Summary

Appeal against a decision of the Pension Ombudsman directing the return of surplus funds received by an employer from two pension funds.

Facts

Appeal by Hillsdown Holdings plc ('Hillsdown') from a determination of the Pensions Ombudsman of 11 October 1995 by which he directed the return with interest by Hillsdown of gross payments of surplus from a pension fund, the HF Meat and Foods Processing Pension Scheme which the HF Trustees made to Hillsdown in December 1989 and June 1990. The HF Trustees were enabled to make those payments of surplus only because there had been on or shortly after 17 November 1989 a transfer to them, of all the assets and liabilities of another pension scheme, the FMC Superannuation and Life Assurance Scheme ('the FMC Scheme'). The FMC Scheme prior to that had a substantial surplus but under the FMC Scheme deed and rules, not only was there no available provision enabling repayment of surplus to the employees under the FMC Scheme of which Hillsdown was one, but there was also a provision prohibiting amendments resulting in the transfer of any assets held by the FMC Trustees thereunder, subject to an irrelevant exception on the dissolution of the FMC Scheme.

Held

His Lordship considered the facts and construction of the deeds and rules and concluded that so far as the appellant's liability to refund in principle, the appeal should be dismissed. However there were a number of points on the exact remedy to be granted which were not argued before the principle issues on liability were decided. An opportunity would accordingly be given to counsel for submissions to be made. That the remedy should be proportionate to the injustice suffered was not likely to be challenged but how it was to be achieved was less simple.