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Pensions, Contracts and Trusts: Legal Issues on Decision Making

Pensions, Contracts and Trusts: Legal Issues on Decision Making

Author: David Pollard
Publisher: Bloomsbury Professional (formerly Tottel Publishing)
ISBN: 9781526511836
Published In: May 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

List Price: HKD 1,950.00

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Contents

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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)

Part 1: Introduction

1. Introduction

Part 2: General

2. Public Law Analogy in Private Law Discretions?

3. General Issues on Use of Public Law

4. Wednesbury Applied

5. Good Faith and Dishonesty

Part 3: Extent of Power- Construction

6. Construction - General

7. Express Limits on a Power

8. Construction Principles

9. Interpretation of Pension Schemes

Part 4: Looking At the Decision Maker- And Fetters on Discretion

10. Who Is The Decision Maker?

11. Trustee Discretions and Fetters

12. Statements of a No Fetter Rule

13. Fetters: Some Older Cases

14. The Fetters Rule Gets More Sensible: Three Modern Cases: Thorby, C Abra Estates and Firkin-Flood

15. Modern Position

16. Pension Schemes and Fetters

17. Fetters: Is Public Law Any Guide?

18. Fetters and Changes of Trustees

19. Fetters: Outside Parties

20. Fetters: Effect on Third Parties

22. Setting Policies or Guidelines?

23. Avoiding Fetter Issues

Part 5: Proper Purposes

24. Proper Purposes: Introduction

25. Eclairs

26. The Proper Purpose Test

27. There Is No Literal "Best Interests" Rule

28. Purpose Test in Trust Law And Company Law

29. How Is The Proper Purpose Test Applied?

30. Can Proper Purposes Apply Where There Has Been A Failure To Act?

31. How Is The Decision Maker's Purpose Worked Out?

32. Causation/More than One Motive or Intention

33. More Than One Decision Maker

34. Purpose Vs Motive?

35. Overlap With Need To Consider Only Relevant Factors?

36. Effect of Improper Exercise

37. Proper Purposes: Conclusion

38. Proper Purposes: Application To Pension Schemes: Introduction

39. Pension Scheme and Trustee Powers

40. Overall Purpose of a Pension Scheme - A Suggestion

41. Edge V Pensions Ombudsman

42. Pensions: Main Purpose Vs Sole Purpose?

43. Pension Trusts: Examples of the Application of the Proper Purpose Test

44. Amendment Powers/ Change of Principal Employer

45. Transfers-In

46. Transfers Out: Fletcher Challenge and Its V Hope

47. Investment

48. Early Retirement Reduction

49. Commutation Factors

50. Pension Increases

51. Winding-Up a Pension Scheme?

52. Regula Tor Powers

53. Trustees Exercising Powers Fairly

54. Proper Purpose: Overview

Part 6: Fiduciaries and "Best Interests?

55. Fiduciaries: Best Interests? Overview

56. Introduction

57. Why Does This Matter?

58. This Article Does Not Cover: Social Investment and Other Interests Points

59. Trustee, Directors and Discretions

60. Best Interests and Who Is a Fiduciary

61. UK Official Guidance

62. A Literal Best Interests Duty Is Dangerous

63. Literal Best Interests Duty: Imprecise and Unworkable

64. Cowan V Scargill (1984)

65. Interpreting Megarry V-C's Judgment In Cowan V Scargill: Context Etc

66. Did Megarry V-C Invent The Duty For Trustees?

67. Lord Nicholls

68. MNRPF (2015): There Is No Literal "Best Interests" Rule

69. Express Contractual or Statutory Duty – Some English Cases

70. Overview

71. Problems with A Literal "Best Interests" Duty.

72. (1) Is Not A Freestanding Duty 'To Act', But Instead A Limit on Powers

73. (2) Does Not Override Limitations in the Trust Instrument

74. (3) Does Not Override the Proper Purposes Test

75. (4) Should Be Seen As Subjective - What Did The Trustee Board Consider At The Time Would Be Likely To Promote The Success Of The Trust?

76. (5) There Is Always More That the Trustee Could Do

77. (5) Literally Would Impose a Retrospective Best Outcome Standard

78. Not a 'Paramount' Duty

79. Gives No Guidance on Who Is a Beneficiary/ How to Decide Between Beneficiaries

80. Some Cases After Cowan V Scargill

81. 'Best Interests' or Just 'Interests'?

82. Best Interests/Success of the Trust Is Better

83. Proper Purposes Even Better?

84. Silence Is Louder Than Words: Cases That Do Not Mention A 'Best Interest' Duty When They Should

85. Directors' Duties: Companies Act 2006, Si 72

86. A Positive Duty to Disclose? Item Software

87. UK Statutory Duties for Trusts and Directors

88. Ops Investment Regulations/ IORP Directive

89. Australia Statutory Intervention and Case Law

90. Conclusion

Part 7: Due Consideration of Relevant Factors

91. B Ragan Za - A Landmark Case

92. Braganza: The Decision

93. The Braganza Rationality Test

94. Who Is The Decision Maker?

95. Trustees and Braganza?

96. Pension Trustees and Public Law Following Braganza

97. Does Braganza Apply To All Commercial Discretions?

98. Nature of Discretion

99. Intensity of Review

100. First Limb - Process: Relevant Factors

101. Trustees And Relevant Factors: P Itt V H Olt Compared With Braganza?

102. Three Types of Relevant Factors: The Public Law Approach

103. Weight Given To Factors

Part 8: No Reasonable Decision Maker: Full Perversity

104. Braganza

105. Arbitrary, Capricious Etc

106. Timing for Irrationality?

107. What If One Reasonable Decision Maker Would Have Made The Same Decision?

108. Braganza Test Is A Limit On A Power?

Part 9: Braganza Rationality Tests: Interaction with the Proper Purpose Test

109. Braganza and MDTC/Contractual/Imperial Duty

Part 10: Further Issues

110. Multiple Decision Makers

111. Decision Maker Would Have Made The Same Decision Anyway?

112. Decision Maker Giving Reasons

Part 11: Remedies for a Failure?

113. Remedies

114. Reversal of the Decision

115. Damages or Equitable Compensation for Breach of Trust/Duty against the Trustee:

116. Claim against Third Party:

117. Removal of the Decision Maker

118. Exclusion Clause?

119. Overturning a Decision - Reference Back To Decision Maker

Appendix A: 12 Major Review Grounds for Trustee Decisions

What Is A Trustee Board Not Obliged To Do?

Appendix B - Casela Won the Nature of a "Discretion"

Discretions

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