Bic Uk Pension Scheme · CAS-55100-G3W9

CAS-55100-G3W9

Ombudsman’s Determination Applicant Mr E

Scheme Bic UK Pension Scheme (the Scheme)

Respondent Trustees of the Bic UK Pension Scheme (the Trustees)

Complaint Summary

Summary of the Ombudsman’s Determination and reasons

1 CAS-55100-G3W9 Detailed Determination Terminology

History of court proceedings

1 Burgess v BIC UK [2018] 054 PBLR (040). The High Court decision on the question of whether the benefit increases were validly granted was reversed by the Court of Appeal in BIC v Burgess [2019] 051 PBLR (026) on 10 May 2019.

2 See paragraph 11 of the Court of Appeal judgment in BIC v Burgess which states that, as at 6 April 1997, there were 219 pensioners of whom 25 did not have pre-6 April 1997 benefits so are not affected by the decision. Of the 158 deferred members, 54 would not receive pension increases if the Pre 97 Increases were reinstated. 2 CAS-55100-G3W9

Material facts

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“The Chairman reported that the pension fund was in surplus and that steps had to be taken to reduce this surplus. Several options had been considered and it was proposed that part of the surplus be used to enhance the pension of existing pensioners and improve future benefits for both them and the members of the pension scheme.

The proposals would involve increasing pensions in payment in line with inflation since the commencement of their payment and increasing future payments by RPI or 5% whichever was the lower.

The increasing of pensions in payment would be made at the discretion of the Trustees.

It was RESOLVED that the proposed action be carried out as soon as possible [the Trustee Resolution].”

“There is proposed legislation to increase pensions in payment, to reduce the effect of inflation on their buying power. The Trustees have decided to implement the proposal now rather than wait for the requirement to come into effect. Moreover, due to the strength of the Fund it will not be necessary at present to seek additional contributions from the members towards the extra cost of this improvement.

4 CAS-55100-G3W9 Therefore, all pensions commencing after 6th April 1992 will be increased each year by 5% or the Retail Prices Index, whichever is the lower. The increase will be applied to the part of the benefit in excess of the Guaranteed Minimum Pension.”

“Pension increases

The way pensions are increased in payment is described in the Explanatory Booklet and an announcement dated 19th March 1992.

The Trustees have power if the company agrees and if sufficient funds are available to provide further increases.

Under these powers all pensions in payment were increased on 6th April 1992 in line with increases in the Retail Prices Index for each year since the pension started to be paid.”

“With effect from 6 April 1992, all pensions in payment, whenever they commenced and including the pensions of former Works Scheme members, were increased by 5% LPI.”3

3 LPI stands for Limited Price Indexation and is used to describe increases payable by reference to a price

index, subject to a fixed percentage cap. 5 CAS-55100-G3W9

“The annual rate of 5% increase is limited to a maximum of the increase of the retail prices index each year. If increases in this index fall below this rate the increase to pension will be adjusted to reflect this increase.”

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Re BIC UK Pension Scheme

I am writing regarding your pension increase, which is due from May 2010.

The revised amount has been calculated in accordance with the scheme rules. The rates of increase for 2010 are:

the Pre 1997 excess element of your pension will increase at the rate of the Retail Prices Index (RPI) or 5% if less;

the Post 1997 excess element of your pension will increase at RPI or 5% if less.

Please note that RPI is currently running at negative and as such no increase will be applied.

Your pension is set up as below:

2009 2010

Pre 88 GMP [ ] [ ]

Post 88 GMP [ ] [ ]

Pre 97 [ ] [ ] Pension

Post 97 [ ] [ ] Pension

AVC Pension [ ] [ ]

Total

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26 April 2012

Dear Mr [L]

BIC UK Pension Scheme

I write to inform you of the annual increase which is due on your pension from May 2012.

The increases are paid in accordance with the Scheme rules and your current and new pension amounts are as follows:

Annual Monthly

Current [ ] [ ] Pension before tax

New Pension [ ] [ ] before tax

If you have any queries please do not hesitate to contact me

Yours sincerely

[ ]

9 CAS-55100-G3W9

4 Presumably in line with changes to the statutory minimum increase that was required for pensions in payment (and attributable to service on or after 6 April 2005) – although I note that this statutory minimum still did not apply to the pension accrued in excess of GMP prior to 6 April 1997. 10 CAS-55100-G3W9

“Following the transfer of the administration services to Atkins & Co, a discrepancy had been identified between the Scheme’s governing documentation and the administrative practice adopted for pension increases in payment.”

…

“Since 1992, the administrative practice has been to increase Pre 97 and Pre 97 Excess by 5% per annum or the increase in the Retail Prices Index (“RPI”) if less. However, the Trustees and the Employer have received opposing advice as to whether the payment of these increases was in accordance with the Scheme Rules and therefore uncertainty has arisen as to whether members were entitled to be paid these increases.”

“The Trustees are investigating this matter and are taking appropriate legal advice. The Company, BIC UK Ltd, is also taking legal advice independently and we are working together to come to a conclusion.

As the Trustees can only pay benefits in line with the Scheme rules, it will be necessary to suspend increases to Pre 97 and Pre 97 Excess pensions until the matter is resolved. The suspension is effective from 6 March 2013 and will only affect future increases. The Company has agreed that there should be no deductions, at this time, for increases already applied that may not have been in line with Scheme Rules…[However], Should it be concluded that members are entitled to the suspended increases they will be re-instated and fully backdated.”

“We would like to make it clear that your retirement pension will continue to be paid in the usual way. The suspension of payments only relates to future increases to Pre 97 and Pre 97 Excess pensions at this time.”

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“This note is being issued on behalf of the Trustees to provide you with an update. A letter was issued by Dalriada in February 2013 explaining that due to legal uncertainty as to whether members are entitled to pension increases it has been decided to suspend those increases.

…

We do now have a meeting booked for 3rd September 2015 to be attended by the Trustees and BIC UK Limited, and the legal advisers. The aim is to reach some degree of understanding and if it is deemed necessary apply to court to resolve any matters which cannot be agreed. This process may take some time, possibly another 12 months.

We will issue another note as soon as we have something positive to report.”

“Increases in pensions in payment

Since 1992, the majority of pensions in excess of the Guaranteed Minimum Pension (GMP) have been increased on the anniversary of commencement in line with the rise in the Retail Prices Index (RPI) for the year ending with September, prior to the current Scheme year, subject to a maximum of 5% per annum. The Trustees and the Employer are currently investigating whether increases to pensions earned before 6th April 1997 are valid and the Employer has requested that pre-6th April 1997 pensions in excess of GMP do not receive further increases until the matter is resolved. The Trustees have accepted the Employer’s request and increases were suspended from March 2013.”

5 The exchange rate varied in 2016 between the Euro and Sterling and the note of the spot rates I can find on the internet show there was an average rate of about 0.9034 GBP and a worst exchange rate of 0.727 and a best rate of 0.9034 GBP. 12 CAS-55100-G3W9

“You may be aware that the increases to pensions in payment in respect of pensions accrued prior to 6 April 1997 (“Pre-97 increases”) are presently suspended. The suspension took effect from 6th April 2013.

The reason for this suspension is that it remains unclear whether there was a valid grant, under the rules of the Scheme at the relevant time, of the Pre-97 Increases and therefore there is uncertainty as to whether these Pre-97 Increases should have been paid to relevant members and whether they should be reinstated.

A note was issued to pensioners in August 2015 and is enclosed by way of further background.”

“The case is directly relevant to members who accrued pensions in the Scheme prior to 6th April 1997 (Pre-97 Member). The suspension in relation to pre-1997 Increases will continue until the court process is concluded meaning that a Pre-97 Member whose pension is in payment will not have any Pre-97 Increases applied. Any Pre-97 Member whose pension is due to come into payment prior to the conclusion of court proceedings will also be treated in the same way.”

…

The Trustees will update the Scheme membership in due course and in particular once the High Court proceedings have concluded and the judgment is delivered in that case”.

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“My father has accepted the overpayment correction amount [sic] which started in July. The repayment of the overpayment was meant to start in October 2020 for the recoupment of £90,000 and this is what is wrong [sic]. My parents have suffered enough from this mistake with all the holding letters etc so [the overpayments should be written off].”

“This [matter] has caused my father and mother a great deal of stress. They have had to move from their home in Spain to be near me in the UK as their nerves and anxiety are through the roof through worry. This has been going on for far too long and has affected their health over the years.”

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Recovery of overpayment and proposed Recoupment Plan

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17 CAS-55100-G3W9 Financial hardship

Non-financial injustice

6 See Grievson v Grievson [2011] 066 PBLR at paragraph [28] 7 Hamar v French [1998] PLR 321 (CA) at paragraph [73]

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The fact there had been an overpayment was not conclusively determined until the Court of Appeal decision

19 CAS-55100-G3W9 Laches

The Recoupment Plan

Potential claim against Mr E’s estate

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Financial hardship

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Non-financial injustice

BIC UK’s submissions

The law relating to unjust enrichment

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The law relating to equitable recoupment

“the payment of benefits in error leads to a monetary obligation owed to the scheme, even though that obligation may be remedied by recoupment rather than repayment by the member. The member or beneficiary has received benefits early by way of the overpayments. These overpayments are then subject to equitable recoupment against future pension.”

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8 20th edition paragraph 42-013

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Laches

9 See for example Frawley v Neill [2000] CP Reports 20. Harrison (Properties) Limited v Harrison [2001] EWCA Civ 1295 and Patel v Shah [2005] EWCA 157, referred to in paragraphs 172 and 173 of the Preliminary Decision 26 CAS-55100-G3W9 Final observations on Re Musgrave

Ombudsman’s findings of fact

BIC UK’s alternative analysis and conclusions

Repayment – defence of estoppel by representation

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Repayment – defence of estoppel by convention

Repayment – defence of change of position

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Repayment – limitation

Recoupment – hardship

Recoupment – laches as a defence

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Recoupment – period of recovery

BIC UK’s conclusions in its submissions

31 CAS-55100-G3W9 The Ombudsman’s powers

TPO’s powers to determine overpayment cases

10 See the analysis of case law in Arjo Wiggins Limited v Ralph [2009] 079 PBLR at [12] and [13] 11 The Pensions Ombudsman v CMG Pension Trustees Ltd and CGI IT UK Limited [2022] EWHC 2130 (Ch)

32 CAS-55100-G3W9 “In a case which falls within section 91(5)(f) of the PA 95, the Pensions Ombudsman might determine that there has been an overpayment and direct that the overpayment in a specified sum might be recouped at a particular rate. His reasons would be likely to relate to the sums paid to the member, his entitlement under the scheme, whether there were any defences to an equitable right of recoupment and what would be appropriate in relation to the rate of recoupment in all the circumstances. The distinction between the reasons and the determination should be made clear.”

Which “defences” should the Ombudsman consider?

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What factors should I consider when determining whether it is equitable to permit recoupment?

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“It has been suggested that there is a defence of change of position in connection with the equitable right of recoupment. But change of position cannot be a defence, since the overpaid or wrongly paid beneficiary is not defending any claim, but rather merely suffering a reduction in the amount which would be paid to him apart from the recoupment. If the overpaid or wrongly paid beneficiary wants to contest the recoupment on ground of change of position, he must claim payment in full, and use a change of position as a sword, not a shield. We consider that in the ordinary course change of position will not prevent recoupment since the beneficiary is not being asked to pay back what he has already received, and the fact that he may already have spent the money wrongly received does not seem to be a good reason why he should not suffer a deduction from future payments. But there may be special circumstances where a change of position is relevant, for example where the beneficiary has not only spent the money wrongly received but also committed himself to spend the amount to which he would have been entitled apart from the recoupment.”

12 Although the restitution claim lies at common law, early decisions on the claim stressed that it would only lie where it was inequitable for the defendant to retain the money: e.g. Moses v MacFerlan (1790) 2 Burr 1005 at 1008 per Lord Mansfield CJ. 36 CAS-55100-G3W9

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13 See also Gillett v Holt, supra, at 232 per Robert Walker LJ; Steria at [73] per Mummery LJ; National Westminster Bank plc v Somer International (UK) Ltd [2002] QB 1286 at [43] per Potter LJ 14Tinkler v HMRC [2022] AC 886 at [53]. See also Steria at [81] per Mummery LJ 15 Putting aside any argument on whether there are circumstances where estoppel might, properly, be used as a ‘sword not a shield’. 38 CAS-55100-G3W9

Applying the above legal principles to the facts – is it equitable to permit recoupment of all or part of the

Change of position – using the underlying equitable principles to assist in an examination of whether it would be equitable to allow recoupment

16 McShee v MMC UK Pension Fund Trustees [2016] PBLR (611) at (13) – “The operation of this burden is not quite as it would be in court proceedings, since the Ombudsman has an investigative function that the court does not (see section 145ff of the 1993 Act). Mr McShee would of course be entitled to rely on any information that the Ombudsman discovered in the course of his investigation which showed that he was a member of the DCF Scheme”. 17 Lord Goff did not provide a comprehensive description of the elements of the defence but stated the principles as follows at page 580C of his judgment: “At present I do not wish to state the principle any less broadly than this: that the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution or make restitution in full”. 39 CAS-55100-G3W9

It is possible to interpret this statement that a decision on whether a payment should be recoverable should be based on broadly principles of fairness or equity. Since Lipkin Gorman however the courts have sought to develop specific principles which apply when determining whether a change of position defence can apply. 40 CAS-55100-G3W9

“I would readily accept that the defence is not limited (as it is, apparently, in Canada and some states of the United States: see David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 385, noted in Goff and Jones p 819) to specific identifiable items of expenditure. I would also accept that it may be right for the court not to apply too demanding a standard of proof when an honest defendant says that he has spent an overpayment by improving his lifestyle, but cannot produce any detailed accounting: see the observations of Jonathan Parker J in Philip Collins Ltd v Davis [2000] 3 All ER 808 at 827 (Phil Collins case), with which I respectfully agree. The defendants in that case were professional musicians with a propensity to overspend their income, and Jonathan Parker J took a broad approach (at 830).”

“On the basis of the defendants' oral evidence, coupled with such documentary evidence as they were able to produce, I am unable to find that any particular item of expenditure was directly referable to the overpayments of royalties. Their evidence was simply too vague and unspecific to justify such a finding. On the other hand, in the particular circumstances of the instant case the absence of such a finding is not, in my judgment, fatal to the defence of the change of position. Given that the approach of the defendants to their respective financial affairs was, essentially, to gear their outgoings to their 41 CAS-55100-G3W9 income from time to time (usually, it would seem, spending somewhat more than they received), and bearing in mind that the instant case involves not a single overpayment but a series of overpayments at periodic intervals over some six years, it is in my judgment open to the court to find, and I do find, that the overpayments caused a general change of position by the defendants in that they increased their level of outgoing by reference to the sums so paid. In particular, the fact that in the instant case the overpayments took the form of a series of periodical payments over an extended period seems to me to be significant in the context of a defence of change of position, in that it places the defendants in a stronger position to establish a general change of position such as I have described, consequent upon such overpayments.

Nor, on the evidence, can the defendants' increased level of expenditure be regarded as consisting exclusively of expenditure which (to use Lord Goff's words) 'might in any event have been incurred in the ordinary course of things'. I am satisfied that had the defendants been paid the correct sums by way of royalties their levels of expenditure would have been lower.”

“Change of position” – the period up to the date of issue of the February 2013 Announcement

Was Mr E acting in good faith?

Has Mr E sustained detriment?

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“[Mr E] does not have any earlier copies of bank statements other than what I have given already. All paperwork was destroyed on the move back from Spain to the UK.

[Mr E’s] spending never exceeded what he earned, and he did have a credit card which was used for a few purchases but was always paid off. He never had any loans, credit cards, debts etc and they lived within their means. They had nice holidays etc, but this was always paid off and he may have had a few small things on interest free finance but was always paid off.

They have no other assets, just a small car.

[Mr E] did have life insurance policies that he took out over many years these were all cashed in on the move back to the UK from Spain as they lost money on their Spanish house so needed more capital to buy back in the UK as it was so much more expensive [SIC].

When [Mr E] had a pay rise he generally paid this into his pension rather than take the increase. [Mr E] stopped contributing to his pension when he was made redundant at, I think around age 59 and this is when I think he then started to receive his pension.”

“My father has also mentioned to me recently that he took out several investment policies over the years with Scottish Widows. He has said that every time he had an increase [in salary], he didn’t take the money he invested [it] in another policy [with Scottish Widows]. These were all cashed in when they moved [back to the UK]. When they sold their house in the UK, they

43 CAS-55100-G3W9 did buy a big house in Spain that was a 3-bed detached villa with [a] swimming pool etc. [When they moved] back to the UK they were in a 2-bed small bungalow [SIC] and had to cash in these policies to cover all the cost etc to move back as [properties in] the UK [were] a lot more expensive to buy and the property market in Spain at the time was poor and they lost money on the house. I have looked for the paperwork for these policies, but they were all shredded in the move last year.”

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Causation

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“Change of position” – the period after the date of issue of the February 2013 Announcement

Good faith

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“The Company has agreed that there should be no deductions, at this time, for the increases already applied, that may not be in accordance with the Scheme rules.”

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Detriment

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Causation

Defence to equitable recoupment – applying analogous equitable principles to those applied by the courts in an estoppel by representation defence

“…If one had to identify a single factor which a claimant in an estoppel case has to establish in order to obtain some relief from the court it would be unconscionability - see per Robert Walker LJ in Gillett v Holt [2000] Ch 198 especially at 225 and 232 [emphasis added in bold]”.

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The position before the issuance of the February 2013 Announcement

The first Steria test – a clear representation on which it was reasonably foreseeable Mr E would act

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The second Steria test - did Mr E act on the representation and was the expenditure reasonably made in reliance on the representation?

The third Steria Test - detriment

Wider equitable principles

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“Payment of these members' benefits could potentially be affected by the increase in the Scheme's liabilities of approximately £5 million resulting from the judge's decision, although we were told that this is not likely to be a practical concern given the financial health of the BIC group.”

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The position post February 2013 Announcement

54 CAS-55100-G3W9 Applying analogous principles to estoppel by convention

18 Briggs J in Revenue and Customs Commissioners v Benchdollar [2009] EWHC 1310 at [52] as subsequently modified by him in Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd [2010] EWHC 1805 (Ch) PLR 411 at [137] and by Hildyard J in Blindley Health Investments Ltd v Bass [2015] EWCA Civ 1023, [2017] Ch 389 at [92]. These principles were approved by the Supreme Court in Tinkler v HMRC [2021] UKSC 39, [2021] 3 WLR 697 at [53]

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Conclusion on whether it is appropriate to deny equitable recoupment under general equitable principles

Laches

56 CAS-55100-G3W9 “Now the doctrine of laches in the Courts of Equity is not an arbitrary or a technical doctrine. Where it would not be practically unjust to give a remedy, either because the party has by his conduct, done that which may fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, through perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy was afterwards to be asserted, in either of these cases, lapse of time and delay are most material.”

“laches is an equitable doctrine, under which delay can bar a claim to equitable relief. Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion.

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“require an inquiry as to whether the circumstances can be fitted within the confines of a pre-conceived formula derived from old cases…[but instead requires] a broad approach directed to ascertaining whether it would in all the circumstances be unconscionable for the party to be permitted to assert his beneficial right. No doubt the circumstances which give rise to a particular result in decided cases are relevant to the question whether or not it would be conscionable or unconscionable for the relief to be asserted, but each case has to be decided on its facts applying the broad approach.”

“The question for the court in each case is simply whether, having regard to the delay, its extent, the reasons for it and its consequences, it would be inequitable to grant the claimant the relief he seeks.”

“Where statute provides expressly that no period of limitation prescribed by the Limitation Act 1980 applies, one might also expect that the doctrine of laches would not be available, but the doctrine of acquiescence would be, though it has been held that both are available. The modern approach to laches or acquiescence, however, has largely assimilated the two. It does not require an exhaustive inquiry into whether the circumstances could fit within the principles established in previous cases. A broader approach is adopted, namely whether it is unconscionable for the party concerned to be permitted to assert his beneficial rights. Mere delay is never a bar in itself to equitable relief; it must be coupled with circumstances which make it inequitable to enforce the claim. [emphasis added in bold].”

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“This note is being issued on behalf of the Trustees to provide you with an update. A letter was issued by Dalriada in February 2013 explaining that due

19 See Allcard v Skinner (1887) 36 ChD at 145 at 188 per Lindley and 192 per Bowen LJ.

59 CAS-55100-G3W9 to legal uncertainty as to whether members are entitled to pension increases it has been decided to suspend those increases.

…

We do now have a meeting booked for 3rd September 2015 to be attended by the Trustees and BIC UK Limited, and the legal advisers. The aim is to reach some degree of understanding and if it is deemed necessary apply to court to resolve any matters which cannot be agreed. This process may take some time, possibly another 12 months.

We will issue another note as soon as we have something positive to report.”

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The Trustees’ submissions in response to the Preliminary Decision

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The period of recovery of the overpayments

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The impact of the CMG Decision on the question of whether the Ombudsman is a competent court for the purposes of Section 91(6) of the PA 95

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Distress and inconvenience award

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Directions

Dominic Harris

Pensions Ombudsman

19 April 2024

65 CAS-55100-G3W9 Appendix A

Pension figures detailed on Mr E’s monthly payslips

Month Pension (gross)

6 April 2012 £1,478.42

6 April 2013 £1,552.15

6 April 2014 £1,552.15

6 April 2015 £1,552.15

6 April 2016 £1,552.15

6 April 2017 £1,552.15

6 April 2018 £1,552.17

6 April 2019 £1,552.15

6 April 2020 £1,552.15

6 July 2020 £1,055.65

6 April 2021 £1,058.61

6 July 2021 £1,923.09*

6 April 2022 £1,077.77

* Includes arrears amounting to £853.38

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A breakdown of the overpayments

Pension Pension Amount of Start Date End Date Due Paid Overpayment

01/12/1995 30/11/1996 £11,559.84 £11,559.84 £0.00 01/12/1996 30/11/1997 £11,559.84 £11,967.27 £407.43 01/12/1997 30/11/1998 £11,559.84 £12,182.00 £622.16 01/12/1998 30/11/1999 £11,559.84 £12,576.73 £1,016.89 01/12/1999 30/11/2000 £11,559.84 £12,937.37 £1,377.53 01/12/2000 30/11/2001 £11,559.84 £13,036.78 £1,476.94 01/12/2001 30/11/2002 £11,559.84 £13,424.66 £1,864.82 01/12/2002 30/11/2003 £11,559.84 £13,607.32 £2,047.48 01/12/2003 30/11/2004 £11,559.84 £13,796.44 £2,236.60 01/12/2004 30/11/2005 £11,618.43 £14,175.84 £2,557.41 01/12/2005 30/11/2006 £11,683.90 £14,609.44 £2,925.54 01/12/2006 30/11/2007 £11,743.65 £14,996.59 £3,252.94 01/12/2007 30/11/2008 £11,812.67 £15,538.59 £3,725.72 01/12/2008 30/11/2009 £11,884.18 £16,150.29 £4,266.11 01/12/2009 30/11/2010 £11,957.62 £16,954.55 £4,996.93 01/12/2010 30/11/2011 £11,957.62 £16,954.55 £4,996.93 01/12/2011 30/11/2012 £12,033.26 £17,739.99 £5,706.73 01/12/2012 30/11/2013 £12,111.17 £18,625.79 £6,514.62 01/12/2013 30/11/2014 £4,060.67 £6,207.60 £2,146.93 01/04/2014 31/03/2015 £12,264.39 £18,625.79 £6,361.40 01/04/2015 31/03/2016 £12,329.44 £18,625.79 £6,296.35 01/04/2016 31/03/2017 £12,352.58 £18,625.79 £6,273.21 01/04/2017 30/04/2018 £12,410.91 £18,625.79 £6,214.88 01/04/2018 30/04/2019 £12,500.15 £18,625.79 £6,125.64 01/04/2019 30/04/2020 £12,592.07 £18,625.79 £6,033.72 01/04/2020 30/06/2020 £3,166.96 £4,656.45 £1,489.49

Total £90,934

67 CAS-55100-G3W9 Appendix C

Summary of Mr E’s bank statements

Closing 2016 Month Balance Credits Debits Balance July £1,062.93 £2,818.63 £2,906.13 £997.43 August £570.93 £2,849.44 £3,048.73 £798.14 Sept £785.69 £3,876.38 £2,996.27 £1,678.25 October £1,678.25 £2,859.63 £3,425.66 £1,112.22 November £732.54 £3,184.13 £2,696.06 £1,600.29 December £1,543.29 £2,838.63 £3,653.73 £785.19

2017 Month Balance Credits Debits Balance January £785.19 £2,818.63 £2,380.74 £1,223.08 February £1,223.08 £2,835.63 £2,898.05 £1,160.66 March £1,160.66 £2,818.63 £2,612.92 £1,366.37 April £1,366.37 £17,817.0 £6,828.50 £12,554.96 May £12,554.96 £16,903.7 £8,314.04 £21,144.71 June £21,144.71 £3,303.14 £9,230.98 £15,216.87 July £15,216.87 £3,496.28 £11,094.6 £7,618.46 August £7,599.46 £2,663.25 £2,890.29 £7,391.42 September £7,857.82 £3,692.78 £4,146.42 £6,937.68 October £6,937.68 £2,634.11 £2,381.10 £7,190.69 November £7,153.84 £2,843.86 £2,731.40 £7,303.15 December £7,288.13 £2,642.34 £1,604.60 £8,340.89

2018 Month Balance Credits Debits Balance January £8,340.89 £2,622.38 £1,958.83 £9,004.44 February £8,989.42 £2,621.84 £2,028.21 £9,598.07 March £9,583.05 £2,621.29 £6,122.29 £6,097.07 April £6,097.07 £2,636.56 £3,324.64 £5,408.99 May £5,393.97 £2,662.73 £2,355.97 £5,715.75 June £5,698.65 £2,663.53 £2,922.43 £5,456.85 July £5,456.85 £2,698.03 £5,206.90 £2,947.98 August £2,930.88 £3,752.42 £2,595.17 £4,105.23 September £4,105.23 £2,680.78 £1,561.14 £5,224.87 October £5,207.77 £2,831.84 £2,091.42 £5,965.29 November £5,948.19 £1,980.29 £5,948.19 £6,877.08 December £6,877.08 £1,985.04 £6,877.08 £7,582.33

68 CAS-55100-G3W9

Summary of Mr E’s bank statements

Month Balance Credits Debits Closing 2019 Balance January £7,582.33 £2,669.88 £1,674.95 £8,577.26 February £8,560.16 £2,670.08 £1,375.75 £9,871.59 March £9,854.49 £2,669.47 £5,472.07 £7,068.99 April £7,018.99 £2,675.14 £2,047.27 £7,696.86 May £7,679.76 £2,727.83 £1,886.18 £8,583.51 June £8,538.51 £2,668.50 £2,519.96 £8,687.05 July £8,668.67 £3,214.95 £4,200.06 £7,701.94 August £7,683.56 £3,788.29 £1,878.82 £9,611.41 September £9,611.41 £2,675.27 £2,329.73 £9,956.95 October £9,938.57 £2,675.12 £1,820.55 £10,811.52 November £10,793.14 £3,202.75 £1,879.40 £12,134.87 December £12,134.87 £2,932.42 £1,977.85 £13,089.44

2020 Month Balance Credits Debits Balance January £13,089.44 £2,674.29 £2,009.80 £13,753.93 February £13,753.93 £2,690.45 £1,699.41 £14,744.97 March £14,744.97 £2,673.80 £1,710.33 £15,708.44

69 CAS-55100-G3W9 Appendix D

Mr E’s household income and expenditure

Income

Mr E’s state pension £664.52 Mrs E’s state pension £524.64 Mrs E’s private pension £288.02 Mr E’s private pension £921.31

Total £2,398.49

Expenditure

Mortgage £747.75 Hearing aids £83.33 Home Phone £35.3 Sky TV £48 Sky Protect £16 Water £50 Pet insurance £22.80 Mobile phone £15.60 Mobile insurance £4 Electricity £93 Council tax £195 TV Licence £13.25 Car Insurance £70 Home Insurance £9.41 Car service, Mot, road tax £30 Food £450 Petrol £80 Cleaner £104 Gardener £40 Haircuts £40 Treatments chiropodist etc £80 Total £2,227.40 Appendix E 70 CAS-55100-G3W9 The full text of the February 2013 Announcement, which was issued on headed paper by Dalriada the then independent trustee.

21 February 2013

Private and Confidential

Dear [ .]

The BIC UK Pension Scheme

Following the transfer of administration services to Atkins & Co a discrepancy with the Scheme’s governing documentation and administration practice was uncovered to how pensions increase in payment.

For the purposes of pension increases your pension is broken into up to 2 components prior to State Pension Age:

1. Pension earned before 6th April 1997 (“Pre 97”); 2. Pension earned from 6 April 1997 (“Post 97”).

and up to 4 components after State Pension Age:

1. Guaranteed Minimum Pension earned before 6th April 1988 (“Pre 88 GMP”); 2. Guaranteed Minimum Pension earned between 6th April 1988 and 5 April 1997 (“Post 88 GMP”); 3. Pension earned before 6 April 1997 in excess of GMP (“Pre 97 Excess”) 4. Pension earned from 6 April 1997 (“Post 97”)

Since 1992, the administrative practice has been to increase Pre 97 and Pre 1997 Excess by 5% per annum or the increase in the Retail Prices Index (“RPI”) if less. However, the Trustees and Employer have received opposing advice as to whether the payment of these increases was in accordance with the Scheme Rules and therefore uncertainty has arisen as to whether members are entitled to be paid these increases.

The Trustees are investigating this matter and are taking appropriate legal advice. The Company, BIC UK Ltd, is also taking legal advice independently and we are working together to come to a conclusion.

As the Trustees can only pay benefits in line with the Scheme Rules, it will be necessary to suspend increases to Pre 97 and Pre 97 Excess pensions until the matter is resolved. The suspension is effective from 6 March 2013 and will only affect future increases. The Company has agreed that there should be no deductions, at this time, for increases already applied that may not have been paid in line with Scheme rules.

Should it be concluded that members are entitled to suspended increases they will be re- instated and fully backdated.

71 CAS-55100-G3W9 We would like to make it clear that your retirement pension will continue to be paid in the usual way. The suspension of payments only relates to future increases to Pre97 and Pre97 Excess pensions at this time.

Please contact me should you have any questions.

Yours sincerely

[…]

On behalf of Dalriada Trustees Limited”

72