CH-2024-000293 - [2025] EWHC 2980 (Ch)

The appellants were involved as either trustee or manager of three registered pension schemes (the Eleven Scheme, the SHK Scheme and the Gilbert Scheme respectively and together the Schemes). By his determination of 11 November 2024 (the Determination) that ran to some 170 pages, the Pensions Ombudsman (the Ombudsman) resolved complaints brought by the respondents, who are members of the Schemes. References in the remainder of this judgment to numbers in square brackets are to paragraphs of the Determination unless I specify otherwise. I will also tend to use defined terms set out in Determination.

The Ombudsman was highly critical of the appellants’ conduct. He concluded at [715] that every single one of the Schemes’ investments was worthless. He made findings of dishonesty in relation to all of the appellants together with other findings of breach of duty and maladministration. He ordered the appellants to pay substantial sums to the respondents and also ordered them to pay sums to the Schemes to make good the loss resulting from the Schemes’ investments.

With permission granted by Marcus Smith J, the appellants appeal against the Determination on four grounds that are set out in paragraph 24 below.

Some features of the appeals have given rise to difficulties. The appellants are represented both by solicitors and by Ms Pope-Williams of counsel, although she was instructed just a few days before the oral hearing and had not settled either the grounds of Appeal, the Skeleton Argument or advised on what should be included in the appellants’ bundle. The respondents, by contrast, were all unrepresented. None of the respondents submitted skeleton arguments that engaged with the appellants’ case although they did send emails to the court explaining why they considered they had been very badly treated by the appellants. Only Mr S and Mr Y attended the hearing of the appeal (by remote video link) and Mr S did not attend beyond Day 1. Only Mr Y wished to make oral submissions and I heard those after Ms Pope-Williams had presented her arguments on the appeal.

That meant that this appeal had a different dynamic from that present in other appeals in which both sides are legally represented. Obviously, it is for the appellants to persuade me that their appeals should succeed. However, the respondents simply were not in a position to counter the arguments that the appellants were advancing. My task of considering whether the appellants’ arguments were correct therefore necessarily involved me testing those arguments and I warned Ms Pope-Williams at the beginning of her oral submissions that I would probably have more than the usual number of questions for her. She answered those questions clearly and helpfully.

Some of the respondents’ emails to which I have referred in paragraph 4 referred to without prejudice offers made by the appellants, before the Ombudsman’s decision, to settle the dispute. I told the parties that I had seen some references to without prejudice material and asked if any application was to be made for me to recuse myself from hearing the appeal. No such application was made and, since I considered I could determine the appeal fairly, the appeal hearing proceeded and I was in due course provided with the respondents’ emails redacted to remove references to without prejudice material.