Steria Ltd & Ors v Hutchison & Ors

This is an appeal pursuant to Section 151 (4) of the Pension Schemes Act 1993 from a determination of the Pensions Ombudsman (“the Ombudsman”) dated 21^st July 2005 (“the Determination”). By the Determination the Ombudsman upheld a complaint by the First Respondent (“Mr Hutchison”) alleging maladministration by the Trustees and participating Employers in what is known now as the Steria Management Plan (formerly the Information Systems Management Plan) (“the Scheme”).

Mr Hutchison’s complaint raised a number of matters. Only one was upheld by the Ombudsman and is the subject of the appeal: whether his normal retirement date “NRD” under the Scheme is to be treated as at age 62. The Ombudsman held that as a result of certain representations said to be made by the then Trustees and the Principle Employer of the Scheme Mr Hutchison’s NRD was to be treated at age 62 notwithstanding that on the governing provisions of the Scheme his NRD was 65. In addition the Ombudsman directed that the Trustees of the Scheme should pay Mr Hutchison £250 for the inconvenience suffered by him in having to take his case to the Ombudsman.

The Appellants contend the Ombudsman’s decision on both matters was wrong as a matter of law and should be set aside.

The parties to the appeal are not the same as the parties to the Ombudsman’s investigation which led to the Determination. This arises because in the two year gap between Mr Hutchison lodging his complaint with the Ombudsman and the Determination there were several changes in the Scheme personnel.

The original Respondents were the Third Respondent (“Bull”) which was the Principal Employer of the Scheme at the time Mr Hutchison became a member thereof; the Second Respondent which was then a Trustee of the Scheme; the Second Appellant (then known as Bull Pensions Trustees Limited) was then a Trustee of the Scheme and the First Appellant (“Steria”) became the Principal Employer of the Scheme in June 2003.

The Second Respondent and the Second Appellant were replaced as Trustees by the Third Appellant.

The Ombudsman was served with the Appellant’s notice in accordance with CPR 52 PD 17.5 but has not appeared.

There is no appeal against the Determination by Bull the original employer.

Mr Hutchison commenced employment with Bull on 7^th October 1974 and joined a final salary pension scheme known as the Information Systems Retirement Plan (“ISRP”). Upon his promotion to a particular management position within Bull he was given the opportunity to transfer his accrued benefits too and become a member in respect of future services of the Scheme. The benefits provided in the Scheme were superior to those provided under the ISRP and provided in particular a better rate of accrual which was applied to all service transferred into or accrued as a member of the Scheme. Bull was the Principal Employer of both the ISRP and the Scheme.

Following his promotion Mr Hutchison received a letter from the Pensions and Benefits Manager of Bull dated 13^th September 1994 (“the 1994 letter”) enclosing a copy of the Scheme explanatory booklet dated 6.91 (“the booklet”).

The 1994 letter provided (inter alia) as follows:-

“As a result of the Company’s decision that certain line management positions will be eligible for a higher level of retirement and related benefits, I am pleased to be able to invite you to become a member of [the Scheme]. Membership of this plan is in place of your current membership of [the ISRP] and if you accept this invitation your accrued pensionable service in the one plan must be transferred to the other. An explanatory booklet describing [the Scheme] is enclosed.

[the Scheme] is similar in nearly all respects to [the ISRP], except in the following areas:-

1

You will qualify for a pension that is two-thirds of your final pensionable salary after 36 years of pensionable service instead of after 40 years. Each year of pensionable service will earn you a pension of 1/54^th of your final pensionable salary instead of 1/60^th.

2

Provided you have 20 years pensionable service, you may retire early from age 62 years without actuarial reduction in your pension due to it coming into payment earlier than normal”.

The letter was signed by “RJ Taylor, Manager, Pensions & Benefits” (a department of Bull). Mr Hutchison received no communication directly from the Trustees. Mr Newman in the course of his submissions explained to me that this Scheme like all large well run Schemes out sourced large parts of their administration. In practice this meant that the Pensions department of the Principal Employer carried out a lot of administrative matters including in effect the distribution of information as regards the Scheme.

The introduction (signed by Brian Long, Bull’s chairman who was also chairman of the Second Appellant Trustee), states that its purpose is to give “clear and concise information about Bull’s Management Plan Group Life Assurance Scheme” (i.e. the Scheme).

The Appellants contend that the Ombudsman’s Determination that the 1994 letter and the booklet were Trustee documents was incorrect. Significantly Bull in its submissions to the Ombudsman (letter 11.02.05) contended that both documents were Employer and Trustee documents following the common practice as acknowledged by Mr Newman in his submissions before me.

In the booklet the NRD is stated to be 65 (page 2). On page 7 the provisions as to early retirement are set out:-

“You can retire early with the consent of the Company at any time from age 50.

In this case the pension is calculated as shown above depending on the level of your final pensionable salary at, and pensionable service to, the date of early retirement. Your pension is then reduced because it is paid early and therefore for longer; the reduction factor is currently 4% of your pension for each year by which you retire early.

Members who have completed 20 years’ service or more may retire early from age 62 onwards without the application of the reduction factor referred to above”.

Finally on the last page of the booklet (which Mr Newman suggested would be the item that Mr Hutchison would last recall when he read the booklet) is the following:-

“You will be provided with a statement of your own benefits due under the Plan in an annual benefit statement.

You have the right to inspect the legal Trust Deed and Rules governing the Plan on application to the Pensions Department. It is the legal documents which prevail over this booklet on any question of interpretation.

The Trustee will issue you with information about the finances of the Plan in an annual report. Further information may be obtained from:…”.

In successive years booklets were issued in a similar form save the deferred Pension provisions are slightly different.

Mr Hutchison received a personal statement of benefits on 1^st April 2001 and a further one in late 2001 when he was involved in divorce proceedings. Both of these provided that his NRD was 65 years. I do not regard that as significant. The issue is not as to whether the NRD has been changed in my view but whether or not Mr Hutchison could take early retirement at 62 as of right without any deduction in the pension he would have obtained had he retired at 65 provided he has at least 20 years pensionable service. That latter point was never in doubt as he had virtually achieved it when he joined the Scheme in 1994.

On 9^th July 2002 Mr Hutchison received a letter from Steria setting out alternative benefits in respect of his membership of the Scheme. Option 1 gave him “a pension deferred until age 62 or by your election payable at any earlier date from age 50 onwards at a lower rate provided that you are not at the time an employee of Bull. Details of the deferred pension are given on the attached information sheet”.

The estimated deferred pension was once again calculated at a retirement date of 62 or at an earlier date up to 50 at a reduced rate. The document was stated to be issued by “Steria Pensions Department on behalf of the Trustees of [the Scheme]”.

Paradoxically Mr Hutchison then received a letter from Bull dated 11^th July 2002 which amongst other things in appendix B provided that early retirement could be requested before age 65 but with a reduced rate.

On 29^th November 2002 the Pensions Officer of Steria wrote to Mr Hutchison again but this time stated that the NRD was 65 for the purposes of an unreduced rate rather than 62. Mr Hutchison queried this with Bull and took the matter to the Scheme’s internal dispute resolution procedure and ultimately the Ombudsman.

Mr Hutchison raised a number of matters but the only one upheld was that his NRD was at 62 without actuarial reduction.

After setting out the facts as summarised briefly by me above the Ombudsman set out his conclusions in paragraphs 21 – 30 as follows:-

“21 A number of clear and unambiguous representations were made to Mr Hutchison indicating that (on the completion of 20 years’ pensionable service) his NRD would be at age 62. These representations were contained in the 1994 letter, the Booklet (and subsequent Scheme booklets) as well as a letter dated 9 July 2002 from Steria to Mr Hutchison. I am satisfied that Mr Hutchison was entitled to conclude from the 1994 letter and Booklet that on completing 20 years of pensionable service, his NRD would be at age 62. Mr Hutchison’s understanding continued until it was thrown into doubt by a letter from ‘Steria dated 29 November 2002.

22 Reliance upon statements contained in explanatory booklets in respect of pension schemes must always be scrutinised carefully. Such booklets give only précis of benefits available and cannot be relied upon as supplying the member with the complete picture of their entitlements. The Booklet correctly stated that the Scheme Rules prevailed on any question of interpretation. The passage relied upon by Mr Hutchison (on page 7 of the Booklet) clearly indicated by the use of the expression “may retire” that such a possibility was at the option of the member. The Booklet would lead a reasonable reader to believe that on completing 20 years of pensionable service, he or she would have the right to retire at age 62 on an unreduced pension. I note the submission that the heading to the section in the booklet on early retirement indicated the need for the Employer’s consent. As has also been submitted to me by the Trustees the booklet and the letter came to Mr Hutchison as a package. The letter clearly indicated that the Employer would consent to such early retirement.

23Importantly, it is not just the Booklet upon which Mr Hutchison relies. The 1994 letter was individually addressed to Mr Hutchison and clearly stated, in accordance with the Booklet, that if Mr Hutchison had 20 years pensionable service he “may retire early from age 62 without actuarial reduction”. That the benefits stated were not just part of a general description of the Scheme as it applied to various sorts of members, is indicated by the liberal way in which Mr Hutchison addressed in the second person throughout the 1994 Letter. The combination of the Booklet and the 1994 Letter would be such that Mr Hutchison could reasonably assume that were he to complete 20 years pensionable service, his NRD would be at age 62.

24 The fact that Mr Hutchison was sent a benefit statement dated 1 April 2001 which, amongst the figures provided, indirectly indicated that it was based upon an NRD at age 65 does not change the position. The statement could not undo retrospectively the effect of the 1994 Letter and Booklet. Furthermore, the circumstances in which the benefit statement referred to Mr Hutchison’s NRD, were such that any change to his NRD cannot fairly be said to have brought to his attention.

25 I am also satisfied that Mr Hutchhinson relied upon the representations made to him as to his benefits under the Scheme. Such reliance is shown by Mr Hutchison’s decision to join the Scheme and his continuation in Bull’s employment (and membership of the Scheme) over the following years, though I recognise that there will have been other factors which also played their part in his decision to remain in such employment.

26 I am not convinced by the evidence before me that it was well known that Mr Hutchison wanted to retire at age 55.

27 Nor do I conclude that Mr Hutchison relied upon his NRD being at age 62 in the settlement of his divorce in 2001. I say this for reasons. First, Mr Hutchison has not produced sufficient details of the settlement reached to show how he relied upon his NRD being at age 62. Second, the valuations which were supplied and presumably relied upon by Mr Hutchison were in fact based upon an NRD of 65 and not 62. However, in view of my decision that Mr Hutchison has shown sufficient reliance by his continued employment with Bull and membership of the Scheme, neither of these other factors is of great importance.

28 In these circumstances, it would be unjust to permit Bull or the Trustees to go back on the representations that were made to Mr Hutchison and deny that his NRD should be at age 62. Any mistake as to what Mr Hutchison’s NRD should have been under the Scheme has been caused solely by Bull and/or the Trustees. It would not now be fair to take away the benefits that Mr Hutchison reasonably believed he was accruing as he continued to work for Bull over the past decade.

29 Accordingly, I consider that Mr Hutchison’s NRD under the Scheme is correctly considered as being at age 62 (in view of his completion of over 20 years’ pensionable service).

30 It has been submitted by the Trustees (and also by Steria) that the funding of the increased benefit Mr Hutchison will receive (if his NRD is taken as at age 62) should be borne by Bull. While the 1994 Letter was produced by Bull, it accompanied and reiterated points made in the Booklet which was essentially a Trustee document. The representations upon which Mr Hutchison was entitled to rely (and upon which I have found he did rely) were contained in both the 1994 Letter and the Booklet. Therefore, I consider that not only Bull but also the Trustees should be prevented from going back upon the representations made to Mr Hutchison in the 1994 Letter and the Booklet. In this regard, Mr Hutchison’s entitlement to be considered as having an NRD at age 62 should be treated as a benefit under the Scheme.

How the Trustees are able to fund the benefits under the Scheme is a matter for them, acting in accordance with the Scheme Rules and relevant legislation. Whether the Trustees (or probably more likely, Steria) will have recourse to a contribution from Bull is a matter between them, depending upon the terms of the commercial agreement reached between Bull and Steria, under which Steria became the Principal Employer under the Scheme. I have not seen the terms of such agreement. Therefore, despite my finding that Bull was (at least partly) responsible for the representations upon which Mr Hutchison relied, I do not consider it appropriate to direct how the Scheme should be funded in order to provide the increased benefits to which Mr Hutchison is entitled. This is a matter that will have to be resolved by the Trustees, Steria and Bull depending, perhaps amongst other things, upon the terms of the agreements between these parties in respect of Bull ceasing to be liable as an employer under the Scheme”.

In addition in paragraph 48 he decided that Mr Hutchison should have some recompense for inconvenience and at paragraph 50 he determined that should be £250. That part of the appeal did not feature largely in the submissions before me.

He accordingly directed the Trustees and other Respondents to treat him as having an NRD at 62 with entitlement to receive a pension from that age without having an actuarial reduction.

At the moment the Ombudsman’s decision if upheld is a joint and several liability to achieve that obligation. In practice the Trustees will not have funds to meet this liability because (as shall be shown) there is no such entitlement under the Scheme as it actually is. If they have to make the payment they will recoup it from the Employer. If they do not make such a provision then Bull by virtue of the Determination is liable to compensate Mr Hutchison for the difference between the pension that would be payable according to the rules and the one which the Ombudsman determined he ought to have. If the Trustees appeal is allowed the case will have to be remitted to the Ombudsman for him to determine how his award should apply to Bull in the light of the Trustees no longer having a liability. Bull has not appealed and I cannot see that Bull can at that hearing re-open the unchallenged Determination of the Ombudsman that it has a liability.

I was told by Mr Newman that there are 70 or so other employees who have similar letters (but their cases may not be identical) and that the cost to the fund of meeting all of those will be approximately £4,000,000. As I said the Trustees will recover that from the Employers. There is no suggestion that Bull or Steria will not be in a position to make those payments although it is accepted apparently that there may be payments by instalments (assuming the Trustees of Scheme are satisfied as to the security of such payments).

It follows therefore that whatever the result of this appeal Mr Hutchison is through one way or another going to obtain the pension that on his case he believes that he was due to obtain or compensation to reflect a reduced pension.

That can only be changed if Bull seeks to appeal out of time as a result of the Trustees obtaining a reversal of the Ombudsman’s Determination. I cannot exclude that as a possibility but it is difficult to see upon what basis Bull would be given such permission to appeal out of time.

Under the rules of the ISRP dated 31^st March 1988 (Mr Hutchison’s former Scheme) he could retire after 50 only with the agreement of the Employer (rule 5.4). Such pension was to be reduced as the Actuary should advise to be appropriate to take into account the earlier date on which it became payable.

He made contributions of 5% (which was a higher rate contribution) but had a right by virtue of a change in the rules (dated 08/11/1988) to reduce his contribution to 3.75% or 2%.

When he joined the Scheme he gave up that right although obtaining higher benefits but nevertheless he committed himself to paying contributions at the higher rate of 5%.

Under the Scheme there were three classes of beneficiaries scale A, scale B and scale C. Everyone was a scale A unless he was awarded a scale B or scale C status which gave him a better rate of accrual.

The early retirement provisions provide that a member could retire with the agreement of the employer before NRD but after age 50 but should receive an immediate annual pension calculated as in rule 4 but then reduced as the Actuary should provide. For a scale C member who had completed twenty years actual service the reduction was calculated on the basis that his pension would but for the rule have come into payment on the last day of the month when he turned 60 rather than NRD.

It will be seen therefore that under the 1994 letter and the booklet Mr Hutchison is stated to have entitlements which do not exist under either Schemes.

It is accepted by Mr Stallworthy for Mr Hutchison that any estoppel cannot bind the Trustees to make an ultra vires payment i.e. one outside the rules. That is not significant however he says because if the estoppel binds the employer as well (as the Determination did) the Employer will be bound by that Determination to ensure that the Trustees are able to make the payments under the Scheme. This will be achieved by a variation of the rules and augmentation if necessary of the Scheme bebefits. Mr Newman did not suggest that provided the Employer was bound by the representation the implementation could not be achieved one way or another by changing the Scheme.

The Determination made it clear that the Ombudsman was of the view that a number of clear and unambiguous representations were made indicating that on completion of 20 years pensionable service his NRD would be 62. He referred to the 1994 letter, the booklet and subsequent Scheme booklets as well as the letter dated 9^th July 2002. He disregarded the inconsistent benefit statement 1^st April 2001 on the basis that that statement could not undo retrospectively the effect of the 1994 letter and Booklet. He did not say expressly but I conclude he would have made a similar observation in respect of later 2001 benefit statement. Equally whilst he referred to the Bull letter dated 11^th July 2002 (paragraph 18.7 of the Determination) it seems to me clear that he would have equally disregarded that on the same basis. I do not regard (contrary to Mr Newman’s submission) such a view as being speculation. It follows logically from the way in which he dealt with one letter in identical circumstances.

The appeal under Section 151 (4) of the Pension Schemes Act 1993 is on a point of law only.

The Appellants contend that the factual Determination of the Ombudsman as to the nature of the representations and their effect on Mr Hutchison is one that no Ombudsman could properly and reasonably come to. The Ombudsman does not attempt in the Determination expressly to deal with any legal issues. He found Mr Hutchison received clear and unambiguous representations and relied upon them. Although the Determination paragraphs do not expressly say so this appears to be an acceptance of the submissions made by Mr Hutchison (see paragraph 17.5 of the Determination) namely that having received the representations and relied upon them it would be unconscionable for Bull, Trustees or Steria to deny Mr Hutchison’s NRD as at age 62 and they should be estopped from so doing.

The Ombudsman does not set out the legal basis on which he makes the Determination in favour of Mr Hutchison. In this context in particular he has in my view in paragraph 22 of the Determination referred to the Information part of the booklet (set out in paragraph 16 above), but not explained how that part of the booklet impacts on his decision. He plainly decided that it did not have any impact on his decision because otherwise his decision would have been to reject Mr Hutchison’s claim. It is important therefore to appreciate that the legal basis for the Determination (i.e. the nature of the estoppel) is by no means clear from the Determination. Equally the interrelation between the Information notice and the other statements is not explored and explained by him. This has to be born in mind when I approach the appeal.

As I have said above the nature of the appeal is one limited to law only. The courts have to be mindful of the fact that the role of the Ombudsman is to determine in a relatively informal way disputes concerning pensions. That means that the court should not subject the Determination to minute meticulous or over elaborate critical analysis in an attempt to find a point of law on which the disappointed party to the reference can appeal (Wakelin v Read [2000] PLR 319 at paragraphs 40-42. As that decision also makes clear the court should be astute not to entertain appeals on points of fact dressed up as points of law. The Ombudsman is the sole judge of fact.

Whilst I accept that it is not necessary for the Ombudsman’s decision to be set out with the kind of detail one would expect in a formal judgment nevertheless if there are any legal principles upon which his decision is based they must be addressed by him. With respect to the Ombudsman it seems to me that he had failed clearly to set out in his Determination the legal basis upon which the Determination was made and the conclusion that he came to as to the clearly unambiguous nature of the representations in the light of the Information noted in every booklet that was ever issued.

In his skeleton (paragraph 26) Mr Newman sets out the 4 errors that it is contended that the Ombudsman made in his Determination. I will deal with those as follows bearing in mind in particular (subject to what I have said above as to the law) the appeal is one as to law only and I cannot and should not interfere with factual determinations which are the sole ambit of the Ombudsman.

I do not accept that there was no evidence which the Ombudsman could rely upon to conclude that the Trustees were parties. First I refer to Bull’s letter set out earlier in this judgment. Bull clearly believed that it was making representations and issuing the documents on behalf of the Trustee. Second the Trustees never issued any other documents. In this context I accept Mr Hutchison’s submission that the provision of the information in the letter and the booklet can only have been on the basis that they were produced to discharge the Trustee’s duty under the Disclosure Regulations. This is reinforced partly by the clear statement on the attachment of the letter of 9^th July 2002. Third the provision of Information part of the booklet clearly relates to the terms of the Scheme and that can only be matters drawn to the attention of Mr Hutchison on behalf of the Scheme.

I can deal with this quite shortly. It is accepted by Mr Hutchison that the Trustees cannot by estoppel enlarge the Scheme. However the Trustees with the participation of the Employer can. The documents relied upon by the Ombudsman in his Determination were clearly issued at the behest of the Employer as well. He determined that the Employer was bound by those statements and his Determination in that regard was not challenged. It follows therefore that there is no question of there being merely an attempt to enlarge the Scheme. It follows that this ground is not sustainable.

Putting aside the question of the Information notice (a point to which I will revert later in this judgment) in my view the letter and the booklets are clear and unambiguous. I do not believe there is any doubt that when they are read that it was explicitly stated that after 20 years and after obtaining the age of 62 Mr Hutchison was entitled (at his option) to retire at that age without any pension reduction. To suggest that the overriding consent of the Employer is required would make a nonsense of such a proposal. In my view the letter and the Booklet clearly intend to differentiate between retirement after 50 but before 62 and retirement after 62. If I were deciding the case myself I would have come to the same conclusion as the Ombudsman in this regard.

That is of course not the test. The question tested is whether or not there was any material upon which the Ombudsman could have come to his determination. In my view there is plainly such material and I reject that ground of appeal also.

In my view a detriment has been established namely the loss of the ability to reduce his pension contributions if he so wished. It is true that a reduction in contribution would achieve lesser benefits but nevertheless he gave up that right by joining the Scheme.

Further reliance is to be presumed unless the contrary is shown by the representor see Greasley v Cooke [1980] 1WLR 1306. This is inline with the Court of Appeal decision Howard Marine and Dredging Co v Ogden& Sons [1978] QB 574 at pages 592-593. Although ultimately Mr Hutchison’s rights derived under the Trust created by the Scheme those rights are created by a tripartite contract between the Employer, the Trustees of the Scheme and the Employee see the observations in Redrow PLC v Pedley [2002] PLR 339 at paragraph 62. It follows that there is no basis for challenging the Determination on the basis of reliance. As regards detriment I have already observed that Mr Hutchison did suffer a detriment in giving up his rights to revert to a lower percentage contribution. In any event the Ombudsman determined that Mr Hutchison relied on the statements by joining the Scheme, paying the enhanced benefits and remaining in employment (see paragraph 25 of the Determination).

In supplemental submissions Mr Newman submitted that Greasley v Cooke whilst it might be authority for the proposition that reliance was to be presumed it was not authority for the proposition that detriment was to be presumed. It seems to me that it is clear that the judgments (of all three judges) is authority for both propositions. Lord Denning MR at page 1311 B deals with the reliance issue. He then went on to consider the detriment issue and at page 1311 H he said this “there was no need for her to prove that she acted to her detriment or to her prejudice”. I note the observations of Lord Justice Stuart-Smith in Stevens & Cutting Ltd v Anderson [1990] 1EGLR 95 but I do not see how with respect their observations square with the part of the judgment in Greasley at page 1311. I do not find with respect again to their Lordships that they have satisfactorily dealt with the judgment of Dunn LJ which clearly addresses the question of detriment.

This is an interesting point only because the Ombudsman found detriment and my conclusion is it cannot be said that no reasonable Ombudsman could have come to that decision.

By far the most sustained and significant attack on the Ombudsman’s decision concerns the Information notice included at the last page to the booklet. As that notice says Mr Hutchison has the right to inspect the Trust Deed and Rules. It is made clear that that is the legal document which prevails over the booklet on any question of interpretation.

Thus Mr Newman submits one has to look at the representations as a whole i.e. the 1994 letter and the booklet should be read together. He also makes the same point as regards the successive booklets which contain a similar statement. Looking at those it cannot be said that the statement is clear and unambiguous because the Employee is being told that he must look at the Trust Deed and Rules to determine his entitlement.

It is an unattractive proposition because it means that there is no responsibility or consequence when the letter and booklet completely fail to achieve the purpose intended.

The Appellants require the risk of inaccurate statements to fall on Mr Hutchison rather than them as creators of the statements. This is despite the fact that the creators as opposed to Mr Hutchison are the experts.

Its purpose is to give “clear and concise information”. Whilst there must be some truncating to reduce the lengthy and legally written Trust Deed and Rules the point in issue is not really something which involves a distillation of complicated legal documents and a consequent error. One does not need to be a lawyer to read the documents to ascertain the entitlement. Yet no explanation has been provided as to why this “clear and concise” statement was so materially wrong for so many years.

It is true that if Mr Hutchison exercised his right to see the Trust Deed he would have seen that the statements in the 1994 letter and the successive booklets were wrong and badly so.

In paragraph 22 he observed that statements contained in explanatory booklets must always be scrutinised carefully. Such booklets give only a precis of the benefits available and cannot be relied upon as supplying the member with a complete picture of their entitlement. He then said “the booklet correctly stated that the Scheme rules prevailed on any question of interpretation”. Later in the paragraph he said “the booklet would lead a reasonable reader to believe that on completing 20 years of pensionable service he or she would have the right to retire at 62 on an unreduced pension”.

Whilst that is correct it does not address the point squarely raised by the Ombudsman himself that the booklets are only a precis, cannot be relied upon supplying the member with a complete picture and correctly stated that the Scheme rules prevailed on a question of interpretation.

He must therefore address the point raised by the Appellants that if the rules are said clearly to prevail and a reading of the rules will show what the actual entitlement is it cannot be said that the clear and ambiguous statements elsewhere in the 1994 letter and the booklet are comprehensive. It is only possible to form a full and fair view of the statements by also looking at the rules.

This with respect to the Ombudsman is the point which he has not addressed. There may be some thought processes which are not alluded to in the Determination which could have been amplified had the Ombudsman been before me. However he has consistently with his practice in appeals not appeared.

One possibility is simply to allow the appeal and remit the matter to the Ombudsman for him to reconsider this point. Neither side view that with any enthusiasm.

There have been a number of cases where the inter relation between statements in booklets and the rules have been considered.

Icarus (Hertford) Ltd v Driscoll [1990] PLR1 Aldous J (as he then was) changes notified by booklets were upheld as against the members. It is not clear whether there were any notices in the booklets.

In Dorrel v May & Baker Ltd [1991] PLR31 in an action for breach of contract or misrepresentation against the Employers who set up a pension Scheme Mr Julian Jeffs QC sitting as deputy judge of the High Court dismissed the action. The claim was based on statements in the booklet, but it was held that the statements in the booklet never formed part of the employment contract, and that the introduction was not a term of the contract nor was it unfair. It was stated to be a perfectly straightforward direction as to where the contract terms could be found.

The statement referred to was at the front of the booklet and was:-

“the rights and obligations of members….. are set out in the Rules and the Trust Deed ”.

These are legal documents used in terms in which the average reader would find difficult to understand.

Hence this booklet which is intended to explain clearly and simply as possible the main features of the Funds. It must be emphasised that this booklet is for information only and must not be taken in anyway interpreting or modifying the Trust Deeds and Rules of the Funds. The Rules can be inspected on the application to the Pensions Section where the staff will also be pleased to provide any further advice or assistance you may need ….”

It is important to appreciate that the judge was not determining that there was any difference between the effect of the booklet and the Rules. At paragraph 48 he said “in my opinion if the Rules are clear on the point of incapacity the booklet is even clearer.”

I do not therefore see that this authority has any relevance in respect of the arguments before me where there is a conflict between what the booklet says as to the entitlement and what the Rules says as to the entitlement.

The next decision is ITN v Ward [1997] PLR131 the Ombudsman in this case had determined that the Trustees were bound by an estoppel by convention to increase pensions at 4% per annum until 1979. That decision was overturned. The basis for estoppel by convention arose from leaflets distributed in which promised an increase by 4% per year. The booklet contained a similar warning (if that is the right word) that the actual entitlement can only be found in the Rules. Laddie J (paragraph 33) accepted that there was no material upon which it could have been held that any reasonable reader of the documents would conclude that there was a guarantee in perpetuity of 4%. He concluded (accepting the submissions of the Trustees and Employer) that a reasonable reader would have realised that these were abbreviated documents and that full terms of the Scheme could only be found in the definitive Deed. It should however be born in mind that the interrelation between the booklet and the Rules was once again not an issue. Paragraph 23 of the booklet clearly put the Employees on notice that the Rules could be changed. That in my view is the key finding of Laddie J (see the last sentence of paragraph 33).

I therefore do not find that there is anything in this decision which assists me on the problem before me.

The next case is Lansing Linde Ltd v Alber [2000] PLR15. This was an action for rectification of Rules which the Employer contended by error failed to make clear that a retirement before NRD of 65 but after the age of 60 on an immediate unreduced pension was only possible if the Employer and the Trustees first consented. The claim for rectification failed.

In the alternative the Employer contended that the Employee was estopped by convention from asserting that she has joined the Scheme on the basis of an NRD age 60 the Employer sought to rely upon (inter alia) a booklet sent to the Employee telling her that the NRD was 65. Rimer J found (paragraph 219) that she did not absorb the information. In any event the booklet was wrong. However, Rimer J did in the same paragraph explain that the booklet did not merely tell her that her NRD was 65 but that it told her that her rights were governed by 1979 Deed which prevailed over the booklet and “in effect that she could not rely on the booklet”.

At paragraph 222 he found that no estoppel by convention arose. He gave a number of reasons. The fourth of those was based on the statement in the booklet that the Rules prevailed his sixth decision also is significant that “if an estoppel arises in this case then it appears to me it would amount to allowing the booklet rather than the Deed to govern the Scheme whereas the booklet itself proclaims that it does not”.

It is a powerful case in favour of the Appellants in my view.

The next case to consider is Redrow PLC v Pedley [2002] PLR339. This was a dispute between the Employer and the Employees as to whether or not the value of benefits in kind should be included as remuneration for the purpose of determining pension entitlement. Once again booklets featured. The Vice Chancellor as he then was (paragraph 16) indicated that the booklets all point out that they are no more that an attempt to summarise the effect of the Scheme documents and could not override them. Second he observed that the booklets were written after the execution of the Deed and could only reflect the opinion of the writer of the booklet which was not relevant and booklets written before the execution of the Deed were little if any help if the later Deed uses different languages.

In paragraph 19 he concluded that the amendments to the booklets which referred to “your total pay” in the context denoted cash payments only. There was therefore no conflict between the Trustees and the booklets. The question of estoppel by convention therefore did not arise but he dealt with it in case his decision was the subject of an appeal. He dealt with it quite shortly. He concluded (paragraph 65) that none of the booklets was clear enough and “each of them contained passages clearly indicating that nothing contained therein could override the meaning and effect of the Deeds and Rules”.

This was in the context of a claim based on estoppel by convention.

Finally there is the decision of Pumfrey J in Hoover Ltd v Heatherington [2002] PLR297 the case was mostly about the construction of the Rules. However Pumfrey J also referred to a booklet. The booklet in question again had a warning at the front that it was not a legal document and that the Rights are set out in the Trust Deed and Rules. In paragraph 51 of his judgment he concluded that the booklets could not be reviewed as making representations nor could they be fairly viewed as capable of contributing to or evidencing a common understanding between the company and the Employees as to the existence of the entitlement in the booklets. Significantly he then said “notwithstanding the disclaimer I would not wish to suggest that such booklets are incapable of giving rise to such representation sufficient to found an estoppel but I am satisfied that these booklets and other communications do not do so. It is not unconscionable to hold the Employees to the terms of the rules if it is made sufficiently clear to them not merely that the booklets are incomplete but they are not definitive in respect to the matters they do cover. This it seems to me the disclaimer achieves and taken with the other material I do not think the various documents can be relied upon by the Employees as precluding the Employer from asserting the need for its consent to early payment”.

In paragraph 52 he expressed the view that he had considerable sympathy with the Trustees’ contention that this is not a question which should be resolved on a case by case basis.

There is no reported case where a booklet has been held to override by estoppel or otherwise the wording of the Trust Deed where the existence of the Trust Deed and its primacy is referred to expressly in the booklet. The cases referred to above indicate the contrary. However it does seem to me that unless it is asserted that the benefits accrue to the class as a whole (and that can cause great difficulties see the Redrow case and the corresponding caution) the question of any estoppel must be considered on a case by case basis. The question before the Ombudsman was whether or not Mr Hutchison (and him alone) was entitled to say in light of the material provided to him that the Appellant Trustees were estopped from denying him a right to retire at 62 after 20 years service with no reduction in his pension.

As I have said earlier in this judgment with respect to the Ombudsman he did not address the interrelation between the otherwise clear and unambiguous statements in the 1994 letter and the booklets when references made to the prevalence of the Rules.

Given that failure it is not a matter of considering whether a reasonable Ombudsman could come to a decision; it is a decision that I must make on this appeal given the desire of the parties to have the point resolved before me rather than remit it to the Ombudsman.

As I have said above in my view the Ombudsman was right to conclude that the 1994 letter and the booklets were clear and unambiguous as to the representation as to Mr Hutchison’s pension entitlement at age 62.

Does the reference to the Rules take away that clear ambiguity? It can only take it away if the person reads the Rules, understands them and then appreciates that there is a conflict between the Rules and the statement in the 1994 letter and the booklet. As I have said above that would be readily ascertainable.

It seems to me that the answer to the question cannot merely be resolved by considering the decisions referred to above. In effect the Appellants are arguing that the warning to look at the Trust Deed negatives the clear and unambiguous representation. It seems to me that that is an illegitimate argument (as well as being unattractive). Such statements to the effect namely that you should check our Rules or other documents to ensure what we are saying is correct is tantamount to a statement that the representee has an opportunity to test the truth elsewhere which has never been a justification for not giving effect to the representation see for example the well known decision of Redgrave v Herd [1881] 20 CH.D1. Whilst it might be necessary for the resolution of a complicated or technical point to have regard to the Rules I do not see that it can be said that it is reasonable to require Mr Hutchison to look at the Rules to satisfy himself in effect that there is no error in the relatively simple task of telling him clearly and concisely what his entitlements are.

Further it seems to me the position is strongly analagous to a “non reliance” clause. What the Appellants are in effect saying is “I make this statement as to your entitlement clearly and concisely but you cannot rely upon that because you have to look at the Rules and you will see that in the Rules that my statement is incorrect”. It follows therefore that the line of cases starting with Lowe v Lombank [1960] 1WLR 196 and culminating in Watford Electronics Ltd v Sanderson Ltd [2001] EWCA CIV 317 are relevant. In the case of an acknowledgment clause of this type the Court of Appeal held that the party seeking to rely upon it must show (1) that it is clear and unambiguous (2) that he meant it to be acted upon by the other side or at any rate so conducted himself that a reasonable man in the other’s side’s position would take the representations to be true and believe it was meant to be acted upon and (3) that the other side in fact believed it to be true and was induced by such belief to act upon it.

As Chadwick LJ pointed out in E A Grimstead & Sons Ltd v McGarrigan (unreported October 27 1999) these three requirements posed difficulties (see page 31). He returned to that theme in the Watford Electronics decision. It will be difficult for the Appellants if this principle applies by analogy to show that they (on the basis of my confirmation of the Ombudsman’s Determination above), participated in the 1994 letter and the booklets on the basis that they were sending statements that were purporting to be concise and straightforward, did not intend the recipients to rely upon them. There is of course no evidence to show any of this in any event.

It seems to me that one should not merely decide this issue on the basis that there is a reference to the Rules and their prevalence and they are there to be inspected if required. Whilst that might be reasonable when one is having to determine a complicated issue which the booklet could never begin to cover in a way in which it could be held to prevail I do not see a similar principle applying where the information provided in the booklet is not of a technical or difficult legal nature. As Pumfrey J said in the Hoover case there is no determination that the booklet can never amount to an estoppel. It seems to me that the entire agreement cases referred to above ought to be by analogy applied to the interrelation between the booklets and the reference in the booklets to the Trust Deed.

Given the clear and unambiguous nature of the statements I do not accept that it is sufficient for the Trustees merely to indicate the existence of the Trust Deed and the Rules in the general and un-particularised way in which they do. The court should be slow to allow the Trustees to avoid the consequences of their clear and unambiguous statements by an oblique reference to the Rules on this point.

There may of course be other areas where that would not be the decision; it depends on the nature of the statement and its context in relation to particular provisions in the Rules. Thus a summary of a complicated area (such as the powers of investment of the Trustees) in a booklet would not prevail over the Trust Deed.

I have of course been provided with no evidence at all as to how these obvious errors occurred. When one has recourse to the entire agreement cases that is supportive of my view that the Appellants should not be able to avoid the consequences of what appear to be clear and unambiguous statements (and were intended so to be) merely by reference to the need to read a Trust Deed. At the end of the day the Trustees and their advisors had presumably already read the Trust Deed and yet failed utterly properly to state its clear provisions. It would be quite wrong that in balancing the exercise the Employee should be worse off because he chooses not to read the Trust Deed when the Trustees themselves have read it and participated in the 1994 letter and booklet despite that.

Accordingly I conclude that all the ingredients of an estoppel by representation are made out.

This arises where both parties to a transaction act on a shared assumed state of fact or law: mutual agreement or consent is required as opposed to a unilateral representation in the case of estoppel by representation. The principles can be distilled from the well known case of Amalgamated Investment Property Co v Texas Commercial International Bank [1982] QB84. If it is established it does not operate prospectively so that once the common assumption is revealed to be erroneous the estoppel will not apply to future dealings (Hiscox v Outhwaite [1992] AC 562 page 575). Thus if such an estoppel was established it would have ended on 29^th November 2002. That actually has no impact on Mr Hutchison because he has already satisfied all the criteria (save attaining 62).

The representation does not have to be clear and unambiguous the only requirement is that there is a common assumption see Johnson v Gore Wood [2002] 2AC1 at pages 33-34 (referring to the Amalgamated Investment case).

It is clear to me that Mr Hutchison, the Employer and the Trustees conducted themselves from 1994 to November 2002 on the basis that he would be entitled to retire at 62 after 20 years service with no reduction in pension and that it would be unconscionable or unjust to allow the Trustees to resile retrospectively from that common understanding. Although the Ombudsman does not say so in so many words it seems to me that his Determination appears to be on that basis as well as on a representation basis. I conclude therefore that the Ombudsman determined that the parties were bound by the estoppel by convention that the Scheme entitled him to a pension as set out in the 1994 letter and the booklets and the letter from Steria. Both estoppel by convention and promissory estoppel were canvassed by Mr Hutchison in his submissions to the Ombudsman.

Accordingly I dismiss the Appellants substantive appeal.

It seems to me that the £250 is an unobjectionable award to compensate Mr Hutchison for the maladministration which the Ombudsman found and the self evident inconvenience and distress which was caused.

I therefore dismiss the Appellants appeal in respect of that sum as well.