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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Harding & Ors For Directions & Answers For Joy Manufacturing Holdings [1999] ScotCS 35 (29 January 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/35.html
Cite as: [1999] ScotCS 35
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|
The Lord President Lord Osborne Lady Cosgrove |
P16/11/97
OPINION OF THE COURT
delivered by THE LORD PRESIDENT
in
PETITION
of
PETER HARDING & OTHERS, Trustees of Joy Manufacturing Holdings Limited Pension and Life Assurance Scheme
for
DIRECTIONS
and
ANSWERS
for
JOY MANUFACTURING HOLDINGS LIMITED
_______ |
Act: McNeill, Q.C.; McGrigor Donald (Petitioners)
Alt: Drummond-Young, Q.C.; Bird Semple, W.S. (Respondents)
29 January 1999
In this petition the trustees of the Joy Manufacturing Holdings Limited Pension and Life Assurance Scheme ("the Scheme") seek directions on the legal implications of various possible courses of action which they are contemplating. The members of the Scheme were employed by Joy Manufacturing Co. (U.K.) Ltd., a subsidiary of Joy Manufacturing Holdings Ltd. In November 1994, however, the holding company and its American parent were acquired by Harnischfeger Industries Inc of Milwaukee. In November 1995 Harnischfeger made further acquisitions in the United Kingdom. In October 1996 they gave notice of a proposal to consolidate into one scheme the five pension schemes then in existence for the employees of the United Kingdom companies.
It is common ground that as at March 1997, on an actuarial valuation, the assets of the Scheme exceeded its liabilities by £2.9m, on the assumption that the fund would continue in operation; it is equally common ground that as at June 1998, the assets exceeded the liabilities by £2m, on the assumption that the fund would be wound up. The trustees have been advised by their actuaries that in the particular circumstances of this Scheme there is no "right" or rigorous way to calculate the part of the surplus which has arisen due to the members' contributions (letter dated 13 August 1998 from Watson Wyatt Partners to McGrigor Donald).
Not only was the Scheme in surplus, but that surplus was by far the most substantial, in percentage terms, of any of the schemes which Harnischfeger proposed to merge. In general terms the effect of the Harnischfeger proposal to merge the funds was potentially to dilute the surplus in the Scheme fund which might otherwise be available to existing pensioners and other members, by whom and on whose behalf contributions had been made. The existence of this large surplus and the effect of these, and various other, proposals from Harnischfeger have prompted the Trustees to consider what course they should adopt in the interests of the members of the Scheme. In that connexion the Trustees have sought the guidance of the court on the questions in the petition.
The petition was served on Joy Manufacturing Holdings Ltd. At the hearing, counsel for the Trustees represented the Trustees and the Pensioner Members (i.e. those being paid a pension) and Deferred Pensioner Members (i.e. former employees whose pension is not yet in payment), while counsel for Joy Manufacturing Holdings Ltd. represented the company and the Active Members of the Scheme (i.e. current employees). We were satisfied that counsel were able properly to advance arguments for the different interests on the various issues which arose. The petition as originally drafted contained five questions for the court. By the time of the original hearing, however, the issue which had given rise to Question 5 was no longer live. We were therefore invited to treat it as superseded and we have done so. On the other hand, counsel sought leave to amend the petition to add a sixth question and we have addressed that question in its final form.
Question 1
In order to understand the significance of Question 1 it is necessary to sketch in some of the relevant events. Shortly after advancing their proposal to merge the pension schemes, Harnischfeger put forward a subsidiary proposal, to admit another company, Joy Mining Machinery Limited ("Joy Mining"), to participation in the scheme as an Associated Employer. Eventually the Trustees agreed to allow the participation of Joy Mining in the Scheme with effect from 1 July 1997. In accordance with an agreement with Harnischfeger, the alterations to the Scheme were drafted in such a way as to restrict to 120 the number of employees of Joy Mining who would be eligible to join the Scheme.
The effect of admitting new members to the Scheme is, of course, to increase the potential liabilities of the Scheme. Since the Scheme is in surplus, those increased liabilities do not, however, automatically trigger any increased contributions to the Scheme by the employers. This is because of Rule 9 which provides:
"The Employers shall contribute and pay to the Trustees all such contributions as are certified by the actuary to be required to maintain the benefits to be provided by the Scheme in accordance with the policy of the Trustees having regard to the other resources of the Trust Fund and to other contributions to it. All such contributions by the Employers shall be paid at such times as the Actuary shall require."
It follows that, if Harnischfeger were to introduce further new members to the Scheme, this would have the effect of giving the new members potential benefits out of the assets to which the existing members of the Scheme contributed. In practice this would be done by eating into the surplus. The Trustees therefore considered whether they had any discretion to refuse to admit employees to membership of the Scheme. As they explain in paragraph 16 of their Note (No. 12 of Process), "the underlying practical issue ... is whether the Trustees can maintain the Scheme's current solvency level by refusing to admit new members to it."
Admission to membership of the Scheme is governed by Rule 3:
"(1) An Eligible Employee who wishes to become a Contributing member when first eligible shall apply within 30 days of becoming an Eligible Employee.
(2) An Eligible Employee who does not apply to become a Contributing member when first eligible may apply to become a Contributing member at a subsequent date provided he is still an Eligible Employee.
(3) All applications for membership of the Scheme shall be made to the Employer of the employee applicant in writing in such form as the Trustees may prescribe accompanied by a birth certificate or other evidence of age to the satisfaction of the Trustees. The Trustees may require any statement made by the applicant to be proved to their satisfaction.
(4) An employee who applies for membership of the Scheme shall provide such medical evidence as the Trustees require.
(5) Admission of an employee as a Contributing Member will be effective from the date on which the employee concerned shall be notified in writing that his application for membership of the Scheme has been accepted, or from such earlier date as may be specified in such notification."
In Question 1 the Trustees ask whether, on a proper construction of this rule, they
"may refuse to admit any person as a Contributing Member of the Scheme, and if so whether they may refuse to do so on such grounds as they think fit or only on certain grounds, and, if so, what grounds".
In paragraph 18 of their Note, in their Note of Proposed Argument (No. 15 of Process) and in submissions at the hearing of the petition, the Trustees accepted that, as a matter of construction, "once a prospective member meets the eligibility requirements prescribed by Rule 3 they have no discretion to refuse him admission." In their Note of Arguments (No. 14 of Process) and at the hearing, counsel for the Company adopted a similar construction. There was therefore no dispute between the parties.
We have none the less considered the point. Having done so, we have reached the same view as the parties. We accordingly answer Question 1 by saying that the Trustees may not refuse to admit any person as a Contributing member if he meets the requirements for membership prescribed by Rule 3.
Question 3
Finding themselves with a fund in surplus, the Trustees have naturally received representations from existing members of the Scheme to the effect that the surplus should be used to enhance the level of their pensions. These representations have in turn led the Trustees to consider the extent of their powers to increase the pensions which are payable under the Scheme. In particular the Trustees turned their attention to Rule 26(3), the interpretation of which is best considered in the context of the other paragraphs of the Rule.
Rule 26(1) deals with pensions in payment and provides, first, in paragraph (a), for an automatic increase on 1 January each year of that element which does not represent the Guaranteed Minimum Pension by the rate of percentage increase specified in the appropriate statutory order. Paragraph (b) then provides for automatic increases in accordance with the appropriate statutory order for pensions in payment, to the extent that the pension includes a Member's Guaranteed Minimum Pension or a deceased member's Guaranteed Minimum Pension accruing on or after 6 April 1988. Rule 26(2) deals with deferred pensions, except in so far as any element represents the Guaranteed Minimum Pension, and provides for an automatic increase in accordance with a statutory order.
Rule 26(3) is in these terms:
"Discretionary Increase
Any Member's pension or Dependant's pension which is deferred or in payment may be further increased at such time and by such amount as the Trustees agree after consultation with the Principal Employer."
Question 3 in the petition relates to Rule 26(3) and is in these terms:
"Whether on a proper construction of Rule 26(3) of the Scheme Rules, the Trustees may, after consultation with the Principal Employer, but otherwise at their discretion
(a) increase pensions actually in payment at the time of such increase,
(b) increase pensions which are prospectively payable at the time of such increases but have not at that time commenced to be paid, and/or
(c) make such further improvements in the benefits provided under the Scheme as they think fit?"
In the course of the argument which we heard on this question, we were referred to Clauses 15 and 16 of the trust deed. Clause 15 is headed "Augmentation" and begins:
"An Employer may direct the Trustees to augment a pension in payment or other benefit payable under the Rules or to pay a pension or other benefit otherwise than under the Rules so long as that Employer pays such additional contributions (if any) which the Trustees may require after taking advice of the Actuary PROVIDED ALWAYS THAT no such augmentation or payment shall be permitted if it will prejudice Approval".
The reference to "Approval" is a reference to approval under Chapter I of Part XIV of the Income and Corporation Taxes Act 1988. Clause 16, which is headed "Alterations", begins:
"The Trustees shall have power, with the consent of the Principal Employer and any other Employer or Employers which are or shall become Associated Employers by instrument in writing under their hands to alter, modify or add to all or any of the provisions of this Trust Deed or the Rules...."
There then follow a number of provisos, none of which is relevant for present purposes.
The first issue is whether Rule 26(3) confers a power to increase pensions which can be used, not only in respect of pensions in payment and deferred pensions, but also in respect of the pensions of active members, i.e. those presently in employment. On that matter the terms of Rule 26(3) leave no room for doubt: it provides that any Member's pension or Dependant's pension "which is deferred or in payment" may be "further increased". It therefore covers pensions in payment and deferred pensions. To that extent, paragraphs (a) and (b) of Question 3 fall to be answered in the affirmative. It is plain from the reference to the pensions being "further increased", on the other hand, that Rule 26(3) is intended simply to give a discretionary power to the Trustees to make increases in addition to the automatic increases in pensions in payment and deferred pensions prescribed by the immediately preceding paragraphs (1) and (2) of Rule 26. It follows that there is no power in terms of Rule 26(3) to make discretionary increases to the pensions of active members of the Scheme. We understood that there was in reality no dispute between the parties on this point.
There was, however, a larger issue as to the scope of the Trustees' power under Rule 26(3), which is, we were informed, an unusual power to find in schemes of this kind. Essentially, the issue for the court is whether Rule 26(3) confers a general and sweeping discretionary power on the Trustees to increase the level of pensions or whether, when viewed in the context of other provisions, the power which it confers should be interpreted in a more restrictive sense.
In support of the contention that the Trustees had virtually unlimited power, after consulting the Principal Employer, to increase the level of pensions which are deferred or in payment, the Trustees simply pointed to the words of the Rule. They contained no qualification and none should be read into them. The Trustees required to consult the company but, provided that they did so and acted in good faith, they could increase the level of the pensions in question, as they thought fit. In the course of argument examples were given of circumstances in which the power might be used. It was said, for instance, that it might be used to raise the level of the pension of a retired woman worker whose pay, during her employment, had been lower than that of her male counterparts and who would therefore otherwise receive a lower pension than her male counterparts. Similarly, it might be used to increase the pension of a disabled former employee whose additional outlays might otherwise mean that he would have a lower standard of living than his fellow able-bodied pensioners. Equally, it might be used to provide a one-off increase in pensions to celebrate some particular event such as a company anniversary or the Queen's Golden Jubilee. While these were examples of particular circumstances in which the Trustees might choose to exercise the power, it was not to be limited to such cases, however, and could be used simply to provide for an overall general increase in the pension levels of these two classes of pensioner.
On behalf of the company it was contended that the power should be construed more narrowly. The benefits to which members of the Scheme were to be entitled were set out in Part IV of the Rules. Clause 15 allowed an employer to direct the Trustees to depart from the basis set out in Part IV and to increase a pension in payment provided that the employer paid the necessary additional contributions. If, however, the Trustees wanted to make a general alteration in members' pension entitlement, then this should be done, not by their unilateral act under Rule 26(3), but by amending the rules in Part IV. The Trustees had power to amend those rules by using the procedure in Clause 16, but they could do so only with the consent of the relevant employer. The need for the Trustees to obtain the employer's consent was appropriate since, if the level of pensions were increased, this would increase the potential liabilities of the Scheme and so could lead to increased contributions from the employers in terms of Rule 9. Such increased contributions might have an adverse effect on the profitability, or indeed on the solvency, of the company, with potential effects for shareholders, employees and others. It would be strange if, by invoking the power under Rule 26(3), the Trustees could in effect alter the operation of the benefits rules in Part IV without obtaining the consent of the employer and thus, perhaps, bring about precisely those undesirable consequences. If the Trustees could not alter the relevant rules directly without the consent of the employer, they should not be able to alter them indirectly without the consent of the employer. Rule 26(3) should therefore not be interpreted as conferring a power which would cut across the balanced provisions of Clause 16.
On behalf of the company and the active members, Mr. Drummond Young asked the court to infer the intended scope of Rule 26 from the very fact that active members were excluded from its scope. Active members would, of course, receive pay rises from time to time and those pay rises would increase their Final Pensionable Salaries which would in turn increase the level of the pension to which they would be entitled in terms of Rule 10 and the associated rules. Active members therefore received an effective increase in their pensions when they received a pay rise; those with pensions in payment or deferred pensions would not receive any equivalent rise in their pension to keep pace with the prospective rise in the pension to which an active member would be entitled. Hence, the argument ran, Rule 26(3) should be interpreted as giving the Trustees power to increase deferred pensions and pensions in payment in line with increases in the prospective entitlement of active members.
Attractively presented though the argument was, we are not satisfied that the range of Rule 26(3) should be confined in this way. Had it been intended so to restrict the power under Rule 26(3), we rather think that the draftsman would have restricted it explicitly. Moreover, it appears to us that the power could be exercised in some at least of the particular situations which we have described above. Indeed, Mr. Drummond Young did not really dispute that the power could be used in such cases, provided at least that there was no material impact on the liabilities of the Scheme. For present purposes it does not seem necessary for us to attempt to spell out the limits of the power. It is sufficient if we answer Question 3(c) by saying that, for the reasons advanced on behalf of the company, we are satisfied that Rule 26(3) is not intended to confer on the Trustees a general power, inconsistent with Clause 16, unilaterally to increase the pensions benefits available under the Scheme without the consent of the relevant employer.
Question 2
It is obvious that the liabilities of the Scheme will depend in large measure on the level of the pensions which are being paid or may require to be paid out of the fund. In a scheme such as the present the employees' contributions are fixed by the rules - here the relevant rules are Rule 7, dealing with ordinary contributions, and Rule 8, dealing with additional voluntary contributions. The employer's contribution is not fixed in that way. Rather, as the terms of Rule 9 show, the employer is obliged to contribute whatever may be necessary, having regard to the other resources of the trust fund and to other contributions to it, to maintain the benefits to be provided under the Scheme. That sum is determined every year by an actuary. The actuary calculates the value of the fund and the extent of the actual and projected liabilities. In practice, however, the trustees will not usually decide simply to have a fund which is just sufficient to meet its potential liabilities, since it is obvious that the value of the assets of the fund may decline and the liabilities may prove greater than expected. For these reasons the trustees will usually decide to allow a certain margin or level of security beyond what is strictly necessary to meet the liabilities of the fund. If they allow too great a margin, this may have adverse tax consequences, but, up to that limit, it is a matter for the judgment of the trustees, having taken suitable advice, to determine what margin they should allow. We were informed that to some extent the size of the margin might depend on the nature of the investments and this in turn might depend on the age profile of the members of the particular pension scheme. At all events, once the actuary determines the contributions which are necessary to maintain the benefits to be provided by the Scheme "in accordance with the policy of the Trustees having regard to the other resources of the Trust Fund and to the other contributions to it," the employer must pay those contributions in terms of Rule 9.
These facts, which were not in dispute, form the background to Question 2 which asks whether, on a proper construction of Rule 9, the Trustees
"(a) must, or
(b) may,
have a policy pursuant to the said Rule and, in the event of an affirmative answer to either (a) or (b), whether that policy:-
(i) may or must relate only to the level of security provided by the Scheme for the Members' benefits as from time to time provided thereunder, or
(ii) may relate to the level of:-
(A) benefits, and/or
(b) increases in benefits,
provided under the Scheme, or
(iii) may or must relate to any other, and if so what, matters?"
Counsel for the Trustees argued that the reference to "the policy of the Trustees" in Rule 9 implied that the Trustees must have a policy of some kind: the real issue was what the content of that policy was. In his original Note of Argument, counsel for the company challenged the view that there was an implication that the Trustees required to have a policy, but at the adjourned hearing he indicated that the company now accepted that Rule 9 implied that the Trustees had to have a policy. He also agreed that the real question was as to the content of that policy. It follows that both parties agreed that we should hold that the Trustees must have a policy. We answer the opening part of Question 2 accordingly.
In dealing with the rest of the composite Question 2 we find it helpful to start with the questions in (ii) since, in the end, there was again really no dispute about the correct answer. From what we have said already, it is apparent that the level of pensions is prescribed by the appropriate rules of the Scheme, subject to any augmentation under Clause 15 or any alteration to the rules made under Clause 16, and subject also to any increases, whether automatic or discretionary, having effect under Rule 26. Having regard to the scope of these provisions, which by no means give the chief role to the Trustees, it would in our view be wrong to describe the benefits which members are to derive from the Scheme as being fixed "in accordance with the policy of the Trustees". Moreover, Rule 9 works by the actuary assessing the liabilities which the fund will have to bear in order to pay the pensions at the levels which have been determined in the way which we have described. That is the starting point from which the actuary calculates the contributions necessary to "maintain" those benefits. For these reasons, it appears to us that, whatever is meant by "the policy of the Trustees" in Rule 9, that phrase is not intended to refer to a policy as to the levels of the pensions to be paid out of the fund. In other words, Rule 9 should be read as envisaging the benefits being provided by the Scheme and in accordance with its provisions, rather than being provided in accordance with a policy of the Trustees. We therefore answer the questions in sub-paragraphs (A) and (B) of paragraph (ii) of Question 2 in the negative.
If "the policy" does not relate to the level of benefits, we must still consider what it could cover. From what we have said already it is apparent that one matter which the Trustees would require to consider would be the amount of any margin or level of security which they should allow for. We have mentioned some of the factors which might have a bearing on that decision. In argument counsel also pointed out that the extent of any surplus, and hence of any level of security, depended on whether the actuary did his calculation on the assumption that the fund would continue in being or on the assumption that it would be discontinued with the result that the Trustees would require to purchase immediate and deferred annuities in terms of Clause 24(2) of the trust deed.
At the hearing, counsel for the Trustees in effect argued that the Trustees would require to have a policy on the extent of the cover for which they should make allowance. The position of counsel for the company appeared to be essentially similar: he contended that the Trustees required to have a policy on the level of security to be provided by the Scheme for members' benefits. Indeed "the policy" referred to in Rule 9 could relate to this matter only, although in determining the appropriate level the Trustees could have regard to the way in which the trust funds were invested and, if the termination of the Scheme were likely in the foreseeable future, the policy might involve the Trustees having regard to a level of security appropriate to protecting benefits in the event of termination.
We are satisfied that the policy of the Trustees referred to in Rule 9 must involve consideration of the appropriate level of security, if any, to be provided for members' benefits. This was indeed the common position of both the Trustees and the company. It also seems clear to us that the Trustees must have an investment policy. Whether or not one regards that as an aspect of policy distinct from the policy on the appropriate level of security is perhaps little more than a matter of semantics, since any investment policy will have a bearing on the appropriate level of security and vice versa. In the circumstances we shall answer the questions in paragraphs (i) and (iii) of Question 2 by saying that the policy envisaged in Rule 9 relates to the level of security provided by the Scheme for members benefits and that the investment policy of the Trustees will have a bearing on any decision by the Trustees as to the appropriate level of security.
Question 4
It is clear that the provisions which we have examined in answering Questions 2 and 3 involve the Trustees exercising a discretion in certain respects. When we come to Question 6 we shall find that it too involves consideration of provisions which confer a discretion on the Trustees. Before turning to that question, therefore, it is convenient to consider Question 4 which, though framed with specific reference to the powers referred to in Questions 1 to 3, raises a general point in relation to the exercise of a discretion conferred on the Trustees under the deed. In Question 4 the Trustees ask whether they may surrender to the Court their consideration of the exercise of that discretion.
In England trustees may in certain circumstances surrender their discretion to the court which can then exercise it in their stead. This was done, for instance, in Thrells Ltd. (in liquidation) v. Lomas [1993] 1 W.L.R. 456. In that case the company, which was in liquidation, was the sole trustee of a company pension scheme. The liquidator of the company was therefore acting not only for the sole trustee of the scheme but also as the representative of the unsecured creditors of the company. Being thus confronted with an impossible conflict of duties, the liquidator "properly" surrendered to the court the exercise of any discretion vested in the company as trustee of the pension scheme.
It was accepted by counsel for the petitioners that it has never been the practice of this court to accept the surrender to it of a discretion vested in trustees. Where, for some reason, it becomes impossible for trustees to exercise a discretion, an appropriate solution has been found, either in the appointment of new trustees, or in the appointment of a judicial factor. We were referred to the statement to this effect of Lord President Inglis in Orr Ewing v. Orr Ewing's Trs. (1884) 11 R. 600, at pp. 627 - 628. Although part of the decision of the First Division was reversed by the House of Lords ((1885) 13 R. (H.L.) 1), that general statement does not seem to have been challenged. Indeed it finds an echo in the speech of Lord Watson (13 R. (H.L.) at p. 31), while Lord Chancellor Selborne accepted that there was a difference in the approach of the English and Scottish courts on this point (13 R. (H.L.) at p.7). See also the discussion in Menzies on Trustees, pp. 165 et seq.
In the light of these authorities we are satisfied that it would not be open to the trustees in this case to surrender to the court the discretion which has been vested in them. Even if, contrary to the tenor of those authorities, there could ever be circumstances where such a surrender could be possible, there are sound practical reasons why the court should not exercise the Trustees' discretion in this case. Clause 4(3) of the trust deed provides that at least one-half of the number of Trustees will be made up of employees or their nominees. The Trustees may therefore be expected to have a knowledge and understanding of the company, the Scheme and its history which will inform their exercise of the discretion vested in them. This court could not match that expertise and it may therefore be expected that, other things being equal, the discretion would be exercised more satisfactorily by the trustees appointed under the deed. Moreover, the histories of events in the present case and in similar cases to which we were referred show that, in discharging their duties under the relevant trust deed, pension scheme trustees may require to explore various possible avenues and to negotiate with the company about their proposals. The court could not take these steps itself, nor would any reporter appointed by the court be likely to take those steps as effectively as the trustees themselves.
For these reasons our answer to Question 4 is that the Trustees may not surrender to the court the exercise of any discretion vested in them by the trust deed.
Question 6
We now turn to what is probably, from the point of view of the Trustees, the most important question in the petition. Although the Trustees put forward various questions as to the interpretation of the various provisions which we have mentioned, by the time the petition was before the court the Trustees had been in discussion with the company about the appropriate way of handling the surplus in the fund. The result had been that in a letter dated 20 November 1997 the company had put forward alternative proposals for the Trustees' consideration. Having considered the proposals, the Trustees were minded to accept the second set of proposals. In averments introduced by minute of amendment (No. 25 of Process) the Trustees explained that "while disappointed with the proposal in respect of the amount of the surplus to be made available to existing members, the Petitioners are reluctantly prepared to agree to them."
At the continued hearing of the petition the Trustees lodged a Procedural Note (No. 21 of Process) explaining what would happen, if they accepted the company's proposals. The salient points are these. The heart of the proposals is that the Scheme would be merged with the Harnischfeger Industries Pension Scheme ("HIPS"). The Scheme would be closed to new members with effect from the proposed merger date. This would be done by amending the Scheme, using the powers in Clause 16. All of the assets and liabilities of the Scheme would be transferred to HIPS. This would be achieved by use of the amalgamation provision in Clause 17. In this connexion the company would agree to the Trustees utilising one-third of the actuarial surplus for the grant of benefit improvements. It would be up to the Trustees to decide what improvements to make and thereafter Clause 16 would be used to make the appropriate amendments to the benefits provisions in the rules. The Trustees of HIPS would agree to grant benefits identical to those which would be available to members of the Scheme after amendment. Once the appropriate amendments had been made, the assets of the Scheme would be transferred to the HIPS, but the assets so transferred would be "ringfenced" indefinitely so that they would be notionally earmarked as being referable only to the members and employers participating in the Joy section of the HIPS and there would be no cross subsidy between the different benefit sections of the HIPS. Rule 26(3) of the Scheme would not be replicated in the Joy section of the HIPS but would be replaced by a balanced power whereby discretionary increases could be granted subject to the agreement of the Trustees of the HIPS and the company, as principal employer to the HIPS. Once the transfer of assets and liabilities had taken place the Scheme would be wound up.
In a separate document lodged in process (No. 16/4 of Process) the Trustees explain how they would envisage deploying the one-third of the surplus made available to them in terms of the company's proposals:
"Following acceptance of the company's offer of an unrestricted one-third of the surplus, approximately £970,000 would be available for distribution. This represents approximately 12% of the liabilities at 31.12.97.
The trustees believe the most equitable distribution would be pro rata to the liabilities, ie pensions in payment would receive a one-off 12% increase, the liabilities of deferred pensioners would be increased by 12% and active members would receive a 12% service credit. This would result in a distribution of surplus as follows:
£'000
Pensioners 397 41%
Deferred Pensioners 335 34%
Active Members 238 25%
970
The surplus in the Scheme on a wind-up basis is estimated by the Scheme's actuaries at £2m. Therefore, approximately half of this would be distributed by the above, leaving around £1m in the fund as cover against adverse investment performance or other variations from the actuarial assumptions."
On the basis of the information available to the court, it now appears that, if the Trustees were to proceed in terms of the company's proposals, this would involve them in using various powers contained in the deed. In particular they would use the power in Clause 16 to alter Rule 3 to close the Scheme to new members; and they would use the same power to alter the rules on benefits, while they would use the power in Clause 17 to amalgamate the Scheme with the HIPS.
In these circumstances the Trustees put forward Question 6:
"Whether the proposals ... are such that to agree to them is (a) within the powers of the petitioners and (b) a reasonable exercise of the petitioners' discretion."
We are satisfied that, despite the expressed reluctance of this court to involve itself in the administration of trusts, it is competent for us to answer this question, raising as it does questions of vires and of whether it would be a reasonable exercise of the trustees' discretion under the deed to proceed with the company's proposals.
So far as the matter of vires is concerned, there can be no doubt that all the steps which are contemplated are steps which can be taken in terms of the powers which we have mentioned, provided, of course, that the conditions for the exercise of those powers are fulfilled.
In considering whether it could be said that no reasonable trustees could exercise their powers in the manner contemplated by the Trustees, we have been greatly assisted by the observations of Sir Richard Scott V-C in Edge v. Pensions Ombudsman [1998] Ch. 512. (We understand that leave to appeal to the Court of Appeal has been granted.) That was a case in which the trustees used their powers to amend the pension scheme, reducing the contributions to be paid by members and providing an additional pension for the members in service at a particular date. The fund was in surplus, the surplus being in excess of the 105% permitted margin, with the result that there were unfavourable tax consequences. The amendments which were made to the scheme were designed to deal with that surplus. The steps taken by the trustees were challenged before the Pensions Ombudsman who ruled against the trustees. They appealed. In allowing their appeal, the Vice-Chancellor emphasised the nature of the duty on trustees when considering what steps to take to deal with a surplus. Dealing with the particular provisions in that case, his Lordship said ( at p. 535E-G):
"They had a discretionary power to make amendments to the rules in order to provide additional benefits to members, whether pensioners or still in service. It was within their discretion to provide benefits to members in service to the exclusion of members no longer in service. They certainly had a duty to exercise their discretionary power honestly and for the purposes for which the power was given and not so as to accomplish any ulterior purposes. But they were the judges of whether or not their exercise of the power was fair as between the benefited beneficiaries and other beneficiaries. Their exercise of the discretionary power cannot be set aside simply because a judge, whether the Pensions Ombudsman or any other species of judge, thinks it was not fair."
The Vice-Chancellor also rejected an argument to the effect that the trustees had not been entitled to take account of the position of the employers when exercising their discretion. He said this (at p. 537A-H):
"First, the proposition that the trustees were not entitled, when deciding how to reduce the £29.9m surplus to take any account of the position of the employers is one with which I emphatically disagree. The employers play a critical part in this pension scheme. They have to pay contributions sufficient to keep the scheme solvent. They have to employ employees who are willing to join the scheme and pay contributions. The £29.9m was an actuarially calculated figure based on future projections and estimates of the sums that would be coming into the open fund from employers' contributions and from members' contributions. It seems to me obvious that the continued viability of the respective employers was something that, in the interests of the pension scheme and its members as a whole, the trustees were entitled to want to promote. Otherwise, if one or more of the employers went into decline or collapsed, the financial projections, on the basis of which the actuarial calculations had been made, would become invalidated.
Ms Gill submitted that in a case such as this, where the amendments could not be implemented without the consent of three-quarters of the employers, the trustees' role was to try to promote the interests of the members to the exclusion of the employers, who were in a position to look after themselves. If the trustees had chosen to adopt such a starkly confrontational role as is suggested by the submission, they would have been entitled to do so. But their failure to do so did not, in my judgment, take them outside the spectrum of possible stances that a reasonable body of trustees could properly adopt. They were not obliged to deal with the employers at arm's length as if bargaining over some commercial deal. The Pensions Ombudsman concluded that the trustees had 'attempted to represent both sides of the negotiations at the same time, and make only such recommendations as they felt to be fair to everyone involved with the funds', including the employers (para 53). I would, for my part, have thought that such an attempt as that would have been beyond reproach and exactly what responsible pensions fund trustees ought to have done. But the Pensions Ombudsman held that 'in doing so they created a situation in which their conflicts of interest overwhelmed their duty to be impartial and represent all classes of beneficiaries'. In my judgment the trustees, in deciding how to reduce the surplus, had no duty to be impartial as between members in service and member pensioners. They were entitled to prefer the former. They were entitled to recommend a package which included reductions in the future contributions that the employers would have to pay. There was, in my judgment, no evidence that in their attempt 'to be fair to everyone involved with the funds' they were 'overwhelmed' by any conflicts of interest between members in service and pensioners or between members as a whole and the employers. The Pensions Ombudsman's conclusion is, in my judgment, a consequence of his attempt to put himself in the position of the trustees and himself to decide what was fair."
The facts in Edge appear to have been in certain respects more extreme than those which have been explained to us in the present proceedings. We have quoted at length from the Vice-Chancellor's judgment precisely because it shows that, even in these more extreme circumstances, he was satisfied that the steps taken by the trustees lay within the range of their discretion. In particular we note that he emphasised that, in exercising a power, the trustees did not need to act impartially among different classes of members. Equally, he was satisfied that the trustees were entitled to take into account the possible effect of any course of action on the position of the employers. He was satisfied also that, while the trustees might, if they wished, choose to confront the company to the uttermost, they were under no duty to the members of the scheme to do so.
Recognising that the Trustees are vested with a considerable measure of discretion as to how they should deal with the surplus in the fund, we are satisfied that, even though the Trustees express disappointment about the amount of the surplus to be made available to existing members, it cannot be said that no reasonable trustees could accept the proposals and exercise their powers in the manner contemplated by the Trustees. The following factors appear relevant. First, the company's proposals mean that one-third of the surplus calculated on an ongoing basis, or roughly half of the surplus if calculated on a cessation basis, will be made available exclusively for the existing members of the Scheme. Secondly, the distribution is to be pro rata to the liabilities. Thirdly, the proposals involve no detriment to the existing members of the Scheme since the Scheme will be closed to new members. Fourthly, on transfer of the assets to the HIPS, they remain ring-fenced for members of the Scheme. Finally, while the proposals doubtless involve general advantages to Harnischfeger by virtue of the merger of the funds with their pension scheme, one effect of the proposals will be that, by increasing the liabilities to the members of the Scheme, they will reduce the funds on the strength of which the company would be otherwise entitled to take a contributions holiday. Having regard to these aspects of the proposals, it is impossible to say that no reasonable trustees could accept them as an appropriate way of dealing with the surplus in the fund.
For these reasons we answer both aspects of Question 6 in the affirmative.