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Trustee liability and protection in pensions—checklist

Trustee liability and protection in pensions—checklist Forms of protection • Trustees can be protected from personal liability by: ◦ exoneration clauses ◦ indemnity clauses ◦ insurance ◦ statute Exoneration clauses • An exoneration clause, if effective, will mean that a trustee is exonerated (ie not personally liable) for acts or omissions which are covered by the clause. • Trustees should ensure that an exoneration clause is worded as widely as possible. • Exoneration clauses are construed strictly. • The burden of proof is on trustees to show that an act or omission is covered by the clause. • Exoneration clauses will not exonerate trustees from liability for fraud, dishonesty or deliberate breach of trust. • Exoneration clauses apply to former trustees as well as current trustees. • An exoneration clause in a scheme's trust deed and rules will not protect trustees from liability to persons who are not a party to the trust. Indemnity clauses • Indemnity clauses provide that claims for liability against trustees will be met by another...

Changing charity trustees—checklist

Changing charity trustees—checklist Appointment of new trustee What are the eligibility criteria? Charity trustees must be appointed in accordance with both the terms of the charity’s governing document and the general law. The first step is to check the terms of the charity’s governing document, which may limit the number or the age of trustees. In any event, a person under the age of 18 cannot be a trustee of an unincorporated association or a charitable trust. However, a person aged 16 or over can be a director of a company and so can be a charity trustee of a charitable company. A person is disqualified from being a charity trustee or a trustee of a charity if they: • have an unspent conviction for dishonesty or deception • are an undischarged bankrupt, or the subject of bankruptcy restrictions or an interim order, or have not yet been discharged from a composition or arrangement (this includes an individual voluntary arrangement) with their creditors • have previously been removed...

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Fraud by failure to disclose and abuse of position

Fraud by failure to disclose information while under a legal duty to do so An offence of fraud by failure to disclose is committed where a defendant:•dishonestly fails to disclose information to another person while under a legal duty to do so, and•with the intention to make a gain or cause a lossThe elements of the offence in section 3 of the Fraud Act 2006 (FrA 2006) must be read in conjunction with the offence creating provision in FrA 2006, s 1.The offence is focused on the defendant's conduct and intention and it is irrelevant whether anyone was actually deceived or if there is any actual loss or gain.There is a degree of overlap with the FrA 2006, s 2 offence (Fraud by false representation) as any incomplete disclosure of information may be a misleading representation. See further, Practice Note: Fraud by false representation.Defining what it means to cause a gain or a lossGain and loss extends only to gain and loss in money or other property, whether temporary or...

Theft

The offence of theft and mode of trialTheft is an either way offence; it can be tried in the magistrates' court or the Crown Court. However, low level shoplifting within the meaning of section 22A of the Magistrates’ Courts Act 1980 (MCA 1980) (where the value of the stolen goods does not exceed £200) is triable only summarily. Where a number of low level shoplifting offences are charged at the same time and the aggregated value of the offences exceeds £200, the offence is not deemed to be low-level within the meaning of MCA 1980, s 22A and can therefore be tried either way.In Candlish the Administrative Court held that 'low value' shop theft allegations should not be treated as summary stand-alone offences, notwithstanding their aggregate value, up to the point of plea and allocation. Citing Harvey, the Administrative Court confirmed in Candlish that the phrase, ‘charged on the same occasion,’ in MCA 1980, s 22A(4)(b), refers to the stage at which the offender first appears before the justices to...

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Policy—regulatory references

Policy—regulatory references 1 Introduction 1.1 The Financial Conduct Authority (FCA) and the Prudential Regulation authority (PRA) (together the Regulators) require firms that are authorised by the Regulators (and subject to the Senior Managers and Certification Regime (SM&CR)) to request regulatory references if they are considering:. 1.1.1 permitting or appointing someone to perform a senior management function; 1.1.2 issuing a certificate under the certification regime; and/or 1.1.3 appointing a non-executive board director. 1.2 These regulatory references are designed to assist prospective employers to assess whether an individual applying for an applicable regulated function is fit and proper to hold that role. 1.3 To enable a prospective employer to assess the fitness and propriety of a candidate for a regulated function, organisations that fall within the SM&CR must provide upon request a regulatory reference that covers the individual for the preceding six years (and, in certain circumstances, longer). It is essential that we comply with our regulatory obligations in obtaining and in responding to such requests, as the failure to...

Letter recommending insurance—demands and needs—law firms

Letter recommending insurance—demands and needs—law firms   We have reached a stage in your matter where we believe it would be in your best interests to buy [insert type of insurance]. We have suggested you buy the insurance from [state name of insurance provider to whom you have introduced the client for insurance or who has given you delegated authority to issue a policy]. This is something we have already discussed and you have agreed that we will [state what you will do to arrange the insurance, eg complete and submit a proposal form on your behalf or issue the policy under delegated authority]. You have consented to us disclosing relevant personal data and information to [state name of insurance provider] for this purpose. Fees, charges and commission Insurance premium The [insert type of insurance] insurance policy costs £[insert amount or where it is not possible to give a specific amount, the basis for the calculation of the premium]. This is called the 'insurance premium'. [Explain what you...

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Do I need approval for the owners, officers and managers of my law firm under the Money Laundering Regulations 2017?

Do I need approval for the owners, officers and managers of my law firm under the Money Laundering Regulations 2017? The requirement for approval Under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLR 2017), SI 2017/692, reg 26, as amended, all beneficial owners, officers and managers of relevant firms, including law firms, and relevant sole practitioners must be approved by their supervisory authority. The requirement applies to: • independent legal professionals • auditors, insolvency practitioners, external accountants and tax advisors • estate agents and letting agents • high value dealers • art market participants Not all law firms meet the definition of independent legal professional. For the purposes of the MLR 2017, an independent legal professional is a firm or sole practitioner who by way of business provides legal or notarial services to other persons when participating in (ie assisting in planning or execution of transactions or otherwise acts for or on behalf of a client) financial or real property...

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Home Office tables Border Security Bill amendments to expand IAA powers

The Home Office has tabled amendments to the Border Security, Asylum and Immigration Bill to enhance the Immigration Advice Authority (IAA)’s regulatory and enforcement powers. These amendments aim to improve the IAA’s ability to tackle illegal activities and address the provision of poor-quality immigration advice by regulated entities, as well as provide redress for victims. These powers will be subject to appeal at the First Tier Tribunal.

Expect complex ruling from UK justices in car dealer case

Law360, London: On 2 April 2025, The UK Supreme Court heard arguments in the joined test cases of Johnson v FirstRand Bank Ltd, Wrench v FirstRand Bank Ltd and Hopcraft v Close Brothers Ltd.