Harland & Wolff Pension Trustees Ltd v AON Consulting Financial Services Ltd., Court of Appeal - Chancery Division, July 02, 2009, [2009] EWHC 1557 (Ch)
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Harland & Wolff Pension Trustees Ltd v AON Consulting Financial Services Ltd., Court of Appeal - Chancery Division, July 02, 2009, [2009] EWHC 1557 (Ch)
Neutral Citation Number: [2009] EWHC 1557 (Ch)
Case No: CH/2008/APP/0792IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 02/07/2009Before :MR JUSTICE WARREN- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Christopher Nugee QC and Mr Paul Newman (instructed by Price Waterhouse Coopers Legal LLP) for the AppellantMr Nicolas Stallworthy (instructed by CMS Cameron McKenna LLP) for the RespondentHearing date: 5th March 2009- - - - - - - - - - - - - - - - - - - - -JudgmentMr Justice Warren : 1. This is an appeal (brought with the permission of the Master) from the judgment of Master Bowles dated 3 September 2008 (``the Judgment''), dismissing the application of the Appellant, Harland & Wolff Pension Trustees Ltd (``the Trustee''), to amend certain provisions of the Particulars of Claim (``the PoC''). The Master allowed certain uncontroversial amendments to be made, but refused to allow the key amendments, which can be found at paragraphs 21-25, 28, 29(ii) and 30(ii) of the draft amended PoC on the grounds that they introduced a new cause of action not arising out of the same or substantially the same facts and hence that the Court had no jurisdiction to allow them. The question on appeal is this: Was the Master correct to hold that he had no jurisdiction to allow the amendments which he refused? 2. The claim is brought by the Trustee as trustee of the Harland and Wolff Pension Scheme (``the Scheme'') against the Respondent, Aon Consulting Financial Services Ltd (``Aon''), who acted as pension advisers to the Scheme. It is a claim for damages for professional negligence in implementing what is known in pensions jargon as ``equalisation'', ie the replacement of unequal normal retirement ages for men and women with an equal retirement age, as required by European law. Christopher Nugee QC and Paul Newman (who since the hearing has also attained the rank of QC) appear for the Trustee. Mr Stallworthy appears for Aon.Summary of material facts3. The Scheme was established in 1971 and at the material time was governed by a Definitive Deed and Rules dated 6 September 1988 (``the 1988 Deed''). It was by then a conventional final salary occupational pension scheme under which a Member retiring from Service at Normal Retirement Date (``NRD'') was entitled to a pension based on a proportion of Final Pensionable Pay for each year of Pensionable Service. A member retiring before NRD (but after age 50) could receive an early retirement pension but this would be reduced on an actuarial basis to take account of early payment.4. NRD was defined as: age 65 for males (prior to April 1986) and 63 thereafter; and age 60 for females. Mr Nugee explains that, at the time, it was very common for UK pension schemes to have unequal retirement ages (because of the influence of the unequal retirement ages for the State Pension). 5. On 17 May 1990, in Barber v Guardian Royal Exchange (``Barber'') the European Court of Justice held that occupational pension benefits were ``pay'' for the purpose of article 119 of the Treaty of Rome and hence had to be equal as between men and women. This meant, among other things, that a man and a woman retiring at the same age had to receive the same pension for the same service. This was not the case with a scheme with unequal normal retirement ages such as the Scheme; Barber therefore effectively required that men and women should have the same retirement age. To limit the impact of the cost of the decision to schemes and employers, the ECJ decided that this requirement should only apply from the date of its decision, ie 17 May 1990. 6. Aon (then called Godwins) was retained by the Trustee to provide actuarial and pension benefit consultancy advice and services to the Scheme, including advice and services relating to the equal treatment requirement pursuant to Barber. It issued a paper on equalisation to the Trustee for a meeting on 25 March 1993. This put forward some proposals for the Trustee to consider. The main point for consideration was the adoption of a common retirement age of 63 for service after 17 May 1990, with protection for benefits earned by females prior to 1990.7. At the meeting on 25 March 1993 the Trustee approved the proposal and resolved to equalise the NRD of male and female members of the scheme by increasing the NRD for women to age 63, such increase only applying in relation to service on and after 17 May 1990.8. Pursuant to the power of amendment in rule 32 of the 1988 rules, on 7 September 1993 the Trustee executed a new deed and rules (`the 1993 Deed and Rules') which purported to effect the necessary equalisation by changing the NRD for female members to age 63 for pensionable service after 17 May 1990. The amendment was thus intended to have retrospective effect. 9...See the full content of this document
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