England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/12/2012

Mr Justice Briggs :

Introduction

1. This is a reference of a question of law by the Pensions Ombudsman pursuant to section 150(7) of the Pension Schemes Act 1993, arising for determination in connection with a complaint by a Mr Ralph Dilley relating to the Data General Employee Benefits Plan ("the Scheme"), of which he is a member. The question for the court is whether the Ombudsman should accept jurisdiction over the complaint.
2. The Scheme is a defined benefit occupational pension scheme currently in the course of being wound up. The first defendant to this application, EMC Europe Limited ("EMC Europe"), formerly known as Data General Limited, is the principal employer under the Scheme. The second defendant EMC Computer Systems (UK) Limited ("EMC UK") is the parent of EMC Europe and a participating employer in the Scheme. The third defendant, EMC Corporation ("EMC"), is incorporated in Massachusetts, USA. It is the parent of EMC (UK) but is not, and never has been, a participating employer in the Scheme.
3. Mr Dilley's complaint relates to a Compromise Agreement dated 2 August 2002, by which all outstanding liabilities of EMC (UK) and EMC Europe to fund the Scheme were compromised, in return for a single lump sum payment of £1.2m, and the Scheme then put into winding-up. Mr Dilley says that the Compromise Agreement ought to be set aside, and the Scheme administered as if it had never been made. His grounds for that assertion are first, that the three EMC companies failed to disclose full details of their financial position to the then trustees of the Scheme before the Agreement was made and, secondly, that the then trustees failed to obtain up to date financial information about the Scheme's employers.
4. The main ground for the defendants' case that the Ombudsman should not accept jurisdiction over the complaint is that EMC is a necessary party to any claim to set aside a compromise agreement, but that (as is common ground) it is not subject to the Ombudsman's jurisdiction. Accordingly, a decision that the Scheme should be administered, and the liabilities of EMC Europe and EMC (UK) in relation to it determined upon the basis that the Compromise Agreement should be set aside would not be binding upon EMC, but would nonetheless be prejudicial to its interests, specifically because of the adverse effect of any such determination upon the value of its shareholding in EMC (UK).
5. An alternative ground for the defendants' challenge to the Ombudsman's jurisdiction is that it is said that the Ombudsman failed, contrary to Rule 5(2) of the Personal Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1995 ("The Procedure Rules") forthwith to inform the defendants of its decision, by February 2006, to investigate Mr Dilley's complaint. It did not do so until 2008. This second ground for challenge arises only if the first is not made out.

The Facts

6. The facts about the negotiation of the Compromise Agreement are, of course, hotly disputed. Nonetheless the facts relevant to the determination of this application are un-contentious, and may be shortly stated.
7. The Scheme was established by EMC Europe in 1981. It was at all relevant times governed by a trust deed dated 16 July 1993, as amended. In relation to employer contributions, the Scheme provided, by Rule 5.1:

"Each of the Employers shall contribute such amounts to the Scheme as may be determined by the Trustees acting on Actuarial Advice, after consultation with the Principal Employer, to be necessary, having regard to its Employees who are Members of the Scheme and to the assets and liabilities of the Scheme."

8. The Scheme contained power for the Principal Employer to suspend or terminate contributions due from participating employers. Rule 5.3 provided:

"Subject to the provisions of Section 16 the Principal Employer may from time to time give notice to the Trustees to reduce or suspend or terminate all or any of the contributions due under the provisions of Rule 5.1 and, upon such notice being given, the Employer or Employers concerned shall not be bound to pay any contributions, or more than the reduced contribution, as the case may be, nor shall the Trustees be required to seek such payments as may be required in order to maintain benefits."

9. A valuation of the Scheme's assets and liabilities as at 1 April 1997 revealed that the Scheme had a deficit of approximately £2.5m, measured on an on-going valuation basis. The then trustees made a written demand to EMC Europe of £2,523,234 ("the First Demand"), among other suggested measures to reduce the deficit.
10. EMC (UK) acquired EMC Europe on 1 February 2000 and became a participating employer with effect from the beginning of that year. A valuation of the Scheme's assets and liabilities as at 1 April 2000 revealed that the deficit had increased to approximately £5m, again measured on an on-going valuation basis. The then trustees repeated the First Demand and made a further request for the balance of the then current deficit, i.e. a demand for a further £2.8m ("the Second Demand"). EMC Europe then served notice under Rule 5.3 of its intention to terminate liability for future contributions, by letter dated 15 December 2000.
11. There followed protracted negotiations leading to the making of the Compromise Agreement on 2 August 2002, between the three EMC companies and the then trustees.
12. The main provisions of the Compromise Agreement (so far as is relevant for present purposes) are as follows. It recited that the Scheme was in deficit, that the principal Employer intended to cease contributing to the Scheme, thereby triggering its winding-up, and it asserted the inability of the participating Employers to pay what the then trustees asserted to be their debt ("the Debt") to the Scheme. The operative parts of the Compromise Agreement provided that EMC would put EMC (UK) and EMC Europe in funds with which to pay £1.2m to the then trustees, and that it would be paid to the trustees within 29 days. Subject to receipt of that sum by the then trustees, the Employers (defined for this purpose as including EMC) were to be released from any further obligation to the Scheme, save that they would facilitate the provision of independent financial advice to active members of the Scheme about their pension arrangements, for which EMC would contribute a further £60,000 and the participating Employers would make available their premises. The Compromise Agreement provided a full indemnity for the then trustees for their participation in the Agreement and, in particular, their release of the EMC companies from further liability.
13. The £1.2m (and £60,000) were duly paid and contributed from funds derived entirely from EMC, and the Scheme thereupon put into winding-up as contemplated by the Compromise Agreement.
14. Having without success pursued his complaint through the Scheme's internal dispute resolution procedure, Mr Dilley lodged his complaint with the Ombudsman's office on 13 May 2005, identifying the then trustees and EMC as the intended respondents, but giving EMC Europe and EMC (UK)'s address.
15. On 16 February 2006 the Ombudsman informed Mr Dilley of his view that the complaint fell within his jurisdiction, quo ad the trustees of the Scheme, but that the investigation would be put on hold until a pending investigation of the Scheme by the Pensions Regulator had come to an end. The Ombudsman sought clarification from Mr Dilley as to which of the EMC companies he was complaining against. In May 2007 Mr Dilley said that his complaint was against all three EMC companies.
16. In July 2007 the Ombudsman wrote to Mr Dilley stating that the Pensions Regulator's involvement with the case had concluded and asking whether Mr Dilley wished to pursue the complaint. On 21 August 2007 he said that he did.
17. On 18 April 2008 the Ombudsman wrote to Mr Dilley (via his solicitors), the then trustees and all three EMC companies, notifying them of a decision that the complaint had been accepted for investigation, as against the trustees and all three EMC companies. The challenge to the Ombudsman's jurisdiction in relation to EMC was notified in September 2008. Mr Dilley did not respond to this challenge until December 2009, following which, in February 2010 the Ombudsman acknowledged his lack of jurisdiction over EMC. There followed extended correspondence in which the EMC companies asserted that the Ombudsman should not accept jurisdiction at all in relation to the complaint, at the conclusion of which the Ombudsman issued the present application, in March 2011. The EMC companies' alternative challenge based upon delay was raised by way of response and, to avoid that issue having to be resolved (if the first ground of challenge failed) by a subsequent application for judicial review, the Ombudsman sensibly agreed to permit it to be resolved, if necessary, as part of this application.

The Statutory Scheme

18. Part X of the Pension Schemes Act 1993 creates a statutory jurisdiction in the Pensions Ombudsman which is designed to operate in parallel with the jurisdiction of the court, and to afford a convenient, more informal and less costly alternative to court proceedings for certain specified purposes. They include investigation and determination of complaints made to him by or on behalf of an actual or potential beneficiary of an occupational or personal pension scheme who alleges that he has sustained injustice in consequence of maladministration in connection with any act or omission of a person responsible for the management of the Scheme: see section 146(1)(a). By section 146(1)(c) the Ombudsman may also investigate and determine any dispute of fact or law in relation to an occupational or personal pension scheme between a person responsible for its management, and an actual or potential beneficiary.
19. By section 146(3), those responsible for the management of an occupational or personal pension scheme are its trustees or managers, and its "employer" as defined. The definition includes principal and participating employers but, as is common ground, not EMC in relation to this Scheme. Section 146(6) prohibits investigation or determination by the Ombudsman of a complaint or dispute which is the subject of proceedings in a court or employment tribunal which are either pending or which have been settled. Section 148 provides for the discretionary stay of civil proceedings where there is a pending complaint or dispute referred to the Ombudsman, where the civil proceedings are between parties to the investigation in respect of matters subject to that complaint or dispute, but the court must first be satisfied (a) that there is no sufficient reason why the matter should not be investigated by the Ombudsman and (b) that the applicant is ready and willing to do all things necessary for the proper conduct of the investigation: see section 148(4).
20. Section 148(5) provides that:

"For the purposes of this section the parties to an investigation are-

(a) the person by whom, or on whose behalf, the complaint or reference has been made,

(b) any person responsible for the management of the scheme to which the complaint or reference relates,

(c) any person against whom allegations are made in the complaint or reference; and

(d) any person claiming under a person falling within paragraphs (a) to (c)."

Paragraphs (c) and (d) of section 148(5) are, but only for the purposes of section 148, wider in their scope than those which identify the persons over whom the Ombudsman has jurisdiction, in section 146.

21. Section 149(1) provides that where the Ombudsman proposes to conduct an investigation into a complaint made or dispute referred under Part X he shall provide an opportunity to comment on any allegations made in the complaint or reference to any person responsible for the management of the relevant scheme, or "any other person against whom allegations are made in the complaint or reference". Section 149(3) makes provision for rules as to the persons entitled to appear and be heard on behalf of "parties to an investigation, as defined in section 148(5)". More generally, section 149(4) gives the Ombudsman a broad discretion as to the procedure to be adopted on any investigation.
22. Section 151(1) requires the Ombudsman to give a written statement of his determination, with reasons, both to the complainant and to any person responsible for the management of the relevant Scheme. Section 151(2) empowers the Ombudsman to direct any person responsible for the management of the relevant scheme to take, or refrain from taking, such steps as he may specify in his determination. Section 151(3) provides that:

"Subject to subsection (4), the determination by the Pensions Ombudsman of a complaint or dispute, and any direction given by him under subsection (2), shall be final and binding on-

(a) the person by whom, or on whose behalf, the complaint or reference was made,

(b) any person (if different) responsible for the management of the scheme to which the complaint or reference relates, and

(c) any person claiming under a person falling within paragraph (a) or (b)."

23. Finally, section 151(4) provides for an appeal on a point of law to the High Court, and for determinations or directions by the Ombudsman to be enforceable in a county court as if they were a judgment or order of that court.
24. It will be apparent that the statutory scheme which defines the Ombudsman's jurisdiction makes an important distinction between, on the one hand, persons responsible for management of a relevant scheme, and persons (whether or not responsible for management) against whom allegations are made in the complaint or reference. The former are the persons against whom (or between whom) complaints of maladministration may be made or disputes of fact or law may be determined. They are the persons who are subject to the Ombudsman's directions and who are bound by his determinations. By contrast, other persons against whom allegations are made are given rights to comment and appear as parties to the investigation for that limited purpose. Proceedings in court by such persons may also be the subject of an application for a discretionary stay under section 148.
25. It is also to be noted that persons who are neither responsible for the management of the relevant sheme, nor persons against whom allegations are made are neither bound by the Ombudsman's determinations nor entitled to comment or appear to make representations, even if their legal rights may be adversely affected by the Ombudsman's determination.
26. I must briefly mention the Procedure Rules. Rule 1(2) defines "party to the investigation" as meaning "the complainant or the respondent (as defined in these Rules) and "party" and "parties" shall be construed accordingly. "Respondents" is defined as meaning:

"(a) a person responsible for the management of a personal or occupational pension scheme, or

(b) any other person to whom Part X of the Pension Schemes Act applies as it applies to a person responsible for the management of a personal or an occupational pension scheme."

Thus, the definition of party to the investigation in the Procedure Rules is narrower than in section 148(5), because it does not include persons (not being responsible for the management of the relevant scheme) against whom allegations are made.

27. Rule 5(2) provides that:

"Where the Pensions Ombudsman proposes to investigate the complaint or dispute, he shall forthwith supply a copy of the details of the complaint or dispute, together with any amendments or supplementary statements, written representations or other documents received from the complainant or his representative to the respondent."

Rule 6(1)(b) requires a respondent to a complaint (once supplied with the details of it pursuant to Rule 5(2) ) to deliver to the Ombudsman a written reply stating whether in its opinion, any other person has a direct interest in the subject matter of the complaint or dispute and, if so, providing that person's name and address.

28. Finally, Rule 16 gives the Ombudsman miscellaneous procedural powers, including at sub rule (1)(c) power to order the discontinuance of an investigation if he considers it appropriate to do so, but only upon notice to the party against whom he proposes to exercise that power.

The Case Law

29. Mr Jonathan Evans for the Ombudsman referred me to a number of cases which have emphasised that an important purpose of the statutory scheme is to provide a relatively quick, inexpensive and informal means of redress for members of pension schemes wishing to make complaints against better resourced trustees and employers, as a less daunting alternative to the expense, formality and risks (including as to costs) of court proceedings. They include Westminster City Council v Haywood [1998] Ch 377, per Robert Walker J at 387 B-E (a passage not disapproved in the Court of Appeal), Hillsdown Holdings plc v Pensions Ombudsman [1997] 1 All ER 862 and Wakelin v Read [2000] PLR 319 per Mummery LJ at paragraphs 71-73.
30. As Mr Evans acknowledged, the same cases, and others, show nonetheless that the Ombudsman is required, no less than would be the court, to make his determinations in accordance with law. In the Haywood case at page 387 Robert Walker J asked himself the question:

"Whether the Pensions Ombudsman can do whatever he thinks fair (I will not speak of his dispensing "palm tree justice") regardless of the principles which would guide the court if the matter had come straight to court."

31. At page 392 E he concluded:

"Nevertheless, the Pension Ombudsman must (except so far as Parliament has clearly given him wider powers) act in accordance with established legal principle. The concept of "injustice" has been left undefined in the Act of 1993, as in other statutes establishing ombudsmen, no doubt in order not to restrict its scope unduly. But any remedy for injustice must be appropriate and proportional, and not such as to risk creating some new injustice."

In the Hillsdown case, at [1997] 1 All ER 862, 899, Knox J thought that:

"It would be strange if it was contemplated that the alternatives (i.e. court proceedings or a complaint to the Ombudsman) would or might produce different results as to the substance of the dispute."

Knox J's view was approved by Mummery LJ in Wakelin v Read, at paragraphs 77-78.

32. Much the most important decisions for present purposes, are those of Sir Richard Scott VC and the Court of Appeal in Edge v Pensions Ombudsman [1998] Ch 512; [2000] Ch 602, and of Rimer J in Marsh Mercer Pension Scheme v Pensions Ombudsman [2001] OPLR 221. The Edge case concerned an amendment to rules of a scheme made by trustees pursuant to discretionary powers which, in order to avoid adverse tax consequences, reduced employer contributions and increased pension benefits for members in service, but conferred no benefit on pensioners. On a complaint by a pensioner against the trustees the Ombudsman determined that the trustees had acted in breach of trust in making the amendment (due to a failure to act impartially as between different classes of beneficiaries). He directed that the scheme be administered as if the amendments had never been made. An appeal to the High Court was allowed, both at first instance and in the Court of Appeal, on the grounds that the determination had adversely affected the rights both of the employers and the employee members of the scheme without either having been party to the proceedings, nor having had a fair opportunity to make representations.
33. At [1998] Ch 512, 519, Sir Richard Scott identified two ways in which reference can be made to the jurisdiction of a court or tribunal. He said:

"In its strict sense a reference to the jurisdiction of a court or tribunal is a reference to the type of case that the court or tribunal is capable of entertaining. A reference to the jurisdiction of a court or tribunal is, however, often a reference to the circumstances in which it is proper for a tribunal to entertain a case or to make a particular order."

In that case, the complaint was plainly within the jurisdiction of the Ombudsman in the strict sense, since it was a complaint of maladministration causing injustice to the complainant.

34. Nonetheless, the judge gave two reasons why the Ombudsman's determination in that case had not been a "proper" exercise of jurisdiction. The first was that it was contrary to natural justice for the Ombudsman to determine, or adversely affect, the rights of persons who were not parties to the proceedings. The employers could have been, but were not, made parties to the investigation. The employee members could not have been made parties. Both the employers' and the employee members' rights under the deed of amendment of the rules were adversely affected by the determination. At page 520 E he said:

"In a case in which the maladministration complained of consists of an alleged breach of trust, the Pensions Ombudsman has no power, in my judgment, to direct remedial steps to be taken that are not steps that a court of law could properly have directed to be taken. …. a court could not have directed the trustees to take steps that could only be justified on the footing that the deed had been set aside. Nor, in my judgment, could the Pensions Ombudsman do so."

35. The second reason for the judge's decision was that, on the true construction of the statutory scheme, Parliament could not have intended to give the Ombudsman power to determine disputes which involve the rights of, or which adversely affect, persons other than those bound pursuant to section 151(3) of the Act: see page 519 E-F. He said:

"Since the Pensions Ombudsman's determination is only made binding on those specified in section 151(3), as supplemented by regulation 2 of the Regulations of 1991, Parliament cannot have intended to give him power to determine disputes which involve the rights of others or to direct steps to be taken which adversely affect anyone else. It must follow, in my opinion, that Parliament could not have intended the Pensions Ombudsman to entertain complaints which could only be remedied by such steps or to determine disputes in circumstances in which his determination could not be effective."

36. The Court of Appeal agreed. Giving the judgment of the court, Chadwick LJ said, at [200] Ch 602, 638:

"..The obvious purpose of the ombudsman's jurisdiction, as it seems to us, is that it should lead to the effective determination of complaints or disputes in a manner which is relatively quick, informal and inexpensive. That purpose is not served if the result of a determination in favour of the claimant will be that the trustees are unable to act upon the consequential directions to which such a determination will necessarily give rise without becoming involved in disputes with other persons interested in the fund who are not bound by the determination."

He noted at page 639 E that Part X of the Act did not make provision for representation of class interests and, at page 641 D, that Parliament must have intended the Ombudsman to conduct his investigations in accordance with the ordinary principles of natural justice. He agreed with both limbs of Sir Richard Scott's reasoning and noted that, even if the employers could have been joined as respondents for the purposes of the investigation, there was no way in which the class of scheme members adversely affected if the complaint was upheld could be joined. He agreed with the judge's analysis that this was properly analysed as a question of jurisdiction, in the wider sense.

37. The Marsh Mercer case demonstrates that the logic of the analysis in the Edge case has some limits. Strictly, any decision by the Ombudsman on a complaint by one member of a scheme, to the effect that the trustees ought to have acknowledged some claim of his to greater provision from the scheme than he actually received, adversely affects the interests of all other members of the scheme, however infinitesimally. At paragraph 46 he said:

"Of course, it can be said that most references to the Ombudsman will or may require him to make determinations that will or may have consequential effects on parties not before him. An award of compensation for maladministration will or may fall on the pension fund and so affect the interests in it of other unrepresented scheme members. I do not, however, consider that in most circumstances anyone would regard that as a feature that would ordinarily require the Ombudsman to question whether he should embark on the reference. An allegation of maladministration will usually involve a complaint that the complainant has suffered a particular injustice arising exclusively between himself and the scheme managers. That is typical of the complaints that it is the Ombudsman's function to determine; and if he were to decline to do so on the grounds that any award would be a charge on the fund affecting people not before him he would rarely find himself able to embark on any reference."

Analysis

38. In the present case, Mr Dilley's complaint plainly seeks to have the Compromise Agreement set aside and the Scheme administered as if it had never been made. It is in that respect on all fours with the complaint made in the Edge case, although it is not suggested that it gives rise to any adverse consequences for an unrepresented class of Scheme members. The question is whether it would, if successful, adversely affect the rights of EMC which, as is common ground, would not be bound by the determination, pursuant to section 151(3). For the defendants Mr Nigel Giffin QC and Mr Nicolas Stallworthy QC submitted that EMC's rights as a party to the Compromise Agreement would plainly be adversely affected by such a determination. Alternatively, the determination would be ineffective because, not being bound by it, EMC could obtain an order by way of specific performance prohibiting the trustees from enforcing the determination by seeking further payments from EMC Europe and EMC (UK) as employers. They submitted that no court would entertain an application (however framed) the effect of which was to obtain the setting aside of the Compromise Agreement without joinder of EMC, not least because it had been the provider of the whole of the monetary consideration for the compromise, albeit routed through its two subsidiaries for the purposes of payment.
39. Mr Evans for the Ombudsman advanced a range of arguments to the contrary. First he said that, since EMC's only loss from the enforcement of a determination against its subsidiaries would be a reduction in the value of its shares in EMC (UK), this was not a form of loss or invasion of legal rights which should be recognised as impeding the Ombudsman's jurisdiction. Otherwise he said, the parent company of a group which included participating employers in a pension scheme could always frustrate attempts by members to invoke the Ombudsman's jurisdiction by claiming that its rights were adversely affected, and even seek to be added as a formal party to compromise agreements of this type so as to stave off adverse claims by individuals insufficiently funded to undertake the cost and risks of court proceedings.
40. I do not accept that submission. There is in my judgment all the difference between the invasion of a contractual right specifically conferred on a party to an agreement, and the damage to the value of a parent company's shares in a participating employer, where the parent has no relevant rights other than those attached to the shares. Where, as here, the parent company has a contractual right of its own adversely affected by the pursuit of the complaint to a successful determination, then it is, just like the employers in the Edge case, entitled to complain that its right should not be overridden in proceedings to which it either is not (as in Edge) or cannot (as in the present case) be made a party and therefore bound.
41. The Ombudsman's concern that his jurisdiction should not be undermined by the colourable joinder of persons who cannot be bound by his determination to contracts otherwise made between the trustees and participating employers deserves real respect. Where for example a parent company is added as a party to a contract without providing any value by way of consideration for the promises received, the court may be astute to prevent the Ombudsman's jurisdiction from being artificially undermined. But in the present case it was EMC which provided the whole of the monetary consideration for the release of its two subsidiaries from further liabilities to the Scheme. It was no less, in substance, the buyer of that release than if it had made the payments of £1.2m and £60,000 directly.
42. Next, Mr Evans submitted that, apart from the discretionary remedy of specific performance, the Compromise Agreement had been fully executed, so that there was no sure way in which a determination by the Ombudsman against EMC Europe and EMC (UK) could be rendered ineffective. An injunction restraining the trustees from seeking to enforce the Ombudsman's award against the participating employers would be discretionary, and by no means a foregone conclusion in the event that the Ombudsman had determined that the Compromise Agreement ought to be set aside.
43. He said that the mere risk of such an injunction could not go to the Ombudsman's jurisdiction, even in the wider sense. At the most it might be relevant to his more general discretion whether to continue with, or discontinue, an investigation.
44. Again, I disagree. I consider that the risk of fresh proceedings in court for an injunction after a determination by the Ombudsman that the Scheme should be administered as if the Compromise Agreement had been set aside is just the type of risk of parallel litigation which both Sir Richard Scott and the Court of Appeal considered Parliament could not have intended when conferring a limited jurisdiction on the Ombudsman under the statutory scheme.
45. Finally, Mr Evans submitted that both the Edge case, and all those which have followed it, were cases in which the rights which would be adversely affected by a determination to which relevant persons were not parties, were direct rights of a proprietary nature in relation to the assets of the relevant scheme, whereas in the present case EMC had no such rights capable of being infringed. I am prepared to assume, but without deciding, that as a matter of analysis of the reported cases, Mr Evans is correct, and that all the rights in issue were those enjoyed either by scheme members or participating employers.
46. But it by no means follows that the principles established in the Edge case are constrained in that way. Consider a complaint by a scheme member that property held on the trusts of the scheme had been sold by trustees to an unconnected third party at a gross under value such that the sale should be set aside. The third party's right to uphold the contract of sale would not be a right in relation to the scheme like that of a beneficiary or participating employer. The third party could not be joined in the investigation, or be bound by the Ombudsman's determination. No court would entertain a case for the setting aside of that contract without joinder of the third party buyer. The determination would be ineffective against the buyer, since no direction could be given by the Ombudsman that the buyer returned the property to the trustees.
47. More generally, I consider it plain that no court would entertain Mr Dilley's claim to set aside the Compromise Agreement without joining EMC, which was in substance the buyer of the trustee's release of EMC Europe and EMC (UK) from further liability. It follows that the principles in the Edge case are fully applicable to Mr Dilley's complaint, and that it would not be proper for the Ombudsman to assume jurisdiction in relation to it.
48. For completeness I should add that Mr Giffin and Mr Stallworthy sought to fortify their submissions by reference to EMC's rights under Article 1 of the First Protocol to the ECHR and under Article 6. Without in any way rejecting those submissions, it will be apparent that I have not found it necessary to rule upon them.

Delay

49. My conclusion that Mr Dilley's complaint falls foul of the principles laid down in the Edge case makes it unnecessary for me to decide whether, if jurisdiction might otherwise properly have been undertaken, the delay in notifying the defendants ought now to be regarded as fatal to the further pursuit of the investigation. In case this matter goes further, I will briefly state my conclusions.
50. The Ombudsman's letter of 16 February 2006 to Mr Dilley's solicitor, confirming that the complaint fell within his jurisdiction, but that it would be put on hold pending investigation of the Scheme by the Pensions Regulator fell short, in my judgment, albeit by a hair's breadth, of a decision by the Ombudsman to investigate the complaint, within the meaning of Rule 5(2). Accordingly, the obligation forthwith to supply a copy of the details of the complaint to the participating employers was not triggered at that stage, and arose only in 2008 when, after the Pensions Regulator had concluded its investigation, the Ombudsman had decided to proceed with his own. Nonetheless, in the unusual circumstances of the existence of a prior pending investigation by another statutory body, I consider that it was incumbent upon the Ombudsman to notify the participating employers that, subject only to the Pension Regulator's investigation, it was the Ombudsman's intention to investigate Mr Dilley's complaint. By 2006 the matters complained of were already four years old, and there appeared no immediate or early end in sight to the Pension Regulator's investigation. By the time it ended, the matters complained of had occurred six years previously. By 2008 I consider that there was a real basis for the defendants to complain that they had, for more than two years, been unfairly left in the dark.
51. I do not however regard this as a pure question of law. It would be a matter for the general discretion of the Ombudsman whether, in the light of that complaint of unfair delay, he should nonetheless proceed with the investigation. It would be a fact sensitive question, depending both upon the extent to which the defendants had already become aware of Mr Dilley's complaint (due to his pursuit of it by internal dispute resolution procedures) and whether, in the meantime, the defendants had through lapse of memory or loss of documents, suffered any prejudice by the delay.
52. Had it therefore stood alone, I would not have regarded the complaint of delay as sufficient to enable me to conclude, on the Ombudsman's application for determination of a point of law, that he should decline jurisdiction to investigate further.