Industry-Wide Coal Staff Superannuation Scheme Co-Ordinator Ltd v Industry-Wide Coal Staff Superannuation Scheme Trustees Ltd & Anor

A court may correct a statutory drafting error by adding, omitting or substituting words only in a plain case. It must be abundantly sure of the provision’s intended purpose, inadvertent drafting failure and the substance of the provision that Parliament would have enacted. A requirement that replacement pension benefits be no less advantageous than existing benefits does not require identical benefits. Where the evidence leaves a rational possibility that wording was deliberately omitted, the threshold for correction is not met. The provision must then be construed according to its express terms.

The claimant, coordinator of a multi-employer defined benefit pension scheme, sought declarations concerning the construction of Rule 33 of the Industry-Wide Coal Staff Superannuation Scheme. Rule 33 provided for annual pension increases on 1 January but did not expressly provide for pro-rating the first increase according to the period for which the pension had been in payment.

The claimant argued that words should be read into the rule to reproduce a pro-rating provision found in the predecessor British Coal Staff Superannuation Scheme. The issues were whether the 1994 Regulations contained a correctable drafting mistake and, if so, whether the executed Trust Deed and Rules had the same effect.

1. Construction of the Regulations. The principles in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 applied. The court must be abundantly sure of the intended purpose, an inadvertent drafting failure and the substance of the provision that would have been made. The judicial power is confined to plain cases and must not become legislation.
2. The statutory requirement in paragraph 3(7)(c) of Schedule 5 to the Coal Industry Act 1994 was that benefits under the new scheme be no less advantageous than those under the existing scheme. That did not require the benefits to be identical. Rule 33, read literally, gave a more advantageous benefit in the relevant respect and therefore satisfied the statutory requirement.
3. The court was not abundantly sure that the omission of a pro-rating provision was a drafting mistake. The Regulations contained no internal inconsistency, ambiguity, absurdity or unworkability. The predecessor scheme contained such a provision, but the successor schemes were not identical, and the mineworkers’ schemes showed that omission of pro-rating was rational and workable. The external material did not address pro-rating specifically. The suggested explanation of the omission was possible, but deliberate omission was also possible.
4. Rule 33 therefore had to be construed according to its express terms. It did not provide for pro-rating of the first pension increase. Regulation 4 required the executed Trust Deed and Rules to use, and have the same meaning as, the draft rules in the Regulations. The executed Rule 33 consequently had the same effect.
5. The claimant was not entitled to the declarations sought.

First instance decision. No prior decision or appeal is stated in the judgment.