Court of Appeal hands down judgment in Virgin Media v NTL Pension Trustees II and others

The Court of Appeal handed down judgment this morning in Virgin Media v NTL Pension Trustees II and others, the industry-wide, significant appeal relating to the operation of s.37 of the Pensions Schemes Act 1993 and the Occupational Pension Schemes (Contracting-out) Regulations 1996, and the meaning of “section 9(2B) rights” in that legislation.

Lord Justice Nugee gave the judgment of the CA (Lady Justice Asplin and Lord Justice Peter Jackson agreeing). The CA dismissed the company’s appeal and upheld the conclusion of the first instance judge, Mrs Justice Bacon. After a review of the legislative provisions and their purpose, the CA held that “section 9(2B) rights” include future rights to pension benefits that a member could continue to earn (as well as past service rights). Therefore, the requirement for actuarial confirmation and the sanction of voidness under s.37 PSA 1993, absent such confirmation, applies to all amendments to the rules of a contracted-out scheme in relation to section 9(2B) rights (covering both past and future rights). 

Jennifer Seaman appeared for the Trustees (who were neutral), instructed by Eversheds Sutherland International.

Read the full judgment