The Regulator has issued a contribution notice (CN) against Michel Van de Wiele NV (VdW), which had referred to the Upper Tribunal the decision of the Regulator’s Determinations Panel to impose a CN of £5.089m in relation to Bonas (a subsidiary of VdW and the scheme’s principal employer). The Regulator had been seeking to increase the CN to £20m but the parties have now agreed to settle for the much smaller sum of £60,000.
It is likely that the settlement was assisted by the comments of the Tribunal in its decision on preliminary matters (see Pensions Update, January 2011) to the effect that it would not be reasonable for the amount specified in a CN to be greater than the amount which would have been available towards payment of the section 75 debt had the act or failure to act not occurred. In this case, where it was argued that there had been a sale of a business at an undervalue, “it is difficult to see how it could be reasonable to specify [in the CN] a figure larger than the amount of the undervalue”, as opposed to the £5.089m needed to take the scheme up to PPF solvency level.
The Regulator has issued a report setting out how it considered the exercise of its functions in relation to the case and the results of that consideration. It states that the Tribunal’s comments were obiter (mere comments rather than being necessary to reaching a decision) and that they relate to the particular facts of the Bonas case. This appears to indicate that the Regulator does not consider itself bound by these comments in future cases.