In the case of Went , the Pensions Ombudsman found that three trustees of the Asheridge Limited Discretionary Pension Scheme were guilty of maladministration after a complaint that they made inappropriate investments, including using the scheme assets to advance a loan to the employer and purchasing property in Florida.
The Ombudsman held that the trustees were unable to rely on the exoneration clause in the trust deed because they had knowingly committed the breaches of trust. A fourth trustee, also guilty of maladministration, but who was more removed from the employer, was, on a balance of probabilities, found to not to have knowingly committed the breach and was permitted to rely on the exoneration clause.
Comment: This determination highlights the personal risks for trustees, and the limits of exoneration clauses in the trust deed.
The case is also unusual in that trustees were found personally liable for an investment decision (although the situation in question was fairly extreme).
The Pensions Ombudsman did not consider the point that exoneration clauses are not effective in an investment context by virtue of section 33(1) of the Pensions Act 1995. This provides that a trustee's liability for failure “to take care or exercise skill in the performance of any investment functions… cannot be excluded or restricted by any instrument or agreement”.