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Pensions, Contracts and Trusts: Legal Issues on Decision Making

David Pollard

ISBN13: 9781526511836

Published: May 2020

Publisher: Bloomsbury Professional

Country of Publication: UK

Format: Hardback

Price: £145.00

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9781526511843

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This is a topical area for the courts, which have moved to imply various limitations or tests on decision makers powers and when they can be challenged. This is made more difficult for lay users and lawyers alike in that implied restrictions are (by definition) not apparent from the words of the relevant contract itself. These limits are applied by the courts not just to fiduciaries (such as trustees or directors), but also to non-fiduciaries (eg banks and employers).

Recent case law includes:

Pitt v Holt (SC) – trustee decisions (2013)

Braganza (SC) – contractual discretions (2015)

Eclairs (SC) – directors powers: proper purposes (2015)

IBM UK Holdings v Dalgleish (CA) – employer powers under pension plans (2017)

British Airways (CA)– pension plan – proper purposes (2018)

The book reviews the relevant doctrines of:

Interpretation rules

Proper purposes;

Due consideration of relevant factors

Full perversity (no reasonable decision maker)

Subjects:: Contract Law, Equity and Trusts, Pensions Law

Contents:: Part 1: Introduction; 1. Introduction; Part 2: General; 2. Public Law Analogy in Private Law Discretions?; 3. General Issues on Use of Public Law; 4. Wednesbury Applied; 5. Good Faith and Dishonesty; Part 3: Extent of Power- Construction; 6. Construction - General; 7. Express Limits on a Power; 8. Construction Principles; 9. Interpretation of Pension Schemes; Part 4: Looking At the Decision Maker- And Fetters on Discretion; 10. Who Is The Decision Maker?; 11. Trustee Discretions and Fetters; 12. Statements of a No Fetter Rule; 13. Fetters: Some Older Cases; 14. The Fetters Rule Gets More Sensible: Three Modern Cases: Thorby, C Abra Estates and Firkin-Flood; 15. Modern Position; 16. Pension Schemes and Fetters; 17. Fetters: Is Public Law Any Guide?; 18. Fetters and Changes of Trustees; 19. Fetters: Outside Parties; 20. Fetters: Effect on Third Parties; 22. Setting Policies or Guidelines?; 23. Avoiding Fetter Issues; Part 5: Proper Purposes; 24. Proper Purposes: Introduction; 25. Eclairs; 26. The Proper Purpose Test; 27. There Is No Literal "Best Interests" Rule; 28. Purpose Test in Trust Law And Company Law; 29. How Is The Proper Purpose Test Applied?; 30. Can Proper Purposes Apply Where There Has Been A Failure To Act?; 31. How Is The Decision Maker's Purpose Worked Out?; 32. Causation/More than One Motive or Intention; 33. More Than One Decision Maker; 34. Purpose Vs Motive?; 35. Overlap With Need To Consider Only Relevant Factors?; 36. Effect of Improper Exercise; 37. Proper Purposes: Conclusion; 38. Proper Purposes: Application To Pension Schemes: Introduction; 39. Pension Scheme and Trustee Powers; 40. Overall Purpose of a Pension Scheme - A Suggestion; 41. Edge V Pensions Ombudsman; 42. Pensions: Main Purpose Vs Sole Purpose?; 43. Pension Trusts: Examples of the Application of the Proper Purpose Test; 44. Amendment Powers/ Change of Principal Employer; 45. Transfers-In; 46. Transfers Out: Fletcher Challenge and Its V Hope; 47. Investment; 48. Early Retirement Reduction; 49. Commutation Factors; 50. Pension Increases; 51. Winding-Up a Pension Scheme?; 52. Regula Tor Powers; 53. Trustees Exercising Powers Fairly; 54. Proper Purpose: Overview; Part 6: Fiduciaries and "Best Interests?; 55. Fiduciaries: Best Interests? Overview; 56. Introduction; 57. Why Does This Matter?; 58. This Article Does Not Cover: Social Investment and Other Interests Points; 59. Trustee, Directors and Discretions; 60. Best Interests and Who Is a Fiduciary; 61. UK Official Guidance; 62. A Literal Best Interests Duty Is Dangerous; 63. Literal Best Interests Duty: Imprecise and Unworkable; 64. Cowan V Scargill (1984); 65. Interpreting Megarry V-C's Judgment In Cowan V Scargill: Context Etc; 66. Did Megarry V-C Invent The Duty For Trustees?; 67. Lord Nicholls; 68. MNRPF (2015): There Is No Literal "Best Interests" Rule; 69. Express Contractual or Statutory Duty – Some English Cases; 70. Overview; 71. Problems with A Literal "Best Interests" Duty.; 72. (1) Is Not A Freestanding Duty 'To Act', But Instead A Limit on Powers; 73. (2) Does Not Override Limitations in the Trust Instrument; 74. (3) Does Not Override the Proper Purposes Test; 75. (4) Should Be Seen As Subjective - What Did The Trustee Board Consider At The Time Would Be Likely To Promote The Success Of The Trust?; 76. (5) There Is Always More That the Trustee Could Do; 77. (5) Literally Would Impose a Retrospective Best Outcome Standard; 78. Not a 'Paramount' Duty; 79. Gives No Guidance on Who Is a Beneficiary/ How to Decide Between Beneficiaries; 80. Some Cases After Cowan V Scargill; 81. 'Best Interests' or Just 'Interests'?; 82. Best Interests/Success of the Trust Is Better; 83. Proper Purposes Even Better?; 84. Silence Is Louder Than Words: Cases That Do Not Mention A 'Best Interest' Duty When They Should; 85. Directors' Duties: Companies Act 2006, Si 72; 86. A Positive Duty to Disclose? Item Software; 87. UK Statutory Duties for Trusts and Directors; 88. Ops Investment Regulations/ IORP Directive; 89. Australia Statutory Intervention and Case Law; 90. Conclusion; Part 7: Due Consideration of Relevant Factors; 91. B Ragan Za - A Landmark Case; 92. Braganza: The Decision; 93. The Braganza Rationality Test; 94. Who Is The Decision Maker?; 95. Trustees and Braganza?; 96. Pension Trustees and Public Law Following Braganza; 97. Does Braganza Apply To All Commercial Discretions?; 98. Nature of Discretion; 99. Intensity of Review; 100. First Limb - Process: Relevant Factors; 101. Trustees And Relevant Factors: P Itt V H Olt Compared With Braganza?; 102. Three Types of Relevant Factors: The Public Law Approach; 103. Weight Given To Factors; Part 8: No Reasonable Decision Maker: Full Perversity; 104. Braganza; 105. Arbitrary, Capricious Etc; 106. Timing for Irrationality?; 107. What If One Reasonable Decision Maker Would Have Made The Same Decision?; 108. Braganza Test Is A Limit On A Power?; Part 9: Braganza Rationality Tests: Interaction with the Proper Purpose Test; 109. Braganza and MDTC/Contractual/Imperial Duty; Part 10: Further Issues; 110. Multiple Decision Makers; 111. Decision Maker Would Have Made The Same Decision Anyway?; 112. Decision Maker Giving Reasons; Part 11: Remedies for a Failure?; 113. Remedies; 114. Reversal of the Decision; 115. Damages or Equitable Compensation for Breach of Trust/Duty against the Trustee:; 116. Claim against Third Party:; 117. Removal of the Decision Maker; 118. Exclusion Clause?; 119. Overturning a Decision - Reference Back To Decision Maker; Appendix A: 12 Major Review Grounds for Trustee Decisions; What Is A Trustee Board Not Obliged To Do?; Appendix B - Casela Won the Nature of a "Discretion"; Discretions