Trustee Solutions Ltd & Ors v Dubery & Anor

A pension scheme amendment power requiring writing “under hand” ordinarily requires a signature. The court cannot waive or authorise departure from that requirement. An unsigned memorandum and announcement therefore did not amend the scheme rules. A group estoppel cannot be established merely by administering a scheme on an assumed basis or by members’ passive receipt of benefits or contributions. Clear evidence of intention or positive conduct is required from the general body of members. A male member with pension accrued during the Barber window, who had reached 60 when the scheme wound up, had an entitlement within section 73(3)(b) of the Pensions Act 1995.

The trustees sought directions concerning the winding up of the Colour Processing Pension Scheme. The principal questions were whether documents issued in 1992 validly amended the rules to raise female members’ normal retirement age from 60 to 65, whether an estoppel by convention bound the general body of members despite the absence of a valid amendment, and how assets should be prioritised under section 73 of the Pensions Act 1995.

The documents relied on were an unsigned trustees’ memorandum and an unsigned announcement by the sponsoring company. The evidence also concerned scheme booklets, administration on an equalised basis, and the circumstances of representative members. A further issue was whether a male member with Barber-window service and who had reached 60 had an entitlement falling within section 73(3)(b), rather than the residual category in section 73(3)(f).

1. Validity of amendment. The phrase “writing effected under hand by the Trustees” in rule 38 meant writing signed by the trustees and by or on behalf of the company. Ordinary legal usage, the contrast with a deed, the distinct reference elsewhere to “notice in writing”, and the protection of beneficiaries supported that construction. The court had no power to waive or authorise departure from the properly construed requirements of the rules. The rules had therefore never been validly amended.
2. Alternative conclusion on documents. Even if signature had not been required, the documents were inadequate. The memorandum stated possible options and did not record a decision by the trustees. The announcement recorded a decision by the company’s board, whose interests could conflict with those of the trustees and beneficiaries. Read together, the documents still did not establish what the trustees had decided.
3. Estoppel. A group estoppel required evidence that each member, or the general body of members as such, had positively adopted the relevant assumption. Passive receipt of benefits or payment of contributions was insufficient. Former employees who had left before the relevant documents could not have shared the assumption. The evidence was too limited to establish an estoppel binding the general body. The Barber window therefore remained open.
4. Priorities. Under section 73(3)(b) of the Pensions Act 1995, entitlement was not confined to pension actually in payment. Barber-window rights gave a male member the right to take the relevant pension at 60. Because the whole pension had to be taken together, the member could retire and receive immediate payment, subject to any applicable early-retirement factor on later accruals. The entitlement therefore had priority over a deferred member’s claim under section 73(3)(f).