CH-2024-000162 - [2025] EWHC 2237 (Ch)

The question arising on this appeal is whether Mrs Alexis’ “State pension age” within the meaning of Rule 5.5 refers to the position under the rules in paragraph 1 of Part I of Schedule 4 to the Act as originally enacted in 1995 or as has been (or may be) subsequently amended. As to the principles of construction generally in the context of pension schemes, the position was succinctly summarised by Trower J in De La Rue v De La Rue Pension Trustee [2022] EWHC 48 (Ch) (at [48]) in the following terms:-

“The conclusions I draw from these authorities are that the rules of a pension scheme are a form of instrument in respect of which significant weight is to be given to textual analysis concentrating on the language that the drafter has chosen to use. As Lord Briggs stated in Safeway, the context is inherently antipathetic to giving a strained meaning to those words. That does not mean to say that literalism rules the day. A purposive construction may well be appropriate, particularly where it is required to give reasonable and practical effect to the scheme.”

Despite the importance of the text of the rules of the Scheme, the Trustee also relies on the propositions that (i) where the text admits of two rival interpretations, one matter to be considered is which of them is more consistent with business common sense and (ii) the provisions of a pension scheme should wherever possible be construed to give it reasonable and practical effect (Britvic v Britvic Pensions [2021] EWCA Civ 867 [2022] 2 All ER 457 at [69]-[70]). Although considerations of business common sense and reasonable and practical effect can properly be relied on with a view to resolving which of two available rival interpretations are to be preferred, they cannot be relied upon to create an ambiguity not present in the language (Britvic at [70]-[72]). The principle of giving reasonable and practical effect to the scheme is neither autonomous nor overriding (BBC v BBC Pension Trust Limited & Anor [2024] EWCA Civ 767 at [14]-[15]). Here, however, the Trustee says that there is an ambiguity such that these considerations are relevant.

As to the specific construction issue arising in this case, in Ashworth Frazer Limited v Gloucester City Council 1999 WL 249792 [1999] WLUK 418, The Times, April 1, 1999, the court held (at [p.5]) that:-

“Where a contract or deed incorporates the provisions of a statute or subordinate legislation, there is no presumption either way as to whether the reference is to the law for the time being in force: Brewers’ Company v Viewplan plc, [1989] 2 EGLR 133 at 134 per Morritt J. Where, however, the provisions of the legislation are not referred to for their normative content but simply used as a convenient shorthand to describe a factual situation, it must in my judgment be rare that the parties will have intended that situation to vary unpredictably with the vagaries of future legislation.”

In William Hare Ltd v Shepherd Construction Ltd [2009] EWHC 1603 (TCC), Coulson J (as he then was) cited (at [30]) to part of the above from Ashworth Frazer, also noting by reference to Brewers’ that, whether reference in a contract or deed to legislation is to the legislation for the time being in force is a question of the proper construction of the words of incorporation in the context in which they are used.