England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2010

Mr Justice Norris….......................................................................................31 March 2010
 


Mr Justice Norris :

1. The Hobourn Group Pension Scheme ("the Scheme") was established on 22 December 1983 as an exempt approved occupational pension scheme. The terms of the Scheme were eventually established in Rules attached to a Deed of Variation made on 22 August 1988 ("the Rules").
2. As was then standard practice the Rules defined the "Normal Retiring Date" ("NRD") as being, in relation to a male member, the 65^th anniversary of his birth; and in relation to a female member, the 60^th anniversary of her birth. When judgment was given by the ECJ in Barber v Guardian Royal Exchange [1991] 1QB 344 on 17 May 1990 it became apparent that such a provision was unlawfully discriminatory. Either the advantage conferred on women had to be removed so that there was a standard NRD of 65, or the disadvantage suffered by men had to be removed so that there was a standard NRD of 60, or some other intermediate age had to be specified for all. The decision in Barber had included a holding that "the direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of this judgment". There was continuing uncertainty about what precisely that qualification meant.
3. With the law in that state of uncertainty the Trustees of the Scheme decided that they must seek to bring the Rules into line with the decision in Barber. On 14 April 1992 the principal employer and the second claimant (then the sole Trustee of the Scheme) announced:-

"The Company and the Trustee have now decided to use the alteration powers under the Rules of the Scheme and intend to introduce on 1 July 1992 a common normal pension age of 65 for all existing members…"

The announcement promised that a more detailed explanation would appear in a newsletter.

4. Issue 2 of Pension News was published on an unknown date, but probably during May 1992. It included the following statement:-

"In order to achieve equal treatment for men and women for future pensionable service, [the Trustees] now announce the following changes:

1. With effect from 1 July 1992 the normal pension age for women members of the Scheme will be changed to 65…

2. Although the pension age is increased, women will still retain the right to retire from age 60, and the method of calculating their early retirement pension will ensure that their benefits earned before 1 July 1992 will not be reduced. For benefits earned after 1 July 1992, their benefits will be treated as for men…

3. Women will now have the opportunity of earning more pension benefit between the age of 60 and 65, just like their male colleagues; their death in service benefits will continue to apply until they retire…"

5. Following the announcement nothing was done for some eighteen months. Then on 25 November 1993 the principal employer and the second claimant entered into a Deed of Variation ("the 1993 Deed"). It made detailed alterations to various of the Rules (some of which I must hereafter address). But its key provision (for present purposes) was that it altered the definition of the NRD. Instead of saying that NRD in relation to a male member meant the 65^th anniversary of his birth, and in relation to a female member the 60^th anniversary of her birth, the new definition read as follows:-

""Normal retiring date" means:

(a) in relation to a female Member before 1 July 1992, her 60^th birthday, and

(b) in relation to any other Member his or her 65^th birthday".

6. The issue in this case is what that definition means. The claimants (who are the present Trustees of the Scheme and who have appeared by Mr Short) argue that it must be read as if it said:-

"…(a) in relation to the Pensionable Service of a female Member before 1 July 1992, her 60^th birthday, and (b) in relation to any other Member or Service his or her 65^th birthday".

The effect of reading the definition in that way would be to change the NRD for everybody to 65 (except that for female Members as at 1 July 1992 in determining what was and flowed from their Pensionable Service before that date the NRD should be treated as if it was their 60^th birthday). One would then need to refer to the Rules to see the consequences of that. The Defendant, Mr Knell, is a representative defendant: he represents those Members who would have accrued benefits against an NRD of 60 during the period from November 1993 (when the disputed amendment to the NRD was made) until December 1995 (when the NRD was indisputably altered) if the equalisation date was December 1995. The Defendant appears by Miss Ling and argues that the definition of the NRD should be interpreted as if it said:-

"…(a) in relation to a female Member who was a Member before 1 July 1992 her 60^th birthday, and (b) in relation to any other Member his or her 65^th birthday".

The consequence of this would be to alter the NRD for everybody except women who were Members on 1 July 1992. For that excepted cohort the NRD remained at 60 for all purposes.

7. It is necessary to explain why this difference matters. The NRD determines the date upon which the right the payment of a pension accrues: and it also influences the level of benefit that is paid. Under Rule 3(A)(1), upon retirement on the NRD a Member is entitled to a yearly pension. It is calculated by reference to his or her final salary and length of service. This is "the normal pension". Under Rule 3(A)(2), if a Member retires before his or her NRD but on or after his or her 50^th birthday then (with the consent of the principal company) the Member will become entitled to a pension payable in accordance with the Rules (but under schedule D (Part 2) paragraph (1) that pension will be actuarially reduced to take account of the early payment). This is "the early retirement pension". If a Member retires after his or her NRD then under Rule 3(A)(3) the Member becomes entitled to a pension payable in accordance with the Rules: and the Rules provide in schedule D (Part 3) that the pension so payable will be enhanced because the years worked beyond NRD will count as Pensionable Service and the final salary will be that at actual retirement (not at NRD). This is a "late retirement pension".
8. Put simply (and over simplistically) a female Member as at 1 July 1992 who thereafter retired at (say) 63 would (on the claimant's case) become entitled to an actuarially reduced early retirement pension and on the defendant's interpretation to an enhanced late retirement pension.
9. NRD is also relevant to benefits other than a payable pension:-

(a) If a Member dies in employment but prior to the NRD then (in defined circumstances) a lump sum benefit on death is payable.

(b) If a Member dies in employment but after the NRD but in circumstances in which no pension is payable to a surviving spouse or dependant, then again a lump sum benefit on death may be payable. I will call these lump sum payments "the death benefits".

(c) If a Member leaves employment before the NRD without being entitled to any benefit in payment under the Rules then he may become entitled to a yearly pension payable from "the Specified Date" of an amount fixed in accordance to the Rules, either on his survival to the Specified Date or to an alternative date (which must be after his or her 50^th birthday but before the NRD) and is subject to the consent of the Trustees of the Scheme. I will call this "the deferred pension".

10. The correct approach of the court to questions of construction has been restated on a number of recent occasions. I have been referred to the Investors Compensation Scheme case [1998] 1 WLR 896, Stevens v Bell [2002] EWCA Civ 672, Armitage v Staveley Industries [2005] EWCA Civ 792 and Chartbrook v Persimmon Homes [2009] UKHL 38. Without attempting to reformulate any of the authoritative statements which these cases contain I would summarise my approach to the problem before me as follows:-

(a) The intention of the parties is to be ascertained from the words which they have used read in the context in which they occur:

(b) The context includes the whole of the document in which they are used:

(c) The context also includes anything which would have affected the way in which the language of the document would have been understood by a reasonable man:

(d) The law excludes from the admissible background both previous negotiations of the parties and their declarations of subjective intent (these being relevant only to questions of rectification):

(e) In general, words should be given their ordinary and natural meaning because people generally do not misuse language, particularly in formal documents:

(f) A party may, however, make out a strong case that something must have gone wrong with the language (a "strong" case because the law does not regard the proper use of language and the misuse of language as equal possibilities), in which event the law does not require judges to attribute to the parties an intention which they plainly could not have had (for example, because the absolutely literal meaning produces an absurd and irrational result):

(g) If it is clear that something must have gone wrong with the language, and if it is clear what a reasonable person would have understood the parties to have meant, then the court will give effect to that meaning (the task of the court being to decide what a reasonable person would have understood the parties to have meant by using the language which they did):

(h) Within the context of a pension scheme the interpretation must be one that is practical and purposive, and if more than one interpretation is possible, the correct choice may depend on the practical consequences of choosing one rather than the other:

(i) But what is not permissible is for the court to construct for the parties by reference to the context a bargain or arrangement that they did not make themselves:

(j) Nor is it permissible for the court to approach the document to be construed with some predisposition as to the correct philosophical approach.

11. The difficulty does not lie in the statement of the relevant principles. It lies in their application to the particular case.
12. In the instant case the key features of the context are the legal difficulty caused by the decision in Barber, and the uncertainty as to what was meant by the observation that the treaty could not be relied upon "in order to claim entitlement to a pension with effect from a date prior to that of this judgment", given that (under a normal pension scheme such as the Scheme) NRD affects not only entitlement to payment of a pension, but also entitlement to other benefits and to the level of pension payable. Although these uncertainties were in due course worked out (principally by the decision in Coloroll Pension Trustees Limited v Russell [1995] ICR 179, judgment being handed down on 28 September 1994), the draftsman of the 1993 Deed would not have known what the correct interpretation was. His response could be either to maintain the NRD at 60 for female Members at a relevant date, but make it 65 for everyone (male or female) after that relevant date: or he could make the NRD 65 for everybody but then seek to shield female Members at the relevant date from some of the consequences of that change. I approach the case with no predisposition that he would have chosen one over the other. I leave out of account the terms both of the announcement and of Pension News which I regard as statements of subjective intent on the part of the Scheme Trustees.
13. I begin by restating the actual words which fall to be construed. They are:-

""Normal Retiring Date" means

(a) in relation to a female Member before 1 July 1992, her 60^th birthday, and

(b) in relation to any other Member his or her 65^th birthday".

The ordinary and natural meaning of those words in isolation is that for the purposes of the Scheme there are two different NRDs. For a cohort consisting of "female Member(s) before 1 July 1992" it is 60 and for everybody else it is 65. The Rule is looking at two types of Member.

14. The words are not, however, to be taken in isolation but are to be read as part of the document as a whole. In particular, they are to be read as part of the Rules as amended by the 1993 Deed: and it may be assumed that the 1993 Deed was intended to make a coherent and consistent series of amendments. It is therefore necessary to look at those other amendments.
15. First, there is an amendment to the conditions of eligibility for membership. Amongst the conditions for eligibility under the original Rules was a requirement that the prospective member should not have "attained the age of 64, in the case of a male employee, or 59 years, in the case of a female employee". The 1993 Deed amended this provision to say:-

"The [prospective Member] has not attained the age of

(i) in the case of a female employee before 1 July 1992, 59 years, or

(ii) (ii) in the case of any other employee, 64 years".

The wording is strikingly similar to that used to amend the NRD. But because the words are concerned with who is eligible to become a Member, they do not conceptually require the creation of a separate cohort of existing members who are to be treated differently from other members.

16. The words do create a difficulty. Conditions of eligibility are, of course, all about drawing lines: and there may be difficult cases on either side of that line. But take the case of a 59 year old who joins the company on 30 June 1992 and her twin sister who joins on 2 July 1992. Giving the words of the eligibility condition their ordinary and natural meaning, the first is not eligible to become a member, but the second is. It is not easy to see why this should be so: why should someone who happened to be too old to become a member before the relevant date be forever barred from membership when those of the same or a greater age but who join the company after the relevant date are free to join? That is not a necessary consequence of the decision in Barber (and indeed would seem to reinforce the very discriminatory treatment which Barber declared unlawful). Such an eligibility condition seems arbitrary and irrational. On the other hand, if the claimants are right and the NRD was to be raised to 65 for everybody it is difficult to see why the draftsman of the 1993 Deed bothered to address the case of "a female employee before 1 July 1992" at all.
17. In the result I do not consider that this provision demonstrates that the ordinary and natural meaning of the amendment to the NRD cannot have been intended; nor does it throw any clear light upon the intended meaning of that amendment because the provision is in itself problematic.
18. Second, there was an amendment to the provisions relating to entitlement to the early retirement pension. Under Rule 3(A)(2) such a pension was payable on retirement before the NRD with the consent of the principal company and if the Member had attained 50. The 1993 Deed altered the condition to be satisfied before an early retirement pension could be taken so that the condition became:-

"…(a) in the case of a female Member who was in Pensionable Service on 30 June 1992, on or after her 60^th birthday; or

(b) in the case of any other Member, with the consent of the Principal Company…and on or after the Member's 50^th birthday…".

This provision is badly drawn and (giving the words used their natural and ordinary meaning) problematic. It appears to create two categories of member. A cohort of female members in Pensionable Service on 30 June 1992: and "any other Member". The right to retire after 50 with the consent of the employer applies only to the second category. It is difficult to see why a female member who was in Pensionable Service on 30 June 1992 should lose the right to retire between the ages of 50 and 60 with the consent of her employer.

19. But some light is thrown upon the amendment to the NRD by the creation of the first category – the cohort of female members in Pensionable Service on 30 June 1992. If the NRD for "a female employee before 1 July 1992" continued to be 60 then in such a case the early retirement pension provisions would read as follows:-

"Rule 3(A)(2) Pension on retirement before [60].

On retirement from Service before [60] then if such retirement is…(a) in the case of a female Member who was in Pensionable Service on 30 June 1992, on or after her 60^th birthday…a Member shall be entitled…if he shall so elect…to a yearly pension (herein after referred to as the "Early Retirement Pension")…".

That does not make sense. There is no point in conferring the right to elect to take an early retirement pension exercisable only on or after NRD. It suggests that what the amendment to the NRD was intended to achieve was to raise the NRD to 65 for everyone, but to preserve the existing right of a female Member in Pensionable Service on 30 June 1992 to retire at 60 without having to obtain the consent of the Principal Employer. The pension she then obtained would be governed by Schedule D (Part 2).

20. Miss Ling submitted that a construction that left the NRD at 60 for female Members in Pensionable Service on 30 June 1992 was neither nonsensical nor otiose, but was merely an example of "belt and braces" drafting. But I do not agree. I see a clear inconsistency between the ordinary and natural meaning of the words used to amend the NRD and those used to amend the early retirement pension: the question is, which is to provide the context in the light of which the other is to be read?
21. A third amendment made by the 1993 Deed related to the level of the early retirement pension payable. As I have summarised above, an early retirement pension was actuarially discounted to take into account early receipt. That was achieved by schedule D (Part 2) providing that:-

"…The amount of Early Retirement Pension shall be (1)…..an amount calculated in accordance with schedule D (Part 1)…reduced to such lower amount as the Trustees shall determine (having regard to the [the advice of the Actuary])…".

The 1993 Deed added a proviso in these terms:-

"Provided that, where a female Member retires on or after 1 July 1992 (a) on or after her 60^th birthday, then no reduction on account of early payment shall apply: (b) before her 60^th birthday then the reduction applied shall take account of payment earlier than her 60^th birthday in relation to that part of her pension attributable to Pensionable Service before 1 July 1992".

22. This proviso does not make sense if, for a female member at 1 July 1992, the NRD was 60. For such a person who retired on or after 1 July 1992 and on or after her 60^th birthday there never would be any question of a reduction on account of early payment, because such a member would be in receipt of the normal pension. On the other hand, if the NRD had been changed to 65 then that change would have disadvantaged female members at 1 July 1992 unless some special provision was made in the Rules. Whereas previously they could have retired at 60 and taken the normal pension, now if they retired at 60 they will be taking an early retirement pension (discounted accordingly). But this proviso means that in respect of Pensionable Service before 1 July 1992 there was to be no reduction on account of early payment.
23. Miss Ling submits that this is again an overzealous piece of drafting by a draftsman determined to make clear that notwithstanding that there was no alteration in the NRD for female members at 1 July 1992 (so that they took a normal retirement pension) there should be no question of the pension being treated as an early retirement pension. But I take the view that by making the amendment the draftsman was trying to do something (rather than deliberately doing nothing). If he was intending to do something it suggests that he may have been reading the amended definition of the NRD in a sense other than that suggested by the natural and ordinary meaning of the words.
24. A fourth amendment effected by the 1993 Deed related to the deferred pension. Under Rule 3(C)(1)(b) if a Member left service before NRD he or she would become entitled to a yearly pension payable from (in effect) the state retirement age. But under Rule 3(C)(1)(c)(ii)(aa) a Member could by notice in writing before the Specified Date select as a commencement date for his deferred pension a date earlier than the NRD (subject to certain conditions). The selected alternative date was (by virtue of Rule 3(C)(1)(c)(iii)) subject to the consent of the Trustees. The amendment made by the 1993 Deed was to make the consent of the Trustees required in every case:-

"Other than in a case of a female Member who was in Service on 30 June 1992 and who selects a date on or after her 60^th birthday".

The effect of this amendment was therefore to give to this cohort of female Members in Service on 30 June 1992 a right to select a date on or after her 60^th birthday, whereas everybody else had to obtain the consent of the Trustees.

25. It is not immediately apparent why this should be so (whether the NRD for this cohort was 60 or 65). The only "alternative date" was an alternative, not to the NRD, but to the date upon which the member attained pensionable age for the purposes of the Social Security Pensions Act 1975 (or its replacement): though it is true that the selected date had to be earlier than the NRD. So Mr Short argues that the point of this proviso was to cater for those female employees as at 1 July 1992 who selected a payment date for their deferred pension after their state retirement age but before the amended NRD. The proviso enables them to do so as of right.
26. Miss Ling says that this is another example of "belt and braces drafting". If the NRD remained 60 for the cohort of female members at 1 July 1992 the deferred pension provision as amended would read:-

"(b)…on a Member….leaving Service for any reason before [60] without being entitled to any other benefit….[she] shall become entitled to a yearly pension payable from the Specified Date…

(c) (ii) ... such yearly pension shall in lieu of being payable from the Specified Date be payable from such of the following dates as the Member may select by notice in writing…. namely:- (aa) a date earlier than [60]

(c)(iii) The selection of an alternative date under this sub-rule is subject to:- (aa) other than in the case of a female Member who was in service on 30 June 1992 and who selects a date on or after her 60^th birthday, the consent of the Trustees…."

This is not "belt and braces" drafting. It is itself confusing. Substitute "65" for "60" and the amendment itself makes sense. This amendment and that to the NRD then have to be reconciled.

27. It has to be said that the draftsman of the 1993 Deed lacked clarity of thought, and that it is not possible to derive from the provisions of the 1993 Deed an entirely coherent scheme. I am, however, persuaded that to give the words amending the definition of the NRD their natural and ordinary meaning (Mr Short pejoratively called it "the literal meaning") makes the 1993 Deed less comprehensible when read as a whole and in the context of the existing Rules than taking the view that something must have gone wrong with the language in the provision amending the definition of the NRD. It is possible (without doing undue violence to the language) to treat the provision amending the NRD as creating two categories of Pensionable Service, rather than two categories of Member. The effect of that reading is:-

(a) To pick up the reference to "Pensionable Service" in the amendment to Rule 3(A)(2);

(b) To give real content to the amendment to Rule 3(A)(2);

(c) To give real content to the amendment to Schedule D (Part 2).

(d) To create a rationale for the exemption from the requirement of Trustee consent for such of the cohort of female members as at 1 July 1992 who select an alternative date for receipt of the deferred pension which is after their 60^th birthday.

I therefore accept the interpretation argued for by Mr Short.

28. Although I have for the purposes of analysis taken the date specified in the 1993 Deed as the appropriate date for the variation of rights, it is common ground before me that it was not lawful for the 1993 Deed to have retrospective effect as at 1 July 1992. Because the variation did not take effect until 23 November 1993, those who drafted the 1993 Deed wish the Trustees to argue that the Rules were in fact effectively altered by the Pension News item with effect from some date (which cannot readily be ascertained) in May 1992. Mr Short has undertaken that task.
29. Rule 30 of the Rules provides that the Principal Company may, after consultation with the actuary and with the consent of the Trustees, "at any time by Deed alter or add to all or any of the provisions of the Rules". Plainly an item in "Pension News" was not an exercise of that power.
30. Rule 3 of the Rules is headed "Benefits" and sets out the benefits that become payable according to which event happens in relation to a Member. I have already referred to benefits conferred by Rule 3(A), Rule 3(B) and Rule 3(C). Rule 3(F) is headed "Discretionary Benefits". The Rule provides that at the request of the principal company the Trustees shall grant under the Scheme such of the listed benefits that the principal company shall determine. Amongst the list of benefits is (in Rule 3(F)(2)(a)):-

"…a pension or an increase in the amount of any pension payable to a person on or after his retirement…".

The amount of any benefit under the Rule, and its terms and conditions, are to be determined by the principal company and the Trustees upon actuarial advice, "and shall be notified in writing by the Trustees to the employee by reference to whose service such benefit applies or to the person to whom such benefit is to become payable". Mr Short argues that upon its true construction this Rule authorises the Trustees of the Scheme to notify all Scheme members generally of an alteration in their entitlement deriving from other provisions in the Rules (relating to the normal retirement pension, an early retirement pension or a deferred pension).

31. The approach to the true construction of this Rule is exactly that outlined in paragraph 10 above. Of particular relevance in connection with the consideration identified in paragraph 10(h) is the observation of Neuberger J (as he then was) in Bestrustees v Stuart [2001] OPLR 341 at paragraph 34 that:-

"…A pension scheme is likely to continue for a substantial period of time and…those most affected by them and entitled to protection from the Trustees, the employer and indeed the court, will be people who are comparatively poor, who will not have easy access to expert legal advice, and who will not know what has been going on in relation to the management of the Scheme. In those circumstances, it seems to me that protection of the beneficiaries requires the Court to be very careful before it permits a departure from the plain wording and plain requirements of the Trust Deed".

32. The plain wording and the plain requirements of the Trust Deed are that alterations to the Rules are to be made by the principal company with the consent of the Trustees by Deed. A change in the NRD is a change in the Rules. It affects accruing entitlements under the Scheme, both as to when benefits are payable under the Rules and as to the level of benefit payable under the Rules. The change affects the normal pension, the early retirement pension, the late retirement pension, the death benefits and the deferred pension.
33. Rule 3(F) is not connected in any way with the normal pension, the early retirement pension, the late retirement pension, the death benefits or the deferred pension. It is concerned not with those types of benefit to which the Members are entitled in accordance with the Rules, but with "such…benefits as the Principal Company shall determine", that is, discretionary benefits to which there is no entitlement. One of those discretionary benefits is an increase in the amount of any pension or benefit "payable to…a Member or other person". Also included is "a pension…payable to a person". The "person" there contemplated is someone who is not a Member. The sub-rule goes on to say that "the amount of any benefit payable under this sub-rule and its terms and conditions shall be determined by the Principal Company in the light of actuarial advice". The item in Pension News did not purport to make a discretionary award, and it did not announce the amount of any pension (or the terms and conditions on which it was payable). Pension News purported to alter benefits to which Members were entitled under other Rules. The announcement was not made to "a person" but to all Members.
34. In my judgment Rule 3(F) plainly has no application to what was sought to be done in relation to the NRD, and the item in Pension News was wholly ineffective to change the NRD for anybody.
35. There is one specific matter I should address (so that the point is beyond doubt). In the announcement of the 14 April 1992 it was stated that the NRD for all new entrants (both men and women) joining the Scheme from 1 March 1992 had been changed to 65. The announcement was wholly ineffective to achieve that objective.
36. For these reasons I will declare that with effect from 25 November 1993 the definition of the NRD means (a) in relation to the Pensionable Service of a female Member before 1 July 1992, her 60^th birthday, and (b) in relation to any other Member or Service his or her 65^th birthday. I will make the representation order sought in relation to Mr Knell. I will order that all costs incurred by the Claimants and the Defendant in respect of these proceedings be paid by the Claimants from the funds held subject to the trusts of the Scheme (such costs to be assessed in default of agreement on the indemnity basis). I will hand down this judgment at 10:00am on 31 March 2010. I do not expect the attendance of legal representatives.
37. As a final footnote I should record that in consequence of the liquidation of the principal employer the Scheme closed to future accrual and went into winding up on 28 February 2007 (the participating employers having purchased a release of their ongoing obligations). On that day there began an Assessment Period for the purposes of entry into the Pension Protection Fund. These are the parties affected by this judgment, and this explains why the Trustee Claimants have taken an active part in the argument. These matters have had no bearing upon my approach to the true construction of the 1993 Deed and the Rules as amended thereby.

Mr Justice Norris………………………………………………..………31 March 2010