Ross Trustees Services Limited v Comron Rowe

In representative pension-scheme proceedings, the court may appoint issue-based representatives where the represented persons have the same interest and representation furthers the overriding objective. Where competing groups settle, approval requires a mutually beneficial compromise that strikes a fair balance between the competing arguments. The court need not decide which side would win; it should assess whether the settlement reasonably balances litigation risks and rewards, including finality, cost, certainty and practical implementation. A merits split may inform that assessment, but is a crude tool and must be used cautiously. Passing the threshold does not compel approval: the court retains a discretion. The representation orders and compromise were therefore approved.

The claimant trustee brought Part 8 proceedings concerning whether the 1992 trust deed and rules had equalised male and female normal retirement ages in an occupational pension plan. A representative defendant was proposed for members favouring the lowest possible retirement age, while the trustee represented those favouring the highest. The parties negotiated a compromise providing different deemed ages for three service periods between 17 May 1990 and 6 April 1999. The court had to decide whether issue-based representation orders should be made and whether the compromise was for the benefit of all represented persons. It also considered implementation for sections administered by the Pension Protection Fund.

Disposition. The application was granted. The Claim Form was re-amended, issue-based representation orders were made for the two competing groups, and the proposed settlement was approved. The order assigned implementation for sections administered by the Pension Protection Fund to the Fund, suspended implementation briefly, and provided liberty to apply for six months.

1. Under the Civil Procedure Rules 1998, the proceedings concerned property subject to a trust. The proposed representatives satisfied the same-interest requirement because each represented a group sharing an interest in how the disputed normal retirement age issue should be resolved. Representation also furthered the overriding objective by avoiding multiple Part 8 applications and unnecessary expense. The approach was consistent with Capita ATL Pension Trustees Ltd v. Zurkinskas and ors [2010] EWHC 3365 (Ch).
2. For settlement approval, the court had to be satisfied that the compromise benefited all represented persons. Where interests competed, that required a mutually beneficial settlement striking a fair balance between the competing arguments, as explained in Thompson v. Fresenius Kabi Ltd [2013] Pens. L.R. 157. The court did not need to decide which side would succeed at trial. It had to assess whether the compromise reasonably balanced the available risks and rewards.
3. The 66:34 merits split in favour of the representative defendant was a permissible but necessarily crude method of assessing the compromise. It was reasonable in light of the careful negotiations and confidential legal opinions. The settlement also removed the risk and cost of a full trial, resolved uncertainty, and provided a practicable method for administering historic, current and future benefits.
4. The threshold having been met, approval remained discretionary. The absence of objections after explanatory communications, together with the certainty and implementability of the compromise, justified approval.