Ireland: Judgment Delivered In ‘Omega Pharma’ Case

Judgment was delivered in the case of Holloway & Others v Damianus BV & Others (known as the "Omega Pharma" case) on 25 July 2014.


The Court directed the employers participating in the Omega Pharma Ireland Pension and Death Benefit Scheme to pay €2.23 million to the scheme trustees pursuant to a contribution demand issued by the trustees on the wind up of the scheme.

This judgment shed light on a number of issues around the validity and enforcement of contribution demands. The judgment also considered the appropriateness of the statutory funding standard provided for under the Pensions Act 1990 (as amended) as a funding measure on the wind up of a pension scheme and highlighted the importance of employer engagement, particularly where there is a consultation requirement in a scheme's governing documentation.


In October 2012, the principal employer of the Omega Pharma Ireland Pension and Death Benefit Scheme gave three months' notice of its intention to cease contributions to the scheme. The contribution obligation of the employer under the scheme was set out at Clause 8.1 of the trust deed which provided that the employers were required to pay to the trustees "the moneys which the Trustees determined, after consulting the Actuary and the Principal Employer, to be necessary to support and maintain the Fund in order to provide the benefits under the Scheme." The scheme was fully funded by reference to the statutory funding standard set out in the Pensions Act 1990 (as amended) at the time the termination notice was served.

The trustees took the advice of the scheme actuary and advised the employers of the sum that they had determined was required to secure the benefits payable under the scheme. The trustees formally requested the principal employer to enter into a consultation process. When the principal employer refused to engage, the trustees issued a contribution demand in the amount of €3,010,000 (later revised downwards to €2.23 million following the transfer out of the scheme of two members).

Following the service of the demand, the trustees requested an urgent meeting with the employers and referred to the possibility of legal proceedings if the matter could not be satisfactorily resolved. When this proved fruitless, the trustees issued proceedings to enforce the demand.


A number of issues were disputed before the court, including the construction of the trust documents, the effect of the termination notice served by the employers, the entitlement of the trustees to make a contribution demand and the amount claimed by the trustees. The primary point of dispute, however, concerned the appropriate method of computation of the value of benefit entitlements of the members under the scheme.

The court was persuaded by the arguments advanced on behalf of the trustees as to the correct interpretation of the relevant provisions of the trust documentation and found that the demand was valid. With respect to the appropriate method of computation of the demand, the court was critical of the lack of engagement of the employers and noted that the employers did have the opportunity to negotiate these matters but that a deliberate decision was made by them not to avail of these opportunities for discussion or negotiation. The court noted that the trustees consulted with the scheme actuary and that the amount ultimately demanded was determined in accordance with his advice. The fact that the defendants' actuarial expert witness appeared to concede that the trustees were left with little option but to proceed as they did in the face of the employers' silence was also of relevance.

Justice Moriarty referred to the decision of Charleton J in Greene & Others v Coady & Others [2014] IEHC 38 (in which Matheson successfully represented the defendant trustees) and noted that, in that case, the court considered that once trustees had acted honestly and in good faith, taking into account all relevant considerations and excluding irrelevant ones, the appropriate standard for review of their decisions is whether no reasonable body of trustees could have come to the same decision. Applying this standard of review, the court found that the decision of the trustees to issue a contribution demand did not appear to be one which no reasonable body of trustees would have made. As regards the amount demanded, the court held that the trustees, in determining the appropriate amount required, appeared to have been acting in good faith in pursuit of what they believed to be the best interests of the members of the scheme, in accordance with their fiduciary responsibilities.

The Court directed the employers to pay €2.23 million to the trustees.


Given the particular facts of this case it may be that this judgment will be of limited application.

The judgment follows the decision of Charleton J in Greene & Others v Coady & Others [2014] IEHC 38. It is clear that the courts will be slow to interfere with a decision made by a body of trustees and the appropriate standard of review is whether no body of trustees, acting reasonably, could have come to the same decision.

One of the key points of note is that the statutory funding standard may not of itself be determinative of the contribution obligations of an employer participating in a defined benefit scheme. Also, one must look to the balance of powers under the trust deed and rules as well as the surrounding circumstances in each individual case.

For employers, there are valuable lessons to be learned with respect to the importance of engagement with trustees, particularly in a wind up situation. Implicit in the arguments brought before the court was that the trustees may have been willing to accept an amount less than that demanded had the employers participated in meaningful negotiations. In addition, it seems likely that if the employers had engaged with the trustees during the wind up the court would have examined the merits of the arguments made by the employers regarding the appropriateness of the method of computation of the demand more closely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Arthur Cox
Arthur Cox
Arthur Cox
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Arthur Cox
Arthur Cox
Arthur Cox
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions