Court of Appeal plays supporting role to under-fire actuarial firms

A recent Court of Appeal decision has given actuarial consultancies a glimmer of hope amid an increasing trend for pension funds to sue their advisers.

Kirkpatrick & Lockhart Nicholson Graham and John Wardell QC of Wilberforce Chambers secured victory for actuarial firm William M Mercer, which was being sued by Irish company Precis over advice given about its pension fund.

In 2000, Precis relied on advice given by Mercer when it made an offer for the shares of another company, Stoves. The offer was made after Mercer examined and valued Stoves’ pension fund deficit.

However, it later emerged that the deficit was much larger than Mercer reported, causing Precis to launch a negligence claim. The Court of Appeal panel – Lord Justices Kennedy and Laws and Lady Justice Arden – upheld the April 2004 finding of Judge Behrens.

Arden LJ’s judgment held that Precis should have listened to legal advice given by DLA Piper Rudnick Gray Cary and taken additional actuarial advice at the time, and that therefore the company was contributorily negligent for its losses.

The Court of Appeal decision on 15 February was followed swiftly by the filing of a claim in the High Court by Crédit Lyonnais Group Management UK Pension Scheme against actuaries Watson Wyatt. Crédit Lyonnais alleges that Watson Wyatt overstated the funding position of the scheme, giving employees overly generous benefits.

Watson Wyatt insisted it would “vigorously defend” the claim and has instructed Barlow Lyde & Gilbert partner Simon Konsta to do so.

Giles Orton, a partner at Eversheds and chair of the Association of Pension Lawyers litigation committee, said the trend for litigation comes down to the fact that many pension schemes are underfunded, and so trustees are seeking to offset losses by launching negligence claims against actuarial consultants.

“The [Pensions Act 2004] is going to put more responsibility on the actuary,” he added, “and I suspect that the actuarial profession is going to become more conservative in response.”