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England and Wales High Court (Chancery Division) Decisions
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Wilson v Port of Felixstowe Pension Trustee Ltd [2025] EWHC 1271 (Ch) (27 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/1271.html
Cite as:
[2025] EWHC 1271 (Ch)
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Neutral Citation Number: [2025] EWHC 1271 (Ch) |
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Case No: PE 2024 000005 |
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
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Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL |
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27/05/2025 |
B e f o r e :
CHIEF MASTER SHUMAN
____________________
Between:
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ASHLEY JAMES WILSON
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Claimant/ Respondent
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- and -
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PORT OF FELIXSTOWE PENSION TRUSTEE LIMITED
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Defendant/ Applicant
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____________________
Joseph Steadman (instructed by Sacker & Partners LLP) counsel for the Applicant/Defendant
Steven McGarry (direct access) counsel for the Respondent/Claimant
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HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
CHIEF MASTER SHUMAN
CHIEF MASTER SHUMAN:
- This is an application by the defendant to strike out the claim or for reverse summary judgment made by application notice dated 26 April 2024.
- The defendant relies on a witness statement of James Bingham, a partner at the defendant's solicitors, dated 26 April 2024. The claimant has filed no evidence in reply, although has filed a witness statement dated March 2024 in support of his Part 8 Claim. He opposes the application.
- The claimant previously made a complaint to the Pensions Ombudsman. On 16 November 2022 the Pensions Ombudsman made a determination in which he did not uphold the claimant's complaint ("the Determination"). It is the defendant's contention that the issues raised in this claim were the subject of the Determination. As such sections 151(3) and (4) of the Pension Schemes Act 1993 mean that the Determination is final and binding upon the parties. The claimant contends that the declaration he seeks in this claim is outwith the Determination and it is open to him to argue a point of construction.
THE FACTUAL MATRIX
- The claimant was employed as a mechanical engineer by the Port of Felixstowe for 17 years. Since 2012 he has been suffering from hip and urological conditions; his sickness absence commenced on 24 September 2016.
- The claimant is a member of the Port of Felixstowe Pension Plan ("the Plan"). The defendant is the current sole trustee of the Plan.
- On 23 June 2017 the claimant's employment was terminated on the grounds of ill-health, he was aged 37 years. He applied to the defendant for an incapacity pension.
- At the material time the Plan was governed by the Third Definitive Trust Deed and Rules dated 16 July 2003, as subsequently amended, ("the Rules").
- Rule 1.1 provided that,
"Any person who is under 63 and is permanently employed by an Employer may become a Member of the Plan automatically on the commencement of his employment with an Employer unless the employee has completed an opt out form."
- Rule 4.2[1] sets out the provisions for early retirement.
"4.2.1 If a Member wishes to apply to commence his pension under the Plan he shall notify the Trustee and the Principal Company in writing. If a Member who is in Pensionable Service is aged 50 or over, but under 63 or, whatever his age, is suffering an Incapacity wishes to commence his pension before Normal Retirement Date (whether he remains in Service or not) he shall be entitled to elect, subject to the consent of his Employer for an immediate annual pension payable during his lifetime as alternative to any benefit payable under Rule 8 (Termination of Service)[…]
…
4.2.3 The amount of any immediate annual pension payable to a Member who commences benefits under the Plan at any time before Normal Retirement Date, as a result of Incapacity and with the consent of the Employer and the Trustee, shall be the annual amount of the pension to which the Member would have been entitled had the date on which he ceased to be in Pensionable Service been his Normal Retirement Date but calculated on the basis of his Final Pensionable Salary at the actual date of commencing benefits under the Plan and his Potential Service.
However if, in the opinion of the Employer and the Trustee, the Member is Incapacitated to the extent that he cannot follow his normal employment with his Employer but he can nevertheless carry out an employment with another employer the Trustee may determine that the Member's pension shall be calculated instead by reference to the Member's Pensionable Service and Final Pensionable Salary at the date of his actual retirement."
- Schedule 1 to the Rules defines "Incapacity" as,
"means physical or mental deterioration which, in the opinion of the Employer and the Trustee, after having taken such medical advice as they may reasonably require is serious enough to prevent the Member from following his normal employment or seriously and permanently impairs his earning capacity."
- The defendant describes the effect of rule 4.2.3 as creating a two-tier incapacity pension, referred to as the Upper Tier Pension and the Lower Tier Pension. The latter is payable where the Member, in the opinion of the Employer and Trustee (the defendant), cannot follow his normal employment with the Employer but can carry out "an employment" with another employer. In crude terms the difference is that the Upper Tier Pension calculates the pension as if the Member continued in pensionable service until their 63rd birthday. In contrast the Lower Tier Pension calculates actual pensionable service and final pensionable salary at the date of actual retirement, not by reference to hypothetical future pensionable service.
- It is clear from the use of "may" in rule 4.2.3 that it is intended that the Employer and Trustee have a discretion as to whether a Member falls within the Lower Tier. That discretion is exercisable if they consider that the Member "cannot follow his normal employment with his Employer but he can nevertheless carry out an employment with another employer" and so the member will receive the Lower Tier Pension.
- The claimant applied for ill health early retirement. Initially he was awaiting surgery and so the defendant proposed that he reapply after his surgery. The claimant made a complaint to the Pensions Ombudsman. The defendant agreed that they would consider the application on the basis of the updated medical evidence, and the complaint was resolved at that stage, albeit that the claimant was not happy with this approach.
- The claimant supplied further medical evidence and attended an appointment with the Plan's medical advisers. In February 2020 the defendant decided that the claimant did not meet the criteria to receive an incapacity benefit. This decision was reviewed in light of further evidence from the claimant, including his explanation as to why he was reluctant to engage in invasive treatment options.
- On 20 August 2020 the defendant confirmed that the Lower Tier Pension would be paid to the claimant, they were satisfied that his incapacity met the criteria under the Rules and the requirements of the Finance Act 2004[2]. The Employer also consented to this decision. In summary the defendant considered that[3],
"on the balance of probabilities, it was more likely than not that Mr Wilson would be unable to return to his previous employment as a mechanical engineer due to the physical demands of the role. However, the medical evidence supported a conclusion that it was more likely than not that he would be able to engage in alternative sedentary employment that does not require manual labour. Mr Wilson was therefore awarded the Lower Tier Pension on 20 August 2020 in accordance with the Plan's Rules, backdated to his date of leaving Pensionable Service[4]."
- The claimant challenged the decision on two bases: that his ability to work in "an employment" was in a like for like role and as he could not work as an engineer he must therefore be entitled to the Upper Level Pension; and secondly, that the calculation of his final pensionable salary figure was wrong.
- On 2 November 2020 the defendant sent the claimant a stage two decision letter under the Plan's Internal Dispute Resolution Procedure. This includes their construction of rule 4.2.3 that, "The reference to a different role with a different employer, was not to a different role with the same employer, nor to a like for like role with a different employer."
- On 15 February 2021 the claimant filed a complaint to the Pensions Ombudsman. At page 3 of the complaint he set out what he considered was wrong with the defendant's decision and where the fault lies,
"Denied ill health pension. Repeatedly sent through IDRP [independent dispute resolution procedure] with no resolution. Showed medical records without knowledge or permission. Disputed medical evidence…"
- At page 4 of the complaint the claimant says that the outcome he wanted to achieve is to be paid "the correct pension figure from when I was terminated".
- The defendant responded in a detailed letter dated 22 June 2021. Their conclusion was that they disagreed with the claimant's construction of the incapacity rule under the Plan and that the salary had been calculated correctly.
- On 16 November 2023 the Pensions Ombudsman made the Determination. The covering letter clearly states that the Determination is binding on all parties, subject only to an appeal on a point of law. The claimant did not appeal the Determination.
- The Pensions Ombudsman summarised the complaint before him at paragraph 2 of the Determination being that the defendant,
- "Has awarded him the Lower Tier of incapacity pension (IP). He believes he should have been awarded Upper Tier on the basis that he will never be able to work again.
- Has misinterpreted the criteria under the Plan rules "(the Rules)".
- Has applied an incorrect salary in the calculation of his IP."
- The Ombudsman's decision starts at paragraph 55, recording that his remit for the complaint was,
"55. My role is primarily to decide whether the Trustee has correctly applied the Rules, considered all of the relevant evidence (it is for the Trustee to decide what weight, if any, to attach to that evidence) and reached a decision in the proper manner.
56. In order to be eligible for the Upper Tier IP [Incapacity Pension], the Employer and the Trustee must be satisfied that [the claimant]'s incapacity is serious enough it prevents him from following his normal employment or his earning capacity is seriously and permanently impaired."
- At paragraph 58 he states,
"I understand that [the claimant] believes he should be awarded an Upper Tier IP due to the fact that he cannot work anymore. I note Dr Sharp considered Mr N's health condition and was of the view that although he was no longer able to return to his role as a mechanical engineer, there was a possibility for him to get better with treatments before his NRD. Dr Sharp said Mr N was still young and was able to undertake a sedentary type of job before his NRD (a view shared by Mr N's Specialist, Mr Haggis). So, Mr N did not meet the criteria for the Upper Tier IP as his incapacity was not permanent."
- On 8 March 2023 ASL Legal & Property Group Ltd sent a Letter of Claim which asserted that the defendant had misapplied the Plan's rules and argued that the claimant should fall within the Upper Tier Pension.
- On 28 March 2023 the defendant sent a Letter of Response making it clear that it was not open to the claimant to relitigate something that had already been considered by the Pensions Ombudsman.
- On 9 April 2024 the claimant issued the claim seeking a declaration as to the construction of the Plan's rules on incapacity pension, specifically rule 4.2.3 and asking that the court declare,
"(l) "an employment", read in context, necessarily implied "normal employment"
(2) The ordinary rules of construction would apply, which include the principle of ejusdem generis, and accordingly, the phrase an employment with another employer is to be construed as delimited within the parameters of the phrase normal employment."
THE LAW
- The court has power to strike out the whole or part of a claim. CPR r. 3.4 provides that,
"(2) The court may strike out a statement of case if it appears to the court-
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate."
- Pursuant to CPR 24.3 the court may give summary judgment on the whole of a claim or on a particular issue if:
"(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
- The principles applicable to summary judgment are set out in the oft quoted decision of Lewison J, as he then was, in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). A decision that was approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098. This was in the context of an application for reverse summary judgment, but the principles are applicable either way. At paragraph 15 Lewison J said,
"i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 ;
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."
- In some cases, there may be little practical difference in the distinction between strike out and summary judgment, for example, where the court is being asked to determine a point of law.
THE APPLICATION
- The defendant's primary submission is that the issue of construction in these proceedings has already been determined by the Pensions Ombudsman, and it is not open to the claimant to relitigate the matter.
- Under section 151(3) of the Pensions Schemes Act 1993,
"(3) 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 […]"
- The claimant was entitled under section 151(4) to appeal on a point of law, and he had 28 days to do so. The time limit expired on 30 November 2022, and no appeal was brought.
- I am asked to accept that the Determination was final and binding so that it is not open to the claimant to bring the claim for the relief that he seeks, the issues having been subject to the Determination.
- In Westminster City Council v Heywood (No 2) [2000] Pens LR 235 Lightman J considered whether res judicata arose from a decision of the Pensions Ombudsman. At paragraph 14 he said,
"A determination must decide (implicitly if not explicitly) in turn a series of questions, the later only arising if the earlier is decided in the affirmative. These questions are as follows: (a) whether the PO has jurisdiction to investigate and determine the complaint (the mirror image of the question whether the complainant is qualified to make the complaint); (b) whether the discretion to investigate and determine is to be exercised; (c) whether there has been maladministration; (d) whether the maladministration caused injustice to the complainant; and (e) whether any consequent direction ought to be made. In my view the language of Section 151(4) is apposite to allow an appeal against an adverse determination of any of these questions."
- At paragraph 20 he went on to state that,
"The 1993 Act, as it seems to me, creates a comprehensive statutory code for the investigation and determination of complaints made by qualified complainants of maladministration causing injustice. Subject only to any appeal, the determination (together with any consequent direction) is made by s151 of the 1993 Act final and binding on the parties and enforceable as if it were a judgment of the court. As a matter of principle and common sense, the doctrine of res judicata should apply equally to determinations and directions of the PO (and judgments on appeal from him) as to other judgments and determinations, and res judicata should as much be a bar to a complaint before the PO as it is a bar to the commencement of legal proceedings to which (in cases where the acts of maladministration complained of consist of interference with private law rights or breaches of private law duties) it is an alternative."
- That position was accepted by the Court of Appeal in Pensions Ombudsman v CMG Pension Trustees Ltd [2023] EWCA Civ 1258. At paragraph 54 Asplin LJ reiterated the position that Lightman J had set out and said,
"Thirdly, it is important to note that any such determination or direction will be final and binding upon the member/complainant and the trustee/manager of the scheme subject to an appeal on a point of law: sections 151(3) and 151(4). … It seems to me that section 151(3) PSA 1993 makes it absolutely clear that the issues which have been determined are res judicata: Westminster City Council v Heywood (No 2) [2000] 2 All ER 634 per Lightman J at 645–6. The purpose underpinning the legislative scheme is that the Pensions Ombudsman's determination is final and binding (section 151(3)) and exists as an alternative to court proceedings (sections 146(6) and 148(2) ). …"
- The Part 8 Claim form under Details of claim refers to an attached document headed "Statement of Case". At paragraph 8 and 9 it pleads,
8. It is averred that the Trustee wrongly construed the Pension Scheme Rules, and failed to give the Rules their proper and true meaning, which was that the phrase an employment with another employer was delimited within the parameters of the phrase normal employment.
9. The Trustee thereby failed to properly construe the Pension Scheme Rules, and misapplied the same to the facts above, on the basis that:
(l) "an employment", read in context, necessarily implied "normal employment";
(2) The ordinary rules of construction would apply, which include the principle of ejusdem generis, and accordingly, the phrase an employment with another employer is to be construed as delimited within the parameters of the phrase normal employment."
- Paragraph 10 then goes on to seek a declaration as how these terms should be construed.
- Mr McGarry on behalf of the claimant argued that the construction claim did not form part of the Determination so that it remains open to the claimant to pursue this claim.
- He relied on Sheffield v Kier Group plc [2019] EWHC 986 (Ch), an appeal from a determination of the Pensions Ombudsman. Mr Sheffield, a retired coroner, had made a complaint that he was entitled to interest on arrears of later annual pensions from the 2007/8 year onwards. The respondent had proposed in earlier correspondence that Mr Sheffield's effective date of retirement from the scheme was 4 April 2006, although there was an issue between the parties as to whether the respondent was bound by the proposal. Under regulation 94 of the Local Government Pension Scheme Regulations 1997, which governed his pension scheme, if Mr Sheffield had not retired from the pension scheme before 6 April 2006 he was deemed to have retired immediately before his 75th birthday on 11 April 2005. The Pensions Ombudsman determined that Mr Sheffield was taken to have retired from the pension scheme immediately before his 75th birthday, rather than on the April 2006 date. At paragraph 38 HHJ Klein sitting as a High Court Judge said,
"38. On the assumption that the question which was referred to the ombudsman did not extend to (1) the due date, under regulation 94, for the first payment to Mr Sheffield from the pension scheme and/or (2) when Mr Sheffield retired from the pension scheme, the dispute which the ombudsman had to resolve was whether interest is payable on the arrears of later annual pensions; that is, to be clear, on arrears of annual pensions for the relevant years (from 2007/8) whatever the amount of those annual pensions. If this is the dispute (as Mr Sheffield contends) which was referred to the ombudsman, in making his determination the ombudsman did not need to consider the due date for the first payment to Mr Sheffield from the pension scheme or when Mr Sheffield retired from the pension scheme. He did not need to consider, let alone determine, the amount of the annual pensions. Rather, as Mr Sheffield suggested to the ombudsman, in such circumstances the question before the ombudsman was one of principle. It follows, therefore, that a direction by the ombudsman, that Kier had to recalculate "the interest due on any instalment of [Mr Sheffield's] pension paid more than one year after it fell due to be paid", leaving Kier to properly calculate the correct principal amount of each instalment, would not amount to the ombudsman condoning an ultra vires act."
- The Judge went on to analyse Mr Sheffield's original complaint which ran to some 28 pages with appendices, a long witness statement and further submissions. He concluded that Mr Sheffield was only referring a question of principle, whether interest is payable at all on the arrears of later annual pensions, to the Pensions Ombudsman. A point that Mr Sheffield had reiterated to the Pensions Ombudsman on several occasions. The first ground of appeal was allowed, the Pensions Ombudsman had misdirected himself that he had jurisdiction to determine the due date under regulation 94 for the first payment to Mr Sheffield and when he retired from the pension scheme.
- In response to the application Mr McGarry's overarching submission was that the claimant's complaint did not contain a challenge to the Rules in the form or substance of that set out in the Part 8 claim form. In particular he notes that the complaint makes no mention of the incorrect construction of the Rules and specifically rule 4.2.1 and 4.2.3. When questioned as to why the complaint, for example, refers to "denied ill health" he submitted that was simply an assertion. The focus he said was upon the effect on the claimant, both the stress and the emotional impact. I questioned why the claimant had made the complaint to the Pension Ombudsman and what he was being asked to determine. Counsel submitted it was whether "the stress, hassle", presumably of dealing with the defendant, had been the cause and made him worse, and because the lower tier calculation was wrong.
- That I consider is asking the court to read parts of the complaint form in isolation and also to take it out of context. The defendant's decision letter dated 20 August 2020 stated that it was satisfied that the claimant met the criteria for incapacity pension but the calculation was based on accrued benefits to the date of retirement (the Lower Tier Pension). In order to reach that decision the defendant had to evaluate the medical evidence and facts by reference to its construction of the Rules. In the complaint form, in answer to the printed question, "Please tell us what went wrong and who you think is at fault" the claimant starts his response with, "Denied ill health pension." He went on to refer to, "Disputed medical evidence went against medical professionals DR's and specialists ". He does also refer to matters about the disclosure of medical records and a failure to provide figures and calculations. However all of this is the context in which the claimant says in answer to the printed question, "How would you like the matter put right?", "Pay the correct pension from when I was terminated". The defendant had decided that the claimant was entitled to a pension, just that it was the Lower Tier Pension.
- The Determination summarises the claimant's complaint on three grounds. The first and second are, respectively, that the defendant "Has awarded him the Lower Tier of incapacity pension (IP). He believes he should have been awarded Upper Tier on the basis that he will never be able to work again" and "Has misinterpreted the criteria under the Plan rules." Unlike in the Sheffield v Keir Group plc case, when Mr Sheffield had on multiple times told the Pensions Ombudsman that he could not determine the "due date" because that was not part of the dispute before him, the claimant did not at any stage say to the Pensions Ombudsman that he could not determine whether he was entitled to the Lower or Upper Tier Pension, which inevitably includes a construction of rule 4.2.1 and 4.2.3.
- As to the point about the complaint not expressly setting out construction and the reference to rule 4.2.1 and 4.2.3, the observations by Millet LJ in Hamar v French [1998] Pens LR 321 are on point. At paragraph 73,
"Investigations by the Pensions Ombudsman are informal.
There are no pleadings. The issues are defined by the complaint and the response to it. The jurisdiction of the Pensions Ombudsman is limited to the investigation of the complaint actually made to him. I do not doubt that he can invite the complainant to add to his complaint and may suggest new matters of defence to the other party and so extend the scope of the enquiry. But he is not bound to do so, and he cannot be criticised if he does not. At the end of his investigation, his duty is to determine the matters then actually in dispute between the parties. If he applies the law correctly to the facts found or not in dispute, he makes no error of law."
- Construction of the Rules, in particular rule 4.2.1 and 4.2.3, was an intrinsic part of the Determination. The claimant contended that as he could no longer follow his normal employment with his employer, which was accepted by the defendant, the reference to "can nevertheless carry out an employment with another employer" meant the same type of employment with another employer. His argument being that he was entitled to the Upper Tier Pension.
- It is clear throughout the Determination that this was at the forefront of the Pensions Ombudsman's consideration. In particular I note that he referred to the relevant parts of the Rules and expressly set out the distinction between the Upper and Lower Tier Pension. At paragraphs 35 to 53 he set out the Adjudicator's findings including that the Adjudicator was satisfied that the defendant's interpretation of the Rules in respect of the definition of incapacity was correct. At paragraph 47,
"The Adjudicator did not agree with [the claimant's] interpretation of the Rules, that a different employment meant the same type of employment with another employer. The definition of incapacity referred to physical or mental deterioration which prevented the member from following his normal employment or seriously and permanently impaired his earning capacity. The Adjudicator agreed that the first half of the definition meant the role [the claimant] was engaged in. However, the second half of the definition was clearly much wider ranging and covered the member's capacity to earn in any employment."
- The Pensions Ombudsman went on to note that the claimant disagreed with every aspect of the Adjudicator's opinion; which includes the entitlement to Lower Tier Pension rather than Upper Tier Pension.
- Paragraphs 56 to 62 set out the Pensions Ombudsman's decision. At paragraph 55 he says, "My role is primarily to decide whether the Trustee has correctly applied the Rules, considered all of the relevant evidence (it is for the Trustee to decided what weight, if any, to attach to that evidence) and reached a decision in the proper manner."
- The construction that the claimant contends for in respect of rule 4.3.2 of the Rules in this claim was one of the issues before the Pensions Ombudsman, and the subject of the Determination. It was open to the claimant to appeal the Determination as a point of law but he did not do so.
- I also observe that if, as the claimant now maintains, the issue of construction was not before the Pensions Ombudsman, then it was open to him to appeal the Determination on the basis that the Pensions Ombudsman had exceeded his jurisdiction and decided matters that did not form part of the dispute. This was a route that was followed in Sheffield v Keir Group plc. Again the claimant did not choose to do this.
- I am satisfied that pursuant to section 151(3) of the Pensions Schemes Act 1993, and as no appeal was brought, the effect of the Pensions Ombudsman's Determination is final and binding on the claimant, which is a complete answer to the claim. The claimant's claim falls to be struck out under CPR 3.4(2)(a) as disclosing no reasonable grounds for bringing the claim, the claimant being bound by the Determination.
- Furthermore the claim also falls to be struck out, in the alternative, as an abuse of process under CPR r. 3.4(2)(b) because the claimant is seeking to go behind the findings of the Pensions Ombudsman. As Lord Sumption observed in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 at paragraph 25
"In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v National Westminster Bank plc [1991] 2 AC 93, 110G, estoppel per rem judicatam, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process."
- The defendant also sought, in the alternative, summary judgment on the basis that the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the claim should be disposed of at trial: CPR r.24.3. Whilst there can be a material difference between the requirements under CPR r. 3.4 and r.24.2, there are none in this case which turns on the construction of the Rules. For the same reasons I would also grant the defendant summary judgment on the whole of the claim.
Note 1 This is the wording from the Third Definitive Trust and Rules, as amended by the Deeds of Amendment dated 5 April 2006 and 28 February 2008. [Back]
Note 2 This is an additional requirement in the claimant’s case because he was under the minimum pension age of 55. [Back]
Note 3 As summarised in their response dated 22 June 2021 to the claimant’s complaint, paragraph 3.6. [Back]
Note 4 23 June 2017. [Back]