The Court of Appeal (Patten, Newey and Males LJJ) today upheld as lawful a decision by the Pensions Regulator to issue financial support directions in respect of the Box Clever Group Pension Scheme to five companies in what is now the ITV group.
The Scheme has an estimated deficit of £115m and has entered the assessment period for entry into the Pension Protection Fund. Under the Pensions Act 2004, the Regulator is empowered to issue a financial support direction to a person who is either an employer in relation to an occupational pension scheme or is either connected with or an associate of the employer. Where the required relationship exists, the Regulator must consider whether it is reasonable to impose the requirements of the direction on the target. The Regulator held that it was reasonable to issue directions and in doing so had regard to events predating the coming into force of the 2004 Act.
The targets appealed to the Upper Tribunal, contending that, on its proper construction, the 2004 Act did not have retrospective effect in the sense of permitting the Regulator to have regard to events prior to its coming into force; that in any event it would contrary to Article 1 of Protocol 1 to the European Convention on Human Rights to give it such effect; that they were not connected with or an associate of any of the employers; and that, in any event, it was not reasonable to impose the direction, given in particular that all the events said to make the direction reasonable had predated the coming into force of the legislation.
The Upper Tribunal (Tax and Chancery Chamber, chaired by Rose J) dismissed the appeal. The Court of Appeal today dismissed the targets’ further appeal. It held that the legislation involved an element of retrospectivity, but that there were strong policy considerations in favour of that. When read with together with the safeguards inserted by Parliament, the legislation was clearly intended to operate by reference to events which may have predated its coming into force. There was no breach of A1P1 given the social remedial aims of the legislation and the opportunities afforded to the targets to challenge the direction before an independent tribunal. The legislation therefore struck a fair balance. The targets were associates of the relevant employers. The Upper Tribunal had not erred in law in concluding that the Regulator had acted reasonably in issuing the direction.
The judgment is here.
Martin Chamberlain QC appeared for the Regulator and argued the human rights points.