Neutral Citation Number: [2006] EWHC 1234 (Ch)
Case No: HC06C00349
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/05/2006

Before :

MR JUSTICE PETER SMITH
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Between :

	Richard Colin Neil Davidson	Claimant	
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	(1) Arla Foods UK PLC
(2) The Trustees of The Express Pension Scheme	Defendants	

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Paul Goulding QC (instructed by Farrer & Co) for the Claimant
Thomas Seymour (instructed by Eversheds) for the First Defendants

Hearing dates: Monday 22nd May 2006
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Judgment

Peter Smith J : 
INTRODUCTION
1.	By an application dated 9th March 2006 the Claimant seeks summary judgment against the First Defendant pursuant to CPR 24 in effect for an order for specific performance of clauses 7.2 and 7.3 of a written Compromise Agreement (“the Compromise Agreement”) made on or about 21st January 2005 between the Claimant and the First Defendant or alternatively make such payment as required by the Second Defendant to ensure that the pension benefit provided by those clauses can be granted to the Claimant under a scheme (“the Scheme”) being the Express Pension Scheme. 
2.	Alternatively the Claimant seeks judgment for damages to be assessed (together with interest thereon pursuant to equity or alternatively section 35A Supreme Court Act 1981 to be assessed).
3.	As against the Second Defendant the Claimant sought an order requiring them as Trustees of the Scheme to increase his pension in accordance with the Compromise Agreement.
4.	In the events that have happened the application was only continued as against the First Defendant.  On 29th March 2006 the Claimant discontinued the proceedings as against the Second Defendant with no order as to costs.  As appears further in this judgment that discontinuance was apparently based on a letter dated 20th March 2006 used by Mr Seymour who appears for the First Defendant as a basis for submitting that the Claimant’s action was doomed to fail as against the First Defendant.  I will revert to that submission further in this judgment.
BACKGROUND
5.	The Claimant was born on 18th February 1951 and in 1977 he commenced employment with the First Defendant.  On 6th March 1998 he was appointed it’s Chief Executive and on 21st July 2004 entered in to a Service Agreement.  
6.	By clause 8.1 of the Service Agreement he was entitled to 12 or 18 months notice of termination of his contract of employment depending on the precise circumstances.  In addition clause 13 of the Service Agreement set out terms upon which he was entitled to remain a member of the Express Pension Scheme (“the Scheme”).  He had joined the Scheme on 1st April 1978 and was a member of it for the 27 years of his employment by the First Defendant.
7.	In fact clause 13 of the Service Agreement was at variance with his earlier Service Agreement dated 6th March 1998 and that was resolved by a revision of clause 13 of the Service Agreement dated 21st January 2005 which in effect reinstated the terms of the earlier Service Agreement.
8.	The Claimant contended that the First Defendant was threatening to remove him from his post as Chief Executive as a consequence of his blowing the whistle on a number of practices which he believed were unlawful.  Whether that is correct or not is not a matter for me.  Ultimately the parties entered in to the Compromise Agreement also dated 21st January 2005.  
9.	The present dispute is over the Claimant’s pension entitlement arising out of the Compromise Agreement.
10.	This involves determining what the Claimant’s pension rights were as at the time of the Compromise Agreement and how those were affected by the Compromise Agreement and by two further factors.  
11.	Those two further factors are that whilst the Compromise Agreement provided that his employment would terminate on 30th September 2005 (“the Termination Date”) in fact his employment terminated on 31st May 2005 by mutual agreement.  Regrettably as far as I can discern neither party had addressed whether or not the premature termination date had any impact upon the provisions of the Compromise Agreement and if so in what way.
12.	The second point is that as I have already said on 22nd March 2006 the Claimant took a transfer value of his pension out of the scheme amounting to £4,447,190.  That took in to account an additional augmentation of his pension entitlement as a result of the First Defendant making a further one off payment to the scheme fund of £755,150.  
13.	The Claimant countersigned a letter sent by the administrators of the pension fund dated 20th March 2006 whereby he confirmed the revised instructions and his understanding that once payment of the transfer had been made neither he nor dependants would have any further claims on the Express Pension Scheme or on the Trustees.
14.	The consequence of that letter appears to be that unless the letter is somehow challenged and the payment made the Claimant is no longer a member of the Scheme.
15.	Mr Seymour when he rose to make his submissions in response to the submissions made by Mr Goulding QC who appeared for the Claimant rabbit like produced a document headed “core points in response to Claimant’s argument”.  In paragraph 11 there is a contention that by taking the money (albeit a figure below the amount which the Claimant contends he is entitled to) followed by the discontinuance of his claim against the Trustees this also has the consequential effect of making it impossible for him to bring a claim against the First Defendant.  There is no subsisting entitlement under the Scheme it is submitted as distinct from a mere employer’s promise thus making the claim it is submitted untenable.
16.	This point did not feature in the Defence served on behalf of the Defendants.  That might well be because the Defence was served before discontinuance.  The copy Defence and Counterclaim in the bundle is not signed on behalf of the First Defendant and it is not dated.  The application for summary judgment was issued on 9th March 2006.  The Claimant’s initial evidence was a witness statement of the Claimant dated 9th March 2006 and the first witness statement of Mr Smellie his solicitor, also dated 9th March 2006.  That was responded to by two witness statements by Charles Peter Norbury (dated 22nd and 23rd March respectively) he being the First Defendant’s solicitor and now a partner at the Birmingham branch of Eversheds.  In none of this evidence is there any reference to this point.  It must have been obvious to the First Defendant at least since the end of March that the Claimant had taken this payment.  I say that because the Claimant was seeking injunctive relief initially because of the potential consequences of the payments not being finalised before “A” day when the whole pension regime changed.  Mr Seymour told me that he informed Mr Goulding QC of this point by an email at 07.25 am on the morning of the hearing.  He did not produce his “core points” as I said until he rose to address the court.  
17.	This is entirely contrary to the open procedure contemplated by the CPR.  It simply is not good enough to produce matters at such a late stage without proper warning.  It is a point that has been open to the First Defendant for many months.
18.	Mr Goulding QC told me that he was unable to do justice to the point fully without having been given an opportunity to consider it.
19.	This raised the spectre of an adjournment part heard which given my current court commitments was likely to be many months away.  The parties had estimated the hearing of a day and had been given a day.  The lateness of the production of this argument might well have necessitated an adjournment.  Mr Seymour was persistent in his submission that it was such an important point that justice required the First Defendant should be allowed to maintain the argument.  I understand that point but there has to be an element of finality.  No explanation was given to me as to why the argument could not have been deployed earlier.  
20.	The matter was resolved by Mr Goulding QC responding as he was able to do with him having liberty until 4pm the next day to provide supplemental written submissions if he wished.  In the event Mr Goulding QC on further considering the matter considered that his submissions made orally to me did not require amplification.
21.	On that basis I allowed the First Defendant to run this argument despite the unacceptable manner in which it was deployed.  
22.	It is a bad point (late points usually are) for reasons which I will set out further in this judgment.
CLAIMANT’S PENSION ENTITLEMENT
23.	His entitlement prior to the Compromise Agreement can be found from three sources, namely his Service Agreement, the Scheme Rules and Statute.  
SERVICE AGREEMENT
24.	Clause 13 of the Service Agreement as varied on 21st January 2005 provides as follows:
“Subject to the terms of the Trust Deed and Rules of the Company’s Pension Scheme you remain a member of the said Scheme an your employment will be contracted out for the purposes of the Pension Schemes Act 1993.
If you remain in employment until the age of 60, you shall then retire and your pension shall be calculated in accordance with the Rules of the said Scheme accruing a benefit of two thirds of your final pensionable earnings on completion of 20 years or more pensionable service by normal retirement age 60 taking as your final pensionable earnings whichever is the greater of your full final salary and the average of your salary for the best two years in the ten years immediately prior to your retirement.  Should you die within ten years of the date of your retirement your pension will continue to be paid for the balance of the said ten year period at the discretion of the Company to your widow or dependants or personal representative and any pension payable to your widow personally under the Rules of the said Scheme will not commence until the expiry of the said ten year period.  However the form and amount of such benefits shall be subject to any restriction required by Her Majesty’s Commissioners of Inland Revenue as a condition of their approval of the said Scheme.
If you remain in employment until the age of 60 you shall be covered for life assurance for the period between your 60th and 65th birthdays in a sum equivalent to four times your annual salary at your 60th birthday provided that the form and amount of such benefit shall be subject to any restriction required by Her Majesty’s Commissioners of Inland Revenue.    
In the event of you ceasing to be in employment before the age of 60 or accruing less than 20 years pensionable service by that age the benefits provided for you under the Company’s Pension Scheme will be calculated on a proportionate basis having regard to the number of years of pensionable service actually completed by you.
Your contribution rate will no longer be governed by the general rules of the Scheme but will remain at the current level of 5% of the greater of basic pay and full earnings.
Your death in service lump sum benefit will no longer be governed by the general rules of the Scheme but will remain based upon 4 times pensionable earnings”.
25.	It seems to me that under clause 13.2, 20 years service gives an entitlement to a pension based on two thirds of the final pensionable earnings.  The pension is payable on retirement at 60.  
26.	Under clause 13.4, if the Claimant ceases to be in employment before 60 or accruing less than 20 years pensionable service the benefits will be calculated on a proportionate basis having regard to the number of years of pensionable service actually completed by him.  This seems to cover two possibilities.  First, the Claimant retires at 60 but with less than 20 years’ service.  In that eventuality he has a proportionate pension.  The other possibility is what pension he is entitled to if he retires before 60.  It seems to me clear that he obtains a proportionate pension.  Looking at it with the eyes of a non pensions lawyer the question to be posed is, proportionate basis of what? 20 years service gives a full pension.  It seems to me clause 13.4 therefore means that if somebody retires early with less than 20 years service he obtains a proportionate pension depending on the number of years of “pensionable service” he has provided.  If he has worked for 15 years he obtains presumably three quarters of his pension.  Equally if 20 years pensionable service has been provided with a retirement before 60 it seems to me he should nevertheless have a full pension.  
27.	The reason for that analysis is that if (like the Claimant) he works in excess of 20 years the extra work does not actually accrue any pensionable benefits at his retirement date at 60.  Mr Seymour said this was not correct.  He submits that if someone retired before 60 then his pension would be calculated by multiplying the salary by a fraction where the top number is the number of years the Claimant has actually worked and the lower figure is the number of years he worked plus the number of years until his retirement date.  In the Claimant’s case that is approximately a ration of 27/33.  This Mr Seymour urged upon me was normal practice.  It is he submitted how Mercers effectively calculated the Claimant’s transfer value on a basic basis in a letter of 8th March 2006.  That letter (like all letters in this area) is devoid of the working that leads to the figures.  Mr Seymour has apparently done the calculation himself and set it out in paragraph 4 of his core submissions.  
28.	He acknowledged that there appeared to be nothing in clause 13 of the Service Agreement which would entitle such a deduction to be made.  The basis for a deduction of course is that if someone retires before the Normal Pension Date there is a longer commitment.  
29.	Under the Scheme Rules clause 11A enables a member entitled to a preserved pension to receive it before the Normal Pension Date (“NPD” (equals 60) here) but it is then reduced on a basis decided by the Trustees and certified as reasonable by an Actuary.  No member however can choose a date earlier than 50.  
30.	It is by no means clear to me that that provision overrides the clear words of clause 13.4 of the Service Agreement.  
31.	There is a paradox in that the early leaver provision if Mr Seymour is correct, can operate unfairly against people who provide long service.  Thus someone could work for the company for 25 years but have his employment terminated 10 years before NPD at age 50.  Despite having done 20 years he is only entitled to a proportionate pension based on 25/35.  By way of contrast a person whose employment is terminated at age 59 having only worked 19 years would not have his pension correspondingly reduced.  I have difficulty with Mr Seymour’s submission in that regard and he accepted the inconsistency it created.  Happily they are in my view irrelevant to the issue before me which involve construing the terms of the Compromise Agreement.
SCHEME RULES
32.	Under rule 9A a person who had at least 2 years qualifying service who left before NPD receives a pension calculated in accordance with rule 5A.  There is a complicated formula as to how the years are calculated.  Once again I am not sure that these provisions apply to the Claimant.  Fortunately nothing turns on this.  In addition a person who leaves service with a preserved pension at least a year before NPD under clause 10A has a right to require the Trustees to use the cash equivalent of the benefits by acquiring various pension policies to require the Trustee either to buy one or more buyout policies or to acquire rights under another occupational pension scheme or a personal pension scheme.  This requires the ascertainment of the Transfer Value.
33.	A significant provision in respect of the present dispute is clause 9A that deals with the revaluation of an early leavers’ preserved pension.  This provisions flows from section 83 of the Pension Schemes Act 1993 which introduced provisions which require benefits of early leavers pension entitlement to be revalued on an annual basis so as to preserve their value up until the NPD.  The method of calculation is set out in Schedule 3 and provided initially for a minimum percentage and a maximum of 5%.  The entitlement under the Scheme is a final salary method and Mr Seymour contends that paragraph 1(4) of Schedule 3 is the key to the present dispute.  That provision provides as follows:
“  1.—(1) The final salary method is to add to the amount that would be payable but for Chapter II of Part IV or regulations made under it— 
 (a) in a case where— 
 (i) the termination of pensionable service occurs on or after 1st January 1991; or
 (ii) the whole of the member's pensionable service falls on or after 1st January 1985,
an amount equal to the appropriate revaluation percentage of the amount of the pension or other benefit which on the termination date has accrued to him or to any other person in respect of him (excluding any part of that amount which consists of the member's or the member's widow's or widower's guaranteed minimum); and
 (b) in any other case, an amount equal to such proportion of the appropriate revaluation percentage of the amount of that pension or other benefit (excluding any such part) as the member's pensionable service falling on or after 1st January 1985 bears to his total pensionable service.
    (2) In sub-paragraph (1) "pensionable service" includes any notional pensionable service which is credited to the member by the scheme.

    (3) For the purposes of sub-paragraph (1)(b), any notional pensionable service which is credited to a member by a scheme shall be taken to have ended immediately before the member's actual pensionable service began.

    (4) Any rule of a scheme the effect of which is that benefit falls to be revalued by reference to any period is to be disregarded in making any calculation required by this method. ”
34.	The essence of Mr Seymour’s argument is that the Compromise Agreement (clause 7.3) is a revaluation for the purposes of paragraph 1 (4) and is therefore to be disregarded for the purpose of revaluation in accordance with paragraph 1 or rule 9A of the Rules whichever provides the greater benefit.  Otherwise he submits there is a revaluation upon a revaluation.  In my view this submission is incorrect for reasons I will set out further in this judgment.
35.	Clause 20(C) enables trustees if the employer company requests or the trustees with the consent of the company decide that additional contributions can be made to confer additional benefits.  It is through this route that the additional amount was paid by the First Defendant to augment the Claimant’s pension entitlement if his employment ceased on 30th September 2005.  
CLAIMANT’S EXISTING RIGHTS UPON TERMINATION DATE
36.	I set out what the Claimant’s rights would have been under the Scheme had the Compromise Agreement not been entered into.  On the Termination Date as at 30th September 2005 without any variation the Claimant would have been entitled to a deferred benefit based on a then salary of £416,150.00 (possibly subject to the 27/33 multiplier) and possibly subject to clause 13.4 of the Service Agreement but with revaluation either under clause 9A or under section 84 of Schedule 3.
TERMS OF COMPROMISE AGREEMENT
37.	It will be seen that the attempt of the Compromise Agreement was to achieve a full and final settlement of all claims as listed in paragraph 4 which the Claimant might have against the First Defendant and the group of companies.  The claims are listed in that paragraph and include as far as I can see everything that could conceivably be brought by a former employee against his former employer.  It extended also to his employment rights.  However there was an express reservation in clause 4.18 which provided :-
“Any other claim arising directly or indirectly out of or in connection with the Executive’s employment, its termination or otherwise provided always that subject to this clause 4 that nothing in this Agreement shall affect any claims for personal injury which the Executive may have or pension rights accrued as at the Termination Date.  The Executive confirms that he is not aware of any right or cause of action giving rise to a personal injury claim”.
38.	Mr Seymour described this as a standard form clause but I do not think such description really advances the overall understanding of its impact.  It seems to me plain that all accrued pension rights were reserved as at the Termination Date unless expressly or necessarily given up.  
39.	Clause 7.1 gave the Claimant a termination payment of £1.1 million.  That payment was made without admission of liability and is in excess as far as I can see of the amount of salary that he would have been entitled to had he received 18 months notice.  No elucidation is provided as the basis for the calculation.
40.	Clause 7.2 gives him a credit of 18 months in respect of his pension entitlement, that being the maximum amount of notice that he could have been required to receive.  
41.	The crucial clause is 7.3 which provides as follows:-
“On or before the Termination Date to procure that the Employee’s rights under the “Express Pension Scheme” are augmented (such that the Trustees accept as a scheme liability) so that the Executive will be treated as if (a) in addition to his accrued pensionable service as at Termination Date he had accrued as additional pensionable service the period from 31 March 2007 to the Executive’s 60th birthday (which is equivalent for the purposes of the benefits referred to in part 13 of the Express Pension Scheme to "remaining in employment to age 60") and (b) his salary had increased during this period to a final salary at age 60 projected at £496,904 subject to the Executive having on or before the Termination Date made a contribution to the Express Pension Scheme to meet the required employee contributions (at the rate of 5% of pensionable salary) in respect of the period to the Executive's 60th birthday. This augmentation will be delivered to the fullest extent possible through the Express Pension Scheme or failng that through such other lawful retirement planning vehicle as the Executive may nominate. It will be for the Executive to elect (subject to and in accordance with scheme rules) whether to take a deferred unreduced pension at age 60, whether to draw his augmented pension at any time following the Termination Date and before age 60 (subject to such early retirement deductions as the scheme may provide for) or whether at any stage to transfer his benefits at fair value (in accordance with the scheme's cash equivalent transfer basis but without any reduction that might be applied in respect of scheme under-funding) into any other lawful vehicle (such as a personal pension or, with the Employer's reasonable assistance, an Executive Pension Plan). The Employer agrees to make such payment (if any) as required by the trustees of the "Express Pension Scheme" to ensure that the pension benefit set out above can be granted to the Executive by the "Express Pension Scheme" and/or to make good to the Employee in respect of any failure by the Express Pension Scheme to provide the Employee with his entitlements to pension benefits under the rules of the Express Pension Scheme (whether generally or pursuant to this agreement).
42.	The clause imposes on the First Defendant a primary obligation to procure that the Claimant’s rights under the Scheme are augmented.  That obligation was to be achieved before the Termination Date i.e. 30th September 2005.  The First Defendant never achieved that by that date and was in breach of that obligation by 30th September 2005.  
43.	The clause then deems the Claimant as at the Termination Date to have accrued additional pensionable service during the period from 31st March 2007 to his 60th birthday.  That is the period from the expiry of the 18 months credit given under clause 7.2.  Second it deems him to have had his salary increased during the period to a final salary at age 60 projected at £496,904, he having made a contribution of £120,000 in respect of the period to his 60th birthday.
44.	This is somewhat artificial.  It seems to me bearing in mind the fact that the parties are agreed that the augmentation occurs under rule 20C, that this is a present augmentation which the First Defendant funds which is to be used as the basis for calculating the pension which the Claimant is entitled to draw when he reaches 60.  
45.	In other words he is treated as having had an extra 5 years service (thus removing the argument based on the ratio of 27/33 referred to above probably).  However the reality is that if the Claimant does not draw his pension before 60 giving him an extra 5 years in the light of his existing service of 27, this gives him no increased pension as he already has the maximum multiplier to be applied in calculating his pension.
46.	The second point deals with the fact that his salary is projected to £496,904 an increase of some £78,000 on his actual salary.  
47.	There are 3 options given to the Claimant.  In my view they are significant.  First he has a right to take an unreduced pension at age 60.  In that eventuality he will receive a pension at 60 based on the salary of £496,904 and on the basis that he has the accrued years (although this gives him nothing for the reasons I have set out above).  Second he has the right to draw the augmented pension as anytime following the Termination Date before 60 “subject to such early retirement deductions as the Scheme may provide for”.  Third he has the right to obtain a transfer at a fair value in accordance with the Scheme’s cash equivalent transfer basis.  He has elected for this third course.  
48.	The dispute is whether or not in calculating that cash equivalent the actuaries have to build in to the calculation the rights to revaluation conferred by clause 9A or section 84 PSA 1993.  
49.	The difference appears to be a significant amount.  According to the letter from Mercers dated 8th March 2006 the Claimant’s additional £120,000 increased the transfer value of his fund from £3,571,873 to £3,692,640. If his pension is augmented to £331,269 at age 60 with no further revaluations (i.e. two thirds of the salary of £496,000) the transfer value is £4,447,190.  That is the amount that was transferred in March.
50.	However if the figure is to be revalued annually until NPD the transfer value increases to £5,190,290 and the First Defendant would have to pay an extra £743,100 because the Trustees of the Scheme have no funds to make these increased payments.
THE CLAIMANT’S CASE
51.	The Claimant’s case is relatively straight forward.  He contends that as at the Termination Date he was treated as if his accrued pensionable service included the period to his 60th birthday and his final salary was £496,904.  This produced an accrued pension benefit as at Termination Date of two thirds of final salary with £331,269.  It is then submitted that nothing else changed with regard to his pension rights by reason of this augmentation and that accordingly from the Termination Date until his 60th birthday he had a right to a preserved pension as provided by rule 9A with a preservation right contained in PSA 1993.  Thus he has a right to annual review of the value of that pension and a right to a transfer of the cash equivalent taking in to that right to revaluation in accordance with rule 10A.
52.	He relies upon two aspects of the Compromise Agreement which lead to this conclusion.  First clause 4.18 preserved all his existing pension rights and that must necessarily include the right to revaluation as he was no longer in employment.  Second they also point to the consequences of what would happen if he sought an early pension.  Clause 7.3 expressly preserves the right of the Trustees to pay a reduced amount in accordance with clause 11A.  It would be odd, Mr Goulding QC submitted if the Trustees’ right to deduction on taking an early pension before age 60 was preserved whilst the counterpart provision, namely the preservation of the value of the pension as at the Termination Date by revaluation is lost.  Both provisions are inserted of course to protect the parties in the event of either early taking of the pension or early termination of the rights to accrue a pension.  
53.	Accordingly that is his present entitlement and he had preserved his rights to revaluation under clause 9A.
54.	The difficulty about this is that it could have been easily achieved by simply providing that he had a salary when he left of £496,000 and his pension fund would be augmented by the amount required to value his pension entitlement on that basis.  The figure would then be revalued under clause 9A.  
55.	The parties decided already what salary he was deemed to retire at at age 60 namely the £496,000.  Without the Compromise Agreement his salary would have been £416,000 but subject to the revaluation exercise.  In addition he has been awarded the extra years’ pensionable service although I do not see how that actually gives him anything at all for the reasons that I have set out above unless it is going to be conceded by the First Defendant that if he had retired before his 60th birthday he would (on Mr Seymour’s arguments) have had a full amount of pensionable service. 
56.	Nevertheless he has achieved a substantial benefit by having his pension fixed by reference to an agreed salary payable on his 60th birthday.
57.	This is what the First Defendant objects to.  The Claimant’s case requires revaluation of that figure under 9A (or the statutory equivalent) as if that is his present entitlement.  It seems to me that the method of calculation is on the basis that the Claimant was intended to receive a pension of £331,000 on his 60th birthday.  That is the figure in my view that was fastened upon and then the working was back calculated to arrive at the salary necessary to achieve that level of pension.  That is a significant increase on the pension that he would have received under the Scheme but for the Compromise Agreement.  It is also significant in my view that he makes a contribution towards that.  Once again it shows in my view that the parties have fastened upon a figure payable at the 60th birthday and their respective contributions towards it.  The Claimant pays £120,000 and the First Defendant pays in to the Pension Fund the amount that is necessary to fund the pension based on a retirement salary of £496,000.  That in my view makes sense of the deeming provisions in clause 7.3.
58.	Read in that light there is still a justification for the preservation of the rights to reduce the payment if the pension is taken early for the same reasons that would appertain under the original Scheme.
59.	It seems to me that Mr Seymour is correct in that the Claimant is requiring his salary at the Termination Date to have been £496,904 when it plainly was not and plainly was not agreed to be so much.
60.	I therefore conclude that the object of clause 7.3 was to provide for the Claimant to have a pre determined pension of £331,000 payable on his 60th birthday.
61.	In my view that necessarily has with it the conclusion that that basis is in substitution of any revaluation rights that he has under clause 9A of the Scheme.  Otherwise he is having the benefit of two exercises designed to preserve a fund as at the retirement date.  At best in my view he could have a revaluation under 9A of his existing salary to see what the resultant fund would then be on retirement on NPD.  It seems to me that the only conclusion I can draw given the wording of 7.3 is that he has given up his revaluation rights in exchange for an agreed pension payable on NPD based on an agreed salary on NPD with (for what it is worth) the extra pensionable years.
62.	That then leaves the question of 4(18).  I do not see for the reasons I have set out how 4 (18) can be relied upon because it only operates in my view in so far as the rights have not been given up.  I can see no logic or basis for clause 9A being preserved and applied to the salary of £496,000 because that would require that salary to be the applicable salary as at the Termination Date whereas the parties have agreed that that is the salary at NPD.  
63.	It follows therefore that in my view the true construction of clause 7.3 is that by necessary implication the Claimant gave up any right to revaluation under 9A in exchange for an agreement between the parties that his pension would now be fixed as at NPD in the sum of £331,000 and the amount required to fund such a pension would be calculated by the First Defendant and transferred to the Trustees under clause 20(C).
64.	I accept Mr Seymour’s submissions that that achieved a certainty both ways in that the First Defendant knew what it had to pay and the Claimant knew what he had to pay and precisely what pension he would achieve (as opposed to the potential variances that might operate under clause 9A).
65.	The parties plainly negotiated that that is what was achieved and the only adjustments that would be made would be in the normal way if he sought an earlier pension with a corresponding increased burden thrown on the Trustees by such an action.
66.	I accept that there are some difficulties (for example) the inter relation between 13.4 of the Service Agreement and the calculations and also the 5 years enhancement which appears to me to be pointless but none of these has any impact on the primary claim.   
67.	On that basis I would dismiss the Claimant’s application under part 24.
68.	In so doing it is not necessary for me strictly to deal with some of Mr Seymour’s other arguments.  Nevertheless to achieve certainty between the parties I will do so.
69.	I do not see there is anything in Mr Seymour’s “obvious point” based on paragraph 1(4) of Schedule 3 PSA 1993.  I do not see that has any impact on the bargain that was struck.  That provision is designed to require (for example) ignoring a revaluation under paragraph 9A.  I did not find Mr Seymour’s example as advancing his argument on this point.  Clause 7.3 is not a rule that attracts that provision; it is a term of a negotiated bargain as between the Claimant and the First Defendant which involved additional pension payments and nothing more.  The issue was decided on the construction of 7.3 and its impact on rights which were either preserved or given up.  In my view as I have said the Claimant necessarily by implication gave up his rights to seek a further revaluation when he took the benefits under clause 7.3.
70.	Equally I reject the argument based on the fact that the Claimant took monies by way of transfer value in March.  That merely meant that the Claimant could not bring any claim against the Trustees in the Scheme; the First Defendant was already in breach of its obligation to procure the payment by the Termination Date and merely because the Claimant mitigated his loss by taking a reduced figure would not have prevented him in my view from claiming as damages from the First Defendant any extra sums that would have been required to be paid had his argument succeeded in order for him to obtain extra pension based on that supposed entitlement.
71.	In this context I cannot refrain from expressing my dismay at the “hardball” tactics deployed by the First Defendant in not addressing its plain obligation to transfer an undisputed amount especially given the approach of A Day.  I can see no legitimate justification for such a stance and  conclude it was designed simply to put pressure on the Claimant to settle early before A Day.
72.	As I have said, the breach first occurred with a failure to make the payments by the Termination Date of 30th September 2005.  I equally reject Mr Seymour’s submission that those rights have been removed on 31st May 2005.  Clause 12 clearly gave the First Defendant the right to terminate the Claimant’s employment before the Termination Date but preserved all of his entitlements listed in clause 7 including salary, lump sum and contractual benefits as if his employment had continued to the Termination Date.  Given that wording it is impossible in my view for the First Defendant to contend that early termination in accordance with that clause deprived the Claimant of any arguments or rights that he would have otherwise have accrued.  
73.	I observed that at the end of the arguments that if I decided the case against the Claimant I ought to dismiss the action.  Mr Goulding QC objected to that on the basis that there was no such application.  He submitted that no disclosure had taken place and that there remained the fact that the First Defendant was in breach because all of this should have been put in place before the Termination Date and it was not.  I am not sure whether any loss flowed from that but I am inclined (bearing in mind there is no application to this effect on the part of the First Defendant) simply to dismiss the Claimant’s part 24 application although I have difficulty seeing any future in the action in the light of this judgment.
74.	I will hear submissions as to the form of order and costs when this judgment is handed down.