(first) Mark Knight And Others As Trustees Of The Johnston Press Pension Plant And Others Against (first) Sedgwick Noble Lowndes Limited And (second) Mercer Limited
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2017] CSOH 21 |
| Court | Court of Session |
| Date | 10 February 2017 |
| Docket Number | CA45/11, |
| Published date | 10 February 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 21
CA45/11, CA46/11, CA47/11, CA48/11
OPINION OF LORD TYRE
In the cause
(FIRST) MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) THE YORKSHIRE WEEKLY NEWSPAPER GROUP LIMITED
Pursuers
against
(FIRST) SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED
Defenders
and in the cause
MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) T R BECKETT LIMITED
Pursuers
against
(FIRST )SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED
Defenders
and in the cause
MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) SUSSEX NEWSPAPERS LIMITED
Pursuers
against
(FIRST) SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED
Defenders
and in the cause
MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) WILFRED EDMUNDS LIMITED
Pursuers
against
(FIRST) SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED
Defenders
Pursuers: MacColl; Brodies LLP
Defenders: Martin QC, O’Brien; Shepherd & Wedderburn LLP
10 February 2017
Introduction
[1] On 17 May 1990, the European Court of Justice delivered its judgment in Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, holding that differential retirement ages for men and women in a pension scheme constituted discrimination for the purposes of the EC Treaty. Following a period of uncertainty as to the implications of the ruling, the Court decided in Coloroll Pension Trustees Ltd v Russell [1994] ECR I-4389 that, inter alia, it had no retroactive effect. In the meantime, employers and pension fund trustees had set about the process of equalisation of benefits that was required by the Barber judgment. Most achieved this by amending their schemes to raise the retirement age for women, typically 60, to that for men, typically 65.
[2] There remained, however, the question of members’ entitlements with regard to the period between the date of the Barber judgment and the effective date of amendment of their scheme. During that period members were entitled to equal benefits and the effect of the Coloroll decision was that this could generally be achieved only by accruing benefits to all members on the basis of the lower, ie female, retirement age. The period became known as the Barber window. As will be apparent, the longer the Barber window remained open, the higher the cost to a scheme in pension benefits.
[3] In more recent times, a number of cases have come before the courts in England and Scotland raising questions as to whether, and if so when, the Barber window was effectively closed in relation to a particular pension scheme: see eg Low & Bonar plc v Mercer Ltd [2010] CSOH 47 and Bett Homes Ltd v Wood [2016] CSIH 26. The four actions to which this opinion relates are of that type. They concern four pension schemes each of whose assets and liabilities have subsequently been transferred into the Johnston Press Pension Plan (“the Plan”). In each action the first pursuers are the trustees of the Plan, and the second pursuer is the principal employer of the Plan. The third pursuer in each action is the company which was the principal employer of the pension scheme with which that particular action is concerned, prior to the transfer of the assets and liabilities of that scheme to a predecessor of the Plan some time after the events with which these proceedings are concerned. The names of the pension schemes with regard to which the third pursuers were respectively the principal employers, and the abbreviated names that I shall use to refer to them, are as follows:
Case CA45/11: The Yorkshire Weekly Newspaper Group Limited Pension Fund (“the Yorkshire Scheme”);
Case CA46/11: The Beckett Retirement Benefits Scheme (“the Beckett Scheme”);
Case CA47/11: West Sussex County Times Limited Pension and Life Assurance Scheme (“the West Sussex Scheme”);
Case CA48/11: The Wilfred Edmunds Limited Pension and Assurance Scheme (“The Edmunds Scheme”).
[4] The defenders in each action are, and at the material time were, providers of professional services including pensions consultancy and pension administration. The first defender is a subsidiary of the second defender. It is averred by the pursuer in each case that from 1989 at the latest the first defender was engaged by the trustees under a contract to provide consultancy services in relation to the scheme in question and, subsequently, in relation to the Plan and its predecessors. It is further averred in each case that the scope of the services which the first defender contracted to provide extended to the provision of advice in relation to scheme amendments, including amendments to achieve the equalisation of pension ages required by Barber. Those averments are not admitted by the defenders, and the scope of the services, if any, that the defenders were contracted to provide at the material time with regard to each of the four schemes is contentious. In summary, the pursuer’s complaint in each case is that the first defender was in breach of contract and was negligent in failing to provide adequate advice, including relevant documentation, in order to ensure that the necessary procedural steps were taken in terms of the scheme documentation to equalise benefits, and thereby close the Barber window, prior to the execution of a formal deed of amendment of the scheme. They sue in each case for a sum said to be necessary to provide benefits to which scheme members are entitled in respect of the period between (a) the date when equalisation ought to have taken effect but for the first defender’s breach of duty, and (b) the date of formal amendment of the scheme when equalisation did take effect.
[5] The defenders deny any breach of contractual or delictual duty. Additionally, however, in each case they narrate facts and documentation from which, they say, it may reasonably be inferred that the necessary procedural steps were taken timeously by the principal employer and/or the scheme trustees (as the case may be): cf Bett Homes Ltd v Wood at paragraph 28. That being so, the defenders contend, there was no period in respect of any of the schemes during which the Barber window remained avoidably open, with the consequence that no further benefits are due to any member of the Plan, and none of the pursuers has sustained any loss. On 5 and 6 January 2017, I heard a preliminary proof in all four actions, restricted to this issue.
Matters common to all four actions
[6] The events with which these actions are concerned took place more than 20 years ago. Inevitably, the documentation that remains available after such a long passage of time is incomplete. Extensive searches have been carried out by all parties. The preliminary proof was conducted on the agreed basis that all extant documentation had been placed before the court. No oral evidence was led. In each action the parties agreed a joint minute of admissions which, in addition to formal matters such as documents being taken to be what they bore to be, included agreement
- that the parties had carried out searches for surviving records relating to the equalisation of retirement ages under the scheme in question and had not located any documents, other than those produced, showing or tending to show the manner in which the decision to equalise retirement ages was taken or implemented; and
- that, other than the documents produced in the joint bundle, the pursuers had no records to indicate that the requisite steps had been taken; that the pursuers had investigated these matters internally; and, without prejudice to any question of the inferences to be drawn from the documents produced, that the pursuers were unable to confirm whether or not any such steps were taken at any stage in relation to the purported timeous scheme amendment.
[7] It was explained on behalf of the pursuers that their concern was to avoid a shortfall in any of the schemes. Advice had been received that there was room for doubt as to whether the steps that were necessary in terms of the rules of each of the schemes had been timeously taken. In these circumstances it was in the best interests of the scheme beneficiaries to offer a robust contradiction to the defenders’ contention that the requisite steps had been taken.
The presumption omnia praesumuntur rite esse acta
[8] The maxim omnia praesumuntur rite et solemniter acta esse (in its full form) is paraphrased in English in Trayner’s Latin Maxims and Phrases (1894) as “All things are presumed to have been done duly and in the usual manner; or, all things are presumed to have been solemnly done and with the usual ceremony”. The examples given by Trayner relate to the old rituals for symbolic delivery of land, but the maxim has much wider application. In Trustees of the Scottish Solicitors Staff Pension Fund v Pattison & Sim 2016 SC 284, Lord Drummond Young, delivering the opinion of the court, noted at paragraph 19 various cases in which it had been applied to commercial transactions. One of these was Bain v Assets Co (1905) 7F (HL) 104, in which Lord Halsbury LC explained the maxim, sometimes referred to as the “presumption of regularity”, as follows (page 106):
“It appears to me that the matter rests, not upon any question of technical law, but upon broad common sense, and especially upon these two principles—that at this distance of time every intendment should be made in favour of what has been done as being lawfully and properly done, and that the persons who are now insisting upon these rights have lain asleep upon their rights so long that as a matter of fact we know that witnesses have perished, and the opportunities which might have been had if the question had been earlier raised have passed away.”
[9] The ...
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