The Trustees of the Vodafone Ireland Pension Plan v Financial Services and Pensions Ombudsman
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 09 February 2022 |
| Neutral Citation | [2022] IEHC 47 |
| Docket Number | 2020 No. 70 J.R. |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 47
2020 No. 70 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Rossa Fanning, SC and Paul Hutchinson for the applicants instructed by McCann Fitzgerald LLP
Eoin McCullough, SC and Francis Kieran for the respondent instructed by Byrne Wallace
JUDGMENT of Mr. Justice Garrett Simons delivered on 9 February 2022
This judgment addresses the interpretation and application of the limitation periods governing the making of complaints to the Financial Services and Pensions Ombudsman. More specifically, it considers the application of the limitation periods to conduct which is of a serial or continuing nature.
Section 51(2) of the Financial Services and Pensions Ombudsman Act 2017 prescribes limitation periods for the making of complaints to the ombudsman. A complaint must be made within whichever of the following periods is the last to expire:
-
(i) 6 years from the date of the conduct giving rise to the complaint;
-
(ii) 3 years from the earlier of the date on which the person making the complaint became aware, or ought reasonably to have become aware, of the conduct giving rise to the complaint;
-
(iii) such longer period as the ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable, in all the circumstances, to so extend the period.
Section 51(5) of the Act provides as follows:
“For the purposes of subsections (1) and (2)—
(a) conduct that is of a continuing nature is taken to have occurred at the time when it stopped and conduct that consists of a series of acts or omissions is taken to have occurred when the last of those acts or omissions occurred, and
(b) conduct that consists of a single act or omission is taken to have occurred on the date of that act or omission.”
As appears, the default position under the Financial Services and Pensions Ombudsman Act 2017 is that the limitation period is to be calculated by reference to the date of occurrence of “ conduct” on the part of the pension provider. It bears emphasising that the state of knowledge of a putative complainant is not relevant to the default position. It is only in circumstances where a putative complainant seeks to rely upon one of the alternative bases for calculating the limitation period that it becomes relevant to identify the date on which the person making the complaint became aware, or ought reasonably to have become aware, of the conduct giving rise to the complaint.
The Act contemplates that the “ conduct” complained of may consist of a single act or omission, a series of acts or omissions, or may be of a continuing nature. Time only begins to run for the purpose of the limitation period from the date upon which the conduct has stopped, or from the date of the last of a series of acts or omissions. This feature distinguishes the approach under the Financial Services and Pensions Ombudsman Act 2017 from that typically taken in respect of limitation periods prescribed for legal proceedings. Such limitation periods are generally defined as running from the date of a singular event. For example, the three month time-limit prescribed for judicial review proceedings runs from the date when grounds for the application first arose. This will very often be the date of a formal decision made by the public authority. The fact that the decision is repeated or reiterated subsequently will not normally be treated as a separate event which starts time running afresh.
Section 52(4) of the Act provides that the ombudsman “ shall” determine a complaint to be inadmissible where it was made after the expiry of the time-limits specified in section 51. The parties are agreed that the limitation periods go to the ombudsman's jurisdiction. This is relevant to the discussion of section 50 of the Act, at paragraphs 46 et seq. below.
These judicial review proceedings seek to challenge a preliminary decision on the admissibility of a complaint to the Financial Services and Pensions Ombudsman (“ the ombudsman”). The ombudsman determined that the relevant complaint had been made within the prescribed limitation period.
The complaint had been submitted to the ombudsman by the notice party, Mr. Fahy (“ the complainant” or “ the pensioner” as convenient). The complainant had been a member of a pension scheme known as the Vodafone Ireland Pension Plan (“ the pension scheme”). The complaint was made against the trustees of the pension scheme (“ the pension provider”).
The precise parameters of the complaint made is itself an issue of controversy between the parties. For present introductory purposes, it is sufficient to state that the complaint relates to the complainant's entitlements under the pension scheme.
The rules governing the pension scheme are embodied in a number of trust deeds. The rules were amended by a deed of amendment executed in the year 2012. The complainant contends that this amendment did not affect his pension entitlements in circumstances where he had already retired as an employee a number of months prior to the coming into force of the amended rules. The pension provider disputes this interpretation of the effect of the deed of amendment.
It should be explained that whereas the complainant would not be entitled to have direct access to the funds held on his behalf in the pension scheme until he reached the age of 60 years, he did have the right, in the interim, to transfer the funds from the pension scheme to another approved pension arrangement. To this end, the pension provider was obliged to furnish, on request, details of the transfer value of the funds.
The complaint was submitted to the ombudsman on 24 August 2018. This followed the exhaustion of the pension provider's internal dispute resolution procedure (in accordance with section 55 of the Financial Services and Pensions Ombudsman Act 2017).
The proximate cause of complaint had been the issuance of a statement by the pension provider on 16 February 2018 setting out the complainant's pension benefits. This statement had been requested by the complainant in the lead-up to his sixtieth birthday in August 2018. It was apparent from the statement that the transfer value of his pension benefits had been calculated on the basis that the amended rules were applicable to the complainant's circumstances, notwithstanding his retirement from the company in 2011. The differential between the two bases of calculation is very significant: were the amended rules to apply, then the transfer value of the complainant's pension benefits is reduced by more than one million euro.
The pension provider contends that, for the purpose of the limitation period, time should be taken as running from 2012 and not from 2018. More specifically, it is said that the limitation period should be calculated from the date of the amendment of the rules of the pension scheme in 2012. It is further said that the subsequent quotation of the transfer value represented no more than the reflection of the “ mathematical consequences” of the amendment.
The pension provider places special reliance on a letter dated 7 June 2012 from their agent, AON Hewitt, to the complainant setting out the transfer value of his pension benefits. The letter, in relevant part, reads as follows:
“As you are aware, Rules 10 and 18.1.6 of Schedule III (Scheme C) have been amended with effect from 20 May 2012. Accordingly, the transfer value available to you has been calculated by reference to the amended Rules and does not make any provision for future discretionary pension increases (once in payment) in respect of the benefits accruing to you based on pensionable service completed to 14 December 2005. The Trustees may consider at some future date whether to factor in some allowance for future discretionary pension increases in the calculation of transfer values, however, no such decision has been taken at this time and there is no guarantee that such a decision will be taken in the future.”
As appears, it is expressly stated that the transfer value has been calculated by reference to the amended rules of the pension scheme.
Counsel on behalf of the pension provider has taken the court to other contemporaneous correspondence which it is said establishes that not only did the complainant know in 2012 that his pension entitlements were affected by the deed of amendment, he had actually known in advance of the intention to amend the pension scheme. The complainant had, seemingly, been a trustee of the pension scheme prior to his retirement. Counsel makes much of the fact that the complainant had, by letter dated 22 August 2011, intimated that he was considering referring any proposal likely to cause a reduction or diminution in his pension benefits to the Pensions Board or other qualified party. Attention is also drawn to a letter of 4 March 2012 wherein the complainant reserved the right to take whatever action was necessary to protect the value of his pension; and to a subsequent letter of 9 May 2012 calling upon the pension provider to defer executing the deed of amendment until he had received confirmation that his pension benefits would not be reduced.
It is submitted that notwithstanding these threats of action in 2011 and 2012, the complainant elected not to pursue any challenge to the amendment of the pension scheme and elected instead to lie fallow for six years.
The pension provider, through its solicitors, made a substantive response to...
To continue reading
Request your trial
-
Baynes v Financial Services and Pensions Ombudsman
...the question of the standard of review applicable on such a judicial review in Trustees of the Vodafone Ireland Pension Plan v. FSPO [2022] IEHC 47 (“ 46 Simons J. held in Vodafone that the 2017 Act “ draws a sharp distinction between (i) the pre-investigation stage wherein the eligibility ......
-
Flavio Jr Suarez v Financial Services and Pensions Ombudsman
...case which came before this court recently: Trustees of the Vodafone Ireland Pension Plan v. Financial Services and Pensions Ombudsman [2022] IEHC 47. In that case, the Ombudsman expressly canvassed in correspondence the possibility of the disappointed party seeking judicial review of an in......