Martyn Shaw, a partner at Scottish law firm MacRoberts, provides an update on the BHS saga

This week, The Pensions Regulator (TPR) confirmed that it is to prosecute Dominic Chappell for failing to provide information and documents during its investigation into the sale of BHS.

What is this about?

Mr Chappell has been summonsed to appear at Brighton Magistrates’ Court on 20 September 2017 to face three charges of neglecting or refusing to provide information and documents, without a reasonable excuse, when required to do so by TPR under section 72 of the Pensions Act 2004 and contrary to section 77(1) of that Act.

He is charged with failing to provide information and documents in response to three notices issued by TPR during its investigation into the sale of BHS.

TPR has the power to require pension schemes, employers and third parties to provide it with information and documents relevant to its functions. Any person who intentionally and without reasonable excuse alters, suppresses, conceals or destroys any document which he is required to produce or is liable to be required to produce under section 72 is guilty of an offence.

TPR’s track record

This prosecution follows the imposition of fines and costs of more than £16,000 on a solicitor and his firm earlier this year, in an unrelated matter. That case was the first in which TPR secured criminal convictions, with there having been another two since.

A spokesperson for TPR has commented previously that “information notices are a key enforcement tool” and that it will not hesitate to prosecute those who prevent it from gathering the vital data it needs for its investigations – “Refusing to comply with a legal request from The Pensions Regulator will not be tolerated”.

Commentary

The ‘BHS’ circumstances are unusual, but this is a welcome further highlighting of TPR’s ability and willingness to take action when it has concerns regarding UK pension arrangements. That it has those teeth to bare will come as a surprise to many – TPR’s powers should not be underestimated.