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Box Clever case handed back to Upper Tribunal as evidence debate continues

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The ongoing ITV vs Box Clever case has reached a new stage as the UK Court of Appeal handed back the debate to the Upper Tribunal, some 15 months after it left the court.

The legal wrangling relates back to attempts by The Pensions Regulator (TPR) to issue a financial support direction (FSD) to ITV to cover the Box Clever pension scheme deficit.

FSDs create a legal requirement on a company to contribute to deficit repairs within a pension scheme it has links to.

The case will now be re-heard by the Upper Tribunal, which must decide if TPR and the trustees can use additional evidence submitted outside of its original FSD case, something that ITV requested be ignored.

The Upper Tribunal is effectively an appeals court but does allow new evidence to be submitted as part of an ongoing case.

It originally dismissed ITV’s protests over the new evidence, but the Court of Appeal has now requested the court re-examine the case from scratch.

The Court of Appeal did not accept ITV’s request to have new evidence struck from the case, but, when referring the case back to the Upper Tribunal, it asked it to consider why additional evidence was submitted late on in the litigation.

Hogan Lovells, the law firm representing ITV, said the judgment showed its questions regarding the late-stage submission of TPR’s evidence was important, and that it should not be approached on a “simplistic” basis.

Angela Dimsdale Gill, the litigation partner for Hogan Lovells, said it welcomed the guidance from the Courts, as clarity was necessary for TPR, and others, over what the regulator can and cannot do.

“The fact it is not to be taken as a given that the regulator can change its case whenever it pleases – as contended by the regulator – means it would do well to determine at the outset what the justification for its regulatory action is, since it will by no means be certain it will be able to change horses later on,” she added.

A spokeswoman for TPR said: “The regulator is pleased the Court of Appeal has rejected the test advocated by ITV and that it has adopted a broad discretionary test, following arguments advanced by the regulator and trustees.”

The case refers back to September 2011 when TPR issued a warning notice to ITV regarding the potential of an FSD.

The regulator’s Determinations Panel decided to follow through three months later.

ITV referred the £62m challenge from TPR and the trustees for Box Clever to the Upper Tribunal, where both parties made cases based on the evidence used within the FSD determination.

However, in a second round of evidence, TPR amended its case, making different allegations against ITV over its funding for the Box Clever scheme, at which point ITV requested the new evidence be ignored.

The Upper Tribunal rejected this appeal in December 2013 before ITV took the request to the Court of Appeal, which ruled this week.

Dimsdale Gill said the next chapters of the case could prove significant for the pensions and business community – in a variety of ways, it would “test the threshold of the regulator’s powers”.

It is likely the retrospective application of legislation will remain a key part of the case, given the power to issue FSDs did not exist until 2005, some two years after Box Clever’s failure and five after it was created.

Box Clever was a joint venture set up in 2000 by Granada (now ITV) and Thorn TV, and included the creation of the pension scheme for transferred and new employees.

The company failed in 2003, leaving a pension scheme deficit of around £60m (€82m).

However, ITV said it never had any involvement in the scheme and oversaw no increase it its shortfall.

Some 11 years after the failure of the firm, the Box Clever scheme entered PPF assessment in late 2014.

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