A recent group of decisions from the Court of Session has shed new light on the application of the catchy Latin maxim omnia praesumuntur rite et solemniter acta esse. In translation, the phrase means “all things presumed to have been done duly and in the usual manner” or, for the sake of brevity, the presumption of regularity.
Johnston Press Plc (as employers under a number of pension schemes which had been absorbed into the Johnston Press pension scheme) and the trustees of these schemes (the Pursuers) brought four separate actions in Scotland against the schemes’ former pensions consultancy and administration providers, Sedgwick Noble Lowndes Limited and Mercer Limited (the Defenders).
In 1990 and 1994, decisions from the European Court of Justice (Barber v Guardian Royal Exchange Assurance Group and Coloroll Pension Trustees Ltd v Russell respectively) had established the requirement for the trustees of pension schemes in the UK to amend the retirement ages of male and female beneficiaries and make them equal, or fall foul of rules relating to discrimination.
On reviewing matters some two decades later, the Pursuers became concerned over the lack of available documentation confirming that this equalisation exercise had been properly carried out for each of the schemes. It asked the Commercial Court judge, Lord Tyre, to make a preliminary decision on that point. In the event that the court should determine that the appropriate steps had not taken place, they sought to recover damages from the Defenders.
Presumption of Regularity
At over twenty years’ distance from the events in question, there were substantial difficulties in establishing the facts of each case. Contemporary documentation was largely incomplete, and many of the witnesses who might have provided an account of what took place were not available.
In light of this, a joint bundle of documents and a Joint Minute of Admissions being agreed, with no oral evidence being led, the Court was asked by the Defenders to invoke the presumption of regularity, noting that it had recently been applied by the Court of Session in another pensions case, Trustees of the Scottish Solicitors Staff Pension Fund v Pattison & Sim. Reliance was made on Lord Drummond Young’s endorsement, in that case, of Lord Halsbury’s comment in Bain v Asset Co, that the matter “rested on broad common sense rather than on any question of technical law”; and also on Lord Simonds comment from Morris v Kanssen in 1946 that “the wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order”.
In circumstances where there was such uncertainty, and having proper regard to the interests of the beneficiaries, the Pursuers invited the Court to test the Defenders’ assertion that the amendments had been made.
Applying the Presumption
Lord Tyre accepted that the presumption would require to be relied on – and should be applied – in relation to each of the schemes. Throughout the Opinion an emphasis was placed on the absence of evidence to rebut the presumption, rather than on the strength of positive evidence that the equalisation process had been properly carried out.
A number of observations made by Lord Tyre, albeit in the specific context of the agreed evidence before the Court, were of particular interest and may prove to be capable of wider application:
- Where there is no evidence of a procedural challenge having been made at the time of a decision, it accords with common sense for parties to proceed on the basis that that decision was made.
- Where contemporary documents survive, such as announcements and cover letters, which are made ‘in the company’s hand’, the presumption can be used to support a view that the documents were executed properly. The Court need not be unduly technical in considering exactly how execution came about.
- Where there is no contemporaneous evidence to suggest that a decision was made by a body required to make that decision, the presumption could still apply – as long as there was also no evidence that the decision was not taken. It also seems clear that the substantial measure of agreement between the parties about the facts was given weight by the Court: had there been any significant dispute about the extent of the available documentary evidence, for example, it is difficult to envisage that the presumption could have been relied on to such an extent.
No doubt, the cases in which applications to the Court are made, with such reliance on the presumption of regularity, will continue to be rare and will be considered with considerable caution. However, in relation to historical events and administrative actions, where there are obvious logistical challenges in producing documentary evidence and there is agreement between the parties on the likely explanation for the absence of such evidence, the Johnston Press decision should be kept firmly in mind.
It is evident that the passage of time in each of the four cases was of vital importance: there is nothing to suggest that the presumption of regularity should – or could – be applied where the events under scrutiny were more recent and documentary and evidence of witnesses to fact would still reasonably be accessible.
On February 23, 2017