Low & Bonar PLC and Low & Bonar Pension Trustees Limited v Mercer Limited also concerned a purported scheme amendment to equalise normal retirement ages (from age 60 for women and 65 for men, to age 65 for both sexes).
The decision to equalise to age 65 was taken at board level at the employer company (and a resolution was recorded in the board minutes). This decision was also noted in the minutes of a meeting of the trustees, together with a resolution by the trustees to implement the change. Both meetings took place in 1991.
The scheme rules specified that any changes to the rules were required to be made "by deed". A deed making the change was not executed until 2002 (in the form of a complete rules rewrite).
The Court held that the word "deed" had no technical meaning in Scots law. However, its key characteristics are that (i) it should have some degree of formality, and (ii) demonstrate an intention to create legal relations.
The Court held that these requirements for formality/legal relations were met by the board minutes of the principal employer and trustees (and, therefore, that equalisation had been validly implemented in 1991).
This very wide interpretation of what constitutes a deed will be welcomed by employers and trustees of schemes subject to Scottish law, but is of no help to schemes governed by English law. Knell (above) is the latest in a long line of cases to adhere to a strict interpretation of scheme amendment powers. In the absence of exceptional circumstances, an announcement (or board minutes) are unlikely to be enough to satisfy the terms of an amendment power which specifies that changes are to be made by deed.