Brambles Administration Ltd & Ors v Harvey & Ors (Rev1) [2025] EWHC 2980 (Ch)

Charlotte Pope-Williams (instructed by Elmwood Law Ltd) for the Appellants.

INTRODUCTION

Procedural matters

• The appellants were involved as either trustee or manager of three registered pension schemes (the Eleven Scheme, the SHK Scheme and the Gilbert Scheme respectively and together the Schemes). By his determination of 11 November 2024 (the Determination) that ran to some 170 pages, the Pensions Ombudsman (the Ombudsman) resolved complaints brought by the respondents, who are members of the Schemes. References in the remainder of this judgment to numbers in square brackets are to paragraphs of the Determination unless I specify otherwise. I will also tend to use defined terms set out in Determination.

• The Ombudsman was highly critical of the appellants’ conduct. He concluded at [715] that every single one of the Schemes’ investments was worthless. He made findings of dishonesty in relation to all of the appellants together with other findings of breach of duty and maladministration. He ordered the appellants to pay substantial sums to the respondents and also ordered them to pay sums to the Schemes to make good the loss resulting from the Schemes’ investments.

• With permission granted by Marcus Smith J, the appellants appeal against the Determination on four grounds that are set out in paragraph 24 below.

• Some features of the appeals have given rise to difficulties. The appellants are represented both by solicitors and by Ms Pope-Williams of counsel, although she was instructed just a few days before the oral hearing and had not settled either the grounds of Appeal, the Skeleton Argument or advised on what should be included in the appellants’ bundle. The respondents, by contrast, were all unrepresented. None of the respondents submitted skeleton arguments that engaged with the appellants’ case although they did send emails to the court explaining why they considered they had been very badly treated by the appellants. Only Mr S and Mr Y attended the hearing of the appeal (by remote video link) and Mr S did not attend beyond Day 1. Only Mr Y wished to make oral submissions and I heard those after Ms Pope-Williams had presented her arguments on the appeal.

• That meant that this appeal had a different dynamic from that present in other appeals in which both sides are legally represented. Obviously, it is for the appellants to persuade me that their appeals should succeed. However, the respondents simply were not in a position to counter the arguments that the appellants were advancing. My task of considering whether the appellants’ arguments were correct therefore necessarily involved me testing those arguments and I warned Ms Pope-Williams at the beginning of her oral submissions that I would probably have more than the usual number of questions for her. She answered those questions clearly and helpfully.

• Some of the respondents’ emails to which I have referred in paragraph 4 referred to without prejudice offers made by the appellants, before the Ombudsman’s decision, to settle the dispute. I told the parties that I had seen some references to without prejudice material and asked if any application was to be made for me to recuse myself from hearing the appeal. No such application was made and, since I considered I could determine the appeal fairly, the appeal hearing proceeded and I was in due course provided with the respondents’ emails redacted to remove references to without prejudice material.

The appellants, the respondents and the Schemes in more detail

• The first appellant (Brambles) was the administrator of each of the Schemes for some period. Before Brambles took over, a company called Commerce Resources Ltd, which traded as “Pension Administration Resources” (PAR) had been the administrator of all of the Schemes for a period. Mr McNally was the sole director of PAR from 8 February 2012. A Mr Glenn Laurence House was the sole director and shareholder of Brambles.

• The other appellants were all either individual trustees of the Schemes, in the case of Mr McNally and Mr Kaigh, or corporate trustees in the case of the fourth appellant (Eleven Property) and the fifth appellant (Gilbert Trading) for various periods. The trustee of the SHK Scheme for a period was SHK Property Services Limited (SHK Property Services). SHK Property Services has been dissolved since the date of the Determination and is not party to this appeal. I refer to the trustee appellants together as the “Trustees“.

• Mr McNally was initially the sole director and shareholder of Eleven Property but on 26 June 2014, he transferred his entire interest to Mr Kaigh who became sole director and shareholder from that date ([389]). Mr Kaigh was at all material times the sole director and shareholder of Gilbert Trading ([390]).

• The respondents were by no means the only investors in the Schemes: at [300], the Ombudsman noted that there were 117 investors in all three Schemes. The Ombudsman anonymized the names of the respondents in his Determination. Before releasing this judgment in draft, my clerk contacted the respondents to ask them if they were seeking to have their names anonymised in my judgment. Since none of the respondents made such an application, their full names appear on the cover sheet to this judgment. So that this judgment can be read easily together with the Determination, I will nevertheless use the same anonymized names as the Ombudsman used. Those anonymized names can be deduced from the last letter of each respondent’s surname: for example Ms Harvey is “Ms Y”.

Continue reading this Judgment here.