Lehmans appeal to go ahead this year

The 38 sub-companies of the defunct investment bank had moved to force their UK scheme and the Pensions Regulator to drop its attempt to add them to a financial support direction, already levelled at six firms.

The Court of Chancery’s Upper Tribunal ruled in June those companies could be included in the direction, but the Court of Appeal agreed on Monday it would hear the case to ‘strike out’ the 38 businesses first.

A date for the hearing will be set in the next few weeks and will take place in late 2012.

And sources familiar with the appeal have told PW their case will hinge on decisions already taken by judge Sir Stephen Oliver QC in the Desmond case.

The regulator won from its independent determinations panel the right to demand £1m from the two directors — Denis Desmond and Donal Gordon — of the Northern Irish clothier in July 2010, but trustees subsequently tried to broaden the range of creditors to include Desmond’s wife, which the Upper Tribunal rejected.

Oliver, in this case, ruled Mrs Desmond could not be included in the notice because the panel had included her in its determination, and “accordingly the tribunal has no power to entertain or determine a reference in respect of her”.

Because the Lehmans subsidiaries were also dismissed during a determinations panel hearing, they will argue the Upper Tribunal is similarly barred from ruling on them, although their case hinges on whether an FSD demands the same legal treatment as a contribution notice.