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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Trustee Solutions Ltd & Ors v Dubery & Anor [2006] EWHC 1426 (Ch) (21 June 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/1426.html Cite as: [2007] 1 All ER 308, [2006] Pens LR 177, [2006] PLR 177, [2007] ICR 412, [2006] EWHC 1426 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2006

Mr Justice Lewison:

Introduction	1
Barber	3
The issues	6
The rules of the scheme	8
Were the rules validly altered?	9
The documents relied on	9
The scope of the amendment	15
Approach to construction	16
Writing under hand	21
Adequacy of the documents	37
Estoppel	38
Introduction	39
The facts relied on	39
The estoppel contended for	48
The principle	49
Group estoppels	50
Conclusions on estoppel	53
Priorities	58

Introduction

1. The Colour Processing Pension Scheme ("the Scheme") was originally constituted by a deed of trust made on 3 October 1960. It was a pension scheme for the employees of Colour Processing Laboratories Ltd. On 10 November 1986 the then trustees of the Scheme, with the consent of the company, resolved to adopt a new set of rules. That set of rules was the third edition of the rules. The resolution was signed by each of the trustees, and by the company secretary, acting by order of the board.
2. The company (which had changed its name to Graphics Resolution (CPL) Ltd) went into creditors' voluntary liquidation on 1 November 2001. There is unlikely to be any dividend for unsecured creditors, of whom the Scheme is one. The Scheme commenced winding up on 15 February 2002. As at September 2003 the scheme had 230 deferred members and 63 pensioners. The Scheme is in deficit.

Barber

3. In Barber v Guardian Royal Exchange [1991] 1 QB 344 the European Court of Justice decided that it was unlawful, under European law, to discriminate between men and women, for example by providing for pension benefits to be payable on retirement at different ages. Until that judgment, it had been conventional in the United Kingdom for men to have a retirement age of 65; and for women to have a retirement age of 60.
4. Following subsequent cases, particularly Coloroll Pension Trustees Ltd v Russell [1994] OPLR 179 the effects of the Barber judgment on the requirements for equal treatment of men and women were confirmed as follows:

i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male and female pension benefits to be provided at different retirement ages;

ii) A scheme could be amended so as to equalise benefits for men and women, if the rules of the scheme permitted such amendment. The nature of the amendment could either reduce the normal male retirement age, or increase the normal female retirement age, or both; provided that both sexes were treated equally;

iii) For pensionable service between 17 May 1990 and the operative date of any valid amendment male members of a pension scheme were entitled to be treated as if their normal retirement age was the same age as that applicable to female members (usually 60). This period is known, in the jargon, as "the Barber window".

5. As a result of the decision in Barber, Parliament passed provisions in the Pensions Act 1995. Section 62 of that Act provides that an occupational pension scheme which does not contain an equal treatment rule is treated as including one. This provision is treated as having had effect in relation to any pensionable service on or after 17 May 1990: section 63 (7).

The issues

6. The main issues that I have to decide are whether the rules of the Scheme have been validly amended so as to raise the normal retirement age for female members; and, if not, whether an estoppel has arisen which precludes those members who would benefit from a reduced retirement age from alleging the contrary. In other words: has the Barber window been closed? There is a further issue relating to the priority of payments under section 73 of the Pensions Act 1995 as it stood in 2002.
7. The current application has been brought by the trustees of the Scheme, represented by Mr Nicolas Stallworthy. The First Defendant, represented by Mr Paul Newman, is a scheme member whose interests are best served if the rules have not been validly amended. He had attained the age of 60 before the commencement of the winding up. The Second Defendant, represented by Miss Barbara Rich, is a scheme member whose interests are best served by the earliest possible amendment of the rules of the Scheme. She is a deferred member of the Scheme. Both Defendants are taken to be representative of a class of scheme members.

The rules of the scheme

8. I was told that the rules were in the form of a standard form drafted by the Prudential Assurance Co; and were widely used. The following provisions of the rules are relevant to the issues I have to decide:

i) The definition of "Normal Retirement Date" which is 65 in the case of a male member and 60 in the case of a female member;

ii) The definition of "Pensionable Service" which is limited to service between the date on which a person became a member and Normal Retirement Date;

iii) Rule 11 (A) which deals with members' contributions. These cease to be payable after the last day of a scheme year which is or next precedes that member's Normal Retirement Date;

iv) Rule 12 (A) which provides that a member who is in service on the Normal Retirement Date is entitled to a pension commencing on the following day. However, a member who is entitled to a pension has the right to postpone commencement of the pension until the day after he retires from service. This option must be exercised by "notice in writing" given by the member to the trustees within a time scale contained in the rules;

v) Rule 38, which contains the power of amendment, and which I must quote:

"… the Trustees may from time to time and at any time with the consent of the Principal Company by way of formal variation of these Rules adopted by any deed or deeds executed by the Trustees and the Principal Company or by any writing effected under hand by the Trustees and the Principal Company alter or modify all or any provisions of the Scheme Provided that no such alteration or modification as aforesaid shall be made which would have the effect of varying or affecting any benefits … applicable to Pensionable Service completed before the alteration or modification …without the consent of any Member affected thereby and Provided further that no such alteration or modification as aforesaid shall be permissible if it would result in any payment refund or transfer to the Employers or any of them.

Notice in writing of any such alteration or modification as aforesaid shall before the same takes effect be given to every Member who will be affected thereby."

Were the rules validly altered?

The documents relied on

9. Although a number of documents have been canvassed as potentially altering the rules, Miss Rich relied on only two. These were:

i) a memorandum dated 15 May 1992 taken in conjunction with

ii) an announcement to female members dated July 1992.

10. Both documents are unsigned. It is therefore common ground that if a valid variation requires a document signed by or on behalf of the trustees, there has been no valid amendment.
11. The memorandum was written on the company's headed paper; but it was expressed to come from the Trustees. It was addressed to all members of the Scheme. It said that as a result of the decision of the European Court retirement ages for men and women had to be the same. It said that following further clarification:

"We now believe that no changes will apply before May 1990 but since that date pension benefits will be based upon retirement at the same age for both men and women."

12. It then set out three options:

i) Both men and women to retire at age 60;

ii) Women to retire at age 65;

iii) Retirement at some mid-point between 60 and 65.

13. It concluded by saying that the Trustees could not delay choosing between these options; and invited Scheme members to a presentation to be made by the Prudential (who were the Scheme administrators) on 11 June 1992.
14. The announcement was not written on the company's headed paper. It was headed: "The Colour Processing Pension Scheme" and was an "Announcement to Female Members". The text of the announcement read:

"The Board of Colour Processing Laboratories Limited wish to inform you that as a result of a decision of the European Court of Justice, it has become necessary to equalise the retirement ages under the Scheme for both male and female Members. The Board after careful consideration have therefore decided to revise the normal retiring age under the Scheme for female Members.

With effect from 1^st October 1991 your Normal Retiring Date will be the day before your 65^th birthday. This effectively means that you will continue to contribute to the Scheme, and accrue additional pension benefits until age 65 or the earlier date of leaving Pensionable Service. Furthermore you will continue to be covered for death in service benefits until this date (see section 13 of your booklet).

The pension payable to you, at age 65 (your new Normal Retiring Date), will be calculated as follows:

(i) that part of your pension representing Pensionable Service completed on or after 1^st May 1990 will be calculated as described in section 7 of your booklet, but will be based on your Final Pensionable Salary at age 65 (your new Normal Retiring Date) and

(ii) that part of your pension representing Pensionable Service completed before 1^st May 1990 will also be calculated as described in section 7 of your booklet, but will be based on your Final Pensionable Salary as if you were retiring at age 60 and not age 65. This pension will then be increased by the appropriate amount to take into account the period of deferment to age 65.

If you retire before age 60, the whole of your pension will be reduced accordingly. If, however, you retire before your Normal Retiring Date but after 60, only that part of your pension earned on or after 1^st May 1990 will be reduced.

If you have any queries please contact:

Michael Curle, Financial Director, Edenbridge."

The scope of the amendment

15. If these documents amounted to a valid amendment of the rules, it is not suggested that the amendment took effect according to its terms. This is because it purported to have retrospective effect. Under rule 38 an amendment cannot have retrospective effect, without the consent in writing of every member affected by it. It is not suggested that such consent was actually given. So if an amendment was validly made, it took effect from July 1992, and not from October 1991. To that extent, therefore, the announcement did not reflect what could have been achieved by a valid amendment.

Approach to construction

16. The principle question of construction turns on the requirement that the document amending the rules must be either a deed (which is not suggested in this case) or "writing effected under hand".
17. The rules of a pension scheme must be interpreted in a practical and purposive way. The fiscal background is also of importance. The ultimate question is what the words of the Scheme would mean to a reasonable reader with the background knowledge of the parties.
18. I was taken to the decision of Neuberger J in Bestrustees v Stuart [2001] Pens LR 283. Neuberger J was considering the requirements of a document that was said to have altered the rules in accordance with a power of alteration contained in clause 16 of the scheme under consideration in that case. Neuberger J said in para 33 of his judgment:

"I bear in mind that a pension scheme is likely to continue for a substantial period of time and that those most affected by them and entitled to protection from the trustees, the employer and indeed the Court, will be people who are comparatively poor, who will not have easy access to expert legal advice, and who will not know what has been going on in relation to the management of the Scheme. In those circumstances, it seems to me that protection of the beneficiaries requires the Court to be very careful before it permits a departure from the plain wording and plain requirements of the trust deed. Further, it is not as if this was a case where at the date of the trust deed there was a difference of identity between the trustees and the employer: they were the same person even then. Accordingly, I think the Court should be particularly careful before effectively overriding the requirement that there is some sort of written record which can be said to amount to an authority within the meaning of clause 16 of the definitive deed."

19. In para 40 he said:

"I refer back to the point to which I have already made reference, namely, that bearing in mind that this is a trust, and bearing in mind the likely long life of this trust and the ignorance as to what has been going on on the part of the beneficiaries, it seems to me that the Court should not be too ready to waive a requirement of written documentation when the Scheme, and the trust deed under which it is set up, specifically require it. Of course, in this sort of case one often finds oneself treading the somewhat blurred line between requiring the terms of a particular deed to be complied with, while not being too pedantic and exacting in one's requirements."

20. I do not regard these observations as suggesting that the court has power to sanction any departure from the requirements of the deed as properly construed. An avoidance of pedantry, and the need to protect beneficiaries may well be powerful factors in choosing between rival constructions; but once the requirements of a valid means of alteration of the rules has been determined as a matter of construction, either a document satisfies those requirements or it does not. Nor do I think that Neuberger J can have meant that the court had power to waive requirements of the deed as properly construed. It is always open to the parties to a contract to waive one of its requirements, but that is a matter for them; not for the court.

Writing under hand

21. Mr Newman submitted that the ordinary meaning of "writing under hand" is signed writing. Miss Rich submitted that, at least in the context of the rules of the Scheme, all that is required is something evidential; and that there is no rational basis for requiring a signature as a substantive requirement of a document amending the rules. The phrase "writing effected under hand by the Trustees" is merely meant to point the contrast with deeds.
22. There are a number of cases that bear on this point, although none, of course concludes the particular question I have to decide.
23. The first is the decision of the Court of Exchequer Chamber in Everard v. Paterson (1816) 2 Marsh 304. The plaintiff sued on a bond. The bond was conditioned on performance of an arbitrators' award "made in writing under their hands". The pleading alleged that the arbitrators had made and published their award in writing; but it did not allege that the award had been made in writing under their hands. The Court of Exchequer Chamber held that this was a defective pleading because the award might have been in writing, but yet not under the hands of the arbitrators. Although Gibbs CJ did not explain the difference between the two expressions, I would infer that he considered that "under the hands" meant that the award had to be signed by the arbitrators.
24. In Waterson's Trustees v St Giles Boys' Club 1943 SC 369 the Inner House of the Court of Session considered a testamentary direction by the testatrix to give effect to any "informal writing under my hand". At her death she left holograph directions, but they were not subscribed with a signature. The Court held that this document was not "under hand". The Lord Justice-Clerk said:

"According to the normal acceptation of the words, a document "under my hand" means a document signed (i.e., subscribed) by me; and an informal document "under my hand" means a document signed by me which is defective either in form or expression, or in solemnities of authentication, or in both. For the purpose of determining whether a document is "under the hand" of the granter, the signature is more than a mere formality or solemnity, and its unique significance as the recognised and indispensable token of deliberate authorisation of a written document, whether formal or informal, has long been accepted by common usage. In this context the word "hand" is a synonym for "signature," as in the once familiar phrases of the older testing clause "As witness my hand," or "I have hereto set my hand," and the term is still found in modern statutory phraseology in the references in the Stamp Acts to instruments and agreements "under hand only." It is, of course, possible for a testator to make it plain that he is using this, or any other, expression in a special sense, and in such a case the settlement will provide its own vocabulary, and the special sense will prevail. But in the ordinary case the words used must receive their ordinary significance."

25. This reasoning does not appear to me to have turned on any question peculiar to Scots law; but rather described the court's understanding of the ordinary meaning of the words in the English language.
26. Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 is a decision of the High Court of Australia. A statute required a summons to be issued "under the hand and seal" of a justice. The summons under consideration had been signed but not sealed; so the question what was meant by the words "under the hand" did not arise for decision. Nevertheless, Windeyer J, with whom the other judges agreed, said:

"To be under his hand means, I take it, that it must bear his signature."

27. In Technocrats Ltd v Fredic Ltd [2004] EWHC 692 (QB) Field J considered the requirements for an assignment of a chose in action contained in section 136 of the Law of Property Act 1925. He said in para 53:

"An assignment is only a legal assignment if it complies with s.136 of the 1925 Act. What that section requires is that there should be an "absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action." As I have said above, none of the assignments executed before November 2003 was signed by Mr James personally; instead they were all signed in his name by his wife with his authority. Were those assignments "under the hand of the assignor"? In my judgement, they were not. In my opinion, these words should be given their plain and ordinary meaning, and so construed, they require that the assignor himself should sign the assignment. They do not admit of the possibility of someone other than the assignor signing in the assignor's name."

28. It is fair to say that in Technocrats the fact of signature was not in issue. The issue was the identity of the signatory. Nevertheless Field J was clearly of the view that "under the hand of" meant "signed by".
29. To these references I would add only the entry in the Shorter Oxford English Dictionary (3^rd ed) current at the date when the rules were adopted. The definition of "under the hand of" is "with the signature of".
30. The one case in the contrary sense to which I was referred was the decision of the Court of Common Pleas in Chadwick v Clarke (1845) 1 CB 700. Mr Chadwick and Mr Clarke were both directors of an insurance company. The board resolved that a house in the City should be rented from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to let the house to the directors personally. Mr Chadwick then sued for one year's use and occupation and sought to rely on the memorandum. Mr Clarke objected that it was inadmissible, because it had not been stamped; and his objection was upheld. Mr Chadwick was non-suited. The Court of Common Pleas upheld the objection. Tindal CJ was intriguingly "engaged on the crown jewels case"; so he did not give a judgment. The argument turned on a provision in the Stamp Act which required the stamping of:

"any agreement, or any minute or memorandum of an agreement, made in England, under hand only, or made in Scotland, without any clause of registration"

31. Coltman J said:

"One argument that has been urged on the part of the plaintiff is that no document can require a stamp unless it be signed, the words of the stamp act imposing a duty upon "any agreement, or any memorandum of an agreement, made in England, under hand only." It appears to me, however, that that is not the meaning of the statute, but that the legislature, in using that expression, merely intended to denote instruments under hand only – that is, not under seal, - in opposition to instruments under seal. The words that follow, "or made in Scotland, without any clause of registration" shew this to be the true construction – an instrument with a clause of registration, in that country, having the same force as an instrument under seal with us."

32. Cresswell and Maule JJ gave concurring judgments. Curiously, Chadwick v Clarke is the only authority cited in Halsbury's Laws of England (4^th ed) vol 13 para 138 in support of the proposition that:

"An instrument under hand only is a document in writing which either creates or affects legal or equitable rights or liabilities, and which is authenticated by the signature of the author, but is not executed by him as a deed."

33. Although Chadwick v Clarke itself does not support the proposition in Halsbury, the proposition itself is, in my judgment, correct. As a matter of ordinary usage in the English language (and in particular ordinary English legal usage) an instrument under someone's hand is an instrument that he has signed. Chadwick v Clarke is explicable by the context in which the phrase appeared in the Stamp Act in question; and in particular by the contrast between that phrase and the following phrase referring to Scottish forms of contract.
34. Is there any reason to construe rule 38 otherwise than in accordance with ordinary usage? In my judgment there is not. Elsewhere in the rules, the draftsman has used the expression "notice in writing" without the additional requirement of writing "under the hand" of a particular person. Indeed the phrase "notice in writing" appears in the concluding part of rule 38 itself. One would naturally expect the two different phrases to have different meanings. It is also the case that rule 38 refers to the "formal variation" of the rules; although it is fair to say that, depending on how the rule is punctuated, that phrase could be restricted to amendment by deed. I do not accept Miss Rich's submission that there is no rational basis for requiring a signature as a substantive requirement of a document amending the rules. As it seems to me there are a number of possible reasons (each of which I would regard as being at least rational):

i) as a means of definitively authenticating documents amending the rules;

ii) as a means of preserving evidence of amendments long after trustees have ceased to hold office;

iii) as a means of reminding signatories of the importance of the decisions they are making;

iv) as a means of ensuring that the trustees act and are seen to act unanimously;

v) as a means of protecting the beneficiaries under the trust.

35. Nor do I consider that the supposed contrast between deeds on the one hand and instruments under hand on the other is helpful. At the date when the rules were adopted, a deed had to be signed, sealed and delivered. What is the contrast intended? Is it to dispense with only with sealing and delivery? Or is it to dispense with signing as well? If the latter, why refer to deeds at all? The most obvious contrast between a deed on the one hand and an instrument under hand on the other is to dispense with sealing and delivery, not signing.
36. In my judgment, it was a substantive requirement of a document amending the rules that it was signed by the trustees and by or on behalf of the company. Since, in my judgment, the court has no power to authorise a departure from the rules, or to waive one of their requirements, it follows that the rules have never been validly amended.

Adequacy of the documents

37. Had I reached the opposite conclusion, I would have held that in any event the documents relied on were inadequate to amend the rules. The memorandum from the trustees did not purport to amend the rules. On the contrary, it set out three possible options. The announcement did not purport to come from the trustees. It came from the board of the company. It did not say that the trustees had decided anything; it said that the board had made the decision. The board was entitled to act in the interests of the company. The trustees were required to act in the interests of the beneficiaries. Those interests might well have conflicted. A statement that the board had reached a decision is, in my judgment, inadequate to count as a decision by the trustees. I would also have had considerable difficulty in reading the announcement with the memorandum; since the latter did not refer to the former. But even if they were read together, the memorandum only sets out choices; and consequently it cannot show what the trustees (as opposed to the board) actually decided.

Estoppel

Introduction

38. On the assumption that the rules have not been validly amended, Miss Rich argues that the Barber window has been closed by an estoppel. The species of estoppel relied on is an estoppel by convention. It is said to be a "group estoppel"; that is to say that it binds all beneficiaries under the trust, as well as the trustees and the company.

The facts relied on

39. I have already described the announcement that was made to female members in July 1992. At some time in 1992 a revised booklet summarising the Scheme was sent to members. It was sent under cover of a letter which said that the booklet contained "fully up-to-date details of the Scheme and reflects the following important changes which have been made". The first of the changes was:

"Change in Normal Retiring Date for female Members to the day before your 65^th birthday. For female Members who joined the Scheme before 1^st May 1990 certain provisions are made on the calculation of your retirement benefits and you should refer to the announcement dated July 1992 for further information."

40. The Introduction to the booklet said:

"This booklet gives a brief outline of the pension and other benefits available to you as a Member of the Scheme. It replaces the 1987 Edition of the Booklet and incorporates all amendments to the Scheme made to date. The full provisions of the Scheme are set out in the formal documents constituting the Scheme and in the event of doubt the provisions of the latter will prevail."

41. It continued with a summary of terms used in the booklet. Normal Retiring Age was said to be "the day before your 65^th birthday". Paragraph 1 of the booklet itself said that the Scheme was constituted by a Trust Deed, available for inspection on request.
42. A new booklet was issued in 1999. It said that the aim of the booklet was to give an outline of the benefits available to members of the Scheme. It continued:

"You can find the full provisions in the formal documents constituting the Scheme… if there are any differences between this booklet and the formal documents, the provisions in the formal documents will override those in this booklet."

43. A note on the same page, addressed to female members who were already members of the Scheme on 1 May 1990, referred them to an addendum at the back of the booklet. The addendum reproduced the text of the July 1992 announcement, with immaterial variations. Once again the text of the booklet referred to Normal Retirement Date as "the day before your 65^th birthday".
44. In his unchallenged witness statement Mr Scholefield (a director of one of the trustees) said:

"Notwithstanding the fact that the current Rules have not been amended, the Scheme has been administered as if benefits (other than guaranteed minimum benefits) had been equalised with effect from October 1991. In particular benefits have been calculated and paid and the Scheme has been funded as though benefits (other than guaranteed minimum benefits) had been equalised with effect from that date."

45. I also had evidence (also unchallenged) from the two Defendants, who were representative of their respective classes. Mr Dubery joined the company in May 1992. He joined the Scheme some time in the following twelve months. He recalled that when he joined the company there was some discussion generally among the staff about men and women "being made to retire at the same age"; but he did not consider that it affected him personally and took no great interest in it. He did not receive a copy of the July 1992 announcement. As far as he can remember he did not receive a copy of the 1992 booklet. He did receive a copy of the 1999 booklet. He may have briefly looked at it when he received it, but did not read it in any detail
46. Ms Cripps joined the company in March 1975. She left in 1988. She joined the Scheme when she joined the company and received a pensions booklet at the same time. This must have been the 1987 edition, which was replaced by the 1992 edition. All the documents relied on as giving rise to the estoppel post-dated her departure. So she never saw them. Indeed she left before the decision in Barber itself.
47. Finally there is evidence that some female members asked to be allowed to retire at 60 without suffering a reduction in pension for early retirement; and were given permission to do so. Twelve female members fell into this category, although only seven are known to have taken up the permission to retire at 60 on these terms. Other female members continued in employment after their 60^th birthdays. Although there is no evidence to this effect, I am prepared to assume that they were remunerated for their continued employment. They may have made contributions to the Scheme during that additional period of service.

The estoppel contended for

48. Whereas a valid amendment could not have had retrospective effect, it is said that a retrospective effect is produced by estoppel. This is because under rule 38 the written consent of the affected members is required for a retrospective amendment; whereas if the estoppel runs, it estops the members from relying on the absence of their own consent as well as the absence of a document complying with rule 38. Thus the effect of the estoppel would be more extensive than that which could have been achieved by a simultaneous valid exercise of the power of amendment. That is not, I think, an impossible result, but it is a surprising one.

The principle

49. The principle on which Miss Rich relies is that formulated by Lord Denning MR in Amalgamated Investment & Property Co Ltd v Texas-Commerce International Bank Ltd [1982] 1 QB 84, 121:

"If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it -- on the faith of which each of them -- to the knowledge of the other -- acts and conducts their mutual affairs -- they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not -- or whether they were mistaken or not -- or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it."

Group estoppels

50. There are a number of difficulties about applying this principle to pension schemes so as to create estoppels binding on members of the scheme, the trustees and the sponsoring company alike. They were outlined by Morritt V-C in Redrow plc v Pedley [2002] Pens LR 339, para 60 and following.

i) 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.

ii) It is necessary to show that the principle is applicable to all existing members. 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.

iii) 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. It requires clear evidence of intention or positive conduct to bind the general body of members to such an assumption. Receipt of the benefit or payment of the contribution, without more, is unlikely to be enough.

51. To these difficulties may be added the following:

i) In the present case the estoppel is said to have bound former employees who had left the Scheme before any of the events which are said to have created the erroneous assumption. Such a person cannot realistically be said to have shared the assumption.

ii) Estoppels against (or in favour of) individual members which relate to retirement ages may, if upheld in relation to some but not all members, result in unequal treatment of some members as compared with others. This may, potentially, put the trustees in conflict with the equal treatment rule enshrined in section 62 of the Pensions Act 1995. In general the court will not uphold an estoppel in conflict with statute or public policy.

iii) Since none of the documents relied on informed male members about their entitlement to pension accrued during a Barber window period of pensionable service, there is a possible conflict between the assumption relied on as constituting the convention, and European law; unless the assumption is modified to take account of the effects of the Barber judgment. But if it is so modified, how can it be said that the members (or, for that matter, the trustees) had that modified assumption?

iv) If the shared assumption is anything other than that which was expressly stated to members of the scheme (i.e. any retrospective element is stripped out of it), it is unrealistic to suggest that the members shared the altered assumption, unless they are to be endowed with unusual knowledge of pensions law and/or the detailed contents of the rules. Ex hypothesi they do not have the latter; since if they did there would be no estoppel at all.

52. It is also right to say that in the majority of cases that have considered whether estoppels have arisen because of what has been said in booklets summarising a pension scheme, the overwhelming majority of judges have said that explanatory booklets containing statements to the effect that in case of doubt or conflict the rules or trust deed will prevail do not on their own give rise to estoppels. To hold otherwise would mean that a booklet of that kind would override the rules, when the booklet itself says the contrary: ITN v Ward [1997] Pens LR 131 para 22 and 23 (Laddie J); Lansing Linde Ltd v Alber [2000] Pens LR 15 para 198 (Rimer J); Hoover Ltd v Hetherington [2002] Pens LR 297 para 51 (Pumfrey J); Redrow plc v Pedley para 65; Hearn v Younger [2005] Pens LR 49 para 111 (Etherton J). The only case to the contrary is Icarus (Hertford) Ltd v Driscoll [1990] 1 Pens LR 1 (Aldous J). But the reasoning is extremely compressed, and cannot be said to have laid down any general principle. Nor do the terms of the booklet appear from the report of the judgment. Steria Ltd v Hutchison [2005] EWHC 2993 (Ch) to which I was also referred was a case in which a particular member (as opposed to the general body of members) was held to be entitled to the benefit of an estoppel as a result of a combination of both the booklet and a letter addressed to him personally. I do not consider that this case assists in the present case.

Conclusions on estoppel

53. Those seven female members who are known to have retired at 60 did so on the basis of a full entitlement to pension, without any reduction for early retirement. Far from having acted on the assumption that their normal retirement date had been increased to 65, they were treated on the basis that it had not. As Mr Newman said, nothing happened to them that would not have happened anyway in the absence of an amendment. But in any event what happened to these particular female members cannot be taken as representative of male members, particularly those with a Barber window period of pensionable service.
54. The female members who carried on working after the age of 60 may or may not have done so on the assumption that they had to work until the age of 65 in order to become entitled to a full pension. There is no evidence one way or another. It must not be forgotten that under the rules of the Scheme a member who reaches the Normal Retirement Date may elect to postpone receipt of a pension while he or she continues in service. That may have happened in these cases. To the extent that such female members continued to make contributions to the scheme (if they did, as to which there is again no evidence) then, as Morritt V-C said, that is not enough.
55. Of the two witnesses who actually gave evidence, one left before any of the relevant events and before the creation of any of the relevant documents, and cannot have shared any erroneous assumption. The other did not read (or read only briefly) the documents relied on; and there is no evidence that he acted on any erroneous assumption.
56. There is no general evidence about male members.
57. In my judgment the evidence in this case is simply too exiguous to give rise to the alleged estoppel binding the general body of members of the Scheme. It follows, in my judgment, that the Barber window remains open.

Priorities

58. Section 73 of the Pensions Act 1995 requires the assets of a salary related occupational pension scheme to be applied on a winding up in a particular order of priority. That order is set out in section 73 (3) of the Act, the relevant parts of which, in 2002, were 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 pensions credits (including increases to pensions)."

59. Section 73 has been subsequently extensively amended.
60. The question, in essence, is whether a male member, who has accrued pensionable service within a Barber window, and who had attained the age of 60 before the commencement of the winding up of the Scheme, has an entitlement that falls within section 73 (3) (b). Mr Dubery is such a person. If the answer to the question is affirmative, then he will be paid in priority to Ms Cripps, who is a deferred member, and whose pension falls into section 73 (3)(f).
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.