pensions and trusts
- there has also been maladministration by the Trustee in relation to:
- the Trustee’s failure to manage conflicts of interest in relation to the Schemes
- the Trustee’s failure to have regard to the Schemes’ respective Statements of Investment Principles
- the Trustee’s failure to ensure that the Schemes’ investments were, and remained, appropriate for the Schemes’ members.
The Ombudsman has also concluded that there has been maladministration by LD, as LD lacked the necessary knowledge or experience to administer the Schemes.
The Ombudsman has directed the Trustee to pay back to the Schemes the amount lost on investment in Holdings’ preference shares, less any amount already recovered, plus interest. The Ombudsman has also directed the Trustee and LD to make payments to the Applicants, in respect of their distress and inconvenience caused by the Trustee’s and LD’s respective maladministration.
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