Disclosure of documents and other material 1

The complainant or respondent must supply the Ombudsman by such date as he may specify a copy of any document or other material on which he intends to rely (r9(1) of the Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1995). Again, the respondent must send multiple copies for the complainant and any other party to the investigation (unless the other parties already have copies or the Ombudsman already has sufficient copies).

Where the Ombudsman obtains documents he must copy these to the other parties (r9(4)). A party to the investigation may only use a document supplied to it during an investigation for the purposes of the investigation.

The disclosure of actuarial advice was considered in F00814. The trustee changed the commutation and early retirement factors of the scheme. A member asked for copies of the actuarial advice that the trustee had received on the issue, arguing that it was a trust document paid for out of scheme assets. The trustee argued that the member was on a fishing expedition and there should be no requirement to disclose actuarial advice until the member had demonstrated a proper cause of action. The trustee also argued that it was not obliged to divulge any material indicating the reasons for discretionary decisions.

After being threatened by the Ombudsman with proceedings for contempt of court, the trustee eventually produced copies of the actuarial advice. The Ombudsman remarked that, if the trustee's submissions were correct, any trustee could seek to argue that every document generated by or for them was in some way "relating to" their deliberations. The Ombudsman concluded that the advice was factual rather than revealing the trustee's own reasons for its decisions. The Ombudsman directed the trustee to supply the member with an unabridged copy of the actuarial advice.

Disclosure of legal advice was considered in F00898. Members complained about the winding up of the scheme and the payment of some surplus assets to the employer. The trustee initially refused to provide the Ombudsman with copies of legal advice obtained in relation to the proposal to deal with surplus. Copies of the legal advice were eventually produced to the Ombudsman after he threatened contempt of court proceedings. The solicitor's attendance notes were also demanded and eventually produced.