CMG PENSION TRUSTEES LIMITED v CGI IT UK LIMITED [2022] EWHC 2130 (Ch)

“2. An order pursuant to CPR 19, r 7 appointing the Claimant to represent all those persons actually or potentially entitled under the Scheme interested to argue that questions 26 to 32 above are to be answered in the manner that results in larger payments being made to members; that question 33.1 and 33.2.1 are to be answered in the affirmative and question 33.2.2 and 33.3 are to be answered in the negative; 3. An order pursuant to CPR 19, r 7 appointing the First Defendant to represent all current and former employers of the Scheme and all those persons actually or potentially entitled under the Scheme interested to argue that questions 26 to 32 above are to be answered in the manner that results in smaller or no payments being made to members; that question 33.1 and 33.2.1 are to be answered in the negative and questions 33.2.2 and 33.3 are to be answered in the affirmative.”

“(1) No rule must operate so as to deprive a person of short service benefit (whether a member himself, or a member's widow or widower or dependant) by reference to— (a) failure by him or any other person to make a claim for the benefit or for any payment due as benefit; or (b) failure by him or any other person, at any time after termination of pensionable service, to give any notice, or comply with any formality, required by the scheme as a condition of entitlement. (2) Sub-paragraph (1)(a) above is not to prevent reliance on any enactment relating to the limitation of actions; and in cases of failure to claim, the scheme may provide for the right to receive any payment to be forfeited in the event of its not being claimed within 6 years of the date on which it became due.”

“(1) Where the annual rate of a pension required to be provided by a scheme in accordance with section 13 or 17 would not exceed the prescribed amount and the circumstances are such as may be prescribed, the scheme may provide for the payment of a lump sum instead of that pension. (2) Neither section 13 nor section 17 shall preclude a scheme from providing for the earner's or the earner's widow's or widower's guaranteed minimum pension to be suspended or forfeited in such circumstances as may be prescribed.”

“(1) For the purposes of section 21(2) of the 1993 Act (suspension and forfeiture of guaranteed minimum pension) the circumstances in which a scheme may provide for an earner's or an earner's widow's or widower's guaranteed minimum pension to be suspended are— (a) that the pensioner is, in the opinion of the trustees of the scheme, unable to act by reason of mental disorder or otherwise and there is provision in the scheme for sums equivalent to the guaranteed minimum pension to be paid or applied, while the pensioner is so unable, for the maintenance of the pensioner or, at the discretion of the trustees, of the pensioner together with his dependants or of his dependants only, and to the extent that they are not so applied, to be held for the pensioner until he is again able to act or, as the case may be, for his estate; (b) that the pensioner is in prison or detained in legal custody, and there is provision in the scheme for sums equivalent to the guaranteed minimum pension to be paid or applied during such circumstances for the maintenance of such one or more of the pensioner's dependants as the trustees of the scheme may in their discretion determine; and (c) that the earner is re-employed by the employer who had previously employed him in contracted-out employment in respect of which the guaranteed minimum pension became payable or in any other employment to which the scheme paying the guaranteed minimum pension applies and there is provision in the scheme for the guaranteed minimum pension which becomes payable when the suspension is lifted to be increased in accordance with section 15(1) of the 1993 Act. (2) For the purposes of section 21(2) of the 1993 Act the circumstances in which a scheme may provide for an earner's or an earner's widow's or widower's guaranteed minimum pension (whether current or prospective) to be forfeited are— (a) that the person entitled to that pension has been convicted of— (i) an offence of treason, or (ii) one or more offences under the Official Secrets Acts 1911 to 1989 for which he has been sentenced on the same occasion to a term of imprisonment of, or to two or more consecutive terms amounting in the aggregate to, at least 10 years; (b) in the case of a widow's or widower's guaranteed minimum pension, that the earner by reference to whose contracted-out employment that pension is payable has been convicted of an offence of treason, or has been convicted of offences and has been sentenced to terms of imprisonment as set out in sub-paragraph (a)(ii); (c) in the case of a guaranteed minimum pension payable under a scheme for members of Her Majesty's forces, being a scheme for which the Secretary of State is responsible, that the person entitled to that pension or, as the case may be, the member of the forces whose widow or widower is currently or prospectively entitled to that pension, has in the opinion of the Secretary of State committed an act which is gravely prejudicial to the defence, security or other interests of the State; and (d) in the case of any payment of guaranteed minimum pension for which a claim has not been made, that a period of at least 6 years has elapsed from the date on which that payment became due.”

“Except in relation to GMPs and short service benefits, scheme documents are free to provide any other grounds of forfeiture which is not inconsistent with legislation (such as discrimination), even if not involving misconduct. We consider that a fortiori such provisions should be made void.”

“(1) 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. (2) Where by virtue of this section a person's entitlement to a pension under an occupational pension scheme, or right to a future pension under such a scheme, cannot, apart from subsection (5), be assigned, no order can be made by any court the effect of which would be that he would be restrained from receiving that pension.”

“(1) Subject to the provisions of this section and section 93, an entitlement to a pension under an occupational pension scheme or a right to a future pension under such a scheme cannot be forfeited. (2) Subsection (1) does not prevent forfeiture by reference to— (a) a transaction or purported transaction which under section 91 is of no effect, whether or not that event occurred before or after the pension became payable. (3) Where such forfeiture as is mentioned in subsection (2) occurs, any pension which was, or would but for the forfeiture have become, payable may, if the trustees or managers of the scheme so determine, be paid to all or any of the following— (a) the member of the scheme to or in respect of whom the pension was, or would have become, payable, (b) the spouse, civil partner, widow, widower or surviving civil partner of the member, (c) any dependant of the member, and (d) any other person falling within a prescribed class. (4) Subsection (1) does not prevent forfeiture by reference to the pensioner, or prospective pensioner, having been convicted of one or more offences—(a) which are committed before the pension becomes payable, and (b) which are— (i) offences of treason, (ii) offences under the Official Secrets Acts 1911 to 1989 for which the person has been sentenced on the same occasion to a term of imprisonment of, or to two or more consecutive terms amounting in the aggregate to, at least 10 years, or (iii) prescribed offences. (5) Subsection (1) does not prevent forfeiture by reference to a failure by any person to make a claim for pension— (a) where the forfeiture is in reliance on any enactment relating to the limitation of actions, or (b) where the claim is not made within six years of the date on which the pension becomes due. (6) Subsection (1) does not prevent forfeiture in prescribed circumstances. (7) In this section and section 93, references to forfeiture include any manner of deprivation or suspension.”

“(1) Subject to subsection (2), section 92(1) does not prevent forfeiture of a person's entitlement to a pension under an occupational pension scheme or right to a future pension under such a scheme by reference to the person having incurred some monetary obligation due to the employer and arising out of a criminal, negligent or fraudulent act or omission by the person. (2) A person's entitlement or right may be forfeited by reason of subsection (1) to the extent only that it does not exceed the amount of the monetary obligation in question, or (if less) the value (determined in the prescribed manner) of the person's entitlement or right. (3) Such forfeiture as is mentioned in subsection (1) must not take effect where there is a dispute as to the amount of the monetary obligation in question, unless the obligation has become enforceable under an order of a competent court or in consequence of an award of an arbitrator or, in Scotland, an arbiter to be appointed (failing agreement between the parties) by the sheriff. (4) Where a person's entitlement or right is forfeited by reason of subsection (1), the person must be given a certificate showing the amount forfeited and the effect of the forfeiture on his benefits under the scheme. (5) Where such forfeiture as is mentioned in subsection (1) occurs, an amount not exceeding the amount forfeited may, if the trustees or managers of the scheme so determine, be paid to the employer.”

“(A) The Principal Company hereby confirms the establishment of the Scheme as provided by the Interim Trust Deed aforesaid the objects whereof are to provide Relevant Benefits for the Members of the Scheme from time to time in accordance with these presents and the Rules as from time to time amended. (B) The Principal Company covenants with the Trustees to pay or cause to be paid to the Trustees all contributions to be contributed to the Fund in accordance with the Rules together with any expenses of administration which the Trustees cannot meet out of the assets held by them without prejudicing the benefits to be provided under the Scheme. (C) All contributions under the Rules and other assets of the Scheme and any other moneys or assets received or to be received in respect of or for the purposes of the Scheme shall be vested in the Trustees who shall stand possessed thereof upon irrevocable trust to hold apply and dispose of the same as provided by the Trust Deed and the Rules.”

“The Trustees may at any time with the consent of the Principal Company and without the concurrence of the Members by deed alter or repeal all or any of the provisions of this Deed or of the Rules for the time being in force and may·-make any new provisions to the exclusion of or in addition to all or any of the existing provisions and any provisions so made shall be subject in like manner to be altered or modified. Any alteration, repeal or addition which may be effected in the exercise of the power herein contained shall be notified to the Members by posting the same in some conspicuous place in the works and offices of the Employers provided always that: (i) no alteration, repeal or addition shall without the written consent of the Member operate so as to affect or prejudice the rights or interests of any person already a Member or any person receiving benefit by virtue of the Membership of any deceased Member insofar as they concernbenefits secured in respect of Service prior to the date of such alteration, modification or addition except insofar as any such operation (whether retrospective or otherwise) may be necessary in order to secure approval or continued approval of the scheme under the Finance Act 1970 or other relevant legislation under which the approval of the Inland Revenue Authorities to the Scheme has been received or is sought. (ii) no alteration, repeal or addition shall operate so as to adversely affect or prejudice any pension in course of payment at the date of such alteration, modification or addition or to adversely affect or prejudice the rights orinterests of any Member whose Participating Membership had ceased at or prior to the date of such alteration, modification or addition. (iii) there shall be no alteration which shall result in the return to any of the Employers of any part of the Fund except for a fortuitous surplus upon the winding-up of the Scheme.”

“The Trustees with the consent of the Principal Company may (i) increase the pension or other benefits payable under the Rules to or on the death of any Member (ii) provide pension for the surviving spouse or any other Dependant of any Member and increase the same (iii) provide pension and other benefits to or on the death of any former employee of any of the Employers and increase such pension Provided that (a) the total pension or other benefits payable to or on the death of any Member or to any surviving spouse or other Dependant of any Member shall not exceed any maximum specified in the Rule headed Limitation of Benefits, and (b) any lump sum payable under the provisions of Rule 9 (c) and (d) shall not be increased (other than as a consequence of an earlier increase in the Member's pension to which any lump sum is related) and no further lump sum shall be payable to the Member after the commencement of pension payments to him, and (c)before granting any pension or other benefit under (iii) above the Trustees shall obtain confirmation from the Commissioners of Inland Revenue that the approval of the Scheme under Chapter II of Part II of the Finance Act 1970 shall not be prejudiced, and (d)the Employer shall if required by the Trustees pay such additional contributions as may be necessary to provide such additional benefits under (i) (ii) or (iii) above.”

“(b) Notwithstanding anything contained in these Rules a Member's Employer shall be entitled to a charge or lien on or set off against (as may be appropriate) any benefit or prospective benefit to which the Member may become entitled under the provisions of these Rules for the purpose of enabling the Employer to obtain the discharge by the Member of some monetary obligation due to the Employer and arising out of a criminal, negligent or fraudulent act or omission by the Member. Provided that: (i) in respect of any such obligation, the amount recovered by the Employer out of the Fund shall be limited to the actuarial value of the Member’s accrued benefits (whether actual or prospective) at the time of such recovery or the amount of the obligation whichever shall be the less (subject to any different agreement in writing between the Employer and the Member), and (ii) the Member shall be entitled to a certificate showing the amount recovered and its effect on his benefits or prospective benefits, and (iii) in the event of any dispute as to the amount to be recovered the Employer shall not be entitled to enforce such charge lien or set off except after the obligation has become enforceable under an order of a competent court or the award of an arbitrator or in Scotland an arbiter to be appointed (failing agreement between the parties) by the Sheriff (iv) notwithstanding (i) above the Employer shall have no entitlement to recovery out of the Fund in respect of any benefits or prospective benefits granted in relation to a transfer payment to the Fund in accordance with the provisions of Clause 15 of the Trust Deed.”

“If a Member becomes bankrupt or attempts to assign charge or in any way to anticipate other than as provided by these Rules the benefits to which during his lifetime he may be entit1ed under the Scheme then all rights and benefits defined by the Rules in respect of such Member shall vest in the Trustees who in cases of hardship may at their discretion apply such amounts as would otherwise be due to the Member in such manner and in such proportions as they may decide for the benefit of the Member or his Dependants provided that no such payment shall be made directly or indirectly to or for the benefit of any purported assignee.”

“18.1 Non-Assignability The benefits under the Scheme are strictly personal and may not be assigned, whether in security or otherwise mortgaged. or otherwise disposed of except as provided in the Rules. 18.2 Bankruptcy Or Attempted Anticipation Of Benefits If a Member becomes bankrupt or attempts to assign charge or in any way to anticipate other than as provided by these Rules the benefits to which during his lifetime he may be entitled under the Scheme then all rights and benefits defined by the Rules in respect of such Member shall vest in the Trustees who in cases of hardship may at their discretion apply such amounts as would otherwise be due to the Member in such manner and in such proportions as they may decide for the benefit of the Member or his Dependants provided that no such payment shall be made directly or indirectly to or for the benefit of any purported assignee.”

“20.1 Benefit Lien 20.1.1 Subject to Rules 23 and 24 the Trustees at the request of the Principal Employer may reduce the benefit entitlement in respect of a Member under the Scheme by an amount equivalent to any debt or liability due to an Employer arising out of the Member's criminal, negligent or fraudulent act or omission provided that (i) the amount recovered shall not exceed the lesser of (a) the amount of the debt or liability, and (b) the actuarial value calculated by the Trustees on a basis certified as reasonable by an Actuary of the actual or prospective benefits in respect of the Member under the Rules on the date on which the debt or sum is established, (ii) any benefit derived from a transfer value received under Rule 13.1 shall be exempted from the provisions of this Rule unless the Occupational Pension Board specifically consent otherwise, (iii) the Member shall be given a certificate by the Trustees showing the amount recovered and the effect on his benefit entitlement, and (iv) in the event that the Member and the Employer are in dispute as to the amount due to be recovered the Trustees shall only be enabled to act in the foregoing terms after receiving satisfactory evidence of either the Member's acceptance in writing or an order enforceable in a court of law or the award of an arbitrator or arbiter, of the amount to be recovered. 20.2 Benefit Forfeiture Notwithstanding Rule 24 if a benefit or instalment of benefit is not claimed by or on behalf of the person entitled to the benefit or instalment in accordance with these Rules within 6 years of its date of payment it shall be retained by the Trustees for the purposes of the Fund.”

“(a) The amount of pension payable to the widow shall not exceed the Maximum Widow's, Widower's or Dependant's Pension nor shall the provision of any pension payable to any other person under Rule 9.0 cause this limit to be exceeded. (b) No pension shall be payable if the whole of the pension in respect of the Member has been commuted for a cash sum in accordance with the provisions of Rule 7.2. (c) In cases where at the time of the Member's death he was not living with his lawful spouse (and whether or not such spouse was dependent upon the Member for the provision of all or any of the ordinary necessaries of life) the Trustees shall have a discretion to pay a pension not exceeding the difference between the amount of pension payable under Rule 9.1 above and the amount of GMP (if any) payable to his lawful spouse in accordance with the provision of the paragraph below to any other Dependant of the Member selected by them and to the extent that they exercise the discretion hereby conferred the rights of the lawful spouse of the Member shall be abrogated in whole or in part, as the case may be. The Widow's GMP or Widower's GMP, as appropriate, in respect of a Contracted-out Member shall be payable to the spouse and only the value of the pension in excess of the Widow's GMP or Widower's GMP shall be applied to provide pension of the amount calculated by the Administrator on the life of any one or more of the Member's Dependants which the Trustees in their absolute discretion shall decide. (d) If a Member marries after termination of his Pensionable Service and dies within six months of such marriage, the pension payable to a spouse under Rule 9.1 shall not exceed the Widow's GMP or Widower’s GMP. (e) Where a surplus arises under this Rule on account of the operation of conditions (a) or (c) above, it shall be retained by the Trustees for the purposes of the Fund. (f) If at the date of payment of the widow's pension the aggregate amount of pension payable to the widow under the Scheme and all other retirement benefit schemes {as defined in Section 611(1) of the Taxes Act) relating to the Employer does not exceed £104 per annum (or any other amount prescribed by regulations made under Section 77(5)(6) of the 1993 Act and consistent with Revenue Approval), an equivalent cash sum calculated by the Trustees on a basis certified as reasonable by an Actuary may be paid to the widow in lieu of such widow's pension under the Scheme.”

“(i) the relevant provisions of the Former Definitive Deed shall apply in respect of the payment of any benefit or instalment thereof which was due to be made prior to the Revision Date (ii) each person who on the Revision Date is under the Former Definitive Deed – (a) in receipt of a Pension or (b) entitled to payment of a deferred Pension which has not commenced to be paid or (c) contingently entitled to payment of a Pension or other benefit on the death of a person to whom (a) or (b) above applies is entitled under the Principal Deed to a Pension or other benefit of the same amount payable at the same time for the same period and subject to the same guarantee as the Pension or other benefit to which that person is entitled under the Former Definitive Deed and in its application to such person any reference in the Principal Deed to a Member or other beneficiary shall be construed accordingly”

“3.1 General restrictions The benefits payable under or by reference to rule 3 shall be subject to any other provision in the Principal Deed affecting the amount or payment thereof and to the provisions of any order made by a United Kingdom court in consequence of the Member's divorce 3.2 Pension on Retirement at Normal Retirement Date On the Normal Retirement Date an Active Member shall be entitled to a Pension equal in amount to the Retirement Pension and payable for life from the Normal Retirement Date in accordance with and subject to rules 3.4 and 3.6 and such Pension shall if necessary be increased to an amount which satisfies the requirements of section 87(3) of the Pension Schemes Act”

“3.7 Commutation Option A Member who on his Retirement Date is entitled to a Pension under rule 3 may by written request to the Trustees on or before his Retirement Date and subject to rule 2.4 elect to commute such Pension or part thereof for a lump sum not greater in amount than the Retirement Lump Sum and thereupon such Pension shall be reduced by the pension equivalent (calculated in accordance with rule 3.8) of the lump sum payable or cancelled as appropriate PROVIDED THAT - (i) the Trustees shall subject to rule 5.1 commute any Pension which when aggregated with any Pensions payable to that Member from all Associated Schemes (as defined in Schedule I) is not more than the Trivial Amount whether the Member so requests or not (ii) the Trustees may at the Member's written request and with the agreement of the Board of Inland Revenue (where required) commute his Pension or any part thereof if he is in exceptionally serious ill health (that is to say Incapacity which in the opinion of the Trustees acting on the advice of a registered medical practitioner reduces the Member's expectation of life to less than one year) (iii) any lump sum payable hereunder shall not be paid before the Retirement Date EXCEPT THAT - (a) in respect of a Member other than a Class A Member (as defined in Schedule I) who is entitled to a Pension under rule 3.4 such lump sum may with his Employer's consent be paid at any time on or after the Normal Retirement Date but if a lump sum is paid under the Scheme before a Member's Retirement Date no further lump sum shall be payable to the Member hereunder and (b) in respect of a Member who is entitled to Preserved Pension whereof payment is to commence before Normal Retirement Date in accordance with rule 3.21 such lump sum may be paid on the date whereon payment of the Preserved Pension is to commence (iv) the Trustees shall commute any Pension or part of such Pension which is required to be commuted under the provisions of an order made by a United Kingdom court in consequence of the Member's divorce”

“3.9 Death in Service lump sum benefits In the event of the death of a Member in Service (other than a Member who has ceased to be an Active Member in accordance with rule 1.5 or 1.6) there shall be payable in accordance with and subject to rule 3.12 the Lump Sum Death Benefit and if such death occurs before Normal Retirement Date a refund of contributions equal to the Member's Fund ……. 3.12 Payment of Lump Sum Death Benefits The Trustees shall have power to pay or apply any lump sum which may be payable on the death of a Member to or for the benefit of all or any one or more to the exclusion of the other or others and in such proportions as the Trustees decide of - (a) the Member's spouse or (b) the parents or grandparents (whether by blood or adopted) of the Member (c) any person (except the Member) who is the child or remoter issue (whether by blood or adopted) of such grandparents and the spouse of any such person (d) any other person or persons (including for this purpose any charity society club or other similar organisation) whom the Member has in a written notice to the Trustees nominated as a beneficiary of such lump sum or part thereof or (e) the personal representatives of the Member PROVIDED THAT – ………. (ii) if the Crown the Duchy of Cornwall or the Duchy of Lancaster shall become entitled directly or indirectly to the Member's estate to which apart from this proviso such lump sum or any remaining part thereof would be payable the same shall forthwith be forfeited and shall be applied by the Trustees to any other object of the Scheme”

“3.27 The Trustees shall have power with the written consent of the Principal Employer - (a) to increase the amount of any benefit which is payable to or in respect of a Member and which is less than the maximum amount permitted by Schedule I in respect of such benefit to an amount not exceeding the said maximum amount and (b) to provide for Dependants of a deceased Member a benefit or benefits (being relevant benefits as defined in section 612(1) of the Taxes Act) for which provision is not otherwise made hereunder and increase the same (c) to provide Pension and other benefits (being relevant benefits as aforesaid) to or on the death of any fonner Employee of any of the Employers and increase the same PROVIDED THAT – ……… (iii) the Employer or the Member in respect of whom benefits are being augmented shall if required by the Trustees pay such additional contributions (if any) as are determined by the Trustees acting on the advice of the Scheme Actuary to be necessary for the provision of such increase or benefit”

“5.6 Forfeiture or suspension of benefits Subject to Schedule II the Trustees shall have power to forfeit or suspend the payment of any Pension payable hereunder in the event of the beneficiary thereof charging or attempting to assign the same or such beneficiary's bankruptcy and in the event of such forfeiture or suspension the Trustees may in their absolute discretion pay or continue the payment of the benefit so forfeited or suspended or any part thereof to or for the benefit of any one or more to the exclusion of the others of (a) the beneficiary or (b) the beneficiary's spouse or (c) any Dependent Child of the beneficiary who has not attained age 18 or (d) any other individual who in the opinion of the Trustees is dependent on the beneficiary for maintenance and support at the date of such forfeiture or suspension PROVIDED THAT no payment of the benefit shall be made to or for the benefit of any individual to whom the benefit was charged or to whom it was attempted to assign the benefit 5.7 Charge on benefits The Trustees shall have power subject to rule 5.8 at the request of an Employer to exercise a charge lien or set off against any benefit to which a Member employed by such Employer is entitled PROVIDED THAT- (i) the debt recovered from the Member in consequence of the exercise of such power shall not exceed the lesser of the amount which the Trustees acting on the advice of the Scheme Actuary determine as the cash value of the charged benefit on the date whereon such debt was incurred or the amount of the debt owed to the Employer by the Member (ii) if the said debt is disputed such power shall not be exercised until the debt becomes enforceable by order of a person or court of competent jurisdiction or the award of an arbitrator or arbiter in Scotland (iii) the Trustees shall give the Member a certificate showing the debt recovered by the Employer and the reduction (if any) in the said benefit 5.8 No charge lien or set off shall be exercised under rule 5.7 against - (a) Guaranteed Minimum Pension (b) the benefit attributable to a Transfer Value (c) any other benefit unless the debt due to the Employer is the result of a criminal fraudulent or negligent act or omission by the Member ……….. 5.11 Benefit forfeiture Notwithstanding Schedule II if a benefit or instalment of benefits is not claimed by or on behalf of the person entitled to the benefit or instalment in accordance with these Rules within 6 years of its date of payment it shall be retained by the Trustees for the purposes of the Scheme”

“(a) the amount calculated as 1/720 of Pensionable Salary for each complete month of the aggregate of the Member’s Pensionable Service completed prior to 1 April 1997 Past Pensionable Service (if any) and Transferred Pensionable Service (if any) received and accepted under the Scheme prior to 1 April 1997 (b) the amount calculated as 1/960 of Pensionable Salary for each complete month of the aggregate of the Member's Pensionable Service completed after 31 March 1997 and Transferred Pensionable Service (if any) received and accepted under the Scheme after 31 March 1997 (c) the Pension purchased by the Voluntary Contributions (if any) paid by the Member and (d) in respect of an Active Member for whom a Transfer Value has been received and accepted under the Scheme the Pension which in the opinion of the Trustees acting on the advice of the Scheme Actuary is purchased by such Transfer Value”

“13 In the trilogy of cases, Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900, Arnold v Britton [2015] UKSC 36; [2015] AC 1619 and Wood v Capita Insurance Services Ltd [2017] UKSC 24; [2017] AC 1173, this court has given guidance on the general approach to the construction of contracts and other instruments, drawing on modern case law of the House of Lords since Prenn v Simmonds [1971] 1 WLR 1381. That guidance, which the parties did not contest in this appeal, does not need to be repeated. In deciding which interpretative tools will best assist in ascertaining the meaning of an instrument, and the weight to be given to each of the relevant interpretative tools, the court must have regard to the nature and circumstances of the particular instrument. 14 A pension scheme, such as the one in issue on this appeal, has several distinctive characteristics which are relevant to the court’s selection of the appropriate interpretative tools. First, it is a formal legal document which has been prepared by skilled and specialist legal draftsmen. Secondly, unlike many commercial contracts, it is not the product of commercial negotiation between parties who may have conflicting interests and who may conclude their agreement under considerable pressure of time, leaving loose ends to be sorted out in future. Thirdly, it is an instrument which is designed to operate in the long term, defining people’s rights long after the economic and other circumstances, which existed at the time when it was signed, may have ceased to exist. Fourthly, the scheme confers important rights on parties, the members of the pension scheme, who were not parties to the instrument and who may have joined the scheme many years after it was initiated. Fifthly, members of a pension scheme may not have easy access to expert legal advice or be able readily to ascertain the circumstances which existed when the scheme was established. 15 Judges have recognised that these characteristics make it appropriate for the court to give weight to textual analysis, by concentrating on the words which the draftsman has chosen to use and by attaching less weight to the background factual matrix than might be appropriate in certain commercial contracts: Spooner v British Telecommunications Plc [2000] Pens LR 65, Jonathan Parker J at [75]–[76]; BESTrustees v Stuart [2001] Pens LR 283, Neuberger J at [33]; Safeway Ltd v Newton [2017] EWCA Civ 1482; [2018] Pens LR 2, Lord Briggs, giving the judgment of the Court of Appeal, at [21]–[23]. In Safeway, Lord Briggs stated ([22]): “the Deed exists primarily for the benefit of non-parties, that is the employees upon whom pension rights are conferred whether as members or potential members of the Scheme, and upon members of their families (for example in the event of their death). It is therefore a context which is inherently antipathetic to the recognition, by way of departure from plain language, of some common understanding between the principal employer and the trustee, or common dictionary which they may have employed, or even some widespread practice within the pension industry which might illuminate, or give some strained meaning to, the words used.”

“Increases in the cost of living may be measured by the index of retail prices published by the Department of Employment or by any other suitable index agreed for the particular scheme by the Superannuation Funds Office.”

“29. As it seems to me, however, the approach indicated by, at least, Rainy Sky, Arnold v Britton, Wood v Capita, and Barnardo’s is clear. In construing a pension scheme deed, one starts with the language used and identifies its possible meaning or meanings by reference to the admissible context, adopting a unitary process to ascertain what a reasonable person with all the background knowledge reasonably available to the parties at the time would have understood the parties to have meant. If, however, the parties have used unambiguous language, the court must apply it (see Lord Clarke at [19] in Rainy Sky), and the context of a pension scheme deed is “inherently antipathetic to … [giving] some strained meaning to … the words used” (Lord Briggs at [22] in Safeway, approved by Barnardo’s at [15]). ……… 33. Moreover, the process of corrective construction adopted, in the alternative, by the judge at [137] is only normally adopted where there really is an obvious mistake on the face of the document. There is no obvious mistake here as there was, for example, in Mannai as to the date or in Doe d Cox v Roe as to the name of the pub. The objective observer might well think that the power could have been more felicitously drafted, but that is not enough to allow the court to depart from the clear language, on the unequivocal authority of Rainy Sky and the later Supreme Court decisions I have cited. That is particularly so when the rules of a pension scheme are being interpreted.”

“But those cases have also made entirely clear that one cannot jettison the language used by the parties. As both my Lords have referred to, the consistent teaching of the Supreme Court is that one does not get into the question of choosing which interpretation is more consistent with business common sense unless there are two rival interpretations available: see Rainy Sky at [21]–[30] per Lord Clarke JSC, where the entire passage is about the consequences of a term being “open to more than one interpretation”, especially at [23] (“Where the parties have used unambiguous language, the court must apply it”); Arnold v Britton at [17]–[18] per Lord Neuberger PSC (“commercial common sense and surrounding circumstances … should not be involved to undervalue the importance of the language … [the court is not justified in] … searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning”), and at [77] per Lord Hodge JSC (“there must be a basis in the words used and the factual matrix for identifying a rival meaning”). These statements were all made in the context of construction of contractual provisions, but they apply at least as strongly to the construction of pension schemes where there are various factors which make the context “inherently antipathetic” to departing from the plain language of a provision (Safeway at [22] per Lord Briggs JSC), and which justify giving weight to textual analysis (Barnardo’s at [15]). It is true that Millett J said as long ago as 1987 in Courage Group’s Pension Schemes, Re [1987] 1 WLR 495 at 505 that the provisions of a pension scheme “should wherever possible be construed to give reasonable and practical effect to the scheme”, but the important words for present purposes are “wherever possible”.”

“In a case where the scope of a power of amendment and the validity of a particular amendment are in issue, examination of the history of the matter is plainly permissible and indeed indispensable. In other cases my instinct would be, like Rimer J, to stick to the current text as a general rule, while bearing in mind that the text of any long-established pension scheme is likely to be a patchwork. There is a serious policy issue here: it is often hard enough for trustees and their advisers (and even harder for members or pensioners who may not have easy access to advice) to interpret a pension scheme as it stands, without also having to delve into the archaeology of the scheme.”

“33. That passage was not directed to the situation which arises in the present appeal, where a clause in the original trust deed is adopted again when the deed is revised and replaced by a new trust deed, albeit one containing, to all and intents and purposes, the same clause and the question as to the meaning of the clause is one to be asked at the present time. Here clause 30 formed part of trust deed at all material times, but new trust deeds were adopted in substitution for the previous trust deed in 1985, 1994, 2001 and 2007. If an amendment is now proposed to deal with the current deficit, the question will be whether that amendment can now be carried out under that clause as it stands today. 34. I accept Mr Spink’s submission that, even though the very same clause is effectively re-adopted in the same form, its meaning may change on each re-introduction if the context in which it is re-adopted is materially different. Its meaning may be narrowed, or it may equally well have been widened, because of changes in the relevant background circumstances which fall to be taken into account in interpretation. Likewise I would also accept, as did the judge in paragraph 97 of his judgment, that it is possible that the meaning of a clause changes on re-adoption because there has been some material change in the scope or effect of some other clause in the period between its introduction and its re-introduction that has an impact on it. The case of Thellusson v Viscount Valentia [1907] 2 Ch 1, cited by the judge at paragraph 93 of his judgment, is an example of the narrowing of the meaning of a phrase as a result of a subsequent change in other wording of a document. The question for this court in that case was whether the rules of the Hurlingham Club could be altered so as to remove pigeon-shooting as one of its main objects. When the Club was set up, its sole purpose was ‘providing a ground for pigeon-shooting’ but subsequently words were added to extend the purpose of the Club to other sports, such as polo. Although the power of amendment could not be used to change the purposes of the Club fundamentally, the provision of a ground for pigeon-shooting was no longer the sole purpose of the Club. The report is a very short one and there is no explanation as to what changes had taken place in the Club’s activities. If there had been evidence that they had changed before the amendment to the purpose of the Club, that evidence would have been admissible on the interpretation of the words ‘providing a ground for pigeon-shooting’ because that phrase, following the amendment to include sports such as polo, fell to be interpreted in a new context. The more likely inference, however, from the re-adoption of a clause without any material change is that the clause retained its meaning without any material change. 35. Thus the meaning of a clause which is re-adopted from time to time has additionally to be considered in the context of circumstances subsequent to the date of its original adoption. It follows that regard should be had both to relevant circumstances at the date of its original adoption and to relevant circumstances at each subsequent re-adoption. Those circumstances can then be weighed in the balance to assess the impact of all the relevant circumstances on the interpretation exercise in hand. In this case, the most recent re-introduction of clause 30 was in 2007. However, where, as here, it is said that the meaning has changed as a result of some event occurring prior to its introduction or re-introduction, and it is common ground that nothing material had happened since, it may be convenient to take the circumstances at the time of the execution of that deed. So, in this case, the parties have taken the date of the adoption of the changes to the trust deed and rules in 2001 as the date at which the meaning of clause 30 should be ascertained, even though any further amendment would have to be within the scope of clause 30 at the time that it is sought to effect an amendment in reliance on this clause.”

“I should add that Mr De Garr Robinson sought comfort from the heading to clause 2 (“Conditionality”). I do not consider that it helps. First, in very general terms that clause is about conditionality, but that general proposition does not help to decide the importance that the parties placed on any particular part of clause 2. For example, clause 2.2 required Gregory to insure the development once the Acquisition Condition had been satisfied. But it was not (and in my judgment could not have been)suggested that a failure to insure would have meant that the remainder of the agreement for lease was incapable of coming into effect. Second, despite the heading, all the provisions of clause 2 are immediately binding. Third, clause 1.1.8 says in terms that the headings are not to affect the interpretation of the agreement. The cases are divided on the question whether in these circumstances a heading should be taken into account (SBJ Stephenson Ltd v Mandy [2000] FSR 286, 297 and Doughty Hanson & Co Ltd v Roe [2009] BCC 126 § 71 say “Yes”, while Orleans Investments Pty Ltd v MindShare Communications Ltd [2009] NSWCA 40 § 68 says “No”). Where, as here, the contract says in terms that headings “shall not affect the interpretation” it seems to me that respect for party autonomy means that the headings cannot be allowed to alter what would otherwise have been the interpretation of the clause in question.”

“Mr Grant appearing for Mr Scragg referred me to an extract from Lewison, The Interpretation of Contracts 6th ed & supp (2017), para 5.13 which states that where the contract states expressly that the headings are not to affect its interpretation the cases are divided as to whether they can be used as an aid by the court. The two cases cited there where the court did take account of headings despite a contractual provision stating that they were for convenience only, SBJ Stephenson Ltd v Mandy [2000] FSR 286 and Doughty Hanson & Co Ltd v Roe [2009] BCC 126, do not, in my view, assist Mr Scragg. In the former case, the heading of a post-termination non-disclosure clause in an employment contract referred to “Confidential information” but the wording of the clause imposed a prohibition on disclosure simply of information, without the qualifying adjective that it protected only confidential information. A challenge to the width of the clause on the grounds that it purported to restrict disclosure of all information was rejected on the grounds that convenience included telling the reader at a glance what the clause is all about. Mann J in the latter case referred to the heading being convenient because it is descriptive of what the clause is about. In the present case Mr Scragg is trying to rely on the sub-heading for much more than an indication of what rule 15.1.3 is generally about, namely the trustee company’s stage of the application.”

“As Mr Spink said, all these cases turn on the construction of the particular terms used in the scheme in question and, save insofar as they lay down general principles, no direct assistance can be obtained from them. Indeed,there is very longstanding authority that on questions of construction reference to other decisions on different words in other instruments is a practice to be deplored: see the classic statement of Sir George Jessel MR in Apsden v Seddon (1874-75) LR 10 Ch. App. 394 at 397: “No Judge objects more than I do to referring to authorities merely for the purpose of ascertaining the construction of a document. That is to say, I think it is the duty of a Judge to ascertain the construction of the instrument before him and not to refer to the construction put by another Judge upon an instrument perhaps similar but not the same.”

“such Payment is to be forfeited or payment thereof suspended” and “shall be forfeited or payment thereof suspended”

“175. I do not accept Mr Legge's submission that clause 25 operates as a forfeiture clause or a time-bar clause. The clause does not contain any wording which directly deals with the forfeiture of an entitlement to be paid arrears of benefits. Similarly, the clause does not contain any wording which operates as a time-bar on claims for payment of arrears of benefit. It is likely that the clause was intended to deal with orphaned money which ought to have been paid, but which could not be paid, to a missing beneficiary. In such a case, the Trustee would have surplus funds which it might wish to apply for a useful purpose rather than simply retain them indefinitely. It may be that the draftsman of the clause assumed, rightly or wrongly, that after six years from a payment accruing due, a claim to arrears would be statute barred and the clause was drafted on that basis. In any event, clause 25 does not in terms provide for a forfeiture or a time-bar. The absence of wording providing for forfeiture is particularly striking in view of the references to forfeiture in clause 23. It is difficult to think that the draftsman of clause 25 thought that he was providing for forfeiture of unclaimed payments but did not need to say expressly that was what he wanted to achieve. 176. If clause 25 were to be construed so that it dealt only with sums due to missing beneficiaries, then the case for reading in words of forfeiture or a time-bar would be stronger. However, Mr Legge submits that clause 25 also deals with cases where the Plan has been administered on the wrong basis and members have been underpaid for a considerable period of time. Mr Legge makes that submission because he wishes to rely on clause 25 in this case which is not a case of missing beneficiaries. In a case where the Plan has been administered on the wrong basis and arrears have built up, I am certainly not persuaded that words should be read into clause 25 to give the Trustee a power to forfeit the arrears of pension due more than six years earlier or to allow the Trustee to rely on a time-bar to claims for such arrears. There is considerable force in Mr Short's submissions that where the Plan has been administered on the wrong basis for a considerable period of time, the Plan will not have been funded on a different basis which has generated a fund to be applied pursuant to clause 25. The likelihood will be that there will be no such fund. The construction contended for by Mr Legge would involve changing a clause dealing with the application of a fund to a clause which does not deal with the application of a fund but which instead provides for forfeiture of, or a time-bar in relation to, the rights of the beneficiaries. 177. I conclude that clause 25 does not permit the Trustee to take steps to apply monies to one of the purposes specified in the clause and then to say that beneficiaries have thereby lost their rights to be paid arrears of payment which accrued due more than six years earlier.”

“But I should say at this stage, it may be the fault is entirely ours: we remain in a state of genuine uncertainty as to the precise nature of my learned friend's submission in relation to rule 5.11 of the amended 2000 rules, and all of its predecessors. He says that it applies to missing beneficiaries. You can see that from paragraph 44 of his skeleton. But, my Lord, in my respectful submission, that statement begs the question. It begs the question: how does rule 5.11 apply to missing beneficiaries? Does it apply to forfeit their benefits? Or does it leave those benefits untouched? And if it does, then what does -- what function does rule 5.11 serve? Because what my learned friend has been doing is to search for an analysis which gives rule 5.11 content, but not the content for which we contend, which, we submit, is borne out by the natural reading of the language used. But the question is what exactly happens to the benefits of this missing beneficiary? I have said, are they forfeited? Or do they remain an obligation of the scheme? And our understanding, or our analysis, is the inexorable logic of the arguments that have been presented on behalf of the trustee is that the missing beneficiaries' benefits are not forfeited, because otherwise there would have been no point in my learned friend going painstakingly through the scheme documentation to show your Lordship: well, forfeit appears in this rule, but not in rule 5.11.”

“Any money not claimed under the provisions of the Plan within six years of it becoming payable shall then cease to be claimable and shall revert to the fund.”

"62.9 Failure to claim benefit No beneficiary shall be entitled to claim any instalment of pension or other benefit to which he is entitled under the Scheme more than 6 years after that instalment has fallen due for payment." "9.5 Forfeiture of unclaimed benefits Any sum which may have become due to a Member or other person entitled to benefit under the Rules shall be forfeited if it has not been claimed during a period of at least six years from the date upon which that sum became due, but, if the sum formed one payment of a pension or annuity the right to such pension or annuity shall not thereby be extinguished." "24 Unclaimed benefits 24.1 If any pension or benefit or any instalment remains unpaid to and unclaimed by the person to whom it is payable for a period of six years from the date it became payable, then the entitlement to it shall be extinguished and it shall be retained by the Trustees in the Fund. 24.2 Any unclaimed AVC Interest shall be held by the Trustees on trust for the AVC Member or his estate as the case may be."

“Before dealing with these rules individually, I will refer to the submissions made by the RBs as to the operation of these rules. The RBs submitted that the various rules all dealt with circumstances where no pension had been claimed and the rules did not apply to a case where a pension had been claimed and paid but the full amount of the pensioner’s entitlement was not paid to him. The RBs also submitted that the rules provided for the trustees to have a discretion as to what to do in a case which came within the relevant rule. 408. I will now consider the correct construction of these five rules. Rule 1 is not confined to a case where the pension has not been claimed and nothing has been paid. Rule 1 specifically refers to any instalment of pension. Accordingly, Rule 1 applies in a case like the present where the trustees have made payments in relation to pension entitlement but have underpaid the beneficiary. In such a case, Rule 1 provides that the beneficiary is not entitled to claim the amount of the arrears more than six years after those arrears accrued and ought to have been paid. As the beneficiary is not entitled to claim those arrears, the trustees are not bound to pay the beneficiary those arrears and any payment of those arrears would be a voluntary payment by the trustees. I was not specifically addressed on whether other rules of this Scheme allow the trustees to make ex gratia payments but Rule 1 does not allow an ex gratia payment in a case which comes within Rule 1. 409. Rule 2 is not confined to a case where the pension has not been claimed and nothing has been paid. Rule 2 refers to "any sum which may have become due" and also refers to a case where the sum formed "one payment of a pension or annuity". Accordingly, Rule 2 applies in a case like the present where the trustees have made payments in relation to pension entitlement but have underpaid the beneficiary. In such a case, Rule 2 provides that the unpaid sum shall be forfeited if it is not claimed within six years after it accrued and ought to have been paid. As the unpaid sum is forfeited in such a case, the beneficiary is not entitled to claim that sum, the trustees are not bound to pay the beneficiary that sum and any payment of that sum would be a voluntary payment by the trustees. I was not specifically addressed on whether other rules of this Scheme allow the trustees to make ex gratia payments but Rule 2 does not allow an ex gratia payment in a case which comes within Rule 2. 410. Although the language of Rule 3 is different from that of Rules 1 and 2, it operates in the same way as those rules.”

“Full Pension”, “Maximum tax free cash and reduced pension” and “Cash of £…(specify) and reduced pension”

“This statement needs to be read in conjunction with the Retirement Option Statement Notes”

“Payment of Your Pension Your pension is payable for life by quarterly instalments in advance direct to your bank or building society account. It will be paid on or around the first of each January, April, July and October and will be taxed as earned income under the PAYE system. Tax Free Lump Sum The tax free lump sum quoted under Option 2 is the amount that you may take in accordance with the scheme governing documents. You may, however, if you wish, choose to receive any amount of tax free cash up to this figure. ……. In preparing this statement, care has been taken to reflect the most accurate and up to date information available at the time of preparation. The final benefits payable will always be subject to the Trust Deed and Rules of the pension arrangement, any discretion exercisable by the Trustees, all prevailing legislation, up to date earnings information and, where relevant, any restrictions necessary to comply with the State pension requirements (such as the amount of tax free cash sum).”

“36.1 If a Beneficiary fails to claim a benefit within six years of its becoming due, it shall be forfeited but the Trustees may at their discretion subsequentlyapply all or any part of such benefit: (a) to the Beneficiary notwithstanding the forfeiture; (b) in augmenting the benefits of Members still in Service; (c) in reducing the Employer’s contributions to the Scheme under Rule 10; or (d) in payment of the expenses of the management and administration of the Scheme under Rule 41.”

“Rule 36 refers to a failure to claim a benefit within six years of its becoming due. The period of time which is relevant for r.36 begins with the date on which a benefit becomes due. The reference to “a benefit” is to the sum which is payable on a certain date, whether it is a lump sum or more usually an instalment of pension. The reference to “a benefit” is not to the right to a pension from retirement (or some other date) during the lifetime of the pensioner. If an instalment was due on a certain date and part of the instalment was paid but part was not, the benefit which is relevant for r.36 is the part that was not paid. Rule 36 refers to the Trustee applying “all or any part of such benefit”. “Such benefit” must be the part that it is not paid as it cannot include the part of the instalment which is paid.”

“It is enough to reiterate that the process of implying a term into the contract must not become the re-writing of the contract in a way which the court believes to be reasonable, or which the court prefers to the agreement which the parties have negotiated. A term is to be implied only if it is necessary to make the contract work, and this it may be if (i) it is so obvious that it goes without saying (and the parties, although they did not, ex hypothesi, apply their minds to the point, would have rounded on the notional officious bystander to say, and with one voice, ‘Oh, of course’) and/or (ii) it is necessary to give the contract business efficacy. Usually the outcome of either approach will be the same. The concept of necessity must not be watered down. Necessity is not established by showing that the contract would be improved by the addition. The fairness or equity of a suggested implied term is an essential but not a sufficient pre-condition for inclusion. And if there is an express term in the contract which is inconsistent with the proposed implied term, the latter cannot, by definition, meet these tests, since the parties have demonstrated that it is not their agreement.”

“Here the express terms of the contract of employment confer a valuable right on the employee which is, however, contingent upon his taking certain action. Where that situation is known to the employer but not to the employee, will the law imply a contractual obligation on the employer to take reasonable steps to bring the existence of the contingent right to the notice of the employee? It is true that such an implication may have the consequence of sustaining a claim for purely economic loss. But this consideration would not furnish the essential reason for making the implication. If there is a basis for making the implication, it must lie rather in the consideration that the availability of the contingent right was intended by those who drew up the terms of the contract for the benefit of the employee; but if the existence of the contingent right never comes to his attention, he cannot profit by it and it might, so far as he is concerned, just as well not exist.”

“11. I recognise that a quite different situation might arise where the pension rights available to an employee in connection with his employment were not part of the terms of his contract of employment but arose out of a separate contract between the employee and an insurance company or the trustees of a pension fund. But that is not this case. Here there is no doubt whatever that the terms of the superannuation scheme as laid down in the regulations in force from time to time were embodied in the terms of the contract of employment of each plaintiff. Since the relevant Board was in each case the employer upon whom, although acting as agent for the Department, all liabilities were imposed by paragraph 2 of Schedule 1 to the Order of 1972, it seems to me beyond question that the legal obligation, if there was one, to notify the plaintiffs of their rights in relation to the purchase of added years rested in each case on the Board, not on the Department. 12. Will the law then imply a term in the contract of employment imposing such an obligation on the employer? The implication cannot, of course, be justified as necessary to give business efficacy to the contract of employment as a whole. I think there is force in the submission that, since the employee's entitlement to enhance his pension rights by the purchase of added years is of no effect unless he is aware of it and since he cannot be expected to become aware of it unless it is drawn to his attention, it is necessary to imply an obligation on the employer to bring it to his attention to render efficacious the very benefit which the contractual right to purchase added years was intended to confer. But this may be stretching the doctrine of implication for the sake of business efficacy beyond its proper reach. A clear distinction is drawn in the speeches of Viscount Simonds in Lister v Romford Ice and Cold Storage Co Ltd and Lord Wilberforce in Liverpool City Council v Irwin [1977] AC 239 between the search for an implied term necessary to give business efficacy to a particular contract and the search, based on wider considerations, for a term which the law will imply as a necessary incident of a definable category of contractual relationship. If any implication is appropriate here, it is, I think, of this latter type. Carswell J accepted the submission that any formulation of an implied term of this kind which would be effective to sustain the plaintiffs' claims in this case must necessarily be too wide in its ambit to be acceptable as of general application. I believe however that this difficulty is surmounted if the category of contractual relationship in which the implication will arise is defined with sufficient precision. I would define it as the relationship of employer and employee where the following circumstances obtain: (1) the terms of the contract of employment have not been negotiated with the individual employee but result from negotiation with a representative body or are otherwise incorporated by reference; (2) a particular term of the contract makes available to the employee a valuable right contingent upon action being taken by him to avail himself of its benefit; (3) the employee cannot, in all the circumstances, reasonably be expected to be aware of the term unless it is drawn to his attention. I fully appreciate that the criterion to justify an implication of this kind isnecessity,not reasonableness. But I take the view that it is not merely reasonable, but necessary, in the circumstances postulated, to imply an obligation on the employer to take reasonable steps to bring the term of the contract in question to the employee's attention, so that he may be in a position to enjoy its benefit. Accordingly, I would hold that there was an implied term in each of the plaintiffs' contracts of employment of which the Boards were in each case in breach.”

“In considering this subject, I must begin by saying that I entirely concur with the position taken by the learned counsel for the suppliant, that although a contract may appear on the face of it to bind and be obligatory only upon one party, yet there are occasions on which you must imply—although the contract may be silent—corresponding and correlative obligations on the part of the other party in whose favour alone the contract may appear to be drawn up. Where the act to be done by the party binding himself can only be done upon something of a corresponding character being done by the opposite party, you would there imply a corresponding obligation to do the things necessary for the completion of the contract.”

“[N]o absolute rule that, if there is an express term covering a particular subject, that necessarily excludes the possibility of any implied term where there is no linguistic inconsistency. Rather, the correct approach, reflecting common sense, is that the existence of such an express term makes the co-existence of a further implied term on the same subject unlikely and especially so in a lengthy and carefully drafted document on which legal professionals have been advising.” (2) Put another way, if the drafter had intended the forfeiture of an unclaimed benefit to depend on notice by the Trustee and knowledge of the Claimant, it would have been easy to formulate a rule which operated that way. However, he or she chose not to do so. (3) Although it may be reasonable to imply such a term (and I express no view on this question), such a term is not necessary to make the clause work either in semantic or commercial terms. There are no words missing or difficulties of syntax and the rule is fully intelligible. Further, many time bar or limitation provisions operate to bar a claim whether or not the claimant has knowledge of it or sufficient knowledge to make it. Sections 2 and 5 of the Limitation Act 1980 provide obvious statutory examples. Claims for breach of warranty often have a short and strict contractual limitation period which do not depend on the knowledge of the claimants. (4) There is no reason why a forfeiture clause in a pension scheme cannot operate in the same way (if the scheme designer so intends). As Mr Rowley pointed out, section 92(5) of the Pensions Act 1995 permits forfeiture “by reference to a failure by any person to make a claim for pension…where the claim is not made within six years of the date on which the pension becomes due”

“I think that the primary meaning of the word “claim” — whether used in a popular sense or in a strict legal sense — is such as to attach it to the object that is claimed; and is not the same thing as the cause of action by which the claim may be supported or as the grounds on which it may be based. In the Oxford Dictionary “claim” is defined as: first, “A demand for something as due; an assertion of a right to something”; secondly, “Right of claiming; right or title (to something or to have, be, or do something; also on, upon the person, etc., that the thing is claimed from).”

“(6) Where a charge, lien or set-off is exercisable by virtue of subsection (5)(d) (e) or (f) — (a) its amount must not exceed the amount of the monetary obligation in question, or (if less) the value (determined in the prescribed manner) of the person in question's entitlement or accrued right, and (b) the person in question must be given a certificate showing the amount of the charge, lien or set-off and its effect on his benefits under the scheme, and where there is a dispute as to its amount, the charge, lien or set-off must not be exercised unless the obligation in question has become enforceable under an order of a competent court or in consequence of an award of an arbitrator or, in Scotland, an arbiter to be appointed (failing agreement between the parties) by the sheriff.”

“166. It is also common ground that, if trustees identify an overpayment and notify it to the member with proposals for the exercise of the right of recoupment out of future payments of pension, the member can refer to the Ombudsman a dispute about either the amount or the terms on which the trustees propose to exercise their right of recoupment. The outcome of such a referral could be a decision by the Ombudsman that the trustees are entitled to exercise their right of recoupment in the way they have proposed up to an amount which the Ombudsman is satisfied has been overpaid. If the Ombudsman made such a determination and the member was unwilling to accept the consequent exercise of the right of recoupment, the trustees could apply to the County Court to enforce the determination “as if it were a judgment or order of that court”: see the Pensions Schemes Act 1993, s.151(5)(a). This could be done by the County Court making an order declaring the trustees’ entitlement to recoup the overpayment in accordance with the determination. 167. BIC UK contends that the Pensions Ombudsman’s determination would amount to an order of a competent court, whereas the claimants dispute this. 168. In my judgment, a determination by the Pensions Ombudsman would not itself constitute “an order of a competent court”, because the Ombudsman is not a court. An order by the County Court pursuant to s.150(5)(a) of the Pensions Schemes Act 1993 would constitute an order of a competent court, however.”

“58. In looking for the ratio decidendi of a case, the starting point is always the rulings and reasons given in the judgment(s) to justify the court’s decision, read in the light of the facts of the case and the issues that arose. Generally, this is also where the inquiry ends. But where there is scope for argument that a rule or ruling stated in the precedent case was framed too broadly, or that the decision is for some other reason better explained on a different basis which would enable it to be distinguished, the search for the ratio will also involve an evaluation of the strength and persuasiveness of the reasons expressed in the judgment(s) or otherwise advanced or available for the ruling. Such an evaluation will require consideration of a wider legal context in order to assess whether and to what extent the reasoning and the result reached in the precedent case are consistent with other authorities and legal principles (including subsequent authorities and developments in the law). 59. Whether it is permissible for a later court to engage in such an assessment depends on a variety of factors. Without seeking to be exhaustive, relevant considerations include: (1) the degree of unanimity or consensus among the judges (assuming there was more than one) who decided the precedent case; (2) the clarity or otherwise of the ruling and of the supporting reasoning; (3) whether or to what extent the point on which the court ruled was in dispute and/or the subject of argument; (4) whether or how clearly the court evinced an intention to establish a binding rule; (5) whether and to what extent prior relevant authorities were considered by the court; (6) whether the court would, or sensibly could, have reached the same result if it had not ruled as it did; (7) whether the court’s ruling has been applied or approved in later cases; (8) whether the ruling or its underlying reasoning has been criticised by commentators or by judges in later cases; (9) whether the court considered or contemplated the factual situation that has arisen in the current case; and (10) the level in the court hierarchy of the court which decided the precedent case in comparison with the level of the court deciding the current case.”

“(2) For the purposes of any such investigation the Pensions Ombudsman shall have the same powers as the court in respect of the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad) and in respect of the production of documents. (3) No person shall be compelled for the purposes of any such investigation to give any evidence or produce any document which he could not be compelled to give or produce in civil proceedings before the court. (4) If any person without lawful excuse obstructs the Pensions Ombudsman in the performance of his functions or is guilty of any act or omission in relation to an investigation under this Part which, if that investigation were a proceeding in the court, would constitute contempt of court, the Pensions Ombudsman may certify the offence to the court. (5) Where an offence is certified under subsection (4) the court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of the person charged with the offence and hearing any statement that may be offered in defence, deal with him in any manner in which the court could deal with him if he had committed the like offence in relation to the court.” (5) Section 151(5) also provides that any determination or direction of the Pensions Ombudsman shall be enforceable in England and Wales “in the county court as if it were a judgment or order of that court”