PS Independent Trustees Ltd & Ors v. Kershaw & Ors [2008] ScotCS CSOH_78 (23 May 2008)

PS Independent Trustees Ltd & Ors v. Kershaw & Ors [2008] ScotCS CSOH_78 (23 May 2008)

Averments against actuaries are relevant and sufficiently specified to proceed to proof before answer; disciplinary findings may be referred to but are not determinative. Claims against trustees for investment switch and expenses lack sufficient averments of fact to justify gross negligence or reckless disregard; legal labels alone are insufficient. Trustees' admissions and lack of advice on timing undermine investment claim. Expenses claim lacks factual basis and specification. Claims against trustees excluded from probation; claims against actuaries allowed to proceed.

Citation
[2008] ScotCS CSOH_78
Parties
Pursuers: PS Independent Trustees Limited and Others; Defenders: David Kershaw and Others; Defenders: First & Second Defenders (Scheme Actuary and Employers); Defender: Third Defender; Defender: Fourth Defender; Defender: Fifth Defender
Jurisdiction
Scotland
Judgment Date
23 May 2008
Procedural Posture
Civil / Procedure Roll Discussion; Interlocutory Ruling on Relevancy and Specification
Outcome
Claims against actuaries allowed to proceed to proof before answer; claims against trustees excluded from probation.
Legal Topics
Trustee Liability, Actuarial Negligence, Quantification of Loss, Conflict of Interest, Duty of Care, Disciplinary Proceedings Relevance
Trusts and Pensions Professional Negligence Contract Law Trustee Liability Actuarial Negligence Quantification of Loss Conflict of Interest Duty of Care +1 more

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Parties

PS Independent Trustees Limited and Others

Pursuers

David Kershaw and Others

Defenders

First & Second Defenders (Scheme Actuary and Employers)

Defenders

Third Defender

Defender

Fourth Defender

Defender

Fifth Defender

Defender

Procedural Posture

Civil / Procedure Roll Discussion; Interlocutory Ruling on Relevancy and Specification

Legal Issues

  1. 1 Whether averments against actuaries and trustees are relevant and sufficiently specified to proceed to proof
  2. 2 Whether disciplinary findings against actuary are admissible/relevant
  3. 3 Whether trustees' failure to implement investment switch constitutes gross negligence or reckless disregard

Ratio Decidendi

Averments against actuaries are relevant and sufficiently specified to proceed to proof before answer; disciplinary findings may be referred to but are not determinative. Claims against trustees for investment switch and expenses lack sufficient averments of fact to justify gross negligence or reckless disregard; legal labels alone are insufficient. Trustees' admissions and lack of advice on timing undermine investment claim. Expenses claim lacks factual basis and specification. Claims against trustees excluded from probation; claims against actuaries allowed to proceed.

Court Disposition

Claims against actuaries allowed to proceed to proof before answer; claims against trustees excluded from probation.

Orders

  • Proof before answer allowed for claims against actuaries under contributions, early retirements, and expenses heads.
  • Claims against trustees for investment switch and expenses excluded from probation.