Wilberforce silk wins appeal on key pension benefits ruling

Brian Green QC of Wilberforce Chambers has won a Court of Appeal case that will have implications for the raft of pension schemes currently grappling with equalisation issues.

Brian Green

Brian Green

In the original 2008 case Foster Wheeler Ltd v Hanley & Ors, the High Court ruled that the members of engineering company Foster Wheeler’s UK pension scheme could retire at 60 and receive their full ­pension allowance without any deductions, despite the scheme’s normal retirement age being raised to 65 in the 1990s in accordance with European law.

The court had been asked to decide between three ways of calculating benefits if, for example, members had accrued some of their ­pension pot with an assumed retirement age of 60 and some with a retirement age of 65. Under UK pension law there can be only one pension so the court was asked to decide how the two pots could be mixed.

Acting for Foster Wheeler in the appeal, Green successfully argued that High Court judge Mr Justice ­Patten’s decision gave scheme members greater rights than they are entitled to under European law.

Andrew Simmonds QC of 5 Stone Buildings, ­acting for the scheme’s trustees, said the trustees would be able to accommodate any of the options the court was ­originally asked to consider, although he said there could be administrative ­difficulties.

Andrew Simmonds

Andrew Simmonds

The appeal judges ruled that pensions calculated for those retiring between 60 and 65 should include a deduction for the period between retirement and reaching age 65.

Green was instructed by Freshfields Bruckhaus Deringer partner Dan Schaffer and worked alongside fellow Wilberforce ­barrister Jonathan Hilliard.
Simmonds was instructed by Clifford Chance partner Imogen Clark.

Andrew Spink QC and Keith Bryant of Outer ­Temple Chambers, instructed by Bond Pearce partner Stephen Lister, acted for a representative beneficiary of the pension scheme.

The case was heard by Lady Justice Arden, Lord Justice Lloyd and Mr ­Justice Richards.