Granada Group Ltd v The Law Debenture Pension Trust Corporation Plc

This appeal concerns the legality of pension arrangements for former directors of Granada Group Ltd (“Granada”). Andrews J held a trial on liability only, at the conclusion of which she decided that the arrangements were lawful. Her judgment is at [2015] EWHC 1499 (Ch), [2015] Bus LR 1119. With the permission of Arden LJ Granada appeals. The trial on liability was conducted without any witness evidence; so I take the relevant facts from the judge’s lucid summary.

At all material times, Granada had an occupational pension scheme for all its employees, ("the Granada Pension Scheme") which was approved by HMRC so as to qualify for tax relief on contributions, investments and benefits. However, the Finance Act 1989 introduced an earnings cap limiting the total amount of pensionable earnings which could be taken into account in calculating the benefits payable to members joining such schemes after 1 June 1989. After those changes were introduced, Granada, in common with many other companies whose senior executives earned salaries in excess of the cap, resolved to continue to provide new senior employees and directors with pensions based upon their full salary, so that they would not be disadvantaged in comparison with colleagues who had joined the Granada Pension Scheme before 1 June 1989.

In order to do so, it was necessary for Granada, as employer, to enter into "top up" arrangements to provide the benefits, which would operate outside the regime of HMRC approval. Such arrangements could be provided on a funded or an unfunded basis; Granada chose to go down the unfunded route. This involved Granada contracting with the director in question to "top up" the relevant member's benefits from the approved Granada Pension Scheme, but without making contributions into a trust fund which would accumulate and provide the source of those additional payments in due course. Therefore, Granada would have to find the money from its own resources when the time came. The agreement to this effect was contained in a contract made between Granada and each individual director. The sample which we were shown is dated 6 August 1992.

Although that type of arrangement had certain fiscal advantages and was simple to establish and run, the obvious disadvantage for the members was that the employer's promise was unsecured. While that remained the case, those who stood to benefit from the contractual promise had no protection against the employer running into severe financial difficulty and being unable to afford to pay the additional sums. As a result, employers often provided security for the payment of the promised benefits.

On 11 May 2000, Granada's non-executive directors resolved that security should be granted in support of the "top up" contractual arrangements that had already been made by Granada in favour of its executive directors ("the directors"). There has been no suggestion that in passing that resolution the non-executive directors acted otherwise than in accordance with their duties to act bona fide in the best interests of the company. On 23 May, an actuarial report was obtained which valued the prospective or contingent benefits payable to the directors under the existing contractual arrangements collectively at £18,850,000.

The Scheme was established and is governed by the following documents, which are all dated 23 August 2000:

The Special Terms referred to the agreement of 6 August 1992 and said that Granada’s obligations under that agreement would be deemed to be revoked immediately before the director in question was admitted to the new scheme. They also said that under the Scheme the director would have all the benefits under the old scheme as if they were set out in full. The Trust Deed was made between Granada and The Law Debenture Pension Trust Company plc, described in the Deed as “the Trustee”. Recital (C) recited that “The Trustee has agreed to be the first trustee of the Scheme”. Clause 1.1 provided that the Scheme was governed by the Deed and the Rules. By Clause 2.1 Granada appointed the Trustee as first trustee of the Scheme and the Trustee accepted the appointment and undertook “to manage and administer the Scheme in accordance with ... the … Deed and the Rules.” By Clause 2.2 of the Deed Granada undertook with the Trustee “(such undertaking to be held on trust)” to pay the benefits to members in accordance with the Rules of the Scheme. Clause 3.1 of the Deed gave the Trustee power to require Granada to provide security in accordance with Rule 6. Clause 5 of the Deed contained indemnities in the Trustee’s favour. Clause 8 of the Deed provided for what would happen if the scheme terminated (in effect because Granada had become unable or unwilling to pay the benefits for which the scheme provided). In that event the Trustee was required to realise the security and, after payment of certain costs, provide the requisite benefits to members.

Under the Rules Granada was defined as the “Employer”. The definitions also defined an “Event of Default”. The precise details do not matter; but in essence each event of default described Granada’s inability or unwillingness to comply with the Scheme. Rule 4.1 defined the benefits payable to members by reference to the Special Terms; and rule 5.1 provided that those benefits were to be paid out of Granada’s own resources. Rule 6.1 required each Employer to provide security over assets acceptable to the Trustee for the payment of all amounts due or contingently payable under the Scheme. The benefits payable under the Deed and the Rules were defined in the Special Terms.

The Charge Deed was the security required by rule 6.1. It secured the amounts payable by Granada under the Scheme, and by clause 2 of the Charge Deed Granada covenanted with the Trustee that it would pay the amounts secured in accordance with the Scheme. Clause 6.2 of the Charge Deed required the value of the assets subject to the charge to be no less than 110% of the aggregate present value of the benefit prospectively or contingently payable under the Scheme in respect of each Member. The assets over which the charge was granted consisted of gilts. Clause 7 made provision for service of a notice on the happening of an Event of Default. It was the giving of such a notice that triggered the Trustee’s power to dispose of or appropriate the securities.

The Scheme was administered in accordance with these documents for 13 years. From time to time, as actuarial values changed, Granada provided additional security as required by the Charge Deed. In 2013, however, Granada alleged that the charge was liable to be set aside because it contravened section 320 of the Companies Act 1985 (whose successor is now to be found in section 190 of the Companies Act 2006). The gilts to which the charge now applies are worth over £40 million.

Section 320 of the 1985 Act provided, so far as material:

“(1)

With the exceptions provided by the section next following, a company shall not enter into an arrangement –

(a)

whereby a director of the company… or a person connected with such a director, acquires or is to acquire one or more non-cash assets of the requisite value from the company…

unless the arrangement is first approved by a resolution of the company in general meeting.

(2)

For this purpose a non-cash asset is of the requisite value if at the time the arrangement in question is entered into its value … exceeds £100,000.”

The expression “connected person” was defined by section 346. Section 346 (2) provided that:

“A person is connected with a director of a company if, but only if, he … is:

(c)

a person acting in his capacity as trustee of any trust the beneficiaries of which include

(i)

the director, his spouse or civil partner or any children or step-children of his…”

Section 346 (3) (b) provided that sub-section (2) (c) did not apply “to a person acting in his capacity as trustee under an employees' share scheme or a pension scheme”.

A “non-cash asset” was defined by section 739 of the 1985 Act:

“(1)

In this Act "non-cash asset" means any property or interest in property other than cash; and for this purpose "cash" includes foreign currency.

(2)

A reference to the transfer or acquisition of a non-cash asset includes the creation or extinction of an estate or interest in, or a right over, any property and also the discharge of any person's liability, other than a liability for a liquidated sum.”

The liabilities for a contravention of section 320 were set out in section 322. First, the transaction was voidable at the instance of the company unless certain conditions are satisfied: section 322 (1). Second, the director was liable to account to the company for any gain which he had made directly or indirectly by the arrangement: section 322 (3) (a). Third, the director was liable to indemnify the company for any loss or damage resulting from the arrangement: section 322 (2) (b).

The judge held that the directors did not acquire any property or interest in property in the gilts themselves. All that they had was a right to compel the Trustee to administer the trust; and that was no more than a personal right against the Trustee. That right had no effect on Granada’s ability to use and enjoy its assets. Any right of that kind was a right held by the Trustee; not by the directors. So far as the directors were concerned, any benefits to which they were entitled under the Scheme were cash benefits, paid either from Granada’s own resources or from the proceeds of realisation by the Trustee of the assets secured by the charge.

The judge went on to hold that the right of the directors to compel the Trustee to enforce the trust was dependent on a number of contingencies, and therefore could not be reliably valued. She was not satisfied, therefore, that it surpassed the statutory minima. Moreover she held that the expert instructed on behalf of Granada had not valued the right asset, which was only the directors’ residual right to compel the Trustee to execute the trust if the Trustee failed to do so.

She further held that the Trustee was acting as the trustee of a pension scheme; and hence the “connected person” provisions did not apply to it.

Finally she held that under the terms of the trust deed the Trustee was entitled to be indemnified by Granada against the cost of the proceedings.

Granada argues that the “arrangement” in play for the purposes of section 320 consists of (a) the Charge Deed (b) rule 6 of the Rules and (c) the actual security interest over the gilts that was created when the arrangement was entered into. It goes on to argue that under the arrangement the directors acquired a “non-cash asset” because of their status as beneficiaries under the trust of Granada’s covenant to pay the benefits and to provide security and their entitlement to compel the Trustee to enforce those covenants. Although the directors do not have a legal or equitable proprietary interest in the gilts or the charge, the word “interest” in section 320 is broad enough to encompass any economic or financial interest or advantage. The charging of the gilts by Granada was intended to confer an advantage on the directors; and that is enough to constitute an interest.

In addition the judge was wrong to hold that the directors’ rights against the Trustee were not “a right over” the gilts. Exercise of those rights means that the directors can compel the Trustee to enforce Granada’s covenants, and that is capable of materially affecting Granada’s use and enjoyment of the gilts.

Mr Moeran QC, for Granada, stressed the purpose of section 320, which was to give a right of scrutiny to members of a company where the directors had an actual or potential conflict of interest; and hence might be tempted to depart from their general fiduciary duty to act in the best interests of the company. I have no difficulty in accepting that this was the general purpose of section 320. In British Racing Drivers Club Ltd v Hextall Erskine & Co [1996] BCC 727 Carnwath J said at 741:

“The thinking behind that section is that, if directors enter into a substantial commercial transaction with one of their number, there is a danger that their judgment may be distorted by conflicts of interest and loyalties, even in cases where there is no actual dishonesty. The section is designed to protect a company against such distortions. It enables members to provide a check. Of course, this does not necessarily mean that the members will exercise a better commercial judgment; but it does make it likely that the matter will be more widely ventilated, and a more objective decision reached.”

Section 320 was one of a number of different provisions targeted at ensuring fair dealing by directors. Other examples were payments to directors for loss of office (section 312); transfer of property to directors in connection with loss of office or retirement (section 313) and duties to disclose interests in contracts (section 317). Each section described its target in a different way.

We were referred to two cases in which the scope of section 320 has been considered. In Micro Leisure Ltd v County Properties & Developments Ltd 1999 SC 501 Lord Hamilton, sitting in the Outer House, considered the ambit of section 320. One of the matters in issue was an agreement for a share in profit realised by the development of land. Lord Hamilton said at 509:

“Section 739(2), however, is clearly designed to extend the concept of acquisition to certain situations in which what is acquired is created contemporaneously with its acquisition. It does not extend to all assets so created. It applies only when what is created is ‘an estate or interest in, or a right over, any property’. That formulation imports, in my view, that, prior to the creation of the relative asset, there has existed other property and that the created asset constitutes an estate or interest in that other property or a right over it. The purpose of the extension effected by sec 739(2) is, in my view, to bring within the purview of sec 320 …the creation (and extinction) of subsidiary estates, interests and rights of substantial value.”

He went on to give examples of the kind of interests or rights which would fall within its scope. It is necessary for an English lawyer to approach these examples with some care, because their classification in Scots law is not always the same as their classification in English law. There is no difficulty with his first four examples which, translated into English legal terminology, are: a freehold sale, the grant of a long lease, the grant of an easement and the grant of a charge by way of mortgage. He continued:

“However, the reference in sec 739(2) to ‘a right over any property’ cannot, in my view, be construed as confined to a subsidiary right in the sense of a subsidiary real right. If it were so construed, the manifest purpose of the statutory provision would in Scotland be defeated. For example, a licence to use property (heritable or moveable) or an option to acquire it would not, on that narrow construction, be within the scope of the provision. Such rights under Scots law are personal only and, unless fortified by some form of security, would not confer preferential treatment in any insolvency. If the creation of an option to acquire property on favourable terms is within the scope of sec 739(2), it is difficult to see why the benefit of a bilateral contract to acquire it on such terms should not equally be within its scope. Likewise, the creation of a beneficiary's interest under a bare trust would appear apt in this context for inclusion as a ‘right over property’. That the ambit of sec 739(2) is not intended to be narrow is also clear from the inclusion within it of the discharge of any person's liability, other than a liability for a liquidated sum. In these circumstances I have come to the view that, in applying a purposive construction to the statutory provisions, it is appropriate to recognise that sec 739(2) extends beyond subsidiary real rights to subsidiary rights which, albeit personal, are capable of materially affecting the exercise by the other party of its proprietorial rights.”

In English law some of the rights described in that passage would give rise to proprietary rights. An option to purchase land creates an equitable interest in the land, as does a specifically enforceable bilateral contract for the purchase of land, even if the completion date has not arrived. A bare trust also creates an equitable interest in the property subject to the trust. Nevertheless I do not disagree with Lord Hamilton’s conclusion that section 739 (2) extends to rights that are not proprietary rights, provided that they can still be properly described as rights in or over property.

In Ultraframe Ltd v Fielding [2005] EWHC 1638 (Ch) between [1362] and [1394] I considered the application of section 320 to various kinds of asset. (The judgment is partially reported on this point in [2006] FSR 17, and for those with stamina and nothing better to do for a few days, the whole of the gargantuan judgment is reported at [2007] WTLR 835). Neither side on this appeal argued that I was wrong. One of the assets that I considered was an exclusive licence of design rights (which rights are declared by the Act that created them to be “a property right”). A long line of authority, binding on me, decided that a licence of intellectual property rights, even an exclusive licence, did not create a proprietary right. Although I did not explicitly decide the point, it is fair to say, as Mr Newman QC for the Trustee submitted, that implicitly I must have thought that a licence not creating a proprietary right was not “property or an interest in property” within the meaning of section 739 (1). I continued at [1387]:

“Accepting that a licence, even an exclusive licence, is not itself property or an interest in property, an asset can still qualify for the purposes of section 320 if it is the creation of “a right over property”. There is no doubt that intellectual property rights themselves are property, because the statutes that create them say that they are. The statutory definition of an exclusive licence (which I have quoted) defines it as authorising the licensee “to exercise a right” which would otherwise be exercisable by the design right owner. Why is this not a right over property? In my judgment it is. Since the same (or almost the same) economic effects can be created by the grant of an exclusive licence as can be created by an assignment, the policy of section 320 would be subverted if its restrictions could be evaded by different formalities giving effect to the same economic reality. Accordingly, I conclude that an exclusive licence to exploit design right is a “non-cash asset” for the purposes of section 320.”

My reasoning process was that even though the licence itself did not create an independent proprietary interest, it nevertheless created a “right over” property (viz. the design right) not least because the statute provided expressly that on the grant of an exclusive licence the licensee was entitled to exercise a right that would otherwise be exercisable by the owner. My reference to the policy underlying section 320 was certainly not a statement that any economic interest in property would itself count as a right over property. On the other hand, it is right to say that I did not hold that any such right must itself be a proprietary right.

The breadth of Mr Moeran’s interpretation can be illustrated by an example, slightly adapted from one discussed in argument. Suppose that a company owns a parcel of land ripe for development close to a director’s home. The company sells the land with planning permission to an unconnected developer who develops the land, as a result of which the value of the director’s home foreseeably increases. Mr Moeran argues that in such a case the director has an interest in the development site, because the development was to his personal financial advantage. The consequence, if Mr Moeran is right, is that the director would have to account to the company for the increase in value of his home.

In support of his interpretation Mr Moeran relied on observations of Lord Reid in Gartside v IRC [1968] AC 553. The issue in that case was whether one of a class of beneficiaries under a discretionary trust had an “interest in possession” in the trust fund. The House of Lords unanimously held that they did not: they did not even have interests in the fund. Part of Lord Reid’s speech was quoted by Taylor J in R v Dudley Crown Court, ex parte Pask and Moore (1983) 147 JP 417. A slightly fuller quotation of the relevant part at 602 is:

“The word "interest," as an ordinary word of the English language, is capable of having many meanings, and it is equally clear that in these provisions its meaning cannot be limited by any technicality of English law. Not only do these provisions also apply to Scotland, but they may have to be applied where duty is claimed in respect of interest under deeds which have to be construed under the laws of other countries.

But that does not mean that everything which the man in the street might call an interest is covered by the word "interest" in these sections. A man might say that a son and heir has an interest in his father's property to which he might reasonably expect to succeed. But one can discard that meaning: the son not only has no right in or over his father's property but he has no right to prevent his father from dissipating it. The respondents admit that, to be an interest under these provisions, it must give to the holder of it some right.”

Lord Reid went on to say:

“A person, who has a contingent right to some benefit from a trust fund in some future event, has a present right to prevent the trustees from dissipating the fund. But that right is not an interest in possession separate from and in addition to his contingent interest.”

He referred to the decision of the House of Lords in Coutts & Co v IRC [1953] AC 267. In that case beneficiaries had a right to require trustees to make payments of the premiums necessary to keep up a life insurance policy on a particular individual. When that individual died, the insurance monies became payable, and of course the obligation to pay the premiums ceased. The House of Lords held that the right to compel the trustees to keep up the payment of the premium was not an “interest” in the policy monies: it was merely a means to an end. Lord Reid went on to say at 603:

“There is nowhere any definition of the word "interest": one must infer its meaning from the context.”

I agree with Mr Newman that Granada’s argument focusses too narrowly on the single word “interest”, without regard to the context in which it appears. It first appears in section 739 (1) as part of the phrase “property or an interest in property”. In that context it seems to me that an “interest in property” means a proprietary interest. That is why section 739 (2) is needed in order to expand the primary definition. If “interest in property” has a meaning as broad as Granada asserts, it is difficult to see why section 739 (2) is necessary. Its second appearance is in the phrase “estate or interest in … property.” One would expect the same phrase to have the same meaning in both sub-sections of the same section of an Act of Parliament. As Mr Moeran accepted an “estate” in property means a legal or equitable estate in real property. In my judgment an “interest” in property has the same quality; in particular the quality that it can be defined by reference to proprietary concepts, or at least by concepts that are legally recognisable and enforceable. The reason why the phrase “interest in property” is repeated in section 739 (2) is that that sub-section extends to the creation or extinction of such an interest. Section 739 (2) goes on to include “rights over” property. Mr Moeran rightly accepted that this meant legally enforceable rights. But if “rights over” property means legally enforceable rights, that is a strong pointer to the conclusion that in the same definition an “interest in” property also means one that can be legally enforced. This is consistent with Lord Reid’s statement in Gartside that an “interest” must be a right. In short, Mr Moeran’s interpretation makes section 739 (2) (and indeed part of section 739 (1)) redundant.

Mr Moeran’s construction is also contradicted by Lord Hamilton’s decision in Micro Leisure that an agreement to share profits from the development of land does not amount to an interest in or right over the land itself. Mr Moeran submitted that Lord Hamilton was wrong on that point; but I do not think that he was. His reasoning is, in my judgment, consistent with that of Lord Reid in Gartside in his example of the son and his father.

Mr Moeran argued that unless the phrase “interest in property” is given the wide meaning for which he contends, it would be all too easy to evade the restrictions in section 320. If the directors themselves had been granted the charge, then they would undoubtedly have acquired an interest in property, namely the charge. It should make no difference that a third party had been interposed. I do not agree. The purpose of the extension of section 320 to persons “connected with” a director is precisely to cover that situation. Again, if Mr Moeran’s interpretation were correct, the provisions about connected persons would be redundant. Parliament has chosen a specific class of person who falls within the definition of “connected person”, and that must be taken to be the limit of relevant third parties, particularly since the definition of a connected person emphasises that a person is connected with a director “if but only if” that person falls within the class.

A further objection to Mr Moeran’s interpretation is that section 320 was intended (at least in part) to operate prophylactically, so that a company would know in advance what kind of arrangement or transaction needed to be sanctioned in advance by the members in general meeting. A concept as vague as any economic or financial advantage would not, in my judgment, provide a sufficient guide.

Mr Moeran accepted that the members of the scheme were not beneficiaries under a bare trust (not least because benefits under the scheme were contingently payable to spouses and dependents). He accepted that, if he was wrong about the meaning of “interest in property,” the directors had no beneficial proprietary interest in either the gilts, or the charge securing the gilts. His fall-back position was that the directors had “rights over” the gilts or the charge in the shape of their ability, through the intervention of equity, to compel the Trustee to fulfil its fiduciary obligation to administer the trust. Because they had the right to compel the Trustee to perform the trusts, they had the right to affect both the exercise of the remedies conferred by the charge as well as Granada’s right to deal with the gilts (which remained its property). It was not necessary for any such right to be a direct right to affect the use of the property in question. It was sufficient for the right to be an indirect right, such as a right to compel someone else to exercise a direct right over property. Moreover, the fact that the indirect right is exercisable only in limited circumstances makes no difference.

The first difficulty with this argument is that if it were correct, then once again it would make the extension of section 320 to a trustee for a director redundant. In any such case the director would have the right to compel the trustee to perform the trusts and would, on Mr Moeran’s interpretation, have a relevant right for the purposes of section 320. The second objection to this argument is that it is clear from section 346 (3) (b) that Parliament intended that a pension trustee should be outside the scope of section 320. Mr Moeran’s interpretation would frustrate that legislative intention. The third objection is that a beneficiary’s right to compel a trustee to perform the trusts is not to be regarded as a right separate from whatever interest the beneficiary has in the underlying trust property, as Lord Reid explained in Gartside.

Fourth, as the judge said at [44]:

“Those are personal rights against the trustee, not rights over the assets of the trust, which only arise when the trust is created, and (whether or not they are susceptible of valuation), in my judgment they do not fall within the meaning of the expression 'rights over any property'.”

I agree. I also agree with Mr Newman that the way in which Parliament has brought indirect rights within the ambit of section 320 is by extending the section to encompass the acquisition of rights by persons falling within the defined class of “connected person”.

Lastly, as the judge pointed out the right of a beneficiary to compel a trustee to perform the trusts is a right which he has by virtue of his status as a beneficiary under a trust. In my judgment that is not a right which the beneficiary acquired “from the company”. It is a right which he acquired from his admission as a member of the scheme.

Accordingly, in agreement with the judge, I conclude that the directors did not acquire a non-cash asset from the company.

Granada’s written argument in support of the appeal asserted at many points that the directors had the benefit of Granada’s contractual promise to pay them the benefits. However, at the hearing Mr Moeran (who was not the author of the written argument) rightly accepted that there was no contract between Granada and the directors. The old 1992 contract had gone. The only undertaking to pay the benefits was the undertaking given by Granada to the Trustee. Although the Trustee held that undertaking on trust, the directors had no right of recourse against Granada if it failed to pay. Their only rights were via the Trustee which was managing and administering the Scheme.

Unless the Trustee was acting in its capacity as trustee under a pension scheme, it was a person “connected with” the directors. If it was connected with the directors, then the charge would count as a relevant non-cash asset. So the question under this head is: was the Trustee acting in its capacity as trustee under a pension scheme?

The 1985 Act contains no definition of “pension scheme”. Granada argues that the Trustee was no more than a security agent for the directors, whose pensions were to be paid by Granada itself rather than by the Trustee. I do not accept this argument. Clause 1 of the deed establishing the pension scheme expressly appointed the Trustee as first trustee of the scheme, and the Trustee accepted that appointment. Clause 2 contained the Trustee’s undertaking to “manage and administer” the scheme. The only obligation to pay was that given by Granada to the Trustee. Rule 6.1 of the scheme itself required Granada to give security to the Trustee. The only capacity in which the Trustee could have been entitled to require and hold that security was as trustee of the scheme. I do not think it matters that the primary obligation to pay the pensions was that of Granada, particularly when it is borne in mind that the purpose of the charge was to provide a fund out of which the Trustee would be able to pay them in the event that Granada could not or would not do so. This is a very short point which is incapable of elaboration.

The judge reached the same conclusion at [86] to [89]. I agree both with her conclusion and her reasoning.

It was common ground that if Granada’s appeal failed on these points, the Trustee was entitled to an indemnity against its costs. Although other issues were canvassed at the hearing, they do not arise in view of my conclusions thus far. I would prefer to leave them to a case in which they matter. As Mummery LJ said in Housden v Conservators of Wimbledon and Putney Commons [2008] EWCA Civ 200, [2008] 1 WLR 1172 at [31]:

“In general, it is unwise to deliver judgments on points that do not have to be decided. There is no point in cluttering up the law reports with obiter dicta, which could, in some cases, embarrass a court having to decide the issue later on.”

I would dismiss the appeal.

I agree.

I also agree.