Brambles Administration Limited & Ors v Christine Mary Harvey & Ors

Mr Justice Richards: INTRODUCTION Procedural matters

1. The appellants were involved as either trustee or manager of three registered pension schemes (the Eleven Scheme , the SHK Scheme and the Gilbert Scheme respectively and together the Schemes ). By his determination of 11 November 2024 (the Determination ) that ran to some 170 pages, the Pensions Ombudsman (the Ombudsman ) resolved complaints brought by the respondents, who are members of the Schemes. References in the remainder of this judgment to numbers in square brackets are to paragraphs of the Determination unless I specify otherwise. I will also tend to use defined terms set out in Determination.

2. The Ombudsman was highly critical of the appellants’ conduct. He concluded at [715] that every single one of the Schemes’ investments was worthless. He made findings of dishonesty in relation to all of the appellants together with other findings of breach of duty and maladministration. He ordered the appellants to pay substantial sums to the respondents and also ordered them to pay sums to the Schemes to make good the loss resulting from the Schemes’ investments.

3. With permission granted by Marcus Smith J, the appellants appeal against the Determination on four grounds that are set out in paragraph 24 below.

4. Some features of the appeals have given rise to difficulties. The appellants are represented both by solicitors and by Ms Pope-Williams of counsel, although she was instructed just a few days before the oral hearing and had not settled either the grounds of Appeal, the Skeleton Argument or advised on what should be included in the appellants’ bundle. The respondents, by contrast, were all unrepresented. None of the respondents submitted skeleton arguments that engaged with the appellants’ case although they did send emails to the court explaining why they considered they had been very badly treated by the appellants. Only Mr S and Mr Y attended the hearing of the appeal (by remote video link) and Mr S did not attend beyond Day 1. Only Mr Y wished to make oral submissions and I heard those after Ms Pope-Williams had presented her arguments on the appeal.

5. That meant that this appeal had a different dynamic from that present in other appeals in which both sides are legally represented. Obviously, it is for the appellants to persuade me that their appeals should succeed. However, the respondents simply were not in a position to counter the arguments that the appellants were advancing. My task of considering whether the appellants’ arguments were correct therefore necessarily involved me testing those arguments and I warned Ms Pope-Williams at the beginning of her oral submissions that I would probably have more than the usual number of questions for her. She answered those questions clearly and helpfully.

6. Some of the respondents’ emails to which I have referred in paragraph 4 referred to without prejudice offers made by the appellants, before the Ombudsman’s decision, to settle the dispute. I told the parties that I had seen some references to without prejudice material and asked if any application was to be made for me to recuse myself from hearing the appeal. No such application was made and, since I considered I could determine the appeal fairly, the appeal hearing proceeded and I was in due course provided with the respondents’ emails redacted to remove references to without prejudice material. The appellants, the respondents and the Schemes in more detail

7. The first appellant ( Brambles ) was the administrator of each of the Schemes for some period. Before Brambles took over, a company called Commerce Resources Ltd, which traded as “Pension Administration Resources” ( PAR) had been the administrator of all of the Schemes for a period. Mr McNally was the sole director of PAR from 8 February 2012. A Mr Glenn Laurence House was the sole director and shareholder of Brambles.

8. The other appellants were all either individual trustees of the Schemes, in the case of Mr McNally and Mr Kaigh, or corporate trustees in the case of the fourth appellant ( Eleven Property ) and the fifth appellant ( Gilbert Trading ) for various periods. The trustee of the SHK Scheme for a period was SHK Property Services Limited ( SHK Property Services ). SHK Property Services has been dissolved since the date of the Determination and is not party to this appeal. I refer to the trustee appellants together as the “ Trustees ”.

9. Mr McNally was initially the sole director and shareholder of Eleven Property but on 26 June 2014, he transferred his entire interest to Mr Kaigh who became sole director and shareholder from that date ([389]). Mr Kaigh was at all material times the sole director and shareholder of Gilbert Trading ([390]).

10. The respondents were by no means the only investors in the Schemes: at [300], the Ombudsman noted that there were 117 investors in all three Schemes. The Ombudsman anonymized the names of the respondents in his Determination. Before releasing this judgment in draft, my clerk contacted the respondents to ask them if they were seeking to have their names anonymised in my judgment. Since none of the respondents made such an application, their full names appear on the cover sheet to this judgment. So that this judgment can be read easily together with the Determination, I will nevertheless use the same anonymized names as the Ombudsman used. Those anonymized names can be deduced from the last letter of each respondent’s surname: for example Ms Harve y is “Ms Y”.

11. The Schemes invested in a variety of investments, ranging from leases of individual storage boxes at a storage facility, to shares in private companies (incorporated both in the UK and overseas) and loans to such companies. As will be seen, the appellants’ challenges to the Determination do not require a detailed understanding of each Scheme’s individual investments. It suffices to say that they were all high-risk, unregulated and highly illiquid ([471]).

12. Appendix 1 to this judgment contains a table that seeks to give an overview of each Scheme, its trustee, the investments that it made and which respondents were members of which Scheme.

13. The theme of “pensions liberation” runs throughout the Determination. Members of registered pension schemes are, in general, not able to access sums invested in that scheme until they turn 55. A pension fund that impermissibly makes available benefits to a member who is less than 55 is making an “unauthorised payment” for tax purposes which attracts a high tax liability for the member receiving the benefit and a charge on the scheme in question. All of the Schemes were involved in arrangements that were designed to circumvent these rules. The theory appeared to be that, instead of making a straightforward contribution to a Scheme, a member would “buy” an asset (X) for 100 (using illustrative figures) and would then “sell” asset X to the relevant Scheme for, say 120 (see [396]). The member would be left holding cash of 20 and the fiction was that this was a capital gain that the member had realised on a sale of asset X to the Scheme at an advantageous price rather than an early access of pension benefits.

14. That theory led to members being asked to sign “member-directed investment forms” that purportedly instructed the Schemes to apply sums held on behalf of that member in acquiring an “asset X” for a particular price. Examples of such member-directed investment forms are set out in Appendix 4 of the Determination. The first example is of a form signed by Ms Y that apparently instructs the trustees of the Eleven Scheme to purchase an interest in a lease of a storage box for a particular price.

15. The investments specified in the member-directed investment forms were pre-populated. Therefore, although she signed that form, Ms Y had not in fact approached the Eleven Scheme with a proposal that her pension be invested in leases of storage boxes ([48]). More strikingly, the Ombudsman found at [415] that none of the purported advantageous purchases and sales of assets X by the respondents ever took place. Instead, the relevant Scheme bought asset X using cash that the relevant respondent paid, or transferred in, by way of contribution to the relevant Scheme and made a cash payment (out of pension fund assets) to that respondent. In short, the Ombudsman’s finding was that the Schemes were engaged in outright pensions liberation and seeking to disguise that with sham documentation and fictitious sales of assets X. None of the appellants seek to challenge that conclusion. THE DETERMINATION AND THE GROUNDS OF APPEAL AGAINST IT Overview of the Determination

16. The Determination is both thorough and lengthy. Any attempt to summarise its entirety would itself be similarly lengthy. However, no such summary is needed given the relatively narrow scope of the appellants’ appeals. I will, therefore, summarise the Determination only at a very high level that is sufficient to understand the nature of the appeals that are brought. I have, nevertheless borne in mind the entirety of the Determination in reaching my conclusion on those appeals.

17. At [17] to [28], the Ombudsman explains why he had jurisdiction to consider the complaint brought by Ms Y and Mr S and why those complaints were not brought later than the applicable deadline. That conclusion is challenged as part of the appellants’ Ground 1.

18. At [13] to [16], the Ombudsman explained why, even though he was addressing complaints by just five members of the Schemes, he nevertheless had power to direct the Trustees to restore all assets that the Schemes had lost in consequence of their breaches of trust. The essence of the Ombudsman’s conclusion is set out at [13]: any individual beneficiary has standing to require trustees to account for their breaches of trust and is not limited simply to requiring the reinstatement of that beneficiary’s share. The appellants do not dispute that proposition of law. However, the appellants’ Ground 2 seeks to argue that each of the respondents’ investments were held on separate sub-trusts so that the Ombudsman had power only to order that the appellants reconstitute the assets of those sub-trusts, and not the assets of the Schemes more generally.

19. The Ombudsman made a number of findings which are not challenged in this appeal but which have some bearing on those aspects of the Determination that are challenged: i) At [426], the Ombudsman found that the individual Trustees knew that they were facilitating the making of “unauthorised payments” out of each Scheme and that they were doing so in breach of trust. ii) At [447], the Ombudsman found that the investments chosen by the Trustees of each Scheme were “high-risk, narrow, illiquid and undiversified”. While the appellants do not challenge that factual determination, they do challenge, as a corollary of their Ground 2, a conclusion that the Ombudsman drew from that namely that each Trustee had acted in breach of Regulation 7(2) of the Occupational Pension Schemes (Investment) Regulations 2005 (the Investment Regulations ). iii) At [461], the Ombudsman concluded that all of the Trustees had failed to obtain written advice on the suitability of investments in breach of the requirements of s36(3) and s36(4) of the Pensions Act 1995 . iv) At [470], the Ombudsman found that each of the Trustees exercised their investment powers contrary to the proper purposes of the Scheme of investing, safeguarding and providing retirement benefits and in breach of their equitable duty to exercise due skill and care.

20. Documentation relating to the Schemes contained “exoneration causes” that purported to limit or exclude the Trustees’ personal liability. The Ombudsman held that s33 of the Pensions Act 1995 prevented those exoneration clauses from restricting or limiting liability to take care or exercise skill in the performance of any investment functions. The Ombudsman’s conclusions as to the effect of s33 are not challenged. However, the Ombudsman’s conclusions to the effect that the Trustees’ dishonesty prevented them from taking the benefit of the exoneration clauses at all is challenged by the appellants’ Ground 3.

21. Mr G had invested a large amount in the Gilbert Scheme. In the autumn of 2018 he needed to realise his pension investments because of his then personal circumstances. At [162] to [205], the Ombudsman made findings as to Mr G’s increasingly desperate attempts to realise investments and Brambles’ response to them. The Ombudsman rejected the appellants’ case that Mr G thereby gave consent to a realisation of his investments at a loss, or that Mr G’s negligence contributed to that loss. That decision is challenged by Ground 4 of the appeal.

22. At [752] to [767], the Ombudsman made directions as to remedies that the appellants should give. These consisted of a mixture of (i) making payments to the appellants for their distress and inconvenience and (ii) making payments to the Schemes (plus interest) to reconstitute the funds lost. The appellants do not argue that, even if all their Grounds 1 to 4 fail, the Ombudsman’s conclusion on remedies was still wrong in law. Rather, they argue that, if they succeed in any of their Grounds 1 to 4, the amount they are directed to pay should be reduced. Since I have concluded that all of Grounds 1 to 4 fail, I see no need to summarise the Ombudsman’s detailed calculations as to remedy. The Grounds of Appeal

23. By s151(4) of the Pension Schemes Act 1993 , an appeal lies to the High Court against the Determination only on a point of law.

24. The appellants appeal on the following grounds: i) Ground 1 – The Ombudsman had no power to determine the complaints/disputes of Ms Y or Mr S, because they had referred those complaints or disputes to the Ombudsman too late. ii) Ground 2 – The Ombudsman was wrong in law to conclude that each Scheme was a single trust fund. He should have concluded that each Scheme comprised a number of separate sub-trusts, one for each member. iii) Ground 3 – The Ombudsman erred in law in his application of the test of dishonesty and so was wrong to make findings of dishonesty against the appellants. iv) Ground 4 – The Ombudsman should have found that Mr G either consented to transactions involving his funds that resulted in loss, or that Mr G was contributorily negligent in relation to those transactions, so as to reduce the liability of Gilbert Trading, Mr Kaigh and Brambles to Mr G.

25. In the usual way, Marcus Smith J considered the application for permission to appeal by reference to (i) the Grounds of Appeal, (ii) an appeal bundle and (iii) a skeleton argument, that were before him when he granted permission to appeal on 25 February 2025. As I have noted, Ms Pope-Williams was instructed just a few days before the hearing and had no involvement in settling that material. The appellants have not made any application either to augment or vary that material. Ms Pope-Williams has, therefore, advanced the appeal by reference to the original Grounds of Appeal and the material available in the original appeal bundle. As will be seen, that made her task difficult in some respects since the appeal bundle did not contain all relevant documents. GROUND 1 The statutory regime

26. The Ombudsman’s jurisdiction derives from Part X of the Pension Schemes Act 1993 . By s146(1) of that Act , the Pension Ombudsman may “investigate” and “determine” the following matters: i) a “complaint” brought on behalf of an actual or potential beneficiary of a pension scheme who alleges that he or she has “sustained injustice in consequence of maladministration in connection with any act or omission of a person responsible for management of the scheme”; and ii) any “dispute” of fact or law in relation to an occupational or personal pension scheme between a “person responsible for the management of the scheme” and an actual or potential beneficiary where that dispute is referred to the Ombudsman by or on behalf of the actual or potential beneficiary.

27. I take it to be common ground, in the absence of any suggestion from the appellants to the contrary, and given the definitions in s146(3) of the Pension Schemes Act 1993 , that all appellants were “responsible for the management of” the Schemes with which they were involved by virtue of being trustees or, in the case of Brambles, a “manager” of the relevant Schemes.

28. The Regulation 5 ( Regulation 5 ) of the Personal and Occupational Pension Schemes (Pension Ombudsman) Regulations 1996 provides as follows: 5 Time limit for making complaints and referring disputes (1) Subject to paragraphs (2) and (3) below, the Pensions Ombudsman shall not investigate a complaint or dispute if the act or omission which is the subject thereof occurred more than 3 years before the date on which the complaint or dispute was received by him in writing. (2) Where, at the date of its occurrence, the person by or in respect of whom the complaint is made or the dispute is referred was, in the opinion of the Pensions Ombudsman, unaware of the act or omission referred to in paragraph (1) above, the period of 3 years shall begin on the earliest date on which that person knew or ought reasonably to have known of its occurrence. (3) Where, in the opinion of the Pensions Ombudsman, it was reasonable for a complaint not to be made or a dispute not to be referred before the end of the period allowed under paragraphs (1) and (2) above, the Pensions Ombudsman may investigate and determine that complaint or dispute if it is received by him in writing within such further period as he considers reasonable. Ground 1 considered

29. Ground 1 involves assertions as to when Ms Y and Mr S knew, or ought reasonably to have known of acts or omissions that were the subject of their complaints or disputes as part of a challenge to the Ombudsman’s application of Regulation 5(2) and Regulation 5(3). However, I have been provided with no detail on the nature of those complaints or disputes in the appeal bundle and was referred only to the summary of those complaints or disputes contained in [2] and [3] of the Determination. I must therefore do the best I can based on those summaries.

30. Ms Pope-Williams confirmed that the appellants’ challenge under Ground 1 is confined to the four corners of Regulation 5. The appellants do not seek to make an argument like that advanced in Arjo Wiggins Limited v Ralph [2009] EWHC 3198 (Ch) ( Arjo Wiggins ) to the effect that the Limitation Act 1980 (the Limitation Act ) precluded the Ombudsman from making the determination he did on the grounds that underlying complaints were statute-barred under the Limitation Act. The appellants do rely on Arjo Wiggins but only for the proposition at [22] of the judgment of Lewison J (as he then was) to the effect that: … The words of regulation 5(2) are straightforward. They do not refer to awareness of the damage or of any other facts (unlike section 14A(6), (7) and (8) of the Limitation Act); they refer only to unawareness of the act or omission which is the subject of the complaint… Ms Y – the Ombudsman’s conclusions and reasoning

31. The Ombudsman considered that Ms Y had referred a “complaint” rather than a “dispute” as, at [1], the Ombudsman refers to his perception that all the respondents “have complained on similar points” (my emphasis).

32. At [2], the Ombudsman summarised Ms Y’s complaint as follows: 2.1 Brambles has provided her with a very poor service and has failed to respond to her requests for information. 2.2 Additionally, she is concerned that she cannot transfer out of the Eleven Scheme or sell the investment and has never received any rental return.

33. At [26], the Ombudsman expanded that summary somewhat suggesting that Ms Y was also suspicious of a “scam which had taken place on transferring into the Eleven Scheme in 2013”. Moreover, the Ombudsman’s reasoning at [27] is only consistent with the Ombudsman concluding that Ms Y was complaining of a “scam” in addition to the matters I have summarised in paragraph 32.

34. The appellants prepared a chronology of events relevant to the appeal as a whole but have not gone into any great detail on events relevant to Ms Y’s complaint. Doing the best I can with references to Ms Y in the Determination itself, I note the following findings of the Ombudsman: i) Ms Y’s complaint was notified to the Ombudsman in January 2022 ([27]). ii) In 2015, Ms Y “requested a sale of the assets underlying her pension” ([23]). As far as I can tell, the Determination does not mention Ms Y’s date of birth, but Ms Pope-Williams relayed on instructions what the appellants considered Ms Y’s date of birth to be. Ms Y would have been over 55 in 2015 and therefore it can be inferred that her request was driven by a wish to start, or prepare to start, drawing her pension. iii) Although I cannot see a specific finding to this effect, it must be the case that Ms Y received no cash in response to her requests in 2015. That is what she said in her complaint and it is difficult to see how she could have received anything in 2015 given the Ombudsman’s findings that all of the investments of the Schemes were worthless. Moreover, at [26], the Ombudsman does not doubt Ms Y’s assertion that she received nothing in 2015. iv) At [26], the Ombudsman records that Ms Y’s concerns about realisation of her investments were answered by Brambles in 2015 with the result that it was “understandable that she did not complain [to the Ombudsman] in 2015”. v) Ms Y reported Brambles to “certain authorities” in 2015 ([24]). It is not clear whether she reported the Trustees to those authorities as well. I have not been shown the details of that report, but it appeared to relate to “confusion about ownership records around her investment”.

35. In 2022, when Ms Y’s complaint was first notified to him, the Ombudsman exercised discretion under Regulation 5(3). [26] and [28] suggest that he concluded that (i) the act or omission that was the subject of Ms Y’s complaint took place in 2015, (ii) therefore, Ms Y brought her complaint later than the deadline specified in Regulation 5(1) , but (iii) the Ombudsman would exercise discretion under Regulation 5(3) to extend that deadline to 2022. The Ombudsman’s reason for exercising discretion in this way is recorded at [26]. While Ms Y knew about “peripheral issues”, such as liquidity problems, in 2015, she did not know about the “true acts and omissions” relating to the suspicion that she was the victim of a scam at that point.

36. However, the Ombudsman adopted different reasoning in the Determination. He remained of the view that the acts or omissions that were the subject of Ms Y’s complaint took place in 2015. Ms Y had therefore notified her complaint later than the deadline specified by Regulation 5(1). However, he concluded that Ms Y only knew of those acts or omissions in May 2019 following discussions with the Financial Repayment Service. It was only following those discussions that “she knew she had cause to complain about a potential scam”. He therefore concluded that Ms Y’s complaint was in-time by reference to the deadline in Regulation 5(2) .

37. At [29], the Ombudsman gave a further reason. Even if Ms Y “suspected she had been scammed as early as 2015”, so that her complaint was not in time by reference to the Regulation 5(2) time limit, the Ombudsman would exercise his discretion under Regulation 5(3) and extend the deadline specified in Regulation 5(1). He said he would do so because of ongoing health issues that Ms Y had suffered since 2015. Ms Y – the appellants’ challenge considered

38. The appellants advance the following challenges to the Ombudsman’s determination in relation to Ms Y: i) The Ombudsman should have concluded that Ms Y ought reasonably to have known of the occurrence of the acts or omissions that formed the subject of her complaint in 2015. He should, therefore, have concluded that Ms Y’s complaint was out of time for the purposes of Regulation 5(2). ii) There was no evidence before the Ombudsman to the effect that Ms Y’s health problems were the reason why she did not bring her complaint until 2022. There was, therefore, no basis for the Ombudsman to exercise his Regulation 5(3) discretion in the manner summarised in paragraph 37.

39. I suspect that the ground of appeal summarised in paragraph 38.i) is, in reality, an impermissible challenge to a factual finding. The Appellants seek to overcome that by branding it, in paragraph 11, of their skeleton argument, as a challenge to the Ombudsman’s “application of the regulations”. However, that is simply an attempt to give the challenge a different label. For the challenge to succeed, in my judgment, the appellants would need to show either that there was no basis in the evidence for the Ombudsman’s conclusion (or that the conclusion was perverse), or that the Ombudsman took into account irrelevant considerations, or ignored relevant considerations in coming to his conclusion. The ground summarised in paragraph 38.i) would not be made out simply by the appellants showing that the Ombudsman could permissibly have decided that Ms Y ought reasonably to have known of the occurrence of the relevant acts or omissions more than 3 years before she made her complaint.

40. The appellants focus on the fact that Ms Y knew that she was not receiving any cash in 2015 and had made a complaint to certain other authorities in 2015. However, the Ombudsman expressly took those matters into account. Ms Y was not just complaining about poor service, or failure to respond to requests for information. She was also complaining because she thought that the reason she was not able to access her pension in 2015 was because she had been “scammed”. The Ombudsman was quite entitled to conclude that the fact she made complaints about peripheral matters in 2015 did not mean that she ought reasonably to have known, in 2015, that she had been “scammed”.

41. Moreover, Ms Y’s concerns about her inability to access her pension in 2015 had apparently been “answered” by Brambles (see paragraph 34.iv)). Given the Ombudsman’s conclusions as to the conduct of the appellants and Brambles in relation to the Schemes, the Ombudsman was quite entitled to conclude that those “answers” counted for little and would not have caused a reasonable person to conclude that they had been “scammed”. Indeed, on the contrary, it was quite open to the Ombudsman to conclude that the answers in 2015 would have caused a reasonable person to conclude that they had not been “scammed” and that there was a more innocent explanation for the non-receipt of cash.

42. The challenge summarised in paragraph 38.ii) is even weaker. The appellants have not referred to any evidence that was before the Ombudsman as to Ms Y’s medical condition. They make the assertion that Ms Y was not herself claiming that poor health delayed her making a complaint to the Ombudsman. However, since I have not been shown what Ms Y was saying about her health, or the evidence that was before the Ombudsman as to her condition, I have no basis for a conclusion that the Ombudsman’s exercise of discretion under Regulation 5(3) was flawed.

43. I reject Ground 1 insofar as it seeks to challenge the Ombudsman’s decision affecting Ms Y. Mr S – the Ombudsman’s conclusions and reasoning

44. The Ombudsman considered that Mr S was notifying a “complaint”, rather than a “dispute”. He summarised that complaint at [3]: 3.1 He has been scammed by Brambles and the Eleven Scheme. 3.2 He received no annual statements and no advice as to how he can access his money. This has affected his mental health.

45. Again, I have been given no chronology relevant to Mr S’s complaint, but I can derive the following matters from the Determination: i) Mr S notified his complaint to the Ombudsman in “early 2022” [18]. ii) Mr S said in his oral evidence that, in 2015, he was “getting a bit dubious” about his pension in the Eleven Scheme ([18]). iii) In 2021, Mr S made “further investigations” into Brambles and became aware that there were multiple claims that Brambles had been involved in previous scams ([21]). That finding suggests that, before 2021, Mr S had already made some investigations, but I was not referred to material that might suggest what information Mr S had, or should have had, as a result.

46. At [21], the Ombudsman observed that Mr S’s acceptance, in cross-examination, that he was “getting a bit dubious” in 2015 caused him to re-evaluate whether Mr S’s complaint was made in time or not. However, the Ombudsman concluded at [21] that Mr S first knew, or ought reasonably to have known, of the acts and omissions of which he was complaining in 2021. That was a finding that Mr S’s complaint was in time by virtue of Regulation 5(1) since the complaint was notified to the Ombudsman in early 2022. Mr S – the appellants’ challenge considered

47. The appellants criticise the Ombudsman’s conclusions in relation to Mr S on the following grounds: i) Mr S admitted that he was a “getting a bit dubious” in 2015. The Ombudsman should have concluded that this meant he ought reasonably to have known of the acts and omissions that were the subject of his complaint in 2015. ii) The Ombudsman impermissibly concluded that only the outcome of the Ombudsman’s own lengthy investigations provided Mr S with the necessary knowledge or means of knowledge of the relevant acts or omissions. That involved the Ombudsman failing to have regard to the “straightforward” nature of the test as explained in Arjo Wiggins . Rather than looking at the outcome of a complex enquiry which Mr S could not know about since it had yet to take place, the Ombudsman should have focused on the matters of which Mr S was aware. Those included the fact that he was not receiving statements for years on end. The Ombudsman should therefore have concluded that Mr S had everything he needed to bring his complaint in 2015.

48. Both of these challenges also strike me as attempts to challenge factual conclusions. Given what I have said about the approach to very similar challenges involving Ms Y, I can deal with them briefly.

49. The Ombudsman explained, clearly and cogently at [20] why the mere fact that Mr S was “getting a bit dubious” in 2015 did not mean he should have known of the acts or omissions that formed the subject of his complaint. Mr S’s complaint was that he was being “scammed”. People perpetrating scams necessarily seek to hide the fact. As the Ombudsman said, a reasonable person might suspect something was wrong before they know that they have been scammed. The Ombudsman’s conclusion at [20] was a common-sense conclusion that was available to him.

50. The complaint summarised in paragraph 47.ii) seeks to challenge a conclusion that the Ombudsman did not reach. The Ombudsman’s conclusion was that Mr S ought reasonably to have known in 2021 that he was the victim of a scam. The Ombudsman stated expressly that he was not concluding that Mr S only had the necessary knowledge or means of knowledge after the Ombudsman’s own investigation was complete.

51. I reject the challenge to the Ombudsman’s conclusions in relation to Mr S’s case and, having done so, dismiss the appeal on Ground 1. GROUND 2

52. The appellants accept that, if each Scheme involved a single trust fund, the Ombudsman was able to direct that they reconstitute that entire fund (and not just the parts attributable to the complaining respondents). They do not seek to challenge the Ombudsman’s conclusion to this effect at [13] to [16]. However, they challenge the premise of that conclusion, arguing that the Trustees held the assets of the Schemes on separate “sub-trusts” for each individual member rather than on a single trust for all members collectively. From that proposition, the appellants conclude that the appellants “do not have a single liability to reconstitute the Scheme, but separate liabilities to the individual complainants”.

53. Ground 2 also resonates in relation to the Ombudsman’s findings that there was insufficient diversification in investments ([446]) which informed his findings that the Trustees exceeded their investment powers and failed in their equitable duty to exercise skill and care ([470]). The appellants argue that, if each member had their own sub-trust, that puts a different complexion on the need or otherwise for diversification of investments within each sub-trust.

54. Given a challenge of that kind, it would have been helpful to see all legal documents that had some bearing on the nature of the trusts of members’ property that the Schemes embodied. It would also have been useful to have a full understanding of the factual context in which those documents operated. However, I have not been provided with any material other than the Determination which contains extracts only from relevant documents. I can therefore do no more than consider whether the Ombudsman’s conclusion, that each Scheme comprised a single trust fund, is sustainable by reference to the extracts of documentation and other matters referred to in the Determination itself.

55. Appendix 2 to the Determination sets out some extracts from the Scheme Rules applicable to all Schemes. Clause 2 provided for the Trustees “hold the Fund upon irrevocable trusts and with and subject to the powers contained in the Rules”.

56. Clause 1.1 defines “Fund” in the following terms: “Fund” means all contributions, gifts and transfer payments made to and received by the Scheme and any other monies, investments, policies, property or other sums or assets for the time being held by the Trustees upon the trusts of the Scheme. The allocation of any part of the Fund to any Individual Fund or to the General Fund shall be notional and for the purpose of calculating benefits only.

57. This definition, when read together with Clause 2, suggests that it is the “Fund” (consisting of all contributions, gifts and transfer payments made to and received by the Scheme) that is held on trust. However, the Trustees have power to “allocate” part of that Fund to an “Individual Fund” with that allocation being “notional and for the purposes of calculating benefits only”. There is no suggestion in Clause 1 or Clause 2 that any “Individual Fund” is to be held on trusts separate from those applicable to the Fund.

58. An “Individual Fund” is defined as follows: “Individual Fund” in relation to a Member or Dependant means that part of the Fund which the Trustees determine is attributable to him having regard to: (i) (in the case of a Member only) any contributions made by him and by any other person in respect of him; (ii) (in the case of a Member only) any reduction agreed with the Member as necessary to obtain Enhanced Protection; (iii) (in the case of a Dependant only) any part of the Individual Fund of a Member designated as available for the provision of income withdrawal in accordance with the Rules following the death of that Member; (iv) any transfers made to the Scheme in respect of him; (v) any allocation or reallocation of any part of the Fund in accordance with the Rules; (vi) any pension credit or pension debit applicable to him; (vii) any income, gains or losses (whether realised or not), fees, costs and expenses borne by the Fund and any actual or prospective liabilities of the Trustees (other than liabilities to pay Benefits) or of the Scheme Administrator attributable to the Fund

59. Understandably, the appellants emphasise the point that an “Individual Fund” is defined as being part of the Fund that is “attributable to” a particular member or dependant. However, that is simply a textual indication in a definitional provision. In order to demonstrate that an Individual Fund is indeed held on a separate trust, the appellants would need to show how the definition of “Individual Fund” is actually used in operative provisions and why those operative provisions establish a sub-trust rather than a notional allocation for the purposes of calculating benefits only. This argument was not attempted in the appellants’ skeleton argument. Nor did Ms Pope-Williams’s attempt it in her oral submissions (no doubt because without full scheme documentation in the appeal bundle, she lacked the raw material with which to make such an attempt).

60. In their skeleton argument, the appellants criticised the Ombudsman’s analysis of Rule 18.1 of each Scheme’s rules which provides as follows: 18 Multiple Individual Funds 18.1 The Trustees may at any time treat any existing part of a Member's Individual Fund or any new contribution in respect of a Member as if it were a separate Individual Fund, in which case it: 18.1.1 shall constitute a separate Individual Fund for the purposes of the Rules (including without limitation this Rule 18.1); but 18.1.2 shall not constitute a separate arrangement for the purposes of the [ Finance Act 2014 ] unless the Member and Trustees expressly agree.

61. The appellants argue that this provision is neutral and says nothing about whether each member’s fund is held on a sub-trust or not. I agree. However, the Ombudsman did not express any different conclusion at [381] to [383]. Rather, in those paragraphs, the Ombudsman concluded only that he had seen no evidence that members agreed that that any separate Individual Funds should be separate “arrangements” for the purposes of Finance Act 2014 and, even if they were, that said nothing about whether separate Individual Funds were held on sub-trusts or not.

62. At [385], the Ombudsman noted that there was an additional provision relevant in the case of the Eleven Scheme only. The Establishing Trust Deed for that Scheme contained a Clause 13 that provided as follows: The Trustee shall ensure that, in relation to each Arrangement of a Member, all contributions and other amounts paid by or in respect of the Member to the Scheme as permitted by the Rules are applied in accordance with the Arrangement and that, in the case of each and every Arrangement, a separate and clearly designated account is maintained in respect of each Member’s Fund under the Scheme.

63. The Chancellor of the High Court considered identical wording in the case of Dalriada Trustees v Woodward [2012] EWHC 2162 ( Dalriada ) concluding that it represented an “accounting tool” that was applied to determine each member’s benefits rather than establishing a series of sub-trusts. The appellants argue in paragraph 30 of their skeleton argument that this case is different because, by contrast with the facts of Dalriada , members of the Schemes were “directing the trustees to invest in very specific investments” and because of those instructions, each member’s contributions should be seen as establishing separate sub-trusts.

64. I am prepared to accept that Clause 13 could, in principle, have a different legal effect from the identical wording considered in Dalriada if it was indeed being used in a different factual situation. However, the difficulty with the appellants’ position on Clause 13 is that it simply asserts that because members gave “directions to invest in very specific investments” those investments were necessarily held on sub-trusts rather than on the trust of the main “Fund”. However, that conclusion does not obviously follow: members of defined contribution pension schemes will frequently decide which assets they wish to be acquired without any suggestion that a separate sub-trust is thereby created. Some emphasis is placed on the fact that the respondents signed member-directed investment forms acknowledging that the “value of my pension will be reflected in the performance of the [asset acquired] and that the investment may be tied up for several years”. I am prepared to accept that this is consistent with the asset in question being allocated to an “Individual Fund”. However, it says almost nothing about whether the assets are held on sub-trusts.

65. Moreover, the Ombudsman did not even accept the factual premise of the appellants’ argument, to the effect that members were “directing” the Schemes to invest in specific investments. At [556], the Ombudsman found that the respondents themselves were simply issued with “pre-populated” forms that nominated particular investments and were invited to sign them. An arrangement such as this provides scant support for the proposition that investments were to be held on sub-trusts for each individual member.

66. The appellants rely on the fact that the member-directed investment forms permitted sums to be set aside from amounts contributed to the Schemes to defray costs and fees. They assert that this is suggestive of the Trustees holding assets on sub-trusts, but I do not agree. Even if assets were held on the trusts applicable to a single main “Fund” the Trustees could expect members to defray costs associated with the purchase of investments (although of course in this case, the costs have been found to be exorbitant). I can accept that costs associated with a particular member’s investments might be debited to that member’s Individual Account, but that is consistent with the “accounting tool” that the court described in Dalriada and does not compel the existence of a sub-trust arrangement.

67. The appellants argue that the Schemes were very different from typical defined contribution pension funds in the sense that each member understood that their benefits would be driven only by the performance of “their” investments without the “pooling” effect that is found in other schemes in which multiple members share in the performance of a single pool of assets. This too is a simple assertion about a state of affairs that is not grounded in a sufficiently detailed analysis of the legal documents that constituted the trust arrangement to displace the Ombudsman’s conclusion.

68. Nor even is the absence of pooling demonstrated on the facts. For example, when Mr S joined the Eleven Scheme, £13,189 of his funds were invested in shares in Harper International Consultants Limited. There must have been other members of the Eleven Scheme who were investing in Harper International Consultants Limited, because the Eleven Scheme was said to have invested £114,005 in shares in that company. Mr S must have been sharing in the risks and rewards of Harper International Consultants Limited with others, even if he was not doing so with all members of the Eleven Scheme.

69. The appellants criticise the Ombudsman’s reasoning at [384] where he concluded that the fact that various assets, such as shares or registered land, were registered in the name of the relevant Scheme or Trustee Company, and not in the name of any individual, pointed against the existence of sub-trusts. There is little force in that criticism. I agree that, if an asset were registered in the name of a Trustee only , that would be a neutral indication since conceptually that Trustee might hold the assets as part of a “Fund” for multiple beneficiaries, or on sub-trust for a single beneficiary. However, if an asset was, for example registered in the name of a Trustee “as trustee for [a specified Scheme]” rather than “as trustee for [a specified individual]” that might indeed point against the existence of sub-trusts as the Ombudsman concluded.

70. The appeal on Ground 2 is dismissed. GROUND 3 The Ombudsman’s conclusions

71. As noted in paragraph 20, s33 of the Pensions Act 1995 imposed some limitations on the Trustees’ ability to rely on exoneration clauses to limit their liability. The Ombudsman’s conclusions on the scope of s33 are not challenged.

72. However, it remained possible that the Trustees’ liability in relation to some defaults could be limited or excluded by the exoneration clauses notwithstanding s33 of the Pensions Act 1995 . The terms of the exoneration clauses were set out at [594] and [595]. As summarised at [597] those exoneration clauses raised the questions of whether the Trustees’ actions involved “personal conscious bad faith” or “their own wilful neglect or default”. At [598] to [599], the Ombudsman concluded that there was no practical difference between the scope of the two exoneration clauses based on this difference in wording. That conclusion is not challenged.

73. Moreover at [600], the Ombudsman concluded that “personal conscious bad faith”, “actual fraud” and “wilful default” were synonymous expressions. I express no conclusion on whether that is correct or not since no party to this appeal seeks to argue otherwise. The appellants are prepared to accept for the purposes of this appeal that to the extent they were “dishonest” in the sense set out in Ivey v Genting Casinos Ltd t/a Crockfords [2017] UKSC 67 ( Ivey v Genting ), they are not entitled to the benefit of the exoneration clauses.

74. The Ombudsman set out an analysis of the meaning of “dishonesty” at [601] to [611]. I will not summarise that analysis since, in light of the points I have made in paragraphs 71 and 73 above, the focus of the appeal on Ground 3 is on the Ombudsman’s conclusions that the matters he referred to at [615] to [650] involved “dishonesty” in the Ivey v Genting sense. I therefore focus on the Ombudsman’s conclusions in those paragraphs.

75. In paragraphs [615] to [643], the Ombudsman considered specific investments that had been made. His analysis in these sections followed a similar pattern. First, he considered features of the investments in question and the circumstances in which they were made. Second, he commented on each relevant individual Trustee’s state of mind, and subjective knowledge, when making those investments. Finally, he considered whether an ordinary decent person would believe the Trustees to be behaving dishonestly in the light of his findings on those matters. The Ombudsman’s overall conclusion was that in relation to specific investments (the storage units at Strongbox, 3TC House, POD Estates Limited, Tennyson Property Investment Limited, GBT Partnership Limited, Harper International Consultants Limited, Priority Solutions Limited, and Great Moor Street Bolton) the Individual Trustees had indeed behaved dishonestly.

76. At [644] and [645], the Ombudsman concluded that Mr McNally behaved dishonestly in relation to the payment of excessive management fees.

77. At [646] to [650], the Ombudsman concluded that Mr Kaigh, Mr McNally and Brambles behaved dishonestly in relation to the administration of the Schemes.

78. The Ombudsman’s overall conclusion was that the Trustees’ dishonesty precluded them from taking any benefit from the exoneration clauses. The challenges to the Ombudsman’s conclusions on dishonesty

79. The appellants seek to challenge the Ombudsman’s conclusions on dishonesty in part because they hope that, if those conclusions are varied, they would be able to rely on the exoneration clauses to a greater extent. The extracts from the exoneration clauses set out at [594] and [595] suggest that, of the appellants, only the Trustees could conceptually benefit from the exoneration clauses. It is not obvious that Brambles would be entitled to rely on those clauses. However, Ground 3 also seeks to challenge the Ombudsman’s conclusions on Brambles’ dishonesty perhaps because, as Ms Pope-Williams explained in her submissions, that finding is professionally damaging.

80. The appellants focus their challenge on the Ombudsman’s conclusions of dishonesty applying the test in Ivey v Genting . Ms Pope-Williams’s oral submissions proceeded on the basis that the appellants do not need to displace other findings of the Ombudsman on (i) the test of dishonesty based on Fattal v Walbrook Trustees (Jersey) Limited [2010] EWHC 2767, or (ii) on the concept of “wilful default” as explained in cases such as Armitage v Nurse [1997] EWCA Civ 1279 .

81. Moreover, the appellants’ challenge is to the findings of Ivey v Genting dishonesty set out at [615] to [650]. They do not argue that those findings are insufficient to support the Ombudsman’s conclusion on the exoneration clauses. They accept that, if those findings as to dishonesty stand, then the exoneration clauses cannot be relied upon. The appellants’ case is that the findings at [615] to [650] were wrongly made.

82. Moreover, the appellants’ case that the findings on dishonesty were wrongly made is narrow in scope. They argue that, when the Ombudsman assessed the appellants’ conduct, he held them to too high a standard by failing to acknowledge that the appellants did not have the level of knowledge that a professional trustee would have and instead had a “much lower level of knowledge and experience”. Ground 3 considered

83. The appellants say that, in deciding whether they were dishonest, the Ombudsman should have applied the following approach set out at [74] of the judgment of Lord Hughes in Ivey v Genting :

74. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

84. The Ombudsman has made extensive findings on the subjective question of what the appellants knew or believed. Being a subjective question, those findings do not depend on the appellants’ level of experience in the pensions industry: in short they knew what they knew. Findings on the appellants’ subjective knowledge are not challenged. Therefore, Ground 3 must necessarily be a challenge to the way in which the Ombudsman decided whether, applying the standards of ordinary decent people, the appellants’ conduct was dishonest. An ordinary decent person would be expected to make allowance for any lack of sophistication on the appellants’ part. Therefore, in asserting that the Ombudsman held them to “too high a standard”, the appellants are, in effect, seeking to displace his conclusions as to how much allowance ordinary decent people would have made for their asserted inexperience in the pensions industry. That strikes me as a challenge to a conclusion of fact which is proscribed by s151(4) of the Pension Schemes Act 1993 .

85. I will, therefore, approach Ground 3 in the same way as the challenge to an evaluative factual conclusion that was made in Ground 1. I ask, not whether I agree with the Ombudsman’s conclusion, but whether in reaching it he either (i) reached a conclusion that was not available to him on the evidence, or which was perverse, (ii) ignored relevant considerations or (iii) took into account irrelevant considerations.

86. It is clear that, in reaching his conclusions at [615] to [650], the Ombudsman was taking into account all relevant considerations, and only relevant considerations. The appellants are not arguing that the Ombudsman failed to have regard at all to their asserted lack of experience. Indeed, at [610], the Ombudsman commented specifically on Mr McNally’s and Mr Kaigh’s experience in being trustees of a pension fund. The appellants’ argument is that, having noted the extent of the individual Trustees’ experience, the Ombudsman reached a conclusion on dishonesty that was not available to him.

87. Approached in that way, Ground 3 must fail since in every single area in which the Ombudsman made findings of dishonesty there were cogent factual findings that amply support a conclusion that an ordinary decent person would find the conduct dishonest whatever the appellants’ degree of experience in the pensions industry: i) In relation to the storage units, the Ombudsman found at [617.3] that, “[i]n investing Ms Y’s and Mr G’s funds in Strongbox Self-Storage pods, Mr McNally and Mr Kaigh knew they were distributing their funds to parties in a network who would misappropriate the Scheme’s assets”. ii) The investment in 3TC House resulted in a finding of dishonesty against Mr Kaigh only. It was amply justified by the Ombudsman’s finding at [619], [620] and [622] that Mr Kaigh knew (i) that he was making investments otherwise than for the proper purposes of the SHK Scheme and the Gilbert Scheme and (ii) that the investment would benefit both Mr Kaigh and his acquaintances at the expense of members of those Schemes. iii) In relation to POD Estates Limited, the Ombudsman found at [623] and [624] that both Mr McNally and Mr Kaigh knew that a “benefit” (from their perspective) of an investment in that company was that its incorporation offshore would “avoid regulatory scrutiny and hamper any attempts to reclaim moneys”. Moreover, the Ombudsman concluded that it was “highly likely that the investment was calculated to disburse the Eleven Scheme’s funds for Mr Kaigh’s advantage”. Given that both Mr McNally and Mr Kaigh had similar states of knowledge, the Ombudsman concluded that it did not matter which of the two actually selected shares in POD Estates Limited as an investment. iv) The investment in Tennyson Property Investments Limited ( Tennyson ) resulted in a finding of dishonesty against Mr Kaigh only. The Ombudsman concluded at [627] and [628] that Mr Kaigh deliberately made the investments in Tennyson otherwise than for the proper purposes of the investing Schemes and otherwise in the best financial interests of members of those Schemes. Those investments were intentionally made, not for the benefit of Scheme members, but for Mr Kaigh’s own advantage. v) The investment in GBT Partnership Limited ( GBT Partnership ) also resulted in a finding of dishonesty against Mr Kaigh only. At [630] to [632], the Ombudsman found that Mr Kaigh consciously and deliberately invested Scheme funds in GBT Partnership otherwise than for proper purposes of the investing Schemes and not in the members’ best financial interests. He did so as part of a design to “deprive members of the Gilbert Scheme and SHK Scheme of their pension funds to the advantage of his own contacts”. vi) The investments in Harper International Consultants Limited ( Harper International Consultants ) resulted in findings of dishonesty against Mr McNally only. The Ombudsman concluded at [633] to [636] that Mr McNally intentionally ensured that sums were invested in Harper International Consultants, an offshore company, “to assist in hiding the balance of funds which had not been liberated and paid to members” and to put assets “intentionally beyond [members’] reach”. vii) The investments in Priority Solutions Limited resulted in findings of dishonesty against Mr Kaigh. The Ombudsman concluded at [638] to [640] that Priority Solutions Limited was “purposefully selected by Mr Kaigh as a bogus investment”. In selecting that “bogus investment” Mr Kaigh was seeking to distract members’ attention from the fact that, putting aside the relatively modest sums “liberated” from their pension schemes (see paragraph 13 above) the balance was to be misappropriated and invested otherwise than for members’ benefits. viii) The investment in Great Moor Street Bolton resulted in a finding of dishonesty against Mr Kaigh only. The Ombudsman found at [641] to [643] that Mr Kaigh deliberately made investments that were not in the best financial interests of members of the Gilbert Scheme and part of his purpose in doing so was to “prevent any return of funds to members”. ix) At [644], the Ombudsman found that Mr Kaigh and Mr McNally “paid out grossly excessive sums [by way of administration fees] in breach of statutory requirements”. In Mr McNally’s case this was an “intentional arrangement designed to advantage himself” because he was sole director of the administration company (presumably PAR at the time) and thus acting as both payer and recipient who stood to gain from the “exorbitant” fees. x) At [645], the Ombudsman found that, although Mr Kaigh did not benefit directly from the excessive administration fees, he was “working with Mr McNally to diminish the SHK Scheme and Gilbert Scheme members’ pots and move funds outside the two trusts”. xi) The respondents had all commented on difficulties that they experienced in attempting to get in contact with Brambles, procure up-to-date benefit statements or transfer out of their respective Schemes. The Ombudsman concluded at [647] that these difficulties arose because of Brambles’ dishonest intention to conceal the Schemes’ inability to realise any proceeds either for providing benefits or for transferring assets to other pension schemes. xii) The Ombudsman concluded at [649] that Mr Kaigh deliberately declined to supervise Brambles or to make himself available to members and did so as part of the plan to obfuscate the true nature of the transactions which had been made with the respondents’ funds. He decided that Mr Kaigh’s behaviour in this regard was dishonest. The Ombudsman declined to make a finding of dishonesty in relation to Mr McNally’s involvement in deflecting members’ enquiries since he vacated office as Individual Trustee of the Eleven Scheme soon after the relevant transactions took effect.

88. Perhaps a factual case could be made to the effect that, given the respondents’ asserted lack of experience in the pensions industry, an ordinary decent person might have made allowance for a lack of realisation as to how “exorbitant” the fees were (see paragraph 87.x)) or how dire the Schemes’ financial positions were (see paragraph 87.xi)). However, the Ombudsman was not bound to accept that factual case and his findings in those paragraphs support a conclusion of dishonesty.

89. Conscious, no doubt, of the hard-hitting nature of the Ombudsman’s conclusions set out in paragraph 87, at points in her oral submissions, Ms Pope-Williams sought to argue that some of those conclusions were not properly explained or reasoned. However, the respondents have no permission to challenge the Determination on that ground.

90. Ms Pope-Williams also appeared to argue that the force of the Ombudsman’s factual findings was diminished because they were made without hearing any of the appellants’ evidence tested in cross-examination. That does not form a ground of appeal. In any event, as noted in [613], the Ombudsman invited Mr Kaigh and Mr McNally to attend an oral hearing for cross-examination but they refused to do so. The Determination shows the appellants raising concerns about “bias” on the Ombudsman’s part and some reasons for non-attendance are referred to at [701] to [702]. The appellants have not sought to raise issues of bias in their Grounds of Appeal. Nor have they sought to challenge the Ombudsman’s case-management decisions on the process by which he would consider evidence. I therefore see no reason to look behind the Ombudsman’s hard-hitting conclusions of fact, or to doubt the inference he drew at [613] to the effect that Mr Kaigh and Mr McNally were declining to attend the hearing because they were unable to testify as to the reasonableness of their explanations for the various breaches of trust and maladministration that had taken place.

91. Also in her oral submissions, Ms Pope-Williams invited the court to go through the Ombudsman’s various findings and determine which were consistent with dishonesty and which were not. As I understood it, the appellants make this request with a view to being relieved of the stigma of some at least of the findings of dishonesty, even if the Ombudsman’s overall conclusion is not set aside. I see no utility in that exercise. The function of this appeal is to determine whether the Ombudsman’s Determination should be set aside or varied on the grounds advanced. The reasons I have set out above lead me to the clear conclusion that the appeal on Ground 3 should fail and I see no point, therefore, in parsing individual findings. GROUND 4

92. By Ground 4, the appellants seek to argue that Mr G gave consent to a realisation of his investments through the Gilbert Scheme and that this consent should operate to reduce the payments that the appellants must make in respect of the assets of the Gilbert Scheme.

93. However, Ms Pope-Williams realistically accepted in her submissions that, if Ground 3 failed so that the findings of dishonesty against the appellants stood, the appellants would not be able to establish that Mr G gave the necessary “consent”. Moreover, she accepted that there could be no “contributory negligence” if Mr G was the victim of dishonesty as the Ombudsman found.

94. Ground 3 has failed and therefore Ground 4 does not need to be considered. DISPOSITION

95. The appellants’ appeals are dismissed on all grounds. APPENDIX 1 – THE SCHEMES AND THEIR INVESTMENTS Scheme Trustees Investments and nature Respondents Eleven Scheme - Mr McNally (23 April 2012 to 25 June 2014) - Mr Kaigh (25 June 2014 to 14 July 2016) - Eleven Property (14 July 2016 onwards) - Storage units at Strongbox Self-Storage (lease) - Priority Solutions Limited (shares) - Harper International Consultants Ltd (shares) - Turcotte Corporation Ltd (shares) - POD Estates Ltd (shares) - Capital Bridging Finance Solutions Ltd (loan) Ms Y Mr S SHK Scheme - Mr Kaigh (from 10 July 2012 to 14 July 2016) - SHK Property Services (14 July 2016 onwards) - Capital Bridging Finance Solutions Ltd (loan) - Capital Developments Waterloo Limited (loan) - Tennyson Property Investments Ltd (shares) - Storage units (lease) - Priority Solutions Ltd (shares) - GBT Partnership Ltd (shares) - TMG Swansea Ltd (shares) - Fleet Street Liverpool Ltd (unknown) - 3TC House (unknown) - Merderco (Huddersfield) Ltd (shares) Mr E Mr Y Gilbert Scheme - Mr Kaigh (from 12 July 2012 to 14 July 2016) - Gilbert Trading (14 July 2016 onwards) - Harper International Consultants Ltd (shares) - Gematria Estates Ltd (shares) - 3TC House office units (lease) - Capital Bridging Finance Solutions Ltd (loan) - Turcotte Corporation Ltd (shares) - Strongbox storage units (lease) - Mederco Limited (loan) - Capital Developments Waterloo Ltd (loan) - Great Moor Street Bolton (land) - Tennyson Property Investments Ltd (shares) - Priority Solutions Ltd (shares) - GBT Partnership Limited (shares) - One Islington Plaza Limited (shares) Mr G