Henry Day

Henry is recognised for his pensions work by both Chambers UK Bar and The Legal 500 UK Bar, where he is described variously as “a rising junior who is carving out a real pensions following”, “hard-working, measured and very bright”, “intelligent, personable, user-friendly and easy to work with”, as having “in-depth knowledge of pensions litigation [which] far exceeds many of his peers”, and as demonstrating “the ability to work seamlessly with witnesses, instructing solicitors and co-counsel”.

Matters on which Henry is currently instructed include:

• the appeal to the Supreme Court by the trustee of the Airways Pension Scheme against the Court of Appeal’s decision in British Airways plc v Airways Pension Scheme Trustee Ltd [2018] EWCA Civ 1533.
• two claims by scheme employers and trustees for rectification of errors in scheme rules arising out of historic consolidation exercises.
• a professional negligence claim against a scheme’s former legal and actuarial advisers in relation to the failed equalisation of male and female members’ normal retirement dates and other historic errors in the drafting of the scheme’s governing documentation.

Henry’s recent cases include:

• Airways Pension Scheme Trustee Ltd v (1) Fielder, (2) British Airways plc [2019] EWHC 29 (Ch) – Acting with Jonathan Hilliard QC in the trustee’s successful claim for Beddoe relief in respect of its appeal to the Supreme Court against the Court of Appeal’s decision in British Airways plc v Airways Pension Scheme Trustee Ltd [2018] EWCA Civ 1533. The circumstances of the claim were described by the judge as “unprecedented”.
• British Airways plc v Airways Pension Scheme Trustee Ltd [2018] EWCA Civ 1533 – Acting with Keith Rowley QC and Jonathan Hilliard QC for the respondent pension scheme trustee in British Airways’ appeal to the Court of Appeal concerning whether the trustee’s exercise of the scheme’s unilateral power of amendment to introduce a power to award discretionary pension increases was within the scope and purpose of the amendment power and whether the trustee’s subsequent decision to exercise the discretionary increase power was valid.
• Sogefi Filtration Ltd v Havard & Ors [2017] 12 WLUK 459 – Acting with Keith Rowley QC on behalf of the claimant sponsoring employer in a claim concerning whether normal retirement dates for male and female members of two defined benefit occupational pension schemes had been validly equalised; proceedings compromised with the Court’s approval under CPR r.19.7(6).
• Brewer & Sons Ltd Retirement Benefits Scheme and C.Brewer & Sons Ltd Executive Pension Scheme (2017) – Acting with Keith Rowley QC on behalf of the claimant sponsoring employer in a claim for construction and/or rectification of the governing documentation of two defined benefit occupational pension schemes in respect of rules concerning (inter alia) pension indexation, revaluation and accrual.
• British Airways plc v Airways Pension Scheme Trustee Ltd (2017) – Acting with Keith Rowley QC and Jonathan Hilliard QC for the respondent pension scheme trustee resisting British Airways’ application for an injunction restraining payment of the discretionary increase approved in British Airways plc v Airways Pension Scheme Trustee Ltd[2017] EWHC 1191 (Ch) pending determination of British Airways’ appeal.
• British Airways plc v Airways Pension Scheme Trustee Ltd [2017] EWHC 1191 (Ch) – Acting with Keith Rowley QC and Jonathan Hilliard QC for the successful defendant trustee in the seven-week trial of a multi-million pound claim brought by British Airways, as the sponsoring employer of the Airways Pension Scheme, for alleged breach of trust in relation to the grant of a discretionary pension increase in excess of CPI.
• Barnardo’s & Ors v Buckinghamshire & Ors [2016] EWCA Civ 1064 – Acting with Keith Rowley QC on behalf of the charity Barnardo’s on its appeal to the Court of Appeal concerning the construction of the term ‘Retail Prices Index’ in the governing documentation of the Barnardo’s Staff Pension Scheme and the cross-appeal brought by representative members of the scheme concerning the effect of s.67 of the Pensions Act 1995.
• Sea Containers 1983 Pension Scheme (2016) – Acting with Keith Rowley QC on behalf of the trustees of one of the Sea Containers pension schemes in a multi-million pound professional negligence claim against the scheme’s former actuarial advisers, administrators and pensions consultants arising out of alleged failed equalisation.

Other recent work (as sole counsel) includes advising on the potential liability of a SIPP provider in relation to the alleged misselling of investment products, acting on behalf of a respondent to a complaint before the Pensions Ombudsman, advising and representing the administrator and trustee of a SIPP in respect of an application by a discretionary beneficiary for pre-action disclosure of scheme documentation, and advising on the recoverability of funds transferred to a company in administration from the company pension scheme.

Henry also has experience of advising on matters in relation to the Local Government Pension Scheme.

In 2015 Henry completed a secondment to Eversheds’ Financial Services Disputes and Investigations department in London, working primarily with the pensions litigation team and assisting with cases concerning (inter alia) rectification of pension scheme documents, pension liberation and statutory pension transfer rights.

In 2013 Henry was seconded to the Financial Conduct Authority for nine months, during which time he advised on a range of pensions matters, including pension liberation, scheme charge capping and the introduction of independent governance committees for contract-based schemes. Henry continues to advise the FCA on pensions-related matters.

Henry accepts instructions on behalf of executors, trustees, beneficiaries and other potentially interested parties. He advises on the validity and construction of wills, the administration of estates, and claims under the Inheritance (Provision for Family and Dependants) Act 1975, and has represented clients in the course of both contentious and non-contentious probate proceedings in the Chancery and Family Divisions of the High Court.

Henry’s practice encompasses a broad variety of trusts-related litigation and advisory work, including matters arising out of pensions, wills and charitable trusts.

Recent work has concerned the existence and operation of constructive and resulting trusts; the validity and variation of trusts; construction, rectification and related professional negligence; the removal of trustees; the nature, scope and purpose of trustee powers and duties (in relation, for example, to the exercise of powers of amendment, disclosure of trust documents, loans of trust property, and advancement and appointment to beneficiaries); and the obtaining of Beddoe relief.

Henry also has experience of advising, where relevant, on capital gains and inheritance tax issues and of drafting trust deeds.

Henry is currently instructed as a legal expert in relation to appeals arising out of the complaints process set up by the Royal Bank of Scotland, with the agreement of the Financial Conduct Authority, for SME customers allegedly mistreated by the bank’s Global Restructuring Group (GRG) between 2008 and 2013. The complaints and appeals processes are overseen by an independent third party, Sir William Blackburne.

In 2015 Henry undertook a secondment to Eversheds’ Financial Services Disputes and Investigations department in London. Much of his time there was spent working on the defence, which ultimately proved successful, of an Enforcement Investigation by the Financial Conduct Authority, including advising on the scope of the Financial Services and Markets Act 2000 (FSMA) s.66, the FCA’s Principles for Businesses and issues of privilege.

In 2013 he undertook a nine-month secondment at the FCA, during which he advised the regulator’s Policy and Supervision divisions on a wide range of issues arising from recent amendments to and the operation of FSMA, related statutory instruments and the FCA Handbook. Henry continues to advise the FCA on an ad hoc basis.

Particular matters on which Henry has advised the FCA include:

• the liabilities of mortgage lenders and third party administrators under FSMA, the Regulated Activities Order 2001, the Appointed Representatives Regulations 2001 and the FCA Handbook
• access to the Financial Ombudsman Scheme for clients of an offshore scheme and compliance of the offshore scheme with the provisions of the FCA Handbook;
• the validity and effect under the Unfair Terms in Consumer Contracts Regulations 1999 and under the provisions of the FCA Handbook of proposed variations to a contract between group entities and gone-away clients
• the implementation of a card insurance misselling redress exercise
• the closure of an insurance company providing a pension scheme product in the absence of consent from gone-away clients, and on mechanisms by which redress could, if necessary, be obtained
• the validity and effect of a trust set up to fund the costs of an orderly wind-down of an authorised firm’s regulated activities
• the priority of distribution of assets in the event of the insolvency of an insurance company
• the development of the FCA’s pensions strategy, with particular regard to pension liberation, scheme charge capping and the introduction of independent governance committees for contract-based schemes

Henry has also advised the FCA on a range of matters relating to regulated firms, including:

• whether certain investment product comparison websites would give rise to a breach of FSMA s.21
• whether a benevolent scheme proposed by a credit union would fall within the FCA Handbook’s insurance perimeter
• voluntary variations of permission by authorised persons under FSMA Part 4A
• the interrelation between the FCA’s rules on firm trading names and appointed representatives, and the circumstances in which a person must be authorised by the FCA or claim exempt status, under FSMA Part III
• interpretation of the FCA Handbook’s rules governing approved persons
• commissioning of a skilled person report under FSMA s.166
• provision of financial services by members of the professions under FSMA Part XX
• disclosure of confidential information by the FCA to firms and other regulators and authorities under FSMA Part XXIII and the Disclosure of Confidential Information Regulations 2001
• statutory immunity of the FCA from liability under FSMA Sch. 1ZA
• phoenix companies
• unregulated collective investment schemes

While at the FCA Henry also assisted in the drafting of notices under FSMA s.165, notices of variation of permission under FSMA Part 4A, attestations and deed polls.

Henry accepts instructions in relation to all real property matters. He has advised and represented clients in claims concerning possession for rent/mortgage arrears and other contractual breaches, forfeiture, tenancy deposit schemes, disrepair, trespass, adverse possession, restrictive covenants, easements, boundaries, and s.14 of the Trusts of Land and Appointment of Trustees Act 1996.

Recent cases include a three-day trial in which he successfully acted for a defendant resisting her mother’s claim, as her purported landlord, for possession of her home on the basis of proprietary estoppel.

Henry also has experience of drafting deeds and licences.

In 2012 he undertook a secondment to the Lender Services department of a major national firm of solicitors, during which he assisted in the preparation of complex mortgage possession claims for trial.

Henry has particular experience of claims for professional negligence against pension scheme advisers.

He is currently instructed in a claim against a scheme’s former solicitors and actuarial advisers in relation to the failed equalisation of male and female members’ normal retirement dates and other historic errors in the drafting of the scheme’s governing documentation.

Recent cases include Capita ATL Pension Trustees Ltd & Ors v Sedgwick Financial Services Ltd and Mercer Ltd (2016), in which Henry was instructed (with Keith Rowley QC) on behalf of the trustees of one of the Sea Containers pension schemes in a multi-million pound claim against the scheme’s former actuarial advisers, administrators and pensions consultants, again arising out of alleged failed equalisation.

Henry also has experience of advising on professional negligence claims against surveyors, conveyancing solicitors, art dealers and auction houses.

Henry advises charities on a range of matters. Recent work has included advising a national charity on its obligations in relation to third party fund-raisers under the Charities Act 1992; advising a national charity on its fundraising practices (by reference to legislation, the Institute of Fundraising’s Code of Practice, the Public Fundraising Regulatory Association’s Rule Book and decisions of the FundRaising Standards Board); and advising on the duties of the trustees of a charitable company limited by guarantee.

Henry also has experience of the intersection of charities and pensions law, having been instructed by the appealing charity in Barnardo’s & Ors v Buckinghamshire & Ors [2016] EWCA Civ 1064, an appeal to the Court of Appeal concerning the use of the retail prices index for uprating benefits under the charity’s staff pension scheme.

Henry is alert to the financial and other benefits for clients of resolving disputes without resorting to court, whether in the private or the corporate context: his mediation experience includes, by way of example, boundary disputes between neighbouring landowners and, as part of his secondment in 2015 to Eversheds’ Financial Services Disputes and Investigations team, a multi-million pound service contract dispute between two infrastructure development companies.

Henry is happy to accept instructions with an international dimension. His experience includes:

• Successfully acting for the claimant in a c. £1.5 million cross-border contractual dispute between companies incorporated in England and California
• Advising as part of the legal team acting for a beneficiary of a Bahamas-based trust in a large multi-jurisdictional asset recovery action
• Abouraya v Sigmund & Ors [2014] EWHC 277 (Ch) – Successfully resisting an application for permission to bring a double derivative claim involving individuals domiciled in Egypt and Germany and companies incorporated in Hong Kong, the UK and Switzerland; led by David di Mambro.

• “A rising junior who is carving out a real pensions following.” (Pensions, The Legal 500 UK Bar 2019)
• “Intelligent, personable, user-friendly and easy to work with. He knows how to work seamlessly side by side with solicitors, which is a great asset.” (Pensions, Chambers UK Bar 2019)
• “Hard-working, measured and very bright.” (Pensions, Chambers UK Bar 2019)
• “His in-depth knowledge of pensions litigation far exceeds many of his peers and he demonstrates the ability to work seamlessly with witnesses, instructing solicitors and co-counsel.” (Pensions, Chambers UK Bar 2018)
• “An up-and-coming junior, he is bright and user-friendly.” (Pensions, Chambers UK Bar 2018)

Henry is an editor of “Wurtzburg & Mills on Building Society Law”, which he co-edits with Malcolm Waters QC, Elizabeth Ovey and Mark Fell.

He also writes frequently on recent case law developments in the fields of pensions and private trusts:

• “Court grants Beddoe relief in respect of pension scheme trustee’s appeal”: article for LexisPSL Pensions (January 2019) on the decision in Airways Pension Scheme Trustee Ltd v Fielder [2019] EWHC 29 (Ch) and the availability of Beddoerelief to trustees on appeal.
• “Construction and rectification in the context of a family deed of trust”: article for LexisPSL Private Client (September 2018) on the decision in Millar and Pearson v Millar [2018] EWHC 1926 (Ch) and the proper approach to the construction and rectification of a unilateral instrument.
• “Pension trustees and the exercise of discretionary powers”: article for LexisPSL Pensions (June 2017) on the High Court’s decision in British Airways plc v Airways Pension Scheme Trustee Ltd [2017] EWHC 1191 (Ch), considering: the correct approach to trustee decision-making; the requirements for successfully challenging a trustee decision; the construction of pension scheme documentation; the purpose of a pension scheme; and the purpose and scope of scheme powers of amendment.
• “What constitutes a ‘material change’ to RPI?”: article for LexisPSL Pensions (May 2017) on the High Court’s decision in Thales UK Ltd v Thales Pension Trustees Ltd [2017] EWHC 666 (Ch), considering the correct approach to the construction of a pension scheme’s indexation and revaluation provisions and the development of and differences between RPI and CPI.
• “Liability arising from unauthorised payments under FA 2004”: article for LexisPSL Pensions (March 2017) on the Upper Tribunal’s decision in Commissioners for HM Revenue & Customs v Sippchoice Ltd [2017] UKUT 87 (TCC), considering when a pension scheme administrator is liable to a scheme sanction charge under section 239 of the Finance Act 2004.
• “The great RPI v CPI debate – clarity at last?”: article for LexisPSL Pensions (November 2016) on the Court of Appeal’s decision in Barnardo’s & Ors v Buckinghamshire & Ors [2016] EWCA Civ 1064 as to the meaning of the defined term “Retail Prices Index” in the Rules of the Barnardo’s Staff Pension Scheme and the effect of section 67 of the Pensions Act 1995.
• “Auto-enrolment – guidance on when travelling workers are considered based in Great Britain”: article for LexisPSL Pensions (January 2016) on the decision in R (on the application of Fleet Maritime Services (Bermuda) Ltd) v Pensions Regulator [2015] EWHC 3744 (Admin) and the territorial scope of the Pensions Act 2008.
• “Setting things straight on rectification proceedings”: article for LexisPSL Pensions (December 2015) on the decision in Re BCA Pension Plan [2015] EWHC 3492 (Ch) and use of the section 48 procedure under the Administration of Justice Act 1985 as a potential alternative to construction or rectification proceedings.

Henry regularly speaks at conferences, at solicitors’ firms and at Radcliffe Chambers’ in-house seminars. Recent talks include:

• “Are Trustees in a Privileged Position?”, workshop at ConTrA’s Trusts in Litigation Conference (Athens, February 2019)
• “BA v APSTL – the Court of Appeal decision”, Radcliffe Chambers Junior Programme (London, September 2018)
• Case Law Update, Association of Pension Lawyers 2018 Summer Conference (London, June 2018)
• “The Inheritance (Provision for Family and Dependants) Act 1975: some recent cases”, Howard Kennedy LLP (London, March 2018), Radcliffe Chambers Junior Programme (London, September 2015)
• “BA v APSTL: challenges to the exercise of discretionary powers”, Association of Pension Lawyers (London and Leeds, July 2017), Lane Clark & Peacock LLP (London, November 2017)
• “Barnardo’s v Buckinghamshire: indexation, revaluation and RPI v CPI”, Freshfields Bruckhaus Deringer LLP (London, February 2017)
• “Re BCA Pension Plan and s.48 Administration of Justice Act 1985”, Radcliffe Chambers Junior Programme (London, March 2016)
• “Expert Evidence in Pensions Disputes”, Radcliffe Chambers Junior Programme (London, November 2015).

Henry assists with Radcliffe Chambers’ Student Barrister Experience Programme, an initiative organised in collaboration with Big Voice London that aims to inspire and support young people from backgrounds that are currently under-represented at the Bar. The programme was named Diversity and Inclusion Initiative of the Year at the UK Diversity Legal Awards 2018.

Henry also assists the Social Mobility Foundation in providing mock Oxbridge interviews to its students.

Henry read Classics at Merton College, Oxford, where he was made a college scholar and won numerous college prizes before graduating in 2003 with a Double First. He stayed on at Merton to study for an MSt in Classical Languages and Literature, in which he received a Distinction.

Henry subsequently completed a PhD on the classical Roman poet Lucan at Trinity College, Cambridge, funded by a full doctoral scholarship from the Arts and Humanities Research Council. In the course of his PhD, Henry won several faculty studentships and was also awarded a scholarship from the Deutscher Akademischer Austausch Dienst, allowing him to conduct additional research at the Freie Universität Berlin. Henry’s doctoral thesis has been published by Cambridge University Press as a monograph entitled Lucan and the Sublime(2013).

After converting to law in 2010, Henry undertook his Bar Professional Training Course at City Law School, on which he was graded Outstanding, winning the school’s Everard Ver Heyden Foundation Prize. He was called to the Bar by Lincoln’s Inn in October 2011 and is a recipient of the Inn’s major CPE and BPTC awards, the Lord Bowen and Lord Mansfield scholarships, as well as a Hardwicke Entrance Award and a Buchanan Prize for his performance in Bar Finals.

Association of Pension Lawyers, ConTrA – The Contentious Trusts Association, Financial Services Lawyers Association, Chancery Bar Association, Lincoln’s Inn.

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