BT Pension Scheme Trustees Ltd v British Telecommunications Plc & Anor

A party who has made an express concession in carefully structured, phased litigation cannot readily withdraw it at a later stage. The party seeking to resile bears the burden of showing that withdrawal should be permitted. It is ordinarily sufficient that allowing the new position creates a real risk that the opposing party would have conducted the litigation differently. The risk need not be certain or involve additional evidence. The same principles may apply where a trial is divided into phases intended to determine issues finally. A party may also be barred by Henderson v Henderson abuse of process principles from raising a point which it knew could, and should, have been raised earlier in the same phased proceedings.

The proceedings concerned the extent of a statutory Crown guarantee relating to liabilities under the BT pension schemes. In an earlier judgment, [2010] EWHC 2642 (Ch), the court decided issues concerning post-transfer date joiners. The parties had negotiated an exhaustive list of issues, and the Secretary of State had conceded that liabilities arising from fully funded bulk transfers into the scheme were not excluded from the guarantee under the relevant post-transfer events analysis.

The Secretary of State later sought to introduce a revised issue contending that liabilities resulting from a post-transfer rule amendment, including the 1993 merger of the BTNPS, fell outside the guarantee. The question was whether that point was barred by the concession, res judicata, or abuse of process.

1. The proposed issue was not permitted. The Secretary of State had conceded, deliberately and with full knowledge of the 1993 merger, that liabilities arising from fully funded bulk transfers into the scheme were not excluded from the guarantee merely because the transfer was effected through an amendment. The proposed issue sought to resile from that concession.
2. The court applied by analogy the principles governing withdrawal of concessions or new points on appeal. The party seeking to withdraw a concession bears the burden. Express concessions attract particular weight. Withdrawal is unlikely where there is a risk that the other parties would have adduced further evidence, structured their arguments differently, or otherwise conducted the litigation differently. A low threshold of risk is sufficient, and the benefit of doubt lies with the party opposing withdrawal.
3. Those principles were appropriate because the trial had been divided into phases to determine issues finally and provide foundations for later stages. The negotiated list of issues was intended to be exhaustive, and the parties’ concessions shaped the issues and the arguments on which the first phase was decided.
4. The court rejected res judicata as the present basis for the decision. No sufficiently final issue estoppel had yet arisen because no order embodying the earlier decision had been drawn. In any event, the amendment point resulted from combining the earlier judgment with the concession, rather than from the earlier judgment alone.
5. The proposed point would also constitute an abuse of process under Henderson v Henderson. It was known, could have been raised at the first hearing, and should have been raised then if it was to be relied upon. The parties were entitled to rely on its deliberate exclusion from the agreed issues.
6. The Secretary of State was therefore not entitled to raise the amendment and bulk-transfer point in revised Issue 12(b) and (c). The precise form of the order was left for further consideration.

This was a further first-instance judgment in proceedings in which the court had previously decided four issues in [2010] EWHC 2642 (Ch). No appeal history was stated.