England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
HIS HONOUR JUDGE DAVID COOKE
HC12C00610
IN THE MATTER OF THE RIGID CONTAINERS GROUP STAFF PENSION FUND
AND IN THE MATTER OF THE RIGID CONTAINERS GROUP WORKS PENSION FUND

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2013

Lord Justice Patten :

1. This is an appeal by Rigid Group Limited against paragraph 5 of the order of HH Judge David Cooke (sitting as a deputy judge of the Chancery Division) which was made on 20^th December 2012 in CPR Part 8 proceedings brought to determine a question of construction in relation to two occupational pension schemes. The schemes in question are the Rigid Containers Staff Pension Fund ("the Staff Scheme") and the Rigid Containers Group Works Pension Fund ("the Works Scheme"), both of which were set up to provide retirement benefits on a final salary (or defined benefit) basis for the employees of the appellant company and certain associated employers. The appellant ("the Company") is the Principal Employer as defined under both schemes and the respondents to the appeal are (variously) the trustees of the schemes who represent the members for the purpose of the proceedings ("the Trustees").
2. It is common ground that there are no material differences between the two schemes in relation to the issues raised on this appeal and the references which follow in this judgment to the "Rules" of "the Scheme" are to be construed as applicable to both.
3. The schemes are in the process of winding-up. Notices have been given by the Company pursuant to Rule 21A of the Rules and the Trustees have resolved to wind up both schemes with immediate effect. The Trustees are now in the process of applying the Scheme assets in the purchase of insurance policies or annuity contracts in the names of Scheme members which are designed as nearly as possible to produce for members benefits equivalent to their annual benefits under the Scheme. The buy-out value of those benefits will obviously depend upon prevailing annuity rates and the value of the Scheme assets available to purchase them.
4. If the value of the Scheme assets relative to the buy-out value of the accrued benefits means that there is a deficiency in the assets of the Scheme the deficit will qualify for relief under s.75 of the Pensions Act 1995 ("the 1995 Act"). This seeks to mitigate the effect of the shortfall by imposing upon the Company as employer a liability to make up the difference. Section 75 has been amended by s.271 of the Pensions Act 2004 with effect from 6^th April 2005 but not in a manner relevant to this appeal. It provides:

"75. Deficiencies in the assets

(1) If, in the case of an occupational pension scheme which is not a money purchase scheme, the value at the applicable time of the assets of the scheme is less than the amount at that time of the liabilities of the scheme, an amount equal to the difference shall be treated as a debt due from the employer to the trustees or managers of the scheme.

(2) […..]

(3) In this section "the applicable time" means —

(a) if the scheme is being wound up before a relevant insolvency event occurs in relation to the employer, any time when it is being wound up before such an event occurs, and

(b) otherwise, immediately before the relevant insolvency event occurs.

(4) For the purposes of this section a relevant insolvency event occurs in relation to the employer—

(a) in England and Wales—

(i) where the employer is a company, when it goes into liquidation, within the meaning of section 247(2) of the Insolvency Act 1986, or

(ii) where the employer is an individual, at the commencement of his bankruptcy, within the meaning of section 278 of that Act, or

(b) […..]

(5) For the purposes of subsection (1), the liabilities and assets to be taken into account, and their amount or value, must be determined, calculated and verified by a prescribed person and in the prescribed manner.

[…..]"

5. No relevant insolvency event has occurred in respect of the Company so that the applicable time in this case under s.75(3)(a) is any time after the commencement of the winding-up. This was 13^th July 2000 for the Works Scheme and 17^th July 2000 for the Staff Scheme.
6. The amount of the s.75 debt is determined by a calculation carried out in accordance with the Occupational Pension Schemes (Deficiency on Winding Up etc) Regulations 1996 ("the Regulations") in force at the date the Scheme went into winding-up: see s.75(5). Regulation 3 of the Regulations prescribes a method for valuing the relevant assets and liabilities by reference to the Occupational Pension Schemes (Minimum Funding Requirement and Actuarial Valuations) Regulations 1996 ("the MFR Regulations"). It is not necessary for the purposes of this appeal to set out the details of that. The result is that the s.75 debt requires to be calculated by reference to what is referred to as the minimum funding requirement ("MFR") of the Scheme. This is based on a designated portfolio of securities in the form of gilts and equities with an assumed yield in excess of anything obtainable in the market. It is not based on the actual cost of funding the trustees' obligations to buy out the liabilities to members. It leads inevitably to a valuation of scheme liabilities to members which will be less than the amount of those liabilities calculated on a buy-out basis. The assets of a scheme (even including the s.75 debt calculated as aforesaid) are therefore unlikely in most cases of a scheme in deficit to be sufficient to provide for members' benefits in full.
7. As a means of reducing or minimising the shortfall, trustees will often enter into what is now commonly referred to as a Headway arrangement after the decision of the Court of Appeal in Easterly Ltd v Headway Plc [2009] EWCA Civ 793. The purpose of a Headway arrangement is to maximise the amount of the s.75 debt by effecting a partial buy-out of members' liabilities before calculating and recovering the s.75 debt. This is typically achieved by a three-stage process in which:

(i) the trustees apply the entirety of the available scheme assets (after a retention for expenses) in the purchase of annuities for the payment of benefits;

(ii) the trustees fix the "applicable time" for the calculation of the s.75 debt after the completion of stage (i) and then collect the debt from the employer;

(iii) the trustees apply the amount of the s.75 debt in the purchase of further annuities so as to secure further benefits to which members are entitled under the scheme.

8. A Headway arrangement is often referred to as a partial buy-out because the trustees secure the benefits of the members in a two-stage process rather than by a single purchase of annuities with all available assets including the s.75 debt. The advantage of the arrangement is that it leads to a significant increase in the amount of the s.75 debt which can be illustrated by reference to the example set out in the judgment of Lord Neuberger of Abbotsbury MR in Headway at [5]-[8]:

"5. Conventionally, trustees who have entered into a PBO contract will assess and collect the section 75 debt, and then pay it over to the insurance company before completion of the PBO contract, thereby increasing the annuities payable to members. However, in this case, the Trustee has devised an arrangement ("the Arrangement") which is intended to increase the section 75 debt recoverable from the Company. What this would involve, in summary terms, is completing the PBO contract first, and only then seeking to quantify and recover the section 75 debt from the Company.

6. The Arrangement can be seen as having three stages. The first stage would involve the completion of the PBO contract, and the members (or, technically, the former members) being issued with annuity contracts, purchased with the assets currently in the Scheme. The second stage would involve the quantification and recovery of the section 75 debt. The third stage would involve that sum being used to purchase further annuity contracts for the members. The consequential differences for members of the Arrangement over the conventional approach are, first, they will each have two annuity contracts rather than one, and, secondly, if (but only if) the Trustee succeeds in upholding the Chancellor's decision, the aggregate value of the two annuities will be greater than the value of the single annuity under the conventional approach.

7. The nature and alleged effect of this proposed Arrangement is most easily appreciated by reference to an example given below by Mr Simmonds QC, who appears for the Trustee:

"A. Assume the Scheme has assets of £10m and liabilities calculated at (a) £20m on the full buy-out basis and (b) £15m on the prescribed section 75 basis.

B. If the Trustee adopts the conventional approach and collects the section 75 debt before buying out members' benefits, the Employer will be liable to pay the £5m section 75 shortfall and there will remain a £5m deficit on buyout.

C. If the Trustee adopts the partial buy-out route, it will apply the £10m assets in buying out half (i.e. 10/20) of the Scheme liabilities [- stage one]. The Trustee will then fix an "applicable time" for section 75 purposes. At that time the Scheme's liabilities on the prescribed section 75 basis will be £7.5m (i.e. 50% of £15m because half of the liabilities are bought out at stage one) and the assets will be nil. The section 75 debt is therefore £7.5m rather than £5m [- stage two]. The Trustee will collect this and will accordingly have an extra £2.5m available to meet the remaining buy-out cost of £10m [- stage three].

D. The difference in outcome is accounted for by the fact that, under the partial buy-out route, the liabilities discharged at stage one are effectively valued on the buy-out basis rather than on the prescribed section 75 basis."

8. The Trustee's analysis of the discharge of benefits by the purchase of annuity policies has been referred to as the "benefit for benefit" approach, in contrast with the analysis of the Company, which has been called the "value for value" approach. In Mr Simmonds's example, therefore, the value for value approach treats the buy-out at stage one as satisfying two-thirds (i.e. 10/15) of the Scheme liabilities valued in accordance with section 75, so that the section 75 debt is £5m, as it would be under the conventional approach."

9. Based on the actuary's estimate as of 30^th September 2009, the implementation of a Headway arrangement would result in an additional s.75 debt for the Company of £1.9m in the Staff Scheme and £1.6m in the Works Scheme. This would still not be enough to fund the full buy-out cost of the members' benefits.
10. The efficacy of a Headway arrangement was confirmed by the Court of Appeal in Headway itself and we are not concerned to re-visit that in any way. The issue on the present Part 8 claim and on this appeal is simply whether the Trustees have power under the Rules of the Scheme to effect a buy-out in stages so as to obtain the benefits of the Headway arrangement as described above. This turns entirely on the construction of the relevant rules which are rules 21A-C.
11. They provide as follows:

"21A. GENERAL

The Principal employer may terminate the Scheme by written notice to the Trustees….

If the Scheme is terminated under the foregoing provisions of this Rule, the Trustees will either defer winding-up the Scheme and meanwhile pay benefits in accordance with the Rules, or wind it up as described in the remainder of Rule 21…..

21B. WINDING-UP THE SCHEME

If the Trustees decide not to defer winding-up the Scheme then, in a way which complies with the Disclosure Laws, they will tell all Members and other persons receiving benefits that the winding-up has started.

When the Trustees wind-up the Scheme, they will set aside sufficient assets to pay the expenses of winding-up. They will then pay all sums due before the winding up started, including lump sums in respect of Members who have died within the previous 2 years. They will then apply the rest of the Scheme assets as described in Rule 21C.

…

21C. APPLICATION OF SCHEME ASSETS

(a) Except as described in Rule 21E or Rule 21F or the Contracting-out Provisions, the Trustees will wind-up the Scheme by buying in the names of beneficiaries insurance policies or annuity contracts from the U.K. office or branch of an Insurance Company. The policies or contracts will be consistent with the Preservation Laws and with approval under Chapter I of Part XIV of the 1988 Act.

(b) Where assets are attributable to Members' additional voluntary contributions, they will be subject to Rule 21D.

(c) Where assets are not attributable to Members' additional voluntary contributions they will be subject to the provisions of this paragraph of this Rule 21C. Benefits will be provided as nearly as practicable the same as beneficiaries' entitlements under the Scheme, calculated as if all members still in Pensionable Service when the winding-up started had then left with a Preserved Pension under Rule 9B (regardless of the length of their Qualifying Service). If any assets remain the Trustees may increase all or any of the benefits or provide additional benefits to any extent that they consider appropriate …"

12. Mr Simmonds QC for the Company accepts that Rule 21C enables the Trustees to satisfy their obligations to the members on a winding-up by buying more than one policy or annuity in their respective names. What, he says, they are not permitted to do is to carry out a staged buy-out of the Scheme liabilities.
13. This restriction, he submits, is supported by the language of Rule 21C. Rule 21C(a) imposes a duty on the Trustees to wind-up the scheme by buying policies or annuities in the names of the beneficiaries. These are to provide benefits "as nearly as practicable the same" as those to which the beneficiaries are entitled under the Scheme. In the case of a deficiency of assets as here, the performance of that duty requires the Trustees to make full use of all the scheme assets. Compliance with the duty discharges the Trustees from their obligations to provide benefits under the Scheme. The imposition of a duty carries with it by implication (absent express grant) whatever powers are necessary to perform that duty. The nature and scope of those powers are therefore dictated and circumscribed by the scope of the duty to which they relate. In this case the duty is one to wind up the Scheme by buying the necessary policies and annuities in the names of the beneficiaries. That duty cannot be performed in full unless and until the specified liabilities are discharged in full or as fully as is possible. In order to discharge the duty, it is only therefore necessary for the Trustees to have the power to buy out the members' entitlements in full: not merely in part.
14. Conversely, Mr Simmonds argues, for the Trustees to be able under the Rules to perform their duty under Rule 21C(a) in part (as under a Headway partial buy-out) it would be necessary for the rules to provide a pro tanto discharge of their liabilities. In order to be effective, the first stage of the Headway arrangement has to operate as a partial buy-out of members' entitlements and not, as what Mr Simmonds described, as a buy-in: i.e. the purchase of an annuity as an investment with the possibility of it later being used in specie to provide long-term benefits to a member on a winding-up.
15. Rule 21 says nothing about the Trustees being discharged pro tanto at the end of a partial buy-out. Mr Simmonds submits that if a partial buy-out was permitted one would expect to see a provision explaining whether the partial discharge of the members' entitlement was on a benefit-for-benefit basis or a value-for-value basis. The increase in the s.75 debt under the Headway arrangement depends upon treating the partial buy-out as discharging the liability to members (and therefore the duty of the Trustees) on a benefit-for-benefit basis. If the value-for-value approach applies then the Scheme assets available at stage one go to reduce the s.75 deficit pound for pound with the result that the remaining s.75 debt will be no higher at stage two than it would be if it had been collected from the employer prior to any buy-out of the members' benefits: see paragraph 8 of the judgment in Headway quoted earlier.
16. Mr Simmonds says that these problems did not occur in Headway itself because the rules of that scheme contained a clear power which permitted a staged buy-out and also confirmed that a partial buy-out would only discharge the relevant portion of the actual liability to members rather than that calculated on a s.75 basis. In other words, it was benefit-for-benefit. In this case, he says, there is nothing to indicate how any partial buy-out would operate to reduce the relevant liabilities, which suggests that a staged buy-out was never contemplated. This is not surprising given that in 1996 when the current Rules of the Scheme took effect the possibility of a Headway arrangement or even the need for it were not foreseen.
17. Some support for this construction of Rule 21C is also said to be provided by other rules. Rule 10A gives a member who ceases to be in pensionable service at least a year before normal pension age (as defined) the right to require the Trustees to use the cash equivalent of his pension to buy "one or more annuities". The rule goes on to state that:

"Where the Trustees have used the cash equivalent of the Member's pension in accordance with this Rule, they will be discharged from any obligation to provide the benefits to which the cash equivalent related."

18. Mr Simmonds says that the words quoted obviously contemplate a full discharge of the early leaver's pension entitlement with a concurrent discharge of the Trustees' liabilities under the Scheme. The cash equivalent has to be read as referring to the entire cash equivalent and not only part of it. The rule permits the purchase of more than one annuity for the member but only a single buy-out. Similarly in Rule 14F:

"Instead of providing benefits under the Scheme in respect of a Member, the Trustees may buy a "buy-out" policy in the name of the Member or other beneficiary from the U.K. office or branch of an Insurance Company. The policy must satisfy the requirements of Rule 10B."

19. This is also, he says, an all or nothing provision. There is nothing here which expressly confers the power to buy-out the member's benefits in part. Its construction as a single, once and for all, provision is further supported by the fourth paragraph of the rule which states:

"The Trustees will calculate the amount of the premium [i.e. the premium payable in respect of the buy-out policy] after considering actuarial advice. The Trustees must be reasonably satisfied that the premium is at least equal in value to the entitlement under the Rules of the Member or other person concerned."

20. The reference to "the entitlement" must in the context of a power to replace benefits under the Scheme with a buy-out policy be read as meaning the entire entitlement of the member. Otherwise one would have expected the draftsman to have qualified the last sentence referring to the premium being equal in value to "the entitlement under the Rules of the Member" with words such as "or that part thereof as the premium relates to".
21. Some reference was also made to the Overriding Appendix to the Rules which deals with guaranteed minimum pensions ("GMP") as defined in the Social Security Pensions Act 1975. But this is simply an incorporation of GMP Model Rules which were not drafted by those responsible for the Rules or by reference to the contents of the Rules and which take effect regardless of any inconsistency with the Rules: see Appendix para. 2.2. Like the judge, I cannot see how therefore they can provide any assistance on the questions of construction which arise on this appeal and it is not necessary to consider further the provisions for which they are relied on.
22. Over and above these textual comparisons, Mr Simmonds says that there is or was also no need for the Rules to provide for a partial buy-out because the Trustees were always able, as mentioned earlier, to buy-in annuities during the life of the Scheme when rates were favourable in order to match corresponding liabilities. By acting in this way the need for staging could and would have been avoided. This is, he says, a further consideration which militates against the wider construction of the Rules contended for by the Trustees.
23. Mr Rowley QC for the Trustees says that these arguments are essentially literal in nature and fail properly to recognise the context in which the relevant provisions are intended to operate. The members' entitlements under the Scheme represent remuneration for past service and the court should incline towards a construction which will maximise the benefits they will receive. If the wording of the Rules is capable of bearing the wider more general meaning which the Trustees contend for, there is nothing in terms of context or otherwise which requires them to be given a narrower meaning.
24. In terms of the language of the Scheme, he submits that Rule 21 has to be looked at in its entirety. Rule 21A specifies how the Scheme may be terminated and what then must happen. If an immediate winding up follows Rule 21B requires provision to be made for the expenses of winding-up which itself suggests the need for flexibility. Rule 21C is concerned with the use of the net assets in the purchase of insurance contracts or annuities in the names of beneficiaries. Sub-rule 21C(c) specifies what these policies and annuities are intended to provide and how any remaining surplus or deficiency is to be dealt with.
25. His principal submission is that the Scheme and in particular Rule 21 employs an economical form and style of drafting which should be read as creating a broad framework for the disposition of scheme assets on a winding-up. Consistently with this, it would be wrong to treat the absence of, for example, an express power to effect a partial buy-out or the discharge of the Trustees following a partial buy-out as positive indications that only a single, complete buy-out is permissible under Rule 21C.
26. He accepts that the Trustees could (had they been gifted with the necessary foresight) have bought in annuities and other policies which could later have been transferred to the members but those annuities would have been required to be held pro tempore as investments and would not therefore have discharged the Trustees.
27. The Company's construction of the rules would also make for a considerable degree of inflexibility. It would seem to require the Trustees to purchase the requisite policies at the same time and not to be released from liability to the beneficiaries under the Scheme until all their entitlement (or as much as possible) is bought out. A more flexible arrangement under which a partial buy-out is carried out remains entirely consistent with the objectives specified in Rule 21C and the absence of an express discharge of the Trustees on a partial buy-out can be explained by the fact that the draftsman would have regarded the point as too obvious to need stating. Moreover, there is no express provision in the Rules which states that the Trustees are effectively discharged from liability following a total buy-out; presumably for the same reason.
28. Finally, Mr Rowley submits that the Company's reliance on Rules 10A and 14F is misplaced. Rule 10A is intended to reflect a deferred member's statutory right under the Pension Schemes Act 1993 to require a transfer payment to be made to another pension scheme. To construe the rule as envisaging a single payment is entirely consistent with the statutory basis for the rule but the context is completely different from a winding-up under rule 21.
29. Rule 14F, by contrast, is not tied to a particular statutory right and there is nothing in its language which requires it to be exercised on an all-or-nothing basis. This was the view of the judge. But in any case, says Mr Rowley, it is concerned with a quite different matter; the case of an on-going scheme: and the context is therefore quite different.
30. The judge rejected the Company's case that the Rules do not permit a staged buy-out of the members' entitlements and so do I. It is now well established that the rules of a pension scheme have to be construed in a purposive way in the sense of being given a meaning which respects the context in which the relevant rule was drafted and the purpose it was intended to achieve. Although this approach was analysed by Arden LJ in British Airways Pension Trustee Ltd v British Airways plc [2002] EWCA Civ 672 in terms of a number of propositions, as she recognised, there are no special rules of construction different from those which the courts routinely now apply to all contractual documents and in this case we are, I think, faced with a familiar choice between two possible constructions and with having to determine which best accords with the meaning which the parties to the instrument are likely to have intended. I would, however, repeat what Arden LJ said at [28] in British Airways, namely that:

"… a pension scheme should be construed so to give a reasonable and practical effect to the scheme.  The administration of a pension fund is a complex matter and it seems to me that it would be crying for the moon to expect the draftsman to have legislated exhaustively for every eventuality.  As Millett J said in Re Courage Group's Pension Schemes [1987] 1 WLR 495 at 505:

"[its] provisions should wherever possible be construed so as to give reasonable and practical effect to the scheme, bearing in mind that it has to be operated against a constantly changing commercial background.  It is important to avoid unduly fettering the power to amend the provisions of the scheme, thereby preventing the parties from making those changes which may be required by the exigencies of commercial life."

In other words, it is necessary to test competing permissible constructions of a pension scheme against the consequences they produce in practice.  Technicality is to be avoided.  If the consequences are impractical or over-restrictive or technical in practice, that is an indication that some other interpretation is the appropriate one.  Thus in the National Grid case, to which I refer below, where there was a choice of possible constructions, Lord Hoffmann held that the correct choice depended "upon the language of the scheme and the practical consequences of choosing one construction rather than the other." (see [2001] 1 WLR 864 at 887, paragraph 53)."

31. I accept Mr Simmonds' submission that when the question is what powers are to be implied in relation to the performance of an express duty one has to begin with a consideration of the nature of the duty. So, in the case of Rule 21C, one begins with the core duty on a winding-up of buying insurance policies or annuities to as nearly as practicable match the beneficiaries' entitlements under the Scheme. But a duty stated in those terms says nothing about the period over which it may be performed or whether it must be carried out as a single exercise or in stages. Both are equally consistent with the stated objective and purpose of the duty which is to provide as nearly as practicable the entitlements under the Scheme. If, by carrying out the duty as a two or three stage process (as in Headway), the Trustees are able to increase the value of the assets available to fund the purchase of the annuities and other contracts that would seem to be more, rather than less, consistent with the duty which they are required to perform.
32. It must follow from this that the powers to be implied in terms of effecting a buy-out should be those which give the Trustees the maximum flexibility in carrying out their Rule 21C duty. Unless the Rules in terms restrict them to a particular course of action, they should be implied in terms which best enable the duty to be performed. In this case, there is nothing in rule 21 or elsewhere which in terms requires the buy-out to take place as a single operation and that is not surprising. There is no obvious commercial or other reason for imposing such a restriction whether for the benefit of the members or the Trustees and Mr Simmonds' argument that the Trustees could always have made partial provision in advance by buying in annuities seems to me to be no answer. The Trustees cannot be assumed to have foreknowledge of a possible termination and the purchase of annuities as a proper investment decision depends upon the rates and the alternatives at the time. Their purchase on a winding-up is not a matter of discretion and may be unpredictable.
33. The Headway arrangement of course depends upon the first stage being a buy-out of members' entitlements and not simply a buy-in of annuities with a view to their eventual use as part of a buy-out. The Trustees therefore require to be discharged pro tanto at the end of stage one and on a benefit-for-benefit basis for the reasons explained earlier. But the absence of an express discharge is not in my view an indication that no power to effect a partial buy-out exists. The omission of any express discharge of the Trustees after any form of buy-out simply confirms that the draftsman has adopted an open-textured style and format in the Rules which sets out the duty to be performed on a winding-up and leaves any consequential or ancillary matters such as timing and discharge to be implied. It is obvious that if the Trustees perform the Rule 21C duty they will be discharged from further liability under the Scheme. That must also follow regardless of whether the duty is performed in one or two stages.
34. I am not therefore persuaded that the failure to include an express discharge for the Trustees on a partial buy-out confirms that the duty to buy-out can only ever be a single operation. Rule 21C mandates a result and the Trustees are, by implication, empowered to do what is best calculated to achieve it. The provisions in Rule 21C(c) to the effect that assets will be used to provide benefits which are as nearly as practicable the same as beneficiaries' entitlements under the Scheme also confirm (so far as it is not implicit in a partial buy-out) that the discharge will be on a benefit-for-benefit basis.
35. So far as reliance is placed on Rules 10A and 14F, I agree with the judge that they do not assist the Company in its case that only a single stage buy-out is permitted. The terms of Rule 10A are geared to the deferred member's statutory rights under the Pension Schemes Act 1993 and are not therefore relevant to what Rule 21 is concerned with. Rule 14F is concerned with an exercise of discretion by the Trustees in the context of a continuing scheme. Issues of managing a shortfall do not arise.
36. I would therefore dismiss the appeal.

Lady Justice Rafferty :

37. I agree.

Lord Justice Moore-Bick :

38. I also agree.