Caribonum Pension Trustee Ltd v Pelikan Hardcopy Production AG, Court of Appeal - Chancery Division, September 06, 2018, [2018] EWHC 2321 (Ch)

Resolution Date:September 06, 2018
Issuing Organization:Chancery Division
Actores:Caribonum Pension Trustee Ltd v Pelikan Hardcopy Production AG
 
FREE EXCERPT

3

Neutral Citation Number: [2018] EWHC 2321 (Ch)

Case No: HC-2017-002258

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Date: 6/9/2018

Before:

MASTER CLARK

- - - - - - - - - - - - - - - - - - - - -

Between:

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Fenner Moeran QC (instructed by Pinsent Masons LLP) for the Claimant

Richard Hitchcock QC (instructed by Abbiss Cadres) for the Defendant

Hearing date: 19 July 2018

- - - - - - - - - - - - - - - - - - - - -

Judgment ApprovedMaster Clark:

Application

  1. This is the claimant's application dated 26 March 2018 for summary judgment on its claim.

    Parties and the claim

  2. The claimant is the trustee of the Caribonum Pension Scheme (``the Scheme'').

  3. The defendant, Pelikan Hardcopy Production AG, is a company registered in Switzerland. It is part of a group of companies, (``Pelikan Group''), which includes:

    (1) Pelikan Hardcopy Scotland Limited, (``the Employer''), a company registered in England, which was a participating employer in the Scheme (and is now in liquidation); and

    (2) the Employer's ultimate parent company, Pelikan International Corporation Berhad, (``the Parent''), a company registered in Malaysia.

  4. The Scheme is a registered occupational pension scheme, which provides benefits on a defined benefit basis. It was closed to future accrual of benefit from 29 February 2012. From January 2018, it has been in an Assessment Period of the Pension Protection Fund (``the PPF''), during which time the PPF will determine whether to accept the transfer of the Scheme.

  5. The Employer, as a participating employer, is obliged to make contributions to the Scheme, which are payable to the claimant as trustee. It went into administration on 21 January 2018. It is now in liquidation and, as part of a pre-pack arrangement with the administrator, its assets have been assigned to the claimant in part settlement of debts owed to it by the Employer.

  6. The PPF has pursuant to section 137(2) Pensions Act 2004 lodged a proof of debt in the Employer's liquidation claiming the entirety of the Scheme's estimated debt under s.75 of the Pensions Act 1995 (£35,528,000). The claimant asserts (though this is not accepted by the defendant) that this amount gives `credit' for unpaid employer contributions, so that the s.75 debt figure when certified will increase if the claim fails.

  7. The claim is made under a deed of guarantee dated 27 March 2008 (``the Guarantee'') made between the claimant and the defendant. Clause 2.1 of the Guarantee provides that:

    ``The [defendant] irrevocably and unconditionally:

    (a) guarantees to the [claimant] punctual performance by the [Employer] of all its Guaranteed Obligations;

    (b) undertakes with the [claimant] that, whenever the [Employer] does not pay any amount when due in respect of its Guaranteed Obligations, it must immediately on demand by the [claimant] pay that amount as if it were the principal obligor; and

    (c) indemnifies the [claimant] immediately on demand against any loss or liability suffered by the [claimant] if any payment obligation guaranteed by it is or becomes unenforceable, invalid or illegal; the amount of the loss or liability under this indemnity will be equal to the amount the [claimant] would otherwise have been entitled to recover

  8. ``Guaranteed Obligations'' are defined (in clause 1.1) as:

    ``all present and future obligations and liabilities (whether actual or contingent and whether owed jointly or severally and in any capacity whatsoever) of [the Employer] to make payments to the Scheme up to a maximum amount equal to the lower of (a) the lowest non-negative amount which, when added to the assets of the Scheme, would result in the Scheme being at least 105 per cent funded on the date on which any liability under this Deed arises, calculated on the basis set out in section 179 of the Pensions Act 2004, where a valuation is to be conducted as at that date, and (b) £12,600,000.''

  9. The sum claimed is £4,306,605.33, which is the unpaid amount due from the Employer to the Scheme as at 30 November 2016. A demand in writing for this sum was made on 5 December 2016.

  10. The claim was issued on 9 August 2017.

    Summary judgment - legal principles

  11. Before turning to the Defence, I set out the legal principles to be applied on applications for summary judgment. They are well established and were summarised by Lewison J, as he then was, in Easyair Ltd v Opal Telecom Limited [2009] EWHC 339 (Ch), in a formulation approved in a number of subsequent cases at appellate level, including AC Ward & Sons v Catlin (Five) Limited [2009] EWCA Civ 1098 and Mellor v Partridge [2013] EWCA Civ 477. It is unnecessary to set them out here.

    Defence

  12. In his...

To continue reading

REQUEST YOUR FREE TRIAL