Atos IT Services UK Ltd v Atos Pension Schemes Ltd

A defined term in a written instrument ordinarily has the meaning fixed when the instrument is executed. It does not acquire a different meaning merely because circumstances or the parties’ preferred policy later change. The ordinary meaning of “published” is made public, unless the instrument indicates otherwise. Where a pension scheme definition identifies RPI as the general index of retail prices and provides for substitution only if RPI is not published, the trigger is not met while RPI continues to be published pursuant to statutory obligation. The definition therefore continues to refer to RPI rather than CPI, CPIH or an RPI variant.

The claimant, the principal employer of the Atos UK 2011 Pension Scheme, sought declarations concerning the construction of the scheme’s definition of Retail Prices Index. The definition referred to the general index of retail prices published by the Office for National Statistics, with provision for an agreed substituted index where that index was not published or ceased to exist.

The parties disputed whether the definition referred to RPI, RPIJ, CPI or CPIH, and what circumstances satisfied the non-publication trigger. The claim was determined under Part 8 on the documents and expert reports, without oral evidence.

1. Construction of the definition. The claim was determined in favour of the trustee. The words “the general index of retail prices (all items) published by the Office for National Statistics” meant RPI. The meaning was fixed when the instrument was executed and remained the same thereafter.
2. The definition was not a mobile or dynamic provision. Its purpose was to identify the single index intended by the draftsman. The fact that RPI later became regarded by the Office for National Statistics as flawed, or ceased to be its preferred or lead measure of inflation, did not alter the meaning of the defined term.
3. Meaning of “published”. “Published” bore its ordinary meaning of made public. It did not mean published with National Statistics status, published as the preferred measure of inflation, or published for a particular pension or governmental purpose. The statutory definition in Statistics and Registration Service Act 2007, s. 21(1), required the UK Statistics Authority to compile, maintain and publish RPI every month. RPI was therefore still published.
4. The trigger condition had not been met. The better construction of “where that index is not published” was where RPI was not published for any purpose. Temporary unavailability was addressed separately in the scheme’s pension-increase provisions, and did not justify importing a different meaning.
5. The final provision concerning the situation where RPI ceased to exist did not require a special construction of “published”. If RPI ceased to exist it would necessarily cease to be published, so that provision added no assistance on the meaning of the trigger.
6. The argument based on Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc was rejected. That decision concerned the application of the meaning of “profits” in changed accounting circumstances. It did not establish that a defined term changes meaning over time. Questions 3 and 4 on the claim form did not arise.