3i PLC v John Decesare & Ors [2025] EWHC 3023 (Ch)

[2025] EWHC 3023 (Ch)Case No PE-2024-000042IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESBUSINESS LIST: PENSIONS (ChD)Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 21/11/2025Before:-MR JUSTICE RICHARD SMITH
Between:-
Between
3i PLCClaimant(1) JOHN DECESAREDefendants(2) GARDENS PENSION TRUSTEES LIMITEDDefendant(3) THE LAW DEBENTURE (1996) PENSIONDefendantTRUST CORPORATIONDefendant
Brian Green KC and Joseph Steadman (instructed by Slaughter and May) for ClaimantFenner Moeran KC (instructed by Burges Salmon LLP) for First DefendantMichael Tennet KC (instructed by Linklaters LLP) for Second and Third DefendantsHearing Hearing dates: 15 & 16 July 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 21 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE RICHARD SMITH

Introduction

[1]This judgment concerns an occupational pension scheme known as the 3i Pension Plan (Plan).[2]A question has arisen as to (i) the proper meaning of the power of amendment (PoA) under the Plan rules (ii) in particular, the restriction it contains on its exercise (Fetter) and (iii) relatedly, whether a “Deed to stop future benefit accrual” dated 22 February 2010 made between 3i and the Plan trustees (Closure Deed) had the effect indicated by its name.[3]The precise question for the court’s determination (Construction Issue) is set out in the following terms at paragraph 10 of the details of claim on the Part 8 Claim Form issued by the Principal Employer, 3i plc (3i):- “By this claim, 3i seeks a declaration as to whether, on the true construction of the Fetter, it permitted amendments to terminate or reduce the rate of future accrual of benefits under the Plan (without the need to obtain the written consent of the members concerned and provided a link to future salary in respect of accrual prior to the date of amendment was maintained) such that, without prejudice to the generality of the foregoing, the amendments made by the Closure Deed, not being prohibited by the Fetter, were a permitted exercise of the PoA by the Trustees (with the consent of 3i).”[4]3i argues that the Construction Issue should be answered in the affirmative.[5]The First Defendant, Mr Decesare (to whom I shall refer for convenience only, and intending no disrespect, as “D1”), is a member of the Plan appointed as a representative party pursuant to CPR, Part 19.2(2) and paragraph 21 of the consent order of Deputy Master Linwood dated 9 January 2025. D1 represents all members and beneficiaries (whether past, present or future) and all participating employers (whether past or present) in whose interests it would be for the Construction Issue to be answered in the negative. D1 therefore argues that the Fetter prevented such purported amendments to the Plan.[6]The Second and Third Defendants (Trustees) are the Plan trustees. They are neutral as to how the Construction Issue falls to be decided but say that this question needs to be determined before the winding up of the Plan can be concluded.

How the Construction Issue arises

[7]On 14 February 2023, 3i gave notice to terminate the Plan under rule 27.1 of the current rules (2011 Rules). In April 2023, the Trustees subsequently resolved under rule 28.1 of the 2011 Rules to commence the winding-up of the Plan. Individual annuities were then issued and assigned to members in May 2024. In July 2024, it was estimated that there would be a Plan surplus of approximately £83 million. Under rule 28.6 of the 2011 Rules, the Trustees have the power to determine the destination of any such surplus.[8]After consulting with the members in accordance with s.76 of the Pensions Act 1995, the Trustees concluded that the surplus should be paid to 3i and, by July 2024, the Trustees were expecting to take a final decision in that regard. However, before they did so, the Trustees became aware of the decision in British Broadcasting Corporation v BBC Pension Trust Limited [2024] EWCA Civ 7675, the Court of Appeal deciding that reference in a restriction on the BBC pension scheme’s power to amend a member’s “interests” was sufficiently broad to protect a member’s ability to continue to accrue future service benefits under the scheme. Although the Trustees recognise that the wording of the Fetter differs from the restriction in issue in the BBC case, both refer to a member’s “interests”. Moreover, although those advising the Trustees have identified cases concerning (as here) a power to amend a member’s “rights and interests”, the further qualifying language to the relevant power in those cases was different from that contained in the rules of the Plan effective from 1 September 2002 (2002 Rules).[9]Knowing that they were about to make a decision as to the distribution of the surplus on the assumption that the Closure Deed validly closed the Plan to further accrual, the Trustees considered it appropriate first to obtain confirmation from the court as to the meaning of the Fetter and gave notice to 3i in November 2024 of their intention to do so. Based on their agreement as to the question for the court’s determination and the identity of the representative beneficiary and his legal advisers, the Trustees agreed to 3i acting as the Claimant in these proceedings.[10]Being a member of the Plan at the date of the Closure Deed, D1 would have been entitled to continue to accrue final salary benefits if the deed was invalid. As such, he is interested in opposing the relief sought by 3i. To facilitate his participation as representative member, the Trustees have agreed a prospective costs order in his favour. Steps were also taken to ensure that other potentially affected Plan members were notified of these proceedings, including the hearing before me. In light of these matters and the parties’ written and oral representations - of high calibre on all sides - I am satisfied that I have heard comprehensive argument on behalf of all those interested in the outcome of the claim and that the court is properly and fairly equipped to decide the Construction Issue.

The PoA and Closure Deed

[11]The meaning of rule 27 of the 2002 Rules arises most pointedly on this claim because the 2002 Rules were in force when the Closure Deed sought to close the Plan to further benefit accrual. If the Construction Issue is answered in the negative, that purported closure would not have been effective.[12]Rule 27 has been (and remains) in broadly the same form since clause 11 of the original definitive deed in relation to the Plan dated 27 October 1975 (Definitive Deed). The changes between the 1975 version and that found in the 2002 Rules (shown in red below), together with the changes made in 2011 (shown in blue below), reflect the current version of the PoA (now found in rule 29 of the 2011 Rules):- “The Trustees may at any time and from time to timewith the written consent of the Company by deedmodify all or any of the provisions of the Trust Deed andthe Rules (and, subject to Section 67 of the Pensions Act 1995, may do so retrospectively)provided that but no such modification shall may be made if it would:(i) (a) extend the duration of the Scheme Plan in such manner that any interest therein would not vest within the maximum period permitted by law; or(ii) (b) diminish any pension already being paid under the Scheme Plan or the accrued rights or interests of any Member or other person in respect of benefits already provided under the Scheme Plan save with the written consent of the Member concerned unless such action is necessary to secure the continued Revenue Approval of the Scheme Plan maintain the Plan’s tax status as a registered pension scheme under Part 4 of the Finance Act 2004”.[13]As at the date of the Closure Deed, rule 27 therefore provided that no modification could be made to the 2002 Rules if, in the words of the Fetter, it would:- “ … diminish any pension already being paid under the Planor the accrued rights or interests of any Member or other person in respect of benefits already provided under the Plan ….”.[14]The PoA is briefly and broadly expressed, affording the Trustees the power to modify the rules of the Plan with the written consent of 3i. As for the qualifying language of the Fetter, there are two ‘limbs’, namely the restriction on any diminution of(i) pensions already in payment under the Plan and(ii) the accrued rights or interests of any member or other person in respect of benefits already provided under the Plan. The reference to ‘other person’ encompasses spouses, civil partners, children and other dependents who might take benefits on a member’s death under the Plan rules.[15]The general point of interpretation encompassed by the Construction Issue was whether the Fetter is so broad as to preclude amendments diminishing(i) benefits which have not at the operative date of amendment accrued but which might in the future be provided under the Plan as a result of future service or(ii) only those benefits (inclusive of a final salary link) already accrued as at that date by reason of a member’s past service. However, the Construction Issue also refers specifically to the Closure Deed, an example of an instrument the validity of which will turn on the answer to that general point. Although I was told that my decision may have implications for other amendments to the Plan rules, I am only asked to consider the legal effect of those contained in the Closure Deed.

Relevant principles of construction

[16]Emphasis apart, there was no real difference between the parties on the relevant principles of construction. As Lord Hodge confirmed in Barnardo’s v Buckinghamshire [2019] ICR 495 (at [13]), the same general principles of construction apply to pension scheme documents as those which govern the construction of all written instruments (expounded in cases such as Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900; Arnold v Britton [2015] AC 1619;and Wood v Capita Insurance Services Ltd [2017] AC 1173). Accordingly, when interpreting the rules of a pension scheme, the court is seeking to establish the intention of the parties which it does by identifying the meaning of the relevant words in the light of their natural and ordinary meaning, the overall purposes of the document, the other provisions of the document, the facts known or assumed by the parties at the time that the document was concluded and common sense, albeit disregarding subjective evidence of the parties’ intentions.[17]As was also recognised in Barnardo’s (at [13]), in considering the appropriate deployment of these interpretative tools, the court must also have regard to the nature and circumstances of the instrument in question, Lord Hodge going on (at [14]-[16]) to note the relevant features of pension schemes and how these affected the approach to their interpretation:- “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, paras 75-76 per Jonathan Parker J; BES Trustees v Stuart [2001] Pens LR 283, para 33 per Neuberger J; Safeway Ltd v Newton [2018] Pens LR 2, paras 21-23 per Lord Briggs JSC, giving the judgment of the Court of Appeal. In Safeway, Lord Briggs JSC stated, at para 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.”
I agree with that approach. In this context I do not think that the court is assisted by assertions as to whether or not the pensions industry in 1991 could have foreseen or did foresee the criticisms of the suitability of the RPI, which later emerged in the public domain, or then thought that it was or was not likely that the RPI would be superseded. 16. The emphasis on textual analysis as an interpretative tool does not derogate from the need both to avoid undue technicality and to have regard to the practical consequences of any construction. Such an analysis does not involve literalism but includes a purposive construction when that is appropriate. As Millett J stated in In re Courage Group’s Pension Schemes [1987] 1WLR 495, 505 there are no special rules of construction applicable to a pension scheme but “its provisions should wherever possible be construed to give reasonable and practical effect to the scheme”. Instead, the focus on textual analysis operates as a constraint on the contribution which background factual circumstances, which existed at the time when the scheme was entered into but which would not readily be accessible to its members as time passed, can make to the construction of the scheme.” “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.” I agree with that approach. In this context I do not think that the court is assisted by assertions as to whether or not the pensions industry in 1991 could have foreseen or did foresee the criticisms of the suitability of the RPI, which later emerged in the public domain, or then thought that it was or was not likely that the RPI would be superseded.[18]In the BBC case, Lewison LJ noted (at [15]) in relation to the (full) statement of Millett J in Courage referred to above (and powers of amendment in pension schemes more generally) that:- “15. Mr Tennet stressed Millett J’s statement that it was important not to fetter the power of amendment where an amendment was required by the exigencies of commercial life. He submitted that the rising cost to the BBC of funding the scheme, and the disparity in pensions between those who were members of a defined benefits scheme and those who were not were exactly the kind of commercial exigencies that Millett J had in mind. Nevertheless, I do not consider that this is an autonomous, let alone an overriding, principle of interpretation of pension schemes. Even where the court is concerned to interpret a power of amendment in a pension scheme it must be “even-handed between the parties”. Such a power should not be interpreted with any greater liberality than other documents, purposively interpreted. A power of amendment “should be interpreted precisely in accordance with its terms, neither more nor less”: Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd [2011] Pens LR 223 at para 48. As Lord Hodge JSC said in Buckinghamshire v Barnardo’s [2019] ICR 495 at para 28:
“The sponsoring employer’s gain may be the members’ loss and vice versa. Nor it is appropriate to use hindsight of how events have turned out to assess whether a provision makes good commercial sense: Buckinghamshire v Barnardo’s at para 27.”
[19]In this regard, although not specifically concerned with powers of scheme amendment, Sir Geoffrey Vos MR held in Britvic plc v Britvic Pensions Ltd [2021] ICR 1648 (at [29]) that:- “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 JSC at para 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 JSC at para 22 in Safeway [2018] Pens LR 2, approved by Barnardo’s, para 15).”[20]In relation to the utility of the Definitive Deed to the interpretation of the 2002 Rules, 3i and D1 both noted the scepticism re-visited by Lewison LJ in the BBC case “ … about whether it is useful to delve into the archaeology of a pension scheme, when current members of the scheme may have joined many years after the scheme was initially established: Barnardo’s v Buckinghamshire[2016] EWCA Civ 1064, [2017] Pens LR 2 at [23], apparently approved on appeal Buckinghamshire v Barnado’s at [26].” However, as in the BBC case in relation to the earlier 1949 deed (see [19]), it was common ground between 3i and D1 that the terms of the Definitive Deed were relevant to the construction of the 2002 Rules.[21]In this regard, D1 noted Lewison LJ’s further observation (at [18]) that “[t]he obvious inference from the re-adoption of a clause in the pension scheme without modification is that the same words do not change their meaning”. To a similar end, 3i noted the observation in Stena (at [34]) that “[t]he more likely inference … from the re-adoption of a clause without any material change is that the clause retained its meaning without any material change.” Finally in this context, 3i and D1 also noted in relation to powers of amendment that a proviso thereto cannot be circumvented or removed by using the power of amendment itself since this would contravene the principle that one cannot do by two steps what one is prohibited from doing in one step (IMG Pension Plan, HR Trustees Ltd v German[2010] Pens LR 23 at [121]-[123]).[22]3i says that, in view of these matters, the non-substantive amendments to the Fetter since 1975 and the absence of any background circumstances in 2002 and 2011 (when those amendments were made) which might otherwise suggest that the meaning of the Fetter was intended to change from 1975, the court can be comfortable that those amendments were not material. D1 agrees that the meaning of the Fetter was materially unchanged, also saying that, in light of the above matters, not least the inability of the Trustees to use the power of amendment in the Plan rules to broaden that power (or narrow any restriction or fetter), it is not merely appropriate to have regard to the position in 1975 when construing the Fetter, but that is the necessary starting point.

The early Plan rules

[23]Delving deeper into the archaeology, that starting point was, in fact, an Interim Trust Deed dated 13 June 1973 concluded by 3i (then known as Industrial and Commercial Finance Corporation Ltd) and the Second Defendant (then the sole Plan trustee). The interim deed did not itself identify the benefits under the Plan rather than stating that it would conform with “the particulars thereof” as had been, or were about to be, published to affected employees. It also contemplated the conclusion of a Definitive Trust Deed within 24 months. The interim deed did not itself contain a power of amendment but stated that the Definitive Trust Deed would provide “for the alteration or modification from time to time of the trusts of the [Plan] but so that no alteration or modification shall be permitted whereby the Scheme shall cease to be such an exempt approved scheme as is capable of approval under the [Finance Act 1970] …. .” Accordingly, the only ‘fetter’ to the power of amendment then specifically contemplated concerned the inviolability of the Plan’s tax status.[24]3i and the Second Defendant entered into the Definitive Deed a little later than envisaged on 27 October 1975. In broad terms, the provisions relating to the trust powers and administration of the Plan were set out in the main body of the Definitive Deed, with member benefits set out in a self-contained schedule comprising the “Rules” (1975 Rules). As also noted, clause 11 of the Definitive Deed contained the (original) PoA and Fetter in the form already shown (at [12] above, ignoring the red and blue annotations).[25]D1 took me through some of the early Plan rules to explain how, operating together with the PoA, they informed the meaning of the Fetter and, therefore, how he says the Construction Issue properly falls to be decided.[26]Rule 4(a) of the 1975 Rules provided for Plan members to contribute to the Plan at the annual rate of 5% of salary subject to(i) the option for those members who retire after Normal Retirement Date (NRD) to exercise beforehand the option to cease making contributions at NRD and(ii) female members not being required to contribute until they reached 30. Rule 4(c) also required the “Employers” (as defined) to pay such contributions as had been agreed with the Plan trustee. D1 explained that this is commonly known as a balance of cost pension scheme, with the employer ‘topping up’ the member contributions to meet scheme costs.

Non-uniform accrual

[27]Rule 5(a) of the 1975 Rules concerns retirement at or after NRD. In summary, subject to certain provisos and rule 18 (concerning Inland Revenue benefit limits), this provided that a member retiring from service at or after NRD was entitled to a yearly pension commencing on the date of such retirement payable until death equal to the percentage of pensionable salary at the date of such retirement (or, if earlier, the fifth anniversary of NRD) appropriate to the number of months of that member’s continuous service as shown in the table in the Appendix to the 1975 Rules. That identifies, in turn, the relevant percentages of pensionable salary as follows:- Pensionable Service completed Percentage of Pensionable Salary Months Years 12 1 1.67 24 2 3.33 36 3 5.00 48 4 6.67 60 5 8.33 72 6 10.00 84 7 11.67 96 8 13.33 108 9 16.67 120 10 20.00 132 11 23.33 144 12 26.67 156 13 30.00 168 14 35.00 180 15 40.00 192 16 42.67 204 17 45.33 216 18 48.00 228 19 50.67 240 20 53.33 252 21 56.00 264 22 58.67 276 23 61.33 288 24 64.00 300 or more 25 or more 66.67[28]D1 explained that the accrual rate was not uniform but varied depending on the number of years pensionable service that had been undertaken as at the member’s retirement date. So, in the first 8 years of pensionable service, each additional year served effectively provided members with an additional 1.67% of pensionable salary, increasing to 3.3% or 3.4% between years 9 to 13, and then to 5% in years 14 and 15, before decreasing to 2.67% for years 16 to 25. However, D1 said that rule 5(a) of the 1975 Rules did not provide for actual accrual on a yearly basis rather than for receipt of a pension calculated at the member’s retirement date. Since the member’s benefit will change depending on when they retire, an accrual rate cannot be identified until that date is known. This contrasts with those schemes which provide a pension based on n/60 x final pensionable salary (n representing years of pensionable service). In such a case, a member knows that they have accrued 1/60th of final pensionable salary in a particular year, the only unknown being what their ultimate final pensionable salary might be.[29]Rule 5(b) of the 1975 Rules provides that those members who retire after NRD having previously exercised the option under rule 4(a) to cease making contributions at NRD shall be entitled to a pension on retirement equal to the percentage of pensionable salary at NRD appropriate under the table to the number of months of continuous service completed to NRD, with such uplift as the trustees shall determine to be appropriate.

Early leavers

[30]The 1975 Rules envisage retirement before NRD in different scenarios. So, for example, rule 6 provides for an immediate pension payable on early retirement for incapacity due to ill-health or other disability. Rule 7 provides (with the agreement of the Plan trustee) for an immediate pension payable on early retirement within the 10 years preceding NRD equal to the deferred pension to which the member would otherwise have become entitled under rule 16, reduced as the Plan trustee determines to be appropriate.[31]Rule 16 of the 1975 Rules addresses the position of those members who left service before NRD (otherwise than on death) without becoming entitled to a pension under rules 6 or 7. Subject to rule 18, such members who had attained 26 and undertaken two years’ service at the date of leaving were entitled to a deferred yearly pension, commencing at NRD (if then living) until death, equal to the greater of the amounts calculated on the two alternative bases in rule 16(b)(1) and (2) respectively.[32]Rule 16(b)(2) reflected the position under rule 5, including the non-uniform accrual of benefits, albeit by reference to the member’s pensionable salary at, and pensionable service to, the date of (early) service departure. Again, D1 says that there is no accrual of benefits as such until that date is known. D1 pointed out that a potential difficulty with such non-uniform accrual in this context was that the effective rate of accrual might, but for the member’s early departure from service, have accelerated in the period to NRD. However, rule 16(b)(1) provided alternatively for a deferred pension based on that proportion of prospective pension which the member would have enjoyed if he had remained in service to NRD as was referable to the period of that member’s actual pensionable service. This alternative assumed (differently from rule 5) the uniform accrual of benefits over the potential maximum period of a member’s pensionable service to NRD, reflecting the (then) statutory ‘preservation’ rules intended to provide deferred members with benefits on the same basis as if they had remained in employment until they reached NRD. D1 provided working examples of how the deferred pension operated, pointing out how actual pensionable service accrued can make a significant and fluctuating difference to accrual rates and pension amounts. As I come on to explain, D1 placed some store by the non-uniform nature of the benefits structure provided for by the 1975 (and 2002) Rules to support his argument on the Construction Issue.

The 2002 Rules

[33]It is common ground that there was no material change to the power of amendment in the 2002 Rules.[34]For members who joined the Plan prior to 1 September 2002, the accrual structure was essentially unchanged (rule 4.1), albeit that structure appears to have been altered for such members with effect from 1 December 2006 such that benefit accrual was at the uniform rate of 2.667% for each complete year of pensionable service thereafter. For members who joined the Plan on or after 1 September 2002, the accrual rate was fixed at a uniform 2% of final pensionable salary for each complete year of pensionable service, capped at 66.67% (rule 4.1.1-4.1.2).[35]The position for deferred members (with at least two years qualifying service) was broadly the same under the 2002 Rules as under the 1975 Rules, with provision for a pension equal to the greater of(i) a pension calculated as on a normal retirement basis and(ii) the same proportion of prospective pension as was referable to actual pensionable service, albeit increased on account of statutory ‘revaluation’ rules introduced from 1985 onwards to mitigate the impact of inflation on deferred benefits (rule 8.1).

Subsequent Plan developments

[36]According to the witness statement of 3i’s General Counsel and Company Secretary, Mr Kevin Dunn, a solicitor, the Plan was closed to new members from 2006, 3i’s employees participating instead in its separate defined contribution pension arrangement.[37]From 2007, 3i also explored in consultation with members and the Trustees possible means of reducing the 3i Group’s ongoing costs and risks associated with the Plan. Following that consultation, the Closure Deed was executed with a view to the Plan closing to future accrual with effect from 5 April 2011, seeking to achieve this by amending the Plan rules to(i) treat all members in service on 5 April 2011 as having left service that day (clause 6) and(ii) alter the definition of “Service” to exclude employment after 5 April 2011 (clause 7).[38]In addition, clause 10 of the Closure Deed sought to maintain a link to final salary in respect of pensionable service accrued prior to 5 April 2011. It did so by increasing the pension ultimately payable to active members as at that date by the “Salary Linkage Percentage” (as defined) if more advantageous than the existing provision under the 2002 Rules for deferred members (as such active members were then treated).[39]The Plan rules were further amended with effect from 31 March 2011. Again, the PoA was materially unchanged.

The language of the Fetter

[40]Turning to the language of the Fetter, as noted, this prevents amendments to the Plan rules which would:- “ ….

(a) 3i’s position

[41]3i’s position is that this is a composite expression in which neither the word “interests” nor the word “benefits” stands alone. That composite, read as a whole, is clearly concerned with that which has accrued, and so is already provided, not with that which has not accrued and is not already provided. Although the concern is to construe the expression as whole, inevitably, each of its ingredient parts is examined for that purpose. As regards the expression “the accrued rights or interests”:-(i) As a matter of conventional grammatical construction, the adjective “accrued” governs each of the nouns “rights or interests” which follow it. To that end, 3i relied on the statement in Cantor Fitzgerald & Co. v YES Bank Limited [2023] EWHC 745 (Comm) (at [86]) that “[w]here an adjective or determiner is followed by a series of nouns in a list, the conventional understanding is that it modifies all the nouns in that list (unless a discordant adjective or determiner breaks the pattern). Bright J described this (at [87]) “ … not an abstruse rule or pattern known only to specialist grammarians” but - illustrating the point - one known “to every Tom, Dick and Harry”. 3i says that this is an obvious point, with nothing in the language or syntax of the Fetter to suggest that the word “accrued” attaches only to “rights” and not also to “interests”;(ii) If the word “accrued” had been intended only to modify “rights”, it would have been the simplest and most obvious thing to formulate the expression differently. For example, (a) the word order could have been different viz “the interests or accrued rights” (b) an additional discordant adjective could have been used viz “the accrued rights or future interests” or (c) an additional definite article could have been included viz “the accrued rights or the interests.” None of these simple, alternative formulations is present; and(iii) Apart from the governance of the word “accrued”, the disjunctive reference to “rights or interests” suggests a reading of those two nouns as providing for two ways of getting at, and ensuring comprehensive coverage of, a single conceptual target, namely accrued benefits already provided.[42]As regards the single, concluding phrase “in respect of benefits already provided under the Plan”, this includes as a key part the combination of the past tense adverb (already) and past participle adjective (provided). Moreover, as is common ground, this phrase qualifies both “rights” and “interests” earlier in the composite expression. In this regard, 3i noted that:-(i) future service benefits are not “benefits already provided”. They are benefits not yet provided;(ii) the source of the benefits “already provided” is identified in the same phrase, namely the Plan;(iii) the inclusion of the words “already provided” restricts the benefits being referred to by that source and it does so in a way that is backwards looking to the position immediately prior to the relevant amendment, ie: to benefits that have already been earned, not future accruing benefits;(iv) if the draftsperson had intended to leave the word “interests” unqualified, it would again have been the simplest and most obvious thing to have dispensed altogether with the words “in respect of benefits already provided”;(v) indeed, if that had been the draftsperson’s intention, they may as well have simply provided by the Fetter that no modification could be made which diminished “the interests of any member or other person”; and(vi) in other words, the draftsperson could simply have used the same formula of words as featured in the BBC case, D1’s case being that the proper interpretation of the Fetter leads to the same outcome (despite the very different words used there).[43]3i says that the above points are reinforced by the further element in the first limb of the Fetter which precludes the diminution of any pension already being paid. There is, therefore, nothing at all in the wording of either limb of the Fetter to suggest that the drafter was targeting anything other than past accrued benefits.[44]According to 3i, the natural inference from all this is that the use of the disjunctive expression “the accrued rights or interests” together with “in respect of benefits already provided under the Plan” was to ensure in a ‘copper-bottomed’ way the coverage of a particular conceptual target of accrued benefits already provided. This was an entirely unremarkable technique to remove any suggestion that such conceptual target was incompletely identified.[45]In adopting such a ‘copper-bottomed’ form of drafting, in particular by using the word “interests” alongside the word “rights” in the expression “the accrued rights or interests”, the draftsman was placing beyond doubt that discretionary benefits appurtenant to already accrued rights were also protected from adverse amendment. Those discretionary benefits, collectively and individually, were important adjuncts to past accrued benefits, members and other persons having every ‘interest’ in their non-removal by amendment. Such discretionary benefits included the Trustee’s discretion under:-(i) the 1975 Definitive Deed to (a) agree to early retirement on a pension the basis of which was to be determined by the Trustees (rule 7) (b) consent to a member taking a lump sum in lieu of pension on retirement on a basis to be determined by the Trustees (rule 11(a)) and (c) transfer assets and liabilities in respect of a member if they ceased to be an eligible employee (rule 17(b)); and(ii) the 2002 Rules to (a) consent to a member taking a lump sum in lieu of pension on retirement on a basis to be determined by the Trustees (rule 5.1) (b) select beneficiaries of lump sum death benefits, in default of which these devolved in accordance with default provisions (rule 6.4) (c) pay a post-member-death spouse’s pension to an unmarried partner or separated spouse, but only if they think fit (rule 7.1) (d) pay a post-member-death pension to another dependant if no spouse or child’s pension was payable, but only if they think fit (rule 7.3) (e) not limit latterly married spouse’s post-member-death pension if the Trustees consider there to be special circumstances (rule 7.8) (f) allow an early retirement pension to be taken on a basis to be determined by the Trustees (rule 9.2) (g) allow postponement to take a late retirement pension on a basis to be determined by the Trustees (rule 9.3) (h) pay an equivalent benefit amongst a discretionary class if such benefit is no longer payable by virtue of the purported assignment of benefit by a member, if the Trustees think fit (rule 17.3) and (i) allow serious ill-health commutation on a basis to be determined by the Trustees (rule 18.1).[46]3i says that such discretionary benefits might not be said to be as clearly protected as accrued ‘rights’ rather than as accrued ‘interests’ at least in as much as(i) a ‘right’ to be considered for the conferment of such a benefit might only arise if and when the occasion for exercise of such a discretion actually occurs, for example on death or(ii) the Fetter is protecting the interests of other persons as well as members and such other persons may not yet be in existence or ascertained because, for example, they are future born children or a future spouse or civil partner at the time an amendment is proposed. In either situation, to say that such persons have accrued ‘interests’ may be more apposite to avoid argument as to whether discretionary benefits appurtenant to past accrued benefits of this kind are protected by the expression accrued “rights”. 3i also posited that, in circumstances where there was limited judicial authority on powers of pension scheme amendment, the word “interests” might also be concerned with the final salary link or future increases to pensions in payment. Today, such an increase is likely to be understood as an incident of “a pension already being paid under the plan” within the first limb of the composite expression, alternatively an “accrued right” within the second. However, that may well have been less clear to the draftsperson in 1975.[47]Such ‘copper-bottomed’ drafting under which the phrases “the accrued rights or interests” and “in respect of benefits already provided under the Plan” describe a single conceptual target, together with the distinct contribution that the expression “the accrued [..] interests” brings to clarifying the protection afforded to discretionary benefits appurtenant to already accrued rights, is a complete answer to D1’s contention that the word “interests” must connote more than “rights” to avoid suffering redundancy. Certainly, the Fetter could not have been seen as suffering from redundancy in 1975 at a time when there was no established jurisprudence on the meaning of provisos to amendment powers under pension schemes, Courage not being decided until 1986. However, the language of the Fetter puts beyond doubt its concern with accrued benefits already provided.[48]In fact, D1’s interpretation would give rise to redundancy. If, as D1 maintains, “accrued” only qualified the word “rights” and not interests, there would be no point using the word “accrued” at all, the BBC case making clear that “interests” is equally wide enough to encompass past accrued benefits. Moreover, if the phrase “in respect of benefits already provided under the Plan” is read unnaturally so as not to distinguish between benefits which have and have not already been earned, the backwards looking words “already provided”are rendered redundant - in fact, contradicted. The draftsperson would not have been concerned to ensure that there was no confusion as to whether the Fetter prevented the use of the PoA to diminish benefits not provided under the Plan. The use of the word “already” was therefore purposeful.[49]Finally, although the word “interests” could potentially mean different things as used in different parts of the same instrument, 3i notes certain examples in the 1975 Definitive Deed and the 2002 Rules of its use in relation to past accrued benefits and/ or interchangeably or synonymously with “rights”, including in:-(i) The first proviso to the PoA as it then featured in clause 11(i) of the Definitive Deed and in rule 27(a) of the 2002 Rules concerning the duration of the Plan and the vesting of “any interest” therein within the maximum period permitted by law;(ii) The third proviso to Clause 16(a) of the Definitive Deed concerning the winding up of the Plan and the need for the Plan assets to be applied in such a way that “all interests” therein become vested prior to the expiry of the period of the trusts comprised by the Plan;(iii) Clause 17(b) of the Definitive Deed concerning the withdrawal of associated companies from participation in the Plan and the appropriation of those Plan assets certified by the actuary to be equal to the “interest” of each relevant member in the Plan; and(iv) Rule 17(b) of the 1975 Rules concerning the transfer of assets to another approved scheme, such transfer to be in full satisfaction of “all rights and interests” in the Plan as are attributable to the relevant member’s membership thereof.[50]3i says that the use of those words in this manner indicates that the draftsperson was not overly concerned with the distinction between them and that it would be wrong to strain the Fetter as including future accruing benefits simply to ascribe a distinct meaning to “interests”.

(b) D1’s position

[51]D1 says that it is accepted by all parties that the word “interests” can, as found in the BBC case, encompass future service benefits. In a sense, that was why the Construction Issue was now before the court.[52]D1 himself also accepted that, to succeed on the Construction Issue, he had to establish that the word “interests” is not qualified by the word “accrued” and that the latter applies only to the word “rights” in the phrase “rights or interests”. Although D1 accepts that “accrued” can have a qualifying effect on both words, linguistically, it can also apply to just the first word in a series of nouns. This can occur where there is a (freestanding) compound noun such as “accrued rights” which operates independently of the subsequent word “interests”. Alternatively, there may be ambiguous terminology to which the “conventional understanding” described in Cantor Fitzgerald (at [85]-[95]) would not apply. As for 3i’s reliance on that case, the construction of the relevant phrase (“private placement, offering or other sale of equity instruments”) turned on its own specific facts. The court was not assisted in the interpretation process by the other words of the contract but it did find (at [110]-[120]) the surrounding circumstances to be more consistent with the word “private” qualifying not only “placement” but the following nouns as well.[53]In this case, D1 says that the term “accrued rights” is either a compound noun or, even though not yet enjoying the clarity of a legal ‘term of art’, was sufficiently well used by pensions lawyers in 1975 and, certainly, sufficiently well understood by 2002. That term clearly concerns past service type benefits and envisages rights that have already accrued and are enforceable, possibly subject to a contingency such as survival to NRD. S.58 of the Social Security Act 1973, for example, defines “accrued rights” in relation to a scheme as inclusive of any permitted transfer credits, a term that follows through into paragraph 9(2)(a) of Schedule 16 to that Act. That term also features in the modern day successor to the 1973 Act in the form of the Pensions Act 1993, with the term “accrued rights” featuring in s.73 also in the context of the transfer of benefits. Finally, s.67(4)(a) of the Pensions Act 1995 (itself concerning the power to modify schemes) refers to a member’s entitlement or “accrued rights” acquired before the exercise of such power.[54]In addition, there were multiple authorities from Courage onwards referring to “accrued rights” in the context of the scheme then under discussion. Although some of these matters post-date 1975, perhaps weakening the point, they do pre-date 2002. Once there is such a clearly intelligible term, the argument that “accrued” should apply across both nouns is significantly weakened. That is particularly so where the other noun here - “interests” - is itself distinct. Although D1 accepts that “interests” can also be “rights”, the former connotes something wider and more nebulous. Moreover, although D1 also accepts that “interests” can, in theory, be “accrued”, it is quite difficult to work out how or when that might occur, militating further against reading “accrued” as qualifying “interests” too.[55]3i says that the Fetter is aimed at a ‘single conceptual target’ but that seems to be a euphemism for ‘belt and braces’. That is insufficient: the words “rights” and “interests” are directed to two different things and the protection they afford is expansive, including protecting the ability to accrue future service. So, in the BBC case, the original 1949 scheme rules did not provide for a leaving service pension. An early leaver was only entitled to the return of their contributions plus interest. A member only became eligible for a pension at normal retirement age after having served 10 years. In these circumstances, Adam Johnson J held at first instance (at [55]) that:- “ … such a person would naturally have had a very keen interest in the terms on which benefits would accrue into the future remaining the same (or at least not becoming substantially less advantageous), because the principal focus of the Scheme at the time was on the benefits payable at the point of retirement. There was no prospect of a right to a leaving service pension arising before then. To put it colloquially, an Active Member in 1949, with his eyes fixed on the far horizon of reaching NRA, would naturally have an interest in the rules of the game not changing in a substantially prejudicial way before he got there, and would be surprised to be told that his interests were confined to benefits already earned which had no immediate value to him and which he could never realise if he left employment before NRA.”[56]Although the position in this case is not so stark, D1 says that the same considerations apply with respect to non-uniform nature of the “benefits already provided under the Plan” in respect of which members have an “interest” in future service. D1 described this as an essential factor to take into consideration when interpreting the Fetter. Unlike schemes where the accrual rate is uniform, it is impossible with non-uniform accrual to determine what the benefit arising out of one year of past service will be without reference to what future service is actually undertaken. That is because the benefit provided is a single, aggregate benefit calculated by reference to the total years of service. So, if a member has only one year of service, they will only receive 1.67% of their pensionable salary for that year of service. However, if they have 10 years of service, they will receive 2% for each year of service, including the first year. The ability to accrue service in the future can therefore change the value of the benefits already accrued. As such, D1 also says that a member’s “interests” within the meaning of the Fetter - even as qualified by reference to “benefits already provided under the Plan” - must necessarily encompass an “interest” in future accrual. Moreover, if that interest in future service is captured by the Fetter, it must be captured for all members, whether their benefits accrue on a non-uniform or uniform basis. Finally, the termination of a member’s ability to accrue that further service must have resulted in such interest being “diminished” within the meaning of the Fetter such that the amendment to the Plan sought to be achieved by the Closure Deed was impermissible and, therefore, ineffective.[57]That the word “interests” is concerned with something different from, and more expansive than, “rights” can be seen from the other provisions of the Definitive Deed. This uses the words “rights” and “interests”, the latter appearing to carry different meanings in the different places it is used. So, for example, the use of that word at clause 11(i) of the Definitive Deed is as a term of art with a specific legal meaning in the context of the rule against perpetuities. Consistent with that, the “interests” referred to there are expressed to be in the Plan, not (as the Fetter provides) in respect of benefits thereunder. To not dissimilar effect, the reference in the third proviso to Clause 16(a) of the Definitive Deed in the context of the winding up of the Plan is concerned with “interests” in the assets of the Plan and, referring again to perpetuities considerations, by when such “interests” must vest. Clause 16(c) refers in the same context to the transfer to another approved scheme of an amount equal to the member’s interest in the Plan. Clause 17(b) is to similar effect in the context of the withdrawal of associated companies from the Plan and the appropriation of such assets of the Plan as equate to the member’s interest therein.[58]D1 considers more illuminating the simultaneous use of the different terms “rights”, “interests” and “benefits” in the 1975 Plan rules. For example, rule 17(a) refers to rights under other retirement benefits schemes from which a transfer of assets is accepted, with the Trustees conferring on the relevant member such “additional benefits” as are appropriate. D1 says that this shows that a “right” is different from a “benefit”. Rule 17(b) is concerned with transfers out of assets to other approved schemes where a member ceases to be an eligible employee, such transfer to be in full satisfaction of “all rights and interests” of the relevant member in the Plan “attributable to his membership thereof”. D1 says that given the cessation of employment and membership of the Plan, the “rights and interests” referred to are obviously in the past such that there is no need to use the word “accrued” here. Given that past service context, it is also not clear what the term “attributable to his membership thereof” adds, save perhaps ‘belt and braces’. However, that term does do a good job of clearly identifying past service rights and interests. If the draftsperson had wanted to bite only on past service rights and interests in the Fetter in clause 11(ii) of the Definitive Deed, they could have used this different, clearer wording.[59]As for the use of the terms “rights”, the various references in the original rules clearly connote something that is enforceable, including settlement, arbitration, conduct or defence of claims or proceedings relating to rights under the Plan (Definitive Deed, clause 5(c)(i)-(ii)), maintenance and preservation of such rights (clause 5(iv)), entitlement to such rights as may be agreed between the trustees and administrators of another approved scheme to which a transfer out of assets has been made from the Plan (clauses 16(c) and (17(c)), right to receive a refund of contributions in the context of a transfer out of assets following withdrawal of an associated company (clause 17(c)(ii)) and rights conferred by the Plan on contracted-out members in the context of assets transferred in from other retirement benefit schemes (rule 25(g)). D1 emphasised these matters to show that “rights or interests” in clause 11(ii) of the Definitive Deed are different from, and more extensive than, “rights” on their own.[60]3i’s suggestion that “interests” is concerned with discretionary benefits under the Plan does not make sense either: a member (or other person such as a spouse or dependant) in whose favour a discretionary power may arise already has the “right” to be considered for its exercise. “Interest” adds nothing to that existing “right”. If it is being suggested that discretions exercisable on the occasion of future contingent events give rise to “interests” rather than “rights”, that leads inevitably to “interests” covering contingent, future events generally, including “interests” in the future accrual of service.[61]As to the meaning of the phrase “benefits already provided under the Plan”, D1 accepts, as a matter of construction, that this must relate back to “accrued rights and interests”. However, the former phrase is not referring to benefits already paid out, already payable or accrued rather than to those benefits (including contingent and future benefits) which, in a structural sense, the Plan already makes provision for. As to what “already” means, this (neatly) excludes discretionary benefits not already exercised or those benefits only provided with the agreement of somebody other than the member (such as an employer or the Trustees).

Discussion

(a) Suggested significance of non-uniform accrual

[62]As noted, rule 5 of the 1975 Rules provided in a long service case for a pension calculated at the member’s retirement date at or after NRD on a non-uniform basis. However, this did not mean that benefits had not already accrued for each year of service completed prior to retirement. To the contrary, it is evident from the table to the Definitive Deed (reproduced in the 2002 Rules) that, at any particular point in their pensionable service, a member will have accrued the cumulative percentage of pensionable salary corresponding to their number of complete years of service. D1 also made the point that an average annual accrual rate over the period of pensionable service could be calculated at the point of vesting and that this may be higher than the percentage of pensionable salary accrued for some years of pensionable service. However, that does not mean that future service changes those benefits already accrued in those prior years. It merely reflects the accrual of a more valuable benefit in some years of service than in others.[63]Despite the statutory overlay of ‘preservation’ of benefits, the position was no different for early leavers. As noted, under the 1975 Rules (rule 16(b)), the leaving service benefit was a pension based on non-uniform accrual or, if better, uniform accrual over the period from joining the Plan to NRD. Under the former, the member’s early service benefits accrued on the basis indicated in the table for each year of pensionable service completed prior to leaving service. Under the latter, the member’s period of prospective pensionable service to (and, therefore, their prospective pension at) NRD were already known as at the date of joining the Plan, the actual benefit accrued thereafter being readily calculable by reference to service completed as a proportion of that period. There was again no uncertainty as to the rate of accrual.[64]Accordingly, although I accept - as was common ground - that the terms of the Definitive Deed are potentially relevant to the construction of the PoA, I found unpersuasive D1’s related arguments with respect to the non-uniform nature of the Plan benefits. In a non-uniform or uniform case, the member will be accruing a greater benefit if they undertake future years of service than if their benefits had stopped earlier. However, in either scenario, the past accrued benefit from time to time does not depend on, nor is it calculated by reference to, actual future service. As such, I am unable to accept D1’s argument that, as soon as a member had any non-uniform accrual of pension, they had an “interest” in future service accrual “in respect of benefits already provided under the Plan” such as to engage the Fetter.

(b) Final salary link/ future service link

[65]I now turn to some of the other construction arguments arising but, given the above discussion, and the need to avoid conflation of some of the concepts, it is appropriate to mention first the question of the link to final salary, reflecting the fact that a member of a final salary scheme earns in each year of service a pension based on a fraction of their final salary. In G4S Trustees v G4S [2019] ICR 141 (Ch), having explained the concept of final salary link, Nugee J (as he then was) noted (at [32]) that:- “In that way the pension attributable to each year of his pensionable service cannot be known, cannot be quantified, until the final salary is identified. But the identification of his final salary does not change or add to the benefits already earned. It identifies what they are.”[66]As such, the final salary link is properly considered as an accrued benefit in respect of past pensionable service. 3i accepts that amendments to the Plan rules which have the effect of diminishing past accrued benefits are precluded by the Fetter. However, as noted that final salary link was expressly preserved here by clause 10 of the Closure Deed.[67]D1 submitted (by reference to the first instance decision in BBC [2023] Pens. L.R.14 (at [19])), that the (unqualified) word “interests” within the meaning of the Fetter would be apt to include not only a final salary link but also a future service link. 3i submitted, in turn, that the protection of the final salary component of a past accruing benefit says nothing about whether a future accruing benefit is protected from amendment by the Fetter. I agree that, given their different nature, these elements fall to be considered separately as indeed they were in BBC against the proviso to the power of amendment in that case.

(c) The meaning of the Fetter

[68]Returning to why, in one sense, this matter is now before the court, that proviso in BBC prevented scheme amendments taking effect “as regards the Active Members whose interests are certified by the Actuary to be affected thereby.” As Lewison LJ explained (at [51]), the word “interests” in that proviso was “untethered to any composite phrase”. In this case, the structure of the Fetter is very different and, on its terms, carefully circumscribed. There are two elements: the first prevents the diminution of pension already in payment, the second the diminution of the “accrued rights or interests” of members or other persons. Such “rights or interests” are not expressed at large but by reference to “benefits already provided under the Plan”.[69]As BBC made clear (at [29]), the meaning of a particular clause ultimately turns on its own interpretation even if it might enjoy certain ‘family resemblances’ with others of the same type used elsewhere. However, it is pertinent in my view that, far from being “untethered”, the word “interests” in this case does feature in a composite phrase. It also features in conjunction with the word “rights”. Both words are then qualified by the same expression “already provided under the Plan”, echoing the “already being paid” language of the first element. There is nothing in that composite phrase to suggest that the relevant “interests” are concerned with future service accrual. To the contrary, and reinforced by the word “accrued” before “rights or interests”, its focus is very much on what has already occurred.[70]In this regard, I found unpersuasive the suggestion that the term “accrued rights” operated independently of “interests”: first, the idea that “accrued rights” is a compound noun followed by the (non-compound) noun “interests” was belied by the preceding definite article which operates in relation to both words. More substantively, D1 accepts the conceptual possibility of accrued “interests”, perhaps unsurprisingly given the language of the fetters in other cases such as BESTrustees v Stuart [2001] Pens LR 283, HR Trustees v Wembley Plc [2011] EWHC 2974 (Ch) and Dutton v FDRLtd [2017] Pens LR 14. These protected “any rights or interests which shall have accrued to each prospective beneficiary in respect of pension benefits secured under the Scheme up to the date on which such alteration or addition takes effect”.[71]Nor did I find compelling the suggestion that the term “accrued rights” was sufficiently well understood in 1975 or 2002 that it should be treated as operating in a freestanding fashion. In my view, D1’s reliance on that term as it featured in s.58 and schedule 16 of the Social Security Act 1973 (and 1993 successor legislation) was inapposite. The reference to “accrued rights” under the 1973 Act was stated non-exhaustively as including transfer credits and the operative provision was concerned with the ability to transfer between schemes, not amendment powers. Moreover, the legislative term excluded a final salary link even though, post-Courage, this is properly regarded as an accrued benefit with respect to past pensionable service. As for D1’s reliance on s.67 of the Pensions Act 1995, this was concerned with amendment powers but it did not come into effect until 20 years or so after the Definitive Deed. Although the term “accrued right” in s.67 was defined more meaningfully (in s.124(2)), this again excluded a final salary link. Finally, contrary to D1’s suggestion, the authorities do not appear to indicate the widespread use of the term “accrued rights” in fetters. In my view, these matters provided a somewhat thin basis for the suggestion that, historically, the term was well understood.[72]I therefore consider apt the “conventional understanding” explained in Cantor Fitzgerald such that the word “accrued” qualifies both “rights” and “interests”. That understanding reflects the ordinary and natural meaning of the language of the Fetter. I am reinforced in that view by the redundancy of the term “accrued rights” if “interests” were to be read as a standalone expression encompassing future benefit accrual. Then, as now, “interests” would be understood as including past “accrued rights” such that there would have been no need for the latter term to feature at all. Finally, the meaning contended for by D1 could easily have been achieved with the simplest of changes to the syntax of the Fetter.[73]There was also quite some discussion in this context of the role of discretionary benefits. 3i submitted that, were it necessary to identify the accrued “interests” contemplated by the draftsperson, they would be in the nature of discretionary benefits appurtenant to already accrued rights which, for some such benefits at least, might be said not to give rise to a right in themselves. BBC also appears to envisage (at [50]) that a person with a ‘right’ to be considered for a discretionary benefit might properly be described as having an ‘interest’ in that benefit. I accept that the potential for argument as to the status of discretionary benefits (including on account of their limited recognition for ‘preservation’ of benefits purposes under the Social Security Act 1973) may well explain why both words were used in the Fetter. That is reinforced by D1’s own submission concerning the status of those discretionary benefits not yet exercised prior to a relevant amendment to the Plan rules, such benefits said to be excluded from the scope of the Fetter.[74]Although the related problem canvassed by D1 resonated with that identified by 3i, D1’s proposed exclusionary solution seemed inapt. The language of the Fetter as a whole more obviously engages discretionary benefits appurtenant to accrued rights than future accruing benefits. However, on D1’s argument, the former would yield to the latter in terms of the protection afforded by the Fetter. Given the importance of these discretionary benefits, that would be a somewhat surprising outcome. I also found unpersuasive the related submission that the phrase “benefits already provided under the Plan” referred to benefits in a ‘structural’ sense (rather than benefits paid, payable or accrued). Whether considered in isolation, or in combination with the preceding language of the Fetter, that phrase too pointed to the provision of past service benefits.[75]Being directed to matters other than the PoA, I found of limited assistance the other provisions of the Definitive Deed and the 1975 and 2002 Rules. D1 placed some store by rule 17(b) of the 1975 Rules. However, if anything, this operated against D1. That rule (like the Fetter) used the words “rights” and “interests” together which, given the context in which they were deployed, had clearly already accrued. As for the suggestion that the term “attributable to his membership thereof” indicated past service more clearly than the word “already” in the Fetter, it was the pretext of that rule - cessation as an eligible employee - not that term, which indicated past service. Moreover, the words “already provided” in the Fetter do point firmly to past service.[76]I should also say that I have considered the other cases to which I was referred, including those cited in BBC (at [28]) which addressed the ‘family resemblances’ and those in which a future service link has been found (Lloyds Bank Pension Trust Corp Ltd v Lloyds Bank plc [1996] Pens LR 263 and BBC itself). However, given the different language of the fetters in those cases, they shed limited light on the Construction Issue beyond the matters from BBC already indicated above.[77]Finally, I agree with D1 that the different matters relied on by the parties by way of commercial context or common sense did not meaningfully advance the analysis.

(d) Conclusion/ disposal

[78]Adopting more of the language used in BBC, despite the many intricacies skilfully argued before me by all the parties in this case, I consider that the start and end point of the analysis is the natural meaning of the Fetter seen in its context. The Fetter is concerned with preventing amendments to the Plan which would diminish past service benefits. Its language is unambiguous. I must apply it.[79]Given the link to final pensionable salary maintained by the Closure Deed, I therefore have no hesitation in concluding that the Fetter permitted amendments to terminate or reduce the rate of future accrual of benefits under the Plan such that the amendments made by that deed were a permitted exercise of the PoA. The claim therefore succeeds.[80]I would ask the parties please to seek to agree an order giving effect to this disposal. If a hearing is required to address any consequential matters, the necessary arrangements can be made through my clerk.