Granada UK Rental and Retail Limited, Granada Media Limited, Granada Group Limited, Granada Limited, ITV PLC v The Pensions Regulator
| Jurisdiction | UK Non-devolved |
| Judge | Judge Bishopp |
| Neutral Citation | [2016] UKUT 0492 (TCC),[2016] UKUT 0492 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Pensions,8 November 2016 |
| Date | 08 November 2016 |
| Published date | 22 February 2017 |
[2016] UKUT 0492 (TCC)
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER Reference Nos: FS/2012/0001-5
BETWEEN:
(1) GRANADA UK RENTAL & RETAIL LIMITED
(2) GRANADA MEDIA LIMITED
(3) GRANADA GROUP LIMITED
(4) GRANADA LIMITED
(5) ITV PLC Applicants
and
THE PENSIONS REGULATOR Respondent
and
BOX CLEVER TRUSTEES LIMITED Interested Party
Tribunal: Judge Colin Bishopp
Sitting in public in London on 28 & 29 June 2016
Lord Pannick QC, Mr Michael Furness QC and Mr Edward Sawyer, counsel,
instructed by Hogan Lovells International LLP, for the applicants
Mr Nicolas Stallworthy QC and Mr James Walmsley, counsel, instructed by the
Pensions Regulator, for the respondent
Mr Jonathan Hilliard QC and Mr Benjamin Faulkner, counsel, instructed by
Eversheds LLP, for the interested party
CROWN COPYRIGHT © 2016
2
DECISION
Introduction
1. The underlying question in this reference is whether the tribunal should uphold a
determination of the Determinations Panel (“the Panel”) of the respondent, the Pensions
Regulator (“the Regulator”) to issue financial support directions (“FSDs”). The FSDs
would require the applicants (“the Targets”), all members of what is now the ITV group,
to provide financial support to the Box Clever Group Pension Scheme (“the Scheme”)
of which the interested party, Box Clever Trustees Limited (“the Trustee”), is the
trustee. The Targets referred the determination to the tribunal, and the Trustee was
joined shortly thereafter.
2. The subsidiary, case management, question now before me is whether certain
matters pleaded by the Regulator, the Trustee or both of them in the documents filed by
them in this reference are new in the sense that they were not raised in the Warning
Notice (“the WN”) which preceded the Panel’s determination or in the Determination
Notice (“the DN”) itself and, if so, whether permission should be given to the Regulator
or, as the case may be, the Trustee, to advance them. In form, the principal application
before me, brought by the Targets, is for a direction striking out parts of the Regulator’s
and the Trustee’s pleaded cases. The application first came before Judge Herrington in
September 2013, and was dismissed. The Targets appealed to the Court of Appeal
which set aside his decision on the ground that Judge Herrington had applied the wrong
test. The Court remitted the application to the Upper Tribunal for reconsideration in the
light of its explanation of the correct test: see [2015] EWCA Civ 228, [2015] 4 All ER
919. It did not indicate whether or not the remitted application should be dealt with by
Judge Herrington, but the Chamber President directed that the application should be
heard by a different judge and it is for that reason that it came before me. I was also
asked to make various further directions designed to steer the reference to a hearing, but
they were uncontroversial and I shall say no more about them.
3. The Targets were represented before me by Lord Pannick QC, Mr Michael
Furness QC and Mr Edward Sawyer, the Regulator by Mr Nicolas Stallworthy QC and
Mr James Walmsley and the Trustee by Mr Jonathan Hilliard QC and Mr Benjamin
Faulkner.
The material facts
4. The essential background facts are undisputed. I shall need to return to some of
the detail, but can set the scene with a brief summary. The Box Clever Joint Venture
(“the JV”) was agreed in 1999 and completed in June 2000. The Granada group of
companies agreed with its principal competitor, the Thorn group (now the Carmelite
group), on the combination of their respective television rental businesses. A new group
of companies, the Box Clever group, was formed; the shares in the holding company,
Box Clever Technology Ltd (“BCT”), were owned equally by Granada and Thorn.
Unless there is a reason to do otherwise, and despite the later changes of name, I shall
use the terms Granada, Thorn and Box Clever to refer to the relevant group, or a
member of it. Granada and Thorn then sold their respective rental businesses to Box
Clever for £980 million, of which £600 million was payable to Granada and £380
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