The High Court has ruled that a pension dispute brought by William James Murray must proceed as a statutory appeal against the Pensions Ombudsman’s determination, and that an actuarial report he sought to introduce cannot be considered.
Mr Justice Kelly’s ruling did not decide whether the trustees correctly calculated Mr Murray’s retirement benefits. It addressed the scope of the proceedings and the evidence that could be used at the appeal hearing.
Mr Murray retired from FLS Aviation Services on 31 March 2001, aged 61, after 40 years’ employment with Aer Lingus/FLS. His gratuity and pension were calculated using his average basic salary in the 12 months before retirement. He argued that the scheme’s definition of “final retiring salary” meant the annual basic salary applicable on his retirement date.
After complaining to the scheme trustees, he referred the dispute to the Pensions Ombudsman. The Ombudsman issued a final determination against his claim on 16 June 2006. Mr Murray then appealed under section 140 of the Pensions Act 1990.
In addition to that appeal, Mr Murray sought declarations about the meaning of “final retiring salary” and the trustees’ administration of the scheme, as well as other relief. The trustees and Ombudsman argued that, after using the Ombudsman process, he could pursue the statutory appeal but not bring a separate substantive challenge to the same dispute.
Mr Justice Kelly held that the statutory scheme created a binding determination of legal rights, subject to the appeal provided for by the Act. He ruled that Mr Murray could not continue the additional substantive claims. The judge also said that claims for general damages were not available through the special summons procedure used in the case. The substantive hearing would therefore concern only the section 140 appeal. If successful, Mr Murray could qualify for financial redress under the Act.
The judge also refused permission to rely on a report from Joseph G. Byrne & Sons, Consulting Actuaries, which addressed the meaning of “final retiring salary”. As a general rule, he said, an appeal should be decided on the material that was before the Ombudsman. Additional evidence could be admitted in exceptional circumstances, but the report could have been obtained with reasonable diligence for the Ombudsman investigation, and no explanation was given for not providing it then. The judge was also not satisfied it would probably have an important influence on the result.
He further ruled that the report addressed a question of legal construction for the judge, rather than a matter requiring expert opinion. The court expressed no view on the standard of review to be applied at the substantive appeal hearing.