Delegating some or all of the work of pension fund trustees, eg the making of investment management decisions, to a third party.

This Practice Note looks at the nature of fiduciary management services for occupational pension schemes, including (among other things) the different types and who provides them, the rationale for and potential challenges of using them, considerations for pension scheme trustees when appointing a fiduciary manager, and how fiduciary management works in practice. For further information on the requirements imposed by the Competition and Markets Authority (CMA) and the Department for Work and Pensions (DWP) on trustees of occupational pension schemes relating to the appointment of investment consultants and fiduciary managers, see Practice Note: Appointing investment consultants and fiduciary managers—the pensions requirements. What is fiduciary management? Fiduciary management in its earliest form originated in the Netherlands in the 1990s, with the first UK mandate implemented in the early 2000s. In the UK, fiduciary management services are prominently used by defined benefit (DB) schemes, although there is some limited use by defined contribution (DC) schemes. Traditionally, advice provided to trustees on investment strategy and the investment of assets to implement

A promoter has a fiduciary relation with the company he promotes from the time he first promotes until he ceases to promote.

A fiduciary relationship arises where one person undertakes to act for, or on behalf of, another in circumstances that give rise to trust and confidence, and a duty of loyalty. It typically requires the fiduciary to prioritise the beneficiary’s interests over their own, avoid conflicts of interest, not profit from their position without informed consent, and act in good faith.In practice, fiduciary relationships commonly include trustee–beneficiary, director–company, solicitor–client and agent–principal. Courts in England and Wales, Scotland, Northern Ireland and Ireland have developed the concept mainly through case law rather than exhaustive statutory definition, and may recognise fiduciary duties in other relationships depending on the facts.Key legal consequences include strict duties of loyalty, duties to account for unauthorised profits, and remedies such as constructive trusts, equitable compensation or account of profits. Breach of fiduciary duty frequently arises in company law, trusts, partnerships, financial services, and professional negligence claims.Usage and core principles are broadly consistent across the UK and Ireland, though terminology (for example, “equitable” versus “fiduciary” obligations) and doctrinal framing may vary slightly between common law and mixed systems, particularly in Scots law.

Commercial analysis: The core issue in the appeal was whether a fiduciary duty existed between two friends who had worked together on various ventures and then established companies to continue their business activities. The claimant/respondent (C) succeeded in his initial claim that the defendant/appellant (D), who held the shares in the companies, owed a fiduciary duty in respect of half of these shares and C thereby had a remedy. A number of issues were raised in the case, but the significance is that it analyses the nature of fiduciary duties, commenting at several points that there is no generally accepted definition of a fiduciary (para [36]) and that ‘fiduciary relationships will not be too readily imported into purely commercial relationships’ (para [38]). However, the case demonstrates that outside the settled categories, fiduciary duties may be held to arise if the particular facts warrant it, even in a business relationship. Written by Lynne Counsell, barrister at Addington Chambers and Clerksroom.

Private Client analysis: This is a landmark decision of the Supreme Court on the liability of trustees and other fiduciaries to account for unauthorised profits. The issue concerns the role of causation and whether a counterfactual should be applied. Written by David Halpern KC, King’s counsel, 4 New Square.

Fieri facias (often abbreviated to fi fa) is a writ of execution directing a court enforcement officer to seize and sell a judgment debtor’s goods to satisfy a money judgment, including interest and recoverable enforcement costs. In practical terms, it authorises the taking control of a debtor’s personal property and its sale at auction, with proceeds applied towards the judgment debt.In England and Wales, the historic writ of fieri facias in the High Court has been replaced in terminology and procedure by the writ of control under the Tribunals, Courts and Enforcement Act 2007 and associated rules, though “fi fa” is still encountered in older case law and enforcement commentary.In Northern Ireland and Ireland, fieri facias (or fieri facias de bonis et catallis) remains a recognised form of writ or order for execution against goods in civil judgment enforcement, governed by court rules and case law rather than a single statutory definition.Scots law does not use fieri facias; equivalent functions are performed by diligence against moveable property (notably attachment and exceptional attachment) under distinct Scottish enforcement procedures.

Tax analysis: In Waterside Escapes Ltd  v HMRC, the First-tier Tribunal (FTT) (Tax Chamber) held that the 15% rate of stamp duty land tax (SDLT) applied to the acquisition of a property by a company but that the amount of chargeable consideration for the acquisition was reduced as the partnership provisions contained in paragraph 18 of Schedule 15 to the Finance Act 2003 (FA 2003) applied. Relief from the 15% rate was not available to the company as it was intended that a non-qualifying individual would be permitted to occupy the dwelling. This case looks at the meaning of occupation for the purposes of relief from the 15% rate of SDLT, the calculation of the sum of the lower proportions under FA 2003, Sch 15 Pt 3, para 18 and in particular the meaning of ‘connected’ for those purposes.

Arbitration analysis: On 3 January 2023, the United States Court of Appeals for the Fifth Circuit ruled in the Matter of Amberson that a party did not forfeit its right to challenge the scope of arbitration by waiting until after the arbitration to pursue such relief, and the reviewing court may consider the full record, including the arbitrator’s factual findings, when determining arbitrability. Written by David Earnest and Julian Cokic, Diamond McCarthy LLP.

The Serious Fraud Office (SFO) has secured an additional 13-month prison sentence against Dr Gerald Martin Smith for obstructing the confiscation of his assets. Smith, already imprisoned for coronavirus (COVID-19) loan fraud, attempted to prevent the seizure of a Bloomsbury flat by transferring ownership to a British Virgin Islands company he covertly controlled. Smith further impeded the property's sale by changing locks and arranging tenants. The SFO also uncovered Smith's breach of a spending limitation order, as he received funds from his brother and subsequently spent over £53,000 on luxury dining and holidays. This case underscores the SFO's commitment to pursuing hidden assets and enforcing court orders against convicted fraudsters.

The Lord Speaker’s committee on the size of the House has published its fifth report, on 17 July 2023, looking at the lessons learned over the last six years. The report has made five key conclusions, including that there has been an excessive number of appointments undermining the ‘two-out, one in’ process proposed by the committee, and that the Labour party is seriously under-represented in the House, increasing the risk of ‘leap-frogging’. The committee has also recommended the introduction of a fairer and more sustainable appointments system, the reassertion of the House of Lords Appointments Commission as the primary appointer of crossbench peers and the abolition of the hereditary peer by-elections.

The Pensions Regulator (TPR), in partnership with the Fraud Compensation Fund (FCF), the Pensions Ombudsman (TPO) and Dalriada Trustees Ltd (Dalriada) has announced the payment of £81.5m in compensation to 58 occupational pension schemes defrauded by scammers, benefiting 2,016 victims, with further payments expected later in 2025-26 for other historic scam victims. This action follows the 2020 High Court ruling in Board of the Pension Protection Fund v Dalriada Trustees [2020] EWHC 2960 (Ch) that clarified the circumstances in which the FCF can pay compensation to pension schemes involved in pension scam activity. Among those compensated are victims of the Friendly Pensions Ltd fraud, prosecuted by TPR, which led to the conviction of Susan Dalton and Alan Barratt in 2022 who were involved in a £13.7m fraud. Dalriada, an independent trustee appointed by TPR, has also facilitated the recovery and redistribution of pension benefits, including £1.5m in death benefits. Other independent trustees appointed by TPR to pension schemes involved with suspected scam activity are similarly working as part of the joint-agency initiative to recover funds through the FCF.