Foster Wheeler Ltd v Hanley & Ors

This is a Part 8 claim brought by Foster Wheeler Limited (“the Company”) which is the Principal Employer (as defined) under the Foster Wheeler Pension Plan (“the Scheme”). The Scheme is a registered (formerly exempt approved) occupational pension scheme established in 1956 which provides benefits both on a defined benefit and defined contribution basis to different sections of members. The Scheme is currently governed by the provisions of a Definitive Trust Deed and Rules dated 9^th April 2002 as subsequently amended.

According to the evidence, the Scheme, as at the last triennial actuarial valuation in April 2005, had a total of 5,548 members, of whom all but 83 were members of the defined benefits section. The issues raised by the Part 8 claim relate solely to this section of the Scheme.

The Scheme is now in deficit. As at 1^st April 2005 it was estimated to have a funding deficiency of £68 million. Since then the Company has made additional monthly contributions of about £1 million in order to amortise the deficit but, despite this increased funding, the position has deteriorated further and the Scheme’s actuary has indicated that the deficit may now exceed £100 million. This figure could be increased by between £18 million and £30 million, depending upon the answers to some of the issues raised in the claim.

The purpose of these proceedings is to resolve a number of questions which have arisen out of the attempts made by the Trustees of the Scheme and the Company to give effect to the decision of the European Court of Justice in Barber v Guardian Royal Exchange Assurance Group [1991] QB 344 (“Barber”). The ECJ held that pension payable under a private occupational scheme constituted “pay” for the purposes of Article 119 (now Article 141) of the EEC Treaty and that it was, therefore, unlawful for such a scheme to discriminate between men and women in similar employment by providing for their respective pension benefits to be payable at different ages.

Article 119 provides, inter alia, that:

“Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”

Most schemes (and this one is no exception) had stipulated 60 as the normal retirement age for women and 65 for men thereby mirroring their entitlement to the state pension. On 30^th January 1990 the Advocate General delivered his opinion in Barber indicating that Article 119 did apply to pension benefits. The judgment of the Court was delivered on 17^th May 1990. In paragraphs 28-29 the ECJ stated that pension paid under a contracted-out scheme constitutes consideration paid by the employer to the worker in respect of his employment and, as a consequence, fell within the scope of Article 119. It made no difference, they said, that the scheme was set up as a trust administered by trustees independent of the employer because Article 119 also applied to consideration received indirectly from the employing company.

In Barber the issue was whether it was contrary to Article 119 for a male employee who was made compulsorily redundant at the age of 52 to be entitled only to a deferred pension at his normal pensionable age (62) when a woman in the same position would have received an immediate pension.

The Court confirmed that the principle of equal pay enshrined in Article 119 must be guaranteed and applied in respect of each element of the remuneration paid to workers rather than on a global basis and that it, therefore, precluded making payment of pension dependent on an age condition which varied according to the sex of the employee.

The Court of Appeal in its reference also sought guidance as to whether Article 119 had direct effect in the circumstances of the case. In answer to this question, the ECJ said in paragraph 39 of its judgment that Article 119 may be relied upon before the national courts and that it was for those courts to safeguard the rights which that provision conferred. The guidance was no more detailed than that. The Court did, however, go on to state (see paragraphs 40 to 45) that, in view of the financial consequences its ruling would have for pension schemes if applied retrospectively, the direct effect of Article 119 could not be relied upon in order to claim entitlement to a pension with effect prior to the date of the judgment except in cases where employees had already commenced legal proceedings.

The importance of this last point is that it set 17^th May 1990 as the date beyond which it became unlawful for pension schemes to discriminate between men and women in similar work in terms of their normal retirement age and the rights contingent on them. But the decision offers no further guidance as to how the principle of equal pay should be implemented and, in particular, whether the direct application of Article 119 imposed on existing schemes an automatic re-formulation of the relevant rules or merely delegated to the trustees and the employer a margin of discretion as to how and in what form the changes required should be made.

Further guidance on these points was given by the ECJ in Coloroll Pension Trustees Ltd v Russell [1995] ICR 179 (“Coloroll”) where, in relation to a defined benefit scheme, the trustees had sought rulings from the High Court as to the effect of the decision in Barber. The reference to the ECJ included questions as to whether members and their dependents could rely upon the direct effect of Article 119 in relation to claims made not against the employer but against the trustees; whether the effect of Article 119 was to require the trustees to administer the scheme as if the rules had been altered to reflect the principle of equal pay laid down by Article 119 or merely required the employer and the trustees to use such powers as they had (whether by way of amendment of the rules or otherwise) to secure that the benefits payable reflected the principle of equal pay; and whether the principle of equalisation required the benefits of the disadvantaged sex to be increased or those of the advantaged sex to be reduced. Clarification was also sought about the effect of the ruling in Barber that Article 119 should have no direct application prior to the date of the decision on 17^th May 1990.

On the first issue, the Court ruled that the obligations imposed on an employer by Article 119 could not be avoided by setting up an occupational pension scheme in the form of a trust and, as a corollary to this, that the trustees, although not parties to the contract of employment, are required to pay benefits which retain their character of pay within the meaning of Article 119. It followed that employees did have the right to enforce their rights under Article 119 directly against the trustees of a pension scheme “who are bound, in the exercise of their powers and performance of their obligations as laid down in the trust deed, to observe the principle of equal treatment”.

This leads directly to the question of how the requirements imposed by Article 119 are, as a matter of law, to be implemented. Are the rules and the provisions of the trust deed to be treated as revised and read in a way which conforms to the principle of equal pay or are the trustees and the employer to be given the opportunity of revising the rules of the scheme in a way which gives effect to the requirements of Article 119? This issue has particular relevance to the Company’s arguments addressed on question 3 in the Part 8 claim form which rely, in part, on what might be described as the automatic imposition of an Article 119 regime as from 17^th May 1990 as overriding the subsequent attempts of the parties themselves to reform the rules of the scheme so as to make them compliant.

The ECJ addressed the question of implementation in paragraphs 25 to 36 of its judgment as follows:

“25.

By the second part of its first question the High Court asks whether, where certain rules of the scheme are incompatible with the principle of equal pay, the trustees must administer the scheme without regard to those rules, or whether the employer and the trustees must amend them so as to make them compatible with article 119. The High Court also asks whether the only way of bringing about equal treatment is in any event to increase the benefits of the disadvantaged class, or whether such equality may also be achieved by reducing the benefits of the advantaged class.

26.

As regards the first part of the question, it must be remembered that the principle of equal pay is one of the foundations of the Community and that article 119 creates rights for individuals which the national courts must safeguard. Article 119 being mandatory in nature, the prohibition of discrimination between men and women applies not only to the acts of public authorities but also to all contracts between private individuals and to all collective agreements intended to regulate paid employment: see Defrenne v Sabena (Case 43/75) [1976] ICR 547, 566, 568, paras. 12 and 39.

27.

Employers and trustees cannot, therefore, be allowed to rely on the rules of their pension scheme, or those contained in the trust deed, in order to evade their obligation to ensure equal treatment in the matter of pay.

28.

In so far as the relevant rules of national law prohibit them from acting beyond the scope of their powers or in disregard of the provisions of the trust deed, employers and trustees are bound, in order to ensure compliance with the principle of equal treatment, to use all the means available under domestic law, such as recourse to the national courts, especially where, as seems to be the case in this instance, involvement of the national courts is necessary to amend the provisions of the pension scheme or of the trust deed.

29.

Furthermore, the court has consistently held that national courts are bound to provide the legal protection which individuals derive from the direct effect of provisions of the E.E.C. Treaty: see Reg. v Secretary of State for Transport, Ex parte Factortame Ltd (No. 2) Case C-213/89) [1991] 1 AC 603, 612, para. 19. They are therefore bound, particularly in the context of article 119, to the full extent of their discretion under national law, to interpret and apply the relevant domestic provisions in conformity with the requirements of Community law and, where that is not possible, to disapply any incompatible domestic provisions: see Murphy v Bord Telecom Eireann (Case 157/86) [1988] ICR 445, para. 11.

30.

As regards the second part of the question, concerning the method to be used to achieve equal treatment, in Defrenne v Sabena (Case 34/75) [1976] ICR 547, 566, para. 15, where there was a claim in the main proceedings for compensation for discrimination in relation to pay, the court ruled, in view of the connection between article 119 and harmonisation of working conditions while maintaining improvement, against the argument that compliance with article 119 could be achieved otherwise than by raising the lowest salaries.

31.

Moreover, in Nimz v. Freie und Hansestadt Hamburg (Case C-184/89) [1991] ECR I-297, paras. 18-20, the court held that the national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by collective bargaining or by any other constitutional procedure, and to apply to members of the disadvantaged group the same arrangements as those enjoyed by the other employees, arrangements which, failing correct implementation of article 119 in national law, remained the only valid point of reference.

32.

It follows that, once the court has found that discrimination in relation to pay exists and so long as measures for bringing about equal treatment have not been adopted by the scheme, the only proper way of complying with article 119 is to grant to the persons in the disadvantaged class the same advantages as those enjoyed by the persons in the favoured class.

33.

The situation is different as regards periods of service completed after the entry into force of rules to eliminate discrimination, since article 119 does not then preclude measures to achieve equal treatment by reducing the advantages of the persons previously favoured. Article 119 merely requires that men and women should receive the same pay for the same work without imposing any specific level of pay.

34.

Finally, as regards periods of service prior to 17 May 1990, the date of the judgment in Barber v Guardian Royal Exchange Assurance Group (Case C-262/88) [1990] ICR 616, it is sufficient here to say, as will be explained below in reply to the second question, that the Barber judgment excluded application of article 119 to pension benefits payable in respect of those periods, so that employers and trustees are not required to ensure equal treatment as far as those benefits are concerned.

35.

It follows that, as far as those latter periods are concerned, Community law imposed no obligation which would justify retroactive reduction of the advantages enjoyed by women.

36.

The answer to be given to the second part of the first question must therefore be that, in so far as national law prohibits employers and trustees from acting beyond the scope of their respective powers or in disregard of the provisions of the trust deed, they are bound to use all the means available under domestic law, such as recourse to the national courts, in order to eliminate all discrimination in the matter of pay. Moreover, as regards periods of service completed after the court's finding of discrimination but before the entry into force of the measures designed to eliminate it, correct implementation of the principle of equal pay requires that the disadvantaged employees should be granted the same advantages as those previously enjoyed by the other employees. However, as regards periods of service subsequent to the entry into force of those measures, article 119 does not preclude equal treatment from being achieved by reducing the advantages which the advantaged employees used to enjoy. Finally, as regards periods of service prior to 17 May 1990, the date of the judgment in Barber, Community law imposed no obligation which would justify retroactive reduction of the advantages enjoyed by the favoured employees.”

It seems clear from paragraph 27 of the judgment that the Court was of the view that provisions in a scheme and in its rules which, if applied, would create unequal treatment ceased to be enforceable on the direct application of Article 119. Most obviously this would preclude the application of different retirement ages for men and women as the condition for the payment of their pension entitlement. The same basic approach applies to statutory provisions which might have the same effect in their application to the scheme. They are to be interpreted (or perhaps even disapplied) so far as is necessary to give effect to Article 119: see paragraph 29. Paragraph 28 of the judgment is more of a puzzle where it refers to trustees seeking the assistance of the national courts in order to amend the relevant provisions of the pension scheme. But what it must mean in an English context is that the trustees should (so far as necessary) be prepared to obtain a ruling from the national court as to the construction and effect of the rules when read in the light of the application to them of Article 119.

These passages confirm that, from the date set by the ECJ in Barber for the application of Article 119 to pension schemes (i.e. 17^th May 1990), the provisions of the scheme have to be treated as modified to the extent necessary to become compliant with the principle of equalisation. Article 119 had a direct and immediate effect and did not simply impose upon trustees and employers an obligation to bring the scheme into conformity with what was required. This same approach has been adopted in section 62 of the Pensions Act 1995 which, by section 63(6) of the Act, is to be treated as having had effect in relation to any pensionable service on or after 17^th May 1990. These provisions were introduced in order to give effect to the requirements of Article 119 in relation to pension schemes in accordance with the decisions of the ECJ in Barber and Coloroll. Section 62 provides that:

“62.

The equal treatment rule

(1)

An occupational pension scheme which does not contain an equal treatment rule shall be treated as including one.

(2)

An equal treatment rule is a rule which relates to the terms on which—

(a)

persons become members of the scheme, and

(b)

members of the scheme are treated.

(3)

Subject to subsection (6), an equal treatment rule has the effect that where—

(a)

a woman is employed on like work with a man in the same employment,

(b)

a woman is employed on work rated as equivalent with that of a man in the same employment, or

(c)

a woman is employed on work which, not being work in relation to which paragraph (a) or (b) applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision) of equal value to that of a man in the same employment,

but (apart from the rule) any of the terms referred to in subsection (2) is or becomes less favourable to the woman than it is to the man, the term shall be treated as so modified as not to be less favourable.

(4)

An equal treatment rule does not operate in relation to any difference as between a woman and a man in the operation of any of the terms referred to in subsection (2) if the trustees or managers of the scheme prove that the difference is genuinely due to a material factor which—

(a)

is not the difference of sex, but

(b)

is a material difference between the woman’s case and the man’s case.

(5)

References in subsection (4) and sections 63 to 65 to the terms referred to in subsection (2), or the effect of any of those terms, include—

(a)

a term which confers on the trustees or managers of an occupational pension scheme, or any other person, a discretion which, in a case within any of paragraphs (a) to (c) of subsection (3)—

(i)

may be exercised so as to affect the way in which persons become members of the scheme, or members of the scheme are treated, and

(ii)

may (apart from the equal treatment rule) be so exercised in a way less favourable to the woman than to the man, and

(b)

the effect of any exercise of such a discretion;

and references to the terms on which members of the scheme are treated are to be read accordingly.

(6)

In the case of a term within subsection (5)(a) the effect of an equal treatment rule is that the term shall be treated as so modified as not to permit the discretion to be exercised in a way less favourable to the woman than to the man.”

It is clear that under section 62 the rules of the scheme are to be read as modified so as to conform with Article 119 and that this modification extends to provisions of the scheme which confer a discretion: see section 62(6). Modifications are defined by section 181 of the Pension Schemes Act 1993 (as applied by section 124(5) of the 1995 Act) as including “additions, omissions and amendments”.

The judgment in Coloroll also indicates what form the imposed solution should take. The national court (see paragraphs 31-32) is required to set aside any discriminatory provisions of national law and to apply to the disadvantaged class of employees the arrangements enjoyed by the advantaged class. In a case like the present where the element of discrimination lies in unequal retirement ages this involved the reduction of the normal retirement age of 65 for men to 60 (which was the normal retirement age for women) for pensionable service after 17^th May 1990.

But it is also apparent from the same paragraphs of the judgment in Coloroll that the immediate application of Article 119 in this way so as to render a scheme compliant with the principle of equal pay does not exclude the power of the trustees and the employer to resort to their rule-making powers contained in the scheme (“any other constitutional procedure”) in order to create a new regime in respect of future pensionable service which is not discriminatory. That regime (unlike the one imposed by Article 119 with effect from 17^th May 1990) is not limited to equalising benefits by reference to the position of the formerly advantaged class. The only requirement is that the measures adopted should treat both sexes equally: see paragraph 33 of Coloroll.

The guidance set out in paragraph 33 was repeated verbatim in the judgment of the ECJ in Smith v Avdel Systems Ltd [1995] ICR 596 where the equalisation methods adopted to bring the scheme into line with Article 119 involved raising the normal retirement age of women employees from 60 to 65 to coincide with that of men. One of the issues raised was whether the employer could include in the rule changes (which in that case came into force on 1st July 1991) measures designed to mitigate the effect on women of having their normal retirement age raised to 65 in respect of pensionable service after the date of the amendment. The Court rejected this as incompatible with the application of Article 119:

“23.

The point of the second question is whether, if Article 119 allows the retirement age for women to be raised to that for men, occupational pension schemes which equalize retirement ages in that way must minimize the adverse consequences of that change for women.

24 . In view of the answer given to the first question, the second question arises only in relation to periods of service subsequent to the entry into force of the measures taken to achieve equality by raising the retirement age for women.

25.

In reply to that point it is sufficient to say that equal treatment between men and women in relation to pay is a fundamental principle of Community law and that, given the direct effect of Article 119, its application by employers must be immediate and full.

26.

It follows that, once discrimination has been found to exist, and an employer takes steps to achieve equality for the future by reducing the advantages of the favoured class, achievement of equality cannot be made progressive on a basis that still maintains discrimination, even if only temporarily.

27.

The answer to the second question must therefore be that the step of raising the retirement age for women to that for men, which an employer decides to take in order to remove discrimination in relation to occupational pensions as regards benefits payable in respect of future periods of service, cannot be accompanied by measures, even if only transitional, designed to limit the adverse consequences which such a step may have for women.”

The other question considered in Smith v Avdel Systems Ltd was whether the form of the equalisation measures imposed by Article 119 in respect of the period between 17^th May 1990 and the date of any subsequent equalising amendments to the scheme (commonly now referred to as the “Barber window”) could take account of the financial difficulties that would be created for the scheme or the employer by equalising retirement ages down to those of women as the advantaged class. This was also rejected.

“30.

Even assuming that it would, in this context, be possible to take account of objectively justifiable considerations relating to the needs of the undertaking or of the occupational scheme concerned, the administrators of the occupational scheme could not reasonably plead, as justification for raising the retirement age for women during this period, financial difficulties as significant as those of which the Court took account in the Barber judgment, since the space of time involved is relatively short and attributable in any event to the conduct of the scheme administrators themselves.

31.

The answer to the third question must therefore be that Article 119 of the Treaty precludes an occupational scheme, relying on its own difficulties or those of the undertaking concerned, from retrospectively raising the retirement age for women in relation to periods of service completed between 17 May 1990 and the date of entry into force of the measures by which equality is achieved in the scheme in question.”

The employers are to be treated as having the remedy in their own hands.

In summary, therefore, the following principles emerge from these three decisions of the ECJ:

The consequence of these decisions is that, for the duration of the Barber window, male employees under the Scheme will have accrued pension entitlement and other rights on the basis of an earlier retirement age than that applied to their pensionable service prior to 17^th May 1990. Where the Barber window is subsequently closed by amendments to the scheme which level down the normal retirement ages for both sexes, they will then revert to pensionable service by reference to a retirement age of 65. In terms of accrual rates, the expense to the scheme and consequently to the employer can be mitigated by an early change to the rules. But the other consequence of the application of Article 119 so as to bring the rights of male employees into line with those of women was that they acquired a right to draw at 60 the pension accrued during the Barber window by reference to their 60^th birthday as a normal retirement date. This was necessary in order to equalise their position with that of female employees who as the advantaged class, of course, retained their right under the scheme to accrue and take a pension by reference to a retirement age of 60 unaffected by the application of Article 119.

The recognition of a male employee’s right to take a pension based on an NRD of 60 is not evident in the judgments of the ECJ in the three cases I have referred to and raises a number of questions which have in part been considered in consequent English authorities.

Although not the first in time, it is convenient to begin with the decision of Warren J. in Harland and Wolff Pension Trustees Ltd v Aon Consulting Financial Services Ltd [2007] ICR 429. The issue for consideration was whether it was open to the trustees and the employer to close the Barber window by making amendments to a pension scheme which not merely equalised down retirement dates for men and women for pensionable service from the date of the amendments but also purported to utilise a retrospective power of amendment contained in the scheme deed so as to apply the same regime with effect from 17^th May 1990. This was intended to alter the already-accrued rights of both male and female employees to pension in respect of service during the Barber window at the lower retirement age applicable to women.

I should say at once that this issue does not arise in the present case because at all material times the Scheme has included a provision which does not allow amendments to alter accrued rights without the member’s consent. But the decision is important for its analysis of the status of the rights acquired by men (as the disadvantaged class) during the Barber window.

Having referred to paragraphs 31-33 of the judgment in Coloroll, Warren J. said this (at paragraph 21):

“The position in relation to periods of service completed after the entry into force of rules designed to eliminate discrimination is different. Article 119 does not then preclude measures to achieve equal treatment by reducing the advantages of persons previously favoured, the reason, apparently being that "Article 119 merely requires that men and women should receive the same pay for the same work without imposing any specific level of pay".”

He then went on (at paragraph 44) to consider the decision of the ECJ in Smith (where the amendment used to close the Barber window did purport to have retrospective effect):

“Another way of making this point is to look at the position immediately before the execution of the 1993 deed and rules in the present case. At that stage, before any attempt has been made to rewrite history by making a retrospective amendment, men are entitled to claim, in respect of service after 17 May 1990, benefits on the same basis as those accruing to women. The question is then asked: can this right which men have be adversely affected, as a matter of Community law, by amendment? The answer to that question cannot, it seems to me, depend on the precise wording of the power under which it is sought to act. The question in all cases, assuming that the amendment is effective under national law, is whether levelling down is permitted. The Smith case [1995] ICR 596 has answered that question in the negative.”

This reinforces what is common ground in this case which is that the starting point for considering the effect of any amendments made to close the Barber window is that female employees (who under the scheme as it stood in 1990 had a normal retirement date based on their 60^th birthday) retained pension rights linked to that date both up to and during the Barber window unaffected by Article 119 and that male employees (although having an NRD of 65 up to 17^th May 1990) acquired pension rights under Article 119 based on the lower NRD of 60 for pensionable service in the Barber window which cannot have been altered retrospectively by the modifications introduced to the scheme in 1993.

This leads directly to the question of how rights which have accrued during the Barber window should be given effect to. This has been considered by Lewison J. in two cases: Trustee Solutions Ltd v Dubery [2006] EWHC 1426 and Hodgson v Toray Textiles Europe Ltd [2006] EWHC 2612; and subsequently by the Court of Appeal on appeal from him in Trustee Solutions sub nom Cripps v Trustee Solutions & Dubery [2007] EWCA Civ 771.

In Trustee Solutions the original rules of the scheme provided (as in this case) for male and female members to retire at 65 and 60 respectively. They also contained a power of amendment exercisable by writing under hand by the trustees and the company. In 1992 the trustees issued an announcement and a booklet informing female members that the normal retirement age of women was to be raised to 65. A further booklet referring to these changes was issued in 1999. In 2001 the company went into liquidation. The scheme was subsequently wound up and the trustees applied to the Court for directions as to the correct priority of payments out of the assets of the scheme under section 73 of the Pensions Act 1995.

Certain preliminary issues also arose as to whether the modifications made to the scheme in 1992 were legally effective and (if not) whether the members (or any of them) were estopped from disputing a change in their normal retirement dates to 65 as a result of the announcements and other material issued in 1992. Lewison J. held that there had been no valid and effective modification of the scheme under the rules and that no group estoppel arose so as to have the same effect. He was therefore left to consider the application of section 73 on the basis that the Barber window had never closed and that the regime imposed directly by Article 119 with effect from 17^th May 1990 continued.

Section 73 of the 1995 Act specifies the order in which the assets of a salary related occupational pension scheme are to be applied on a winding up of the scheme. That order is set out in section 73(3). In its 2002 form (which Lewison J. had to consider) the order of priority was as follows:

“(a)

any liability for pensions or other benefits which, in the opinion of the trustees, are derived from the payment by any member of the scheme of voluntary contributions,

(aa) where—

(i)

the trustees or managers of the scheme are entitled to benefits under a contract of insurance which was entered into before 6th April 1997 with a view to securing the whole or part of the scheme's liability for any pension or other benefit payable in respect of one particular person whose entitlement to payment of a pension or other benefit has arisen and for any benefit which will be payable in respect of that person on his death, and

(ii)

either that contract may not be surrendered or the amount payable on surrender does not exceed the liability secured by the contract (but excluding liability for increases to pensions),

the liability so secured,

(b)

in a case not falling within paragraph (aa), where a person's entitlement to payment of pension or other benefit has arisen, liability for that pension or benefit and for any pension or other benefit which will be payable in respect of that person on his death (but excluding increases to pensions),

(c)

…

(d)

any liability for increases to pensions referred to in paragraphs (aa) and (b),

(e)

any liability for increases to pensions referred to in paragraph (c),

(f)

so far as not included in paragraph (c) or (e) any liability for – (i) pensions or other benefits which have accrued to or in respect of any members of the scheme (including increases to pensions) or (ii) future pensions, or other future benefits, attributable (directly or indirectly) to pension credits (including increases to pensions).”

The issue was whether in the case of a male member of the scheme with accrued pensionable service during the Barber window who had attained the age of 60 there arose an “entitlement to payment of pension” within the meaning of section 73(3)(b). The judge analysed this question as follows:

“61.

The argument in favour of an affirmative answer to this question runs as follows. The phrase "where a person's entitlement to payment of pension .. has arisen" is not confined to case where the pension is actually in payment. A person's entitlement to payment of pension may equally arise where he is entitled to call for immediate payment. For example he may have exercised an option to continue working after his Normal Retirement Date, and to defer his pension. He may cancel that option at any time and call for his pension to be paid. Such a person is one whose entitlement to payment of a pension has arisen.

62.

A male member of the Scheme who has entitlement to pension accrued during a Barber window has the right to take pension accrued during that period at age 60. That is a right conferred upon him by European law. Moreover a female member had a right under the Scheme to retire at 60 and would have retained that right unless and until the Scheme was validly amended. An amendment of the Scheme cannot retrospectively remove accrued rights. The entitlement of which section 73 (3)(b) speaks is not restricted to any particular kind of entitlement. It applies to an entitlement under European law just as much as it applies to an entitlement under the rules of the Scheme.

63.

Consequently a male member with an accrual of Barber window pension has an absolute right to take that pension at the age of 60. However, both the rules of the Scheme (which refer to the payment of "a pension", not "part of a pension") and the requirements of the Inland Revenue, which are relevant to the interpretation of the Scheme, do not allow only part of a pension to be taken. The whole of a pension must be taken at the same time. Accordingly, if a male member wishes to take his Barber window pension at the age of 60 he must retire, and accept the application of an early retirement factor to the remaining accruals (if they have been based on a Normal Retirement Age greater than 60). Although under the rules such a person would need the consent of the company to retire early, that consent cannot be refused, since to refuse it would be a breach of European law. Consequently, such a person has an entitlement to the immediate payment of pension once he has attained the age of 60.

64.

Miss Rich's argument to the contrary depended for its central proposition on the contention that there can only ever be one Normal Retirement Date at any given time. If at the commencement of the winding up of the Scheme that Normal Retirement Date was 65, then no one had an entitlement to payment of pension unless he or she had attained that age. (I have decided that the factual premise is incorrect, but I ignore that for the purpose of deciding this question).

65.

In my judgment this argument overlooks one of the primary functions of the Normal Retirement Date, which is to act as a calculator for the accrual of pension. An accrual in this sense is an entitlement to pension earned in a particular period of pensionable service. It is therefore possible for different Normal Retirement Dates to apply to different periods of pensionable service, even though in the end there will only be one pension payable. Moreover, the effect of Barber was to confer on male members the right to retire at the age of 60; and that right cannot be taken away from them.

66.

I conclude that the argument in favour of an affirmative answer to the question is correct. In my judgment the entitlement to pension of members who have the right to retire for part of their service and who had attained the age of 60 at the date of winding up falls within section 73 (3) (b) of the Pensions Act 1995.”

Although this question arose in the context of section 73, Lewison J. did not give the words in section 73(3)(b) any limited or special meaning but applied them to the entitlement to payment of the male employee’s pension accrued during the Barber window which he regarded as arising under European law. This was, I think, the first occasion on which a judge had spelt out clearly the right to retire and to receive payment inherent in the application of Article 119 to male members of a scheme who obtained a lower NRD on the opening of the Barber window. Until then it had been looked at largely in terms of its effect on accruals.

Lewison J. returned to this issue in Toray Textiles. In that case the Barber window had been effectively closed in November 2004 by equalising the retirement ages of men and women at 65. One of the issues raised was whether a male member who had accrued a pension entitlement through service during the Barber window was entitled post-November 2004 to retire at the age of 60 on a full pension or had to wait until he attained the age of 65 in order to receive pension accrued by pensionable service outside the Barber window.

The argument addressed to Lewison J. by Mr Simmonds QC is summarised in paragraph 115 of the judgment. Having quoted from paragraphs 62 and 63 of his judgment in Trustee Solutions, Lewison J. then says this:

“Mr Simmonds says, in the politest possible way, that although my answer was right on the facts of that case, my reasoning was wrong. He accepts that a male member with a Barber window pension entitlement is entitled to retire at 60 and that such a right cannot be taken away from him. He accepts that Revenue practice at the time I was considering in Trustee Solutions forbade the taking of part only of a pension or, as he would put it, it forbade the taking of a pension which increased in the rate of payment by more than Revenue permitted limits. He also accepts, I think, that in the light of Revenue practice at the time, the trustees would have had to consent to retirement at 60 even if that meant that a retiree became entitled to his full pension. But he says that in referring to the rules of the scheme prohibiting the payment of "part of a pension" I was confusing entitlement to a pension and the rate at which pension is payable. Now that many of the old restrictions on payment of pensions have been abolished by the Finance Act 2004, the only question is whether the rules of the scheme permit pension to be paid at differing rates. Accordingly he submits that since the coming into force of the relevant parts of the Finance Act 2004 (6 April 2006 or "A-day") the trustees are entitled to refuse consent to a pre-equalisation member to draw unreduced at 60 the component of his pension that relates to service since equalisation, because that will not prevent that member from drawing the component of pension relating to service during the Barber window unreduced at age 60. The consequence of this is that a member retiring at 60 in order to draw his Barber window pension will have to wait until 65 before drawing pension accrued outside the window.”

The judge rejected this argument largely because he considered that the subsequent changes to revenue law and practice introduced by the Finance Act 2004 which would permit the payment of pension in tranches or what has been called in this case a split pension had no application to the rules of the scheme which had survived unamended from a time before the changes in the Revenue rules took effect. He approached the matter on the same basis as in Trustee Solutions: i.e. that the rules only permitted payment of a single pension calculated on retirement and that the right of a mixed NRD member to take his NRD 60 pension at 60 fell to be exercised through the early retirement provisions which (in that case) enabled the member to take the entirety of his pension subject to a reduction for payment prior to his NRD.

There was an appeal in Trustee Solutions against that part of Lewison J’s judgment which dealt with the entitlement of Mr Dubery to retire at 60 and to take the whole of his pension on the basis of early retirement. The Court of Appeal allowed the appeal and substituted for Lewison J’s order a declaration that members of the scheme who had the right to retire at 60 in respect of any part of their service and were aged between 60 and 64 at the date that the winding up of the scheme commenced fell within section 73(3)(b) but not in respect of pension accrued by service to which an NRD of 65 applied.

Although the issue of entitlement arose and was decided in the context of section 73 of the Pensions Act 1995, the reasoning of the Court of Appeal is relied on by the Company in this case to support the argument (rejected by Lewison J. in Toray Textiles) that the effect of Article 119 was to impose a split pension regime in respect of the NRD 60 rights accruing to a male mixed member as a result of pensionable service during the Barber window. This has led to argument as to the scope of the Court of Appeal’s decision and the basis on which it was made.

The only reasoned judgment was that of Sir Peter Gibson with which the other members of the Court concurred. In paragraph 22 he refers to the argument of Mr Rowley QC who appeared for Mrs Cripps, the representative defendant entitled to a deferred pension who was joined to oppose the argument that Mr Dubery enjoyed priority in the winding up. As recorded in the judgment, Mr Rowley advanced three possible answers to the question of what entitlement Mr Dubery had. The first was that no entitlement to payment of pension had arisen at all; the second was that the only entitlement which had arisen was to payment of the Barber window benefits; and the third was that Mr Dubery was entitled to payment of the whole of his benefits (i.e. both the Barber window benefits and the pension accrued by reference to an NRD of 65). This was the solution which had been adopted by Lewison J.

On the appeal Mr Rowley contended primarily for the second alternative with the first as his fall-back position. Part of his argument turned on the meaning to be given to the words “where a person’s entitlement to payment of pension or other benefit has arisen” in section 73(3)(b). These words indicated, he submitted, a pension in payment rather than merely an accrued right to such pension. He also contended that under section 73(3)(b) a right to call for payment of a pension was not the same as an entitlement to receive it. Ultimately, however, none of these arguments prevailed. Mr Rowley conceded that if “entitlement” in section 73(3)(b) had to be given a meaning which included (as the judge had held) an immediate and unconditional right to payment then Mr Dubery had such an entitlement as a result of the decisions in Barber and Coloroll at least in respect of the pension payable by reference to an NRD of 60. But the entitlement, he said, was limited to these rights.

Much of the discussion before me about Sir Peter Gibson’s judgment centred on paragraph 30:

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

The first line of argument (as set out in paragraph 31 of the judgment) was that section 73 was not concerned with payment but with the application of the scheme assets on a winding up. Neither the rules of the scheme nor the Inland Revenue requirements at the time when the scheme came into effect contemplated differing retirement dates for any members. They all proceeded on the footing that the members’ pension benefits fell to be determined by reference to a single point in time. The effect of Article 119 in relation to male members in service as at 17^th May 1990 was never contemplated and no provision was made for it. Mr Rowley in his Skeleton Argument (a copy of which I have been shown), therefore, contended that, in order to meet the introduction of a second NRD of 60 in relation to pensionable service within the Barber window, both the rules and the Inland Revenue requirements should be modified to allow the male members to take their Barber window benefits at 60 without that right being construed as applying to their remaining benefits under the scheme.

Sir Peter Gibson accepted this argument. In paragraphs 33-35 of his judgment, he said this:

“33.

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

34.

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

35.

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

Having looked at Mr Rowley’s Skeleton Argument, it is not clear to me why Sir Peter Gibson refers to there being an alternative European law route to the same result. The arguments based on European law were those set out in paragraph 33 of the judgment which he and the other members of the Court of Appeal accepted. It is, of course, correct that these arguments were used to support a case about priorities under section 73 but section 73(3)(b) bases the order of payment on the individual member’s entitlement to pension under the rules of the scheme and the general law and this is the question which Sir Peter Gibson was therefore dealing with in paragraph 33 of his judgment.

Although therefore Trustee Solutions is, strictly speaking, a decision about the order of payment under section 73, the reasoning of the Court of Appeal must, it seems to me, apply to cases where the issue is whether a mixed NRD member retiring at 60 during the Barber window has a right to receive not merely his NRD 60 pension benefits but also the whole of his pension including that referable to an NRD of 65. Given that Lewison J’s decision in Toray Textiles was based on his reasoning in Trustee Solutions, it is argued by the Company that it is subject to the same criticisms even though in that case the Barber window had closed.

I shall return to consider the arguments on this point in more detail later in this judgment but, before dealing with the specific questions raised in the amended claim form, it is necessary to begin by outlining the changes made to the rules over the relevant period and the evidence about the factual background to these changes.

The Scheme was established by a Trust Deed dated 21^st December 1956 but one can begin with the Trust Deed and Rules dated 8^th November 1979 which were in force at the date of the decision in Barber. Under the rules:

““Normal Retirement Date” in relation to a Member means the 65^th birthday if a male or the 60^th birthday if a female (which also coincides with the State pensionable age).”

Rule 5 sets out the pension benefits. Under rule 5(a) a member was entitled at his or her normal retirement date to a pension of ¹/₆₀^th of Final Pensionable Salary for each complete year of pensionable service. Rule 5(b) set out the provisions governing early retirement as follows:

“A Member may with the approval of the Employer by notice in writing to the Trustees elect to retire from the Service of the Employer after attainment of his 50^th birthday…The amount of pension which each Member will receive…will be:-

(i)

if retirement is with the consent of the Employer after attainment of the Member’s 50^th birthday (other than due to Disability) a pension calculated in the like manner to a pension payable under 5(a) above reduced by ½% for each month of the period by which the date of commencement of payment precedes his Normal Retirement Date…”

Finally, clause 10 of the 1979 Trust Deed contained a power of amendment in the following terms:

“The Principal Company and the Trustees may jointly from time to time by Deed alter cancel modify or add to any of the provisions of this Deed and by memorandum under hand (signed in the case of the Principal Company by a director duly authorised) alter cancel modify or add to any of the Rules, provided that no such alteration cancellation modification or addition shall

(i)

authorise the application of the Fund or any part thereof for any purpose other than the benefit of the Members or other persons as hereinafter provided, or

(ii)

cause the main purpose of the Plan to be other than the provision of pensions for the Members, or

(iii)

be such as to prejudice the approval of the Plan as an Exempt Approved Scheme, or

(iv)

prejudice any benefit attributable to the service of a Member prior to the date of such alteration cancellation modification or addition without his consent in writing”.

Following the decision in Barber steps were taken by the Company to consider what changes needed to be made to the Scheme. It is important to bear in mind that, whilst confirming the application of Article 119 to the Scheme with effect from 17^th May 1990, the ECJ had given only limited guidance as to how the principle of equalisation should be implemented in respect of NRDs. It was not until the decision in Coloroll in September 1994 that it became clear that there had to be a levelling up of retirement dates within the Barber window but that the employer and trustees retained the power to provide a long-term solution which could include the levelling down of NRDs and therefore the resumption by male employees of their pre-Barber NRD of 65.

The uncertainties created by the decision are evident in the notes of the Trustees’ meetings held soon afterwards. Advice was sought from Hogg Robinson (and Leading Counsel) with a view to formulating recommended rule changes to be put to the Company. The advice from Counsel was that only benefits accruing after 17^th May 1990 need be equalised. Representatives from Hogg Robinson attended the Trustees’ meeting held on 19^th July 1990 and expressed the view that the important area to consider was early retirement between the ages of 60 and 65 when men and women ought to be able to retire on equal terms. On the following day Mr Ross of Hogg Robinson wrote to the Company setting out their recommendations pending further clarification of the effects of the Barber decision:

“Taking account of the uncertainty of the judgement we suggest that you adopt the following policy:

i)

That the Company requests that the Trustees operate the Scheme to provide the benefits in (ii) and (iii) below for a period of one year. During the period the benefits provided as a consequence of (ii) and (iii) shall be granted by way of an additional augmentation of benefit or extension of rights. At the end of one year we suggest that you review the benefits in the light of the then knowledge about Barber.

ii)

That any person requesting early retirement having attained age 60, be granted early retirement without the application of discount factors and that any man requesting early retirement before age 60 have applied to him the same early retirement factors as would apply to a woman seeking the same early retirement whose normal retirement date is age 60.

iii)

that any woman whose normal retirement date is her 60^th birthday, and who requests that she should work and be pensioned thereafter, be offered the opportunity to work to her 65^th birthday and accrue further units of pension until then.”

The Company considered this advice at a meeting held on 24^th July 1990 and accepted the recommendations, subject to the policy being reviewed in a year’s time. The Trustees agreed to this course of action at their meeting in December and in their 1991 Report to Members (which covers the period up to 31^st March 1991) they explained how, faced with the inconsistencies (as they put it) in the Barber judgment, the Company had taken short-term measures under which:

“1.

All female employees engaged after 1^st April 1990 have a Normal Retirement Age of 65.

2.

As a temporary measure, any male member who retires early will have his benefits calculated on the basis applicable to a female member of the same age. Early retirement factors, at the rate of 4% per annum, will only apply if retirement takes place before age 60. Otherwise accrued retirement benefits are unreduced for early retirement between 60 and 65.”

They, therefore, agreed to disapply the provisions of rule 5(b)(i) which required a pension payable on early retirement to be reduced to take account of the period between early retirement and the member’s NRD.

Mr Francis Bird, the Human Resources Director of the Company, says in his evidence that the 1991 Report was not sent out until late 1991 which is consistent with some of the references in the introduction to events in December of that year. But the evidence is that the temporary early retirement policy continued into 1992 unchanged pending a decision on a permanent solution. In about January or February 1992 Hogg Robinson made a presentation to the Board of the Company entitled “Life after Barber”. It consisted of a series of slides setting out various available options. The presentation began with a reference to the temporary policy set out in the 1991 Report under which all female employees engaged after 1^st April 1990 were to have an NRD of 65 and there was to be a flexible approach to early retirement by male employees between the ages of 60 and 65 with no reduction of benefits. The later slides refer to the decision in Barber not to backdate the application of Article 119 to the period prior to the 17^th May 1990 and to the options available for equalising pension ages with the respective advantages and disadvantages of each alternative. Not surprisingly, the Board was told that a uniform NRD of 60 would be popular with the trade unions and some of the workers but was expensive to provide. Conversely, at the other end of the scale, an NRD of 65 for both sexes would be a cost-saving for the Company but would take away the right of women to retire at 60.

There is no real evidence as to what was said during the presentation beyond what is stated in the text of the slides. It does, however, appear that the option put forward by Hogg Robinson as to the likely objective was an NRD of 65 for all employees with provision for early retirement with consent. What is significant is that the disadvantages for this option were stated to include the fact that it would take away women’s existing rights and the rights of male employees under Barber in respect of service since 17^th May 1990. One of the slides indicates that the Board was told by Hogg Robinson (correctly) that, for the period from 17^th May 1990 to 31^st March 1992 (which I take to have been the intended commencement date for any changes to the Scheme rules), both men and women had the right to retire at 60 which could affect both early retirement and deferred pension but not their NRD pension rights. This is, therefore, some evidence that the changes in fact introduced were made in the knowledge that they might not be fully Barber compliant.

On 26^th February 1992 the Trustees met and approved the 1991 Report containing the statement of policy referred to above. This was followed by a booklet to staff members which was distributed to the Trustees at their meeting on 28^th May 1992 and was then made available to members of the Scheme. It included details of the changes concerning NRD and early retirement. At the same meeting the Trustees also approved a draft announcement to members setting out the action so far taken to comply with Barber and the changes proposed for the future:

“ACTION TO DATE

We have already taken certain equality measures:

•

From 1990 onwards any man who is a member of the Foster Wheeler Pension Plan has, with the agreement of the Company, been able to retire early between the ages of 60 and 65 without suffering any reduction to the pension earned up to the date of his early retirement…

•

All women employed from 1 April 1990 have entered the Plan on the basis of a Normal Retirement Date of 65…

ACTION FOR THE FUTURE

Even though the Foster Wheeler Pension Plan complies with the European Court Barber ruling in practice, it is necessary to make the following changes to the formal rules of the Plan and these will come into force on 1 June 1992:

Common Normal Retirement Date

With effect from 1st June 1992 Normal Retirement Date in the Foster Wheeler Pension Plan will be 65 for everyone.

Early Retirement

As at present all early retirements will be subject to the consent of the Company. However men or women retiring from the service of the Company between the ages of 60 and 65 will, subject to such consent, be able to take an immediate pension without any reduction, just as they can at present”.

It is not entirely clear who was intended to receive this material. The intention expressed at the 28^th May meeting was to distribute it with the booklets which were to go to new recruits but the 1992 Report to Members (for the year up to 31^st March 1992) states that all contributing members received the new pension booklet. Mr Bird says in his fourth witness statement that the booklets were sent out on or before 1^st June 1992 but the evidence of Mr Andrew Hanley, the Chairman of the Trustees, is that the announcement set out above was sent sometime after June 1992 but before August 1993. He says that he does not recall any general mailing of the booklet to all existing active members at the time. Of the other witnesses who were members during this period some say that they believe they did receive the announcement with their benefit statements but others have no recollection of receiving either the announcement or the booklet. In the context of proceedings of this kind, it is not possible to resolve these uncertainties.

The April 1992 booklet (which was approved at the 28^th May 1992 meeting) contains a summary of the provisions of the Trust Deed and the Rules of the Scheme. In the introduction it states, however, that:

“in the event of any discrepancy between this booklet and the formal documents, the latter will prevail. This new version of the Plan Booklet incorporates all changes and improvements up to April 1992. It supersedes all previous booklets.”

The booklet states that the NRD means the members’ 65^th birthday and that the members may retire early (after their 50^th birthday) with the Company’s consent but that no early retirement actuarial reductions will be applied to the pension of members retiring between their 60^th and 65^th birthday.

The change to an NRD of 65 was implemented in a revised Definitive Deed and Rules which was executed on 16^th August 1993. In the revised rules “Normal Retirement Date” is defined as:

“(a)

prior to 1^st June 1992, in respect of a Member other than a Main Board Director Member, the 65^th birthday if male or the 60^th birthday if female (or the 65^th birthday if a female who first became a Member on or after 1^st April 1990);

(b)

on and after 1^st June 1992, in respect of a Member other than a Main Board Director Member, the 65^th birthday”.

It is common ground that these new rules only took effect from 16^th August 1993 and that this date should be substituted when reading them for the references to 1^st June 1992 which is explicable as the date of the announcement described in paragraph 58 above. But one of the issues raised by the Company (question (2)) is whether members are estopped from claiming a pension entitlement based upon an NRD of 60 in respect of service after 1^st June 1992 in the light of the statements contained in the announcement and the April 1992 booklet. The 1993 amendments to the Rules also included a new rule 8(1) dealing with early retirement. This provided that:

“If a Member is not entitled to a pension under sub-Rule 7(1), he may, with the consent of the Company before Normal Retirement Date and after his 50^th birthday, elect to retire from Service and to receive an immediate pension of an annual amount calculated as in sub-Rule 17(3)(a) but then reduced by 0.5% for each complete month in the period from the Member’s date of retirement to the Member’s 60^th birthday (Normal Retirement Date prior to 1^st April 1990) or on such other basis as the Actuary certifies to the Trustees as being reasonable or the Trustees may from time to time introduce”.

The reference to the members’ NRD being 60 prior to 1^st April 1990 appears to be simply an error and all parties to these proceedings accept that the words in parenthesis can be ignored.

The Rules were also altered to incorporate a new rule 22 dealing in part with the augmentation of benefits. Rule 22 provided:

“(1)

The Company may (subject to the agreement of the Trustees and to the payment of such additional sums, if any, as the Trustees shall require having regard to the advice of the Actuary) at its discretion direct that in relation to any Member the benefits provided by the Scheme or the terms and conditions thereof shall be different from those provided by the Rules, Provided That:

(a)

Inland Revenue Limits shall not be infringed or Approval of the Scheme otherwise prejudiced; and

(b)

unless the Member is not in Contracted-out Service, the Scheme shall comply with the requirements of section 32(2) of the 1975 Act in respect of such Member.

…

(3)

The Trustees may, subject to the consent of the Company, and subject to the payment of such additional sums (if any) as the Trustees shall require having regard to the advice of the Actuary and the remaining provisions of this Rule, provide (i) increased or additional benefits in respect of any Member…”

There is no material contained in the notes of the Trustees’ meetings or otherwise which explains the thinking behind this provision.

Apart from these changes in the Rules, the only other provision which I need to mention is the power of amendment contained in the Trust Deed itself. This was renumbered as clause 9 but remained unaltered with the same bar on any retrospective alteration of accrued benefits: see clause 9(e).

The 1993 Deed and Rules have not remained unamended. On 25^th November 1994 they were replaced by a revised Trust Deed and Rules which contained reformulations of the definition of NRD and the provisions governing early retirement. In the new deed the meaning of normal retirement date was simplified as follows:

““Normal Retirement Date” means:-

(a)

in respect of a Member other than a Main Board Director Member, the 65^th birthday;

(b)

in respect of a Main Board Director Member, the 60th birthday;”

Rule 8(1) was amended by the removal of the reference in parenthesis to a normal retirement date prior to 1^st April 1990 but was not otherwise altered. Rule 22(1) remained unchanged.

The flexible retirement policy introduced in 1990 and continued under the arrangements made to equalise the NRD of members following the decision of Barber remained in place throughout the 1990s. The evidence is that the Company’s usual practice was to give consent to early retirement under rule 8 with no actuarial reduction in the case of retirement between the ages of 60 and 65. The draft of the 1993 Trust Deed and Rules was prepared on the basis of advice from Hogg Robinson Financial Services Limited as to the implications of the Barber judgment and the Company accepted recommendations from the Trustees (based on this advice) that in the event of a member retiring with consent at or after the age of 60, no pension reduction could be made.

Mr Simmonds suggested (and I am prepared to accept) that the Company’s largely relaxed attitude towards giving consent to early retirement was linked to the fact that the Scheme was in actuarial surplus throughout this period. But the Actuarial Valuation as at 1^st April 1999 (dated 10^th March 2000) disclosed a deficit of £18 million based in part on the assumption that most employees would be allowed to retire from age 60 with no reduction for early retirement. By the time of the 2002 valuation, the deficit had increased to £57 million.

This caused the Company to review the operation of the Scheme and a working party was set up for this purpose in 2001. The result was a decision to close the defined benefits section to new members with effect from 1^st January 2003 and to reduce costs by phasing out early retirements with no actuarial reduction commencing on 1^st January 2008. It was appreciated that this proposal might give rise to legal difficulties having regard to the provisions of clause 9 of the Trust Deed and the Company, therefore, sought advice from Counsel (Mr Daniel Hochberg) about the proposed changes necessary.

By the time his advice was sought rule 8 (governing early retirement) had been further modified as part of the Revised Definitive Trust Deed and Rules dated 9^th April 2002. It now read as follows:

“If a Member is not entitled to a pension under sub-Rule 7(1), he may, with the consent of the Company before Normal Retirement Date and after his 50^th birthday, elect to retire from Service and to receive an immediate pension of an annual amount calculated as in sub-Rule 17(3)(a) but reduced to such extent (if any) as the Trustees shall, with the advice of the Actuary, consider to be reasonable and determine to be appropriate having regard to, among other things, the period between the date of its commencement and the Member’s 60^th birthday.”

The definition of NRD and the provisions of clause 9(e) of the Trust Deed remained unchanged.

Mr Hochberg advised (on 28^th August 2002) that any amendment of the rules which had the effect of imposing an actuarial reduction on the accrued pension entitlement of existing members would infringe the provisions of clause 9(e) and that, in order to impose such a reduction, an amendment would be necessary because:

“…..I do not consider that there is scope for the Trustees without amendment of the Rules to take into account the period between the Members’ 60^th and 65^th birthdays when considering whether to exercise the power to reduce, given the express reference in the clause to the period culminating on the Member’s 60^th birthday”.

This advice was summarised in a paper prepared by the Company’s new pension consultants (Hewitt Bacon & Woodrow) which is dated 18^th September 2002 in which they said:

“The Company has sought legal advice, and obtained a Counsel’s Opinion on the possibility of amending Rule 8(1) to allow pensions to be reduced for each year retirement precedes age 65. The legal advice is that this is not possible, due to the operation of Section 67 of the Pensions Act 1995 and more specifically, to Clause 9(e) of the Plan’s Trust Deed, which restricts the powers of amendment and is unusually restrictive”.

In the light of this advice, the Company decided to make changes to the pension payable on early retirement in relation to pensionable service after 1^st April 2003. This was summarised in an email sent to Hewitt Bacon & Woodrow on 24^th October 2002 by Mr Holt, the Company’s chief financial officer, as follows:

“To implement the early retirement proposals effective 1 April 2003 as previously discussed between us i.e. preserve the right to retire at 60 for service through to 1 April 2003, for service thereafter a [4]% discount for each year you retire before 65”.

On 12^th December 2002 the Company sent to members a letter explaining the decisions taken and the reasons for them. It enclosed a document containing various questions and answers about the changes to the Scheme. Two passages are particularly relevant. First of all, the letter itself said this:

“From 1 April 2003, if a member wishes to draw their pension before age 65 (their normal retirement date) and the Company consents to early retirement, the pension will be reduced for each year it is taken early before age 65. This will only apply to service from 1 April 2003. Pension in respect of service up to 1 April 2003 will be treated in accordance with current practice, that is, no reduction for early retirement between the ages of 60 and 65”.

Similarly, in the accompanying paper there is this paragraph under the heading “Retirement”:

“10.

How do the changes to the final salary section affect early retirement?

If you are a member of the final salary section and are retiring at the age of 60+ with the company’s permission, the benefits you earned up to 31 March 2003 will not be reduced. Benefits earned after this date will be adjusted so that you get a slightly reduced pension for this part of your service. This reflects the fact that you would expect the pension to be paid for longer than if you had waited to retire at normal retirement age.”

Against this background, rule 8(1) was amended on 30^th April 2003 so as to provide that:

“8(1) If a Member is not entitled to a pension under sub-Rule 7(1), he may, with the consent of the Company before Normal Retirement Date and after his 50^th birthday, elect to retire from Service and receive an immediate pension of an annual amount calculated as in sub-Rule 17(3)(a) but reduced to such extent (if any) as the Trustees shall, with the advice of the Actuary, consider to be reasonable and determine to be appropriate having regard to, among other things, in respect of Pensionable Service prior to 1 April 2003, the period between the date of its commencement and the Member’s 60^th birthday and in respect of Pensionable Service after 31 March 2003, the period between the date of its commencement and the Member’s Normal Retirement Date”.

Rule 5 (governing pension entitlement) was also amended in 2006 so as to reduce the accrual rate from 1/60^th to 1/80^th in relation to pensionable service from 1^st April 2006. It now reads as follows:

“At Normal Retirement Date a Member shall (subject to Inland Revenue Limits) be entitled to receive a pension of an annual amount equal to the aggregate of:

(a)

in respect of a Member other than a Member included in (b) below, a pension equal to (N/60^th plus P/80^th) x Final Pensionable Salary

Where:

N is the number of years and completed months (expressed as a fraction of a year) of Pensionable Service up to and including 1 April 2006; and

P is the number of years and completed months (expressed as a fraction of a year) of Pensionable Service up to Normal Retirement Date less the number of years and completed months (expressed as a fraction of a year) used to calculate N…”.

There have been no further material changes either to the definition of normal retirement date or to the provisions of rule 22(1).

I can turn now to the specific questions raised in the amended claim form. The references to mixed NRD members mean members who have accrued pension benefits by reference to both an NRD of 60 and an NRD of 65.

The Company originally contended that all members in this category joined the Scheme on the basis of an NRD of 65 based on the policy statement in 1991 and the definition of NRD in the 1993 Definitive Deed and Rules. The twelfth defendant, Veronica Gee, was joined to represent all members of this class but it is now conceded that the equalisation of NRD at 65 was not contractually effective before the 1993 Deed was executed on 16^th August 1993.

The answer to this question is, therefore, “yes”.

This question is concerned with the date on which the equalisation measures introduced by the 1993 Definitive Deed and Rules took effect. As already mentioned, the Company accepts that the Deed itself was only effective from the date of its execution on 16^th August 1993 and cannot, under the Barber principles, operate retrospectively: see paragraphs 21 and 63 above. The only issue, therefore, is whether members are estopped from disputing that the raised NRD of 65 prescribed by the 1993 Rules (see paragraph 62) took effect as stated on 1^st June 1992 as a result of the announcements and other material sent to them before that date announcing the change.

Mr Hitchcock made it clear that the Company accepted certain limitations to this argument. It is not advanced in relation to members who joined on or after 1^st June 1992 because there is no evidence as to whether joiners between that date and 16^th August 1993 assented to the rule change taking effect within that period. The estoppel claim and the evidence in support of it are directed to those who joined the Scheme before 1^st June 1992. Over and above that, it is also accepted that any estoppel could not, in any event, operate to introduce the rule change retrospectively in breach of clause 9(e) of the deed. To succeed the Company must, therefore, show that the estoppel took effect prior to 1^st June 1992.

Mr Hitchcock puts his case on the basis of an estoppel by convention which binds pre-1^st June 1992 joiners as a whole. The Company does not seek relief on these grounds against individual members who have given evidence if that evidence does not support a case against all members of the class.

The estoppel argument relied on is not a new one in the context of pensions. In Icarus (Hertford) Ltd v Driscoll [1990] PLR 1 certain amendments to a scheme reducing the benefits payable were notified to members in booklets sent out by the trustees but never formally implemented in accordance with the scheme. One of the issues which arose was whether the members were estopped from contending that the scheme provided for any rate of accrual other than the one notified as part of the change in the scheme benefits. Aldous J. held that they were. He relied on the passage in Lord Denning MR’s judgment in Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd[1982] 1 QB 84 where he described the principles underlying an estoppel by convention in these terms:

“The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”

The outline of the facts in Aldous J’s judgment is sparse in the extreme and does not really indicate his reasons for concluding that it would in that case have been unjust to allow the members to rely on the fact that the changes had never been validly implemented. But Mr Hitchcock submits that the application of the doctrine of estoppel by convention to pension schemes is now well established both as a matter of authority and principle (which I accept). He also referred me to the decision of Laddie J. in ITN v Ward [1997] PLR 131 who said that the question of whether the members of a scheme had acted on a shared assumption about its terms so as to bind them to that regime must be approached in a practical and commonsense way.

But in subsequent pension cases the criteria for the application of the doctrine have been spelt out in more detail. The most significant of these is the decision of Sir Andrew Morritt V-C in Redrow plc v Pedley [2002] EWHC 983. Having referred to the statement of principle in the Amalgamated Investment & Property Company Limited decision, he said this:

“61.

These principles have been considered in the context of a pension scheme by Aldous J in Icarus (Hertford) Ltd v Driscoll [1990] PLR 1, Laddie J in ITN v Ward [1997] PLR 131 and Rimer J in Lansing Linde v Alber [2000] PLR 15. I do not doubt that the principle is capable of applying to dealings between the trustees of a pension scheme and a member in relation to the contract between them. But, I suggest, the principle must be applied with caution when seeking to establish an estoppel between the trustees and the general body of members so as to bind them all to an interpretation of the trust deed which it does not bear.

62.

First, the pension scheme embodies not only the terms of a contract between individual members and the trustees but also a trust applicable to the fund comprising the contributions of members and surpluses derived from the past in which present and future members may be interested. Such trusts cannot be altered by estoppel because there can be no such estoppel binding future members.

63.

Second, it is necessary to show that the principle is applicable to all existing members. I agree with Laddie J in ITN v Ward that it is not necessary for that purpose to call evidence relating to each and every member's intention. But that will not absolve a claimant from adducing evidence to show that the principle must be applicable to the general body of members as such.

64.

Third, as the formulation of the principle shows, what must be proved is that each and every member has by his “course of dealing put a particular interpretation on the terms of” the rules or “acted upon the agreed assumption that a given state of facts is to be accepted between them as true”. This involves more than merely passive acceptance. The administration of a pension scheme on a particular assumption as to the yardstick by which contributions or benefits are to be calculated may well give rise to a relevant assumption on the part of the trustees. I suggest that it requires clear evidence of intention or positive conduct to bind the general body of members to such an assumption. I doubt whether receipt of the benefit or payment of the contribution, without more, can be enough. It must not be overlooked that if the principle is applicable it may be used to increase the liability or reduce the benefit of a member as well as, in this case, the opposite.

65.

The extra ingredients in this case relied on by Redrow are the explanatory booklets and the form of payslip. Had it been necessary to decide the issue, I would not have considered that either ingredient was enough. 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. With regard to the payslips, it could be deduced from those for a pay period in which the member had enjoyed a benefit in kind that it was not taken into account in computing the amount of that employee's contribution. The employee paid that contribution by deduction from his gross pay. But a member not receiving a benefit in kind would be none the wiser and there is nothing comparable in relation to the computation of benefits.”

This passage was quoted and applied by Lewison J. in Trustee Solutions (at paragraph 50) and was referred to with approval by the Court of Appeal in Steria Limited v Hutchison [2006] EWCA Civ 1551 at paragraph 109. When applied to the facts of this case, it gives rise to obvious difficulties.

In essence, for the estoppel to apply, it has to be shown that the members as a class agreed to the provision in question as governing their relationship with the trustees and their entitlement under the scheme. The booklet and draft announcement approved at the Trustees’ meetings in February and May 1992 (see paragraph 58 above) refer to the new common NRD for men and women of 65 coming into effect on 1^st June 1992 with the existing policy of early retirement with consent (but no reduction in benefit between 60 and 65) continuing. Although there is evidence that this material was distributed to a number of members at the time, the pattern and scale of distribution appears somewhat random and, as mentioned earlier, it is not possible to conclude that it was sent to and received by all or even most members concerned.

Mr Hitchcock places some reliance on the evidence of Mr Bernard Jennings of Hogg Robinson referred to earlier who says that he can recall the announcement being printed and believes that sufficient copies were prepared for circulation to all active members of the Scheme by 1^st June 1992. Although not responsible for distribution, he also says that a number of women members raised concerns about their retirement date following the making of the announcement which confirms what is recorded in the minutes of the Trustees’ meeting held on 27^th August 1992.

I am still not persuaded from this evidence that I can properly infer that the booklet was sent to and reached most if not all the relevant recipients by 1^st June 1992 which, as Mr Stallworthy pointed out, was only one clear working day after the Trustees’ meeting on 28^th May 1992. But my principal reason for rejecting the Company’s estoppel argument does not ultimately depend on how successful or not this circulation exercise proved to be or on its precise timing. It seems to me that none of the evidence relied on by the Company amounts to more than the passive acceptance of the information which the booklet contained. Even assuming that the booklet reached members before 1^st June, there is nothing in the material distributed to indicate that the changes to NRD were not to be introduced via a rule change in accordance with the procedure and safeguards prescribed by clause 9 of the Trust Deed or that the members, by their lack of complaint, can be taken effectively to have waived reliance upon those contractual rights. The April 1992 booklet also contains the proviso (quoted in paragraph 60 above) under which the provisions of the Trust Deed and Rules were expressly preserved in priority to the contents of the booklet. Although this caveat does not appear in the annual reports, it must be taken to have operated as an assurance that the Trust Deed and Rules (as amended in accordance with clause 9) remained at all times the governing instrument. In these circumstances, an argument that it would be unjust to require the Trustees or the Company to adhere to a date of equalisation which corresponds to the date of execution of the 1993 Definitive Deed and Rules becomes unsustainable. The answer to Question 2, therefore, is that the Scheme was equalised with effect from 16^th August 1993 and that members as of 1^st June 1992 are not estopped from claiming an entitlement based upon an NRD of 60 in respect of service after that date or indeed in respect of service at any time between 17^th May 1990 and 16^th August 1993.

all their pension (that is, both pension accrued on the basis of an NRD of 60 and on the basis of an NRD of 65) at age 60 without any reduction of the NRD 65 benefits for early receipt (save in respect of service after 31^st March 2003)?;

all their pension at age 60 but with all the NRD 65 benefits reduced for early receipt?; or

NRD 60 benefits at age 60 and NRD 65 benefits at age 65?

For obvious reasons, these questions need to be considered together. Question 3 is directed at the present entitlement of members following the coming into effect of the 1993 Definitive Deed and Rules and the subsequent amendments to them. Literally construed, the current rules of the Scheme do not provide for any of the three alternatives canvassed. They provide for a single pension payable at an NRD of 65 for both men and women with provision for early retirement with the Company’s consent. In the event of a member retiring between the ages of 60 and 65, rule 8(1) (see paragraph 75 above) expressly provides for a reduction in the amount of pension benefits based on service after 31^st March 2003 but there is a dispute as to whether the Trustees have power to make a similar reduction under that rule in respect of pensionable service prior to that date. Any such reduction would, of course, contradict the statement about retirement contained in the letter sent to members on 12^th December 2002: see paragraph 74 above.

It is, however, common ground that the 1993 Rules as subsequently amended could not remove or abrogate the rights of members to retire and to take their pension entitlement accrued on the basis of an NRD of 60. As explained earlier, a female employee accrued such rights from her membership of the Scheme prior to 16^th August 1993. A female mixed NRD member with pensionable service from a date prior to 17^th May 1990 remained unaffected by the application of Article 119 during the Barber window and the changes made in 1993 to equalise the NRD of all members at 65 could not be retrospective so as to remove her accrued rights. The change for her was the introduction of further accruals of pension based on future pensionable service by reference to an NRD of 65. In the case of male employees, their right to a pension based on an NRD of 60 accrued only during the Barber window but was the effect of the direct application to their pension rights under the Scheme of Article 119. It is accepted that this entitles a male member under European law to take his NRD 60 pension rights at 60 notwithstanding the changes implemented in August 1993.

The question in both cases is how these rights are to be implemented in the context of a scheme which, as currently drawn, makes no provision for split pensions and arguably only limited provision for the reduction of benefits in the event of early retirement at or after the age of 60. The first of the three possible answers canvassed in Question 3 corresponds to that given to this question by Lewison J. in Toray Textiles and assumes (as he did) that the only change to the rules required to give effect to members’ NRD 60 rights is the removal of the requirement for the company’s consent to early retirement. It also assumes that Mr Hitchcock is wrong in his argument that, notwithstanding its immediate history, rule 8, on its true construction, preserved an existing power on the part of the Trustees to reduce pension benefits actuarially in the event of early retirement between the ages of 60 and 65 even in respect of pensionable service before April 2003. In order to consider this argument, it is convenient to deal with Question 8 at this stage in conjunction with Question 3.

The second possible answer to Question 3 is a refinement of the first. It also assumes that the members’ NRD 60 rights are to be implemented via early retirement but on terms that their NRD 65 rights are reduced for early receipt regardless of when they accrue. It, therefore, covers the NRD 65 rights of mixed male members which pre-dated the Barber window as well as those of both sexes acquired after 16^th August 1993. The imposition of a general reduction and not one limited to benefits accrued from pensionable service after 31^st March 2003 is put on two bases: the true construction of rule 8 and (in any event) the direct application of Article 119 to the Scheme rules regardless of their current form. This latter argument requires me to depart from the decision of Lewison J. in Toray Textiles and is an alternative to a split pension solution.

The third alternative is the split pension regime which assumes that pension is taken in tranches and increases when the NRD of 65 is reached. It does not, therefore, depend upon the member taking early retirement as such or necessitate any actuarial reduction under rule 8. But it does require one to accept that the implementation of the Barber window rights for men necessitates re-writing the Scheme to permit a variable pension. It also requires me to reject the reasoning of Lewison J. in Toray Textiles but, as support for this approach, reliance is placed on the Court of Appeal’s decision in Cripps. This is the Company’s primary case in relation to Question 3.

It is relevant to mention that the Company also contends as its argument in relation to Question 9 that rule 22(1) of the Scheme would permit it (with the agreement of the Trustees and on the advice of the Scheme actuary) to direct the payment of split pensions to mixed NRD members. But on the application of the Coloroll principles, Mr Hitchcock accepts that this would not be sufficient to give effect to Article 119 whose direct application cannot depend on the giving of consent by the Trustees. In any event, there has been no purported exercise to date of the rule 22(1) power. It is, therefore, relied upon in the event that the Company is unsuccessful in its contention that alternative (c) is the only possible answer to Question 3 and wishes for the future to impose split pensions as its preferred method of making the Scheme Barber compliant. I shall, therefore, come to rule 22(1) later in this judgment.

I think it is helpful to begin with the construction of rule 8. In considering what changes (if any) are required to the current rules in order to accommodate members’ rights to take their NRD 60 pension entitlement, one first needs to determine what the current rules provide. Mr Hitchcock began by reminding me of the principles of construction to be applied to pension schemes. I endeavoured to set these out by reference to the earlier authorities in my judgment in Law Debenture Trust plc v Lonrho Africa Trade & Finance Limited [2002] EWHC 2732 (Ch) and they can be summarised as follows:

Despite these warnings, Mr Hitchcock embarked on a detailed examination of the development of what is now rule 8(1) beginning with the 1975 Supplemental Trust Deed and Rules. His argument in relation to rule 8(1) as it stands following the April 2003 amendments (see paragraph 75) turns on the words “among other things”. These are relied on as preserving a general discretion which it is contended formed part of the 1993 rules to reduce benefits in order to take account of the period between early retirement and the members’ NRD of 65.

I have set out the terms of the 1993 version of rule 8(1) in paragraph 63. Although the rule makes a reduction in respect of the period prior to a member’s 60^th birthday mandatory, the Company contends that the concluding words gave the Trustees (not the Company) a general discretion to impose any other reduction that was reasonable having regard to the date of early retirement and any other relevant factors.

If one goes back to the 1975 Trust Deed and Rules the ability of members to take early retirement (apart from on grounds of disability) was governed by rule 5(b) which provided that:

“A Member may retire from the service of the Employer with the approval of the Employer within a period of 10 years prior to the Normal Retirement Date or at any time on account of Disability. On retirement pursuant to this sub-rule the Member shall be entitled to a reduced pension (referred to in the Appendix as the “Early Retirement Pension”) …”

The Appendix defined the Early Retirement Pension as follows:

“The Amount of pension which each Member and Scheme A Member will receive on retirement before Normal Retirement Date will be:-

(a)

If retirement is with the consent of the Employer within 10 years of Normal Retirement Date (other than due to Disability) a pension calculated in the like manner to a pension payable under sub-paragraph I of this paragraph reduced by ½% for each month of the period by which the date of commencement of payment precedes his Normal Retirement Date”.

In the Trust Deed and Rules dated 8^th November 1979 in force when Barber was decided, rule 5(b) remained in the same form with a mandatory reduction of 0.5% for each month of the period between retirement and the member’s NRD (see paragraph 50 above) but, as explained earlier, the policy enshrined in this rule was changed as part of the measures taken to implement Barber. The Trustees and the Company accepted the advice of Hogg Robinson that any person seeking early retirement after attaining the age of 60 should be allowed to retire without the application of any reduction in his pension benefits: see paragraph 54.

This and the history of the steps leading up to the execution of the 1993 Definitive Trust Deed and Rules which I have set out in paragraphs 56 to 61 undoubtedly form part of the relevant factual background against which the 1993 rule changes have to be construed. Although, if read in isolation, it might be thought that the concluding words of rule 8(1) of the 1993 rules are general in nature, that is not how I believe they should be understood. Consistently with the change in policy regarding early retirement, the concluding words, in my view, give the Trustees power to impose a different measure of reduction to the 0.5% rate in the case of retirements before the age of 60 but not one to impose reductions in respect of retirements from the age of 60 onwards.

The rule was next revised in 2002. By then (unlike in 1993) the Scheme was, to everybody’s knowledge, in deficit by as much as £57 million; the defined benefits section had been closed to new members and steps were being taken to find ways of phasing out early retirement. The 2002 version of the Rules (see paragraph 71) removes the reference to the mandatory reduction of 0.5% and replaces it with a discretionary reduction which the Trustees, with the advice of the Scheme actuary, consider to be reasonable and appropriate “having regard to, among other things, the period between the date of its commencement and the Member’s 60^th birthday”.

The 2002 version of rule 8(1) was, therefore, the first one to introduce the phrase “among other things” which the Company now relies on. Mr Hochberg (see paragraph 72) took the view that the express requirement for the Trustees to take into account the period between the date of retirement and the member’s 60^th birthday indicated that they were not required to have regard to the period thereafter. Mr Hitchcock says that this was too narrow a view of the meaning of the rule, but I disagree. The 2002 version of the rule makes the Trustees’ decision dependent on the advice of the actuary. I agree with Mr Simmonds that the actuary would have had no role to play in deciding whether the years between a member’s 60^th and 65^th birthdays should be taken into account. His only role would be to advise on the rate of reduction once that policy decision had been made. Reference to “among other things” does not therefore, in my judgment, displace the express reference to the period up to the member’s 60^th birthday as being the only period of time in respect of which a reduction might fall to be made. This is also consistent with what we know of the position in April 2002. As of then no decision had been made as to how to deal with the funding problems created by early retirements and there is nothing to indicate that the 2002 version of rule 8 was intended to alter the substance of the rule. It was only in August 2002 that Mr Hochberg’s advice was received and considered and later that year a decision was made in the light of that advice to introduce reductions in benefits for the period up to a retiring member’s 65^th birthday.

It follows from this examination of the history of the amendments leading up to the current version of rule 8(1) that I do not accept Mr Hitchcock’s premise that the words “among other things” have the effect of preserving some pre-existing discretion to impose reductions in benefits up to the age of 65. That power has not, in my view, existed since 1993. But the issue of construction of rule 8 can also be dealt with much more shortly.

It is beyond dispute that Mr Hochberg advised and the Company accepted that the 2002 version of rule 8 did not allow reductions in benefits on early retirement in respect of the period between the members’ 60^th and 65^th birthdays. The change to the rule in 2003 was, therefore, designed to introduce a reduction in benefits for this period. However, because of rule 9(e) of the Trust Deed, this could not be retrospective. In fact (presumably by accident rather than design) the rule change was implemented on 30^th April 2003 with the benefit reduction applying to pensionable service from 1^st April 2003. It was obviously only effective from 30^th April. But, this aside, the 2003 version of the rule expressly differentiates between pensionable service prior to and from 1^st April 2003 and imposes a power to reduce up to a member’s NRD only in respect of the latter period.

My rejection of the argument that a wider power of reduction has remained post 1993 is, of course, destructive of the Company’s argument based on the retention in the 2003 rules of the words “among other things”. But in the light of Mr Hochberg’s advice and the December 2002 letter to members, it would be little short of perverse to reach the conclusion that rule 8(1) in its current form was intended to impose a power of reduction which the Company accepted did not exist and which could not be imposed de novo on a retrospective basis.

The answer to Question 8 is, therefore, that rule 8(1) does not permit all pension accrued on the basis of an NRD of 65 to be reduced on account of early retirement but is limited to such benefits accrued as a result of pensionable service from 30^th April 2003.

The consequence of this is that it is not possible to get to the Question 3(b) solution via the construction of rule 8(1) in its present form. That can only be the correct answer to the question if it is the method of implementing the Barber window rights of members which is imposed as a matter of European law regardless of the current rules of the Scheme.

This, therefore, brings me to the central (and by far the most difficult) question which is, what modifications to the rules are in fact required?

It is important to stress that the only relevant question (and the one posed by Question 3) is, what pension rights mixed NRD members are now entitled to take following the 1993 and subsequent rule changes. The operation of Article 119 during the Barber window is obviously highly relevant as part of the background to those changes because it dictated the form and substance of the Scheme rules at the time when the 1993 Definitive Deed and Rules were brought into effect. But it is not necessarily determinative of the present position. The ECJ in Coloroll emphasised that measures taken by the employer and trustees to bring the scheme into conformity with the equal pay principle had to result in men and women receiving the same pay for the same work but were not required to set any particular level of pay. It must follow from this that the steps taken to close the Barber window by equalising pension entitlement between the sexes need not replicate the interim solution imposed as a matter of law during that period.

Mr Hitchcock, for the Company, began his argument on this point by relying on the approach taken by the Court of Appeal in Cripps and, in particular, the emphasis on any modification in the rules not going beyond what was necessary to give effect to European law. He says that the reasoning underlying the decision is equally applicable to the position following closure of the Barber window and that Article 141 as it now is should not give rise to rights on the part of the employee which the employer never intended to provide. If those contending for answer (a) to Question 3 are right then by abrogating the requirement for consent to early retirement, the effect of Article 141 has been to give all members the right to take the entirety of their pension at 60 unreduced except in respect of service after April 2003. This, he submits, exceeds what is necessary to give effect to their Article 141 rights and does not respect the reasoning in Cripps.

In terms of authority he, therefore, invites me not to follow Lewison J’s decision in Toray Textiles which he says has to be treated as inconsistent with the subsequent decision of the Court of Appeal in Cripps. In making this submission, Mr Hitchcock accepts that in Toray Textiles the Barber window had been closed in a similar way to that adopted in 1993 in this case but the proper implementation of the Barber window rights requires, he says, more than the removal of the requirement for consent to early retirement. To approach the matter in this way mischaracterises the nature of the Barber entitlement. The application of Article 141 does not confer merely an early retirement right but, as the decisions in Barber and Coloroll indicate, an absolute right to equal treatment and to accrue and receive a pension by reference (in the case of men) to an NRD of 60 comparable to the rights of female employees during the same period. The early retirement rules are not, therefore, either a safe or an appropriate place to base any implementation of these rights and what is required is for the Scheme to be remodelled to give male employees a clear and independent right to take their NRD 60 pension. On the reasoning in Cripps this can only be done via a split pension.

The argument which follows from this is that the split pension regime is the one imposed by Article 119 during the Barber window in respect of the NRD 60 rights of male members. They are entitled, as of right, to retire and take that pension at 60 but not to any pension entitlement based on their NRD 65 accruals until they reach that age. Given that this is the correct (and Mr Hitchcock contends the only principled) application of Article 119 during the Barber window, it continues, he says, to apply thereafter and to govern the rights of female members to their NRD 65 pension accruals which have to reflect the entitlement of male members to their own NRD 65 pension rights under the split pension regime.

It seems to me that the correct starting point from which to consider these arguments has to be the acceptance of all parties that the measures taken in 1993 were effective to close the Barber window. No one wishes me to approach Question 3 on any other basis. This must mean that the changes to the Rules made the Scheme Barber-compliant, although in terms they continued to provide for a single pension payable by reference to an NRD of 65.

The solution adopted by Lewison J. in Toray Textiles was to construe the early retirement rules so as to allow members’ NRD 60 rights to be taken without the employer’s consent. As Mr Simmonds pointed out, a possible criticism of that approach is that it places too much reliance on the construction of the Rules rather than looking to see whether the Rules as drawn to close the window adequately modify the Scheme in order to give effect to the principle of equalisation but nothing more. This is the criticism made of Lewison J’s judgment by the Court of Appeal in Trustee Solutions.

But in Toray Textiles the judge was, of course, dealing with a case where (as here) it was accepted that the measures taken had been effective to close the Barber window. He was not concerned with the question which arose in Trustee Solutions of what modifications to the scheme were imposed as a matter of law by the direct application of Article 119. In deciding whether the answer to these two questions should be the same or different, one needs, I think, to bear in mind both the wide margin of discretion conferred by European law on the trustees of individual schemes as to how equalisation should be implemented post the Barber window and the limitations (referred to earlier) on what the principle of equal pay is intended to achieve.

The difficulty which I have with the Company’s main argument is that it is necessarily based on split pensions being the only proper method of implementing the equal pay principle. If this argument is correct, it would effectively tie the hands of trustees and employers in relation to the measures taken at the end of the Barber window. This would be contrary to the decision of the ECJ in Coloroll and also, I believe, wrong in principle.

Whilst it is true that the rights which a male member of the Scheme obtains during the Barber window are simply rights to a pension at NRD 60 based on service in that period, it is important not to confuse the nature of the right with the way in which it may legitimately be enforced. As to that, it is necessary I think to look more widely at the other rights which are dealt with under the Scheme. At the risk of repetition, the rights of female employees in service both up to and during the Barber window were to a pension accrued by reference to an NRD of 60 and payable on retirement at that age. These were rights under the Scheme which did not depend on and remained unaffected by the application of Article 119. Their only relevance in that context was that they provided the model to which, under the Barber principles, the rights of male employees after 17^th May 1990 had to conform.

Therefore, the immediate application of Article 119 necessitated levelling up the NRD of male members in respect of service during the Barber window to 60 and giving them a right to take that pension entitlement at 60. Mr Bryant submitted that, because female employees were entitled to retire during this period at 60 and to take the entirety of their pension on retirement, a similar right had to be conferred on their male counterparts by permitting them to retire early at 60 on a full pension. I am not persuaded about that. The right of female employees to a full pension at 60 was due to their having accrued their pension rights up to then by reference to an NRD of 60 under the Scheme. No question of early retirement arose. But the decision in Barber that the principle of equalisation of retirement dates should not apply before the commencement of the Barber window on 17^th May 1990 meant that male employees had a right to accrue and take only part of their pension by reference to an NRD of 60. In principle, I cannot see why the creation of a split pension scheme would not have given to them the degree of equalisation to which they were entitled under Article 119 consistently with the reasoning in Cripps.

In the end, however, the point was never tested because the interim policy adopted prior to the rule change in 1993 allowed men to retire early after 60 on a full pension. On any view this was Barber-compliant. It is also important because (as explained earlier) it largely dictated the modifications subsequently made to the Rules. There was no change from a single pension being payable but, on early retirement after 60, a member became entitled to a pension unreduced for being taken early prior to the now generally applicable NRD of 65.

Notwithstanding the requirement for the Company’s consent to early retirement under rule 8(1), it is common ground that after 16^th August 1993 a female employee retained a right to retire at 60 and to take her NRD 60 pension unaffected by the rule changes. As mentioned, these rights owe nothing to Article 119 and simply represent the accrued pension entitlement of female members preserved by the operation of clause 9(e) of the Definitive Trust Deed. But, in the context of the 1993 Rules, they can only be given effect to through the medium of early retirement. As Lewison J. pointed out in Toray Textiles, there can only be one pension and one retirement and so, on a female employee electing to take her NRD 60 rights, the consequences of early retirement necessarily follow.

Although the Rules of the Scheme require to be modified in order to allow this to happen, again the form and scale of the modification are dictated by the female employees’ Scheme rights and not by the application of the Treaty. The reasoning in Cripps has, therefore, no application to this process and the terms to be implied need go no further than is necessary on ordinary principles to give effect to the rights being enforced. Since this can be achieved under the early retirement rules simply by deeming consent on the part of the Company, there can be no justification for imposing a split pension regime which would require a radical and complete re-writing of the Scheme. To do so would also be inconsistent with the provisions of rule 8(1) which, in my view, continued the policy of permitting early retirement on a full pension.

From 16^th August 1993 onwards the equalisation of pension rights under the Scheme involved the imposition of an NRD of 65 for both sexes but this was not effective to remove the male employee’s Article 119 right to take his NRD 60 pension at 60 any more than it affected the Scheme rights of female employees to that part of their pension. In relation to this, the 1993 Rules are silent but the principle of equalisation must operate to confer upon male employees rights corresponding to those enjoyed by female employees: i.e. a right to retire and take their NRD 60 pension at 60. Since this is effected in the case of women by the implication of consent to early retirement, it seems to me that the same must apply to the Barber window rights of men.

I do not, therefore, accept that the enforcement of a male employee’s Article 119 rights requires or justifies in this case the imposition of a split pension regime. In essence, Lewison J. was right in Toray Textiles to treat the question as being one of construction because, on analysis, it is the implication of terms necessary to give effect to female employees’ rights which determines the regime applicable to men. But there is also a wider point which leads to the same conclusion.

A critical part of the background to any consideration of what should be the correct method of giving effect to male NRD 60 rights after 16^th August 1993 has to be the steps taken to close the window. Once it is accepted that the 1993 Rules were effective for this purpose, it becomes impossible in my judgment to sustain an argument that a split pension regime is the only method of closing the window or (which amounts to the same thing) that it should be taken as overriding the structure of the regime which the Trustees and the Company in fact chose as the method of giving effect to Article 119. That argument fails to respect the margin of discretion conferred by European law or the manner in which it has been exercised. The fact that the Company and the Trustees might have chosen a different method of implementing Barber rights is, in my view, irrelevant. On an application of this kind the Court has to consider the Rules as they stand.

I was referred by Mr Short to the decision of Neuberger J. in Bestrustees v Stuart [2001] PLR 283 who had to deal with an argument that because a set of new rules attempted but did not achieve full compliance with Barber the right course was to ignore them and to continue to apply the regime in force before the rule change. He dealt with it in this way:

“56.

However, it seems to me that the essence of the reasoning of Barber and Coloroll is as follows: (a) There must be no discrimination on grounds of sex so far as pay is concerned; (b) Pay includes pensions received from or paid for by an employer; (c) Differential NRD on grounds of sex falls foul of this principle; (d) From May 1990, where there is such differential, it is unlawful and ineffective; (e) The unlawful aspects are disposed of by equating the right of the disadvantaged class with those of the advantaged class. In other words, in this case, neither men nor women employees need the consent of the trustee to retire after attaining the age of 60. In paragraph 36 of the judgment in Coloroll, the ECJ was not directing its mind to a variation in pension fund rules subsequent to Barber, which failed to give effect fully to that decision.

57.

Accordingly, I think that, where there is a variation in the terms of the Scheme which do not quite achieve compliance with Barber but which potentially achieve it, both common sense and principle suggest that one should give as full effect to the variation as permitted by Barber, and to the extent that it is not permissible, the disadvantaged class should be accorded the same rights as the advantaged class. First of all, that conclusion appears to me sensible in that it gives as much effect as possible to changes which were carefully considered and implemented by the principal employer and the trustees. Secondly, I think that the result is more consistent with the approach of the ECJ in Barber and Coloroll. Thirdly, it would be a little odd if the ECJ's ruling required different results where a change was effected after publication of the Advocate General's decision in Barber, and where the change was made after publication of the decision of the ECJ itself. Fourthly, it appears to me that if my analysis is correct, there would be less uncertainty for members who have been informed of the amendments. Naturally, in so far as those amendments do not comply with law, the courts must step in, but it seems to me that minimum interference by the courts is desirable, because the expectations and understanding of the members who have been told of the changes should require minimum interference with what they have been told.”

I take the same view; it seems to me that the right approach is to attempt to give effect to the modifications embodied in the 1993 Rules by implying consent. Article 119 has to be applied to those Rules and requires in that context no more than a minimal change in order to make them fully Barber-compliant. A re-writing of the whole scheme in order to impose a split pension can only be justified if that is the only possible way of implementing Barber. As I have explained, it is not. This conclusion is, I believe, consistent with the decision in Cripps which was not concerned with the position following the closure of the Barber window. The Court of Appeal was not faced, as I am, with a situation in which there had been a new set of rules effective to close the window on terms that a single pension was retained and none of the arguments relevant to this issue was either raised or considered. In Toray Textiles where the issue did arise Lewison J. rejected the argument in favour of a split pension and he was right in my view to do so.

I, therefore, reject alternative (c) as an answer to Question 3. The choice between (a) and (b) depends (in the light of my construction of rule 8(1)) on whether the actuarial reduction of NRD 60 benefits on early retirement in respect of any period from the member’s 60^th birthday onwards falls to be imposed as a matter of law regardless of the provisions of the 1993 Rules. It is, I think, common ground that the earliest such a reduction could have come into existence was in respect of service after 17^th May 1990 when the Barber window began. But the answer to this question is “No” for essentially the same reasons as those which apply to Question 3(c).

Once one accepts that the 1993 Rules with implied consent for early retirement constitute a Barber-compliant regime it becomes impossible to say that alternative (b) is the correct answer to the question. The argument becomes more difficult when one also takes into account the ruling in Smith v Avdel Systems Limited that the implementation of Article 119 is not affected by the financial consequences for the employer of the changes involved. The Company and the Trustees could have imposed actuarial reductions in NRD 65 rights accrued from future pensionable service as part of the rule changes in 1993. As we know, it was not imposed until 2003 but the remedy was available much earlier had they wished to use it.

I am not, therefore, persuaded that an actuarial reduction of the kind suggested as alternative (b) could be said to be imposed as a requirement of European law. In my judgment, Question 3 falls to be answered in sense (a).

are the mixed NRD members entitled to continue to accrue pensionable service in the Scheme between age 60 and age 65?

is the answer to Question 5(a) above affected by whether or not mixed NRD members have in fact elected to take their NRD 60 benefits from age 60?

Question 4 is directed to mixed NRD members who retire and draw benefits at 60. On the basis that the answer to Question 3 is alternative (a), it is agreed that the answer to Question 4 is “No”. Under the Scheme as it stands, a member is entitled to draw only a single pension. To do this he must retire from service under rule 8(1) and thereby becomes entitled to the whole of his pension subject to an actuarial reduction in respect of pensionable service after April 2003.

In the circumstances, Question 5 does not arise.

The parties are agreed that the answer to this question is “Yes”.

Are deferred members of the Scheme entitled to receive their pension benefit at age 60 as of right and, if so, on what basis are they so entitled?

Is the answer to Question 7(a) above different depending upon whether or not the deferred member reached age 60 before or after 5 April 2005?

This question relates to the payment of deferred pensions which is governed by Rule 17 of the Scheme. Question 7(a) is directed to whether deferred mixed NRD members are in a different (and worse) position than equivalent active members in relation to pension entitlement at 60. It is agreed that if the answer to Question 3 is alternative (a) then there is no difference between the position of active and deferred members in this respect. Mr Short’s arguments based on the preservation provisions contained in what are now sections 69 to 81 of the Pension Schemes Act 1993 concentrated on the hypothesis that an active member’s NRD 60 Barber rights fell to be implemented through a split pension regime: i.e. alternative 3(c). He contended that even if active members had to take their NRD 60 entitlement as a split pension, the equivalent deferreds remained entitled to take all their pension at 60.

Given my decision on Question 3, this issue no longer arises. It is also agreed that the answer to Question 7(b) is “No”.

as to that part of it accrued on the basis of an NRD of 60, at age 60; and;

as to that part of it accrued on the basis of an NRD of 65, at age 65?

As explained earlier, rule 22(1) is relied on by the Company as an alternative route to a split pension regime in the event that one is not imposed either as a matter of European law or by the terms of the Scheme including, in particular, rule 8(1).

Mr Hitchcock accepted that the power could not be used in a way which would contravene what is now clause 9(e) of the Trust Deed and, for this purpose, had to be considered having regard to the Rules of the Scheme in their present form. But the terms of rule 22(1) were, he said, wide enough to permit the Company to direct the splitting of pensions and the caveat in sub-rule (a) was no longer an obstacle following the changes in the Revenue rules to allow pensions to be taken in tranches.

Question 9 is framed on the basis that the imposition of a split pension would operate on the existing rights of mixed NRD members. This, it was argued, would not contravene clause 9(e) because there is no right on the part of such members to take anything but their NRD 60 rights at 60. But this is not correct. The modification of rule 8(1) necessary to give effect to the NRD 60 rights of mixed members means that they become entitled to their entire pension subject to the limited actuarial reduction imposed by the 2003 amendment. The imposition of a split pension regime to cover existing NRD 65 rights would, therefore, represent a significant reduction in what the current rules provide and would, in my view, be precluded by clause 9(e).

But the inconsistency goes, I think, further than that. Rule 22 was introduced in 1993. There is no material to indicate the reasons for its inclusion in the new Rules or what it was intended to achieve. There is nothing equivalent to it in the earlier versions of the Rules. Viewed as part of a Scheme which is based on the payment of a single pension, it seems to me that it would require clear language in this particular context for the power to be construed in such a way as to permit an alteration of the basic structure of the Scheme. This point is strengthened by the fact that the Company and the Trustees, in making the 1993 Rule changes of which rule 22 is part, deliberately chose to implement the Barber rights of mixed NRD members in a way which preserved the single pension as the core feature of the Scheme. The reference in sub-rule (a) to compliance with Inland Revenue limits (which at that time did not permit split pensions) is a further indication that this is not what rule 22(1) was about. It seems to me completely unrealistic to suppose that the Company and the Trustees intended to reserve in supplementary provisions a power to do what they could then have achieved directly had split pensions been regarded as the most appropriate way of giving effect to members’ Barber rights. If the answer to that question is that the split pension does not appear to have been contemplated as an option at the time then that is equally destructive of the Company’s construction of rule 22(1).

As it is, the Rule forms part of what are described as general provisions affecting members and beneficiaries and is sub-headed “Special Members/Augmentation of Benefits”. These include an express power of augmentation of benefits contained in Rule 22(3). This strongly suggests that rule 22(1) is concerned not with the position of members generally, but with future benefits payable to a particular member or members of the Scheme.

The answer to Question 9 is, therefore, “No”. It follows that it is not necessary to answer Question 10.

The parties have agreed that if the answer to Question 3 is alternative 3(a) then this question has to be answered “No”.

This question has generated much argument. It represents the Company’s fall-back position if the answer to Question 3 is either alternative 3(b) or 3(c) and the Company can establish (in the case of 3(c)) that it gave its consent to early retirement on full pension and such was paid based on a mistake of law as to the effect of Article 119 on the Scheme Rules or (in the case of 3(b)) that the Trustees misunderstood the true scope of their power to reduce NRD 65 benefits payable on early retirement.

In these events the Company seeks what amount to directions to the Trustees to recover any overpayments by reducing future instalments of pension subject to any individual defences available to the members in question.

The fact that the Company which gave its consent to early retirement is not the paying party is one of a number of difficulties which would have to be overcome for such claims to succeed. At the very least, the mistakes of law relied upon would have had to have been shared by the Trustees. In relation to rule 8(1), issues are also likely to arise as to whether or not the Trustees would in fact have chosen to reduce members’ NRD 65 rights across the board assuming that any such reductions are, properly speaking, discretionary. But if (as I have found) the answer to Question 3 is alterative 3(a) then no error of law has occurred. The mixed NRD members retiring at 60 or thereafter under rule 8(1) have been paid what they are entitled to under the Scheme and nothing more. The answer to this remaining question is, therefore, “No”.