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

The Determination is both thorough and lengthy. Any attempt to summarise its entirety would itself be similarly lengthy. However, no such summary is needed given the relatively narrow scope of the appellants’ appeals. I will, therefore, summarise the Determination only at a very high level that is sufficient to understand the nature of the appeals that are brought. I have, nevertheless borne in mind the entirety of the Determination in reaching my conclusion on those appeals.

At [17] to [28], the Ombudsman explains why he had jurisdiction to consider the complaint brought by Ms Y and Mr S and why those complaints were not brought later than the applicable deadline. That conclusion is challenged as part of the appellants’ Ground 1.

At [13] to [16], the Ombudsman explained why, even though he was addressing complaints by just five members of the Schemes, he nevertheless had power to direct the Trustees to restore all assets that the Schemes had lost in consequence of their breaches of trust. The essence of the Ombudsman’s conclusion is set out at [13]: any individual beneficiary has standing to require trustees to account for their breaches of trust and is not limited simply to requiring the reinstatement of that beneficiary’s share. The appellants do not dispute that proposition of law. However, the appellants’ Ground 2 seeks to argue that each of the respondents’ investments were held on separate sub-trusts so that the Ombudsman had power only to order that the appellants reconstitute the assets of those sub-trusts, and not the assets of the Schemes more generally.

The Ombudsman made a number of findings which are not challenged in this appeal but which have some bearing on those aspects of the Determination that are challenged:

Documentation relating to the Schemes contained “exoneration causes” that purported to limit or exclude the Trustees’ personal liability. The Ombudsman held that s33 of the Pensions Act 1995 prevented those exoneration clauses from restricting or limiting liability to take care or exercise skill in the performance of any investment functions. The Ombudsman’s conclusions as to the effect of s33 are not challenged. However, the Ombudsman’s conclusions to the effect that the Trustees’ dishonesty prevented them from taking the benefit of the exoneration clauses at all is challenged by the appellants’ Ground 3.

Mr G had invested a large amount in the Gilbert Scheme. In the autumn of 2018 he needed to realise his pension investments because of his then personal circumstances. At [162] to [205], the Ombudsman made findings as to Mr G’s increasingly desperate attempts to realise investments and Brambles’ response to them. The Ombudsman rejected the appellants’ case that Mr G thereby gave consent to a realisation of his investments at a loss, or that Mr G’s negligence contributed to that loss. That decision is challenged by Ground 4 of the appeal.

At [752] to [767], the Ombudsman made directions as to remedies that the appellants should give. These consisted of a mixture of (i) making payments to the appellants for their distress and inconvenience and (ii) making payments to the Schemes (plus interest) to reconstitute the funds lost. The appellants do not argue that, even if all their Grounds 1 to 4 fail, the Ombudsman’s conclusion on remedies was still wrong in law. Rather, they argue that, if they succeed in any of their Grounds 1 to 4, the amount they are directed to pay should be reduced. Since I have concluded that all of Grounds 1 to 4 fail, I see no need to summarise the Ombudsman’s detailed calculations as to remedy.