“An instrument is validly executed as a deed by an individual if, and only if— (a) it is signed— (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature ….”
“IT IS CONFIRMED THAT all members have been given written notification of the change a copy of which is attached, the Rules of the Scheme shall be amended accordingly as soon as practicable and this resolution will be noted at the next Trustees’ Meeting.”
“Every man must be taken to be cognisant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried.”
“the mistake of law rule should no longer be maintained as part of English law, and … English law should now recognise that there is a general right to recover money paid under a mistake, whether of fact or law, subject to defences available in the law of restitution.”
“I have concluded that the ‘misrepresentation of law’ rule has not survived the decision in Kleinwort Benson Ltd -v- Lincoln City Council …. Its historical origin is as an off-shoot of the ‘mistake oflaw’ rule, created by analogy with it, and the two are logically inter-dependent . Both are grounded inthe maxim ‘ignorantia juris non excusat’, a tag whose dubious utility would have been enhanced, hadit gone on to explain who was not excused, and from what. As it stands, it means no more than thatignorance of the general law does not excuse anyone from compliance with it, a proposition withwhich criminal lawyers are familiar. In translation, it has become distorted and amplified in meaning,in such expressions as ‘everyone is taken to know the law’, from which follow two furtherpropositions, (underpinning the ‘mistake of law’ and ‘misrepresentation of law’ rules respectively) (i)‘as you are taken to know the law, it is your own fault if you are mistaken as to it, and because of thatyou should have no relief’ and (ii) ‘as you are taken to know the law, it is your own fault if you aremistaken as to it, even if I have misrepresented it to you, and because of that you should have norelief’. Those two propositions bear little relation to, and do not follow logically from, the maxim‘ignorantia juris non excusat’, but save for its Latin roots, no basis for the ‘misrepresentation of law’rule is to be found …. The distinction between fact and law in the contextof relief from misrepresentation has no more underlying principle to it than it does in the context ofrelief from mistake. Indeed, when the principles of mistake and misrepresentation are set side by side,there is a stronger case for granting relief against a party who has induced a mistaken belief as to law inanother, than against one who has merely made the same mistake himself. The rules of the commonlaw should, so far as possible, be congruent with one another, and based on coherent principle. Thesurvival of the ‘misrepresentation of law’ rule following the demise of the ‘mistake of law’ rulewould be no more than a quixotic anachronism. Its demise rids this area of the law of a series ofdistinctions, such as the ‘private rights’ exception, whose principal function has been to distinguishthe ‘mistake of law’ rule, and confine it to a very narrow compass, albeit not to extinguish itcompletely.”
“Although the Kleinwort Benson case concerned a restitutionary claim rather than a contractual one, it cannot be doubted that its effect now permeates the law of contract.”
“the recent change in the law made by the House of Lords to allow recovery of money paid under a mistake of law suggests that an estoppel by representation of law may now be raised.”
“The delivery of the document constituted an unambiguous representation of fact that it was a deed. [The claimant] acted reasonably in relying upon that representation, as in fact he did.”
“The court is entitled to consider the particular statutory provision, its purpose and the social policy behind it when deciding whether an estoppel is to be allowed.”
“29 I bear in mind the clarity of the language of section 1(2) and (3) and also that the requirement for attestation is integral to the requirement for signature in that the validity of the signature is stipulated to depend on the presence of the attesting witness. I also accept that attestation has a purpose in that it limits the scope for disputes as to whether the document was signed and the circumstances in which it was signed. The beneficial effect of the requirement for attestation of the signature in the manner specified in the statute is not in question. It gives some, but not complete, protection to other parties to the deed who can have more confidence in the genuineness of the signature by reason of the attestation. It gives some, but not complete, protection to a potential signatory who may be under a disability, either permanent or temporary. A person may aver in opposition to his own deed that he was induced to execute it by fraud, misrepresentation or, as was unsuccessfully alleged in the present case, duress and the attestation requirement is a safeguard. 30 I have, however, come to the conclusion that there was no statutory intention to exclude the operation of an estoppel in all circumstances or in circumstances such as the present. The perceived need for formality in the case of a deed requires a signature and a document cannot be a deed in the absence of a signature. I can detect no social policy which requires the person attesting the signature to be present when the document is signed. The attestation is at one stage removed from the imperative out of which the need for formality arises. It is not fundamental to the public interest, which is in the requirement for a signature. Failure to comply with the additional formality of attestation should not in itself prevent a party into whose possession an apparently valid deed has come from alleging that the signatory should not be permitted to rely on the absence of attestation in his presence. It should not permit a person to escape the consequences of an apparently valid deed he has signed, representing that he has done so in the presence of an attesting witness, merely by claiming that in fact the attesting witness was not present at the time of signature. The fact that the requirements are partly for the protection of the signatory makes it less likely that Parliament intended that the need for them could in all circumstances be used to defeat the claim of another party. 31 Having regard to the purposes for which deeds are used and indeed in some cases required, and the long-term obligations which deeds will often create, there are policy reasons for not permitting a party to escape his obligations under the deed by reason of a defect, however minor, in the way his signature was attested. The possible adverse consequences if a signatory could, months or years later, disclaim liability upon a purported deed, which he had signed and delivered, on the mere ground that his signature had not been attested in his presence, are obvious. The lack of proper attestation will be peculiarly within the knowledge of the signatory and, as Sir Christopher Slade observed in the course of argument, will often not be within the knowledge of the other parties. 32 In this case the document was described as a deed and was signed. A witness, to whom the third and fourth defendants were well known, provided a form of attestation shortly afterwards and the only failure was that he did so without being in the presence of the third and fourth defendants when they signed.”
“To treat the very same facts as an unenforceable oral contract and as amounting to a representation (enforceable as soon as relied on) that the contract would be enforceable, despite section 4 – and to do so while disavowing any reliance on the doctrine of part performance – would be to subvert the whole force of the section as it remains in operation, by Parliament’s considered choice, in relation to contracts of guarantee.”
“I understood that, as a Local Partner, I would be required to sign documents and the extent to which I would become involved in reviewing them would depend on what they related to and the roles of the partners and the advisers that we had appointed.”
“The statutory power of appointing and removing trustees of the Scheme by Deed shall be vested in the Principal Employer and upon any exercise of such power the number of Trustees may be increased or reduced as the Principal Employer shall think fit but not so that the number of Trustees shall be less than three.”
“The powers conferred by this Act on trustees are in addition to the powers conferred by the instrument, if any, creating the trust, but those powers, unless otherwise stated, apply if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust, and have effect subject to the terms of that instrument.”
“The Principal Employer and the Trustees may jointly from time to time without the consent of the Members by Deed alter cancel modify or add to any of the Rules or provisions of this Deed, provided that no such alteration cancellation modification or addition shall be such as would prejudice or impair the benefits accrued in respect of membership up to that time.”
“The Principal Employer and the Trustees may from time to time without the concurrence of the Members by deed alter or add to the terms and provisions of the Rules and the trusts, powers and provisions of this Deed whether retrospectively or otherwise. The Principal Employer and the Trustees shall forthwith declare such alteration or addition in writing and the Deed and/or Rules shall stand amended accordingly. PROVIDED ALWAYS that no such alteration or addition shall operate so as to affect in any way prejudicially any pension already being paid in accordance with the Rules or this Deed at the date such alteration or addition takes effect.”
“Provided always that if notice of any alteration or modification shall be published in a form and manner agreed by the Principal Employer and the Trustees the trusts powers and provisions of this Deed and of the Rules shall pending the execution of the Deed be deemed to be altered or modified in such manner and to such extent as the principal Employer shall determine to give effect to the provisions set out in such notice.”
“The [Trustees] may, with the consent of the Principal Employer, from time to time amend all or any of the provisions of the Rules…. The Administrator shall notify in writing each Member of any amendment which affects the benefit entitlement in respect of him under the Scheme.”
“In my judgment there is no basis for holding that the breach of duty by the Trustees in failing to notify in any way invalidated the 1993 Amendment. Neither the language of Rule 23 nor any rule of law lends any support to any argument in favour of invalidation. There may be a failure to notify members (or some of them) for any of a variety of reasons. The amendment may be for the member’s advantage or disadvantage. The accident of a failure of notification cannot prejudice the legal effect of the amendment. What it might do is afford to members who are able to show that they have been prejudiced by the failure to communicate, the possible basis for a claim for compensation against the Trustees.”
“This Deed and/or the Rules shall stand amended accordingly with effect from the date of such declaration or from such other date … as is stated in such declaration.”
“Here it seems clear to me that the trustees exercised their discretion to amend the rule in the way contained in the amendment. They were obliged, having done so under clause 16, to make an appropriate declaration in a particular form. They could have been compelled on behalf of the members, who are not volunteers, to specifically perform their exercise of the power. Not to make a valid declaration was a breach of the terms of the definitive deed. Thus, in my judgment, this is a classic case in which the maxim of equity can and should properly be applied. [Counsel representing the members] is wrong, in my judgment, to submit that this is an extension of the doctrine. It may be that there has never been before a case on all fours with the present, but law and equity would be made to look ridiculous if it were powerless to correct what has been an obvious administrative error like the one made in this case. Moreover, none of the members of the scheme in any category have any reason to feel aggrieved. The members, apart from those in former scheme B, were told about the change at the time in July 2000. They never expected to continue to accrue rights on the previous basis. If they did so, they would be receiving a windfall which they had no right to expect. They cannot have known until much later that the amendment had been defectively executed.”
“Each of the associated companies that was still in the group and still contributing to the scheme was, immediately before31 July 1981 , under an enforceable obligation to execute the deed in order to bring into effect the rules. Want of execution by these companies does not, in my judgment, detract from the efficacy of the rules. Equity looks on that as done which ought to be done.”
“[I]f that property is to be treated as actually subject to those trusts, it must be so because the covenant in the deed of 1853 rendered that property so subject. The covenant, however, could not have that effect except in favour of some person entitled to enforce its performance. Equity, no doubt, looks on that as done which ought to be done; but this rule, although usually expressed in general terms, is by no means universally true. Where the obligation to do what ought to be done is not an absolute duty, but only an obligation arising from contract, that which ought to be done is only treated as done in favour of some person entitled to enforce the contract as against the person liable to perform it.”
“The Employer and the Trustees may at their discretion arrange for a pension being paid to a Member to be increased up to the limits set out in section 3 or 4 (as the case may be) and further increased by such amount as they may determine but not exceeding the same percentage as the percentage increase in the Index since payment commenced, provided that increases not exceeding three per cent. per annum compound may be paid whether or not the Index has risen by an equal amount.”
“A disponor (A) purports to make a disposition of property. The disposition cannot be effective unless associated with the exercise of a power vested in A and that A could properly have exercised in order to make the disposition. The disposition makes no mention of the power and does not purport to be an exercise of it. The effect of the principle and cases to which I have referred is that A’s intention to make the disposition justifies imputing to him an intention to exercise the power, provided always that an intention not to exercise the power cannot be inferred. If the requisite intention can be imputed, the court will treat the disposition as an exercise of the power. In the present case, Industries purported, in conjunction with Mr. Davis and Mr. Wardle, to bring into effect valid rules for the pension scheme. It was objected that Mr Parsons was a trustee whose concurrence was necessary. But Industries had power to remove Mr. Parsons as a trustee and could properly have exercised that power in order to bring the rules into effect. I can see no difference in principle between the position of A in my example and the position of Industries, nor any reason why the courts should be prepared to apply an ameliorating principle of equity only to dispositions of property. In my judgment, the principle is applicable in the present case, unless an intention on Industries’ part not to exercise its power of removal can be inferred.”
“The facts of the present case leave no real doubt but that (i) Mr. Parson’s name was included in the deed at a time when he was a trustee, (ii) his name was removed from the deed because everyone thought that on his resignation he had ceased to be a trustee and, (iii) Industries neither intended to remove him as a trustee nor intended not to remove him as a trustee; his removal was simply not in anyone’s mind. In these circumstances, in my judgment, the principle prayed in aid by [counsel for the members] applies. Industries intended to bring the rules into effect. If, contrary to my view, Mr. Parsons was still a trustee, equity will support that intention by imputing to Industries an intention to exercise its power of removal and by treating that power as exercised by Industries’ execution of the definitive deed.”
“The power of amendment reserved to the Trustees of the Interim Deed and LRT by clause 7 of that deed … is very wide and none of the four limitations in the proviso to the clause has any bearing on this issue. It is therefore in my view permissible to treat as an exercise of that power any deed executed by the Trustees of the Interim Deed and LRT which evinces a clear intention to achieve a result achievable by an exercise of that power so long as there is not shown to have been an intention not to exercise the power of amendment. In my view the Deed of Appointment satisfies those requirements. It is plain beyond argument that the intention of the Original Trustees and LRT was to substitute the LRT Trustee Company for the Original Trustees as the Trustees of the Interim Deed. Clause 2 of the Interim Deed reads ‘LRT hereby appoint the Trustees’ (defined as the Original Trustees) ‘to be the Trustees hereof.’ That is a provision of the Interim Deed susceptible of amendment under clause 7…. Moreover I see no difficulty in treating the Deed of Appointment as a direct exercise of the power of amendment. This obviates the difficulties correctly identified on behalf of Defendants other than LRT in a notional two stage exercise of the power of amendment, first, by creating a power to make the relevant appointment and then secondly by exercising that newly and notionally created power…. [T]hese mental gymnastics can in my view be avoided by treating the Power of Appointment as an exercise of the power of amendment in clause 7 of the Interim Deed. True it is that the parties to the Deed of Appointment had no such exercise of the power of amendment in mind but Davis v Richards & Wallington …, shows that is not conclusive.”
“Where trustees have attempted to use a power they did not in fact enjoy, the courts will not come to their rescue by treating their action as if they had been engaged in exercising a quite different power that they did actually possess.”
“The decision to be made on an advancement is … of a different character from a decision on an appointment: not whether the selected object is to benefit at all, but whether that person should receive his or her entitlement at an earlier time and possibly in a different manner and perhaps to the disadvantage of someone else who already has an interest in the fund.”
“A misdescription of a power which has otherwise been validly exercised is capable of remedy, if necessary, by an ordinary rectification suit. But in this case the trustees … purported to exercise a power which they did not possess. There is no basis upon which that ineffective act can be validated by means of the Court ascribing to the trustees an intention to exercise a materially different power which, with the Ponui precedent [which involved the exercise of a power of appointment] in front of them, they demonstrably did not exercise. Indeed, even if the contrast provided by the Ponui transaction had not been present, I do not consider the trustees could properly be treated as having exercised a power of a materially different kind requiring examination of materially different considerations.”
“Each whole-time permanent Employee who (a) is resident in the United Kingdom, and (b) has attained age 24 years but not 60 years if a male or age 55 years if a female, shall become a Member at … the 1st May coinciding with or next following the date on which he first satisfied the said conditions ….”
“Any Employee who does not fulfil all, or any, of the conditions in Rule S1 may be included on application subject to the agreement of the Employer and the Trustees on such date as the Trustees decide. Such Employee may be included either for benefits under Rule 6.1 or Rule 7.1 or both only or for such other benefits as the Trustees shall determine.”
“The Principal Employer and the Trustees may jointly from time to time without the consent of the Members by Deed alter cancel modify or add to any of the Rules or provisions of this Deed, provided that no such alteration cancellation modification or addition shall be such as would prejudice or impair the benefits accrued in respect of membership up to that time.”
“In my judgment, there can be no objection in principle to the validity of such amendments provided that they do not infringe the third proviso to the rule-amending power. In the case of the Courage Retail Managers’ Scheme they must not ‘vary or affect any benefits already secured by past contributions in respect of any Member without his consent in writing’; and in the case of the other two schemes they must not ‘reduce … the accrued pension of any employed member’ except in the circumstances specified. ‘Accrued pensions’ is defined in the rules to mean pensions based on salary at the relevant date. There was some dispute whether ‘benefits already secured by past contributions’ means the same thing, or includes the prospective entitlement to pensions based on final salary. In the absence of express definition, I see no reason to exclude any benefit to which a member is prospectively entitled if he continues in the same employment and which has been acquired by past contributions, and no reason to assume that he has retired from such employment on the date of the employer's secession when he has not. The contrary argument places a meaning on ‘secured’ which is not justified.”
“The contrary argument places a meaning on ‘secured’ and ‘accrued’ which is not justified.”
“any benefit to which a member is prospectively entitled if he continues in the same employment and which has been acquired by past contributions”
“on the evidence it seems clear that what is meant by the phrase ‘benefits which have accrued’ in the plan documents in this case does not include the amounts paid into the fund towards salary projections up to the time of the plan conversion.”
“In my view, a plain reading of the words ‘right to benefits which had accrued’ prior to January 1, 1990, is that the appellants had a right to have their pension benefit calculated taking into account their highest average earnings, including overtime earned prior to January 1, 1990. They had no right to any benefits resulting from anything that occurred after that date, whether those things were additional earnings, service, contributions or anything else that had not yet occurred.”
“In order to know whether an amendment can be made, the employer has to have some method of determining what the accrued benefits are, so that it can determine if they are adversely affected. The interpretation of the appellants … postpones the determination of the amount of the accrued benefits to some unknown future date. While many aspects of the administration of pension plans involve dealing with unknown future events, ‘the word “accrued” according to well recognised usage has, as applied to rights or liabilities the meaning simply of completely constituted’ (see Hydro-Electric Power Commission of Ontario and Ontario Power Co. of Niagara Falls v. Albright (1922), 64 S.C.R. 306 at 312, [1923] 2 D.L.R. 578 … ).”
“In my opinion, having regard to the provisions of secs. 29 and 30 of the plan, the trial judge was right in concluding that employees of Great-West who were members of the plan acquired on their retirement a vested or accrued right to their entitlements under the then existing plan, including annual pension increments.”
“The ancillary benefit provided by s.4.3 was contingent upon eligibility requirements and did not begin to accrue until a plan member met those requirements. The eligibility requirements at the time of the Amendment were (a) a minimum of ten years service and; (b) termination by Imperial for efficiency purposes. None of the Plaintiffs had been terminated at the time of the Amendment. As such, the Amendment did not reduce benefits which had accrued to the Plaintiffs and was therefore not in violation of s.11.1.”
“I cannot accept the Appellant’s submission that ‘prospective rights’ in this case must be distinguished from ‘vested rights’. After all, a vested right is capable of measurement and … is properly measured in the case at bar, given the language of the Plan, on the basis of ‘prospective calculations’.”
“even without the intervention of SWT, it may well be that the Trustee could refuse to pay the drivers a pension at a higher rate than that agreed with SWT.”
“in the circumstances of the present case, I consider that the Employers must establish not merely that there was an intention to create legal relations, but specifically an intention to create contractual relations. The reason why I say this is that the parties may have intended to create legal relations to be regulated by the applicable trust documents. What the Employers must establish is an intent to create contractual relations, so that the contract is binding even if its terms differ from those of the applicable trust documents.”
“In support of this argument, the Existing Members contend that there was no informed consent on the part of the Existing Members which would preclude the Existing Members from asserting a breach of trust applying the principles laid down by Wilberforce J in Re Pauling's Settlement Trusts[1962] 1 WLR 86 at 108: ‘the court has to consider all the circumstances in which the concurrence of the cestui que trust was given with a view to seeing whether it is fair and equitable that, having given his concurrence, he should afterwards turn round and sue the trustees: that, subject to this, it is not necessary that he should know that what he is concurring in is a breach of trust, provided that he fully understands what he is concurring in, and that it is not necessary that he should himself have directly benefited by the breach of trust.’”
“I accept these arguments. It is one thing to hold that an extrinsic contract may be enforced to supplement a trust deed where the deed does not contain any contrary provisions. It is quite another to say that an extrinsic contract may override contrary provisions in a trust deed unless the extrinsic contract amounts to consent on the part of the beneficiaries. In the present case I am not satisfied that the beneficiaries did consent for the following reasons: (i) they were unaware of the terms of clause 7(i) of the 1977 Deed [i.e. the power of amendment]; (ii) they received no advice in relation to it; (iii) it was not clearly explained to them what was happening to their final salary benefits; in particular (iv) they were not told how Mr Wolanski [an actuary] was going to calculate the transfer value and additional special contributions, and in particular the assumptions he would employ; (v) they were not given any real choice as to whether or not to consent; and (vi) at least in the case of some Existing Members, they received the impression that they would not be adversely affected by the change.”
“Those comments were directed at a case where the extrinsic contract did not amount to consent on the part of the beneficiaries, although it is not entirely clear what a contract without consent could be. Perhaps it means a contract where there is no vitiating element rendering it voidable. The Judge said nothing about a case where there was informed consent, whether or not the deed contains a contrary provision.”
“In light of recent developments in the pensions industry, the Partnership have decided to restructure the Scheme. With effect from6th April 1997 , the Trustees are introducing a Money Purchase (or Defined Contribution) category for all new members. However, members of the existing Final Salary (or Defined Benefit) Category will have the option to continue to accrue benefits on the existing basis or to transfer to the new category.”
“Most of the responsibility falls on the Trustees. The Partnership controls whether or not we have a pension scheme but the Trustees look after it.”
“What the Court has to determine is whether that is evidence of a new contract between shipowner and holder of the bill of lading. Since there is no evidence of any express agreement, it has to be inferred from the conduct of the parties. If their conduct is equally referable to and explicable by their existing rights and obligations, albeit such rights and obligations are not enforceable against each other, there is no material from which the Court can draw the inference.”
“it would, in my view, be contrary to principle to countenance the implication of a contract from conduct if the conduct relied upon is no more consistent with an intention to contract than with an intention not to contract.”
“The difficulty with such a formulation however is that the court is being asked to spell offer and acceptance out of conduct alone in a situation where the parties’ obligations were governed by a formal written contract pursuant to which the owners were at all times purporting to act. There was thus no apparent bilateral intention to vary or re-negotiate the express terms of the charter, as opposed to an apparent willingness on the part of the charterer to treat as valid a notice appropriate in form and purportedly served in compliance with the terms of the charter ….”
“The purpose of this letter is to confirm to members that the following changes will now take effect from1 July 2003 :- 1. Employees who wish to retain final salary provision will be required to contribute 5% of their annual Pensionable Salary to the Scheme …. 2. The annual accrual rate for pension benefits accruing from1 July 2003 will change from 1/70th to 1/80th of Final Pensionable Salary. 3. The Scheme Rules currently provide for annual increases to pensions in payment at the lower of 5% or the increase in the retail price index, subject to a minimum increase of 4% (subject to Revenue limits) regardless of the rate of inflation. The minimum increase of 4% will be removed for all pension benefits accruing from1 July 2003 onwards.”
“If we do not receive any completed forms from you by30 June 2003 , you will be treated as having refused the offer to either remain in the final salary section or join the money purchase section and will be treated as having left the Scheme with effect from1 July 2003 .”
“I understand that if I wish to continue my membership of the Final Salary category of the Scheme after1 July 2003 , I will be obliged to pay contributions of 5% of my Pensionable Salary to the Scheme. I hereby confirm that I wish to continue my membership of the Final Salary category of the Scheme subject to the terms of the Trust Deed and Rules of the Scheme as amended from time to time. In accordance with the Trust Deed and Rules of the Scheme as amended, I authorise and request Gleeds to deduct pension contributions direct from my salary or wage at the rate of 5% of Pensionable Salary … with effect from1 July 2003 until further notice.”
“Yes if you want to continue as a member of the final salary pension scheme. If you choose not to pay, you will not earn any more pension benefit from1 June 2003 . You will be treated as having left service at that date and your benefit entitlement will be calculated accordingly. The death in service benefits will no longer be available.”
“Even though we have been advised that we are permitted to implement this change, we do recognise the effect it will have on your own personal circumstances. We therefore propose making a one-off salary increase to all final salary Scheme members with effect from1st June 2006 , provided that you sign and return the enclosed extra copy of this letter by10 May 2006 .”
“What should you do next? First, you should carefully consider the contents of this letter and keep it safe with any other literature you may have regarding the Scheme. We would urge you to attend one of the scheduled sessions if you have a question that has not already been answered by a previous session. We would then ask you to sign and return the enclosed extra copy of this letter to confirm that you have received this letter and understand and accept the changes set out within it to Sheila Bell by no later than30 May 2006 . If you have any further queries about the changes outlined in this letter you may wish to consult an Independent Financial Adviser.”
“I confirm I have read and understood the contents of Gleeds’ letter dated30 March 2006 and accept the changes contained within it, which I understand will take effect on31 May 2006 .”
“I am signing this letter based on information provided by Gleeds in this letter and responses issued by Gleeds following the Question and Answer sessions held in Bristol, Nottingham and London offices relating to this issue in April 2006. I understand that my consent was not required as a pre-requisite to Gleeds closing the Final Salary Pension Scheme and I therefore reserve all rights should information issued by Gleeds prove to be incorrect.”
“Subject to subsection (5), where a person is entitled to a pension under an occupational pension scheme or has a right to a future pension under such a scheme — (a) the entitlement or right cannot be assigned, commuted or surrendered, (b) the entitlement or right cannot be charged or a lien exercised in respect of it, and (c) no set-off can be exercised in respect of it, and an agreement to effect any of those things is unenforceable.”
“[Counsel for the BBC] says that the BBC realises that Mr Bradbury does not accept its interpretation of the definition of Basic Salary as giving it power to determine that part of an increase in salary is not to be pensionable; but putting it at its very lowest, he says that it is an arguable point making Mr Bradbury’s right to an increased pension doubtful or disputed so as to fall squarely within the decision in IMG. It is merely a right that a member may have. I accept that it is an arguable point although, ultimately I think it is a bad point for the reasons which I have given, Not only is it an arguable point, but there is nothing to suggest that the BBC was acting other than in the belief that it had adopted the correct interpretation of the definition of Basic Salary in formulating its pay offer.”
“81 However, the fact that there was no compromise of an identified disputed issue does not, I consider, exclude the approach adopted by the Court of Appeal in IMG. Although that case involved a compromise, the reason why section 91 did not apply was not because there was a compromise (although that was the context of the analysis of section 91): rather, it was because there was no entitlement and no right which was alienated. It was the nature of the rights which the scheme member possessed which took the case outside section 91. 82 In the present case I consider that, whether the matter is viewed from the perspective of the BBC or from the perspective of members who accepted the offer of a pay increase subject to the 1% cap on pensionable pay, there would have been no alienation of any entitlement or right within section 91. 83 From the BBC's perspective, the definition of Basic Salary entitled it to do what it did. There would be no alienation of any entitlement or right at all. Further, it could not have been said by a member that the BBC's view of the meaning of Basic Salary was clearly wrong (albeit that I consider it is, in fact, wrong). There would have been, at the very least, a serious doubt about whether the BBC was wrong in the view it took. If a member had disputed the BBC's position, that dispute could then have been compromised by the member accepting the BBC's offer of a pay increase subject to the 1% cap and such a compromise would not have engaged section 91. 84 From the perspective of a member who accepted the offer and remained in his current Section of the Scheme, either he thought that the BBC had power to do what it did or he must have accepted that it was at least arguable that the BBC could do what it sought to do. He might have considered (if he thought about it at all) that it was arguable the BBC was entitled to do what it did in the light of the definition of Basic Salary; or he might have realised that he might not [be] entitled to any pay increase at all, and that by refusing the offer, he would end up with no salary increase and therefore no increase in Pensionable Salary either. In either case, his right to a future pension based on the full amount of an anticipated pay rise was no right at all; and by agreeing to a pay increase only part of which would be treated as pensionable, he did not alienate anything to which he was even prospectively entitled.”
“62. First, the pension scheme embodies not only the terms of a contract between individual members and the trustees but also a trust applicable to the fund comprising the contributions of members and surpluses derived from the past in which present and future members may be interested. Such trusts cannot be altered by estoppel because there can be no such estoppel binding future members. 63. Second, it is necessary to show that the principle is applicable to all existing members. I agree with Laddie J in ITN v Ward[1997] PLR 131 that it is not necessary for that purpose to call evidence relating to each and every member’s intention. But that will not absolve a claimant from adducing evidence to show that the principle must be applicable to the general body of members as such. 64. Third, as the formulation of the principle shows, what must be proved is that each and every member has by his ‘course of dealing put a particular interpretation on the terms of’ the Rules or ‘acted upon the agreed assumption that a given state of facts is to be accepted between them as true’. This involves more than merely passive acceptance. The administration of a pension scheme on a particular assumption as to the yardstick by which contributions or benefits are to be calculated may well give rise to a relevant assumption on the part of the trustees. I suggest that it requires clear evidence of intention or positive conduct to bind the general body of members to such an assumption. I doubt whether receipt of the benefit or payment of the contribution, without more, can be enough. It must not be overlooked that if the principle is applicable it may be used to increase the liability or reduce the benefit of a member as well as, in this case, the opposite.”
“What I am unable to accept is that the Existing Members ‘put a particular interpretation on’ the Plan’s governing documents or ‘acted upon the agreed assumption that’ they had given up rights to which they were entitled under those documents. On the contrary, I consider that the Existing Members did no more than passively accept the fait accompli presented by IMG on the basis that the Trust Deed and Rules had been amended.”