Scully & Anor v. Coley & Ors (Jamaica)  UKPC 29 (08 July 2009)
Privy Council Appeal No 51 of 2008
Morven Richardson Appellants
Franklyn Brown 1st Respondents
Maria Teresa Perea
(the Trustees) 2nd Respondents
Gillette Caribbean Limited 3rd Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 8th July 2009
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Present at the hearing:-
Lord Hope of Craighead
Lord Neuberger of Abbotsbury
Lord Collins of Mapesbury
Sir Paul Kennedy
Sir Christopher Rose
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[Delivered by Lord Collins of Mapesbury]
Discontinuance of the Plan
The Trust Deed and the Rules
If for any reason, other than death or early retirement, a Member should cease to be employed by the Employer before his Normal Retirement Date, he shall have the following options:
(a) The Member may leave his contributions on deposit to accumulate at Credited Interest thereon to provide a pension commencing at his Normal Retirement Date.
(b) The Member may elect a cash return of his own contributions together with Credited Interest to his date of termination.
The Member who has chosen option (a) above and who has attained age 45 and completed at least 15 years of Pensionable Service will be entitled instead to the pension benefit earned up to the date of termination and payable at normal retirement date, provided that the termination is not due to misconduct or fraud. No Member shall withdraw from the Plan while still employed to the Employer nor may he be permitted to withdraw his contributions during periods of suspension, lay off, temporary leave of absence without pay or temporary interruptions in his service, nor shall he be permitted to contribute during such periods."
"Participation in the Plan will not give any Member the right to be retained in the service of the Employer, or any right or claim to benefits unless the right to such benefits has specifically accrued under the terms of the Plan."
"CHANGE OR DISCONTINUANCE OF THE PLAN
(a) The Employer hopes and expects to continue the Plan indefinitely but reserves the right to change, modify or discontinue the Plan at any time. Any change, or modification in the Plan shall not affect the amount of pension benefits being paid to the retired Members and shall not result in a diminution or reduction of benefits already earned by Members up to the date of change.
(b) If the Plan is discontinued, no further contributions shall be required. No part of the assets of the Plan shall revert to the Employer until the Plan has made full provision for the payment of pension benefits, other benefits and rights of refund in respect of the service of the Members up to the date of discontinuance.
(c) In respect of the benefits accrued and funds accumulated, the total of such funds existing at the date of discontinuance of the Plan under the funding contract issued by the Company to the Employer, shall be allocated by the Company, subject to the approval of the Employer, among the then Members of the Plan in the following manner, in order, to the extent of the sufficiency of such assets:
(i) First, in the event of the Members having contributed to the Plan, there shall be an allocation to each Member of an amount equal to 100% of his own contributions with Credited Interest thereon to the beginning of the month in which the Plan is terminated.
(ii) Second, there shall be an allocation to each Member who has qualified for normal or later retirement, but has not yet retired, for the amount required to purchase in full the pension benefit payable to him under the Plan on the assumption that his retirement occurs on the date of termination of the Plan.
(iii) Third, there shall be an allocation to each Member who has become eligible for early retirement but has not yet retired, of the amount required to purchase in full the pension benefit payable to him in accordance with the Plan on the assumption that his retirement occurs on the date of termination of the Plan.
(iv) Fourth, there shall be an allocation to each Member, other than those Members defined in paragraphs (ii) and (iii) above, of an amount equal to the actuarial value of the then accrued pension benefit payable at normal retirement date in respect of service after the commencement of the Plan.
Each allocation to a Member in accordance with paragraphs (ii) (iii) and (iv) shall make allowance for any amount allocated to such Member in accordance with paragraph (i) above.
If the balance of the Fund is insufficient to provide a full allocation for all persons within any of the classes defined in paragraphs (i), (ii), (iii) and (iv) above, the allocation to each person within the class shall be reduced in the same proportion.
If the amount in the Fund is more than sufficient to provide a full allocation for all persons within any of the classes defined in paragraphs (i), (ii), (iii) and (iv) above, the allocation to each person within the class shall be increased in the same proportion."
The judgments below and the appeal
Court of Appeal