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U.K. Pensions Regulator prosecutes Chappell over BHS acquisition

Neil Hodge | September 26, 2017

If a regulator is too frightened to harpoon a billionaire whale like Sir Philip Green, it might as well hook a sprat like Dominic Chappell, a thrice-bankrupt retail novice who bought a failing company and an insolvent pension fund for a £1 (U.S.$1.3)—or the price of a litre of milk—without questioning why it was so cheap.

Last month the U.K.’s Pensions Regulator announced that it is to prosecute Chappell for failing to provide information and documents it requested during its investigation into his purchase of BHS through his company, Retail Acquisitions Ltd. He has been summonsed to appear at Brighton Magistrates’ Court on 20 September.

The case against Green was dropped in March after he agreed to cough up £363m (U.S.$478.6m) to plug part of the £571m (U.S.$752.8m) pensions black hole, saving himself £208m (U.S.$274m) in the process. As part of the deal, there was no admission of liability on his part or that of the associated Taveta companies, owned by his family.

The regulator is prosecuting Chappell for failing to comply with three notices issued under Section 72 of the Pensions Act 2004 that were sent out on 26 April 2016, 13 May 2016 and 20 February 2017. Failure to provide such information “without a reasonable excuse” is a criminal offence, which can result in an unlimited fine.

The enforcement agency has recently pledged to flex its muscles, saying in July that it “will not hesitate” to prosecute companies or individuals if they refuse to hand over information.

The Pensions Regulator has only successfully prosecuted individuals for breaches of Section 72 on three occasions—all of them this year—with each action resulting in fines of less than £10,000 (U.S.$13,200).

However, it is not the lack of compliance with an information request that is the biggest challenge for Chappell—it is the size of the contribution the regulator feels he owes the pension scheme that will put him in hot water. The watchdog has not officially said what amount it thinks Chappell is liable for, but sources suggest that he may need to fork out £17m (U.S.$22.4m).

There can be no doubt that Chappell needs to be held accountable by law for the damage he has caused. But it is unpalatable that Green was able to walk away and steer a deal in his favour. If corporate accountability is going to work, then it should apply to all executives—and not just those who can’t afford to buy their way out.

Quite how he’ll stump the cash up is anybody’s guess, as HM Revenue & Customs is already pursuing him for £500,000 (U.S.$659,000) in unpaid tax. And although the Pensions Regulator can legally force Chappell to make a payment, he can appeal against such a decision at the Supreme Court, further frustrating proceedings—and justice.

Chappell bought BHS from Sir Philip in March 2015 with promises that he would inject millions of pounds into the ailing retail giant. But 13 months later, BHS went into administration—the biggest collapse in the British retail sector since the closure of Woolworths at the height of the financial crisis.

Rather than putting cash into BHS, Chappell and his firm simply took money out: some £6m (U.S.$7.9m) was still owed when it collapsed last year. His employees also took a hit: 11,000 people lost their jobs, and 19,000 past and present workers saw their company pension benefits slashed by 12 percent.

As with Green, Chappell was sent a formal warning notice in November that the Pensions Regulator was using its legal powers to seek funds towards filling the BHS pension deficit and ongoing support of the scheme. The notice gave Chappell six months to reply and set out his case, after which a determinations panel—independent of the investigations team—would decide whether he has to make a contribution and how much it should be. However, his refusal to co-operate and hand over any information has stalled progress, hence the upcoming court appearance. Chappell maintains that the pensions black hole is not his fault.

The regulator has been roundly criticised for its handling of the BHS debacle. In May 2016 Richard Fuller, Conservative MP for Bedford, slammed it for failing to step in when it knew that the company’s pension deficit had reached £200m (U.S.$263.7m) following two whistleblower tip-offs about the state of the pension scheme. When the regulator did take charge of the issue, the first question it asked Green was how much he could afford to pay—rather than remind him of what he owed.

Green’s relatively easy treatment of cutting a favourable deal and walking away without accepting liability is at odds with the regulator’s more fervent pursuit of Chappell—a man who is probably incapable of paying, whereas Green was able to splash out on a £100m (U.S.$ 131.8m) super yacht as BHS fell apart. Why didn’t the regulator take a harder line with Green, whose wealth was then estimated to be over £3bn (U.S.$3.95bn)?

Such seemingly unequal treatment has raised eyebrows, as well as questions in Parliament. Labour MP Frank Field, chair-elect of the Work and Pensions select committee, which conducted a high-profile parliamentary probe into the BHS scandal, has asked “why was Sir Philip Green allowed to get away with an inadequate settlement, in which pensions have been cut, yet Dominic Chappell is going to be sued?” Field is consulting the House of Commons’ lawyers in search of an answer.

PM Theresa May has long said that she wants to ensure that there can be no repeat of what happened at BHS, but the remedies she proposes are fairly toothless.

In August, as part of wider corporate governance reforms, the government set out two proposals to improve corporate governance and scrutiny of large, private companies. It wants the FRC to develop a voluntary set of principles for such companies to sign up to, and hopes to pass legislation that will force them to disclose their corporate governance arrangements in their Directors’ Report and on their website.

Neither proposal is unlikely to prevent sharp practice from happening again. A voluntary code can be ignored, and a basic requirement to disclose corporate governance arrangements can lead to routine, template reporting that reveals few meaningful details.

There can be no doubt that Chappell needs to be held accountable by law for the damage he has caused. But it is unpalatable that Green was able to walk away and steer a deal in his favour. If corporate accountability is going to work, then it should apply to all executives—and not just those who can’t afford to buy their way out.