Pensions, contracts and trusts; legal issues on decision making : proper purposes, relevant factors and perversity; applying braganza / David Pollard.

Format:

Book

Author/Creator:

Pollard, David, 1956- author.

Language:

English

Subjects (All):

Contracts--England.

Contracts.

Trusts and trustees--England.

Trusts and trustees.

Contracts--England--Cases.

Trusts and trustees--England--Cases.

Physical Description:

1 online resource (360 pages).

Edition:

First edition.

Distribution:

[London, England] : Bloomsbury Publishing, 2020

Place of Publication:

London [England] : Bloomsbury Professional, 2020.

Summary:

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.

Contents:

Intro

Foreword

Preface

About the Author

Contents

Abbreviations

Table of Statutes

Table of Statutory Instruments

Table of Cases

Part 1: Introduction

1. Introduction

Trusts and Commercial contracts - but focusing on pension tru

Nature of challenge

Nature of decision

Grounds of challenge - general

Who is making the decision?

Use of commonwealth caselaw

Part 2: Legal review of decisions: General

2. Legal review of decisions: Major Tests

Nine Major tests?

Statutory duties on company directors

Really only five major tests, with nine main limbs

3. Expanded outline of major tests

(1) Honesty/good faith

(2) Within the terms of the power

(2A) Exercised by the specified person, in the specified way and at the specified time

(3) Proper purpose

(4) Fiduciaries: No unauthorised conflict of interest

(5) Due care and skill

(5A) Due consideration

(5B) Consider all reasonably discoverable relevant factors

(5C) Not perverse, capricious or fully irrational

Subjective or objective?

4. Exceptions and qualifications

Duty to act personally (and not delegate)

No fetter rule as a combination of duties

No literal duty on trustees to act in the best interests of the beneficiaries

5. Public Law analogy in private law discretions?

Public law: Braganza and trustees

Public Law Wednesbury Test Applied

6. Construction - General

Express limits on a power

Interpretation: general

7. Interpretation of Pension Schemes

Interpretation of trusts

No special rules of construction for pensions

Stevens v Bell principles

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

8. Nature of discretion

Some powers and discretions not reviewable

Nature of decision: factual or general?

Fact determination not a true discretion?.

State of fact determination more intensively reviewed

Australian cases on nature of discretion

'Absolute' discretions/property rights

Bad faith needed in order to review trustee decision?

Excluding review?

Absolute powers

Entire agreement provisions

Termination provisions

9. Who is the decision maker?

Pension schemes: employer/principal employer/trustee/actuary

Actuary decisions?

Experts/valuers/third parties

Directors

Shareholders, creditors and meeting chairs

Mortgagees and security holders

Landlords

Insolvency Practitioners

Part 4: Proper Purposes - Applying Eclairs

10. Proper purposes: Introduction

11. Eclairs

British Airways

Pension schemes

12. The proper purpose test

Non-fiduciaries

Shareholders?

Contracts: Lenders and interest rates

General powers and property

13. Purpose test in Trust Law and Company Law

Trusts and pensions

Company law

Similar test for both company directors and trustees

Corporate trustees

14. How is the proper purpose test applied?

Look if the current purpose is improper

Power is silent as to purpose

Time to fix the purpose of the power

Objective test as to what are the proper purposes

Some cases on general objective test: Dalriada/Pi Consulting/FSS

Evidence of intention when power introduced

Pensions: Briefing notes as evidence of original intended proper purposes

Overlap with need to consider only relevant factors?

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

Failure to act as a breach of a separate duty

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

Fraud or dishonesty is not required

Subjective test

Time for working out decision maker's purposes

Drawing inferences

Not discussed means not intended?

Burden of proof.

Trustees or directors giving reasons?

17. Causation/More than one motive or intention

Mixed motives

Winding-up petitions: sole motive test

Mortgagees and proper purposes and mixed motives

18. More than one decision maker

19. Purpose verses motive?

Motive the same as intention, desire or reason?

Foreseen or foreseeable events as a purpose?

Contrast between intention and desire: IA 1986, s 239

Purpose and intention? Two cases on IA 1986, s 423: Hashmi and Ablyazov

20. Effect of improper exercise

Does an improper purpose make the decision void?

Does the void/voidable distinction matter?

Cancelation

Severance

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

Edge v Pensions Ombudsman

25. Pensions: Main purpose verses Sole purpose?

Surplus refunds?

An OPS must be for the purpose of providing benefits

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

27. Pension schemes: Amendment powers/Change of Principal Employer

Courage

Bank of New Zealand

28. Transfers-in

29. Transfers out: Fletcher Challenge and ITS v Hope

ITS v Hope

30. Investment

Cowan v Scargill

Dalriada Trustees Ltd v Faulds

Investment: Overall

31. Early retirement reduction

32. Commutation factors

33. Pension increases

34. Winding-up a pension scheme?

35. Pension Regulator powers

Meaning of 'sole or main purpose'

36. Trustees exercising powers fairly

Fair balance

Caselaw

Fair balance: Foster Wheeler

37. Pension Trustees and Proper Purposes: Overview

38. No literal 'best interests' duty for trustees

Best interests: Misleading and confusing.

Problems with a literal best interests duty

Part 6: Braganza 1: Due consideration of relevant factors

39. Braganza - a landmark case

Later cases

IBM

Papers on Braganza

'Braganza' as a web search term

40. Braganza: the Decision

Facts in Braganza

Braganza in the Supreme Court

41. The Braganza rationality Test

Rationality or reasonableness?

42. Trustees and Braganza: Beyond a Good faith test

Good faith: Gisborne (1877)

Australian summaries of review grounds

Trustee cases on Wednesbury/Braganza type review

Court approval of momentous decisions

Administrative or dispositive powers?

43. Trustees and public law analogies following Braganza

Public law analogies with trustee duties before Pitt v Holt

Pitt v Holt and public law analogies

44. Does Braganza apply to all commercial discretions?

General and absolute

More limited review in some cases

Relational or non-relational?

45. Intensity of review

Braganza: intensity

Finch v Telstra (2010)

Intensity of review

Hastings-Bass line: 'would' or 'might'?

Pitt v Holt

Not a fairness test

46. Braganza first limb - process: relevant factors

Terminology: Matters/Considerations/Factors

All 'relevant' factors or only those which 'ought' to be taken into account?

What are relevant factors?

Purposes of a power can define the relevant factors

Relevant factors are fact and context specific

Pensions relevant factors

Death benefits: letters of wishes

Pensions: Surpluses

Two Examples

Deciding on relevant factors: examples

All relevant factors?

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

Three stage approach to decision making

Pitt v Holt compared with Braganza

Trustees: What was the decision in Pitt v Holt?.

Not a retrospective best outcome test

Advice: Three fold test?

Taking advice: impact on disqualification under CDDA 1986

Adviser cases after Pitt v Holt

Top Brands

Power Adhesives

Davey v Money (2018)

Daniel v Tee (2016)

Relevance of Negligence claims against advisers?

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

Three categories of factors: obligatory/impermissible/permissible

Applying this three way split to private law

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

Finite resources: Alcoa

Limits on factors? Esso Australia

50. Weight given to factors

Case law on weight

Similar to public law

Wednesbury irrationality limits on weight

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

51. Braganza

Analogy with negligence claims: Daniel v Tee

Red haired teachers?

52. Arbitrary, capricious etc

A high threshold

Irrational

Perverse

Arbitrary

Capriciously

Mischievously

Abandon common sense

Wantonly or irresponsibly

Grotesquely unreasonable

Outrageous?

53. Timing for irrationality?

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

Evidence of another 'reasonable decision maker'?

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

Similar to MDTC approach

Similar to contract damages Mitigation principle

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

56. Braganza and proper purposes tests

Objective/subjective

Braganza symbiosis with proper purpose

57. Braganza and MDTC/Contractual/Imperial duty

Are the Braganza tests part of MDTC for employers or separate tests?

Johnson exclusion zone

Termination of relationship?

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

58. Multiple decision makers.

Majority: Eclairs.

ISBN:

9781526511843

1526511843

9781526511867

152651186X

OCLC:

1262370270