Sovereign Trustees Ltd & Anor v Glover & Ors [2007] EWHC 1750 (Ch)

[2007] EWHC 1750 (Ch)

Case No HC 05 C 02577

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19 July 2007

Before

THE CHANCELLOR OF THE HIGH COURT

Between

Sovereign Trustees LimitedClaimants

Stanley Allatt

Philip F GloverDefendants

John Michael Paylor

Craig Monty

MR M FURNESS QC (instructed by Pinsent Masons) for Claimants

MR J EVANS (instructed by Dickinson Dees) for Third Defendant

Hearing Hearing dates: 10/11 July 2007

Judgment

The Chancellor:

[1]Oldham Signs Ltd Pension and Life Assurance Scheme (“the Scheme”) was constituted with effect from 6th April 1989 by an Interim Trust Deed (“the Interim Trust Deed”) dated 20th February 1989 made between Oldham Signs Ltd (“the Company”) as the principal employer (1) and four individuals as the trustees thereof (2). The Interim Trust Deed provided for the execution of a definitive trust deed to bring into operation rules for the administration of the Scheme. Such rules were to be written to enable the Scheme to comply with certain statutory provisions (cl.4(b)) and might be amended by a resolution of the trustees (cl.16). The Interim Trust Deed provided for a majority of the trustees to constitute a quorum for any meeting of trustees (cl.9(i)) and that a resolution in writing signed by all the trustees should have the same legal effect as a resolution properly passed at a meeting of all the trustees (cl.10).

[2]The rules were established and brought into operation with effect from 4th April 1989 by a Trust Deed (“the Definitive Trust Deed”) dated 20th May 1990 and made between the Company (1) and the four individuals who were then the trustees (2). The rules (“the Rules”) so established provided in detail for a contributory final salary scheme for those employees of the Company and other relevant employers who were members of the Scheme. The basic retirement benefit for which the Rules provided was a pension equal to 1/60 x Final Pension Earnings (as defined) at Normal Retirement Age (as defined) x Pensionable Service (as defined). Rule 13 provided for the Trustees to cause the Scheme to be discontinued if the employers disposed of their businesses or went into liquidation. Rule 23 provided for amendments to the Rules in the following terms:

“The [Trustees] may, with the consent of the Principal Employer, from time to time amend all or any of the provisions of the Rules provided that no amendment shall be made so as to affect prejudicially the benefit entitlement under the Scheme secured or accrued in respect of any Member up to the effective date of the amendment....The [Trustees] shall notify in writing each Member of any amendment which affects the benefit entitlement in respect of him under the Scheme.”

[3]In December 1997 Johnstone Douglas Ltd (“JD”), an independent firm of employee benefit plan consultants, carried out a review of the Scheme on the instructions of the Company. Their report, to which I shall refer in greater detail later, recommended that the Scheme should be amended to provide for future service retirement benefits to be provided on a money purchase basis with the option for active members to convert their past service benefits into money purchase benefits. In February 1998 the Trustees wrote to all active members of the Scheme to inform them that the Company was introducing changes to the Scheme such that:

“...from 1st April 1998 future retirement benefits will be provided on a defined contribution basis (often called money purchase) where all pension contributions will be invested in your new individual Retirement Savings Account...”

[4]From 5th April 1998 contributions and benefits were paid and received by members of the Scheme on the basis that the Scheme had been amended as indicated in the letter from the Trustees to the members referred to in paragraph 3. On 2nd March 2000 the Company went into receivership. On 20th March 2000 the Scheme was discontinued, as provided in Rule 13, on the disposal of the Company’s business. Since then the claimants, as the present trustees, have been endeavouring to wind it up in accordance with the Rules and the provisions of s.73 Pensions Act 1995. They (“the Trustees”) have been hampered by a number of uncertainties; some have been resolved on the basis of counsel’s opinion, some by compromise but others require the decision of the court.

[5]Accordingly on 21st September 2005 the Trustees issued the Part 8 claim form in these proceedings. It raises a number of largely discrete issues. I am concerned with the first of them namely:

“whether the money purchase section of [the Scheme]...was validly created so as to give members an entitlement under its terms in respect of benefits arising from transfer payments or contributions.”

This issue is now before me pursuant to an application notice issued on 2nd October 2006 and an order of Blackburne J made on 25th April 2007. Due to other complexities the existing representative defendants found themselves unable to argue that issue because, in the absence of any resolution of the other issues raised in the Part 8 claim, they were unable to ascertain where their respective interests lay. Accordingly at the commencement of the hearing before me I gave permission for the addition of the third defendant Mr Craig Monty so that he might argue, as a representative defendant, for a negative answer to the issue now before me.

[6]The Trustees contend that the issue should be answered in the affirmative in reliance on a document dated 10th February 1998 (“the Minute”) and purporting to be the minute of a meeting held on that date at which an appropriate resolution (“the Resolution”) to amend the rules was passed by two of the three trustees of the Scheme. So far as relevant the Minute provides as follows:(1) It records the presence of John Waterhouse, Gary Scott and John Waites. Each of them was a director of the Company but only Mr Waterhouse and Mr Scott were trustees. David Heath was also a trustee but he is not recorded as having been present.

(2) Mr Scott was elected chairman, he noted that a quorum was present and the meeting proceeded to business. The JD Report was produced and the Trustees considered it. The Chairman then reminded the meeting of the proposals of the Company. They included “the introduction of a new contracted in [sic] money purchase section within the existing Scheme to provide benefits from 6th April 1998 for” three classes of individual including active members. It was also noted that the Company wished to offer active members the opportunity to transfer their accrued final salary benefits to the new section.

(3) Paragraphs 7 and 8, so far as relevant, are as follows: “7. The following proposals were also considered: (a) the ordinary contribution rate for existing members to be 3.00% of Pensionable Salary (except for non contributory members and Directors where it would reduce to 1.5%). (b) the spouse’s pension to be based on 25% of the Member’s Pensionable Salary (33% for Directors). (c) new members contributions to be 2% of Pensionable Salary for both the Company and the member. (d) the immediate vesting of benefits on joining the new money purchase section of the Scheme. (e) the provision of a Company undertaking in respect of active members who are age 55 and over on 6th April 1998 that the benefits to be provided under the money purchase section of the Scheme will not be less than that which would have been provided under the Scheme’s final salary section. (f)... (g)... (h)...

[8]After due consideration, IT WAS RESOLVED:(a) THAT the Company’s proposals be accepted in full. In particular, and for the sake of clarity, the final salary section of the Scheme should be closed to active members and new joiners on and from 6 April 1998 and that such persons should accrue only money purchase benefits from that date (with the exception of John Waites) in addition, active members should be given the opportunity to transfer their accrued final salary benefits into a transfer value to be credited to individual money purchase accounts.

(b) THAT no further contributions should become payable by or in respect of existing members save under either statutory requirements in respect of salary related schemes or the provisions applicable to the new money purchase section....

(c) THAT the Trustees and the Company have been vested with the powers to implement the above proposals and that these proposals should take effect on and from 6 April 1998.” (4) There being no further business the meeting then concluded. The Minute is signed by Mr Scott as Chairman. (a) the ordinary contribution rate for existing members to be 3.00% of Pensionable Salary (except for non contributory members and Directors where it would reduce to 1.5%). (b) the spouse’s pension to be based on 25% of the Member’s Pensionable Salary (33% for Directors). (c) new members contributions to be 2% of Pensionable Salary for both the Company and the member.

(d) the immediate vesting of benefits on joining the new money purchase section of the Scheme.

(e) the provision of a Company undertaking in respect of active members who are age 55 and over on 6th April 1998 that the benefits to be provided under the money purchase section of the Scheme will not be less than that which would have been provided under the Scheme’s final salary section. (f)... (g)... (h)... (a) THAT the Company’s proposals be accepted in full. In particular, and for the sake of clarity, the final salary section of the Scheme should be closed to active members and new joiners on and from 6 April 1998 and that such persons should accrue only money purchase benefits from that date (with the exception of John Waites) in addition, active members should be given the opportunity to transfer their accrued final salary benefits into a transfer value to be credited to individual money purchase accounts. (b) THAT no further contributions should become payable by or in respect of existing members save under either statutory requirements in respect of salary related schemes or the provisions applicable to the new money purchase section.... (c) THAT the Trustees and the Company have been vested with the powers to implement the above proposals and that these proposals should take effect on and from 6 April 1998.” (4) There being no further business the meeting then concluded. The Minute is signed by Mr Scott as Chairman.

[7]Counsel for Mr Monty contends that I should resolve this issue in the negative for a number of reasons which may be summarised as follows:(1) in the absence of evidence that the meeting of the trustees held on 10th February 1998 was properly convened the Trustees have failed to establish that the Resolution is valid;

(2) assuming the Resolution to have been validly passed it was not adequate to create the money purchase section because (a) it did not purport to amend the Rules, but even if it did (b) the Company did not consent to any such amendment and if there were any such amendment (c) it was not notified to the members; if contrary to those submissions the Resolution did effect the requisite amendment

(3) the exercise of the power of amendment contained in Rule 23 was excessive in that it did prejudicially affect benefit entitlements secured or accrued of all active members in two respects, namely (a) precluding future accrual of benefits on a final salary basis and (b) substituting earnings as at 5th April 1998 for Final Pension Earnings at Normal Retirement Age (as both defined in the Rules).

[8]In response to the proposition summarised in paragraph 7(3)(b) above counsel for the Trustees submitted that any such excessive amendment might be ‘severed’ from the rest of the amendments so as not to invalidate the latter. He also explained why he felt unable to contend for an estoppel binding all members of the scheme to the creation of the money purchase section on the basis of which contributions and benefits were paid and received by members after 5th April 1998. In my view that concession was rightly made for the reasons given by counsel for the Trustees. In essence such an estoppel would need to bind deferred as well as active members for many of them would be better off in the winding up of the Scheme if no money purchase section had been created. But they were never notified of the relevant decision of the Trustees and did nothing on the faith of it. Thus it could not be unconscionable for any deferred member to insist on the Scheme being wound up in accordance with the Rules.

[9]Accordingly the issues I have to determine are(1) whether the Resolution was validly passed, if so

(2) whether it was effective as an exercise of the power of amendment conferred in the Trustees by Rule 23, if so

(3) whether the amendments so made were in excess of what the power authorised and if so

(4) whether any such excess may be severed. I will deal with those issues in that order. In relation to the first two I need to explain the factual background in more detail. The Factual Background

[10]As I have already indicated, the Scheme was established by the Interim Trust Deed. It provides by clause 3(a) that the trustees shall administer the Scheme and have all the powers necessary to receive hold and apply the money and assets for the time being subject to the trusts thereof “upon the Scheme trusts in accordance with the powers conditions and provisions set out in this deed, the Definitive Deed and the Rules (defined in clause 4 below)” Clause 4(a) required the execution of the Definitive Trust Deed “to bring into operation from the Date of Commencement certain rules (referred to as the Rules)”.

[11]I should also quote other material provisions including those to which I have referred in paragraph 1 above. Clause 8 requires the Trustees to “keep a complete record of all Scheme matters...”. Clause 9(i) requires the Trustees “...to meet together for the despatch of business. They may adjourn and otherwise regulate their meetings as they think fit and decide the quorum necessary for the transaction of business. If this has not been decided, a majority shall constitute a quorum. Questions arising at any meeting of the Trustees shall be decided by a majority of votes...” Clause 9(ii) provides that the Trustees may and the Trust Secretary shall on the request of a trustee at any time convene a meeting of the Trustees but that a trustee who is out of the United Kingdom is not to be entitled to receive notice of a meeting. Clause 16 provides that “The Trustees may, with the consent of the Principal Employer, from time to time amend by deed any of the provisions of this deed and the Definitive Deed. They may by resolution amend any of the provisions of the Rules.” Clause 10 states:

“Resolutions in writing signed by all the Trustees in the United Kingdom at that time shall have the same legal validity as a resolution properly passed at a meeting of all the Trustees.”

[12]As I have already recorded the Definitive Trust Deed was executed by the Company and the then trustees on 20th May 1991. This was outside the period of 24 months prescribed by clause 4(a) of the Interim Trust Deed but no one has suggested that its lateness affected the validity of the Interim Trust Deed, the Definitive Trust Deed or the Rules. This concession is rightly made, see Davis v Richards & Wallington Industries Ltd

[1990] 1 WLR 1511

. Clause 2 provides:

“The Rules are hereby established and brought into operation as from 4th April 1989 and the Scheme shall as from that date be administered and managed and have effect as provided by the [Interim Trust] Deed and the Rules.”

The Rules extend over some 68 pages. Rule 1 contains a substantial number of complex definitions to which I shall refer as occasion may require. Rule 2 deals with the constitution of the Scheme, Rules 3 and 4 with membership and contributions, Rules 5 to 9 with retirement benefits and options, Rules 10 to 16 with breaks in benefits and service and sundry associated topics. Rules 17 to 24 comprise Section VI and deal with miscellaneous matters such as taxation, incapacity and proper law. It is in this section that Rule 23 dealing with amendments to the Rules is to be found. I have already quoted its material terms in paragraph 2 above.

[13]Counsel for the Trustees accepts that although Rule 23 does not specify any particular formality to be observed in its exercise it is to be applied subject to the provisions of the Interim Trust Deed, particularly those contained in clauses 9, 10 and 16. Thus the power of amendment may only be exercised by a resolution of the Trustees passed in accordance with those provisions. The first occasion on which the power was exercised was in August 1996. On that occasion a resolution was passed by the three trustees at a meeting held on 27th August 1996. It is recorded in a minute countersigned by all three trustees and on behalf of the Company as the principal employer by a director and the secretary. It recites the Interim Trust Deed, the Definitive Deed and the Rules and continues:

“3. Certain alterations are to be made to the Rules primarily to secure the approval or continued approval of the Scheme by the Board of Inland Revenue. The Alterations With effect from 1st January 1989 the attached appendix PS123 is attached to and forms part of the Rules. The Appendix PS123 overrides any contrary provisions contained elsewhere in the Rules.”

The appendix runs to 14 pages of very detailed provisions, including 22 complex definitions, specifying how the Inland Revenue Limits rule (as defined) is to be applied to different classes of member in relation to both benefits and contributions.

[14]The JD report to which I have referred in paragraph 3 above contained recommendations for the future of the Scheme. After various comments on the Scheme as it then (December 1997) existed, explanations as to the various types of scheme or plan which were available and their various advantages and disadvantages to both the member and the employer JD set out its recommendations in Section 4. JD stated:

“The liabilities associated with your present scheme have been substantially increased by the impact of the Pensions Act 1995. In the circumstances we are recommending that future service retirement benefits are provided on a money purchase basis with active members having the option to convert their past service benefits to money purchase if they so wish.”

JD then set out a summary of their recommended money purchase benefit and continued:

“Effecting the Change (See also Section 8) We believe in your case the change would be best achieved by amending the existing scheme. The alternative would be to wind up the scheme and replace it with either an occupational scheme or a group personal pension plan. However very substantial liabilities for deferred members coupled with the problems presented by the legal and technical issues relating to winding up the scheme are best avoided through amending the existing scheme. Active members would retain their entitlements to the benefits they had earned at the date of change calculated as though they left service on that date. This means that benefits calculated from their pensionable service and pensionable salary at the date of change and would be revalued on a statutory basis thereafter until retirement. Alternatively the members could request that the value of their benefits be transferred to their Retirement Savings Account in the new Plan to provide benefits on a money purchase basis (see below). It is important you appreciate that any changes must be effected in accordance with the terms of your present Trust Deed and Rules and our advice is subject to thorough examination of these documents.”

[15]This warning was repeated in Section 8. Under the heading “Legal Advice” JD wrote:

“We must stress that the existing final salary section must be closed and the new money purchase section arranged on a basis which complies with the provisions of the Trust Deed and Rules. These documents would be carefully examined and our company lawyer would recommend appropriate changes to ensure that the conversion fully complies with all relevant legislation and existing scheme documentation. You may also feel that the company and trustees should obtain independent legal advice.”

The remainder of Section 4 contains details of Retirement Savings Accounts, Contracting out of SERPS, Contribution Rates for different categories and ages of member, Additional Voluntary Contributions, Pensionable Earnings, Death in Service benefits, Normal Retirement Date, Widow’s pension and the treatment of early leavers. Sections 5 and 6 deal with the choice of investment manager and contracting out terms. Section 7 contains various financial considerations. Section 8 sets out the relevant steps for effecting the recommended conversion and concludes with the passage I have already quoted. Section 9 sets out the services JD would provide as consultants to the Company and the trustees. It included a legal and documentary service to prepare any amendments to the Trust Deed and Rules and to deal with all the other legal formalities.

[16]On 22nd December 1997 the Company Secretary, Mr Gary Scott, sent to the members of the Scheme three notices. The first is described as “Important Explanatory Statement”. It states:

“We have recently conducted a thorough review of our pension and life assurance scheme. As a result the Company and Trustees have decided to make certain changes to the scheme which will affect the way in which the scheme is contracted out. The changes will take place from 1st April 1998 and formal notices are attached.”

The attached notices, also signed by Mr Scott as Company Secretary, gave notice that the Company intended to surrender the existing contracting out certificate and apply for another on the basis of a money purchase scheme with effect from 31st March and 1st April 1998 respectively.

[17]I have referred in paragraph 6 above to the Resolution and Minute on which the Trustees rely. Contemporaneously therewith the Trustees sent letters of explanation to all active members of the Scheme to the effect that “the Company is introducing changes to” the Scheme. The letter continued:

“In summary, from 1st April 1998, retirement benefits will be provided on a defined contribution basis (often called money purchase) where all pension contributions will be invested in your new individual Retirement Savings Account.”

Enclosed with the letter was a summary of benefits, and an explanatory booklet, a schedule of deferred benefits or transfer value, a personal illustration of individual projected benefits and various forms an active member needed to complete. The accrued benefit option form made it clear that the deferred benefit to be transferred was to be based on final pensionable earnings as at 31st March 1998. The accrued benefit forms were completed and returned by a large number of active members.

[18]Nothing further was done before 5th April 1998. In June 1998 there was correspondence between Guardian Royal Exchange, as provider of the insurance cover for the Scheme, JD and the Company. On 3rd June the relevant employee of Guardian, Mr Milne, wrote to Mr Panton of JD thanking him for the copies of the announcements that had been made. He enclosed a rule amendment which he asked Mr Panton to arrange to be completed. He asked him to send back a certified copy. He concluded by telling Mr Panton that he was then in a position to consider the changes required to the Rules and added “In the meantime the enclosed resolution should be sufficient”. On 10th June 1998 Mr Panton replied to indicate that the rule amendment would be completed and a certified copy returned in due course. On 18th June 1998 JD sent the rule amendment to Mr Scott for completion and return. They were not returned until 22nd October 1998.

[19]This rule amendment took the form of a resolution that “[the Rules] will be amended with effect from 6th April 1998 to allow future benefits to be provided on a defined contribution basis . The Rules will be amended to enable the Scheme [to continue to satisfy specified statutory provisions] Until such time as the Rules are amended the Scheme shall be operated and administered in accordance with the requirements referred to above and in accordance with the Interim Contracting out provisions annexed hereto.” The minute is signed by Mr Waterhouse and Mr Scott as trustees and on behalf of the Company as respectively a director and the secretary. The minute does not record any meeting having been held and is not signed by the third trustee Mr Heath.

[20]On 17th December 1998 JD wrote to Guardian Royal Exchange asking them to prepare a deed of amendment recording the change in benefit accrual from 6th April 1998 to a money purchase basis to replace the existing deed and rules in their entirety. In their response dated 4th January 1999 Guardian indicated that they would prepare a specimen Deed for comment to “update the current Final Salary Rules”. Those documents were provided by Guardian to JD on 23rd February 1999. Not until 22nd September 1999 did JD respond. On that date they sent their comments on the draft Deed of Variation and Rules to Guardian. Those comments included the following:

“Members were notified by announcements prior to 6th April 1998 about the introduction of the money purchase section although no formal document existed prior to that date recording the decision of the Trustees and the Company to amend the Scheme as required by the Principal Deed.”

[21]On 1st March 2000 Mr Waterhouse on behalf of the Trustees and Mr McSwaine for and on behalf of the Company agreed to the proposed amendments of the draft Deed of Variation prepared by Guardian following the review by JD. At a Trustees’ meeting held on the same day Mr McSwaine confirmed that the Deed of Variation was urgently required.

[22]In the course of the hearing before me I commented on the fact that neither the Resolution nor the Minute had been referred to in any of the subsequent correspondence. The Minute had been exhibited to the witness statement of Mr Jonathan Stewart who had had no connection with the Scheme at any relevant time and had not been vouched for by any one who had been so connected. Overnight the solicitors for the Trustees obtained witness statements from Mr Waterhouse and Mr Scott made on 11th July 2007. They are in common form. Both witnesses confirm that there were three trustees, namely themselves and Mr Heath, that “the minute records a meeting which was held on 10th February” and to the best of their recollection “is an accurate record of the meeting and the matters resolved at the meeting”.

[23]Counsel for Mr Monty did not object to this evidence being adduced at the last minute, nor did he apply to cross-examine the witnesses on their statements. In his submissions he accepted that there had been a meeting, as indicated in the minute, and that it was quorate. But he maintained his submission that it was incumbent on the Trustees to demonstrate that the meeting had been properly convened. In the absence of any evidence at all on that matter he submitted that I should conclude that the Resolution was and is devoid of any legal effect. In those circumstances I turn now to the first issue.

The validity of the Resolution

[24]Clause 9(ii) of the Interim Trust Deed requires a meeting of trustees to be convened but does not specify any particular period of notice or manner in which it should be given in the case of a trustee within the United Kingdom. In those circumstances due notice must be given to all the trustees, the fact that two are present and sufficient to form a quorum is no reason to dispense with notice to the remaining trustee, see Halsbury’s Laws of England 4th Ed. 2004 Reissue Vol 7(2) para 1066.

[25]It is true that there is no evidence of any notice of an intention to hold a meeting of the trustees on 10th February 1998 having been given to Mr Heath or anyone else. But it is now clear that such a meeting was held and attended by three people of whom two were trustees. The suggestion that the meeting had not been properly convened had not been made before the first day of the hearing before me on 10th July 2007, some 9.5 years since Mr Waterhouse, Mr Scott and Mr Waites in fact met together. In those circumstances I consider that I can and should apply the maxim omnia rite esse acta praesumuntur. Accordingly I presume due notice was given to Mr Heath. In the result I conclude that the meeting was properly convened, was quorate and that the business recorded in the Minute was conducted at it. Accordingly I turn to the second issue.

Was the Resolution effective to amend the Rules?

[26]Counsel for the Trustees relies on the Minute as evidence of the passing of a resolution to amend the Rules as required by clause 16 of the Interim Trust Deed and Rule 23. He submits that the Minute clearly records the acceptance by the Trustees of the proposals of the Company for the insertion into the Scheme of a money purchase section. He contends that the details of those proposals can be readily ascertained from one or more of the JD Report, the notification to active members and the Resolution. He submits that those details are sufficient to effect the requisite amendments.

[27]This is disputed by counsel for Mr Monty. He submits that the power to amend conferred by Rule 23 may only be exercised by a resolution of the Trustees to effect an amendment and then only if the amendment is made with the consent of the Company and duly notified to the members of the Scheme whose benefit entitlement is affected by the amendment. He submits that none of these three conditions is satisfied. He submits that on its true construction the Minute does not record a resolution to effect any amendment, nor, given the discrepancies between the Minute, the JD Report and the notification to members, was there any sufficient consent of the Company or notification to members.

[28]It is not in dispute that the Minute must be construed objectively in the light of all relevant surrounding circumstances, see, for example, Mannai Investment Co v Eagle Star Life Assurance

[1997] AC 749

. Equally I did not understand it to be disputed that the question to be answered is whether, so interpreted, the Trustees intended by their resolution to effect an amendment to the Rules. If, by contrast, on its proper interpretation the Minute records a decision to adopt a particular policy to be carried into effect by amendments subsequently made that will not be sufficient to effect an amendment so as thereby to alter the trusts applicable to the Scheme as declared by clause 3(a) of the Interim Trust Deed.

[29]I have set out the relevant provisions of the Minute in paragraph 6 above. The circumstances in which the meeting on 10th February 1998 was held include the existence and contents of the JD Report of December 1997 and the Notices given on 22nd December 1997. I have set out the relevant provisions of the JD Report in paragraphs 14 and 15 above. JD recommended the adoption of a money purchase basis for the provision of future service retirement benefits to be effected by an amendment to the Scheme. But JD was also emphatic in its advice that any changes must be effected in accordance with the Trust Deed and Rules. They stressed the need for a careful examination of those documents, compliance with all relevant legislation and the need for legal advice.

[30]There is no evidence of any such advice having been sought or obtained before 10th February 1998 and none is referred to in the Minute. The precedent for amendment provided by the earlier Minute dated 27th August 1996 (see para 13 above) was not followed. The notices given on 22nd December 1997 indicated change with effect from 1st April 1998 affecting the basis on which the Scheme was contracted out but no indication of how or when it would be effected. The Minute shows that what was under consideration were “proposals” of the Company, see paragraphs 5, 6 and 7. The resolution recorded in paragraph 8(a) was that “the Company’s proposals be accepted in full”. The explanation of the consequence which follows is expressed in terms of “should”. This is not the wording of an immediate amendment but may be explained by the fact that the point of reference is a future date, namely 6th April 1998.

[31]All these considerations are equally consistent with an intention to adopt a policy now to be implemented by amendments to the Rules to be made in the future as with an intention to effect the amendments now. But any doubt on that score is resolved by the terms of paragraph 8(c). Counsel for the Trustees submitted that that subparagraph was included so as to give to the Trustees and the Company the requisite power to implement the proposals. I do not agree. Implementation of the proposals could only be achieved through amendment of the Rules. The Trustees already had that power exercisable in accordance with the provisions of Clause 16 of the Interim Trust Deed and Rule 23. Sub-paragraph 8(c) envisaged that the proposals would be implemented by the Trustees and the Company in the future pursuant to powers already vested in them. The powers referred to must be the power to amend conferred by Rule 23. Accordingly the terms of paragraph 8(c) are quite inconsistent with any intention to amend the Rules then and there.

[32]That this is the correct interpretation of the Minute appears to me to be confirmed by a number of other considerations. First, the Rules as they existed on 10th February 1998 were both extensive, detailed and complex. The amendments needed to implement the JD recommendations might be expected to be equally extensive, detailed and complex. In those circumstances it is inherently unlikely that the trustees would seek to amend them by means of a document as short and simple as the Minute. Second, the Minute stands in marked contrast to that of 27th August 1996 recording the amendments resolved on by Mr Waterhouse, Mr Scott and Mr Heath. That minute records that the reason for the amendment was to secure the approval or continued approval of the Scheme by the Board of Inland Revenue. But there is no evidence that either Mr Waterhouse and Mr Scott or the Company had obtained any advice as to the consequences for Inland Revenue approval of implementing the Company’s proposals, notwithstanding the clear recommendation to that effect given by JD in its report. This is explicable if the resolution was for the adoption of a policy now to be implemented by amendments to be made later because its adoption without more could not alter the trusts of the Scheme or jeopardise Inland Revenue approval. Third, the minute of 27th August 1996, unlike that of 10th February 1998, was sufficiently detailed and specific to effect amendments to the Rules as they stood. It is surprising, if it was intended to effect the necessary amendments to the Scheme on 10th February 1998, that the precedent afforded by the resolution passed on 27th August 1996 was not followed.

[33]It is not clear whether the circular to active members dated February 1998 to which I have referred was sent out before or after the passing of the Resolution. Either way it is sufficiently contemporaneous to be a legitimate aid to the construction of the Minute. But I find it of little help. The opening sentence records that “the Company is introducing changes”. If written and sent before 10th February 1998 it does not advance the argument because it would be equally consistent with the Minute recording adoption of a policy now to be implemented by amendments made later. If it was written and sent immediately after the Resolution had been passed it would be consistent with my conclusion that what the Resolution recorded was the adoption of a policy now for implementation by amendments later. But it is also explicable by the fact that, on any view, the changes with which the members would be concerned would not be effective before April 1998.

[34]For all these reasons I accept the first submission made by counsel for Mr Monty and conclude that the Minute does not record a resolution thereby to effect any amendments to the Scheme. Accordingly the Scheme was not amended on 10th February 1998 and the questions of whether any such amendment was made with the consent of the Company or sufficiently notified to the members do not arise. Similarly the issue of excessive amendment does not arise either.

Conclusion

[35]It was not contended by counsel for the Trustees that the Rules had been amended by any means other than the Resolution as evidenced by the Minute.

(a) of the Part 8 claim that:

“the money purchase section of the Oldham Signs Pension Scheme of which the claimants are the trustees was not validly created so as to give members an entitlement under its terms in respect of benefits arising from the transfer payments or contributions.”