Pensions, Contracts and Trusts: Legal Issues on Decision Making

Erscheinungsjahr 2020
ISBN: 978-1-5265-1183-6
Verlag: Bloomsbury Academic

Buch, Englisch, 640 Seiten, Hardback, Format (B × H): 157 mm x 251 mm, Gewicht: 1225 g

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)

This title is included in Bloomsbury Professional's Pensions Law online service.

Autoren/Hrsg.

Pollard, David

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)

Inhaltsverzeichnis

Part 1: Introduction

1. Introduction

Part 2: Legal review of decisions: General

2. Legal review of decisions: Major Tests

3. Expanded outline of major tests

4. Exceptions and qualifications

5. Public Law analogy in private law discretions?

6. Construction - General

7. Interpretation of Pension Schemes

Part 3: Types of decision and who is the decision maker

8. Nature of discretion

9. Who is the decision maker?

Part 4: Proper Purposes - Applying Eclairs

10. Proper purposes: Introduction

11. Eclairs

12. The proper purpose test

13. Purpose test in Trust Law and Company Law

14. How is the proper purpose test applied?

15. Can proper purposes apply where there has been a failure to act?

16. How is the decision maker's purpose worked out?

17. Causation/More than one motive or intention

18. More than one decision maker

19. Purpose verses motive?

20. Effect of improper exercise

21. Proper Purposes: Conclusion

Part 5: Proper Purposes - Application to Pension Schemes

22. Proper Purposes and pension schemes: Introduction

23. Pension scheme and Trustee powers

24. Overall Purpose of a pension scheme

25. Pensions: Main purpose verses Sole purpose?

26. Pension trusts: Examples of the application of the proper purpose test

27. Pension schemes: Amendment powers/Change of Principal
28. Transfers-in

29. Transfers out: Fletcher Challenge and ITS v Hope

30. Investment

31. Early retirement reduction

32. Commutation factors

33. Pension increases

34. Winding-up a pension scheme?

35. Pension Regulator powers

36. Trustees exercising powers fairly

37. Pension Trustees and Proper Purposes: Overview

38. No literal 'best interests' duty for trustees

Part 6: Braganza 1: Due consideration of relevant factors

39. Braganza - a landmark case

40. Braganza: the Decision

41. The Braganza rationality Test

42. Trustees and Braganza: Beyond a Good faith test

43. Trustees and public law analogies following Braganza

44. Does Braganza apply to all commercial discretions?

45. Intensity of review

46. Braganza first limb - process: relevant factors

47. Trustees and relevant factors: Pitt v Holt compared with Braganza

48. Three types of relevant factors: the public law approach

49. Limits on enquiries: properly informed, but not an 'endless search'

50. Weight given to factors

Part 7: Braganza 2: No reasonable decision maker: Perversity

51. Braganza

52. Arbitrary, capricious etc

53. Timing for irrationality?

54. What if one reasonable decision maker would have made the same decision?

55. Braganza 2 test is a limit on a power?

Part 8: Braganza rationality tests: interaction with the proper purpose test

56. Braganza and proper purposes tests

57. Braganza and MDTC/Contractual/Imperial duty

Part 9: Further common issues on the proper purposes and Braganza tests

58. Multiple decision makers

59. Decision maker would have made the same decision anyway?

60. Decision maker giving reasons

Part 10: Remedies for a Failure?

61. Remedies

62. Fiduciary Duties

63. Reversal or cancellation of the decision: void or voidable

64. Damages or equitable compensation for breach of trust/duty

65. Impact on third parties

66. Removal of the decision maker

67. Exclusion clauses

68. Overturning a decision - reference back to decision maker

Part 11: Trustees and Directors: Fetters on Discretion

69. Discretions and fetters

70. Statements of a no fetter rule

71. Fetters: Some older cases

72. The Fetters rule gets more sensible: three modern cases: Thorby; Cabra Estates and Firkin-Flood

73. Fetters: Modern position

74. Pension schemes and fetters

75. Fetters: is public law any guide?

76. Fetters: Directors and Companies

77. Fetters and changes of trustees

78. Fetters: Outside parties

79. Fetters: Impact on Third parties

80. Fetters and a Power of amendment

81. Setting policies or guidelines?

Über Autor(innen)

Pollard, David
David Pollard is a leading and highly experienced lawyer in the insolvency and pensions fields and in related areas. He is a barrister, practising from Wilberforce Chambers in Lincoln's Inn, and previously practised for 37 years as a solicitor in London and Singapore. David's practice focuses on pensions law; insolvency law and; employment law (involving pensions). He was Chairman of the Association of Pension Lawyers (APL) from 2001 to 2003 and has been a vice chair of the Industrial Law Society.

David is a leading and highly experienced lawyer in the pensions field and related areas. He switched to practice as a barrister at the end of 2017, after 37 years practice as a solicitor, including 25 years as a partner in law firm Freshfields Bruckhaus Deringer. David's practice focuses on: Pensions law, Insolvency law, Employment law (involving pensions). David's practice as a solicitor included advising employers and trustees in relation to pension law matters, including corporate transactions, scheme funding, scheme mergers, scheme changes, employer insolvency and Pensions Regulator issues.