Sovereign Trustees Ltd & Anor v Glover & Ors

Oldham Signs Ltd Pension and Life Assurance Scheme (“the Scheme”) was constituted with effect from 6th April 1989 by an Interim Trust Deed (“the Interim Trust Deed”) dated 20th February 1989 made between Oldham Signs Ltd (“the Company”) as the principal employer (1) and four individuals as the trustees thereof (2). The Interim Trust Deed provided for the execution of a definitive trust deed to bring into operation rules for the administration of the Scheme. Such rules were to be written to enable the Scheme to comply with certain statutory provisions (cl.4(b)) and might be amended by a resolution of the trustees (cl.16). The Interim Trust Deed provided for a majority of the trustees to constitute a quorum for any meeting of trustees (cl.9(i)) and that a resolution in writing signed by all the trustees should have the same legal effect as a resolution properly passed at a meeting of all the trustees (cl.10).

The rules were established and brought into operation with effect from 4th April 1989 by a Trust Deed (“the Definitive Trust Deed”) dated 20th May 1990 and made between the Company (1) and the four individuals who were then the trustees (2). The rules (“the Rules”) so established provided in detail for a contributory final salary scheme for those employees of the Company and other relevant employers who were members of the Scheme. The basic retirement benefit for which the Rules provided was a pension equal to 1/60 x Final Pension Earnings (as defined) at Normal Retirement Age (as defined) x Pensionable Service (as defined). Rule 13 provided for the Trustees to cause the Scheme to be discontinued if the employers disposed of their businesses or went into liquidation. Rule 23 provided for amendments to the Rules in the following terms:

In December 1997 Johnstone Douglas Ltd (“JD”), an independent firm of employee benefit plan consultants, carried out a review of the Scheme on the instructions of the Company. Their report, to which I shall refer in greater detail later, recommended that the Scheme should be amended to provide for future service retirement benefits to be provided on a money purchase basis with the option for active members to convert their past service benefits into money purchase benefits. In February 1998 the Trustees wrote to all active members of the Scheme to inform them that the Company was introducing changes to the Scheme such that:

From 5th April 1998 contributions and benefits were paid and received by members of the Scheme on the basis that the Scheme had been amended as indicated in the letter from the Trustees to the members referred to in paragraph 3. On 2nd March 2000 the Company went into receivership. On 20th March 2000 the Scheme was discontinued, as provided in Rule 13, on the disposal of the Company’s business. Since then the claimants, as the present trustees, have been endeavouring to wind it up in accordance with the Rules and the provisions of s.73 Pensions Act 1995. They (“the Trustees”) have been hampered by a number of uncertainties; some have been resolved on the basis of counsel’s opinion, some by compromise but others require the decision of the court.

Accordingly on 21st September 2005 the Trustees issued the Part 8 claim form in these proceedings. It raises a number of largely discrete issues. I am concerned with the first of them namely:

The Trustees contend that the issue should be answered in the affirmative in reliance on a document dated 10th February 1998 (“the Minute”) and purporting to be the minute of a meeting held on that date at which an appropriate resolution (“the Resolution”) to amend the rules was passed by two of the three trustees of the Scheme. So far as relevant the Minute provides as follows:

Counsel for Mr Monty contends that I should resolve this issue in the negative for a number of reasons which may be summarised as follows:

In response to the proposition summarised in paragraph 7(3)(b) above counsel for the Trustees submitted that any such excessive amendment might be ‘severed’ from the rest of the amendments so as not to invalidate the latter. He also explained why he felt unable to contend for an estoppel binding all members of the scheme to the creation of the money purchase section on the basis of which contributions and benefits were paid and received by members after 5th April 1998. In my view that concession was rightly made for the reasons given by counsel for the Trustees. In essence such an estoppel would need to bind deferred as well as active members for many of them would be better off in the winding up of the Scheme if no money purchase section had been created. But they were never notified of the relevant decision of the Trustees and did nothing on the faith of it. Thus it could not be unconscionable for any deferred member to insist on the Scheme being wound up in accordance with the Rules.

Accordingly the issues I have to determine are (1) whether the Resolution was validly passed, if so (2) whether it was effective as an exercise of the power of amendment conferred in the Trustees by Rule 23, if so (3) whether the amendments so made were in excess of what the power authorised and if so (4) whether any such excess may be severed. I will deal with those issues in that order. In relation to the first two I need to explain the factual background in more detail.

As I have already indicated, the Scheme was established by the Interim Trust Deed. It provides by clause 3(a) that the trustees shall administer the Scheme and have all the powers necessary to receive hold and apply the money and assets for the time being subject to the trusts thereof

I should also quote other material provisions including those to which I have referred in paragraph 1 above. Clause 8 requires the Trustees to “keep a complete record of all Scheme matters...”. Clause 9(i) requires the Trustees

As I have already recorded the Definitive Trust Deed was executed by the Company and the then trustees on 20th May 1991. This was outside the period of 24 months prescribed by clause 4(a) of the Interim Trust Deed but no one has suggested that its lateness affected the validity of the Interim Trust Deed, the Definitive Trust Deed or the Rules. This concession is rightly made, see Davis v Richards & Wallington Industries Ltd [1990] 1 WLR 1511. Clause 2 provides:

Counsel for the Trustees accepts that although Rule 23 does not specify any particular formality to be observed in its exercise it is to be applied subject to the provisions of the Interim Trust Deed, particularly those contained in clauses 9, 10 and 16. Thus the power of amendment may only be exercised by a resolution of the Trustees passed in accordance with those provisions. The first occasion on which the power was exercised was in August 1996. On that occasion a resolution was passed by the three trustees at a meeting held on 27th August 1996. It is recorded in a minute countersigned by all three trustees and on behalf of the Company as the principal employer by a director and the secretary. It recites the Interim Trust Deed, the Definitive Deed and the Rules and continues:

The JD report to which I have referred in paragraph 3 above contained recommendations for the future of the Scheme. After various comments on the Scheme as it then (December 1997) existed, explanations as to the various types of scheme or plan which were available and their various advantages and disadvantages to both the member and the employer JD set out its recommendations in Section 4. JD stated:

This warning was repeated in Section 8. Under the heading “Legal Advice” JD wrote:

On 22nd December 1997 the Company Secretary, Mr Gary Scott, sent to the members of the Scheme three notices. The first is described as “Important Explanatory Statement”. It states:

I have referred in paragraph 6 above to the Resolution and Minute on which the Trustees rely. Contemporaneously therewith the Trustees sent letters of explanation to all active members of the Scheme to the effect that “the Company is introducing changes to” the Scheme. The letter continued:

Nothing further was done before 5th April 1998. In June 1998 there was correspondence between Guardian Royal Exchange, as provider of the insurance cover for the Scheme, JD and the Company. On 3rd June the relevant employee of Guardian, Mr Milne, wrote to Mr Panton of JD thanking him for the copies of the announcements that had been made. He enclosed a rule amendment which he asked Mr Panton to arrange to be completed. He asked him to send back a certified copy. He concluded by telling Mr Panton that he was then in a position to consider the changes required to the Rules and added “In the meantime the enclosed resolution should be sufficient”. On 10th June 1998 Mr Panton replied to indicate that the rule amendment would be completed and a certified copy returned in due course. On 18th June 1998 JD sent the rule amendment to Mr Scott for completion and return. They were not returned until 22nd October 1998.

This rule amendment took the form of a resolution that

On 17th December 1998 JD wrote to Guardian Royal Exchange asking them to prepare a deed of amendment recording the change in benefit accrual from 6th April 1998 to a money purchase basis to replace the existing deed and rules in their entirety. In their response dated 4th January 1999 Guardian indicated that they would prepare a specimen Deed for comment to “update the current Final Salary Rules”. Those documents were provided by Guardian to JD on 23rd February 1999. Not until 22nd September 1999 did JD respond. On that date they sent their comments on the draft Deed of Variation and Rules to Guardian. Those comments included the following:

On 1st March 2000 Mr Waterhouse on behalf of the Trustees and Mr McSwaine for and on behalf of the Company agreed to the proposed amendments of the draft Deed of Variation prepared by Guardian following the review by JD. At a Trustees’ meeting held on the same day Mr McSwaine confirmed that the Deed of Variation was urgently required.

In the course of the hearing before me I commented on the fact that neither the Resolution nor the Minute had been referred to in any of the subsequent correspondence. The Minute had been exhibited to the witness statement of Mr Jonathan Stewart who had had no connection with the Scheme at any relevant time and had not been vouched for by any one who had been so connected. Overnight the solicitors for the Trustees obtained witness statements from Mr Waterhouse and Mr Scott made on 11th July 2007. They are in common form. Both witnesses confirm that there were three trustees, namely themselves and Mr Heath, that “the minute records a meeting which was held on 10th February” and to the best of their recollection “is an accurate record of the meeting and the matters resolved at the meeting”.

Counsel for Mr Monty did not object to this evidence being adduced at the last minute, nor did he apply to cross-examine the witnesses on their statements. In his submissions he accepted that there had been a meeting, as indicated in the minute, and that it was quorate. But he maintained his submission that it was incumbent on the Trustees to demonstrate that the meeting had been properly convened. In the absence of any evidence at all on that matter he submitted that I should conclude that the Resolution was and is devoid of any legal effect. In those circumstances I turn now to the first issue.

Clause 9(ii) of the Interim Trust Deed requires a meeting of trustees to be convened but does not specify any particular period of notice or manner in which it should be given in the case of a trustee within the United Kingdom. In those circumstances due notice must be given to all the trustees, the fact that two are present and sufficient to form a quorum is no reason to dispense with notice to the remaining trustee, see Halsbury’s Laws of England 4th Ed. 2004 Reissue Vol 7(2) para 1066.

It is true that there is no evidence of any notice of an intention to hold a meeting of the trustees on 10th February 1998 having been given to Mr Heath or anyone else. But it is now clear that such a meeting was held and attended by three people of whom two were trustees. The suggestion that the meeting had not been properly convened had not been made before the first day of the hearing before me on 10th July 2007, some 9.5 years since Mr Waterhouse, Mr Scott and Mr Waites in fact met together. In those circumstances I consider that I can and should apply the maxim omnia rite esse acta praesumuntur. Accordingly I presume due notice was given to Mr Heath. In the result I conclude that the meeting was properly convened, was quorate and that the business recorded in the Minute was conducted at it. Accordingly I turn to the second issue.

Counsel for the Trustees relies on the Minute as evidence of the passing of a resolution to amend the Rules as required by clause 16 of the Interim Trust Deed and Rule 23. He submits that the Minute clearly records the acceptance by the Trustees of the proposals of the Company for the insertion into the Scheme of a money purchase section. He contends that the details of those proposals can be readily ascertained from one or more of the JD Report, the notification to active members and the Resolution. He submits that those details are sufficient to effect the requisite amendments.

This is disputed by counsel for Mr Monty. He submits that the power to amend conferred by Rule 23 may only be exercised by a resolution of the Trustees to effect an amendment and then only if the amendment is made with the consent of the Company and duly notified to the members of the Scheme whose benefit entitlement is affected by the amendment. He submits that none of these three conditions is satisfied. He submits that on its true construction the Minute does not record a resolution to effect any amendment, nor, given the discrepancies between the Minute, the JD Report and the notification to members, was there any sufficient consent of the Company or notification to members.

It is not in dispute that the Minute must be construed objectively in the light of all relevant surrounding circumstances, see, for example, Mannai Investment Co v Eagle Star Life Assurance [1997] AC 749. Equally I did not understand it to be disputed that the question to be answered is whether, so interpreted, the Trustees intended by their resolution to effect an amendment to the Rules. If, by contrast, on its proper interpretation the Minute records a decision to adopt a particular policy to be carried into effect by amendments subsequently made that will not be sufficient to effect an amendment so as thereby to alter the trusts applicable to the Scheme as declared by clause 3(a) of the Interim Trust Deed.

I have set out the relevant provisions of the Minute in paragraph 6 above. The circumstances in which the meeting on 10th February 1998 was held include the existence and contents of the JD Report of December 1997 and the Notices given on 22nd December 1997. I have set out the relevant provisions of the JD Report in paragraphs 14 and 15 above. JD recommended the adoption of a money purchase basis for the provision of future service retirement benefits to be effected by an amendment to the Scheme. But JD was also emphatic in its advice that any changes must be effected in accordance with the Trust Deed and Rules. They stressed the need for a careful examination of those documents, compliance with all relevant legislation and the need for legal advice.

There is no evidence of any such advice having been sought or obtained before 10th February 1998 and none is referred to in the Minute. The precedent for amendment provided by the earlier Minute dated 27th August 1996 (see para 13 above) was not followed. The notices given on 22nd December 1997 indicated change with effect from 1st April 1998 affecting the basis on which the Scheme was contracted out but no indication of how or when it would be effected. The Minute shows that what was under consideration were “proposals” of the Company, see paragraphs 5, 6 and 7. The resolution recorded in paragraph 8(a) was that “the Company’s proposals be accepted in full”. The explanation of the consequence which follows is expressed in terms of “should”. This is not the wording of an immediate amendment but may be explained by the fact that the point of reference is a future date, namely 6th April 1998.

All these considerations are equally consistent with an intention to adopt a policy now to be implemented by amendments to the Rules to be made in the future as with an intention to effect the amendments now. But any doubt on that score is resolved by the terms of paragraph 8(c). Counsel for the Trustees submitted that that subparagraph was included so as to give to the Trustees and the Company the requisite power to implement the proposals. I do not agree. Implementation of the proposals could only be achieved through amendment of the Rules. The Trustees already had that power exercisable in accordance with the provisions of Clause 16 of the Interim Trust Deed and Rule 23. Sub-paragraph 8(c) envisaged that the proposals would be implemented by the Trustees and the Company in the future pursuant to powers already vested in them. The powers referred to must be the power to amend conferred by Rule 23. Accordingly the terms of paragraph 8(c) are quite inconsistent with any intention to amend the Rules then and there.

That this is the correct interpretation of the Minute appears to me to be confirmed by a number of other considerations. First, the Rules as they existed on 10th February 1998 were both extensive, detailed and complex. The amendments needed to implement the JD recommendations might be expected to be equally extensive, detailed and complex. In those circumstances it is inherently unlikely that the trustees would seek to amend them by means of a document as short and simple as the Minute. Second, the Minute stands in marked contrast to that of 27th August 1996 recording the amendments resolved on by Mr Waterhouse, Mr Scott and Mr Heath. That minute records that the reason for the amendment was to secure the approval or continued approval of the Scheme by the Board of Inland Revenue. But there is no evidence that either Mr Waterhouse and Mr Scott or the Company had obtained any advice as to the consequences for Inland Revenue approval of implementing the Company’s proposals, notwithstanding the clear recommendation to that effect given by JD in its report. This is explicable if the resolution was for the adoption of a policy now to be implemented by amendments to be made later because its adoption without more could not alter the trusts of the Scheme or jeopardise Inland Revenue approval. Third, the minute of 27th August 1996, unlike that of 10th February 1998, was sufficiently detailed and specific to effect amendments to the Rules as they stood. It is surprising, if it was intended to effect the necessary amendments to the Scheme on 10th February 1998, that the precedent afforded by the resolution passed on 27th August 1996 was not followed.

It is not clear whether the circular to active members dated February 1998 to which I have referred was sent out before or after the passing of the Resolution. Either way it is sufficiently contemporaneous to be a legitimate aid to the construction of the Minute. But I find it of little help. The opening sentence records that “the Company is introducing changes”. If written and sent before 10th February 1998 it does not advance the argument because it would be equally consistent with the Minute recording adoption of a policy now to be implemented by amendments made later. If it was written and sent immediately after the Resolution had been passed it would be consistent with my conclusion that what the Resolution recorded was the adoption of a policy now for implementation by amendments later. But it is also explicable by the fact that, on any view, the changes with which the members would be concerned would not be effective before April 1998.

For all these reasons I accept the first submission made by counsel for Mr Monty and conclude that the Minute does not record a resolution thereby to effect any amendments to the Scheme. Accordingly the Scheme was not amended on 10th February 1998 and the questions of whether any such amendment was made with the consent of the Company or sufficiently notified to the members do not arise. Similarly the issue of excessive amendment does not arise either.

It was not contended by counsel for the Trustees that the Rules had been amended by any means other than the Resolution as evidenced by the Minute. Accordingly for the reasons I have explained I will, subject to any further argument on the form of my order, declare in response to the issue raised by the application notice dated 2nd October 1996 and paragraph 1(a) of the Part 8 claim that: