Pensions Regulator 

Court dismisses ITV pension appeal

Court dismisses ITV pension appeal

ITV has been told it will have to fund the Box Clever pension scheme, after its latest challenge was dismissed by the Court of Appeal.

The judgment, handed down today (June 20), followed a week-long appeal hearing in May 2019.

The case saw ITV challenge a decision from the Upper Tribunal last year, which stated that The Pensions Regulator was right to use its powers to seek financial support from the broadcaster for members of the Box Clever pension scheme.

Lord Justice Patten, Lord Justice Newey and Lord Justice Males stated that the tribunal "was entitled to reach the conclusion which it did".

In a judgment published in May 2018, the Upper Tribunal ruled TPR was right to require the broadcasting company to provide financial support for the pension scheme.

Box Clever was a joint venture combining the rental businesses of ITV, known at the time as Granada, and Carmelite, previously known as Thorn. Its pension scheme has about 2,800 members and a deficit of some £115m.

When the joint venture went ahead, employees were transferred to the new company and enrolled in the Box Clever pension scheme, which was set up to ensure that its members would continue to receive the same benefits as promised by their former schemes.

But TPR opened an anti-avoidance investigation following the collapse of Box Clever, and in 2011 it warned ITV that it was going to issue so-called financial support directions to five companies that formed part of the ITV Group.

This was mainly because it thought ITV had extracted significant value from the venture before its collapse.

The FSD would have required ITV to propose how it will financially support the scheme.

But ITV did not agree and challenged the FSD before it was issued.

According to Erica Carroll, TPR’s director of enforcement, ITV has raised numerous legal challenges against the regulator’s actions for seven years "in a bid to avoid responsibility for the Box Clever scheme".

She said: "Both the Upper Tribunal and now the Court of Appeal have confirmed that ITV should provide financial support to the scheme.

"Disappointingly, ITV sought the Court of Appeal’s permission to appeal the decision to the Supreme Court, however we are pleased that this was refused.

"We hope that ITV will finally accept its responsibility and work with us so that a good outcome can be achieved for members."

ITV still has the option to take its case to the Supreme Court directly, which it told FTAdviser it intends to do.

An ITV spokesperson said: "ITV is naturally disappointed with this decision and believes it is unfair.  

"It relates to a legitimate and sensible commercial transaction that was undertaken for the benefit of ITV's shareholders, almost 20 years ago, and, crucially, before the relevant legislation came into force." 

ITV had argued that the joint venture was established in 2000 before the Pensions Act 2004, which had introduced the FSDs.