Cripps v Trustee Solutions Ltd

This appeal gives rise to a point of statutory construction which, we are told, is of some importance to the many occupational pension schemes which went into winding up between 6 April 1997, when s 73 of the Pensions Act 1995 ("the 1995 Act") came into force, and 6 April 2005 when a substantial amendment to s 73, effected by s 270 of the Pensions Act 2004, took effect.

The point arises by reason of the impact of Article 141 (formerly Article 119) of the amended Treaty of Rome, as interpreted by the European Court of Justice ("the ECJ") in a series of decisions commencing with Barber v Guardian Royal Exchange [1991] 1 QB 344 ("Barber"), on schemes which differentiated between male and female members for the normal retirement date ("NRD"). Until the Barber decision given by the ECJ on 17 May 1990 British schemes usually mirrored the different ages at which State pensions were payable, viz 65 for males and 60 for females. Article 141 requires that male and female workers should receive equal pay for equal work or work of equal value. In Barber the ECJ held that pensions are pay and must be equal for both men and women. Accordingly, schemes which provide for unequal retirement ages as between men and women are unlawful

In further decisions, most notably Coloroll Pensions Trustees Ltd v Russell [1995] ICR 179 ("Coloroll"), the ECJ decided further points arising out of Barber and in particular that:

Until recent years another usual feature of British schemes was that they provided pension benefits for a member of the scheme by reference to the member's final salary. Many such schemes fell into deficit, the schemes' liabilities to their members and other beneficiaries exceeding the assets of the schemes, and went into winding up. In December 2002 it was reported to Parliament that the number of schemes which went into winding up between 1 April 1997 and 31 March 2002 exceeded 29,000 and that the members of those schemes totalled nearly 1.6 million.

Schemes usually provide by their rules for the order in which, on a winding up, the liabilities of the scheme are to be met out of the assets of the scheme. However, since 1975 such provisions have been made subject to statutorily imposed priorities. S 73 of the 1995 Act prescribes, for schemes to which it applies, the order of priority as between liabilities of the scheme for the application of the available assets. Inherent in such prescription is the consequence that, where the assets are insufficient, those scheme members to whom liabilities in a lower category are owed may receive less than those to whom liabilities in a higher category are owed and they may receive nothing at all. Whilst provision has been made out of other funds to assist members of some insolvent schemes, members of many schemes do not qualify, and politically it remains a contentious topic whether such provision should be extended to such schemes.

This appeal relates to The Colour Processing Laboratories Pension Scheme ("the Scheme"). It is a final salary scheme contracted out of the State Earnings Related Pension Scheme. It was established by a deed dated 3 October 1960 and is governed by a set of rules. Those applicable are the third edition ("the Rules"). They were introduced by a resolution dated 10 November 1986 of the trustees of the Scheme, to which the Scheme's sponsoring employer, then called Colour Processing Laboratories Ltd ("the Principal Employer"), gave its consent.. The Rules were expressed to be applicable from 6 April 1978.

The Rules provide for the NRD of a male member to be at age 65 and for a female member at age 60. The pensionable service of a member is limited to service in the period between the member becoming a member and the NRD of that member. The Rules require contributions to be made weekly or monthly or at such other interval as the employers might determine by each member in pensionable service and periodically by the employers. By Rule 12(A) a member in service on his or her NRD is entitled to a pension commencing the next day and unless the member exercises an option to postpone retirement and the commencement of the pension, which the member could do for up to 5 years beyond the NRD, the member is treated as having retired on the NRD. The quantum of the pension is calculated by reference to the member's years of service and final salary. By Rule 12(B) provision is made for withdrawal by the member from service before the NRD with the consent of the employers and for entitlement to a deferred pension commencing the day after the NRD, with an option available to the member with the consent of the Scheme's trustees to take a reduced pension commencing on or after the member attains the age of 50. Rule 12(C) provides for an immediate pension on a member's early retirement (not earlier than on the attainment by the member of the age of 50) with the employers' consent or on account of incapacity. Rule 38 contains a power to amend the Rules. Rule 40(A) provides for the winding up of the Scheme on specified contingencies. By Rule 40(B) the priorities in which the assets of the Scheme are to be applied to meet liabilities are laid down.

In 1992 the Principal Employer and the Scheme's trustees sought to close the Barber window by an appropriate amendment to the Rules. They attempted to level down the Scheme by increasing the NRD of female members to 65 with effect from 1 October 1991. From that date the Scheme was administered on the basis that benefits had been equalised.

On 1 November 2001 the Principal Employer went into creditors' voluntary liquidation. There is unlikely to be any dividend for unsecured creditors, of which the Scheme is one. The Scheme went into winding up on 15 February 2002 heavily in deficit. As at 1 November 2004 the Scheme's liabilities were £17.824 million as against assets of £6.5 million. As at September 2003 the Scheme had 230 deferred members and 63 pensioners.

The Claimants, Trustee Solutions Ltd, Mr Comar and Mr Edwards, are the trustees of the Scheme. They decided to seek the directions of the court on three issues. The first related to whether the power of amendment had been validly exercised. The second related to whether an estoppel arose with the result that the Barber window must be treated as having been closed. The third concerned the application of s 73. It is not in dispute that s 73 does apply to the Scheme. What is in dispute is how it applies and that turns on a question of construction

To assist the court in the determination of those issues representative Defendants were joined. The First Defendant, Leslie Dubery, was appointed to represent (a) all members of the Scheme in whose interests it was to argue that there had been no valid exercise of the power of amendment and that no estoppel had arisen and (b) all beneficiaries under the Scheme by reason of the pensionable service of those members. He was employed by the Principal Employer and was a contributing member of the Scheme between 1992 and 2000. He was aged 64 when the winding up commenced. The Second Defendant, Julia Cripps, was born on 11 October 1952 and so was 49 when the winding up commenced. She too was employed by the Principal Employer and was a contributing member of the Scheme between 1975 and 1988 when her service terminated and she became a deferred member of the Scheme. She was appointed to represent all other beneficiaries under the Scheme. I shall come to the respective positions of Mr Dubery and Mrs Cripps in relation to the third issue later.

The proceedings were heard by Lewison J. He held that on the first issue the power of amendment had not been validly exercised and on the second issue that no estoppel had arisen. It is unnecessary to say anything more about those issues as there is no appeal from the judge's decision on either of them. It is sufficient to note that the result of the judge's decision on those issues is that the Barber window was never closed.

I must now explain the third issue and the judge's decision on that. S 73 requires the assets of a salary related occupational pension scheme which is being wound up to be applied in satisfying the liabilities of the scheme in respect of pensions and other benefits, including increases in pensions, in a particular order by reference to categories of liabilities specified in the lettered paragraphs of subs (3). By s 73(2) if the assets are insufficient to satisfy the amounts of the liabilities specified in subs (3) the assets must be applied first towards satisfying the amounts of the liabilities specified in earlier paragraphs of subs (3) before the amounts of the liabilities specified in later paragraphs and when the amounts of the liabilities mentioned in one of those paragraphs cannot be satisfied in full, those amounts must be satisfied in the same proportions.

-S 73(3), which by the time it came into force had already been amended by the

The issue before the judge concerned paragraph (b) of s 73(3). As he put it in paragraph 60 of his judgment (reported at [2006] PLR 177), the question is essentially whether a male member, who had accrued pensionable service within the Barber window and who had attained the age of 60 before the commencement of the winding up of the Scheme, had an entitlement which fell within paragraph (b). Mr Dubery was such a person. If the answer was in the affirmative, he would be paid in priority to Mrs Cripps, whose deferred pension fell within s 73(3)(f). The judge considered the rival arguments then advanced on behalf of the representative Defendants.

For Mr Dubery it was argued that a person's entitlement to payment was not confined to cases where the pension was in payment but might equally arise where that person is entitled to call for immediate payment, that a male member with an accrued Barber window pension has an absolute right under European law to take that pension at the age of 60, but that the Rules, referring to the payment of "a pension", not "part of a pension", and the requirements of the Inland Revenue do not allow only part of a pension to be taken; accordingly, if a male member wanted to take his Barber window pension at age 60, he must retire and accept the application of an early retirement factor to the remaining accruals, the required consent of the employer under the Rule relating to early retirement being treated as not capable of refusal as otherwise there would be a breach of European law.

For Mrs Cripps it was argued that there can only be one NRD and no one had an entitlement to payment of a pension before the NRD prescribed by the Rules in force at the commencement of the winding up.

The judge rejected the latter argument, saying:

Accordingly the judge declared that members of the Scheme who had the right to retire at age 60 in respect of any part of their service and who were aged between 60 and 64 at the date that the Scheme commenced winding up fell within s73(3)(b) even in respect of pension or other benefits accrued by service to which an NRD at age 65 applied. It would appear that the judge accepted the whole of the argument advanced on behalf of Mr Dubery.

A much more fully argued case was advanced on behalf of Mrs Cripps on the application to this court for permission to appeal against that part of the judge's order which related to s 73. Jonathan Parker LJ gave such permission on the papers.

On this appeal Mr Keith Rowley QC, who did not appear below, appears for Mrs Cripps. Mr Paul Newman appears for Mr Dubery and Mr Nicolas Stallworthy appears for the trustees, as they did below. Mr Stallworthy very properly maintained a neutral stance as between Mrs Cripps and Mr Dubery, but he helpfully drew our attention to a few points on the question of construction.

Mr Rowley accepts and indeed relies on the fact that a male member of the Scheme who has accrued Barber window benefits by reference to pensionable service within the Barber window for which an NRD at age 60 applies will have a different NRD, viz at age 65, for benefits in respect of pensionable service prior to 17 May 1990 and similarly for benefits which accrue in respect of pensionable service continuing after the closing of the Barber window. Mr Rowley identifies three possibilities in respect of the application of s 73(3)(b) to such a situation:

Mr Rowley submitted that the normal meaning to be attributed to "where a person's entitlement to payment of pension or other benefit has arisen" is where a person is in receipt of the pension or other benefit. As he pointed out, that is supported by the distinction in s 67 of the 1995 Act, as originally enacted, between "accrued right" (as defined in s 124(2) of the Act) and "entitlement" and by authority on s 67. Thus Neuberger J, in Barclays Bank v Holmes [2000] PLR 339 at para 129, said that "when using the word 'entitlement' in section 67(2), the legislature had in mind a case where the right to payment had arisen, in other words, to take the normal case, it covers a pension in payment". In para 130 that judge contrasted "accrued right" as referring to future benefits. In Aon Trust Corporation v KPMG [2006] 1 WLR 97 at para 181 Jonathan Parker LJ applied the same distinction between "entitlement" and "accrued right", viz that "entitlement" refers to a pension already in payment whereas "accrued right" refers to a current right to a future payment. However, I do not read these authorities as doing more than give the typical examples of what is an entitlement and what is an accrued right.

Mr Rowley then said that if "entitlement" should be given a wider meaning, it should be limited to the case where the member satisfies the qualifications prescribed by the scheme's rules and has done all that is necessary to render himself eligible to receive the benefit. He submitted that s 73(3)(b) also included a case where the pension or other benefit had unconditionally fallen due for payment. He conceded that Mr Dubery, whose service was entirely within the Barber window, whose NRD was by reason of Barber and Coloroll at age 60 and who was over 60 when the winding up commenced was a person whose entitlement to pension or other benefit had arisen, even though the pension was not in payment. Although Mr Newman pointed out that that concession, which had not been made below, may have rendered Mr Dubery unsuitable to be a representative Defendant for all in whose interest it was to argue against possibilities (a) and (b) and for possibility (c), Mr Newman's careful arguments were sufficiently comprehensive to cover those who, for example, had service outside the Barber window and so were not entirely on all fours with Mr Dubery.

Mr Rowley suggested that the judge had construed s 73(3)(b) too widely in holding that it embraced not only pensions in payment but also where a person is entitled to call for immediate payment of pension. He submitted that a right to call for payment of a pension is not the same as an entitlement to receive it.

Mr Newman pointed out that elsewhere in the 1995 Act (see ss 52(1), 54(2) and 163(3)) the phrase "pension in payment" or materially indistinguishable phrases appear and could have been used in s 73(3)(b) if that is what was intended. Further, any requirement that the pension or other benefit be actually in payment could lead to gross injustice, for example where the payment of the benefit had been requested by the member but through mistake, oversight or other delay not the fault of or outside the control of the member the payment had not been made. It would also be surprising if Parliament intended to place in a lower priority liabilities owed to those who had attained their NRDs but had chosen to continue working than those who had already elected to take their pensions. I need not say more on this as what I take to be Mr Rowley's substantial case was demonstrated by his concession that Mr Dubery, although not in actual receipt of his pension, was a person with the requisite entitlement, in that he had become unconditionally entitled under European law to payment of his pension on reaching the NRD. Mr Newman submitted that the fact that a member who has reached the NRD can elect to receive his or her pension by retiring from service means that he or she is at all times entitled to the pension. He further submitted, in my view correctly, that the difference between Mr Rowley's position, accepting that an entitlement to pension included the situation where the member had the right to receive a pension, and Mr Newman's own position, supporting the judge that such entitlement included a right to call for payment in circumstances where the entitlement lay wholly in the hands of the member, was wafer thin.

Mr Newman was also able to obtain some support for his submissions from provisions of the Pensions Act 1993 ("the 1993 Act") which relate to the preservation of benefits for members leaving service early. Thereby such members become entitled to short service benefit in the form of a deferred pension. Ss 69-74 of the 1993 Act require schemes to ensure that such members are treated no less favourably than those members who retire at what is called Normal Pension Age ("NPA") and thereby become entitled to long service benefit in the form of an immediate pension. Short service benefit and long service benefit must be calculated and accrue on the same basis. To compare the accrual of the two types of benefit it must be possible to ascertain with certainty what the long service benefit will be, and it is therefore also necessary to say with certainty what the NPA will be. Part of the definition of the NPA includes (in s 180(l)(b) of the 1993 Act) "the earliest age at which the member is entitled to receive benefits on his retirement from such employment". As Mr Newman pointed out, if "entitled to receive" does not include an entitlement to call for payment of a pension not yet in payment, the preservation requirements would be unworkable as the NPA would depend on the future date when the member retired and so elected to receive the pension. If "entitled to receive benefits" in the 1993 Act includes a situation where the member can require the pension to be paid, so the similar phrase "entitlement to payment of pension or other benefit" in the 1995 Act, which amended the 1993 Act, should be construed similarly.

For these reasons I would reject Mr Rowley's submissions in favour of possibility (a). That conclusion renders it unnecessary to consider Mr Newman's further argument raised in a Respondent's Notice that even if Mr Rowley were right to contend that entitlement to payment of pension or other benefit referred to the pension or other benefit being in payment or unconditionally due for payment, by reason of Rules 12(A) and 40(A) members not then in receipt of pension or other benefit are to be treated as having retired or left service immediately before the winding up and so were entitled to payment. Nor is it necessary or appropriate to consider a further new argument of Mr Newman that as a matter of law the employment contracts of the employees of the Principal Employer terminated when it went into liquidation on 2 November 2001. That might require a factual inquiry not undertaken below and in any event is inconsistent with the way the matter has proceeded thus far, the employees having been treated as continuing in employment at least until the commencement of the winding up of the Scheme.

I come now to possibility (b). There is no doubt but that the effect of the Barber and Coloroll decisions has been to require that schemes must be administered on the footing that for pensionable service in the Barber window male members are entitled to treat their NRDs as being at the same age as for female members with the consequence that the Scheme must be construed as modified to that extent. The judge appears to have accepted the argument for Mr Dubery that because the Rules and the requirements of the Revenue do not allow part only of a pension to be taken, the member wishing to take his Barber window pension at the age of 60 must retire and accept the application of an early retirement factor to the remaining accruals if they have been based on an NRD at an age greater than 60, the requirement of the Rules that retirement before the NRD needs the consent of the employers being treated as satisfied as to refuse consent would be a breach of European law.

Mr Rowley submitted that the judge thereby erred. He had two routes to that conclusion, one being based on a construction of s 73 and the Rules and the other being based on European law.

I start with construction. Mr Rowley submitted that s 73 was not concerned with payment but with the order of priority in which the assets of a scheme in winding up should be applied. He pointed out that under s 73(3) members can have entitlements to different benefits with different priorities. Thus the liability for benefits derived from voluntary contributions comes highest in the order of priority while the liability for pension increases comes lowest. He argued that the key word in s 73(3)(f) was "entitlement" which pointed one to the Rules which governed a member's entitlement. While the Rules have to be treated as modified by Barber to the limited extent indicated by Coloroll, that modification, Mr Rowley said, had no effect on the Rules relating to benefits which accrued outside the Barber window. He accepted that under para 6.1 of the Revenue's Occupational Pension Scheme Practice Notes IR 12 (2001) on the Approval of Occupational Pension Schemes it was provided that pension entitlement for a member under a scheme must come into payment immediately upon the member leaving service at or after NRD or if remaining in service no later than the attainment of age 75. However, he submitted that the possibility of benefits accruing by reference to more than one NRD is simply not contemplated by IR 12 nor for that matter by the Rules. Just as the Rules must be treated as overridden by the need for the Scheme to comply with European law, so the Revenue's requirements must be treated as yielding to European law conferring a right on male members of the Scheme to receive their Barber window benefits at age 60, but without that right being construed as affecting the members' other benefits.

Mr Newman relied on the fact that neither the Rules nor the Revenue's requirements contemplated pension benefits being taken in tranches. He stressed that entitlement to payment of benefits was the key concept in s 73(3)(b) and said that to assess what benefits were payable to members at a particular point in time can only be done by reference to the Rules construed by reference to the relevant Revenue practice. He drew our attention to another decision of the ECJ, Moroni v Collo GmbH [1994] PLR 211 and in particular para 359 of the judgment, but he accepted that it did not determine the question now under consideration.

In my judgment Mr Rowley's submissions on possibility (b) are to be preferred. With all respect to the judge, he placed too much reliance on the fact that the Rules and the Revenue requirements only contemplated a single pension payable on retirement at or after the NRD. But the Rules and the Revenue requirements never contemplated the situation that has now arisen as a result of Barber and Coloroll with more than one NRD being required where there has been pensionable service both in and outside the Barber window and benefits have accrued by reference to different NRDs. I accept that the reference in s 73(3)(b) to "entitlement to payment" takes one to the Rules and that it is permissible to construe them having regard to Revenue requirements, but the Rules and Revenue requirements, both of which were drawn without reference to Barber and its complex consequences, must yield to European law and be modified accordingly. But I can see no good reason why the modification should extend beyond what is necessary to give effect to European law. The ECJ has made clear that Barber is not retrospective and accordingly the Rules continue to apply save to the extent of the necessary modifications. The Revenue's requirements must also now take account of the fact that different benefits can accrue to a member by reference to more than one NRD. The judge had rightly recognised in para 65 of his judgment that there can be an entitlement to pension earned in a particular period to which one NRD applies and an entitlement to pension earned in another period to which another NRD applies. S 73 itself recognises different tranches of pension to which different priorities apply. Accordingly, I would construe s 73(3)(b) as limited to pension and other benefits in payment or payment of which a member has a right to demand but as not extending to benefits accrued outside the Barber window when the member has not yet reached the NRD under the Rules.

I confess that I am the happier to reach this conclusion because of the potentially distorting effect on the statutory priorities in s 73 which would otherwise result if the judge were correct. Take a case where, as in the present case if the attempt to close the Barber window had succeeded, the window had been closed from 1 October 1991. On the judge's decision a male member who had attained 60 at the commencement of the winding up and who had 40 years' pensionable service with benefits accruing both before 17 May 1990 and after 1 October 1991 would have not only his 17 months' Barber window benefits but also other benefits in respect of as much as 38 years 7 months' service prioritised. That would be an extraordinary result. If the judge's decision were correct, Mrs Cripps and those like her would have received nothing by way of pension benefit.

My conclusion in favour of (b) renders it unnecessary for me to consider Mr Rowley's alternative European law route to the same result

For these reasons I would allow the appeal on the s 73 issue and substitute for the judge's declaration a declaration that members of the Scheme who had the right to retire at age 60 in respect of any part of their service and who were aged between 60 and 64 at the date that the Scheme commenced winding up fell within s73(3)(b) but not in respect of pension or other benefits accrued by service to which an NRD at age 65 applied.

I agree.

I also agree.