Ashley James Wilson v Port of Felixstowe Pension Trustee Limited

A determination by the Pensions Ombudsman is final and binding under Pension Schemes Act 1993, subject to an appeal on a point of law. That finality extends to issues of construction necessarily considered in deciding the complaint, even if they were not separately pleaded.

A later claim seeking to reopen such an issue may be struck out as disclosing no reasonable grounds and as an abuse of process. Where the issue is a short point of construction and the necessary material is available, summary judgment may also be given.

The claimant, a former employee and member of the Port of Felixstowe Pension Plan, sought a declaration concerning the construction of the Plan’s incapacity pension rules. He argued that entitlement to the lower-tier pension required the ability to undertake the same type of employment with another employer.

Before issuing the claim, he had complained to the Pensions Ombudsman about the award of the lower-tier pension, the interpretation of the Rules and the pension calculation. The Ombudsman rejected the complaint. The claimant did not appeal on a point of law. The defendant applied to strike out the claim or obtain reverse summary judgment on the ground that the construction issue had already been determined.

1. Finality of the Ombudsman’s determination. Under section 151(3) of the Pension Schemes Act 1993, a determination is final and binding, subject to the statutory appeal under section 151(4). The claimant’s time to appeal had expired without an appeal.
2. The construction of rule 4.2.3 was intrinsic to the Ombudsman’s determination. The complaint concerned whether the claimant qualified for the upper-tier rather than lower-tier incapacity pension. That question necessarily required construction of the Rules, including the meaning of employment with another employer. The absence of a separately pleaded construction issue did not prevent it from being determined.
3. The court followed Westminster City Council v Heywood (No 2) and the approach accepted in Pensions Ombudsman v CMG Pension Trustees Ltd: issues determined by the Ombudsman are res judicata and the determination operates as an alternative to court proceedings. Sheffield v Kier Group plc was distinguishable because the issue there had expressly been excluded from the complaint.
4. The claim therefore disclosed no reasonable grounds and was struck out under CPR r. 3.4(2)(a). It was also an abuse of process under CPR r. 3.4(2)(b), since it sought to go behind the Ombudsman’s findings. The principles in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd concerning the distinct but overlapping nature of estoppel and abuse of process supported that conclusion.
5. Alternatively, applying the summary judgment principles in Easyair Ltd v Opal Telecom Ltd, the defendant was entitled to summary judgment. The issue turned on construction, the necessary material was before the court, and the claimant had no real prospect of succeeding.