Steria Ltd & Ors v Ronald Hutchison & Ors [2006] EWCA Civ 1551

Case No A3/2006/0135[2006] EWCA Civ 1551
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE PETER SMITH
CH/2005/APP/0578
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 24 th November 2006
Before
LORD JUSTICE MUMMERYLORD JUSTICE JACOBLORD JUSTICE NEUBERGER
Between
STERIA LIMITED & ORSAppellantRONALD HUTCHISON & ORSRespondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR BRIAN GREEN QC & MR PAUL NEWMAN (instructed by Wragge and Co LLP) for AppellantMR NIGEL INGLIS -JONES QC & MR NICOLAS STALLWORTHY (instructed by Levi Solicitors LLP) for First Respondent
JudgmentLord Justice Mummery :The appeal
[1]This is a second appeal, for which permission was granted by Lloyd LJ on 14 March 2006. The central point is whether, in the circumstances of this case, the doctrine of estoppel applies to the operation of an occupational pension scheme.[2]Estoppel was the basis of a finding by the Pensions Ombudsman of maladministration of an occupational pension scheme called the “Steria Management Plan” (the Scheme), which was formerly called the “Information Systems Management Plan”.[3]In his Determination (the Determination) dated 21 July 2005 the Pensions Ombudsman dismissed many allegations of maladministration made in a complaint dated 14 July 2003. The allegations were made by Mr Ronald Hutchison, the respondent to this appeal, against the appellants, who include the past and present trustees of the Scheme and the current principal employer.[4]The Pensions Ombudsman upheld one of Mr Hutchison’s claims. It related to his pension rights on retiring before he reached the normal retirement date (NRD) of 65, which was specified in the Trust Deed and Rules of the Scheme dated 24 July 1998: see Rule 1.1. The Rules also provided that a member who, with the agreement of the employer retired before NRD but after attaining age 50 was entitled to receive an immediate annual pension, but reduced in such manner as the Actuary should advise to be appropriate to take account of the earlier date on which it becomes payable: see Rule 5.4. These provisions have not been amended under the express power of amendment in the Rules. Yet Mr Hutchison claimed that, if he served 20 years’ pensionable service, as he had, his NRD would be at age 62 without any actuarial reduction for the acceleration of his pension. This claim is based on allegations of estoppel by representation, promissory estoppel and estoppel by convention.[5]The Pensions Ombudsman directed that the trustees and other respondents involved in the administration of the Scheme were “49. ...to treat Mr Hutchison as having a normal retirement date at age 62 with entitlement to receive a pension from that age without an actuarial reduction.”[6]The Pensions Ombudsman concluded that statements made in booklets about the Scheme and in letters sent to Mr Hutchison were such that Mr Hutchison could reasonably assume that, were he to complete 20 years pensionable service, his NRD would be at age 62; that he relied on the statements; and that it would be unjust to permit the appellants to go back on the statements relied on by Mr Hutchison and deny that his NRD should be at age 62.[7]On 21 December 2005 Peter Smith J dismissed an appeal by the appellants under section 151(4) of the Pension Schemes Act 1993 on points of law. He held that there was no error of law in the Determination.

Background

[8]I should first identify Mr Hutchison’s employers and his employment.[9]The first appellant Steria Limited (Steria) is the “Principal Employer” of the Scheme and has been since 28 June 2003 when it replaced Mr Hutchison’s employer, Bull Information Systems Limited (Bull). Bull is a respondent to the appeal, but it has taken no active part in the appeals before Peter Smith J or this court.[10]Mr Hutchison became an employee of Bull on 7 October 1974. Following his promotion to a management position in 1994, Mr Hutchison took the opportunity to become a member of the Scheme. It was a final salary scheme providing pension benefits for senior employees. He transferred to it his accrued benefits under the pension scheme that he had joined on becoming an employee of Bull (the Information Systems Retirement Plan-ISRP).[11]Mr Hutchison remained an employee of Bull after Bull sold the services part of its business to Steria. He continued to be an employee of Bull until February 2006. He is one of about 70 employees of Bull to whom statements were made of the kind relied on by him to support his claim of entitlement, on the ground of estoppel, to full pension benefits under the Scheme at age 62. Upholding Mr Hutchison’s claim has potentially substantial financial effects on the Scheme and those who benefit under it.[12]Next I turn to the trustees of the Scheme. The second appellant, Steria Pension Trustees Limited, (formerly Bull Pension Trustees Limited) was the trustee of the Scheme. Since February 2005 the third appellant Steria (Management Plan) Trustees Limited has been the sole trustee of the Scheme. I shall refer to these two appellants together as “the trustees”.[13]The logical starting point for ascertaining Mr Hutchison’s NRD is the governing Trust Deed and Rules of the Scheme. As indicated earlier, according to the formal Scheme documents his NRD is at age 65 and, in the case of retirement before that age, a member’s pension is required to be actuarially reduced to take account of its accelerated payment.[14]Mr Hutchison, who was born in September 1954, will not be 65 until September 2019. He is now 52 years old. The possibility of his retiring either at age 65 or earlier at age 62 has in fact gone, as he ceased to be a contributing member of the Scheme on 30 September 2002 and has since ceased to be an employee of Bull. His pension benefits under the Scheme are now “deferred benefits” of the kind described later. The fact that Mr Hutchison falls to be treated as a deferred pensioner under the Scheme does not, however, render the point of this appeal academic, as Mr Hutchison contends that his deferred benefits are affected by a determination that his NRD is to be treated as at age 62 rather than at age 65. (He in fact commenced receipt of a pension from the Scheme on 6 April 2006).[15]The present dispute arose when the Pensions Manager of Steria informed Mr Hutchison by letter of 29 November 2002 that his NRD was at age 65 and that earlier retirement, without actuarial reduction, would only have been at Bull’s discretion.[16]Mr Hutchison’s case that his NRD should be treated as at age 62 and that he is entitled to retire at age 62 with no reduction in his pension for drawing it before the age of 65 is based on his alleged detrimental reliance on representations (estoppel by representation), or his reliance on promises made to him by the trustees and/or his employer (promissory estoppel), or as a result of the way in which he, the employers and the trustees conducted themselves between 1994 and November 2002 (estoppel by convention). Whichever species of estoppel applies, he contends that it would be unconscionable to allow the trustees and/or the employers to resile from a clear and unambiguous statement, promise or a common understanding to the effect that his NRD was to be treated as at age 62.[17]Mr Hutchinson relies principally on the contents of a letter of 13 September 1994 (the 1994 letter) sent to him by Bull’s Manager of Pensions and Benefits when he was invited to join the Scheme and of an explanatory booklet issued in June 1991 (the 1991 booklet) and sent with the letter. (Rule 21 provided for each member to be given a booklet containing the basic information about the Scheme and his benefits and contributions under it.) Some changes were made to the booklet in January 1998 (the 1998 booklet) on which he says he also relied. He was by then already an existing member of the Scheme. Mr Hutchison has also referred to later letters written when he was already a member of the Scheme. They were sent to him in connection with the transfer of part of Bull’s business to Steria and the termination of his active membership of the Scheme. He refers to the letters, notably a letter of 9 July 2002, as evidence in support of his contentions on estoppel, but the heart of his case on reliance on the statements and estoppel is in the 1994 letter and the 1991 booklet. The later documents have some evidential value, but if Mr Hutchison fails in his estoppel claim based on detrimental reliance on the 1994 letter and the 1991 booklet, the later letters and booklets cannot help him.[18]On the matter of NRD Mr Hutchison submits that the 1994 letter and the 1991 booklet are in clear conflict with the express provisions of the Scheme. The appellants deny that the letter and the booklets contain clear and unambiguous representations and promises, which can be relied on by Mr Hutchison as altering the plain provisions on NRD in the Trust Deed and Rules from age 65 to age 62.[19]The appellants also rely on the notices or caveats in the booklets, which draw attention to the Trust Deed and the Rules in terms which, they contend, negative the alleged representation and prevent Mr Hutchison from saying that he relied to his detriment on the statements regarding benefits on early retirement at 62. The caveats have been referred to as the “Information Notice.”[20]Although the trustees accept, for the purposes of this appeal, that the 1991 booklet and the 1998 booklet are to be regarded as documents circulated with their authority and that they cannot deny responsibility for their contents in these proceedings, they contend that they did not make, and are not bound by, the statements in the 1994 letter, which was sent by Bull to Mr Hutchison as an employee. The letter was not produced by the trustees in order to discharge the trustees’ duties under the Occupational Pension Schemes (Disclosure of Information) Regulations 1986 SI 986/1046.

The 1994 letter

[21]The letter stated as follows- “As a result of the Company’s decision that certain line management positions will be eligible for a higher level of retirement and related benefits, I am pleased to be able to invite you to become a member of [the Scheme]. Membership of this plan is in place of your current membership of [the ISRP] and if you accept this invitation your accrued pensionable service in the one plan must be transferred to the other. An explanatory booklet describing [the Scheme] is enclosed. [the Scheme] is similar in nearly all respects to [the ISRP], except in the following respects:- 1 You will qualify for a pension that is two thirds of your final pensionable salary after 36 years of pensionable service instead of after 40 years. Each year of pensionable service will earn you a pension of 1/54th of your final pensionable salary instead of 1/60th . 2 Provided you have 20 years pensionable service, you may retire early from age 62 years without actuarial reduction in your pension due to it coming into payment earlier than normal. …..should you retire after age 62 years and with 20 years service or more the pension accruing from voluntary payments is reduced pro rata to service. Such pension is not, however, subject to actuarial reduction for early payment.”

The explanatory booklet

[22]The letter must be read with the booklet which was enclosed with it and referred to in it. The introduction to the booklet stated that its purpose was to give “clear and concise information” about the Scheme. In the definitions in the booklet the NRD is stated to be “the last day of the month in which you reach age 65”. The booklet also refers to early retirement provisions. It is stated on page 7 that “You can retire early with the consent of the Company at any time from age 50.” It is then explained that there is a reduction of the pension because it is paid early and therefore for longer. The booklet continues later on the same page:
“Members who have completed 20 years’ service or more may retire early from age 62 onwards without the application of the reduction factor referred to above.”
[23]Although the words “with the consent of the Company” are not repeated in this paragraph or in the paragraph numbered 2 in the covering letter, the appellants contend that it is clear that unreduced pension benefits on early retirement at 62 can only be taken if the Company (i.e. the employer) consents to early retirement.[24]The deferred pension provisions on page 11 of the 1991 booklet, which were set out under the main heading “LEAVING THE PLAN”, stated that “If you have 2 or more years’ pensionable service you are entitled to a pension held for you in the Plan and paid from your normal retirement date. This pension is calculated on your pensionable service and final pensionable salary at the date you leave and is increased each year up to retirement … If you retire early an immediate reduced pension is payable.”[25]In the 1998 booklet reference was also made to a pension from age 62 if you could have completed 20 years’ service not later than age 62.[26]The last page of the 1991 booklet (page 15) dealing with provision of information and stated “You will be provided with a statement of your own benefits due under the Plan in an annual benefit statement. You have the right to inspect the legal Trust Deed and Rules governing the Plan on application to the Pensions Department. It is the legal documents which prevail over this booklet on any question of interpretation. The Trustee will issue you with information about the finances of the Plan in an annual report. Further information may be obtained from [Bull’s Pensions Department] …”[27]Mr Hutchison says that he relied on the statement that his NRD would be at age 62 in a number of ways: he accepted Bull’s invitation to join the Scheme; he continued to work for Bull on that basis; he maintained his pension with the Scheme rather than transferring it to another pension scheme; he relied on it in reaching a final settlement on his divorce in 2001; he made Additional Voluntary Contributions to the Scheme on this basis; and as Bull was well aware it was his intention throughout to retire at age 55.[28]Mr Hutchison was issued with annual benefit statements stating that the NRD was 65.

The Determination

[29]The conclusions of the Ombudsman are set out in paragraphs 21-30 of his Determination. In summary they are as follows.[30]The 1994 letter, the 1991 booklet and the 1998 booklet contained clear and unambiguous representations to Mr Hutchison that, on the completion of 20 years’ service, his NRD would be at age 62. The combination of the two would be such that Mr Hutchison could reasonably assume that, were he to complete 20 years’ pensionable service, his NRD would be at age 62.[31]The 1994 letter clearly indicated that the employer would consent to such early retirement.[32]Mr Hutchison’s understanding continued until thrown into doubt by a letter from Steria dated 29 November 2002.[33]The booklet would lead a reasonable reader to believe that, on completing 20 years of pensionable service, he or she would have the right to retire at age 62 on an unreduced pension.The position was not changed by the sending of the benefit statement indicating that it was based on an NRD at age 65. This did not undo retrospectively the effect of the 1994 letter and the booklet.[34]Mr Hutchison relied on the representations made to him as to his benefits under the Scheme by joining the Scheme and continuing in Bull’s employment and membership of the Scheme over the following years.[35]The Pensions Ombudsman rejected the contention that Mr Hutchison relied on his NRD being 62 in the settlement of his divorce in 2001 or that it was well known that Mr Hutchison wanted to retire at 55.[36]He held that it would be unjust to permit Bull or the trustees to go back on the representations that were made and deny that Mr Hutchison’s NRD should be at age 62. Any mistake as to what his NRD should be had been caused solely by Bull and/or the trustees.[37]The Pensions Ombudsman concluded that Mr Hutchison’s NRD under the Scheme is correctly considered as being at age 62 in view of his completion of over 20 years’ pensionable service.[38]He also awarded him £250 as recompense for inconvenience. This is also challenged by the appellants on this appeal.

Judgment of Peter Smith J on appeal

[39]The judge dismissed the appeal. He held that he was not entitled to interfere with factual determinations within the sole ambit of the Pensions Ombudsman and that there were no errors of law in his Determination.[40]First, he rejected the submission that there was no evidence on which the Pensions Ombudsman could rely to conclude that the trustees were parties to the representations.[41]Secondly, he held that the relevant documents were issued at the behest of the employer who, with the trustees, could be bound by an estoppel which had the effect of enlarging the Scheme.[42]Thirdly, the representations in the letter and the booklet were sufficiently clear and unambiguous and there was material on which the Pensions Ombudsman could have come to his Determination.[43]Fourthly, there was material on which a reasonable Pensions Ombudsman could have come to the decision that detriment was established in the form of loss of ability to reduce his pension contributions, if he so wished.[44]Fifthly, as to the Information Notice on the last page of the booklets saying that Mr Hutchison has the right to inspect the Trust Deed and Rules, he held that the Ombudsman was right to conclude that the 1994 letter and the booklets were clear and unambiguous as to the representation as to Mr Hutchison’s pension entitlement at age 62, and that the reference to the Trust Deed and the Rules did not negative the clear representation and the Employer and the trustees could not avoid the consequences of what appeared to be clear representations merely by reference to the need to read the Trust Deed.[45]He said- “92. ….At the end of the day the Trustees and their advisers had presumably already read the Trust Deed and yet failed utterly properly to state its clear provisions. It would be quite wrong that in balancing the exercise the Employee should be worse off because he chooses not to read the Trust Deed when the Trustees themselves have read it and participated in the 1994 letter and booklet despite that.”[46]The judge thus concluded that all the ingredients of an estoppel by representation and promissory were made out.[47]He also held that it was a case of estoppel by convention saying “96. It is clear to me that Mr Hutchison, the Employer and the Trustees conducted themselves from 1994 to November 2002 on the basis that he would be entitled to retire at 62 after 20 years service with no reduction in pension and that it would be unconscionable or unjust to allow the Trustees to resile retrospectively from that common understanding. Although the Ombudsman does not say so in so many words it seems to me that his Determination appears to be on that basis as well as on a representation basis.”

Submissions of Steria

[48]On behalf of the appellants Mr Brian Green QC submitted that the fundamental obstacle in the way of Mr Hutchison’s case is that he has not suffered any detriment, which would make it inequitable or unconscionable to insist on treating him as having an NRD of age 65 in accordance with the terms of the Trust Deed and Rules. In fact, his joining the Scheme was to his very great advantage compared with the position that he would have been in had he not joined the Scheme. He was not disadvantaged by joining the Scheme or by continuing to work for Bull in the belief that he would be entitled to early retirement at age 62 with unreduced benefits.[49]Mr Green also submitted that Steria was not responsible for any representations made by Bull in the 1994 letter; that there was no representation to him that his NRD would be at age 62; that the right to take early retirement could only be exercised with the consent of the employer, and that the appellants were not estopped from denying that there was no consent; that there had been no reliance on the statements in the 1994 letter and the 1991 booklet in the light of the Information Notice subordinating the contents of the booklet (and any summary of them in a letter) to the provisions of the Trust Deed and the Rules of the Scheme; and that, as to estoppel by convention, there was no mutual course of dealing between him and the appellants by which the terms of the Trust Deed and the Rules were replaced by a provision that his NRD was at age 62.

Discussion and conclusions

[50]The arguments for Mr Hutchison which found favour with the Pensions Ombudsman and Peter Smith J hinge on the broad principle that a person should not be allowed to go back on his word if there has been reliance on it and if it would be inequitable to do so. In their view the 1994 letter and the 1991 booklet led Mr Hutchison to believe that he would be entitled to retire from service at or after age 62 without suffering an actuarial reduction in the pension benefits to which he would have been entitled on retiring at 65 as provided in the Trust Deed and Rules of the Scheme.[51]The formal legal documents are very detailed. They are difficult for a lay person to understand. It is unlikely that the average employee, even one like Mr Hutchison who obviously spends many hours attempting to work out his pension benefits, would even ask to see the legal documents in order to check the contents of a letter and a booklet for accuracy. Instead, the average employee would probably trust the employer and the trustees involved in the administration of a scheme and rely on the contents of an individually addressed letter highlighting significant features of the scheme which he was invited to join and on the contents of the explanatory booklet as an accurate summary of his pension benefits.[52]I can also understand how an employee reading the 1994 letter and the 1991 booklet would gain the impression from some of the things said in them that it would be possible for him, having rendered 20 years’ pensionable service, to retire early at 62 with an immediate pension, which would not be reduced by the fact that he was taking early retirement.[53]It is understandable that an employee would think that it was unfair if the trustees and/or the employer, between whom he is unlikely to differentiate, were allowed to go back on what was apparently said by them in the 1994 letter and the 1991 booklet sent to him.[54]However, the court is concerned with legal questions and, in particular, the applicability of the doctrine of estoppel for which certain requirements have to be satisfied. The question for this court is whether the Pensions Ombudsman erred in law in holding that, on the facts found by him, the requirements were satisfied.[55]If the sequence of events and the overall situation is analysed step by step it will be seen that the requirements for the application of the doctrine of estoppel in its various forms are not satisfied so as to entitle Mr Hutchison to be treated as if his NRD was age 62.[56]Taking one step at a time the legal position is as follows.

Letter and booklet

[57]Both the 1994 letter and the 1991 booklet must be read together. The 1991 booklet was sent to Mr Hutchison under cover of the 1994 letter, which highlighted and summarised three significant differences between the Scheme and his pension rights under his existing scheme. One of the differences was the provision, in certain circumstances, for unreduced pension benefits to be paid on early retirement after 20 years’ pensionable service.

Employer/trustees

[58]Although the 1994 letter was sent on Bull’s headed notepaper, the statements made in it about the Scheme are binding on the trustees.[59]Mr Green contended that the letter was not a trustee document. In one sense that is correct, as the letter was sent by Bull. It was, however, sent to Mr Hutchison by the Manager of the Pensions and Benefits Department of Bull, to which the trustees of the Scheme outsourced the administration of the Scheme. Although the statements in the 1994 letter about the pension benefits of the Scheme emanated from Bull, they were derived from the 1991 booklet and were made with the actual or ostensible authority of the trustees and are binding on them.

Read as a whole

[60]The particular paragraphs in the 1994 letter and in the 1991 booklet relating to pension rights on early retirement at age 62 must not be read in isolation from the rest of the letter and booklet. As with all documents, parts must be read and construed in the context of the whole in order to ascertain what representation or promise is made to the recipient of the letter and booklet.

Representation/promise as to NRD

[61]Read as a whole and in context, neither the 1994 letter nor the 1991 booklet made the representation or promise, as alleged by Mr Hutchison, of an alteration of Mr Hutchison’s NRD from age 65 to age 62. The NRD was stated to be at age 65.[62]The entitlement which Mr Hutchison seeks to set up by estoppel as to his NRD at age 62 under the Scheme does not correspond with the representation or promise made in the 1994 letter or in the 1991 booklet.[63]The representation or promise was more restricted than a change of the NRD. It was that, in the stated circumstances, pension benefits could be taken at 62 without actuarial reduction. One of the circumstances was that the early retirement was to be with the consent of the employer. (This is discussed as the next step in the analysis.)[64]Another circumstance was that the statement as to unreduced benefits on early retirement was not made in respect of deferred pensions. They are dealt with under a different heading in a different part of the 1991 booklet which clearly refers to a reduced pension on retiring early.

Need for consent

[65]Read in context and as a whole, paragraph 2 of the 1994 letter and page 7 of the 1991 booklet require the consent of the employer to early retirement before a pension without actuarial reduction will be given. The “Early Retirement” section of the 1991 booklet is prefaced by the statement “You can retire early with the consent of the Company.” In my view, this requirement applies to the rest of what is said in the section on page 7 on early retirement.[66]There is no statement in the 1994 letter or in the 1991 booklet that the employer and/or the trustees were either giving, or that they would give, consent to early retirement at age 62 on unreduced pension benefits. No estoppel arises preventing the withholding of consent.

Reliance/Information Notice

[67]Although I would be prepared, in general, to apply the presumption of reliance in relation to statements about pension benefits in documents such as the 1994 letter and the 1991 booklet, there are, as Etherton J pointed out in Hearn & Ors v. Younger & Ors [2005] PLR 49 at paragraph 111, problems in establishing an estoppel “based on an explanatory pension scheme booklet which is expressed in general terms and is manifestly not intended to override the trust deed and rules.”[68]In this case Mr Hutchison has to overcome the obstacle of the Information Notice placed at the end of the 1991 booklet expressly providing that the Trust Deed and the Rules are to prevail.[69]This warning that the interpretation of the booklet must be read subject to the Trust Deed and the Rules makes it impossible for Mr Hutchison to establish reliance on the statements in 1991 booklet and in the letter summarising it as an enclosed document without reference to the Trust Deed or the Rules.[70]The statements as to pension rights on early retirement at 62 are either consistent or inconsistent with the express provisions of the legal documents. If they are consistent, they add nothing to the rights of Mr Hutchison under legal documents of the Scheme. If they are inconsistent, the effect of the Information Notice is that the formal legal documents prevail over the letter and the 1991 booklet and there can be no operative reliance on statements inconsistent with them in order to establish an estoppel.[71]As the Information Notice in the 1991 booklet makes clear the trustees are not estopped from relying on the provisions of the Trust Deed and the Rules of the Scheme.[72]This point was not dealt with at all by the Pensions Ombudsman in the Determination.

Detriment

[73]Finally, detriment has to be established in the case of estoppel by representation (see Tai Hing Cotton Mill Ltd v. Liu Chong Hing Bank [1986] AC 80 at 110) and, even if it is not a requirement of the doctrine of promissory estoppel, it is relevant to whether it is inequitable to act inconsistently with the promise.[74]In my view, Mr Hutchison has not established detriment either to satisfy the requirements of estoppel by representation or as a relevant factor in determining whether it is inequitable or unconscionable to deny that Mr Hutchison is entitled to retire early at age 62 without the consent of the employer and /or the trustees on an unreduced pension.[75]There is authority to the effect that there is a presumption of detriment: Greasley v. Cooke [1980] 1WLR 1306. The presumption may apply in certain cases of proprietary estoppel, but it would not apply to a case such as this where the evidence shows that Mr Hutchison suffered no detriment.[76]The Pensions Ombudsman addressed the issue of reliance, but, although the trustees had submitted that no “detrimental reliance has been identified by Mr Hutchison” (paragraph 19.9 of the Determination), he did not expressly address the issue of detriment at all.[77]The judge said that the Pensions Ombudsman found detriment as a fact. I do not agree. The Pension Ombudsman’s findings related to reliance, not to detriment, in respect of Mr Hutchison joining the Scheme, paying [for] the enhanced benefits and remaining in employment.[78]I am also unable to agree with the judge that detriment was established by the loss of the ability of Mr Hutchison to reduce his pension contributions if he so wished and “in giving up his rights to revert to a lower percentage contribution.” (paragraph 50 of the judgment). If Mr Hutchison had not joined the Scheme, had remained in employment of Bull, and had made reduced contributions to the existing ISRP Plan, he would have received reduced benefits. I do not think that this counts as detriment suffered by Mr Hutchison in reliance on the statements in the 1994 letter and the 1991 booklet.[79]In this part of his judgment the judge appears to have equated the presence of reliance with the existence of detriment (paragraphs 49 to 52). They are distinct concepts, both of which are relevant to and need to be separately addressed in determining whether an estoppel has been established.

No estoppel

[80]The overall result of this step by step analysis is that Mr Hutchison has not established that the requirements of estoppel by representation or promissory estoppel have been satisfied so as to justify the direction on NRD given by the Pensions Ombudsman in his Determination.[81]As for estoppel by convention, the principle is, like other principles of estoppel, capable of applying to an occupational pension scheme, but I agree with Mr Green that it does not apply on the facts of this case. Following Mr Hutchison’s joining the Scheme there was no mutual agreement or assent or course of dealing between the trustees and Mr Hutchison as to the interpretation of the Scheme such as to justify the reduction of his NRD from age 65 to age 62 or such that it would be inequitable to suggest otherwise: see Redrow v. Pedley [2002] PLR at paragraphs 59 to 63.[82]For the reasons already given in relation to the various steps it would not be inequitable for Bull to have withheld its consent to early retirement at age 62 without actuarial reduction or to apply an actuarial reduction in relation to accelerated payment of the pension prior to NRD.

Result

[83]I would allow the appeal and set aside the direction made by the Pensions Ombudsman in paragraph 49 of the Determination.[84]It follows that the direction in paragraph 50 for the payment of £250 should also be set aside. The payment was for distress and inconvenience caused by maladministration. If, as I have concluded, there was no maladministration on the part of the appellants in insisting that Mr Hutchison’s NRD was at age 65 and in denying that he was entitled to unreduced pension benefits on early retirement at age 62 without their consent or that of his employer, there is no basis for the award of compensation.

Lord Justice Jacob:

[85]I agree. Lord Justice Neuberger : Introduction[86]In paragraphs 8 to 48 of his judgment, Mummery LJ has fully and succinctly set out all the basic facts giving rise to this appeal, and I gratefully adopt what he says. I agree the appeal succeeds, because Mr Hutchison is unable to make out his case, essentially for the reasons given in Mummery LJ’s judgment. Some of those reasons are based on the particular facts of this case, but others are of rather wider significance, and it is primarily for that reason that I wish to add some words of my own.

The basis of Mr Hutchison’s case: estoppel

[87]I begin by considering the basis upon which Mr Hutchison’s case is put. There is no doubt that it is based on estoppel, but there was some debate as to the species of estoppel. On behalf of Mr Hutchison, Mr Inglis-Jones QC, who appeared with Mr Stallworthy, contended that the claim could be put on the basis of estoppel by representation, estoppel by convention, and promissory estoppel. This is not the occasion to consider whether it is helpful to seek to divide up estoppels in this way. I am content to proceed on the basis, which both parties have assumed, that there is a valid and useful distinction between these different types of estoppel.[88]I do not consider that, on any sensible analysis, Mr Hutchison’s claim can be based on estoppel by convention. Even on the assumption (which seems to me to be correct) that “convention” should, at least in this context, be widely or flexibly interpreted, I cannot see what convention there was in the present case. What Mr Hutchison is contending is that, on more than one occasion, the Trustees of the Scheme (“the Trustees”) and/or his employer (“Bull”) made a statement, to which he is effectively entitled to hold them. There was no course of conduct or dealing or anything of that sort, upon which Mr Hutchison can rely.[89]As it seems to me, and as appears to be accepted on behalf of the trustees, Mr Hutchison’s claim is best characterised as being in estoppel by representation. The representation could be said to have been one of law, in the sense that it involved identifying his rights under the Trust Deeds and Rules governing the Scheme (“the Deeds and Rules”). However, realistically in my view, it has not been suggested on behalf of the trustees that that point would prevent a claim based on estoppel by representation succeeding in this case.[90]In these circumstances, it would not appear necessary to consider whether Mr Hutchison’s claim could also be put on promissory estoppel. (He may have a problem in this connection, given the apparent rule that such estoppel can only be a shield and not a sword, but that point was not argued). However, the reason that Mr Inglis-Jones wished to maintain Mr Hutchison’s claim in promissory estoppel was because of his suggestion that promissory estoppel does not require detriment. For reasons I discuss in the next five paragraphs, that point does not seem to me to be well founded on the facts of this case; indeed, I find it difficult to conceive of a case where it would be.[91]A claim is normally made in estoppel because it is impossible, for one reason or another, to make it in contract, as some feature required by statute or common law for there to be an enforceable agreement is lacking. If one had to identify a single factor which a claimant in an estoppel case has to establish in order to obtain some relief from the court it would be unconscionability – see per Robert Walker LJ in Gillett v Holt [2000] Ch 198 especially at 225 and 232.[92]Such a broad formulation is a useful general guiding principle, but unconscionability can, in many cases, be an issue upon which reasonable people can very easily differ (in relation both to whether the claimant has a valid claim and as to how that claim should be satisfied). Accordingly, one can well see why it is appropriate to have some more specific principles. The danger of having such principles, however, is that they can introduce an undue degree of rigidity into what is intended to be a flexible doctrine. The tensions between asking whether it would be unconscionable in all the circumstances of a particular case, to deprive a claimant of any relief, on the one hand, and, on the other hand, asking whether the claimant can satisfy the various requirements of a particular type of estoppel, will be apparent to anyone who has had to consider the law in this area, and it is easy to find cases to support either approach.[93]When it comes to estoppel by representation or promissory estoppel, it seems to me very unlikely that a claimant would be able to satisfy the test of unconscionability unless he could also satisfy the three classic requirements. They are(a) a clear representation or promise made by the defendant upon which it is reasonably foreseeable that the claimant will act,(b) an act on the part of the claimant which was reasonably taken in reliance upon the representation or promise, and(c) after the act has been taken, the claimant being able to show that he will suffer detriment if the defendant is not held to the representation or promise. Even this formulation is relatively broad brush, and it should be emphasised that there are many qualifications or refinements which can be made to it.[94]The requirement for these three features, at least in relation to estoppel by representation, was very clearly put by the Privy Council in Tai Hing Cotton Mill Ltd –v- Liu Chong Hing Bank [1986] AC 80 at 110, in the following terms:
“[T]he essence of estoppel is a representation (express or implied) intended to induce the person to whom it is made to adopt a course of conduct which results in detriment or loss…”
[95]I can see no reason, in theory or in practice, why this should not be equally true of promissory estoppel. In the present case, despite the argument on his behalf to the contrary, it seems to me that there is no reason for thinking that Mr Hutchison should for some reason be excused from satisfying each of these three normal requirements of a claim of estoppel by representation (or promissory estoppel) if he is to make out his case.

The representation in the 1991 booklet and the 1994 letter

[96]The first problem faced by Mr Hutchison highlights the importance of a claimant identifying precisely the nature of the estoppel alleged. In this case, the Pensions Ombudsman, having found that there was an estoppel as Mr Hutchison alleged, concluded that its effect was that the Trustees, and indeed Bull, were estopped from denying Mr Hutchison’s NRD was 62. Once one analyses the passages in the 1994 letter and the 1991 booklet, on which Mr Hutchison relies, it can quickly be appreciated that the effect of any estoppel, if established, was significantly more limited. The point was identified by Peter Smith J, who held that the effect of the estoppel was that Mr Hutchison “would be entitled to retire at 62 after 20 years’ service with no reduction in pension” for early retirement.[97]The difference between the Pensions Ombudsman’s (inaccurate) formulation and the Judge’s (accurate) formulation is at least potentially important. First, it could be said to suggest that the statement upon which the alleged estoppel is based may not be unequivocal or clear, which could be fatal to the whole claim. Secondly, such lack of clarity may often cast doubt on the question of the genuineness and effectiveness of any alleged reliance on the statement. Thirdly, it may be questionable whether it is open to an appellate tribunal to uphold the original decision on estoppel.[98]Fourthly, and more importantly on the facts of this case, the effect of the estoppel, in the light of the correct characterisation of the representation, may be very different from its effect if the Pensions Ombudsman’s view is right. If there were an estoppel based on the Judge’s formulation rather than that of the Pensions Ombudsman, it would mean that Mr Hutchison would face two problems. First, it was his case before the Pensions Ombudsman that he had always intended to retire some time before he was 62, namely on his fifty-fifth birthday. Accordingly, the right to retire at or after 62 with no discount in his pension for early retirement would appear to have been of no benefit to him. Secondly, following the hearing before the Pensions Ombudsman, he ceased to be employed by Bull, so any such estoppel would now appear to be of no assistance to him anyway. It was suggested by Mr Inglis-Jones that the effect of section 72(1) of the Pension Schemes Act 1993 answered those problems. It is unnecessary to decide the point, and I would not want to express any concluded view on it. However, I am not convinced that, on its true construction, that section would have assisted Mr Hutchison and in any event it seems to me doubtful whether its terms would extend to an estoppel.

The need for Bull’s consent to Mr Hutchison retiring before 65

[99]The second problem faced by Mr Hutchison, at least in so far as his case rests on the 1991 booklet, is that the directly relevant passages in that booklet, which are set out in paragraphs 23 to 26 of the judgment of Mummery LJ, required him to obtain the consent of his employer, namely Bull, if he wished to take advantage of his right to retire between the ages of 62 and 65 without a reduction in pension for early retirement. The sentence in the booklet upon which Mr Hutchison’s case centres is contained in a brief section headed “Early Retirement”, the first sentence of which states that a member “can retire early with the consent of the Company at any age from age 50”. In my view, that sentence cannot be, as it were, put on one side when considering the effect of a sentence in the same brief section stating that certain members of the Scheme “may retire early” on or after attaining the age of 62, without suffering a discount in their pension.[100]First, it seems to me that the first sentence of the section, given its location, its unqualified terms, and its effect, should not be, as it were, treated as inapplicable or disapplied when considering the effect of the sentence upon which Mr Hutchison centrally relies. Secondly, it appears to me that the use of the expression “retire early” in the two sentences means that they were both intended to apply to the same situation. Thirdly, one would not have to be particularly financially literate to appreciate that the employer might well be financially disadvantaged by an employee retiring early on an unreduced pension, and one would therefore expect the employer’s consent to such a course to be required.[101]Finally on this point, it seems to me that, at best from Mr Hutchison’s point of view, the question of whether or not the statement he relies on could be invoked without obtaining his employer’s consent to his retiring before 65, is not clear (albeit that, for the reasons just given, it seems to me to be a view which is too generous to Mr Hutchison). Given that an estoppel based on a representation must classically involve the statement being clear, that would scarcely be helpful to Mr Hutchison’s case. (However, I would not want to be taken as saying that this would be fatal to Mr Hutchison’s case, if it faced no other problems, because I can see a forceful argument for saying that, if such a statement by an employer to an employee could reasonably have been understood by the employee to have the effect for which Mr Hutchison contends, then it might be a bit harsh to reject his case on estoppel.) More importantly, if the statement is ambiguous, then, I think even on Mr Hutchinson’s case, it would be hard to argue against the contention that the third sentence on page 15 of the 1991 booklet, which provides that the terms of “the legal Trust Deed and Rules governing the Plan” should “prevail over this booklet on any question of interpretation” would apply.

Reliance: the effect of the “disclaimer” in the 1991 booklet

[102]Those words in the 1991 booklet bring me conveniently to the third problem faced by Mr Hutchinson, which raises a point of more general application and interest in the field of employee pension schemes. The issue arises in these circumstances. The 1991 Booklet was produced by an employer for the purpose of assisting its employees to understand the essential elements of the employee pension scheme, and it contains: i) Information which is inaccurate, in that it does not correctly reflect the terms and effect of the Deeds and Rules governing the Scheme; and ii) A statement that the provisions of those Deeds and Rules “prevail over this booklet on any question of interpretation”. The question which arises is whether an employee can successfully contend that he or she has relied on the provisions of the booklet so as to raise an estoppel against the employer and/or the trustees of the Scheme.[103]Whether or not an estoppel can be raised, and, if so, whether and how it should be satisfied, in a particular case are classically questions which fall to be determined by reference to the specific facts and circumstances of that particular case. Accordingly, as Pumfrey J recognised at paragraph 51 in Hoover Ltd –v- Hetherington [2002] PLR 297, it may be dangerous to lay down an immutable rule applicable to every case in which an estoppel is sought to be raised by an employee in relation to an inaccurate statement as to the effect of his pension scheme in a booklet, which also contains the statement that the terms of the Deed and the Rules are to prevail. Having said that, provided that the latter statement is clear, both in its terms (i.e. in the way in which it is expressed) and in its location (i.e. not tucked away in tiny print in a footnote), I find it very hard to conceive of a case where an employee could rely simply on the terms of the booklet as founding a sufficient representation upon which to base an estoppel.[104]As Etherton J said at paragraph 11 in Hearn –v- Younger [2005] PLR 49, the “explanatory pension scheme booklet… is expressed in general terms and is manifestly not intended to override the trust Deed and Rules.” In paragraph 52 of his judgment in Trustee Solutions –v- Dubery [2006] PLR 177, handed down after the decision of Peter Smith J in this case, Lewison J said this to much the same effect:
“[I]n the majority of cases that have considered whether estoppels have arisen because of what has been said in booklets summarising a pension scheme, the overwhelming majority of judges have said that explanatory booklets containing statements to the effect that in case of doubt or conflict the rules or trust deed will prevail do not on their own give rise to estoppels. To hold otherwise would mean that a booklet of that kind would override the rules, when the booklet itself says the contrary…”
[105]The two exceptions he mentioned were a short and unreasoned decision of Aldous J on this point in Icarus (Hertford) Ltd v Driscoll [1990] 1 PLR 1, which was a decision in the relatively early days of pension scheme litigation, and the decision of Peter Smith J in this case, where the estoppel was described by Lewison J as “as a result of a combination of both the booklet and a letter addressed to him personally”.[106]In my judgment, Laddie J was right when he said this in paragraph 23 in ITN Plc –v- Ward [1997] PLR 131:
“[S]uch booklets are usually deliberately framed in general terms in an attempt to make them more readily intelligible to those members who read them. They are a précis of some, but by no means all, of the important features of the Scheme. It must be borne in mind that any précis of long and complicated documents will lose some of the detail (unless discarded matter is mere surplusage) to that extent any précis can be said to be inaccurate, and there will be some who will be adversely effected by the inaccuracy, assuming, of course, that they take the précis to be definitive on the points it deals with rather than a basic introduction.”
[107]There is, of course, a substantial difference between an inaccuracy which arises from the omission of a detail or qualification, and an inaccuracy which is simply a mistake. However, it seems to me that those observations do serve to undermine an attempt to base a case which relies on any of the contents of a booklet, at least if it contains a disclaimer of the sort the 1991 booklet contained in this case, and which, as I understand it, almost all booklets of this sort include.[108]The notion that only one or some of the members of a pension scheme could rely on an estoppel based on a statement in an explanatory booklet is unattractive, and there is considerable force in the point made by Pumfrey J in paragraph 52 of his judgment in the Hoover case:
“In this context, any estoppel should be capable of benefiting all the Members. The problems otherwise become impossible. When general representations made to the body of employees are relied on, they must be representations by the employer as against the body of employees which make it inequitable as against the body of employees as a whole to insist upon the strict terms of the Rules.”
He went on to say that it was “conceivable that special circumstances may affect particular employees”. It is worth mentioning that the estoppel found in the Icarus case was one which benefited the employees as a whole.[109]An additional reason why the court should lean against an estoppel in favour of one, or only some, of the members of a pension scheme, is that it involves favouring only one or some of the members of the scheme over the other members of the scheme. As was pointed out by Lewison J in paragraph 51 of the Trustees Solution case, this could in some cases put the trustees of the scheme in a position where they might be in breach of their statutory duties (in that case, which would not apply in this case, the duty in question would have been that contained in section 62 of the Pensions Act 1995). However, if it is argued that the estoppel extends to all members of the scheme, then the problems identified by Sir Andrew Morritt V-C in paragraph 60 of Redrow Plc –v- Pedley [2002] PLR 339 would arise.

The effect of the 1994 letter

[110]Of course, in this case, Mr Hutchison’s estoppel argument is not based on the booklet alone; it also rests on the 1994 letter, which is quoted in paragraph 22 of Mummery LJ’s judgment.[111]I agree with Peter Smith J’s view that Mr Hutchison’s case based on the 1994 letter is stronger than that based on the 1991 booklet. The letter contained no reference to the fact that the employer’s consent to retirement before 65 is required; the letter contained no statement that the terms of the Deed and Rules prevail over what is said in the letter; the letter was addressed to Mr Hutchison personally, unlike the booklet which was provided for all employees; the letter invited Mr Hutchison to take a specific step, namely to become a member of a Scheme, and it is therefore not unreasonable to assume that the information contained in it was relied on.[112]In these circumstances, some of the points which can validly be made against any estoppel argument based on the contents of the 1991 booklet cannot apply, either with equal force or at all, to the estoppel argument based on the 1994 letter. The arguments I have considered which avail the Trustees in relation to the 1994 letter are(a) that the letter contained no representation that Mr Hutchison’s NRD would be his 62nd birthday, as opposed to his 65th birthday, and(b) that he would not have been able to rely upon the 1994 letter to claim a right to retire at will at any time after his 62nd birthday without the consent of Bull. In other words, it seems to me that the 1994 letter gets him this far (and no further), namely that he could rely upon the representation in paragraph numbered 2 to justify having no discount in his pension for early retirement, if he retired after he was 62 and before he was 65, provided that that retirement was effected with the consent of Bull.[113]The first point, namely that he could not rely upon the letter as justifying an NRD aged 62 needs no further elaboration. The second point can be almost as quickly disposed of. The 1994 letter enclosed the 1991 booklet, which made it clear an employee could only retire before he reached 65 with Bull’s consent, and there is nothing in the 1994 letter to indicate that Mr Hutchison’s right to an undiscounted pension if he retired after he was 62 was a right which was not subject to getting Bull’s consent to his retiring before he was 65.[114]However, I do not consider that the statement on page 15 of the 1991 booklet to the effect that the terms of the Deed and Rules “prevail over this booklet” should be read as applying to the information about the Scheme contained in the 1994 letter. The two numbered paragraphs in that letter are introduced by words “[the Scheme] is similar in nearly all respects to [the ISRP] except in the following areas”, which do not suggest that what follows is somehow governed by all the provisions in the enclosed 1991 booklet. In particular, there is nothing to suggest that the “disclaimer” on page 15 of the booklet applies to what is in the letter.[115]A reasonable person in the position of Mr Hutchison, on receiving the 1994 letter, would have assumed that the specific points to which his attention was drawn in the two numbered paragraphs were being made to him in a freestanding way, and were not to be taken as being subject to any qualifications or disclaimers contained in the booklet, particularly as those qualifications and disclaimers were expressly stated to be in relation to what was in the booklet. The point is underlined by the fact that the letter was addressed to Mr Hutchison personally and was, as already mentioned, intended to be specifically acted on. (It should be added that this does not appear to me to be inconsistent with my earlier conclusion that what was in the letter did not mean that Mr Hutchison could retire before he was 65 without Bull’s consent, in light of what was stated in the booklet. There was no inconsistency in this connection between the letter and the booklet, and the statement in the booklet about the need for consent was unqualified and clear in its effect).

Has Mr Hutchison established reliance?

[116]For the reasons I have given so far, it seems to me that it was not open to Mr Hutchison to raise an estoppel insofar as it was based on relying on what was in the 1991 booklet. However, subject to the two points that I have identified, it seems to me that it was, in principle, open to him to raise an estoppel based on reliance on what was said in the 1994 letter. In that connection, in paragraph 25 of his clear and concise determination, the Pension Ombudsman said that he was:
“satisfied that Mr Hutchison relied upon the representations made to him as to his benefits under the Scheme. Such reliance is shown by Mr Hutchison’s decision to join the Scheme and his continuation in Bull’s employment (and membership of the Scheme) over the following years, though I recognise that there would have been other factors which also played their part in his decision to remain in such employment.”
[117]In order to succeed in a claim based on estoppel, it is probably not necessary for a claimant to satisfy what is known in a somewhat different area of the law as the “but for” test. In other words, in the present case, it does not appear to me that Mr Hutchison has to show that, if the representation in question had not been made, he would not have joined the Scheme. He merely has to show that the representation was a significant factor which he took into account when deciding whether to join the Scheme. Particularly in the light of that, it seems to me that it would be inappropriate to seek to interfere with the Pensions Ombudsman’s conclusions on this aspect, and I did not understand Mr Green QC, who appeared on behalf of the Trustees with Mr Newman, to seek to do so.

Has Mr Hutchison established detriment?

[118]Finally, I turn to question which Mr Green put in the forefront of his case, namely whether, if he had established the essential requirements of a clear statement upon which he had relied, Mr Hutchison would be able to satisfy the final requirement of detriment.[119]In his judgment, Peter Smith J rejected the trustees’ case that Mr Hutchison had failed to establish detriment for three reasons, namely: a) A detriment had “been established namely the loss of [Mr Hutchison’s] ability to reduce his pension contributions if he so wished”; b) Detriment was to be presumed, so that it was for the Trustees to establish no detriment, not for Mr Hutchison to establish detriment; c) In any event, the Pensions Ombudsman had made a finding of detriment, which was a finding of fact with which an appellate court should not interfere.[120]While I understand the basis upon which he had arrived at each of those views, I do not agree with them.[121]So far as reason (a) is concerned, the relevant facts are these. At the time he received the 1994 letter inviting him to join the Scheme, Mr Hutchison was a member of a different pension scheme, the ISRP, of which he had been a member since he joined Bull twenty years earlier. Save in three respects, the Scheme and the ISRP were identical; in particular they each provided for an employee contribution of 5% of salary, for an identical NRD, and for an identically calculated actuarial reduction in pension on taking early retirement.[122]The differences were(a) that joining the Scheme effected an immediate 11% uplift in the pension for which Mr Hutchison would qualify on attaining NRD,(b) that the right to accrue future service pension under the Scheme was at a rate 11% faster than under the ISRP, and(c) that the Scheme, unlike the ISRP, did not provide that members could pay reduced contributions than the stipulated 5% of salary for reduced benefits if they wished. In this last connection, the ISRP had always provided for one level of reduced contributions from its inception and, from 1988, for an alternative further reduced level of contribution. Throughout the 20 years of his membership of the ISRP, Mr Hutchison had always been a 5% contributor.[123]There was no evidence whatever from Mr Hutchison to suggest that he would even have contemplated taking advantage of the ability to make reduced contributions (in return for reduced benefits) after 1994. Given that he had not done so during the 20 years up to 1994, it seems to me that Mr Green is right to suggest that “the notion that he was in such circumstances being deprived of anything of value in moving across to the [Scheme] is therefore far-fetched”, particularly in light of the very substantial improvement he received as a result of moving from the ISRP to the Scheme (the two 11% increases to which I have referred). All the more so given Mr Hutchison’s evidence, which the Pensions Ombudsman accepted, that he intended to retire at 55.[124]In other words, I consider that the detriment identified by the Judge in his reason (a) was, in reality, purely hypothetical on the facts of this case. Even if that is too strong a characterisation, it does appear to me that the detriment suffered by Mr Hutchison from moving from the IRPS to the Scheme was, particularly when one bears in mind the substantial and concrete benefits of that move, wholly insufficient to found an estoppel which entitles him to any relief. Even if Mr Hutchison had succeeded in establishing the representation he alleges, as well as the necessary reliance (which, in relation to the 1994 letter, he has on the Pensions Ombudsman’s finding), I simply do not see how it could have been characterised as unconscionable for the Trustees to insist on the terms of the Deed and the Rules in the event of Mr Hutchison retiring at 62.[125]Before turning to the other two reasons advanced by the Judge for upholding Mr Hutchison’s case on detriment, it is right to mention two further points on detriment raised by Mr Inglis-Jones. First, he said that the fact that Mr Hutchison would not obtain the benefit described in the numbered paragraph 2 of the 1994 letter was itself a detriment upon which he could rely for the purpose of establishing his claim in estoppel. In my opinion, that point plainly will not do. If it were correct, the requirement for detriment in a claim for estoppel would be nugatory, because in every case where a claimant advances a claim based on estoppel, he will, virtually by definition, be better off if the estoppel is established than if it is not: otherwise he would not be raising an estoppel. The essential point of principle is that a claimant must establish relevant detriment. In the Gillett case at 233, Robert Walker LJ approved the observation that “the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it”, quoting Dixon J in Grundt –v- Great Boulder Pty Gold Mines Ltd (1938) 59 CLR 641, 674-5.[126]Secondly, Mr Inglis-Jones suggested that Mr Hutchison also suffered detriment because he continued in employment with Bull in the belief that he was entitled to an unreduced pension from 62, and because he did not purchase a further pension to protect himself against a reduction in his pension due to early retirement. I do not accept that. There was no evidence, or even argument, before the Pensions Ombudsman or before Peter Smith J, to support either such proposition. It is, of course, conceivable that a person who establishes such representations as those alleged by Mr Hutchison, might have acted in those ways. However, the mere possibility that a person to whom a representation was made might have taken a certain step cannot in every case be enough to found a case on detriment, or indeed on reliance.[127]I accept that whether a case has been made out on reliance or detriment is to some extent a matter of degree, and the mere fact that it is a possibility, as opposed to a probability, that something would have happened may not prevent that possibility founding an estoppel. However, here the possibility concerned is pure speculation, does not even appear to have been raised at the initial trial or investigation, has no evidential basis whatever, and has nothing to support it in terms of inherent likelihood or even possibility. It therefore seems to me to be therefore quite insufficient to support an estoppel.[128]I turn to the Judge’s reason (b) for finding detriment. In this connection, the Judge fastened on an observation of Lord Denning MR’s statement at 1311H in Greasley –v- Cooke [1980] 1 WLR 306 that “there was no need for” the person raising a proprietary estoppel claim, based on a promise which she had made out, “to prove that she had acted to her detriment or to her prejudice”. First, it is right to record that I am by no means satisfied that this observation should be taken as an indication that, in any case where a representation or promise has been made, the onus is on the representor or promisor to show that it has not been acted on, and that the onus is not on the representee or promisee to show that it has been acted on. Secondly, and in any event, it seems to me that that observation, properly interpreted, and despite what it appears to mean if read on its own, can only be referring to reliance: it does not apply to detriment.[129]So far as the first aspect is concerned, I very much doubt whether it could be right to hold that in every case where a representation is established, the onus must always be on the representor to show that it was not acted on. As a matter of normal principle, it seems to me that, as a matter of law, the onus must be on the person alleging the estoppel to establish unconscionability, or, to put it another way, to establish, in the case of estoppel by representation, the three essential ingredients of representation, reliance and detriment.[130]In many cases, and I think that the Greasely case was one of them, it can fairly be said that, once it is established that the representation was made, the representation together with all the other facts of the case enables the claimant to say that, unless the defendant can elicit some further evidence to the contrary, the claimant will have discharged the onus. I am inclined to think that the Greasely case went no further than that. If, however, it did establish a point of general principle, then, in common with Mummery LJ, I would hold that it is limited to cases of proprietary estoppel: on the basis that it seems to me to be a questionable principle, I would limit its ambit to as narrow an area as respectably possible.[131]Quite apart from this, as I have mentioned, it seems to me that Lord Denning’s observation can only fairly be treated as applying to reliance, and does not justify the view that there is a presumption of detriment: see Coombes v Smith [1986] 1 WLR 808 at 821B–F per Mr Jonathan Parker QC, and Stevens & Cutting Ltd –v- Anderson [1990] 1 EGLR 95 at 99E-F per Farquharson LJ.[132]It is also germane to refer to what Robert Walker LJ said in this connection in the Gillett case at 232E, not least because it deals with adequacy of detriment, as well as establishing detriment:
“Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded--that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved.”
[133]In any event, in this case, even if there had been a presumption of detriment, it seems to me that, on the facts of this case, that presumption would have been displaced in light of the analysis set out above in relation to the Judge’s reason (a) on this aspect.[134]Finally, I turn to the Judge’s reason (c), which can be dealt with very shortly. In my judgment, the Pensions Ombudsman did not consider the question of detriment, and therefore there was no question of reversing him on a finding of fact, because he made no such finding. In any event, if he did make a finding of detriment, then it seems to me that it cannot stand as a matter of law, again for the reasons I have given.

Conclusion

[135]For these reasons, which are substantially the same as those of Mummery LJ (whose views on the award of £250 I adopt), I would allow the appeal of the Trustees, and set aside the decision of the Pensions Ombudsman.

Cited in 21 later judgments

and 12 more of the most senior