A claim by trustees against an insolvent participating employer (who has ceased to participate in the pension scheme) for its share of the scheme deficit is a contingent obligation at the date of winding up and is admissible in the winding-up. This follows the decision by the Outer House of the Court of Session in Scotland in Burton, Re Direction of Assets [2010] CSOH 174.

In brief, Ben Line Steamers Limited (the "Company") had participated in the industry-wide Merchant Navy Officers' Pension Fund between 1978 and 1999. It left the Fund in January 1995 when it ceased to have any employees in the Fund. In March 2000, the Company went into winding up.

In August 2006, the trustees of the Fund submitted a demand to the Company for its share of the deficit in the Fund (calculated at £20,198,880 on the buy-out-basis). This liability had been calculated by reference to the Fund rules as at August 2006, taking into account amendments which had been made to the rules after the insolvency of the Company. The rules, as amended, provided that all employers who had participated in the Fund since 1978 were liable to pay additional contributions and that these would be calculated on the buy-out basis where an employer was insolvent.

The Court found that the trustees' claim was a debt that was in existence at the date of winding-up. It was therefore admissible in the winding-up and should be paid in full, regardless of the fact that the claim had been calculated on the basis of changes made after the Company had left the Fund.

The Court was heavily persuaded by considerations of public policy in reaching its decision and maintained, as a matter of general principle, that the Company's assets must remain available to meet creditors' claims before any surplus could be returned to the Company's shareholders.

Comment: Although this is a Scottish case, it does give useful guidance as to how a similar issue might be approached by the English courts.