Legal Proceedings by HPA

[tonyfoster]

Here is a reply I received in response to Selected option A.

Attached is a copy of my letter.

From: <PensionsTeam@ch2m.com>
Date: Monday, 25 July 2016 at 22:04
To: Tony Foster <anthonycolinfoster@gmail.com>
Subject: Option Form - REJECTED

Dear Mr Foster

I refer to the attached email with copy of your signed Option Form qualified by a letter setting out your acceptance with the wording 'under duress'. I have referred this to the Trustee's legal adviser and this wording is deemed as a qualification to your consent.

As explained in the letter from the Trustee of 31 May 2016 in your offer pack, it is not possible for the Trustee to transfer members to the new pension scheme unless we have your written consent to do so.  Also, if you choose to transfer to the new scheme, you are also consenting to your benefits being modified under the Halcrow Pension Scheme to align these with the benefits that will be provided from the new scheme.

Because the Trustee needs to be absolutely clear you are consenting to the transfer and the changes, I'm afraid the Trustee insists on there being NO qualification to this consent, as this would call into question whether you have actually given your full consent.  If the Trustee has not received your full consent to the transfer by the deadline, you will unfortunately be transferred to the PPF, as explained in your offer pack and follow up Q&As. The deadline is 5th August.

The Trustee noted in the Q&A sent out on 15 July that they were aware of a possible legal challenge about the member offer to transfer to the new scheme.  The Trustee is not currently aware of any grounds on which a legal challenge would be successful.  However, in the light of this, understandably some members have asked how their consents to transfer to the new scheme would be treated in the event there was a successful legal challenge to the transfer going ahead, or to the terms of that transfer.  I would confirm that in those circumstances the Trustee would not expect to proceed with the transfer on its current terms.

I attach a further Option Form for you to print off, complete and return if you so wish. I would reiterate that any qualified Option Form received will be REJECTED and would not apply.

Regards
Paula


Paula J Gibbons
UK Pensions Manager
D 01793 816549

CH2M
Burderop Park
Swindon. SN4 0QD
United Kingdom
www.ch2m.com | LinkedIn | Twitter | Facebook

[meelit]

Any thoughts on this?  It looks like if anything is added or qualified on the option form to be sent in by 5 August may render it invalid according to the Trustee and we would automatically be transferred to the PPF. On the other hand, if the legal challenge is succesful, "[size=0px]the Trustee would not expect to proceed with the transfer on its current terms" - [/size]Not quite specific or clear to me whether this means that the whole process becomes invalid or whether we may have signed away our rights regardless. Another curve ball to contend with. Grateful for any advice from the legal minds.
Any further update on the legal challenge?

[Steve_2]

I see the case is now on the "Upper Tribunal (Tax and Chancery) financial services hearings and register" list

https://www.gov.uk/government/publications/upper-tribunal-tax-and-chancery-register-of-cases/upper-tribunal-tax-and-chancery-financial-services-hearings-and-register-table

But looking down the list some hearings take a while to happen.

[Tim SMITH]

Meelit

The current position appears to be:

The legal advice to qualify one's reply with the words: "Accepted subject to any legal challenge not changing the position" has not (so far) been changed

HPA's lawyer has asked the Trustees and the Pensions Team, as a matter of urgency, to confirm that an acceptance will not be treated as binding in the event of a change of position following the challenge. Reply still awaited.

Tony Foster has been told by Halcrow that no qualification is acceptable. However, that is not formal advice to HPS members and anyway, as you have identified, is insufficiently precise.

Hence we urgently await the reply to HPA's lawyer and his subsequent amendment to, or confirmation of, his existing advice.

[Stephen Brichieri-Colombi]

I have received a similar response when writing tp Paula on behalf of the HPA, and have replied this morning as follows:

We appreciate the Trustees desire for certainty, as we share that desire. You have identified conditions under which the Trustees would not expect to proceed with the transfer. Can we therefore agree that members can qualify their response in exactly the way you are proposing, with a minor grammatical change.

"I attach herewith my signed option. Please note that In the event there were a successful legal challenge to the transfer going ahead, or to the terms of that transfer, I retain the right to withdraw my consent to the transfer and to any reduction in my accrued rights to a pension under the HPS."

I am awaiting a response.

I can understand why deferred members might want to sign, as they are being offered much better terms. As a I pensioner, I see very little to gain from signing away my accrued rights even though there is a possibility they may not be paid by CH2M/Halcrow

[Stephen Brichieri-Colombi]

Update 27 July 2016


We regret to advise that we have had to drop our case to avoid the small but existential risk of exposing members to financial risks of an adverse cost award.


We investigated the possibility of creating a company but Counsel have advised that substituting a recently-formed limited company to act for the HPA in place of Edward Evans at this stage would not be accepted by the UT, despite the fact that this is precisely what the Trustees have done and what CH2M/Halcrow plans to do to jettison the HPS.


After a long discussion with Martin Jenkins about possible adverse costs and a review of the responses from Committee members, we have reluctantly concluded that we cannot afford the risk of major counter-claims.


To defend the interests of pensioners, tPR opposed not only our case, but objected to the Upper Tribunal hearing it in the first place. We would therefore have had to fight three cases: the right to be heard, the right to have our legal costs paid, and the case we originally lodged with the UT. All three cases would have involved costs in excess of £100,000, with an upper limit measured in millions.



We have therefore instructed IM to write to the UT explaining that we had brought the case in the belief that members of pension schemes were clearly people who were affected by changes to their pensions, but we do not have the financial resources to dispute a claim by tPR to the contrary. It is with a deep sense of injustice that we are therefore obliged to withdraw our case. The UT has accepted the withdrawal of the case.


We will give more details in a newsletter. Members of the HPS and the broader public may wonder, as we do, why CH2M/Halcrow, the tPR and the PPF do not want the case to be heard in open court. Part of the explanation may be due to the fact that the rump HPS will be transferred to a company with a paid up share capital of £1 that was set up by a man  who retired from his senior position with the PPF in 2013. This company is the one that will be made insolvent so members can enter the PPF. The amount that he is being paid to provide this service has not yet been disclosed.


My thanks to the many of you who contributed the articles and snippets of information on which the Committee were able to build a strong case that will, unfortunately, not be heard by the Upper Tribunal. But you can be sure it will be heard elsewhere.


We can give no further guidance on which option to select, but suggest you follow closely the route being followed by Malcolm Fletcher. He represents well the Halcrow that I worked with for 20 years, and in which I had great pride. Sic transit gloria.


This website will remain open for a while yet.

[finneyb]

Given that a prima facie case has been identified against the RAA. The HPS Trustees, who allegedly look after members' interest and have a legal duty to do so need to fulfill their roles and take over the Upper Tribunal Appeal.

I note that at least 5 of the 7 HPS Trustees have a pecuniary interest in CH2M/Halcrow, they need show independence .

The zero inflation criteria pre 1997 is totally unacceptable and discriminatory.

[Jane Tordoff]

We are all very disappointed at the decision that has been taken. If anyone has any ideas of how else we could raise our concerns in the public domain, please do let us know.

I would like to say thank you to Stephen, Edward, John Ratsey and other committee members who have worked tirelessly in the background and to Tim Smith for posting press reports and setting up the Facebook Page.

[John Ratsey]

Members of the HPS and the broader public may wonder, as we do, why CH2M/Halcrow, the tPR and the PPF do not want the case to be heard in open court.

I should add that the parties fighting against HPA include Lovells (acting for HPS) and Sackers (acting for the Trustee) who indicated that they would attend the court hearing and indicated that they would vigorously oppose the application. No doubt they had been given a blank cheque by CH2M. There is something clearly broken with a system which comprises organisations intended to protect pension scheme members' interests but actually do the opposite.

[Ken Falls]

Stephen mentions following the route of Malcolm but I do not see details of this in the Forum. Grateful if you would explain further.

I wonder why the directors at the time of the sale have not stuck their heads above the parapet??

Very grateful for the considerable efforts of the HPA Committee etc. in the short time frame available to them.

Would it be an option to send a pointed missive to the Trustees individually signed by all HPA members (similar to a petition) re their failures at the point of sale, at the 2011 valuation and in caving in to CH2M to facilitate the secret court case and RAA? Not that it would do any good re Chris Martin or DJP's blinkered vision but it would show the Trustees the breadth of feeling of a substantial number of pensioners.

Wish you every success also in getting the full story into the media. Now that there is no court case, there is no harm in getting the full story out there with whatever facts and evidence at HPA's disposal. Debunk this "saving HPS" and "rescuing HGL" and turn CH2M into next week's Sir Shifty as the unacceptable face of capitalism. Perhaps Clients will think twice about doing business with them.

[Jerry Neville]

Regret that we do not know what route Malcolm Fletcher is following.  Please may we be urgently directed to this approach as doubtless it will be the most sensible option in the current disappointing circumstances?

Lynn and I would like to thank all of you for the tremendous effort you have been putting in for the last several years on all our behalfs.  Very much appreciated.

Rapid response hoped for.  Thanks.

[Jane Tordoff]

I have just asked Malcolm if he would allow me to send you copies of the documents he has received from his MP.  I will let you know his response. 

The avenue he is pursing is through the Pensions Ombudsman who has the power to investigate maladministration by the trustee of a scheme or by an employrer on a pensions matter. 

I am going to a meeting tomorrow with the OPA and hope to be able to give more information after the meeting.

[Jane Tordoff]

We are looking at other ways of getting the message into the public domain about what has happened. It has been suggested that we put a document together for the Work and Pensions Committee.

Other suggestions include and e-petition, a twitter account, contacting tabloid newspapers - they love this sort of story.  Any ideas would be gratefully received.

[tonybird1946]

Minor correction PGG had nothing to do with the 5% minimum pension increase. This happened in the 80s before he was in any position have had anything to do with the change.

Blame the then partnership as I think this was before the change to a corporate status.

An unwise decision maybe but it should be remembered this was against the background of major profits on certain overseas projects and memories of the disastrous inflation levels in the 70s that wiped out many people on fixed pensions.

[Stephen Brichieri-Colombi]

I have made preliminary contact with US lawyers about a possible $532 million class action suit against CH2M on a no-win, no-fee basis. Typical slice for the lawyers is 1/3 of winnings, so it might be temping. I am advised that class action suits by pensioners are currently seen as a very profitable area for law companies in the US.
Early days, but lets see what develops.
I  shall not be signing the form as I wish to preserve my rights to a full HPS pension unless a better deal can be struck.