Thomas Robinson

Company law

Thomas has acted as sole and led counsel on company matters including petitions under s.994 of the Companies Act 2006. Thomas has also acted on cases concerning directors’ duties including proceedings under the Company Directors Disqualification Act 1986.

Notable cases:

• Garnet Commerce Ltd v VRFB Holdings Ltd [2022] EWHC 481 (Ch) – 6 day High Court trial over alleged breaches of JVA in connection with $30m fundraising for Austrian vanadium battery manufacturer.
• Treetop Investment LLC v Falmouth House Freehold Company Ltd & Ors [2017] EWHC 674 (Ch). Successful resistance of appeal raising questions of issue estoppel and abuse of process in the context of petitions brought under s.994 of the Companies Act 2006. Permission to appeal had been granted on the grounds of (i) whether Henderson v Henderson abuse of process applied to allegations of continuing breaches of duty, and (ii) whether issue estoppel applied where earlier proceedings were struck out for non-compliance with court orders, without consideration of the merits. Neither ground was upheld.
• Re Desmond & Sons Ltd [2015] Pens LR 1. Upper Tribunal (Tax and Chancery Chamber) decision concerning obligations of directors to maintain privilege on behalf of company once dissolved.
• Healthcare Management Services Ltd v Caremark Properties Ltd [2013] BCC 484. Dispute over shareholder creditors’ rights to appoint administrators over their joint venture company.
• Panayotov v Falmouth House Freehold Company Limited [2012] EWCA Civ 1174. Acted as sole counsel in successful resistance of appeal concerning proper construction of company documentation and agreements.

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Insolvency

Thomas practises a wide range of corporate and personal insolvency work. He is currently co-editing and contributing to a new edition of Kerr & Hunter on Receivers and Administrators.  In corporate insolvency he acts for officeholders, creditors and companies. He advises on issues from the interpretation of CVAs to administration expenses to office-holder remuneration.

Notable cases include:

• Counsel General for Wales & Ors v Gareth Allen (as Official Receiver) & Ors [2022] EWHC 647 (Ch). Successful challenge to decision of Official Receiver to terminate electricity supply to flood defences in Wales. Considers the “perversity” test in s.168(5) IA86 and the role of environmental factors in a liquidator’s decision-making over whether to continue trading a business. Discusses whether OR is a public authority under the HRA for these purposes. Now on appeal to Court of Appeal.
• Elser v Sands & Others [2022] EWHC 32 (Ch) – successful challenge to a £13m IVA under s.262 IA 1986, challenging admission of three creditor claims. Considers, among other issues, where the burden of proof lies on a creditor’s application.
• Claims Direct plc v Hinton [2021] EWHC 1613. Successful appeal from rejection of proof of debt based on £9.75m deceit claim.
• Nimat Halal Food Ltd v Patel [2020] EWHC 734 (Ch). Considering the test for personal costs orders against administrators in relation to adjudications on proofs of debt.
• Re Carlauren Group Limited [2019 – ongoing]. Acting for the administrators of a luxury care home group, amid allegations of Ponzi schemes and misappropriation of £40 million of assets. Dealt with contested administration applications and obtaining freezing and proprietary injunction against former director.
• Courtwood Holdings SA v Woodley Properties Ltd & Ors [2018] EWHC 2163 (Ch): Three week multi-million pound knowing receipt trial in context of fixed charge receivership of property assets.
• Fieldfisher LLP v Pennyfeathers Limited [2016] EWHC 566 (Ch). Successful resistance of administration application on basis that the alleged debt was subject to an arbitration clause, and thus Salford Estates (No.2) Ltd v Altomart Ltd [2014] EWCA Civ 1575 applied by analogy.
• Hamilton-Smith v CMS Cameron McKenna LLP [2016] EWHC 1115 (Ch). Anti-suit injunction relating to claims arising from the liquidation of Stanford International Bank in Antigua. Instructed by the former office-holders.
• Re Storm Funding (in administration) [2014] Bus L R 454. Considered issues including the Parliamentary intention of the FSD regime and the insolvency rule against “double dipping”. Acted for the Pensions Regulator with Raquel Agnello KC and Jonathan Hilliard KC.
• Re Nortel GmbH and Others [2014] AC 209, [2013] UKSC 52, [2011] EWCA Civ 1124 & [2010] EWHC 3010. Successful resistance of application by administrators of Nortel and Lehman Brothers in the High Court for declaration that an FSD and CN issued under Pensions Act 2004 to insolvent companies did not give rise to any right to Briggs J. held they gave rise to administration expenses which was upheld by Court of Appeal in October 2011. In July 2013 the Supreme Court decided that FSDs give rise to provable debts. Listed by the Lawyer in their ‘Top 20 cases of 2012’.
• Caldero Trading v Beppler & Jacobson Ltd [2012] EWHC 4031 (Ch). Concerned extent of provisional liquidators’ powers to obtain documents under various court orders. Acted for provisional liquidators from BDO appointed over a UK company owning major Montenegro hotels.

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International arbitration

Tom’s international arbitration practice includes disputes under the LCIA and ICC Rules, and applications to challenge arbitration awards under the Arbitration Act 1996.

Recent experience:

• WSB v FOL [2022] EWHC 586 (Comm) – challenges to a JAMS arbitration award under ss. 67, 68 and 69 AA 1996, including how such challenges interact with the new Commercial Court Guide and Civil Procedure Rules.
• Quaestus Capital Pte Ltd v Union Pacific Capital Ltd [2021] 11 WLUK 449. Successful resistance of Claimant’s application to vary an order obtained under s.44 of the Arbitration Act 1996 in support of a $13m loan dispute. Issues included relationship between parallel proceedings in England, Hong Kong and Bahamas, and role of non-party custodians.
• Acting on challenges under s.67, s.68 and s.69 of the Arbitration Act 1996 to a JAMS Arbitration Award concerning rights to collateral under $45m loan agreement.
• Acting for Middle Eastern state gas company as part of a three counsel team in an ICC Arbitration in Geneva arising out of long term gas supply contracts. Claims circa $5bn.
• Advising on ICC Arbitration arising out of Joint Operating Agreement for exploration and development of petroleum operations in the Middle East.
• Acting for the Claimant in a $20m ICC arbitration arising out of the Madoff fraud (led by Alan Gourgey KC)
• Fieldfisher LLP v Pennyfeathers Limited [2016] EWHC 566 (Ch). Successful resistance of administration application on basis that the alleged debt was subject to an arbitration agreement. Issues included the effect of a prior arbitration and of the arbitration agreement.
• Advising on an application to set aside an arbitration award of the London Beth Din
• An arbitration of a dispute arising out of property surveying in the UK, under LCIA Rules

Tom has also written and spoken on the interrelationship of arbitration and insolvency.

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Domestic arbitration

Tom has represented clients at mediations and forms of ADR both as sole counsel and as part of a wider team. These include mediations offshore, as well as in the UK. Recent successful mediations have included banking disputes, proceedings seeking financial support for a pension scheme, and actions for breach of directors’ duties.

Tom has also acted in domestic arbitrations, and has been instructed in applications to challenge arbitration awards under the Arbitration Act 1996.

Recent relevant experience includes:

• Acting on challenges under s.67, s.68 and s.69 of the Arbitration Act 1996 to a JAMS Arbitration Award concerning rights to collateral under $45m loan agreement.
• Acting for the Claimant in a $20m ICC arbitration arising out of the Madoff fraud (led by Alan Gourgey KC).
• Fieldfisher LLP v Pennyfeathers Limited [2016] EWHC 566 (Ch). Successful resistance of administration application on basis that the alleged debt was subject to an arbitration agreement. Issues included the effect of a prior arbitration and of the arbitration agreement.
• Advising on an application to set aside an arbitration award of the London Beth Din.
• An arbitration of a dispute arising out of property surveying in the UK, under LCIA Rules.

Tom has also written and spoken on the interrelationship between arbitration and insolvency.

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Pensions

Thomas acts across a wide range of pensions matters, on behalf of scheme trustees, scheme members, employers and bodies such as the PPF and Pensions Regulator. He has advised on matters from the operation of section 67 of the Pensions Act 1995 and section 37 of the Pension Schemes Act 1993 to trustees’ duties and the PPF Levy.

He has a particular interest in the interplay between pensions and insolvency law, and has written on this topic for pensions and insolvency publications. He frequently advises insolvency practitioners in relation to pensions issues. He is also instructed on rectification matters, both as sole counsel and as part of a team (for example acting in 2018 for the representative beneficiary in an a claim by Honda Motor Europe Ltd to rectify scheme documentation from 1986).

Described by The Legal 500 as “one of the best pensions regulatory lawyers in the field“, he has been instructed by the Pensions Regulator in complex multi-jurisdictional commercial cases seeking Financial Support Directions (FSD) and Contribution Notices (CN) under the Pensions Act 2004, raising issues of commercial and insolvency law. These include Silentnight, MG Rover, Nortel Networks, Lehman Brothers, Michel van de Wiele NV (“Bonas”), Carrington Wire and Desmond & Sons Limited. Tom has appeared before the Regulator’s Determinations Panel, the Upper Tribunal, the Court of Appeal and the Supreme Court as a result of these instructions. He has also been instructed as counsel to the Determinations Panel of the Pensions Regulator, including in cases concerning skilled persons reports under s.71 of the Pensions Act 2004, the removal of scheme trustees, and in the ‘Box Clever’ case.

Separately, Tom has advised other parties to “moral hazard” investigations, and acted for trustees and companies more generally in relation to pension scheme matters.

Notable cases:

• Silentnight Group DB pension scheme [2021]. Acting for TPR in this long-running investigation into the pre-pack sale of the business and assets of Silentnight in 2011 and its impact on the pension scheme. Case sought contribution notices against members and executives of US private equity house. Settled for £25m in March 2021.
• Axminster Carpets [2021]. Acting (with Henry Legge KC) for trustee in Part 8 proceedings concerning s.37 Pension Schemes Act 1993, limitation periods applicable to member claims for arrears, and validity and scope of forfeiture powers. Judgment at Punter Southall Governance Services v Hazlett [2021] EWHC 1652 (Ch).
• Re Merchant Navy Ratings Pension Fund [2020]. Acting for directors of a corporate trustee in opposition to an application by the Pensions Regulator to appoint an independent trustee to the Fund.
• Re Chas A. Blatchford & Sons Pension Scheme [2019] EWHC 2743 (Ch). First pensions rectification case to consider the Court of Appeal’s guidance in FSHC on rectification for common mistake.
• ARG Realisations 2016 Ltd v Stuart [2019] EWHC 1265 (Ch): Part 8 Rectification claim, with consideration of use of confidential opinions by the court.
• R (on the application of Grace Bay II Holdings SARL and others) v The Pensions Regulator [2017] EWHC 7 (Admin), [2017] All ER (D) 29 (Jan). Application for Judicial Review of decision by the Pensions Regulator to issue a second Warning Notice in the Silentnight case. Application successfully resisted on grounds of alternative remedy.
• Ongoing instructions in regulatory investigations that remain confidential at present.
• Re Carrington Wire DB Pension Scheme. Successful pursuit of Contribution Notice against individual under “material detriment test” of s.38A PA 04, and settlement of £8.5m with Russian owners of UK wire company. March 2015. Acted for Pensions Regulator.
• Re MG Rover Group Limited. Regulatory proceedings seeking FSD. Case settled in 2014.
• Re Desmond & Sons Limited [2010-2015]. First issue of CN to individuals, in sum of £1m, from use of MVL to trigger employer debt to pension scheme. Acted for Pensions Regulator at hearing before Determinations Panel, Upper Tribunal (2010 and 2014) and in the Court of Appeal (Northern Ireland, 2012). Listed for 3 week hearing in May 2015. Settled during week one.
• Re Storm Funding (in administration) [2014] Bus L R 454; [2014] Pens LR 73, [2013] EWHC 4019 (Ch). Considered issues including the Parliamentary intention of the FSD regime and the insolvency rule against “double dipping”. Acted for the Pensions Regulator with Raquel Agnello KC and Jonathan Hilliard KC.
• Re Nortel GmbH and Others [2014] AC 209, [2013] UKSC 52 & [2011] EWCA Civ 1124 & [2010] EWHC 3010. Successful resistance of application by administrators of Nortel and Lehman Brothers in the High Court for declaration that an FSD and CN issued under Pensions Act 2004 to insolvent companies did not give rise to any right to recovery. Briggs J. held they gave rise to administration expenses which was upheld by Court of Appeal in October 2011. In July 2013 the Supreme Court decided that FSDs give rise to provable debts. Listed by the Lawyer in their ‘Top 20 cases of 2012’.
• Trustees of Lehman Brothers Pension Scheme v Pensions Regulator [2013] 4 All ER 744; [2012] 085 PBLR (040). Court of Appeal and Upper Tribunal considered for the first time the scope of the Regulator’s power to issue FSD. Led by Raquel Agnello KC.
• Box Clever. Decision of the Determinations Panel to issue FSD to members of ITV Group, see 26.1.12. Acted for Determinations Panel of the Pensions Regulator (2012).
• Michel van de Wiele (“Bonas”). First decision of the Upper Tribunal concerning the exercise of the Pensions Regulator’s moral hazard powers. Acted for the Regulator on the target’s unsuccessful application to strike out the Regulator’s case (2011).

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Professional liability

Tom is instructed on professional liability claims including against insolvency practitioners, solicitors and trustees of pension schemes, as well as other professionals engaged in his practice areas of pensions, insolvency and commercial litigation.

He was recently instructed on a claim against pension scheme trustees and their advisers in relation to the treatment of a debt under section 75 of the Pensions Act 1995.

He was led by Lexa Hilliard KC and Elspeth Talbot-Rice KC in the case of Stanford Bank v Nigel Hamilton Smith, Peter Wastel & Anr, acting on behalf of the former joint liquidators of Stanford Bank, Antigua, in connection with a negligence claim that has been issued against them in Antigua by the Bank, acting by the current joint liquidators. The matter included an anti-suit injunction hearing in London ([2016] EWHC 1115 (Ch)) and hearings in Antigua.

He has acted for and against administrators facing claims of misfeasance, including for decisions to trade during administration.

He has also acted in relation to claims against pension scheme trustees for breach of duty, including claims seeking their removal under the Pensions Act 1995 and claims under s.16 of the Pensions Act 2004 alleging misuse and misapplication of scheme assets.

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