England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/03/2012

Mr Justice Warren :

Introduction

1. This Part 8 claim raises a short point of construction of a document referred to as a Deed of Intention dated 15 November 1990 ("the Deed of Intention") concerning a pension scheme known as the RHM Pension Scheme ("the Scheme") of which the defendant ("the Trustee") is trustee. The question is whether the Deed of Intention was effective to equalise the Normal Pension Age ("NPA") for men and women at age 65 with effect from its date. The decision of the European Court of Justice (as it was then known) in Barber v Guardian Royal Exchange Case C-262/88, [1991] 1 QB 344 established that pension benefits under a defined benefit pension scheme are "pay" for the purposes of the equal pay provisions found in Article 119 (now Article 157) of the EU Treaty. Accordingly, unequal pension ages for men and women were and are unlawful.
2. Following the decision in Barber, the decision was taken by the Trustee to equalise NPA at 65. The matter can be taken in three stages:

a. First, the Trustee passed a resolution to equalise NPA at 65 and an announcement to that effect was made to members. It is not clear what the date of the resolution was, but it must have been in August 1990. Nothing turns on this.

b. Secondly, the Deed of Intention was executed on 15 November 1990. On the same day, but prior to the execution of the Deed of Intention, a deed of amendment ("the 1990 Amending Deed") was executed amending the provisions of the Scheme.

c. Thirdly, a Deed of Amendment ("the 1993 Amending Deed") dated 18 February 1993 was executed further amending the Scheme and providing for a common NPA of 65 for men and women.

3. It is common ground that the resolution and announcement were ineffective to equalise NPA at 65. And it is common ground that the 1993 Amending Deed was effective to do so if the Deed of Intention had not already achieved such equalisation. The issue is whether the Deed of Intention did so.
4. The claimants (" the Employers") are current employers under the Scheme. They argue that the Deed of Intention was effective to equalise NPA at 65 as from 15 November 1990. The Trustee argues that the Deed of Intention was not effective to do so. Although itself neutral on the outcome, the Trustee argues the case on behalf of the members affected, so as to avoid the need to add, at additional cost, a representative member or beneficiary of the Scheme.

The Scheme

5. The Scheme was established by an interim deed dated 9 November 1977 for employees of Rank Hovis McDougall Ltd (later Rank Hovis McDougall plc) ("RHM"). By 1990, the Scheme was governed by a Definitive Deed and Rules in the form shown in a consolidation dated 26 September 1989. Relevant provisions were to the following effect:

a. The scheme was a defined benefit scheme based on final salary under which a Member was entitled on retirement to a pension calculated by reference to the number of years of pensionable service and final pensionable earnings.

b. The funding of the Scheme was on a balance of cost, with Members paying a fixed percentage of salary and the employers paying the remainder of the cost of providing benefits.

c. There was a Compulsory Retirement Age of 65 which was the same for men and women.

d. The Scheme also had an NPA but this was different for men and women. This was a common provision at the time which reflected the different state pension ages.

e. If retiring at NPA, a Member was entitled to a pension based on the full amount of his or her Pension Credit (that is to say n/80 x FPE where n is the number of years service and FPE is final pensionable earnings). If retiring before NPA, the Member was entitled to a pension reduced to take account of the period between Retirement and NPA.

f. If leaving service before NPA without retiring, a Member was entitled to a Deferred Pension commencing at NPA.

6. The result of all of this was that the Scheme provided different benefits for men and women, with a more generous benefit being payable to women. For instance, a woman retiring at 60 would receive an unreduced pension based on her service and final pensionable earnings; but a man retiring at the same age with the same service and salary would receive a pension reduced to reflect its early payment prior to his NPA of 65.
7. Power of amendment. The 1989 Definitive Deed contained, at clause 7, a power of amendment in the following terms:

"(1) Subject to sub-clause (2) of this Clause the Trustees may at any time or times during the Trust Period by any deed or deeds alter modify or add to all or any of the provisions of this Deed and the Rules respectively."

8. That power of amendment was subject to two provisos which are not material for present purposes.

Equalisation

9. The seminal decision in Barber established the requirement for equalisation of NPA. However, the ECJ placed a temporal limitation on its own decision in order to limit the cost to pension schemes of compliance. Its decision was to apply only from 17 May 1990, the date of the decision. There was uncertainty about precisely how this temporal limitation was to operate. This uncertainty was largely resolved by subsequent cases in the ECJ.
10. The first was a Dutch case, Ten Oever v Stichting Bedrijfspensioenfonds Voor Het Glazenwassers Case C-109/91, [1993] PLR 317 in which the ECJ explained that, given the way in which pension benefits accrue over the employee's working life, the temporal limitation was to apply so that equality of treatment could be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990. This was reaffirmed in the UK case of Coloroll Pension Trustees v Russell Case C-2009/91, [1994] PLR 221.
11. In another UK case, Smith v Advel Systems Ltd Case C-408/92, (also at [1994] PLR 221), the ECJ held that, until discrimination had been eliminated by equalising NPA, a pension scheme had to provide the disadvantaged class with the same benefits as the advantaged class for the period from 17 May 1990 until the date of effective equalisation: see at [195] - [196] of the Judgment of the Court.

The steps taken to achieve equalisation

12. The directors of the Trustee were told of the decision in Barber at a meeting on 2 August 1990. They decided to postpone publication of "Perspective", a pensions newsletter sent to active members, in the light of that decision among other matters. Proposals were to be brought forward to achieve full equality. The Trustee subsequently resolved to raise NPA for women to 65 with effect from 24 August 1990. Nothing turns on this resolution since it is not contended that it was effective to achieve equalisation.
13. An edition of Perspective, which came out in October 1990, referred to Barber. It recorded that there were a number of areas where equality already existed but that there remained some areas where that was not so, stating that "we are therefore making further changes to the rules to eliminate differences wherever possible". One of the changes mentioned was the adoption of a common NPA of 65.
14. At a meeting of the board of the Trustee on 15 November 1990, the October edition of Perspective was placed before the meeting and it was resolved to execute a "Deed of Intention" confirming the intention of the Trustee and RHM to amend the Scheme in the terms described in the announcement in Perspective and pending such amendment for the Scheme to be administered in accordance with such announcement. The Minute of the meeting does not record the discussion which took place leading to the resolution and does not reveal what power or powers the directors of the Trustee thought that they were exercising in resolving to execute the Deed of Intention or would be exercising when actually making the amendment.
15. At the same meeting, it resolved to execute a Deed of Amendment which provided for the making of a new Trust Deed and Rules following the amalgamation of the Scheme (then known as the RHM Pension Plan 35) with another scheme known as the RHM Pension Plan 45 and the renaming of the amalgamated scheme as the RHM Pension Scheme.
16. Two deeds were then executed pursuant to those resolutions namely the 1990 Amending Deed and the Deed of Intention, in that order. The 1990 Amending Deed replaced the then extant Trust Deed and Rules with a complete text of the Definitive Deed and Rules for the amalgamated scheme. The new Rules were similar to those in the 1989 consolidation which I have mentioned, including a definition of NPA which was unchanged and thus provided different NPAs for men (65) and women (60). The power of amendment continued unchanged. It is common ground between Mr Andrew Simmonds QC (who appears for the Trustee) and Mr Christopher Nugee QC (who appears for the Employers) that neither of the two provisos to which that power is subject precludes the Deed of Intention from having the meaning for which the Employers contend.
17. The Deed of Intention provided, relevantly, as follows:

a. It recited (i) the 1990 Amending Deed, (ii) the fact that RHM and the Trustee had decided to amend the Scheme to reflect (among other matters) the changes to NPA announced in Perspective and (iii) the intention as soon as possible to amend the Trust Deed and Rules. It contained two operative clauses. Clause 1 provided:

"RHM and the Trustee confirm and declare their intention as soon as practicable to amend the Trust Deed and Rules so that as from 1^st January 1991 they reflect the alterations described in the said paragraph 1 (Eligibility) and as from 25^th August 1990 they reflect the alterations described in the said paragraph 2 (Normal Pension Age) subject to such (if any) modifications and amendments as RHM and the Trustee shall consider necessary and expedient…."

b. Clause (2) provided:

"PENDING the amendment of the Trust Deed and Rules as described in Clause 1 hereof the Trustee shall continue to administer the Fund in accordance with the Trust Deed and Rules and as from 1^st January 1991 and 25^th August 1990 subject to the alterations described in the said paragraphs 1 and 2 respectively."

c. The references to paragraphs 1 and 2 were references to the relevant parts of Perspective, which was annexed to the Deed of Intention.

18. On 18 February 1993, the 1993 Amending Deed was executed which in terms provided the same NPA of 65 for both men and women.
19. Although the Scheme has been administered on the basis that equalisation took place with effect from 25 August 1990, nobody now contends that that was correct for reasons which I will explain in a moment. The issue between the parties is whether equalisation took place at the date of the Deed of Intention, 15 November 1990, or at the date of the 1993 Amending Deed, 18 February 1993.
20. The importance of the answer to this issue is shown by the estimate given by the Scheme Actuary of the extra cost which would fall on the Scheme (and thus on the Employers). The additional cost of equalisation as at the earlier date was estimated at £1,190,000 and as at the later date at £18,954,000. The extra cost is thus £17,764,000 (excluding any additional payments due to beneficiaries in receipt of payment of pensions and lump sums and interest).

The law on equalisation

21. I need to refer to a number of comparatively recent cases on equalisation.
22. In Bestrustees v Stuart [2001] PLR 283, Neuberger J held that the court should be very careful before permitting departure from the plain wording and plain requirement of a trust deed. He also held that the announcement in that case, which purported to equalise benefits, was not effective to amend the scheme; but that an amendment which purported to be retrospective but could not validly be made retrospective was nevertheless valid prospectively.
23. In Trustee Solutions v Dubery [2006] EWHC 1426 (Ch), [2007] 1 All ER 308, [2006] 36 PBLR, Lewison J held that the court had no power to sanction departure from a requirement found in an amending power that an amendment be made by a document "under hand".
24. In Harland & Wolff v Aon [2006] EWHC 1778 (Ch), [2006] 44 PBLR, I summarised the applicable law and held that Smith v Advel precluded a retrospective amendment even where the amending power permitted it as a matter of domestic law.
25. In the light of those decisions, it is common ground before me (i) that the Scheme was not equalised on 25 August 1990 as a result of the Trustee's resolution and announcement since the amending power required an amendment to be made by deed (ii) that there can be no retrospective equalisation under whichever is valid and effective of the Deed of Intention and the 1993 Amending Deed and (iii) that whichever of those two deeds is effective, it takes effect prospectively from its date even though expressed to operate from an earlier date.

Principles of construction

26. It is not necessary to repeat yet again the familiar citation from the speech of Lord Hoffmann in ICS v West Bromwich Building Society [1998] 1 WLR 896 at 912-3. There have been many cases since then adopting and explaining what he said. I need only refer to two.
27. The first is BCCI v Ali [2002] 1 AC 251 where Lord Hoffmann himself explained, at [39], what he had meant in ICS when he said that the admissible background included "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man". Relevantly for present purposes, that background can include the state of the law.
28. The second case is Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 where Lord Clarke said this at [30] of his speech:

"…where a term of a contract is open to more than one interpretation, it is generally appropriate to adopt the interpretation which is most consistent with business common sense."

In saying that, Lord Clark effectively confirmed that the suggestion, that a purposive construction was only permissible where a literal interpretation flouted business common sense, should be rejected.

29. The same general approach is to be applied in construing pensions documentation. There are no special rules of construction (see Millett J in Re Courage Group's Pension Schemes [1987] 1 WLR 495 at 505F). The approach should be practical and purposive (see Mettoy Pension Trustees Ltd v Evans [1990] 1 WLR 1587 at 1610C). The principles were summarised by Arden LJ in Stevens v Bell [2002] PLR 247 at [26] – [32], including a repetition of what Millett J had said in Courage. I do not need to set out those paragraphs in this judgment.
30. There is a well established principle (which we used to refer to as ut res magis) that in choosing between an interpretation which makes the instrument valid and effective and one which makes it invalid or ineffective, the court should lean towards the construction which saves the instrument. That is the way it is put in Lewison The Interpretation of Contracts (5^th ed). In that context, I have been referred by Mr Nugee to:

a. BCCI v Ali at p269 where Lord Hoffman commented that "the parties are unlikely to have intended to agree to something unlawful or legally ineffective".

b. Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd (2007) 111 Con LR 78 at [57f] where Jackson J cited the principle with approval.

c. Anglo Continental Education Group (GB) Ltd v Capital Homes (Southern) Ltd [2009] CP Rep 30 at [13] where Arden J said this:

"…if the agreement is susceptible of an interpretation which will make it enforceable and effective, the court will prefer that interpretation to any interpretation which would result in its being void."

Submissions

31. Mr Nugee accepts that, in order for the Deed of Intention to have brought about an effective equalisation, it has to be read as an exercise of the power of alteration etc found in Clause 7 of the 1990 Amending Deed. He says that it can and should be read in that way. It is a deed, and thus fulfils the formal requirement of the power of alteration; and it alters, modifies or adds to the provisions of the 1990 Amending Deed. In this context, Mr Nugee relies strongly on the fact that the Deed of Intention contains two operative clauses numbered 1 and (2). Whilst clause 1 expresses an intention to do something in the future, clause (2) is clearly intended to have some immediate effect, namely that the Trustee should administer the Scheme on the basis of the 1990 Amending Deed but subject to certain alterations. They could only properly administer the scheme in that way if it had been effectively altered, modified or added to by clause (2).
32. On Mr Nugee's approach, clause 1 has no operative effect. It is an expression of intention and no more than that. As such, it did not need to be expressed in a deed at all, but given that a deed was required, by clause 7 of the 1990 Amending Deed, to give effect to the alterations contained in clause (2), it was entirely appropriate to include the expression of intention in the deed.
33. Why was clause 1 needed at all? The answer, he would say, is that strictly it was not needed. But it records formally that textual amendments will take place to the 1990 Amending Deed. Those amendments would be likely to be quite detailed as can now be seen from Appendix 1 to the 1993 Amending Deed. The drafting of those detailed textual amendments would take some time - perhaps it was not contemplated that it would be as long as the 2 years plus which actually elapsed – but in the meantime, the Scheme was to operate in a way which would reflect the substance of the changes, with effect being given to that transitional arrangement by clause (2). The position has parallels with the operation of a pension scheme under an Interim Deed pending the execution of a Definitive Deed or with the introduction of a provision requiring a pension scheme to be operated in accordance with the preservation requirements pending the execution of detailed rules designed to achieve that end.
34. He suggests that, if clause (2) does not take effect as an amendment of the 1990 Amending Deed, then it has no effect at all. The parties cannot have intended the Deed of Intention to have no effect at all. Quite the reverse: it is obvious that clause (2) was intended to direct the Trustee how the Scheme should be conducted.
35. He gives an example. Consider a female member of the Scheme who attains the age of 60 between the dates of the 1990 and 1993 Amending Deeds and leaves service. She asks the Trustee for her pension, unreduced, in accordance with the 1990 Amending Deed. She is met with the response that that would be inconsistent with clause (2) of the Deed of Intention and that her pension must be reduced. Mr Nugee says that the Trustee would be right in their response (subject, as we now know, to the overriding requirement of EU law that it would not be possible to apply an NPA of 65 in respect of service between 25 August and 15 November 1990). But if Mr Simmonds is correct in his submissions it would follow that the Trustee could not properly refuse the woman's request and the Trustee would be unable to observe the direction in clause (2) of the Deed of Intention that it should administer the Scheme subject to the alterations identified in that clause.
36. Mr Nugee accepts, of course, that the Deed of Intention does not effect a textual amendment to the 1990 Amending Deed in the sense that it does not substitute new words for existing words. What it does do, he says, is to effect an alteration to the 1990 Amending Deed. If that is wrong, it effects a modification or addition.
37. He submits that the construction for which he contends follows from the cases which I have already mentioned. Thus the relevant background (as referred to in ICS and in BCCI v Ali) would include recognition of the need to equalise benefits for men and women and the need, in this particular scheme, for a deed in order to achieve the necessary alteration. The reasonable man would understand that the Deed of Intention was actually intended to achieve something and read it so as to give effect to that intention if possible. Courage, Mettoy and Stevens v Bell (see in particular at [28]) all demonstrate that the construction of pensions documentation must be reasonable and practical. Mr Simmonds' construction, far from being reasonable and practical, is a trap.
38. Mr Simmonds suggests that the whole of Mr Nugee's case is framed in the context of the state of the law as it is now understood. Today, we know that it is not permissible, for the past, to equalise downwards by reducing the benefits of the advantaged class to those of the disadvantaged class even where domestic law permits that to be done. Instead, benefits must be levelled up to those of the advantaged class, as to which see Smith v Avdel in the ECJ and Harland & Wolff v Aon. That enables Mr Nugee, with the benefit of hindsight, to say that clause (2) would have been ineffective if it did not effect an alteration of the Scheme. But, Mr Simmonds submits, that was not the understanding of the law in November 1990 at least so far as the draftsman of the Deed of Intention was concerned. That is clear because he, the draftsman, envisaged that equalisation would take effect from 25 August 1990 whether that equalisation was brought about by the Deed of Intention itself (dated some months after 25 August 1990) or would be brought about by some later deed.
39. Against that legal understanding, the Deed of Intention takes on an entirely different complexion. In the first place, Mr Simmonds submits that clause 1 had an immediate and binding effect. It is to be read as having contractual force between RHM (as employer) and the Trustee. Each party became bound to execute a deed making textual amendments to the 1993 Amending Deed. Those amendments should have been made within a reasonable time; nobody would have expected there to be a delay of well over 2 years. Clause (2) is then to be seen as a direction to the Trustee to administer the Scheme in a particular way in circumstances where everyone concerned knew that an amending deed would shortly be executed giving valid retrospective effect to what the Trustee had been doing.
40. Thus clause (2) was not and was never intended to be an exercise of the amending power. Since the draftsman believed that the amendment, when made, would have retrospective effect, he would not have seen any need to have an interim amendment, in contrast with an agreement about how the Scheme would be administered pending the formal amendment.
41. Instead, clause (2) is simply an undertaking by the Trustee to administer the Scheme on the footing that it had been altered without it in fact having been altered. Mr Simmonds submits that there is a real difference between this and amendment. An amendment concerns the constitution of the Scheme; clause (2) is concerned simply with how the Scheme operates. It was, he says, rational for the Trustee to proceed on the basis that in due course a retrospective deed would be made.
42. Mr Simmonds finds support for his approach in the title of the deed. It is, after all, a deed of Intention. He also relies on recital (H) which reads as follows:

"(H) RHM and the Trustee intend as soon as practicable to amend further the Trust Deed and Rules as aforesaid and have entered into this deed to confirm such intention."

43. He accordingly submits that the underlying purpose of the Deed of Intention was to signal an intention to amend the 1990 Amending Deed.
44. As to that last point, he is clearly correct that signalling such an intention was one of the purposes of the Deed of Intention. Mr Nugee does not disagree although, as well as being part of his case that such a deed would be needed to put flesh on the bones of clause (2) of the Deed of Intention, he says that there was another purpose, namely to make an interim alteration pending execution of the new deed. But the point, as I see it, takes Mr Simmonds nowhere. He cannot say that the only purpose of the Deed of Intention was to signal an intention. It is his own case that clause 1 imposes an obligation and does not simply signal an intention; and that clause (2) does require the Trustee to administer the Scheme as if the alternation had been made.
45. Mr Simmonds referred to Bestrutees v Stuart [2001] PLR 283. I do not propose to go into that decision which turned, it seems to me, very much on its facts. I can dispose of that case for present purposes immediately. I do not detect the close parallel between that case and the present case which Mr Simmonds perceives. Without in any way suggesting that the analysis or the decision is wrong, I do not gain any assistance from it.

Discussion

46. In my judgment, Mr Nugee's submissions are to be preferred. Even assuming that, Mr Simmonds' starting point concerning the understanding of the law in November 1990 could be established by evidence, his interpretation is at odds with the more natural meaning of the language used and is unsatisfactory in its legal and practical consequences.
47. First, I find it impossible to spell out of the Deed of Intention a contractual obligation between RHM and the Trustee to execute a deed of amendment. No doubt both parties did intend to execute such a deed (and in fact did so, although not as speedily as one might have hoped); indeed, the Trustee had already resolved to make the changes and RHM must itself have approved the changes otherwise it would not have entered into the Deed of Intention. But neither the language of the recitals nor that of clause 1 itself provide support for Mr Simmonds' conclusion. In any case, intentions might change for perfectly good reasons.
48. In my view, therefore, clause 1 is not a provision which cast an obligation on either party. That conclusion does not, as it happens, entirely undermine Mr Simmonds' arguments about the meaning of clause (2). He can still argue that it was rational for the Trustee to agree to administer the Scheme as indicated in clause (2) on the basis that in practical terms it could be sure that Scheme would in fact be amended although it has to be accepted that his argument is then weaker.
49. Secondly, I do not agree with Mr Simmonds' submission that clause (2) is simply an undertaking by the Trustee to administer the Scheme on the footing that it had been altered without it in fact having been altered. The text of clause (2) does not support that conclusion. Clause (2) does not say that the Trustee shall administer the Scheme on the footing that alterations had been made. Rather, it says that the Trustee is to continue to administer the Scheme in accordance with its Trust Deed and Rules but subject to certain alterations. That suggests strongly that the alterations were viewed as substantive and effective and not simply as a counterfactual basis on which the Scheme was to be administered.
50. Thirdly, I reject any argument that a textual amendment is necessary if clause 7 of the 1990 Amending Deed is to be available. By textual amendment, I mean a change to the wording of the Scheme by express incorporation of replacement or additional text in identified places in the Deed.
51. Consider, then, a deed made in express exercise of the clause 7 power of alteration which inserted after the definition of NPA words such as "(This definition takes effect subject to Appendix 1 in the case of female members") wording which I take verbatim from the definition in the 1993 Amending Deed. Suppose that Appendix 1 contained words identifying the alteration in paragraph 2 referred to in recital (F) to the Deed of Intention and stating that the alteration would take effect as from 25 August 1990. Clearly these (textual) amendments would take effect as alterations or modifications to the 1990 Amending Deed.
52. Would it make any difference if the deed of amendment, again made in express exercise of the clause 7 amending power instead of inserting words into the 1990 Amending Deed, had said that the 1990 Amending Deed should take effect "as from 25 August 1990" and "subject to the alterations described in" that same paragraph 2? I do not think that it would make any difference at all. I can see no rational approach which would draw a distinction. And yet the first amendment makes a textual change whereas the second does not.
53. Fourthly, I do not consider that the words "shall continue to administer the Fund" etc in clause (2) assist Mr Simmonds' argument. It is perfectly clear that what clause (2) requires the Trustee to do is to operate the Scheme subject to the specified alterations. Those alterations impact on benefits and the Trustee is to operate the Scheme in all respects just as it would run it if full textual amendments effecting the alterations had been made. The Trustee would be in breach of trust if it operated the Scheme other than in accordance with the governing documentation of the Scheme. If clause (2) were ineffective to effect an alteration or modification within the meaning of the power conferred by clause 7 of the 1990 Amending Deed, clause (2) would be requiring the Trustee to operate (and if this is anything different to administer) the Scheme in a way inconsistent with that governing documentation.
54. Mr Simmonds says that, on his construction, this is not really a problem because the Trustee knows that, within a reasonably short time, everything will be retrospectively validated. I find that an unsatisfactory answer. I am not attracted, to say the least, by a construction which necessarily involves a Trustee acting other than in accordance with the provisions of the trust even when, in practical terms, any breach can be retrospectively validated. But where the breach cannot be retrospectively validated, such a construction is almost impossible to defend. In that context, Mr Simmonds has not given a satisfactory explanation of how to deal with Mr Nugee's example of the female member of scheme who attains age 60 between 25 August 1990 and the date of an effective deed of amendment and who seeks an unreduced pension. Certainly, when faced with competing constructions one of which does, and one of which does not, involve a breach of trust, I prefer the one which does not in the absence of compelling reasons to the contrary.

Conclusion

55. In my judgment, clause (2) of the Deed of Intention was effective to amend the Scheme as an exercise of the power contained in clause 7 of the 1990 Amending Deed. Accordingly I answer Question 1 on the Claim Form in sense (i) : the NPA for men and women was equalised at age 65 with effect from 15 November 1990.