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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> ICM Computer Group Ltd & Ors v Colin Stribley & Ors [2013] EWHC 2995 (Ch) (04 June 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/2995.html Cite as: [2013] EWHC 2995 (Ch) |
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CHANCERY DIVISION
7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
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(1) Icm Computer Group Limited (2) ICM BUSINESS CONTINUITY SERVICES LIMITED (3) ICM COMPUTER GROUP (SCOTLAND) LIMITED (4) NETWORK DISASTER RECOVERY LIMITED (5) PHOENIX IT SERVICES LIMITED (6) SERVO LIMITED |
Claimants |
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- and – |
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(1) COLIN Stribley (2) SANDRA STRACHAN (3) JOHN CRAIG (4) PAUL WALKER |
Defendants |
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165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: [email protected]
(Official Shorthand Writers to the Court)
MR ANDREW SHORT QC (instructed by Squire Sanders) appeared on behalf of the First, Second and Third Defendants
MR JONATHAN EVANS (instructed by Simmons & Simmons) appeared on behalf of the Fourth Defendant
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Crown Copyright ©
MRS JUSTICE ASPLIN:
"The principal employer may from time to time, without the concurrence of Members, authorise the Trustees in writing to alter or add the terms to the conditions of the Rules and/or the trusts powers and provisions of this Deed and any such alteration or addition may have retrospective effect, but so that no alteration may be made by the Trustees alone without the consent of the Principal Employer. The Trustees shall forthwith declare any such alteration or addition to the Rules in writing under their hands and any such alteration or addition to this Deed by deed... This Deed and/or the Rules shall stand amended accordingly with effect from the date of such declaration or from such other date, whether future or past, as is stated in such declarations. In the event of the Trustees making any such alteration or addition to the Rules the Trustees shall forthwith notify or arrange for the notification of each Member affected thereby individually in writing of the effect thereof."
Barber window.
"The trustees considered the Barber judgment and its ramifications and resolved that normal retirement dates should be set at 65 years for all scheme members. The authorised signatory was instructed to liaise with the scheme administrators to prepare the paperwork with the intention of equalising the scheme as at 1st January 1997."
"The Trustees of the Scheme have resolved, with the agreement of the Principal Employer, to make the following alterations to the Scheme and Legal and General is hereby authorised to implement the alterations with effect from 1st March 1997."
Nothing turns, at least for the purposes of this hearing, on the difference between 1st March 1997 referred to there and the date of 1st January 1997, which was in the resolution of the Trustees themselves, which was dated 29th November 1996.
"1. Normal retirement age ("NRA") for all existing Scheme Members, both male and female, would be deemed to be 60 in respect of pension attributable to the following periods of Pensionable Service:
(a) For existing female members all Pensionable Service up to and including 28th February 1997 and;
(b) For existing male members all Pensionable Service between 17th May 1990 and 28th February 1997."
The remainder of the paragraphs are in the following form:
"2. The widower's pension is to be calculated on the same basis as that upon which the widows' pension is currently calculated. This means that on death in service, the widower's pension will be calculated using potential service from the date on which the deceased joined the scheme to age 65.
3. The upper eligibility is revised so that females in an eligibility category may join, so long as they are under 60.
4. A new cash factor for males and females is introduced and will be 9:8:1 at 65th birthday, a sliding scale of 0.02 applies on a member retiring before or after their 65th birthday.
5. Contribution rates will continue."
Paragraph 5 is not relevant for this purpose. Paragraph 6 is in the following form:
"6. The benefit termination date under the LTDI, which was the Long Term Disability Insurance, will be 65 for all members."
The equalisation of NRDs was notified to Scheme Members by way of an announcement issued on behalf of the Scheme on 21st February 1997. By a Deed of Variation dated 24th January 2005, the 1994 Rules were revoked and replaced with the Rules annexed to that Deed, which were expressed to apply with effect from 6th April 1997. By Appendix A to the 2005 rules, NRD was defined as 65th birthday of a Member.
"98. I begin by delimiting the scope of the exercise that the court undertakes which it interprets an instrument. As Lord Hoffmann explained in Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10 [2009] 1 WLR 1988:
"The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed."
99. The question, then, is what does the registered charge mean? Whatever it means, it has always meant what it means. A contract cannot mean one thing when it is made and another thing following court proceedings. Nor, in my judgment, can it mean one thing to some people (e.g. the parties to it) and another thing to others who might be affected by it. As Arden LJ herself has said a contract has only one meaning: Egan v Static Control Components (Europe) Ltd [2004] 2 Lloyd's Rep 429. Thus I do not consider that the question is as posed by Arden LJ at [63]. We are not, in my judgment, seeking to ascertain 'what the parties intended to agree' but what the instrument means."
"Accordingly, what did the parties intend by clause 3.1.3 or, perhaps more accurately, clause 3.1 as a whole? I believe that intention is clear, though not fully stated. The purpose of the retention was to act as security by ensuring that the Cordaras had a sum available in this jurisdiction from which to indemnify themselves in respect of any loss or damage they might suffer through a failure by Faddian or Relicpride to address the various outstanding items referred to in the Supplemental Agreement. The Cordaras were obliged to give Faddian a reasonable opportunity to fulfil its outstanding obligations and ensure the various events set out in clause 3.1.3 occurred. If Faddian failed to do so, the Cordaras were entitled to an indemnity in respect of any loss or damage they suffered as a result. But the balance, if any, of the retention would then be payable to Faddian as the outstanding part of the purchase price. This is not expressly stated but is what any reasonable person would understand the agreement, read as a whole against the relevant background, to mean. It is necessary to give effect to the reasonable expectation of the parties."
In my judgment the situation is the same here. The provision in relation to the NRD for males and females for the future, post 1st March 1997, was not expressly set out, but nevertheless a reasonable person would understand it to have been 65 for both male and female when they read the document as a whole against the relevant background to which I have referred.