Brambles Administration Ltd v Ms Christine Mary Harvey

Hearing date: 22 October 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 14 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

INTRODUCTION

Procedural matters

The appellants were involved as either trustee or manager of three registered pension schemes (the Eleven Scheme, the SHK Scheme and the Gilbert Scheme respectively and together the Schemes). By his determination of 11 November 2024 (the Determination) that ran to some 170 pages, the Pensions Ombudsman (the Ombudsman) resolved complaints brought by the respondents, who are members of the Schemes. References in the remainder of this judgment to numbers in square brackets are to paragraphs of the Determination unless I specify otherwise. I will also tend to use defined terms set out in Determination.

The Ombudsman was highly critical of the appellants' conduct. He concluded at [715] that every single one of the Schemes' investments was worthless. He made findings of dishonesty in relation to all of the appellants together with other findings of breach of duty and maladministration. He ordered the appellants to pay substantial sums to the respondents and also ordered them to pay sums to the Schemes to make good the loss resulting from the Schemes' investments.

With permission granted by Marcus Smith J, the appellants appeal against the Determination on four grounds that are set out in paragraph 24 below.

Some features of the appeals have given rise to difficulties. The appellants are represented both by solicitors and by Ms Pope-Williams of counsel, although she was instructed just a few days before the oral hearing and had not settled either the grounds of Appeal, the Skeleton Argument or advised on what should be included in the appellants' bundle. The respondents, by contrast, were all unrepresented. None of the respondents submitted skeleton arguments that engaged with the appellants' case although they did send emails to the court explaining why they considered they had been very badly treated by the appellants. Only Mr S and Mr Y attended the hearing of the appeal (by remote video link) and Mr S did not attend beyond Day 1. Only Mr Y wished to make oral submissions and I heard those after Ms Pope-Williams had presented her arguments on the appeal.

That meant that this appeal had a different dynamic from that present in other appeals in which both sides are legally represented. Obviously, it is for the appellants to persuade me that their appeals should succeed. However, the respondents simply were not in a position to counter the arguments that the appellants were advancing. My task of considering whether the appellants' arguments were correct therefore necessarily involved me testing those arguments and I warned Ms Pope-Williams at the beginning of her oral submissions that I would probably have more than the usual number of questions for her. She answered those questions clearly and helpfully.

Some of the respondents' emails to which I have referred in paragraph 4 referred to without prejudice offers made by the appellants, before the Ombudsman's decision, to settle the dispute. I told the parties that I had seen some references to without prejudice material and asked if any application was to be made for me to recuse myself from hearing the appeal. No such application was made and, since I considered I could determine the appeal fairly, the appeal hearing proceeded and I was in due course provided with the respondents' emails redacted to remove references to without prejudice material.

The appellants, the respondents and the Schemes in more detail

The first appellant ( Brambles) was the administrator of each of the Schemes for some period. Before Brambles took over, a company called Commerce Resources Ltd, which traded as “Pension Administration Resources” ( PAR) had been the administrator of all of the Schemes for a period. Mr McNally was the sole director of PAR from 8 February 2012. A Mr Glenn Laurence House was the sole director and shareholder of Brambles.

The other appellants were all either individual trustees of the Schemes, in the case of Mr McNally and Mr Kaigh, or corporate trustees in the case of the fourth appellant ( Eleven Property) and the fifth appellant ( Gilbert Trading) for various periods. The trustee of the SHK Scheme for a period was SHK Property Services Limited ( SHK Property Services). SHK Property Services has been dissolved since the date of the Determination and is not party to this appeal. I refer to the trustee appellants together as the “ Trustees”.

Mr McNally was initially the sole director and shareholder of Eleven Property but on 26 June 2014, he transferred his entire interest to Mr Kaigh who became sole director and shareholder from that date ([389]). Mr Kaigh was at all material times the sole director and shareholder of Gilbert Trading ([390]).

The respondents were by no means the only investors in the Schemes: at [300], the Ombudsman noted that there were 117 investors in all three Schemes. The Ombudsman anonymized the names of the respondents in his Determination. Before releasing this judgment in draft, my clerk contacted the respondents to ask them if they were seeking to have their names anonymised in my judgment. Since none of the respondents made such an application, their full names appear on the cover sheet to this judgment. So that this judgment can be read easily together with the Determination, I will nevertheless use the same anonymized names as the Ombudsman used. Those anonymized names can be deduced from the last letter of each respondent's surname: for example Ms Harve y is “Ms Y”.

The Schemes invested in a variety of investments, ranging from leases of individual storage boxes at a storage facility, to shares in private companies (incorporated both in the UK and overseas) and loans to such companies. As will be seen, the appellants' challenges to the Determination do not require a detailed understanding of each Scheme's individual investments. It suffices to say that they were all high-risk, unregulated and highly illiquid ([471]).

Appendix 1 to this judgment contains a table that seeks to give an overview of each Scheme, its trustee, the investments that it made and which respondents were members of which Scheme.

The theme of “pensions liberation” runs throughout the Determination. Members of registered pension schemes are, in general, not able to access sums invested in that scheme until they turn 55. A pension fund that impermissibly makes available benefits to a member who is less than 55 is making an “unauthorised payment” for tax purposes which attracts a high tax liability for the member receiving the benefit and a charge on the scheme in question. All of the Schemes were involved in arrangements that were designed to circumvent these rules. The theory appeared to be that, instead of making a straightforward contribution to a Scheme, a member would “buy” an asset (X) for 100 (using illustrative figures) and would then “sell” asset X to the relevant Scheme for, say 120 (see [396]). The member would be left holding cash of 20 and the fiction was that this was a capital gain that the member had realised on a sale of asset X to the Scheme at an advantageous price rather than an early access of pension benefits.

That theory led to members being asked to sign “member-directed investment forms” that purportedly instructed the Schemes to apply sums held on behalf of that member in acquiring an “asset X” for a particular price. Examples of such member-directed investment forms are set out in Appendix 4 of the Determination. The first example is of a form signed by Ms Y that apparently instructs the trustees of the Eleven Scheme to purchase an interest in a lease of a storage box for a particular price.

The investments specified in the member-directed investment forms were pre-populated. Therefore, although she signed that form, Ms Y had not in fact approached the Eleven Scheme with a proposal that her pension be invested in leases of storage boxes ([48]). More strikingly, the Ombudsman found at [415] that none of the purported advantageous purchases and sales of assets X by the respondents ever took place. Instead, the relevant Scheme bought asset X using cash that the relevant respondent paid, or transferred in, by way of contribution to the relevant Scheme and made a cash payment (out of pension fund assets) to that respondent. In short, the Ombudsman's finding was that the Schemes were engaged in outright pensions liberation and seeking to disguise that with sham documentation and fictitious sales of assets X. None of the appellants seek to challenge that conclusion.

THE DETERMINATION AND THE GROUNDS OF APPEAL AGAINST IT

Overview of the Determination

The Determination is both thorough and lengthy. Any attempt to summarise its entirety would itself be similarly lengthy. However, no such summary is needed given the relatively narrow scope of the appellants' appeals. I will, therefore, summarise the Determination only...