Judge declines to rule on whether contribution to builder’s pension was ‘excessive’
The trustees responsible for carrying out the bankruptcy of boomtime builder Bernard McNamara have appealed a ruling by the UK High Court that decided he can hold on to a €6m pension fund.
The bankruptcy trustees, when contacted by the Sunday Independent, did not rule out challenging as excessive the size of the single one-off payment made to establish McNamara’s Simcoe pension scheme in 2002.
In February, Lord Justice Nugee ruled in the High Court in London in favour of McNamara’s bid to hold on to the pension.
That ruling took its lead from a November 2021 ruling in the European Court of Justice after the London High Court had referred the case to the Luxembourg court – one of the last referrals to the European Court by a British court before Brexit.
The trustees had argued to the court that the impact of McNamara’s UK bankruptcy meant he had lost his rights to benefit from the scheme, but the court ruled against this contention.
“I will declare that all rights and interest of Mr McNamara, if any, in the policy held by the Simcoe scheme are excluded from the bankruptcy estate,” concluded Lord Justice Nugee in his judgment in February.
“This is, of course, without prejudice to any question whether any contributions to the scheme were excessive contributions, and if so whether it is still open to the Joint Trustees to do anything about it, something which is not before me and which I have not been asked to consider.”
When contacted, a spokesman for bankruptcy trustee Mark Wilson said that “at present the matter is subject to an appeal by the trustees to the Court of Appeal”.
The spokesman said that the trustees would not be in a position to discuss the matter further until “they have had the opportunity to discuss with their legal team” in the coming weeks.
The Irish Life policy scheme had originally been established in 2002 by McNamara’s building company Michael McNamara & Co by way of a single payment of €6,161,256. It was unit-linked to a fund whose main underlying asset was the St Stephen’s Green Shopping Centre and in 2009 moved to his then newly established firm Simcoe.
The bankruptcy trustees have claimed in court that the value of the scheme by August 2020 was €8.5m, although this was disputed by McNamara.
He was declared bankrupt in the UK in 2012 on his own petition. Prior to his bankruptcy, McNamara had been a high-profile property developer operating primarily in Ireland. He and his wife moved to London in 2011 at a time when he had debts of over €1bn, about two-thirds of which was owed to Nama.
When contacted for comment by the Sunday Independent, McNamara responded: “I do not talk to journalists.”