Andrew Phillips v National Grid Gas PLC

A duty to provide and properly form an opinion under pension scheme rules is not ordinarily an open-ended continuing duty. A fresh duty may arise where trustees request reconsideration, but it is generally a duty to respond within a reasonable time. The limitation period runs from breach, assessed according to the nature of the duty. Continuing consequences, such as monthly pension payments, do not necessarily create continuing loss where the claimant’s loss was suffered when the pension entitlement was lost. On a summary judgment application, a causation issue concerning how pension trustees would have exercised their discretion may require trial evidence and assessment.

The claimant appealed against summary judgment for the defendant on a claim for damages arising from opinions given in 2002 and 2008 that he had not been dismissed for incapacity under the pension scheme rules. He alleged contractual and tortious duties to form and communicate a proper opinion, and relied on a 2009 request by the trustees for the defendant to reconsider the matter.

The recorder held that the original causes of action were statute-barred and that later correspondence did not create a fresh cause of action. The appeal concerned continuing breach, continuing loss, and causation, including whether the 2009 request generated a fresh duty to provide an opinion within a reasonable time.

1. Disposition. The appeal was allowed to the limited extent that the claimant might pursue the allegation that the defendant breached a duty by failing to provide a fresh opinion within a reasonable time after the trustees’ 2009 request. The appeal was dismissed in all other respects.
2. It was arguable that the defendant owed duties to express an opinion whether the claimant had been dismissed for incapacity and to exercise reasonable care and skill in forming that opinion. It was also arguable that the defendant had a duty to reconsider its opinion when asked by the trustees and to do so with reasonable care and skill.
3. Those duties did not amount to an open-ended continuing duty to correct earlier opinions. Bell v Peter Browne & Co and the authorities discussed in Chitty supported the conclusion that the court should be slow to imply or impose such a duty. The 2002 and 2008 breaches therefore accrued at those times and were statute-barred.
4. The 2009 request arguably imposed a duty to provide a fresh opinion within a reasonable time. Whether that reasonable time had expired by 14 June 2016 could not fairly be decided on the evidence available, particularly because the correspondence was incomplete and the parties had not properly addressed responsibility for delay. The claimant’s conduct was relevant to the assessment.
5. The claimant did not suffer a fresh loss each month that the pension was unpaid. His alleged loss was the loss of the pension entitlement, suffered when the relevant breach occurred, even though payment would have been made periodically. The analysis was analogous to Jalla v Shell International Trading and Shipping Co Ltd.
6. The damages claim was not bound to fail for lack of causation. The court might assess how the trustees would have acted if a proper opinion had been given. The claimant was encouraged to consider pleading loss of a chance in the alternative, but the absence of such an alternative pleading did not make the existing claim bound to fail.

• County Court at Central London: Mr Recorder Gibbons granted summary judgment for the defendant on the damages claim. The judgment was handed down on 22 January 2024 and the order was made on 25 March 2024.
• High Court (King’s Bench Division): The appeal was allowed in part and dismissed in all other respects.