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Ireland Bernard McNamara in legal fight to keep €6m pension pot

07:20  25 january  2020
07:20  25 january  2020 Source:   independent.ie

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a group of people walking in front of a building: Court case: Bernard McNamara’s pension was tied to a stake in St Stephen’s Green Shopping Centre, Dublin Court case: Bernard McNamara’s pension was tied to a stake in St Stephen’s Green Shopping Centre, Dublin

Boom-time developer Bernard McNamara is battling in the UK High Court to have a €6m-plus pension pot excluded from his bankruptcy estate.

The intricate legal matter has now been referred to the European Court of Justice.

Mr McNamara - once one of the country's most high-profile builders - owed banks more than €1bn when the property bubble burst more than a decade ago.

The loans were transferred to Nama in 2010. He and his wife Moira moved to London on a full-time basis in 2011 and in late 2012, Mr McNamara was declared bankrupt in the UK.

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He was discharged from that bankruptcy in 2014.

Mr McNamara's former company, Michael McNamara & Co, established an occupational pension scheme for the developer with Irish Life in 2002, paying a lump sum of €6.1m as a premium. That premium secured 6.1 million units in a fund called the Future Fund, whose underlying asset was the St Stephen's Green Shopping Centre in Dublin.

The investment in the Future Fund is now held in an Irish pension scheme called Simcoe Industries Retirement Plan, which is in turn held by Irish Life. Simcoe's members included Mr McNamara, his wife and their son, Ronan. That Simcoe retirement vehicle was approved by the Revenue Commissioners in 2009 as a valid retirement benefits scheme.

But the joint trustees of Mr McNamara's bankruptcy estate claim that the beneficial interest in the developer's pension policy remained with him at the time of his bankruptcy, and so therefore vested in the trustees as part of his estate.

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Mr McNamara has contended that any rights he had under the disputed pension scheme should be excluded from the bankruptcy estate.

In pursuit of his claim, he is relying on the right to freedom of movement, one of the four fundamental freedoms of the European Union, and is suggesting that as a worker in the UK, he should be entitled to all the same rights as nationals of that member state while working there and having established himself there.

He claims that if he had been a member of a UK-registered pension scheme, rather than an Irish one, then the pension scheme would have been excluded from the estate under UK law.

Therefore, under EU law, he has argued that the same treatment should be accorded to his Irish pension scheme.

In April 2012, the Simcoe vehicle was registered in the UK as an overseas company that had established a presence in Britain. Mr McNamara also established himself in the UK, moving his centre of main interest from Ireland to Britain.

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The bankruptcy estate trustees have told the UK court that a key question to consider is whether the provisions in the protection of pension rights in bankruptcy in Britain constitute a restriction on freedom of movement and the right of establishment. The trustees argued that they do not, and said that Mr McNamara cannot pick and choose the bits of the UK insolvency scheme he likes and challenge the bits he does not like.

The judge hearing the case, Justice Christopher Nugee, said that the question of whether the impact of insolvency on pension rights is within the scope of Article 49 of the Treaty on the Functioning of the European Union (TFEU) is "self-evidently a matter of EU law". He said he could not "with complete confidence" resolve the matter himself, and pointed out that the case involving Mr McNamara is not one where there is an established body of case law that is applicable.

However, he did point out that if the impact of bankruptcy on accrued pension rights is within the scope of Article 49, they "constitute discrimination in enjoyment of a social advantage, which is prohibited under Article 49 [of the TFEU] and Article 24 of the Citizens' Rights Directive".

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Bernard McNamara was one of the highest profile developers of the Celtic Tiger years, owning a string of hotels and development McNamara , from Lisdoonvarna, Co Clare, took over his father’s firm; Michael McNamara Construction, which became one of the biggest construction players in the boom

The Shanghai pension scandal was a corruption case in Shanghai, China. Ultimately, former Shanghai party chief Chen Liangyu was implicated in the scandal and removed from office. Other high-ranking officials were also implicated such as Zhu Junyi, Qin Yu, Yu Zhifei, and Chen Chaoxian.

The St Stephen's Green Shopping Centre was recently sold for €175m to a fund managed by Davy Real Estate.

The centre was previously owned by a number of investors, including Davy clients and Irish Life.

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