Brambles Administration Limited & Ors v Christine Mary Harvey & Ors

An appeal to the High Court under Pension Schemes Act 1993 s 151(4) lies only on a point of law. Re-labelling a challenge to an evaluative factual conclusion as an error in applying a statutory test does not enlarge the appellate jurisdiction.

Whether pension scheme assets are held on one trust or separate sub-trusts depends on the trust documentation and its operative effect. Notional allocations, member-directed investments, separate accounting, or attribution of costs do not, without more, establish separate trusts.

Under the Ivey approach, the decision-maker must ascertain the individual’s actual knowledge or belief and then apply the standards of ordinary decent people. A finding that conduct was dishonest may be upheld on appeal where it was available on the evidence and relevant considerations were properly addressed.

The appellants, who had acted as administrators, trustees or managers of three registered pension schemes, appealed against a determination of the Pensions Ombudsman dated 11 November 2024. The Ombudsman had found dishonesty, breach of trust and maladministration, and ordered payments to members and restoration of losses to the schemes.

Permission to appeal was granted on four grounds: the timeliness of two complaints; whether each scheme comprised one trust fund or separate member sub-trusts; the application of the dishonesty test; and whether one member had consented to loss or been contributorily negligent. The appeal concerned points of law under s 151(4) of the Pension Schemes Act 1993.

1. Ground 1. The Ombudsman was entitled to conclude that the complaints were brought in time under Regulation 5 of the Personal and Occupational Pension Schemes (Pension Ombudsman) Regulations 1996, or that an extension was justified. The appellants’ arguments challenged evaluative factual conclusions. The relevant appellate question was whether the conclusions were unavailable on the evidence or perverse, or involved irrelevant considerations or failure to consider relevant ones. Mere suspicion in 2015 did not necessarily establish reasonable knowledge of a scam or the relevant acts and omissions.
2. Ground 2. The conclusion that each scheme comprised a single trust fund was sustainable. The scheme rules defined the Fund as all assets held on the trusts of the scheme and described allocation to an Individual Fund as notional and for calculating benefits. The appellants did not show that the operative provisions created separate trusts. Rule 18.1 was neutral. Separate accounts, member-directed forms, allocation of costs, or investment in particular assets were consistent with accounting arrangements and did not compel a sub-trust analysis. Dalriada Trustees v Woodward [2012] EWHC 2162 was therefore relevant by analogy.
3. Ground 3. The challenge to dishonesty was likewise a challenge to an evaluative factual conclusion. The Ombudsman had made findings of the appellants’ actual knowledge and belief, then applied the objective standards of ordinary decent people in accordance with Ivey v Genting Casinos Ltd t/a Crockfords [2017] UKSC 67. The findings of dishonesty were available on the evidence, including findings that investments were made for improper purposes, to benefit associates, conceal misappropriation or obstruct members’ access to their funds. The appellants’ lack of professional experience did not prevent the conclusion.
4. Ground 4. It was unnecessary to decide consent or contributory negligence. Given the upheld findings of dishonesty, the appellants accepted that the necessary consent could not be established and that contributory negligence could not arise on the facts found.

The appeals were dismissed on all grounds.

• High Court, Chancery Appeals: The appeal from the Pensions Ombudsman’s determination dated 11 November 2024 was dismissed on all four grounds.