Smithson and Others v Hamilton

JurisdictionEngland & Wales
JudgeLord Justice Mummery
Judgment Date23 July 2008
Neutral Citation[2008] EWCA Civ 996
Docket NumberCase No: B3/2008/0003; B3/2008/0059
CourtCourt of Appeal (Civil Division)
Date23 July 2008

[2008] EWCA Civ 996

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

(SIR ANDREW PARK)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Case No: B3/2008/0003; B3/2008/0059

Between:
Smithson & Ors
Appellant
and
Hamilton
Respondent

Mr B Green Qc And Mr P Newman (instructed By Wragge & Co) Appeared On Behalf Of The Appellant.

Mr C Nugee Qc And Mr N Stallworthy (instructed By Field Fisher Waterhouse) Appeared On Behalf Of The Respondent.

Lord Justice Mummery
1

On 10 December 2007 Sir Andrew Park handed down judgment in the case of Smithson & Others v Hamilton, which is now reported at [2008] 1 WLR 1453. By his judgment he dismissed a claim and a counterclaim. The claimants were the trustees and participating companies of a company pension scheme. The defendant, Mr Hamilton, was a deferred member of the scheme. The scheme was established by an interim deed, which provided for its regulation on an interim basis until it was superseded by the definitive deed, which introduced scheme rules with retrospective effect. The parties to the definitive deed were the principal employer and the original trustees; they were all officers and employees of that company.

2

There was a defect in the drafting of the scheme rules and it is common ground that this was the result of a mistake. By a mistake the rules provided that a deferred member who had attained the age of 60 could take an immediate pension without any actuarial reduction for early payment. This was in contrast to the early retirement pension to which an active member was entitled on or after the age of 60. That was subject to actuarial reduction. The effects of the rule as it was drafted were not appreciated at the time of the execution of the definitive deed or for a period of about seven years thereafter.

3

The claimants started proceedings in September 2005. The application was not for rectification of the scheme. The claim sought that the offending rule, 3.5.2.1, should be set aside as regards relevant words or declared void in reliance on the principle that, where a trustee exercised a discretion pursuant to the terms of the trust and the effect of the exercise was different from that intended, the court would set aside his action if it was clear that he would not have acted as he did had he not failed to take into account considerations which he ought to have taken into account, or taken into account considerations which he ought not to have taken into account.

4

The claimants submitted that the decision to introduce the rule by entering into a definitive deed was vitiated because the decision had been made without the original trustees taking any, or any proper, account of the true effect of the rule as drafted, the discrepancy between the position of deferred and active members on retirement between 60 and 65 and the effect on the cost of funding the scheme. Alternatively, relief was sought in equity from the consequences of the mistake.

5

As I said, Sir Andrew Park dismissed the claim and the counterclaim, for the very detailed reasons which are given in his judgment. There was an appeal to this court by the claimants and there was a cross-appeal by Mr Hamilton, the cross-appeal raising points of laches and also a separate point relating to the manner in which the trustees had equalised the normal retiring date in the scheme following the ruling of the Court of Justice.

6

The appeal was due to be heard by this court starting today. The court was then notified that a compromise had been reached between the parties and what was now sought from the court was approval of the compromise under part 19. 7 CPR. 19.7 deals with the representation of interested parties who cannot be ascertained, and who are affected by other circumstances covered by the rule. 19.7 provides that the rule applies to, among other things, claims about “(c) the meaning of a document” and also, in (b), “property subject to a trust”. Paragraph (2) provides that: “The court can make an order appointing a person to represent any other person or persons in the claim where the person or persons to be represented…” and then (d) says: “…are a class of persons who have the same interest in a claim” and (i) says: “one or more persons of that class are within subparagraphs (a), (b) or (c)”—that is, persons who are unborn, cannot be found, or cannot easily be ascertained —or (ii) “to appoint a representative would further the overriding objective.” Under (3) an application for an order under paragraph (2) may be made by “(i) any person who seeks to be appointed under the order; or (ii) any party to the claim” and (b) “may be made at any time before or after the claim has started”. Provision is then made in (4) for the application notice for an order under...

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3 cases
  • Merchant Navy Ratings Pension and Another v Stena Line Ltd and Others
    • United Kingdom
    • Chancery Division
    • 25 February 2015
    ...the existence of a surplus is dependent to a great extent upon the assumptions applied by the actuary. 204 Mr Tennet also referred to Smithson v Hamilton [2008] 1 WLR 1453, in his written opening. That was a case concerned with an alleged mistake in pension scheme documentation and the appl......
  • Mr Olaf Rogge v Mrs Sophia Katerina Rogge
    • United Kingdom
    • Chancery Division
    • 23 July 2019
    ...– 80. This decision was not affected by the subsequent compromise of that case effected with the assistance of the Court of Appeal ( [2008] EWCA Civ 996). At paragraph 61 Sir Andrew Park summarised his view as follows: “The key points which I make in this part of my judgment are the follow......
  • PNPF Trust Company Ltd v Taylor & Others
    • United Kingdom
    • Chancery Division
    • 10 July 2009
    ...& Others v. United Kingdom (1986) 8 EHRR 329 and Wendenburg & Others v. Germany (Application 71630/01, 6th February 2003), (see also Smithson v. Hamilton [2008] EWCA Civ 996 at paragraph 13) show that Article 6 confers no absolute right of access to the court but only a qualified access. Ac......

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