Memorandum by the Lord Chancellor's Department
RULES 2000 (S.I. 2000/2267)
1. The Lord Chancellor's Department submits this
memorandum in response to the Committee's request dated 8 November
2000, on the following points.
2. The first point is:
Explain the reference to rule
4(a) in rule 2(3)(a).
In an earlier draft, the provision which is now rule
4 was rule 4(b), and there was a sub-paragraph (a) inserting in
the Arrangement of Rules the entry "2.70 Pensions".
This was seen to be otiose and was deleted, but unfortunately
no consequential amendment was made in rule 2(3)(a) deleting the
reference to rule 4(a). The Department apologises for this oversight,
but would point out that rule 4 has no substantive effect.
3. The second point is:
Explain the reference, in paragraph
5(c) and (d) of rule 2.70 of the 1991 Rules as substituted by
rule 9, to "a valuation of pension rights or benefits...which
has been furnished or requested pursuant to" section 94(1)(a),
(aa) or (b) of the Pension Schemes Act 1993.
In paragraphs 4 to 8 below:
"the 1993 Act"
means the Pensions Schemes Act 1993;
"the regulations" means the Divorce etc.
(Pensions) Regulations 2000 (S.I. 2000/1123);
"the transfer regulations" means the regulations
listed in sub-paragraphs (a), (b) and (d) of rule 2.70(5); and
a reference to any rule by number alone means the
rule so numbered in the Family Proceedings Rules 1991, as amended
by the instrument under consideration.
4. The wording of rule 2.70(5) was taken from regulation
3(2) of the regulations. The purpose of regulation 3 was that,
in setting a value for a person's pension rights for the purpose
of ancillary relief proceedings, the court should be allowed to
take account, not only of valuations furnished specifically for
the purposes of ancillary relief proceedings, but also of any
valuation made in the course of the last year for the purpose
of the regime of transfer values under the 1993 Act. Similarly
the purpose of rule 2.70(5) is that, if such a valuation is available,
the party with pension rights should not be required to obtain
a fresh valuation from the administrators of his pension scheme.
5. It is clearly necessary that the definition of
a relevant valuation should be the same for both purposes. For
this reason, the definition in rule 2.70(5) exactly follows that
in the regulations, which were made on 14th April 2000. In both
instruments, the need was for a definition including any information
furnished or valuation made for the purposes of the regime of
cash equivalent transfer values contained in Chapter IV of Part
IV of the 1993 Act.
6. The essence of that regime is contained in section
94(1) of the 1993 Act, which gives a member of a pension scheme
the right to the cash equivalent of his accrued benefits under
the scheme in certain events. The rest of Chapter IV of Part IV
consists of machinery for assessing that cash equivalent and for
giving effect to the member's right to it. In addition, section
113 of the 1993 Act provides that the Secretary of State may make
regulations conferring on members the right to information about
their pension schemes, and the transfer regulations are made under
that power. The transfer regulations provide that a member of
a pension scheme is entitled to request, at intervals of not less
than twelve months, a valuation of his accrued benefits, on the
same basis as if the events which gave him the right to a cash
equivalent had occurred.
7. Valuations for the purposes of the regime of cash
equivalent transfer values will normally be under the transfer
regulations, or else under section 93A of the 1993 Act, as inserted
by section 153 of the Pensions Act 1995. However, in drafting
regulation 3(2) of the regulations, it was desired not only to
mention those specific provisions but also, for the sake of caution,
to allow for any residual type of valuation furnished for the
purposes of the cash equivalent transfer value regime; and as
stated, the essence of that regime is contained in section 94(1)
of the 1993 Act.
8. In summary, paragraphs (a), (aa) and (b) of section
94(1) are not themselves provisions relating to the furnishing
or requesting of a valuation. But every valuation of a cash equivalent
transfer value exists for the purpose of determining the extent
of the right conferred by those paragraphs and is, in that sense,
pursuant to them.
9. The third point is:
Explain the references, in paragraphs
(18) and (19) respectively of rule 10.26 as inserted by rule 10,
to a claim made under section 9(3) of the Human Rights Act 1998
and to a claim made in respect of a judicial act to which section
9(3) and (4) of that Act applies. Should the references have been
to section 7(1)?
10. Section 7(1) of the 1998 Act allows claims to
brought against any public authority which the claimant alleges
has acted or proposes to act in a way which is made unlawful by
section 6(1). "Public authority" has the meaning given
by section 6(3); it includes a judge, court or tribunal, but has
a very much wider meaning. Claims in respect of a judicial act,
as defined by section 9(5), are a sub-class of claims against
a public authority, and are governed by section 9 as well as section
11. It would have been possible, in rule 10.26(18)
and (19), to refer to claims made under section 7(1), but a reference
would then also have had to be made to section 9(3). The reference
to the latter section alone is however sufficient, since the opening
words of section 9(1) make it clear that a claim under section
9 is a sub-class of proceedings under section 7. The Department
accordingly submits that the wording of this rule is correct.
It would point out that the Civil Procedure Rule Committee also
took the view that claims in respect of a judicial act were properly
described as claims under section 9 rather than section 7: see
CPR rule 19.4A(3), inserted by rule 8 of the Civil Procedure (Amendment
No. 4) Rules 2000, S.I. 2000/2092).
14 November 2000