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(FIRST) MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLANT AND OTHERS AGAINST (FIRST) SEDGWICK NOBLE LOWNDES LIMITED AND (SECOND) MERCER LIMITED


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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 21

 

CA45/11, CA46/11, CA47/11, CA48/11

OPINION OF LORD TYRE

In the cause

(FIRST) MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) THE YORKSHIRE WEEKLY NEWSPAPER GROUP LIMITED

Pursuers

against

 

(FIRST) SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED

Defenders

 

and in the cause

 

MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) T R BECKETT LIMITED

Pursuers

against

 

(FIRST )SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED

Defenders

 

and in the cause

 

MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) SUSSEX NEWSPAPERS LIMITED

Pursuers

against

 

(FIRST) SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED

Defenders

 


and in the cause

 

MARK KNIGHT AND OTHERS as TRUSTEES OF THE JOHNSTON PRESS PENSION PLAN, (SECOND) JOHNSTON PRESS PLC, and (THIRD) WILFRED EDMUNDS LIMITED

Pursuers

against

 

(FIRST) SEDGWICK NOBLE LOWNDES LIMITED and (SECOND) MERCER LIMITED

Defenders

 

Pursuers: MacColl; Brodies LLP

Defenders: Martin QC, O’Brien; Shepherd & Wedderburn LLP

10 February 2017

Introduction
[1]        On 17 May 1990, the European Court of Justice delivered its judgment in Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, holding that differential retirement ages for men and women in a pension scheme constituted discrimination for the purposes of the EC Treaty.  Following a period of uncertainty as to the implications of the ruling, the Court decided in Coloroll Pension Trustees Ltd v Russell [1994] ECR I-4389 that, inter alia, it had no retroactive effect.  In the meantime, employers and pension fund trustees had set about the process of equalisation of benefits that was required by the Barber judgment.  Most achieved this by amending their schemes to raise the retirement age for women, typically 60, to that for men, typically 65. 

[2]        There remained, however, the question of members’ entitlements with regard to the period between the date of the Barber judgment and the effective date of amendment of their scheme.  During that period members were entitled to equal benefits and the effect of the Coloroll decision was that this could generally be achieved only by accruing benefits to all members on the basis of the lower, ie female, retirement age.  The period became known as the Barber window.  As will be apparent, the longer the Barber window remained open, the higher the cost to a scheme in pension benefits.

[3]        In more recent times, a number of cases have come before the courts in England and Scotland raising questions as to whether, and if so when, the Barber window was effectively closed in relation to a particular pension scheme: see eg Low & Bonar plc v Mercer Ltd [2010] CSOH 47 and Bett Homes Ltd v Wood [2016] CSIH 26.  The four actions to which this opinion relates are of that type.  They concern four pension schemes each of whose assets and liabilities have subsequently been transferred into the Johnston Press Pension Plan (“the Plan”).  In each action the first pursuers are the trustees of the Plan, and the second pursuer is the principal employer of the Plan.  The third pursuer in each action is the company which was the principal employer of the pension scheme with which that particular action is concerned, prior to the transfer of the assets and liabilities of that scheme to a predecessor of the Plan some time after the events with which these proceedings are concerned.  The names of the pension schemes with regard to which the third pursuers were respectively the principal employers, and the abbreviated names that I shall use to refer to them, are as follows:

Case CA45/11: The Yorkshire Weekly Newspaper Group Limited Pension Fund (“the Yorkshire Scheme”);

Case CA46/11: The Beckett Retirement Benefits Scheme (“the Beckett Scheme”);

Case CA47/11: West Sussex County Times Limited Pension and Life Assurance Scheme (“the West Sussex Scheme”);

Case CA48/11: The Wilfred Edmunds Limited Pension and Assurance Scheme (“The Edmunds Scheme”).

[4]        The defenders in each action are, and at the material time were, providers of professional services including pensions consultancy and pension administration.  The first defender is a subsidiary of the second defender.  It is averred by the pursuer in each case that from 1989 at the latest the first defender was engaged by the trustees under a contract to provide consultancy services in relation to the scheme in question and, subsequently, in relation to the Plan and its predecessors.  It is further averred in each case that the scope of the services which the first defender contracted to provide extended to the provision of advice in relation to scheme amendments, including amendments to achieve the equalisation of pension ages required by Barber.  Those averments are not admitted by the defenders, and the scope of the services, if any, that the defenders were contracted to provide at the material time with regard to each of the four schemes is contentious.  In summary, the pursuer’s complaint in each case is that the first defender was in breach of contract and was negligent in failing to provide adequate advice, including relevant documentation, in order to ensure that the necessary procedural steps were taken in terms of the scheme documentation to equalise benefits, and thereby close the Barber window, prior to the execution of a formal deed of amendment of the scheme.  They sue in each case for a sum said to be necessary to provide benefits to which scheme members are entitled in respect of the period between (a) the date when equalisation ought to have taken effect but for the first defender’s breach of duty, and (b) the date of formal amendment of the scheme when equalisation did take effect.

[5]        The defenders deny any breach of contractual or delictual duty.  Additionally, however, in each case they narrate facts and documentation from which, they say, it may reasonably be inferred that the necessary procedural steps were taken timeously by the principal employer and/or the scheme trustees (as the case may be): cf Bett Homes Ltd v Wood at paragraph 28.  That being so, the defenders contend, there was no period in respect of any of the schemes during which the Barber window remained avoidably open, with the consequence that no further benefits are due to any member of the Plan, and none of the pursuers has sustained any loss.  On 5 and 6 January 2017, I heard a preliminary proof in all four actions, restricted to this issue.

 

Matters common to all four actions
[6]        The events with which these actions are concerned took place more than 20 years ago.  Inevitably, the documentation that remains available after such a long passage of time is incomplete.  Extensive searches have been carried out by all parties.  The preliminary proof was conducted on the agreed basis that all extant documentation had been placed before the court.  No oral evidence was led.  In each action the parties agreed a joint minute of admissions which, in addition to formal matters such as documents being taken to be what they bore to be, included agreement

  • that the parties had carried out searches for surviving records relating to the equalisation of retirement ages under the scheme in question and had not located any documents, other than those produced, showing or tending to show the manner in which the decision to equalise retirement ages was taken or implemented; and
  • that, other than the documents produced in the joint bundle, the pursuers had no records to indicate that the requisite steps had been taken; that the pursuers had investigated these matters internally; and, without prejudice to any question of the inferences to be drawn from the documents produced, that the pursuers were unable to confirm whether or not any such steps were taken at any stage in relation to the purported timeous scheme amendment.

[7]        It was explained on behalf of the pursuers that their concern was to avoid a shortfall in any of the schemes.  Advice had been received that there was room for doubt as to whether the steps that were necessary in terms of the rules of each of the schemes had been timeously taken.  In these circumstances it was in the best interests of the scheme beneficiaries to offer a robust contradiction to the defenders’ contention that the requisite steps had been taken.

 

The presumption omnia praesumuntur rite esse acta
[8]        The maxim omnia praesumuntur rite et solemniter acta esse (in its full form) is paraphrased in English in Trayner’s Latin Maxims and Phrases (1894) as “All things are presumed to have been done duly and in the usual manner; or, all things are presumed to have been solemnly done and with the usual ceremony”.  The examples given by Trayner relate to the old rituals for symbolic delivery of land, but the maxim has much wider application.  In Trustees of the Scottish Solicitors Staff Pension Fund v Pattison & Sim 2016 SC 284, Lord Drummond Young, delivering the opinion of the court, noted at paragraph 19 various cases in which it had been applied to commercial transactions.  One of these was Bain v Assets Co (1905) 7F (HL) 104, in which Lord Halsbury LC explained the maxim, sometimes referred to as the “presumption of regularity”, as follows (page 106):

“It appears to me that the matter rests, not upon any question of technical law, but upon broad common sense, and especially upon these two principles—that at this distance of time every intendment should be made in favour of what has been done as being lawfully and properly done, and that the persons who are now insisting upon these rights have lain asleep upon their rights so long that as a matter of fact we know that witnesses have perished, and the opportunities which might have been had if the question had been earlier raised have passed away.”

 

[9]        The Scottish Solicitors Staff Pension Fund case is important for present purposes because it too was concerned with whether amendments apparently made many years previously to the rules of a pension fund had been validly made.  Having referred to the foregoing dictum from Bain v Assets Co and to an observation by Lord Simonds in Morris v Kanssen [1946] AC 459 at 475 that “the wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order”, Lord Drummond Young continued:

“20  In our opinion four main reasons may be said to justify the application of the maxim. First, in practice those who carry out transactions generally ensure that at least the substance of the transaction is properly decided and recorded. Consequently any defect in procedure tends to be a matter of form rather than substance. The maxim thus reflects the underlying principle that substance is more important than form. Secondly, if there is a substantial objection to the transaction, it is likely that there will be an immediate challenge, at least on an informal basis. The result is that any defects in procedure that are serious and material, in the sense that they affect the end result, are likely to be addressed at the time. Thirdly, when a considerable time is allowed to pass after a transaction has been carried out, evidence will frequently be lost. If the onus fell on those who carried out a transaction to prove, possibly many years after the event, that it had been carried through according to proper form, the practical difficulties might be enormous...

 

21  Fourthly, and perhaps most importantly, transactions do not stand alone. The parties to them, and third parties affected by them, rely on the existence and validity of a transaction in their future dealings. If a transaction were open to challenge, possibly long after it was carried out, on the ground that it was impossible to prove that proper procedures had been used, all subsequent dealings that proceeded on the faith of that transaction would also be potentially open to challenge. That would be an intolerable situation, both in the commercial world and elsewhere…”

 

[10]      The maxim is also recognised by English law.  In Harris v Knight (1890) 15 PD 170, where the question was whether a lost will had been duly executed, Lindley LJ observed (page 179-80):

“The maxim, ‘Omnia præsumuntur rite esse acta,’ is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability.  The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability.  The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved.  The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.”

 

[11]      In each of the present cases, the defenders relied to a greater or lesser extent on the applicability of the maxim.  On the basis of the foregoing authorities they are in my opinion entitled to do so, although as Lindley LJ emphasised, it is no more than a presumption, capable of displacement by contrary evidence.  In order to determine whether the defenders have established, with or without the assistance of the presumption, that the necessary procedural steps were taken to achieve equalisation in advance of the execution of formal deeds of amendment, it is necessary to examine the facts of each action individually.

 

The Yorkshire Scheme

[12]      At the time of the Barber ruling, the Yorkshire Scheme was governed by Rules adopted by a board resolution of the principal employer dated 6 March 1981.  Rule 49 stated:

“Subject  as hereinafter provided the Principal Company may from time to time and at any time, with the consent of the Trustees, by resolution passed at a duly constituted meeting of its directors or by memorandum in writing signed by two directors or one director and the secretary of the Principal Company alter or add to all or any of the provisions of the Rules…”

 

The principal company was the Yorkshire Weekly Newspaper Group Limited.  The trustee was Scottish Pension Trustees Limited.

[13]      In the absence of any minute of such a board resolution or memorandum by officers of the principal company, the defenders founded upon, among others, the following documents:

  • A report dated March 1991 by the first defender addressed to Johnston Press plc (the principal company’s parent company) providing advice on equalisation action to be taken in the light of the Barber judgment.
  • A letter dated 11 April 1991 from the first defender to solicitors for Johnston Press plc (copied to the finance director of Johnston Press plc), seeking advice on employment law but recording that “we are equalising for future pension rights only”.This was followed up by a letter dated 7 May 1991 in which reference was made to “equalising pension ages in the Johnston Press Group Schemes”.
  • A minute of a meeting of Johnston Press plc on 24 September 1993 in which it was recorded that

    “The Secretary reported that, following various cases before the European Court, it was important for the company to make a decision as to what age should be adopted for all employees as normal retirement date.  After full discussion, it was agreed that the common retirement date should be 65 and this should be adopted as soon as possible.”

     

  • An announcement dated 3 November 1993 issued by the principal company and the trustee to all Scheme members in service on 1 December 1993.This announcement stated inter alia:

    “A judgment given on 17 May 1990, by the European Court of Justice (ECJ) required some discrimination between the sexes to be removed from occupational pension schemes, and in abiding with the ECJ's requirements, Yorkshire Weekly Newspaper Group Ltd and the Trustee of the Fund have decided to adopt the following changes to the Fund, to take effect from 1 December 1993:

     

    • The Normal Retirement Age for both men and women will be 65…”

      Members were required to sign a form acknowledging that they had been notified of, understood and accepted the changes.  Requests for further information were to be directed to the finance director of the principal company.

  • Other announcements in similar terms, including one addressed to former members of another pension scheme .
  • A notice entitled “To be signed by female members who joined the fund before 1 December 1993” addressed to both the principal company and the trustee of the Scheme, confirming understanding of and agreement to the changes outlined in the above announcement.
  • A supplement dated 3 November 1993 to an explanatory booklet dated August 1989 for female employees joining the Scheme on or after 1 December 1993, containing the same wording as the announcements with regard to the principal company and the trustee “having decided” that the normal retirement age for both men and women would be 65.
  • A minute of a meeting of the trustee of the Scheme on 10 January 1994, recording that

    “The Minutes of the Scotland East Regional Trusteeship Committee meeting November 2nd 1993 were tabled.  In that meeting the Trustee had agreed with the Johnston Press Board decision to equalise retirement ages for men and women effective December 1st 1993…

     

    A draft announcement letter was agreed at that meeting and [a representative of the first defender] confirmed that it had been issued to all members the same week by the Company.”

     

  • An explanatory booklet issued to Scheme members in July 1994, stating inter alia “Normal Pension Date is your 65th birthday”.

    [14]      On 31 August 1994, a new Trust Deed, with Rules attached, was entered into between the principal company and the trustee.

    Arguments for the parties

    [15]      On behalf of the defenders it was submitted that in determining what was required for a valid exercise of the power of amendment, a broad and practical approach should be taken.  In the Scottish Solicitors Staff Pension Fund case, the court had observed that the exercise of the power should be clear and certain, and should be put in some sort of permanent form, but that the court should not be unduly technical or restrictive in considering the niceties of its manner of exercise.  In Low & Bonar plc v Mercer Ltd (above), a signed board minute had been held to satisfy a requirement for a resolution.  In the present case the parent company had resolved on 24 September 1993 that the common retirement date should be 65 and that this should be adopted as soon as possible.  The announcements to Scheme members on 3 November 1993 stated in terms that a decision to equalise retirement ages at 65 had been taken both by the principal company and by the trustee.  All interested parties proceeded thereafter on the basis that equalisation at 65 had been effective.  In these circumstances the presumption of regularity applied.  No evidence had been presented that the power in Rule 49 had not been exercised, or that the decision had not been made in a form that satisfied the requirements of the rule.  On the contrary, the other documents founded upon supported the presumption.  The only uncertainty was whether there had been a board resolution or a memorandum by the officers of the principal company.  One could either see the announcement as evidence of a resolution having been made and apply the presumption of regularity, or treat the announcement as a document in permanent form that was equivalent to a memorandum albeit not signed by two officers. 

    [16]      On behalf of the pursuers, the following considerations were said to point away from any effective change having been made to the Scheme until the formal amendment in August 1994:

  • A previous change to the Rules on 17 February 1992 had been made by a formal “Memorandum Under Hand” which was registered in the Books of Council and Session.There was no equivalent for any change as at 1 December 1993;
  • The resolution recorded in the Johnston Press plc minutes of 24 September 1993 related to the parent company, not the principal company;
  • Although the announcements referred to a decision having been made, there was no particularised change to the Rules approved at that time;
  • A process of revisal of specimen deeds continued throughout 1994;
  • The amended Trust Deed contained a schedule of board resolutions but none dated from 1993.It was accepted however that one of the recitals to the Trust Deed referred to “other changes as promulgated to members”.

 

Decision

[17]      In my opinion there is sufficient evidence to entitle me to find, with the assistance of the presumption of regularity, that a change was made to the Scheme with effect from 1 December 1993, equalising the normal retirement age for men and women at 65.  The announcements and other related documents were explicit in stating that both the principal company and the trustee “have decided” to adopt the change, and I see no reason to doubt that that statement was accurate.  Similarly, the trustee’s minute dated 10 January 1994 stated expressly that the trustee had consented to the principal company’s decision.  The only outstanding matter of fact is whether the principal company’s decision was formalised in one of the two ways specified in Rule 49.  In my opinion this is the kind of situation in which the presumption operates most appropriately.  It accords with common sense to presume, where no procedural challenge was raised at the time of the decision, all concerned have  proceeded on the basis that the change had been effectively made, and the passage of time now precludes an exhaustive investigation, that the requisite and not very demanding formality, namely a resolution of the board, was observed by the principal company. 

[18]      I do not regard any of the points made by the pursuers as sufficient to displace the presumption.  It would be entirely speculative to consider why the decision was not recorded in a deed registered in the public register, or why it does not appear in the schedule of board resolutions annexed to the amending Trust Deed.  Such speculation carries no weight when set against the clear contemporaneous references to the principal company’s decision and the trustee’s agreement.  The fact that work continued thereafter on the exact wording of the new Rules is in my view consistent, rather than inconsistent, with the necessary decision having been taken in principle in time to take effect on 1 December 1993.

 

The Beckett Scheme
[19]      The Beckett Scheme was governed at the material time by a Supplemental Definitive Trust Deed made on 11 June 1980 and the Rules contained in a schedule to that deed “together with any variations and additions to or substitutions for the same duly made”.  Clause 12 of the Trust Deed stated:

“The Principal Company and the Trustees may from time to time without the concurrence of the Members alter or add to the terms and provisions of the Rules and the trusts powers and provisions of this Deed whether retrospectively or otherwise.  The Principal Company and the Trustees shall forthwith declare such alteration or addition in writing under their hands, or (in the case of an alteration or addition to this Deed) under their hands and seals and the Deed and/or Rules shall stand amended accordingly.”

 

The principal company was T R Beckett Limited.  Parties are agreed that the expression “under their hands”, so far as Scots law is concerned, simply means “signed”.  Two of the Rules in the schedule are also relevant for present purposes.  Rule 17 stated that “the Trustees and the Principal Company may from time to time amend all or any of the provisions of the Rules in the manner provided by the Trust Deed”.  Rule 18(iii) contained the following definition of Normal Retiring Date:

“…the 65th birthday in the case of a male Member and the 60th birthday in the case of a female Member or such other date as may be advised to the Member in writing by the Trustees and provided Revenue Approval is not prejudiced thereby.”

 

[20]      Some of the documents founded upon by the defenders in relation to the Yorkshire Scheme were also referred to in relation to the Beckett Scheme, including the minute of the Johnston Press plc board meeting on 24 September 1993.  In addition, support was sought by the defenders from the following documents:

  • An actuarial report dated 31 March 1992 by Clay & Partners, Actuaries, addressed to the trustee of the Scheme, which included a section advising on the valuation consequences of equalising benefits on the basis of retirement at age 60.
  • A letter dated 19 July 1992 from Clay & Partners to the finance director of the principal company, undertaking to consider the effect of equalisation of the benefits of staff members.
  • A letter dated 5 August 1992 from the first defender to the finance director of Johnston Press plc, noting that “assuming we can equalise at 65”, a small saving would be made to the Scheme.
  • Announcements made on 17 March 1994 by the principal company and the trustee to various classes of Scheme members, stating inter alia that

 

“A judgment given on 17th May, 1990, by the European Court of Justice (ECJ) required some discrimination between the sexes to be removed from occupational pension schemes, and in abiding with the ECJ's requirements, T R Beckett Limited and the Trustee of the Scheme have decided to adopt the following changes to the Scheme, to take effect from 6th April, 1994:

 

    • The normal retirement date for both men and women will be the 65th birthday…”

 

The announcements were sent out with a covering letter signed by the finance director of the principal company.

  • A minute of a meeting of the trustee of the Scheme on 10 January 1994, containing the same report as in the case of the Yorkshire Scheme that the trustee had agreed with the Johnston Press Board decision to equalise retirement ages at 65, with the sole difference that the effective date was stated to be 6 April 1994.  It appears to have been the practice of the trustee to sign minutes of meetings.

[21]      On 31 August 1994, a new Second Supplemental Definitive Trust Deed, with Rules attached, was entered into between the principal company and the trustee.

Arguments for the parties

[22]      On behalf of the defenders it was submitted that the court could find, without any need to resort to the presumption of regularity, that the necessary steps were taken to change the rules of the Scheme with effect from 6 April 1994.  Even without exercising the power in Clause 12, the trustee could bring about an equalisation simply by giving notice to all members in terms of Rule 18(iii).  The minute of the meeting on 10 January 1994 recorded that the trustee had agreed to equalisation with effect from 6 April 1994.  Members were notified in writing by the announcements on 17 March 1994.  That was sufficient to effect the change.  Alternatively, if it was necessary to rely upon the power in Clause 12, that had been exercised by means of the announcements: signature of the cover letter by the principal company’s finance director constituted a declaration under the company’s hand.  It could be presumed that the minute of the meeting at which the trustee agreed to the change was signed.  There was no suggestion that any concern about the effectiveness of the equalisation had been raised at the time by the solicitors instructed to review the Scheme documentation and to produce a revised Trust Deed and Rules.

[23]      On behalf of the pursuers it was again contended that the documentation pointed away from any effective change having been made prior to the formal variation in August 1994.  Reading the 1980 deed and rules as a whole, the better view was that compliance with Clause 12 was necessary for any alteration to retirement dates.  The following additional points in relation to the documentation were made:

  • The statement in the minute of the Board meeting of Johnston Press plc on 24 September 1993 related to the parent company, not the principal company;
  • A previous amendment to the Scheme dated 7 July 1993 had been effected by a formal Deed of Amendment registered in the Books of Council and Session.  There was no equivalent for any change as at 6 April 1994 in relation to equalisation.
  • The trustee’s minute dated 10 January 1994 recorded nothing more than an agreement in principle with the parent company.
  • The points made in connection with the Yorkshire Scheme regarding absence of particularised change, the continuing process of revisal , and the absence of any reference in the appendix to the new deed to an equalisation decision applied mutatis mutandis to the Beckett Scheme;

 

Decision
[24]      I am not persuaded that Rule 18(iii) provides a basis for a general amendment of retirement dates by means only of a written notification by the trustee.  I note that that rule refers to a “Member” in the singular.  It seems to me to be clear that the purpose of Rule 18(iii) is to permit, subject to preserving Revenue approval of the Scheme as a whole, a variation of the retirement date of a particular member on an ad hoc basis.  It does not, on a proper interpretation, override Rule 17, which requires amendment of the Rules to be carried out in the manner provided by the Trust Deed.  In my view equalisation of the retirement ages of men and women could not be regarded as other than a very significant amendment of the Rules.  Such amendment had to be made in accordance with Clause 12 of the Trust Deed.

[25]      There is, however, sufficient evidence when supported by the presumption of regularity that the requirements of Clause 12 were satisfied.  As regards the principal company, the amendment was declared to members by the announcement which, taken together with the covering letter, was made under the company’s hand.  As regards the trustee, the amendment was agreed in a minute which, in accordance with what appears to have been the trustee’s normal practice, may be presumed to have been signed by the trustee.  Both declarations are in permanent form and, as Lord Drummond Young observed in Low & Bonar plc v Mercer Ltd (at para 9) and in Scottish Solicitors Staff Pension Fund (at para 18), the court need not be unduly technical or restrictive in considering the niceties of the manner of exercise of the amendment power. 

 

The West Sussex Scheme
[26]      The West Sussex Scheme was governed at the material time by the Rules of the West Sussex County Times Limited Pension and Life Assurance Scheme adopted by a resolution of the Board of West Sussex County Times Limited on 10 March 1980.  It was noted in Rule 2 that the benefits of the Scheme were secured by a policy effected with the Commercial Union Assurance Company Limited.  Rule 21 stated:

“The Principal Employer may (subject to the terms of the Instrument) at any time by resolution amend any of the provisions of the Rules.”

 

The principal employer was West Sussex County Times Limited.  The “Instrument” was the Trust Deed made on 31 January 1974 by which the Scheme was established; this document was not produced. 

[27]      The documentation surviving with regard to this case is sparse.  The first defender’s position is that it had no involvement with this Scheme until about March 1994, some time after announcements were made to members; this contention derives some support from the available documents.  For the purposes of the preliminary proof, the first defender founded upon the following:

    • A letter dated 2 March 1994 from the secretary of the finance director of Johnston Press plc to Miss Deborah Gallone, an employee of the first defender, headed “Johnston Press Sex Equalisation Changes” and enclosing announcements in respect of a number of pension schemes including the Johnston Newspaper Group Pension Scheme, the Yorkshire Scheme, the West Sussex Scheme, and the Edmunds Scheme. 
    • The announcements referred to in respect of the West Sussex Scheme.  There are two of these, one addressed to all female employees joining the Scheme on or after 1 December 1993 and the other addressed to all Scheme members in service on 1 December 1993.  Both announcements are headed “The West Sussex County Times Group Pension Scheme” and dated 1 December 1993.  They bear close resemblance to the announcements made to members of the Yorkshire and Beckett Schemes.  There is reference to the West Sussex Scheme in an introductory paragraph.  However, the announcement continues:

“A judgment given on 17th May, 1990, by the European Court of Justice (ECJ) required certain discrimination between the sexes to be removed from occupational pension schemes, and in abiding with the ECJ's requirements, Johnston Press plc and the Trustee of the Scheme have decided to adopt the following changes to the Scheme, to take effect from 1st December 1993:

 

        • The Normal Retirement Age for both men and women will be 65.”

 

It will be noted that the decision to equalise is stated to have been taken by the parent company and the trustee, whereas the Rules require amendments to be made by the principal employer.  There are a number of other references in the announcement to Johnston Press plc.  Members requiring further information are requested to contact the finance director of Johnston Press plc, and the announcement bears to have been issued by Johnston Press plc.

    • A notice entitled “To be signed by female members who joined the Scheme before 1 December 1993” addressed (wrongly) to the trustee and Johnston Press plc, confirming understanding of and agreement to the changes outlined in the above announcement.
    • A letter dated 24 June 1994 from a pensions administrator employed by Commercial Union to the first defender under a heading “West Sussex County Times Ltd Pension Scheme”, commenting (favourably) on the terms of the equalisation announcements.
    • A reply dated 25 October 1994 from the first defender to Commercial Union, referring to the intention of “the Trustee and the Principal Employer” with the equalisation announcements.
    • An internal memorandum dated 25 October 1994 by Ms Gallone to her line manager in inter alia the following terms:

“I enclose for your information a copy of my reply to CU’s original query of 24/06.

 

I have tried to avoid implying that [the first defender] advised West Sussex (either as employer or trustee) about sex equalisation announcements, since all that happened – as you will recall – was that our “blanket announcement” was altered to refer to WSCT as employer/trustee…

 

I hope that this will aid CU in gaining some idea of what WSCT intended.  I presume the solution for the other group schemes was meant to apply to this one…”

 

[28]      A copy of a new Trust Deed including Rules, executed by the principal employer and the trustees on (according to the pursuers’ averments) 16 August 1996, was produced.  The new Rules provided for equalised treatment for men and women retiring after 1 December 1993.  One of the directors signing on behalf of the principal employer was Mr Marco Chiappelli, who was also the finance director of Johnston Press plc whose name appeared on the West Sussex Scheme announcements.

 

Arguments for the parties

[29]      In the circumstances of this case, the defenders relied heavily on the presumption of regularity.  Although the announcements referred incorrectly to the parent company rather than the principal employer, it was a reasonable inference that the latter had also participated in the equalisation decision (as one would expect in view of the impact on its liability to make contributions to the fund).  Nothing in the surviving documentation was inconsistent with such participation.  It appeared that all documents regarding the decision taken prior to the issuing of the announcements had been lost.  The pursuers had failed to rebut the presumption of regularity.  The fact that the principal employer executed the new Deed in 1996 raised an inference that it had, under the direction of the parent company, resolved in 1993 to make the change. 

[30]      On behalf of the pursuers it was submitted that the documentation was insufficient to support an inference that a resolution in terms of Rule 21 had been made by the principal employer.  The announcements referred only to a decision by the parent company and the trustee.  The recitals to the new Trust Deed suggested that there had been no previous effective variation of the Rules in relation to equalisation.  It was accepted, however, that it was appropriate for the court to consider the actions of the parent company in relation to all of the subsidiaries, rather than to examine each of the cases in isolation.

 

Decision
[31]      In my opinion there is sufficient material produced to enable the presumption of regularity to be applied.  It seems clear from the documentation that the issuing of the announcements in relation to the West Sussex Scheme was not carried out with the requisite care and attention to detail.  That view was certainly held in 1994 by Ms Gallone, who noted in an internal memorandum dated 21 March 1994 that the announcement of 1 December 1993 was “complete rubbish” because it referred to a non-existent booklet, and expressed the view in another memorandum dated 31 May 1994 that “Johnston Press adapted our basic wording to cover this scheme, with resulting errors”.  Unlike the Yorkshire and Beckett Scheme announcements, the West Sussex Scheme announcements fail to provide express contemporaneous evidence that a decision was taken by the body required by the relevant Rules to take it.

[32]      That is not, however, to say that no such decision was taken.  As the defenders submitted, there is no evidence that the principal employer did not resolve to equalise retirement ages.  The absence of any contemporaneous challenge and the passage of time support the application of the presumption.  Some further support is obtained from the fact that the director who was named in the announcements and who also executed the new Trust Deed in 1996 on behalf of the principal employer was its finance director at the material time.  It is also relevant that the West Sussex Scheme was one of several funds of companies under common control all of which were going through the same process of equalisation of retirement ages; it would be surprising if in this case alone the decision to equalise taken in principle by the parent company was not subject to a resolution by the company directly concerned.  For these reasons I conclude that the pursuers have failed to rebut the presumption of regularity, and that equalisation of retirement ages was effected in relation to this Scheme from 1 December 1993.

 

The Edmunds Scheme
[33]      The Edmunds Scheme was governed in 1993 by a Definitive Deed of Trust dated 22 June 1984 and Rules annexed thereto.  Clause 4 of the Deed of Trust stated:

“The Trustees may from time to time with the consent of the Principal Employer:

(i)  by deed executed by the Principal Employer and the Trustees in the case of this Deed, or

(ii)  by deed executed as aforesaid or by Resolution in writing of the Board of Directors of the Principal Employer in the case of the Rules

alter amend extend modify or add to all or any of the trusts powers or provisions of this Deed or the Rules…”

 

The principal employer was Wilfred Edmunds Limited.  The trustee was Scottish Pension Trustees Ltd.  The definition of “Normal Retirement Date” specifying different ages for men and women was contained in a schedule to the Rules.

[34]      It will be noted that, in contrast to the rules of the other three Schemes, the Rules of the Edmunds Scheme provide for amendment to be made by the trustees, with the consent of the principal employer.  In support of their contention that the requisite procedure for amendment was carried out, the defenders referred, among others, to the following documents:

  • The report dated March 1991 by the first defender addressed to Johnston Press plc mentioned above in relation to the Yorkshire Scheme.
  • A minute of a meeting of the trustee on 26 July 1993, in the course of which it was noted that major amendments might need to be made to comply with the Barber judgment.  A representative of the first defender explained that a recommendation had been made to the Johnston Press Group Board that the normal retirement age be increased to 65 for all members, with the anticipated date of change being 17 November 1993.
  • The minute of the Johnston Press plc meeting on 24 September 1993, already referred to in connection with the Yorkshire and Beckett Schemes.
  • An announcement made on 2 November 1993 by the principal employer and the trustee to all Scheme members, stating inter alia that

“A judgment given on 17th May, 1990, by the European Court of Justice (ECJ) required certain discrimination between the sexes to be removed from occupational pension schemes, and in abiding with the ECJ's requirements, Wilfred Edmunds Limited and the Trustee of the Scheme have decided to adopt the following changes to the Scheme, to take effect from 1st December 1993:

 

  • The Normal Retirement Age for both men and women will be 65…”

 

The point of contact for further information was the finance director of the principal employer.

  • A minute of a meeting of the trustee of the Scheme on 10 January 1994, containing the same report as in the case of the Yorkshire Scheme that the trustee had agreed with the Johnston Press board decision to equalise retirement ages at 65, with effect from 1 December 1993. 

[35]      On 31 August 1994, a new Trust Deed with Rules attached was entered into between the principal employer and the trustee.

 

Arguments for the parties

[36]      On behalf of the defenders it was submitted that the documents demonstrated beyond question that the trustee had decided to amend the Scheme.  As regards the principal employer, its consent was evidenced by participation in the announcement and other related documents, and its execution of the new Trust Deed.  As to whether that consent had been given by resolution in writing, as required by Clause 4, the presumption of regularity applied, supported by the minute containing the parent company’s decision.  The resolution had to be in writing but not necessarily signed.  Given the statutory obligation to keep minutes of board meetings contained at that time in the Companies Act 1985, section 382 (now Companies Act 2006, sections 248), it could be presumed that the principal employer’s decision to equalise retirement ages had been recorded in writing.  Nothing had been produced to rebut the presumption of regularity.

[37]      On behalf of the pursuers it was contended, for much the same reasons as for the Yorkshire Scheme,  that the available documentation pointed away from any effective change having been made to the trust deed until the formal variation in August 1994.   Reference was made in particular to a schedule to the new Trust Deed which listed deeds and amendments, including a 1988 trustees’ resolution, but made no mention of a board resolution in 1993.

 

Decision

[38]      The circumstances of this Scheme are similar to those of the Yorkshire Scheme, and my conclusion is the same: that there is sufficient evidence to entitle me to find, with the assistance of the presumption of regularity, that a change was made to the Scheme with effect from 1 December 1993, equalising the normal retirement age for men and women at 65.  Clause 4 specifies no formality for the trustee’s decision, and it is amply vouched by the terms of the announcement to members and the minute of the meeting on 10 January 1994.  The announcement also provides clear contemporaneous evidence of the consent of the principal employer and the only remaining question, once again, is whether there was compliance with the requisite formality of a board resolution in writing.  In my view the presumption of regularity applies in the absence of any contrary evidence.  I am not persuaded that the absence of any reference to a resolution in 1993, whether by the trustee or by the board of the principal employer, in the schedule annexed to the new Trust Deed raises any inference that no such resolution was made.  Such a conclusion would be entirely speculative.  As to the requirement that the resolution be in writing, I accept that the presumption extends to finding, on balance of probabilities, that the statutory requirement to record board decisions in minutes was complied with.

 

Disposal
[39]      It follows from the above that I find in all four cases that the necessary steps were taken to equalise retirement ages without avoidable delay, and that in none of the cases have the pursuers sustained any loss.  In accordance with parties’ agreement in the event that I found in favour of the defenders, I shall in each action repel the pursuers’ pleas in law, sustain the defenders’ fourth and fifth pleas in law and grant decree of absolvitor.  Questions of expenses are reserved.