Pensions


Actuaries - early retirement - occupational pensions

Wright v MGN Pension Trustees Ltd: CA (Civ Div) (Lords Justice Mummery, Thomas, Lloyd): 8 November 2007

The appellant pension trustees (M) appealed against a decision on preliminary issues that the respondent pension scheme member (W) was entitled to receive his pension prior to the normal retirement age without actuarial reduction and without the consent of W's former employer (G).



W had worked for G and was part of a pension scheme of which M were the trustees until he was made redundant at the age of 47. W became entitled to a preserved pension which he deferred until he reached the age of 60. Under the rules of the scheme, the normal retirement age was 65 but members entitled to a preserved pension could apply for it at any time after reaching the age of 50 under rule 3.15. A special right was conferred on employees that had attained 25 years' service to apply for their pension early without actuarial reduction under rule 3.7.3. A factual issue as to whether or not W had attained the 25 years was scheduled for trial. Preliminary issues concerning the proper construction of rules 3.15 and 3.7.3 of the scheme arose in relation to whether or not, where a preserved pension was received, the agreement of the trustees and employer was required for rule 3.7.3 to apply.



W asserted that agreement need not be given and that, in any event, a letter announcing changes in the scheme had effectively provided automatic consent. The judge ruled that W's construction of the rules was correct. M submitted that the judge erred in his construction of the rules and should have concluded that although W was entitled to a preserved pension, he was not entitled to a preserved pension without actuarial reduction for its early receipt, since rule 3.7.3 required the agreement of G or the trustees, which had not been provided; in concluding that the announcement letter had provided automatic agreement.



Held, both the judge and W's reading of the rules was done without considering the context of rule 3.7 as a whole. Although the text of rule 3.7 was set out in separate units, it was in reality a continuous text, spread out for ease of reading. It was not fair to view each sub-rule as independent of the others, and the connecting text had to be included, as it was necessary to understand how the rules were to be applied consistently. Rule 3.7.2 provided for the actuarial reduction of a pension received by individuals more than 50 years of age, and rule 3.7.3 conferred the right on that person to avoid a reduction where they had obtained 25 years' service and the reduction had been waived with the agreement of the employer. The cross-reference in rules 3.15 to 3.7.2 and 3.7.3 meant that for W to receive his pension without actuarial reduction, agreement had to be obtained.



W had asserted that a letter announcing certain changes to the scheme, particularly in relation to early retirement opportunities, had stated that those aged 60 or more could opt to access their pensions early without actuarial reduction. The judge considered the letter to provide automatic consent from M and G. However, the announcement was a policy statement that did not of itself actually create automatic consent and could not possibly be viewed in that way.



Appeal allowed.



A Short for the appellant; D Reade QC for the respondent.





Employment



Employment - immigration - local government - automatically unfair dismissal

Elens Klusova v Hounslow London Borough Council: CA (Civ Div) (Lords Justice Mummery, Laws, Moore-Bick): 7 November 2007
The appellant employee (K) appealed against a decision of the Employment Appeal Tribunal (EAT) dismissing her claim for unfair dismissal against the respondent local authority.



The local authority had summarily dismissed K under section 98(2)(d) of the Employment Rights Act 1996 because it believed that, as a Russian immigrant whose limited leave to remain had expired, she could not continue to work without causing a contravention of section 8 of the Asylum and Immigration Act 1996. The tribunal held that the local authority could not rely on section 98(2)(d) because K could lawfully be employed, pending determination of a valid in-time application she had made for indefinite leave to remain, which had the effect of extending her right to remain and work; that the local authority had not genuinely believed that her continued employment would contravene the statutory restrictions, and that K's dismissal was automatically unfair because the local authority had breached the statutory dismissal procedures. The EAT held that there had been no evidence that K had made a valid application for leave to remain and that the tribunal's finding had been perverse, and that the local authority had had a genuine belief that K could not continue in employment without contravention of the Asylum and Immigration Act, that had amounted to some other substantial reason for the dismissal under section 98(1)(b) of the Employment Rights Act.



K argued that the tribunal had made a finding of fact about the application for leave to remain that could not be overturned on an appeal confined to a question of law, and that the EAT had been wrong to find perversity.



Held, there had been sufficient evidence for the tribunal to make a factual finding that K had made a valid in-time application that had resulted in an extension of the period in which she was entitled to remain and work. Accordingly, the local authority could not rely on section 98(2)(d), which required an actual statutory bar on K working; a reasonable belief that she was not entitled to work was insufficient.



No reasonable inference of an absence of genuine belief could reasonably have been drawn by the tribunal from the facts that they had based their decision on. No reasonable tribunal, having regard to evidence that the local authority had been informed by the Home Office that K had no right to work, could have concluded that the local authority's belief was not genuine. Accordingly, the EAT had been correct to find the dismissal fair for some other substantial reason, but the local authority was liable for automatic unfair dismissal by reason of its non-compliance with the statutory dismissal procedures.



Appeal allowed in part.



Parishil Patel (instructed by Walkers) for the appellant; Jonathan Cohen (instructed by the local authority solicitor) for the respondent.





Real Property



Benefits of covenants - commercial development - compensation - loss of amenity

Winter & anor v Traditional & Contemporary Contracts Ltd: CA (Civ Div) (Lords Justice Ward, Rix, Carnwath): 7 November 2007
The appellant freeholders (W) appealed against a decision of the Lands Tribunal on an application by the respondent company (T) for the modification of a restrictive covenant.



W were the freehold owners of a house. The covenants related to the site adjoining their property. The site had been occupied by a house and was subject to a covenant restricting its use to one dwelling house. T had sought modification to permit the construction of two houses. By the time W became aware that they were entitled to the benefit of the covenant, the new houses had been completed.



The issue before the tribunal was how much compensation should be paid to W. The tribunal relied on Re Fairclough Homes Ltd as showing that the assessment of the impact of the proposed development involved comparison with other possible forms of developments, and in accordance with Re Skupinski's Application [2005] RVR 269 that it should not assess compensation by reference to the development value of the application site.



The tribunal found that any detriment to amenity was not attributable to the modification of the covenant, and that W's house had not decreased in value. However, the tribunal awarded W the sum of £10,000, unless T carried out necessary backfill strengthening work between the two sites.



W submitted that the tribunal's decision was inadequate because it should have assessed compensation by reference to the additional development value released by the modification, and failed to take account of the fact that, by starting the works before the modification of the covenant, T had deprived W of the possibility of influencing the form of the development; that it gave undue weight to the prospect of alternative development on the application site; and that it failed to compensate W for the significant apprehension caused by T's failure to address the backfill problems at an earlier stage.



Held, the negotiated share approach was well-recognised in civil proceedings for breach of restrictive covenants, Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 considered. However, compensation under section 84 of the Law of Property Act 1925 was based on the impact of the development on the objectors and not on the loss of the opportunity to extract a share of the development value, SJC Construction Co Ltd v Sutton LBC [1975] 29 P & CR 322 and Stockport MBC v Alwiyah Developments [1986] 52 P & CR 278 considered.



The only issue was the extent to which those cases left open the possibility that the developer's profit might be relevant to the assessment of that impact and, if so, whether the tribunal erred in not taking that possibility into account. The tribunal had simply adopted the decision in Skupinski and made no reference to the possibility of a negotiated share-based award. The reasoning in Skupinksi was unimpeachable on its own facts and was consistent with Stockport.



The facts in the present case arose in a slightly different way, in that the development was commercially driven and the objectors were simply seeking to protect their home. With hindsight, it was possible to criticise the tribunal for treating Skupinski as a sufficient answer to W's case without further discussion. However, the possible difference between the two cases did not appear as an important part of the argument. The main thrust of W's case before the tribunal was to argue for a substantial share of development value as a matter of principle. That was also the emphasis before the present court. The tribunal was entitled to treat the analysis of the authorities in Skupinksi as directly relevant to that issue and to adopt its reasoning. That approach disclosed no error of law.



There was a danger of applying the Fairclough test without sufficient regard to its different context. Although it would have been preferable if the tribunal had adopted a consistent formulation of the test, there was no criticism of the tribunal's application of it. Once it was accepted that the tribunal applied the correct test, its conclusion became one of fact which could only be challenged in the present court if it were shown to be based on no evidence, or was otherwise irrational. That was not the case.



The belated acceptance by T of its backfill obligation did not remove all the sting of what had gone before for W. However, taken on its own, that did not give rise to an error of law.



Appeal dismissed.



Laura Collignon (instructed by Royds) for the appellants; Richard Colbey (instructed by the in-house solicitor) for the respondent.





Landlord and Tenant



Families - grounds for possession - secure tenancies - succession - suitable alternative accommodation

Wandsworth London Borough Council v Grant Edward Randall: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lord Justices Dyson, Jacob): 7 November 2007
The appellant local authority appealed against a decision of the judge in respect of its claim against the respondent tenant (R) for possession of the four-bedroom house which he occupied.



The house had been let to R's grandfather in 1975 on a periodic tenancy. By December 31 2004, R and his grandfather were living alone in the house and the tenancy had become a secure tenancy. On that date, R's grandfather died and R succeeded to the tenancy. The local authority informed him that he could not remain in the house, as the accommodation afforded by the house was more extensive than he reasonably required. The local authority served a notice on R, stating that it would seek possession on the basis of schedule 2, part 3, ground 16 of the Housing Act 1985. It issued proceedings relying on that ground. Between the service of the notice and the issue of proceedings, R's mother and half-sister had moved into the house. The issue was the point in time at which family members residing with a tenant who succeeded to a tenancy were to be treated as members of his family for the purposes of ground 16.



The deputy district judge held that the correct date was the date when the tenant succeeded to the tenancy, in other words the date of death of the deceased tenant. However, the judge held that the correct date was the date of the hearing before the court.



Held, the judge had been right to reach the conclusion that he had. The starting point was the statutory language itself. An order for possession could not be made under ground 16 unless three conditions were satisfied. First, the accommodation afforded by the dwelling house had to be more extensive than was reasonably required by the tenant. Second, the court had to be satisfied that suitable accommodation would be available for the tenant when the order for possession took effect. Third, the court had to consider it reasonable to make the order.



As to the third condition, it was well established that the reasonableness test required a consideration of all the relevant circumstances existing at the date of the hearing.



As to the second condition, the language of section 84(2)(c) of the 1985 Act clearly provided that the date when the order took effect was the date at which the court had to be satisfied that the suitable accommodation 'will be available'. On its face, that date was a date later than the date of the hearing. It was certainly not the date of succession, which would always be more than six months earlier than the date of the hearing.



Turning to the first condition, the tenant's reasonable requirements were, given the conclusions already reached, to be judged as at the date of the hearing. Other factors supported those conclusions. In the circumstances, the composition of the family for the purposes of ground 16 and part IV of paragraph 1 of schedule 2 paragraph 1 was not fixed at the date of the succession, but was to be determined as at the date of the hearing.



Appeal dismissed.



Ranjit Bhose (instructed by Ashfords) for the appellant; Toby Vanhegan (instructed by Flack & Co) for the respondent.





Criminal Evidence



Cross-examination - indecent assault - rape - sexual behaviour - sexual offences

R v C: CA (Crim Div) (Sir Igor Judge (President of Queen's Bench Division), Mr Justice Pitchford, Mr Justice Openshaw): 7 November 2007
The appellant (C) appealed against his convictions for rape, indecent assault and assault occasioning actual bodily harm.



The alleged offences had been committed against C's wife (W). The Criminal Justice Act 2003 was not in force at either the time that the offences were committed or at the time that W complained. At trial, C's counsel applied for leave to cross-examine W about certain areas of her alleged sexual activities. The judge, relying on section 41 of the Youth Justice and Criminal Evidence Act 1999, refused to allow W to be cross-examined about an argument arising from an alleged affair with a 16-year-old boy. The judge refused the application on the basis that the purpose of that proposed cross-examination was to attack W's credibility. The trial proceeded on the premise that the restrictions on cross-examination of W, pursuant to section 41, were in force.



An issue arose as whether the jurisdiction of the court under section 41 was available to be exercised at all, given that the offences were committed before 1 May 2004 when the 2003 Act came into force. C contended that there was no express direction in the 2003 Act that section 41 was of application in the trial of sexual offences that were committed before the 2003 Act came into force.



Held, section 41 applied to the trial of the offences with which C was charged. The protective features of section 41 had not been repealed, disapplied or amended by the 2003 Act. Rather they had been extended to the newly-defined and extended range of offences contained in the 2003 Act.



Section 41 remained in full force and continued to apply to trials for sexual crimes which had taken place before the 2003 Act was implemented. While there was a lacuna in the 2003 Act in relation to the application of section 41, that could easily have been filled by a short saving provision, stating expressly what was plainly implied or understood, namely that, after the 2003 Act came into force, section 41 would continue to apply to trials of offences which took place before that date. The absence of such a provision did not lead to the conclusion that legislation expressly designed to make new provisions for the prevention of sexual offences somehow disapplied the protective provisions of the 1999 Act to trials involving that particular group of complainants. The virtually universally discredited common law rules relating to cross-examination in the present class of case were not resuscitated, merely because of an adventitious discrepancy between the date when the offences were committed and the trial. In the present case, it was entirely reasonable for the trial judge to assume that the purpose, or the main purpose for the issue in relation to which cross-examination had not been permitted, was to impugn the credibility of W as a witness, R v C [2005] EWCA Crim 3533, [2006] 1 Cr App R 28, and Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 considered.



Appeal dismissed.



John Perry QC, Chester Beyts (instructed by Tuckers) for the appellant; Mark Ellison, Simon Drew (instructed by the Crown Prosecution Service) for the respondent.





Civil Procedure



Abuse of process - bribery - consent orders - corruption

Kensington International Ltd (claimant/respondent) v Congo (defendant) & (1) Vitol Services Ltd (2) Vitol Broking Ltd (3) Gilles Chautard (4) Shlomo (Sam) Lambroza (third parties/appellants): CA (Civ Div) (Lords Justice May, Carnwath, Moore-Bick): 7 November 2007
The appellant companies (V) appealed against a decision ([2006] EWHC 1712 (Comm)) preventing them making payments to the Republic of Congo under contracts to purchase petroleum products. V and two of their employees (L) appealed against a decision requiring them to disclose information about two oil cargoes and against a decision ([2007] EWHC 1632 (Comm), [2007] 2 Lloyd's Rep 382) requiring them to disclose information about certain payments said to have been bribes.



The respondent (K) was a financial institution that had acquired sovereign debt on which Congo had defaulted. K had obtained English judgments and sought to enforce them. Congo was a significant oil producer, and K tried to execute the judgments by attaching debts due to Congo in respect of such oil. Congo took steps to conceal its oil trading activities to prevent K from identifying assets that might be seized in execution.



V were UK companies in the Vitol group, which was involved in trading in Congolese oil. V arranged the shipment and carriage of cargoes, and made payments for the parent company. K obtained an interim order from the Swiss court, attaching debts owed by V's parent to Congo. K then obtained an injunction against V under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of the Swiss proceedings, restraining V from making payments to Congo under certain contracts for the purchase and sale of oil. K also obtained Norwich Pharmacal relief, requiring V and L to disclose information about shipments of Congolese oil, and about bribes said to have been paid in Hong Kong by Vitol companies to representatives of the Congo on the basis that those funds could be seized in execution.



V submitted that payments made to Congo by way of pre-payments for oil to be purchased in the future were loans rather than debts, and as such were not amenable to execution under the third-party debt order procedure or its Swiss equivalent, and that insofar as the order made under section 25 extended beyond debts due, it would not have been warranted if substantive proceedings had been brought in England and therefore should not have been made; that as a matter of discretion, it was wrong to make an order the effect of which was to prevent the Vitol group from performing existing commercial contracts; that having consented to the deletion from the injunction of the requirement for disclosure of information relating to future transactions, it was an abuse of process for K to seek disclosure of information in relation to specific cargoes; and that section 13 of the Fraud Act 2006 did not deprive V of the right to claim the privilege against self-incrimination in relation to the disclosure of information about the alleged bribery.



Held, the principle which underpinned section 25 was that the court should assist the courts of other jurisdictions by providing such interim relief as would be available if it were itself seised of the substantive proceedings, Refco Inc v Eastern Trading Co [1999] 1 Lloyd's Rep 159 considered. The interim attachment order, and any final Swiss order, might be more extensive in its effect than a third-party debt order in England.



It was sufficient that it was arguable that contracts for the purchase of oil, which provided for pre-payments of part of the price, were capable of giving rise to obligations which fell within the scope of the interim and any final attachment order. That being so, it was necessary for the interim relief granted in England to be no less extensive, if it was to provide effective support for the Swiss proceedings.



The circumstances were unusual, bearing in mind the efforts made by Congo to avoid complying with the judgments against it and the willingness of companies in the Vitol group to assist it in achieving its ends. Faced with Vitol's intention to circumvent, if at all possible, a more limited order, the judge had been justified in making the wider order he did.



There was no abuse of process since there was no attempt to re-open an interlocutory application previously disposed of by consent, Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485 distinguished. An application for disclosure of information relating to specific shipments depended on K's obtaining sufficient evidence to support it.



Section 13(1) of the 2006 Act applied to any proceedings relating to property falling within the terms of section 13(3) and was not limited to proceedings having as their object making good a loss resulting from an offence of fraud under the Act. The expression 'proceedings relating to property' extended to the proceedings viewed as a whole and so included the substantive proceedings brought to recover the amounts owed by Congo. The word 'property' in section 13(1) included 'money' and the expression 'any proceedings for... the recovery... of [money]' included proceedings to recover a debt by suing on the chose in action, Bank of England v Riley [1992] Ch 475 applied. Offering or giving a bribe necessarily involved a form of fraudulent conduct or purpose within the meaning of section 13(4)(b) of the 2006 Act, so that the offences in respect of which the appellants risked incriminating themselves were related offences within section 13(1). Any risk of prosecution under section 328 of the Proceeds of the Crime Act 2002 could be disregarded. Section 13 applied to events occurring before it came into force. It was wrong to describe its effect as 'retrospective'. It was not a penal, but a purely evidential, provision.



Appeals dismissed.



Jeffrey Gruder QC, Philippa Hopkins (instructed by Ince & Co) for the appellants; Jonathan Nash QC, P Ratcliffe, H Knox (instructed by Dechert) for the respondent.





Immigration



Asylum and immigration tribunal - permission to appeal - rights of entry and residence

BS (India) v Entry Clearance Officer: CA (Civ Div) (Lords Justice Sedley, Maurice Kay, Rimer): 8 November 2007
The appellants (S) appealed against a decision of the Asylum and Immigration Tribunal refusing permission to amend their grounds of appeal under rule 62(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.



S were brothers of Indian nationality. Their mother had relocated to the UK and they had remained in India in the care of their grandmother, and later their elder brother for whom they worked on his farm. When aged 16 and 17 respectively, S applied to the respondent Entry Clearance Officer for settlement in the UK, with their mother as their sponsor. The officer refused their application under paragraph 297 of the Immigration Rules, having found that they had been living as an independent unit with their elder brother for more than three years, and that there was no evidence that their mother had taken sole responsibility for their upbringing.



S appealed against that decision, but an adjudicator held that the officer had made no error of law. S was granted permission to appeal against that decision and the matter came before the tribunal for reconsideration under the new statutory regime.



S sought to advance a number of new submissions before the tribunal, which had considered that it was not open to S to advance new submissions where rule 62(7) expressly limited the reconsideration to grounds on which permission had been granted. The Court of Appeal subsequently determined that rule 62(7) in its original form was irrational, MA (Pakistan) v Secretary of State for the Home Department [2007] EWCA Civ 16, (2007) The Times, February 19, applied. The officer proposed a disposal of S's appeal by consent and to remit the matter to the tribunal to consider whether it would allow S's proposed amendments. S contended that there ought to be a substantive reconsideration of their case without the need for the tribunal to consider whether to allow the amendments.



Held, rule 62(7) had been amended and now limited a reconsideration to grounds on which a tribunal had granted permission to appeal, unless the tribunal directed otherwise. The jurisdiction to direct otherwise included permission to allow any amendments. That decision was within the sole province of the tribunal. The case would, accordingly, be remitted to the tribunal on the basis contended for by the officer.



Appeal allowed.



In person with a McKenzie friend for the appellants; Elisabeth Laing (instructed by the Treasury Solicitor) for the respondent.