In the matter of (1) Sovereign Trustees Ltd (2) 1Life Management Solutions Ltd v Patricia Lewis  EWHC 2593 (Ch), Chief Master Marsh considered the approach parties should take and issues arising on unopposed applications for orders in a Part 8 claim for the rectification of a deed amending an occupational pension scheme.
He held that:
- Rather than seeking summary judgment, it will likely be better for the claimant to apply for a disposal hearing to be fixed.
- Although other recent cases have questioned the developed practice of retaining confidentiality in opinions obtained by the defendant regarding the claim, the practice was still useful even taking into account the competing public policy of open justice.
- There is no difficulty with keeping individual documents confidential on the court file, notwithstanding the move to electronic filing.
The claimants had issued a Part 8 claim seeking rectification of a pension scheme deed. The defendant was a pensioner member of the scheme, representing all members and beneficiaries of the relevant section of the scheme. The first claimant represented all other members and beneficiaries of the scheme. The claim was not opposed at the time of the hearing.
Disposal hearing rather than summary judgment application
The claimants had applied for summary judgment under CPR Part 24.2 on the basis that the defendant had no real prospect of defending the claim and there was no other compelling reason for the case to be disposed of at trial. Chief Master Marsh noted that, although there is no bar to issuing a summary judgment application in a Part 8 claim, it will rarely be necessary to do so, and the better course (at least in Part 8 claims where the relief sought is unopposed or cannot realistically be opposed) will be for the claimant to ask the court to fix a disposal hearing (as provided for in paragraph 8.1 of Practice Direction 8A).
The tension between hearings in public and the practice of confidentiality further to paragraph 29.96 of the Chancery Guide
Chief Master Marsh commented on procedure relevant to evidence and submissions on behalf of a defendant to claims regarding pension scheme documentation, in light of the recent decisions in Girls' Day School Trust v GDST Pension Trustee Ltd  EWHC 1254 (Ch) and Saga Group Ltd and another v Paul  EWHC 2344 (Ch).
In the context of an unopposed summary judgment application in pension scheme rectification claims, a practice has developed further to paragraph 29.96 of the Chancery Guide whereby the representative defendant provides a copy of their legal advice to the court on a confidential basis and makes submissions as to the merits of the application in private. In the Sovereign Trustees case, the court had been provided with a confidential opinion from the representative defendant's counsel and Chief Master Marsh had heard submissions from him in private and in the absence of the claimants and their counsel.
Norris J, in Girls' Day School Trust, disposed of an application for summary judgment without a hearing, in a case where the parties agreed there was no need for a hearing:
- Norris J noted that the court retains a discretion to order a hearing, and would ordinarily require a hearing for two reasons: (1) it is often not an efficient use of court time for the judge to have to consider a mass of material raising potentially complex issues unassisted by the oral presentation of skilled advocates and then to have to deliver a written ruling when an ex tempore judgment may otherwise have been given; and (2) in relation to pension schemes, it is important that members should not be left with any sense that there has been "some deal done in a dark corner", and a public listing of a hearing provides assurance this is not the case.
- However, having considered all the facts, Norris J was prepared to grant summary judgment without a hearing because this was such a 'plain case' for the relevant order to be made.
- He then commented further with regards the part of the evidence marked confidential and the question of adequate publicity. He was prepared to maintain confidentiality in the defendant's counsel's opinion that had been submitted to the court as it had not been written in contemplation of disclosure outside a restricted circle, all relevant facts were set out in the court's full judgment, and justice would be done in public if the opinion were filed at court in a sealed envelope marked "Confidential: not to be opened without the leave of the judge".
- Openness was ensured, even in the absence of a public hearing, because the court would publish the judgment on BAILII and the order for rectification would not take effect for 42 days, providing an opportunity for any applications to vary or discharge the order. Further, scheme members would be informed of the judgment and provided with a copy and also the relevant BAILIII link.
In the context of a dispute as to whether a summary judgment application should be held in public or in private, His Honour Judge Hodge QC in Saga considered the legal background of the practice of keeping the representative defendant's legal opinion and submissions confidential (evolving, he said, from at least the time of the decision in Scania v Wager  EWHC 711 (Ch)).
- He considered that in the case of an unopposed summary judgment application, the defendant's hand has already been revealed by acknowledging that an application for summary judgment will not be opposed – "the hand is empty".
- In these circumstances, the most likely situation for not granting summary judgment would be where the court has identified a new point which no-one has previously considered.
- Given this, there would be little risk of prejudice, and it would be consistent with the open justice principle, if the court dealt with unopposed summary judgment applications in public, with all relevant information being made freely available, including the legal advice that has led the representative defendant to take the view that the summary judgment application should go ahead unopposed.
However, Chief Master Marsh did not follow this approach in Sovereign Trustees. His view was that the established practice of keeping the defendant's counsel's opinion confidential operated well. In particular, he considered that the confidential opinion provided to him, which explored the margins of the claimants' application, added a degree of stringency to the process which was particularly important in rectification claims, and made it possible to explore the strengths and weaknesses of the claimants' application "with a degree of candour" which might not be possible if the opinion was or became public.
For completeness, Chief Master Marsh rejected any suggestion that there would be a difficulty with maintaining the confidentiality of individual documents on the court file following the creation of the court's electronic file. He considered such a document could remain on the file but not be detectable save by authorised persons (though it is of note that submissions had been made in Saga that practical difficulties might arise in this regard and that there is a concern that keeping individual documents confidential on the court file in an era of electronic filing might not be entirely straightforward).