Burley v Joseph W Burley and Partners Ltd & Anor, Court of Appeal - Civil Division, February 18, 2004, [2004] EWCA Civ 248

Resolution Date:February 18, 2004
Issuing Organization:Civil Division
Actores:Burley v Joseph W Burley and Partners Ltd & Anor
 
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SMITH BERNAL WORDWAVE

A3/2003/2107/(A)/(B)

Neutral Citation Number: [2004] EWCA Civ 248

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

CHANCERY DIVISION

(HHJ Bush)

Royal Courts of Justice

Strand

London, WC2

Wednesday, 18th February 2004

B E F O R E:

LORD JUSTICE BROOKE

(Vice President of the Court of Appeal, Civil Division)

LORD JUSTICE CHADWICK

LORD JUSTICE SCOTT BAKER

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BURLEY

Appellant

- v-

JOSEPH W BURLEY AND PARTNERS LIMITED AND ANOTHER

Respondent

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(Computer- Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

- - - - - - -

MR MOERAN (instructed by Peel and Co, Sheffield S3 8PQ) appeared on behalf of the Appellant

MR NEWMAN (instructed by AMS Law, Sheffield S1 2DH) appeared on behalf of the Respondent

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J U D G M E N T

  1. LORD JUSTICE BAKER: There is before the Court an appeal by Mr Kenneth Burley against the decision of His Honour Judge Bush, sitting as a High Court judge, on 5th September of last year when he decided two preliminary issues in favour of the respondents. The second of those preliminary issues has been resolved by a consent order to which I shall refer in due course.

  2. The case has something of a history that it is necessary to recite briefly. Kenneth Burley, who is 79, was employed by the Automobile Association from 1947 to 1966. In 1966 he left the AA and went to work for Joseph Burley and Partners, who at the time comprised the appellant's brother, Joseph, and his nephew Alan. Joseph died in 1975 and the firm of Joseph Burley and Partners was incorporated into a limited company. The company is the first respondent and Alan Burley the second respondent. Nothing turns on the incorporation.

  3. The appellant would, if he had continued working for the AA, have been entitled to a pension of two thirds of his final salary at 65. His case is that it was agreed with the respondents that, if he left the AA and went to work for them, his pension would be at least as good as the one provided by the AA. He was to receive two thirds of his final salary less whatever he was to receive under the AA pension.

  4. On 1st August 1966 he left the AA and started work with the respondents. That same month the Norwich Union provided two policies to secure pension benefits; one was a money purchase scheme and the other a death in service life insurance policy. The respondents agreed to fund these policies. Two further policies of a similar nature were entered into in 1968.

  5. In 1972 the respondents set up a one sixtieth accrual final salary occupation scheme. Benefits from the 1966 and 1968 policies were paid into the 1972 scheme. Under the 1972 scheme, due to his age, the appellant would not normally have been entitled to a pension of two thirds of his final salary at normal retirement date. His case is that he discussed his concerns with his brother who assured him that his pension under the new scheme would still be two thirds of final salary, less the AA pension.

  6. In 1990 the appellant became 65, but the 1972 scheme did not produce a pension which, after taking account of the AA pension, would have left him anywhere near two thirds of final salary. He decided to work on.

  7. In the proceedings that he has brought he claims damages broadly under the following heads: (1) loss of lump sum; (2) arrears of pension to the date of trial; and (3) enough money to buy an annuity on the open market to compensate for the future loss of pension. The case was fixed for trial on 27th October 2001, but the respondents applied very shortly before the trial for summary judgment on the main aspect of the claim. Their application succeeded. The main aspect of the claim was dismissed. The parties compromised the remainder of the claim.

  8. The appellant, however, appealed against the summary judgment, and on 2nd July 2002 the Court of Appeal allowed the appeal.

  9. The case was due to be heard in the High Court on 15th December of last year with a time estimate of no less than five days. The balance of the claim had, of course, been compromised. The respondents, from late 2002 or early 2003, were contending that, even if the appellant succeeded in principle on liability, he would suffer no loss for two reasons. (1) That the level of final remuneration to calculate the two thirds pension was fixed by reason of the order of 27th November 2001 at the figure advanced by the respondents in their defence, and (2) even if entitled to a two thirds pension, the appellant had received more from the Norwich Union than he was allowed under the Inland Revenue maxima.

  10. The appellant did not and does not accept either of these points, but both parties agreed that the court should resolve two preliminary issues in...

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