Icm Computer Group Ltd and Others v Colin Stribley and Others

JurisdictionEngland & Wales
JudgeMrs Justice Asplin
Judgment Date04 June 2013
Neutral Citation[2013] EWHC 2995 (Ch)
Date04 June 2013
CourtChancery Division
Docket NumberCase No: HC13F01452

[2013] EWHC 2995 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

The Rolls Building

7 Rolls Buildings

Fetter Lane

London

EC4A 1NL

Before:

Mrs Justice Asplin

Case No: HC13F01452

Between:
(1) Icm Computer Group Limited
(2) Icm Business Continuity Services Limited
(3) Icm Computer Group (Scotland) Limited
(4) Network Disaster Recovery Limited
(5) Phoenix It Services Limited
(6) Servo Limited
Claimants
and
(1) Colin Stribley
(2) Sandra Strachan
(3) John Craig
(4) Paul Walker
Defendants

Mr Paul Newman QC (instructed by Nabarro LLP) appeared on behalf of the Claimant

Mr Andrew Short QC (instructed by Squire Sanders) appeared on behalf of the First, Second and Third Defendants

Mr Jonathan Evans (instructed by Simmons & Simmons) appeared on behalf of the Fourth Defendant

Approval Judgment

Mrs Justice Asplin
1

This is an application by the Claimants for summary judgment in respect of a claim for a declaration as to the true construction of an amendment to the governing provisions of an occupational pension scheme known as the ICM Computer Group Pension and Life Assurance Scheme ("the Scheme"). The First Claimant is the Principal Employer of the scheme and the other Claimants are participating employers. The first three Defendants are the current trustees of the scheme and the fourth Defendant is a member who has been joined to represent all the members and beneficiaries of the scheme, in whose interest it would be to oppose the claim and a representation order is sought in that regard. I am very happy to make that order.

2

The issue concerns an amendment to the rules of the Scheme made in February 1997 which the Claimants claim operated to raise the normal retirement date ("NRD") of female members of the Scheme from 60 to 65 so as to align the NRDs of male and female members in accordance with requirements of European law. Prior to the amendment, and if the amendment cannot be construed in the way which the Claimants contend, the effect of European law would be to entitle male members to an NRD of 60 in respect of pensionable service after 17 th May 1990.

3

The Claimants make this application on the basis that in their submission there is no realistic prospect of successfully defending the claim and there is no other reason why the claim should proceed to trial so that the requirements of CPR Rule 24.2 are satisfied. The Fourth Defendant, in whose interest it is to oppose the application, has taken specialist advice and does not oppose the Claimants' application, and his counsel, Mr Jonathan Evans, has provided a detailed and very helpful opinion to the Court in that regard.

4

The Trustees maintain a neutral stance as to the application, having set out the issues helpfully in Mr Short's skeleton.

5

As a declaration is sought I nevertheless heard full argument. ICM's claim is for a declaration that the rules of the Scheme were validly and effectively amended by a letter dated 20.02.97 (the "February Authority Letter") with effect from 01.03.97, such that the Normal Retirement Age ("NRA") for female members of the Scheme was altered from 60 to 65 for service after that date to make it the same as the NRA of male members under the rules of the Scheme).

6

The Scheme was established by a declaration of trust dated 17 th April 1986 and was originally administered by the Legal and General Insurance Society Limited. The Scheme is currently governed by an initial definitive trust deed dated 26 th July 1994 to which a set of rules was annexed. By the appendix of the 1994 rules, NRD (normal retirement date) was defined as the 65 th birthday of a male member and the 60 th birthday of a female member. The power to amend the governing provisions of the Scheme was set out in clause 16 of the 1994 deed in the following terms so far as they are material:

"The principal employer may from time to time, without the concurrence of Members, authorise the Trustees in writing to alter or add the terms to the conditions of the Rules and/or the trusts powers and provisions of this Deed and any such alteration or addition may have retrospective effect, but so that no alteration may be made by the Trustees alone without the consent of the Principal Employer. The Trustees shall forthwith declare any such alteration or addition to the Rules in writing under their hands and any such alteration or addition to this Deed by deed… This Deed and/or the Rules shall stand amended accordingly with effect from the date of such declaration or from such other date, whether future or past, as is stated in such declarations. In the event of the Trustees making any such alteration or addition to the Rules the Trustees shall forthwith notify or arrange for the notification of each Member affected thereby individually in writing of the effect thereof."

7

I should mention that there is no dispute in this case as to the validity of the amendment itself. The question is what it means. As I have already mentioned, what was then Article 119 of the Treaty of Rome required EU member states to maintain the application of the principle that men and women should receive equal pay for equal work. In Barber v. Guardian Royal Exchange [1991] 1QB 344, the European Court of Justice held that Article 119 applied to benefits under occupational pension schemes and that it was unlawful to discriminate between men and women by, for example, providing for pension benefits to be paid on retirement at different ages. Following subsequent cases, in particular Coloroll Pension Trustees Limited v. Russell [1994] OPLR 179, the requirements of equal treatment of male and female pension scheme benefits were confirmed as follows: (1) for a pensionable service prior to 17 th May 1990 it was not unlawful for a male and female pension benefits to be provided at different retirement dates; (2) a scheme could be amended so as to equalise benefits up or down, for example, to make both male and female NRD at 60 or at 65; (3) however, for pension service between 17 th May 1990 and the date of any such amendment, known colloquially as the " Barber window," the disadvantaged member was to be treated in the same way as the advantaged member. For example, if male members' NRD was 65 and female members was 60, male members would be treated as if their NRD was at age 60 during the Barber window.

8

According to the minutes of a meeting the Trustees held on 29 th November 1996, at which Mr Wainwright of the Company was present representing the Principal Employer, the Trustees made the following decision:

"The trustees considered the Barber judgment and its ramifications and resolved that normal retirement dates should be set at 65 years for all scheme members. The authorised signatory was instructed to liaise with the scheme administrators to prepare the paperwork with the intention of equalising the scheme as at 1 st January 1997."

9

Thereafter the authorised signatory, Mr Wainwright, liaised with a Mr Morrow of Legal and General and by a letter dated 7 th February 1997, Mr Morrow, having referred to the recent meeting of the trustees and in particular to the subject of equalisation of NRDs and having made specific reference to the extension of cover to age 65 for life assurance Long Term Disability Income Benefit and the additional widower's benefit, which required the satisfaction of the term "Actively at Work," concluded by requesting acceptance of the terms as to the continued insurance and the benefits, together with a copy of the announcement as issued to members and a Scheme Amendment Authority duly signed by the Trustees.

10

It was in accordance with that final request that Mr Morrow was sent a letter dated 20 th February 1997, signed by each of the Trustees and on behalf of the Company, which has become known as the "February Authority" and which is the document which is to be construed. It provided as follows:

"The Trustees of the Scheme have resolved, with the agreement of the Principal Employer, to make the following alterations to the Scheme and Legal and General is hereby authorised to implement the alterations with effect from 1 st March 1997."

Nothing turns, at least for the purposes of this hearing, on the difference between 1 st March 1997 referred to there and the date of 1 st January 1997, which was in the resolution of the Trustees themselves, which was dated 29 th November 1996.

11

But to return to the February Authority: having set out that preamble, the first numbered paragraph is in the following form:

"1. Normal retirement age ("NRA") for all existing Scheme Members, both male and female, would be deemed to be 60 in respect of pension attributable to the following periods of Pensionable Service:

(a) For existing female members all Pensionable Service up to and including 28 th February 1997 and;

(b) For existing male members all Pensionable Service between 17 th May 1990 and 28 th February 1997."

The remainder of the paragraphs are in the following form:

"2. The widower's pension is to be calculated on the same basis as that upon which the widows' pension is currently calculated. This means that on death in service, the widower's pension will be calculated using potential service from the date on which the deceased joined the scheme to age 65.

3. The upper eligibility is revised so that females in an eligibility category may join, so long as they are under 60.

4. A new cash factor for males and females is introduced and will be 9:8:1 at 65 th birthday, a sliding scale of 0.02 applies on a member retiring before or after their 65 th birthday.

5...

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