70. The solicitors reported that the only further action open to the Trustee to prevent the use of the surplus as proposed would have been to refuse to agree to the introduction of the M Plan. The solicitors said that particular consideration had been given to this in the light of the proposed use of the surplus to reduce employers' contributions to this new section. However, given the `balance of powers' under the Scheme between the Respondents it was noted that it was open to the Principal Employer to use the `surplus' to reduce employer contributions in any event. It had therefore remained open to the Trustee to agree to the introduction of the M Plan. Three of the complainants submit that refusing to agree to the introduction of the M Plan was not, as the solicitors advised, the only further action open to the Trustee. They submit that "it was only necessary to refuse to agree to transfers." They also submit that it was only open to the Trustees to agree to the introduction of the M Plan if that was in the interests of the members.

Here is the "Big Mistake", asserting: "the only further action open to the Trustee to prevent the use of the surplus as proposed would have been to refuse to agree to the introduction of the M Plan."  In retrospect it must be clear that allowing the M-Plan and not allowing the transfers of C-Plan monies to it was a viable option.  It is not clear why the solicitors thought otherwise.