Industrial Acoustics Company Ltd. v Crowhurst & Ors

This is an application for summary judgment in which Industrial Acoustics Company Limited ("IAC" or "the Company") seeks an order for rectification of IAC's retirement benefit scheme ("the Scheme") so as to alter the normal retirement date of certain female members. The application is unopposed by the first to third defendants, Messrs Geoffrey Crowhurst, Murray Budd and Jodie Everett, who are the new trustees of the Scheme ("the Trustees") and by Mr Russell Hagerty who is a deferred member of the Scheme and the fourth defendant. Mr Hagerty is willing to be appointed to represent all the members of the Scheme in whose interests it is that the claim for rectification should fail. I will return to the question of whether it is appropriate to make such a representation order in due course.

The Company also seeks a representation order that it should represent those members of the scheme in whose interest it is that the claim for rectification should succeed. That representation order is obviously unobjectionable and I intend to make it.

In the broadest of outline, what seems to have occurred in this case is that steps were taken in 1992 and 1995 (actually 1996) to close what has become commonly known as "the Barber window" by equalising the retirement ages for male and female employees at 65; therefore by increasing the normal retirement date for female members from 60 to 65. At the time that those amendments were made, the Company and the then Trustee intended that there should be new rules for the Scheme. Those rules had already been drafted in or about 1992, taking account of the 1992 changes, which affected female members who had joined the scheme after the effective date of the Barber decision, but not, of course, taking account of the 1995 changes, which affected female members who had joined the Scheme before the effective date of the Barber decision.

Unfortunately, when the new rules were actually agreed in 1998 and also in circumstances that I shall come to when a resolution was passed in 1999, the draftsman, as so often happens, forgot to change the definition of "normal retirement date" so as to show that the normal retirement date for female members had become 65 as had, by that time, previously been resolved. The result was that the 1998 rules were in conflict with the 1995 resolution to which I shall come, but not the 1992 resolution, and this rectification claim has had to be brought.

The matters that are before me did not come to attention until November 2011 and all the while the scheme was being administered as if the 1992 and 1995 resolutions held sway. Nobody realised that there had been an error, if error there had indeed been, and matters proceeded in blissful ignorance of the actual terms of the 1998 rules.

The matter came to attention when, as I understand the position from Mr Richard Hitchcock, counsel for the Company, the Company was the subject of discussions in relation to a potential purchase. It is for that reason that this application has been brought on at what can only be described as breakneck speed, because it is necessary to have certainty as to the liabilities of the scheme before any transaction can occur.

I should, before I come to the detail of this application, commend counsel who appear before me, and indeed their instructing solicitors, for the careful preparation of the case, and the most helpful skeleton arguments which have enabled me to obtain a clear understanding of the issues both as to fact and law, in an exceedingly short space of time.

On 27 August 1964, the Scheme was established by a definitive Trust Deed.

On 6 July 1978, the 1978 rules defined normal retirement date for males as their 65^th birthday and for females as their 60^th birthday.

On 2 March 1984, a Mr Timothy Neale of Kidsons Impey, was appointed as a trustee of the Scheme, alongside the Company. There were, therefore, during the currency of his appointment, two trustees, the Company and Mr Neale.

On 17 May 1990, the European Court of Justice's decision in Barber v. Guardian Royal Exchange [1991] QB 344, took effect.

On 15 September 1992 the draft 1998 rules were provided to the Company. Those rules defined normal retirement date as 65 for men and 60 for women "provided that for employees who became members on or after 17 May 1990 it means the 65^th birthday". This reflected what became the 1992 resolution to which I have already referred and to which I shall again make reference in a moment.

On 15 September 1992, the Company's board meeting approved the changes to the rules raising the normal retirement date for female members joining after 17 May 1990 to the age of 65.

On 30 September 1992, a resolution amended the 1978 rules so that the normal retirement date of female members joining after 17 May 1990 became 65. That is the resolution to which I have already referred as "the 1992 resolution".

In April 1994, Mr Neale retired as a trustee leaving, once again, the Company, as the sole trustee of the Scheme.

On 26 July 1995, a resolution amended the 1978 rules once more, so that with effect from 1 September 1995, the normal retirement date of female members who were already members of the Scheme as at 17 May 1990, became the age of 65. That is the crucial resolution which I have already described as "the 1995 resolution".

On 25 July 1996, almost a year after the date of that 1995 resolution, a meeting actually approved and affirmed the resolution itself so that, whilst I am describing and the parties have described the 1995 resolution as the 1995 resolution, it was in fact the 1996 resolution, but I shall continue to describe it as the 1995 resolution. At all times after this, the Scheme has been administered on the basis of the provisions relating to normal retirement date contained in both the 1992 and the 1995 resolutions.

Three years past and on 29 September 1998, the 1998 rules, as they came to be known, which had originally been promulgated in 1992, were introduced, one might say were finally introduced. I shall refer to the 1998 rules as the “1998 rules”.

The 1998 rules defined normal retirement date as 65 for men and 60 for women "provided that for employees who became members on or after 17 May 1990 it means the 65^th birthday". This reflected what became the 1992 resolution but not the 1995 resolution. It is this rule that this action seeks to rectify. The precise terms of the 1998 resolution introducing the 1998 rules was signed by Mr Kenneth Beverage (then Finance Director and Company Secretary of the Company) on behalf of both the Company and the Trustee, were as follows:

On 2 February 1999, a resolution amended the 1998 rules relating to the normal retirement date for female members who joined on or before 17 May 1990 in the same way, albeit in slightly different language, as the 1998 rules had done. This is the “1999 resolution” to which I have already made brief reference and which it is also sought to rectify in these proceedings.

In March 1999, a new booklet was prepared by the Company and the Trustee, carefully explaining the effect of the 1995 resolution, but making no mention of the fact that the 1998 rules and the 1999 resolution had, in effect, reversed the effect of the 1995 resolution.

On 1 September 2000 and in later actuarial valuations, Scottish Widows produced valuations showing the normal retirement date for all members of the Scheme as 65, and saying in the case of the 2000 actuarial valuation "for members who joined before May 1990: females can take benefits earned before 1 September 1995 from age 60 without actuarial reduction, males can take benefits earned between 17 May 1990 and 1 September 1995 from age 60 without actuarial reduction."

On 27 August 2004 the Scheme was closed to future accrual.

On 19 October 2011 the first three defendants were appointed as new trustees of the Scheme.

On 21 March 2012, the Claim Form in these proceedings was issued with Particulars of Claim attached seeking rectification of the definition of "normal retirement date" in the 1998 rules and a rectification of the provisions of the 1999 resolution to the same or similar effect.

On 3 May 2012, Briggs J made an order expediting the hearing of this application allocating one day to that hearing.

This morning Mr Hitchcock has put before me a draft order which provides as follows in relation to the claim to rectification:

That formulation is admirably simple but conceals the fact that there is an on-going discussion between the Company, the Trustee and its members as to the date upon which the changes to the normal retirement date should take effect. I have not been troubled with any argument as to that on-going debate, because the parties are agreed that it is irrelevant to the matters that I have to decide, which are simply whether or not the 1998 rules and the 1999 resolution should be rectified in the manner I have already mentioned.

The power of amendment of the rules, rule 26 of the original rules, provided for the alteration by the Trustees of the rules. The provision, as I understand it, provided then and provides now that the Trustee could amend the rules with the written consent of the Company. The amendment of the rules in 1998 which, as I have said, was intended to be undertaken in 1992, was introduced not because of any intended change to the definition of normal retirement date, but because there was a need to amend the definition of the calculation of final pensionable salary. That fact, which is common ground between the parties, is important, because it explains, in part at least, why the error may have come about. It was intended in 1992 to promulgate the new rules in order to make changes to the definition of the calculation of final pensionable salary, but that did not happen for reasons that are wholly unconnected with this case until 1998. When, as I have said, in 1998 the amendment was made, nobody thought to reflect the provisions of the 1995 resolution in the new draft rules.

Against that factual background, summarised perhaps briefly but hopefully adequately, I have to determine whether there should be summary judgment for the rectification sought. Rectification is not an easy remedy to obtain, and the law on rectification has recently been the subject of a considerable number of judicial decisions. I have therefore approached this application with a certain amount of judicial caution.

I start, therefore, by setting out the grounds for summary judgment as contained in CPR Part 24.2 as follows:

I do not need to read the notes to the CPR which explain, in terms that are extremely well-known, the proper application of that rule, but I take in this case on rectification where evidence is of particular importance, it to be axiomatic that, unless I were well-satisfied that there was indeed no real prospect of successfully defending the claim or issue, it would not be appropriate to make the order sought.

The Company has made all the running in this case. It has prepared the evidence which has been of considerable assistance to me, as I have already indicated, and it is argued through Mr Hitchcock and Mr James Rickards carefully and cogently why there can be no real prospect of successfully defending this claim. It is the Company who has put forward the witness statements totalling eight in all, that I have had the opportunity to consider in support of the claim.

The new trustees represented by Mr David E Grant of counsel, have also appeared but have adopted a neutral position, as they ought to have done, in relation to the merits. Mr Grant has, however, helpfully assisted me putting forward his exposition, in his short but helpful skeleton argument, as to the appropriate law for me to adopt. Mr Hagerty, represented before me by Mr Keith Bryant of counsel, the deferred member representing those in whose interests it would be to oppose the claim for rectification, has put before me two important documents. First, a skeleton argument in which he says that Mr Hagerty "has been advised that it would be appropriate for this case to proceed by way of summary judgment and he is content to accept that advice". Secondly, Mr Bryant has put before me a confidential opinion which he has provided to Mr Hagerty, dealing in considerable detail, with the facts and the law affecting the claim. That opinion has not been shown to the other parties, and I do not intend to allude to any part of it in this public judgment. Suffice it to say that the consequence of the advice given in that opinion is reflected in the paragraph that I have quoted from Mr Bryant's skeleton argument.

I said in the course of argument that I did not intend to make any novel determination as to the law on rectification in this unopposed case and in a judgment given ex tempore on the morning of the hearing. Nonetheless, it is necessary for me to refer to a few authorities so as to ensure that I am applying the up to date position as to the law of rectification in the light of the most recent authorities. The summary that I am now going to give should not be taken as definitive in any way, since there are, as counsel have submitted to me, a very large number of authorities on this subject, many of which I have not had the opportunity to review today.

The first case to which I should refer is that of Swainland Builders Limited v. Freehold Properties Limited [2002] 2 EGLR 71, in which the Court of Appeal sought to lay down the principles that should be applied in a case of rectification on the grounds of common mistake. Peter Gibson LJ said this at paragraph 33:

Lord Hoffmann approved this formulation in an obiter but extremely powerful judgment in Chartbrook v. Persimmon Homes [2009] UKHL 38. At paragraph 48 Lord Hoffmann explained that while evidence of a party's subjective belief or understanding is admissible to show what was actually said and agreed, the required common continuing intention is not merely a subjective belief but is rather what an objective observer would have thought the intention to be.

In Daventry District Council v. Daventry and District Housing Limited, the Court of Appeal had cause, again in a contract case rather than a pensions case, to consider the test that should be applied in the light of Chartbrook. Three judgments were given, all rather lengthy and I shall not seek to summarise the entirety of them. Suffice it to say that Etherton LJ, who dissented as to the result, sought to reformulate the test that Peter Gibson LJ had laid down in Swainland and had been approved in Chartbrook in the following terms at paragraph 80. That paragraph reads as follows:

Toulson LJ had, in the Daventry case, sought to formulate a rather or perhaps slightly different approach following Lord Hoffmann's speech in Chartbrook. The Master of the Rolls, however, Lord Neuberger of Abbotsbury, at paragraph 207 of his judgment, whilst agreeing with Toulson LJ as to the result of the case, said this:

In addition in the Daventry case, both Lord Neuberger and Toulson LJ accepted that the approach in Chartbrook should be applied, whatever glosses may have been placed upon it.

There has been considerable debate before me as to the position of a rectification claim as applied to a pensions case. Mr Hitchcock pointed out, as has been remarked in many authorities, that a pensions rectification case is not precisely the same as a case for the rectification of a synallagmatic contract. That is because in a pension case, one is rectifying either the rules or the Trust Deed, which are not negotiated in the same way as a normal bilateral contract. Whilst it is right to say that there is accord between the Trustees and the Company in a case like this where a resolution is passed, it can hardly be said that there is a negotiated agreement between two opposing or arms length contracting parties.

That distinction may or may not be relevant, but I use it by way of introduction to the cases that specifically concern pension schemes to which I have been referred. In the first case, that of Scania Limited v. Wager [2007] EWHC 711, the Chancellor stated the test to be applied in rectifying a pension scheme as follows:

The approach adopted by the Chancellor in the Scania case was followed by His Honour Judge Toulmin in Colorcon Limited v. Huckell [2009] EWHC 979 (Ch) in which he said this at paragraph 13 of his judgment:

In the course of argument I put to Mr Hitchcock that this was a case in which there had been, as is common ground between the parties, no positive agreement or accord expressly to the effect that the 1998 rules should not change the effect of the 1995 resolution. Instead, the evidence shows, as I shall come to deal with in a moment, that the parties simply did not consider the precise effect of the 1999 rules and mistakenly failed to notice that those rules would, if not rectified, reverse the effect of the 1995 resolution. Therefore, if a positive outward expression of accord or common continuing intention to the effect that the parties positively intended that the 1998 rules should not change the 1995 resolution, there was no such outward expression of accord. For that reason I suggested to Mr Hitchcock that he should make submissions upon whether such a positive outward expression of accord was necessary. His answer was first to point to the formulation of Etherton LJ in the Daventry case, which abandons express reference to outward expression of accord in the paragraph to which I have referred, on the basis of course that the outward expression of accord that was previously often mentioned is no more than the other side of the same coin to the common continuing intention.

I do not intend in this ex tempore judgment, to become engaged in an academic debate as to the correctness or otherwise of such a requirement, but it seems to me that there will be cases, particularly in a pensions context, where it will be permissible to allow rectification when one can say by implication perfectly clearly that the parties did not intend by the Deed they entered into, to effect a particular change, even though they had not stated outwardly to each other (or indeed at all) that they did not intend to effect that change, simply because the change was not in any form discussed. That, Mr Hitchcock submits, was stated to be the case in the case of AMP v. Barker, a decision of Lawrence Collins J (as he then was) where, somewhat similarly to this case, the employer said that it had intended only to make six changes to the rules and not to make the seventh change that was made by way of a knock-on effect as a result of a change that was intended to another rule. Lawrence Collins J granted rectification in that case and relied upon evidence after the resolution that was to be rectified of continuing administration on the basis of the un-amended rule as evidence of the necessary outward expression of accord, should that prove to be necessary, but he expressed the view that it was not necessary. In the case of Gallagher, Etherton J (as he then was) followed Lawrence Collins J's decision in AMP, giving a judgment, as it is submitted to me, to similar effect. Etherton J in Gallagher relied on an Australian line of authority for the proposition that it was permissible to have regard to evidence postdating the contract to be rectified for any necessary outward expression of accord.

It seems to me clear that in this case I should adopt, without prejudice to any later more detailed consideration of the law, the test enunciated by Etherton LJ, which takes account of the pensions position and the problems that might be created by the differences between rectification of a pension scheme and rectification of a synallagmatic contract. I therefore propose to do that but I will also have regard, as I am entitled to do on authority, to the events after the 1998 resolution to see what the true and objective intention of the parties might have been at the time.

The evidence of common continuing intention has been dealt with in this case in meticulous detail in both the skeleton argument prepared by Messrs Hitchcock and Rickards and in the opinion of Mr Bryant to which I have referred. As it seems to me, where a case is not opposed, as this one is not, I do not need to set out in that kind of detail the particulars of the exchanges of emails, letters and discussions that lead up to the various resolutions. It is perfectly clear from the documentation that I have been shown, and from the evidence that I have read of the various witnesses from both the company, the trustees and the professional advisers who have been involved all along, that all the parties fully intended in 1992 and 1995 to close the Barber window in the way that the 1992 and 1995 resolutions actually, and effectively, did. I do not need to set out any of the surrounding documentation, because that much is neither disputed nor is it in any way in doubt from the documentation I have seen.

After 1995, as I have said, the 1998 rules in draft lay still on the file and were not given effect. What happened, however, was that awareness of a discrepancy in the definition of final pensionable salary, came to attention because a member of the scheme, a Mr Cooper, made a complaint in September 1997 about the calculation of his pension and the definition of final pensionable salary. Mr Kenneth Beverage of the Company requested the advisers to investigate the complaint and the fact that the 1992 draft of the 1998 rules had not been put into effect, duly came to light. Enquiries were made and it was discovered, in effect, that the 1992 draft remained on file. As a result, the resolution to which I have already referred dated 28 September 1998 was signed by Mr Beverage in his capacity on behalf of the company and the Trustee in the way that I have suggested.

Thereafter, the Scheme continued to be administered in precisely the same way as it had since the 1995 resolution, on the basis that the 1995 resolution had been effective to change the definition of normal retirement date in respect of members who had joined the Scheme prior to 17 May 1990. In addition, as I have also already mentioned, the terms of the March booklet produced in 1999 and approved by the Company, clearly set out the understanding of the company and the Trustee to the effect that equalisation had occurred in the way effected by the 1995 resolution.

Mr Hitchcock has also asked me to take into account inferences that can be drawn as to whether or not it can possibly have been the intention of the company or of the trustee to reverse the effect of the 1995 resolution. He submits that there is no fiscal reason why the company or the trustee would have wished or could have wished to reopen the Barber window by the adoption of the 1998 rules and the 1999 resolution. He says if that had been their intention, they would presumably have wished to open the Barber window for everybody, not just for those who joined the Scheme prior to 17 May 1990 and, he says, surely (this is a rhetorical submission) some documentation would have existed demonstrating that intention, if it had ever really existed. All that goes to show, in my judgment, that it is perfectly clear that the Company and the Trustee never did intend in 1998 or 1999 to reverse the effect of the 1995 resolution.

That, however, does not necessarily mean that rectification will be granted. There are many meritorious cases in which rectification is sought in which it cannot be granted because of the rather technical rules that apply to such cases. It is for that reason that I have sought to set out, I hope with care, the present legal tests that I must apply and it is with all those points in mind that I turn to the application of those tests.

The first test, as stated by Etherton LJ and approved by the Master of the Rolls, is that "the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified". In my judgment, having reviewed the documents and the written statements, it is perfectly clear that both the Company and the Trustee had a common continuing intention at all times after the 1995 resolution was passed, that that resolution should continue to apply. When it came to the execution of the 1998 resolution to give effect to the 1998 rules, that common continuing intention persisted. Nobody at any stage thought that there was any possibility that the 1998 rules would reverse the effect of the 1995 resolution.

The second test is that the common continuing intention must have "existed at the time of execution of the instrument sought to be rectified". I have already dealt with that. It is, as I have said, clear that the common intention continued throughout the period until the matter came to attention in November 2011 and indeed beyond up until today.

The third test is that "such common continuing intention to be established objectively, that is to say by reference to what an objective observer would have thought the intention of the parties to be", is something that I have already discussed. It is not good enough for the parties simply inwardly to think something without giving effect to it in a way that is discernible by the objective observer, knowing all the facts as they relate to the position of the parties. But in this case, the objective observer would, as I have said, have had no doubt, looking at the correspondence and looking at the Company's and the Trustees' actions after the 1998 rules were adopted, which, as I have said, the court is entitled to do, that the common continuing intention prevailed. In other words, the objective observer would have had no doubt in my judgment that the Company and the Trustee always intended the 1995 resolution to continue to be effective, notwithstanding that by a mistake the 1998 rules had, if taken at their face value, effectively reversed the 1995 resolution.

The fourth test is, of course, that "by mistake the instrument did not reflect that common intention". In this case that is obviously satisfied as I have just said.

For all those reasons, therefore, it seems to me that the crucial common continuing intention of the Trustee and the Company prevailed, both in 1998 and 1999 and up until today and, therefore, applying the strict tests that have been laid down in the authorities, rectification is both warranted and justified.

As I have already indicated, the fourth defendant, Mr Russell Hagerty, is willing to accept to be appointed as the representative for all beneficiaries of the Scheme in whose interests it would be for rectification of the 1998 rules and the 1999 resolution to be refused. I have no doubt that Mr Hagerty is a suitable person so to be appointed. I have equally no doubt that he has been properly and fully advised as to the merits of this application. It is clear that his solicitors and counsel have been provided with every possible access to documentation and the evidence of relevant parties so that they are able and have been able to consider the merits of the application and to formulate an appropriate response to it. In the circumstances, as I have said, they have concluded that they should not oppose the application. I am satisfied that that conclusion has been reached after mature and careful consideration, and on substantial grounds.

The only question that I raised in the course of argument was whether or not the members of the Scheme as a whole, and particularly those that are affected by the rectification that I have indicated is warranted, had been informed prior to this hearing of the application so that they could appear to oppose it, if they wished to do so. Mr Grant's response to my initial question was to submit that there was no requirement to notify the members of the Scheme at large prior to such an application. His submission was explained in a little further detail by Mr Hitchcock, who explained that the reason why there is no requirement for members to be individually informed of such an application, is because, if the court determines that a representative beneficiary has had every possible access to every possible document and piece of evidence and has argued every point that can be argued, there is no need for every other member of the pension scheme to undertake the same process.

It seemed to me, whether or not it was a requirement, that it would have been desirable for a notification to be circulated around the members of the Scheme, informing them that an application along the lines of the present application was to be made. I say that just because there may have been some member who felt particularly aggrieved or particularly badly affected by what was proposed and might have wanted to come along to make a separate case. It seemed to me also that, if such a member had attended in court this morning and asked to be heard, I would probably have acceded, depending on the particular circumstances of course, to that application. Therefore, I was concerned that, if I granted rectification and a member later decided that he or she wished to challenge what I had decided, that would be less than ideal.

Having heard the argument of the parties, however, I accept that there is no legal requirement for the Company or the Trustee in a case such as this to inform all the members that a claim for rectification is being made, provided they afford every possible assistance to a properly instructed representative beneficiary, as they have done in this case. The reason why in some cases it would be cumbersome to make it a requirement for notification of members, is of course because in some cases it is hard to communicate with all the members and it has never before in any of the authorities, as I understand the position, been made a requirement for notification to occur. That does not mean that, in the normal case where notification is possible, it is not desirable, simply so that what is going on can be fully explained to members and understood by members. So whilst I accept, as I have said, that there is no formal requirement for notification, I still think it is a good idea for there to be notification wherever possible.

That said, in this case in seems to me that every step has been taken to ensure that Mr Hagerty has had access to all appropriate material and his counsel and solicitors have considered that material with conspicuous care and attention to detail. In those circumstances, it seems to me that it is barely conceivable that another member could sensibly find an argument to produce which would have led to the court taking a different view from the one that I have taken.

In those circumstances, I intend to appoint Mr Hagerty as the representative for those in whose interests it is to oppose the rectification claim.

For the reasons, therefore, that I have given, it seems to me that there is convincing evidence that neither the Company nor the Trustee objectively intended at the time of the 1998 and 1999 resolutions to undo the effect of the 1995 resolution. That was a mistake which can, on the application of the appropriate legal tests, be rectified in the manner sought by the draft order that I have already read out.

For the reasons I have given, therefore, the rectification orders will be made together with the representation orders already mentioned. I will hear counsel on any ancillary matters.