Murray v Trustees & Admin of the Irish Airlines [Gen Employee] Superannuation Scheme

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 25 January 2007
• Neutral Citation: [2007] IEHC 27
• Court: High Court
• Date: 25 January 2007

MURRAY v TRUSTEES & ADMINISTRATORS OF THE IRISH AIRLINES (GENERAL EMPLOYEES) SUPERANNUATION SCHEME

IN THE MATTER OF PART XI OF THE PENSIONS ACT,

1990 (AS INSERTED BY SECTION 5 OF THE PENSIONS

(AMENDMENT) ACT, 2002 ) AND

IN THE MATTER OF THE IRISH AIRLINES (GENERAL

EMPLOYEES) SUPERANNUATION SCHEME

BETWEEN

WILLIAM JAMES MURRAY

PLAINTIFF

and

THE TRUSTEES AND ADMINISTRATORS OF THE IRISH AIRLINES (GENERAL EMPLOYEES) SUPERANNUATION SCHEME

DEFENDANTS

and

THE PENSIONS OMBUDSMAN

NOTICE PARTY

[2007] IEHC 27

[No. 309 SP/2006]

THE HIGH COURT

Abstract:

Procedure - Res judicata -Declaratory relief - Pensions Act, 1990 - Pensions (Amendment) Act, 2002 - Whether the plaintiff was permitted to adduce additional evidence on appeal to the court when such evidence was not placed before the Ombudsman - Whether the plaintiff was entitled, having complained to the Ombudsman, to seek declaratory relief in the courts regarding the decision of the Trustees.

The plaintiff complained to the defendants (the trustees) regarding his retirement benefits and the dispute concerned the definition of “final retiring salary” under the superannuation scheme. He subsequently complained to the Ombudsman regarding the trustee’s decision and he received another unsatisfactory result. The plaintiff then commenced these proceedings against the trustees essentially seeking declaratory relief as to the correct meaning of the definition of “final retiring salary” and an order permitting him to adduce expert evidence in addition to the evidence produced before the Ombudsman. The defendants argued that the plaintiff could not bring such proceedings and was only entitled to appeal the determination of the Ombudsman by way of statutory appeal.

Held by Kelly J. in favour of the defendants:

1.That the determination of the Ombudsman was res judicata of the dispute in question, subject only to the statutory right of appeal. Consequently, the plaintiff was not entitled to commence proceedings for declaratory relief having previously referred the matter to the Ombudsman for determination.

2. That as a general rule, the court, in hearing an appeal under section 140 of the Act, is confined to deciding the matter based on the material that was placed before the Ombudsman. The plaintiff did not offer any explanation as to why the expert evidence now sought to be adduced was not placed before the Ombudsman, nor did he establish any special circumstances which would justify the admission of such evidence at this stage.

Reporter: L.O’S.

1 JUDGMENT of Mr. Justice Kelly delivered on the 25th day of January, 2007

Background

2 The plaintiff (Mr. Murray) retired from FLS Aviation Services (FLS) on 31st March, 2001. He was then 61 years of age and had been in the employment of Aer Lingus/FLS for 40 years.

3 On retirement he received a gratuity and pension benefits based on the average of his basic salary received in the 12 months up to the date of retirement.

4 Mr. Murray believes that his retirement benefits should be based on the basic rate of pay applicable on his date of retirement rather than on an average salary figure for the preceding 12 months.

5 He complained to the defendants (the trustees), who are the trustees of the relevant superannuation scheme, about this. He did not get a satisfactory response and so he approached the notice party (the Ombudsman).

Complaint to the Ombudsman

6 In August, 2003, Mr. Murray wrote to the Ombudsman explaining that he was in dispute with the trustees concerning the definition of "final retiring salary" under the superannuation scheme. He quoted the definition of "final retiring salary" which was contained in a 1974 amendment to the relevant trust deed. It is defined as:-

"The annual basic salary of a member at the date of his retirement or of his death in service except that, where a special increase in salary or a personal promotion is effected within the last three years before normal or early retirement, “final salary” shall mean the annual average salary in respect of those last three years."

7 Mr. Murray complained that the trustees had interpreted final retiring salary to mean the average of his basic earnings in the 12 months prior to his retirement. He understood it to mean the annual rate of salary that he was receiving at the point of retirement. He argued that that latter approach is the one used under the main Civil Service Superannuation Scheme. He told the Ombudsman that the trustees had advised him in a letter of 28th September, 2001, that:-

"Current practice is based on the advice of the scheme's solicitors and the constraints of the Revenue Commissioners when the current rules governing pension calculations were introduced."

8 The trustees did not provide him with copies of those advices or details of the Revenue constraints despite requests from him. In that same letter of 28th September, 2001, the trustees undertook to discuss the matter of pension calculation at their October, 2001, meeting. Despite writing and requesting details of the outcome of that meeting Mr. Murray complained that he received no information concerning it.

9 The Ombudsman wrote to Mr. Murray in August, 2003 and again in September, 2003, explaining that before he could investigate the complaint Mr. Murray would have to complete a formal complaint form and that the internal dispute resolution procedure under the superannuation scheme would have to be satisfied. On 17th December, 2004, a completed complaint form and notes were submitted to the Ombudsman by Mr. Murray's solicitors. The response which had been furnished by the trustees to Mr. Murray was not in a format which complied with the Ombudsman regulations of 2003. The Ombudsman wrote to the trustees on 23rd December, 2004, requesting a determination in proper form from them. That was received on 29th March, 2005, thus enabling the investigation of the Ombudsman to proceed.

The Ombudsman's Investigation

10 This judgment is not concerned with the substantive merits of Mr. Murray's case. Consequently it is not necessary to consider in detail all of the steps taken by the Ombudsman in the course of his investigation or the final conclusions reached by him. Nevertheless, a number of matters which are of relevance ought to be mentioned.

11 The investigation was conducted exclusively by reference to written submissions and documents provided by both sides to the dispute. The legislation governing the Ombudsman permits him to conduct oral hearings. He has power inter alia to require the attendance of a person before him and has all the powers, rights and privileges vested in the High Court in respect of the examination of witnesses. It is not every case that requires an oral hearing. The Ombudsman has a well publicised policy on the topic. He will only hold an oral hearing in the following cases:-

12 (a) Where there are differing accounts of a particular event and the credibility of witnesses needs to be tested,

13 (b) Where the integrity or honesty of one of the parties has been questioned, and that person has asked for an oral hearing,

14 (c) Where there is a dispute about basic facts that cannot be resolved from the papers uncovered by the investigation on their own.

15 Over and above these conditions the Ombudsman reserves an entitlement to hold an oral hearing if he considers that it is right and proper to do so.

16 The only request for an oral hearing that was ever made in the present case was contained in a letter of 25th August, 2005, from Mr. Murray's solicitors. On this topic the letter simply said:-

"We feel that an oral hearing in this matter is merited and would be of assistance. We would be grateful if you would facilitate our request for a hearing in this matter."

17 It is to be noted that no attempt was made in that letter to suggest that the case fell into any of the categories in respect of which an oral hearing might be granted.

18 That request was responded to on 6th September, 2005. Insofar as it is relevant the letter read:-

"I have discussed your request for an oral hearing with the pensions Ombudsman and he has declined this. It is not his intention to hold formal oral hearings as a matter of course. These will be restricted to particularly problematic cases where, for example, there is doubt about the veracity of evidence submitted, there is direct conflict of evidence or the primary facts cannot be uncovered or substantiated."

19 The issue of an oral hearing was not raised again by Mr. Murray or his solicitors and the refusal to hold one is not challenged in these proceedings.

20 The absence of an oral hearing did not restrict the plaintiff in placing before the Ombudsman whatever material he thought appropriate. Such material could include statements of fact, legal submissions and, if he thought it desirable, the opinions of experts. Throughout the Ombudsman's investigation the plaintiff had the benefit of legal advice from his solicitors.

21 On the basis of the information gathered by him, the Ombudsman formed a preliminary view of the matter adverse to Mr. Murray. That view and the reasoning behind it was communicated to both parties to the dispute on 20th January, 2006. Each side was then entitled to make further submissions or place further evidence before the Ombudsman. In a letter of 24th January, 2006, the trustees stated that they had nothing further to add to their previous submissions. Mr. Murray, on the other hand, through his solicitors, by letter on 30th March, 2006, made a submission. Again on 6th April, 2006, he made a further submission in which he placed additional information before the Ombudsman.

22 Having examined those submissions the Ombudsman did not find that they contained any additional information, facts...