This page contributed by Brian Marks.

The records will show that between October 2010 and January 2011, I tried to persuade the High Court to appoint me as a member representative in the IBM "bad faith" case. This was a personal indulgence - I did not want to come out on the far side of the current IBM pensions turmoil feeling that there was more that I might have done but did not choose to do.

I first suggested such an appointment to the Trustee in 2009 .  By mid-2010 the reasons for it had strengthened.  IBM had brought the "bad faith" case to the Court and chosen member representatives.   Since the scheme members and IBM have very different hopes for the outcome of the case, this made me uncomfortable in principle.  The Pensions Trust Manager was writing that the Trustee had "no role to play" in member representative appointment.  (The Trustee may have changed its mind subsequently).

It seemed to me that the scheme members were bound to benefit from having some representative of the non-employees,  working in tandem with Stuart Dalgleish.  That would avoid Stuart's efforts, which were in turn the result of the enormous efforts of the few who organised BBFF and IPIG, from being diluted by the factors associated with the 90% of members who are not employees. The deal in 2006 was a package deal covering all the members.  So was the deal the Trustee attempted with IBM prior to the Consultation.   Any deal that eventually tidies up the mess will be a package deal.

No ordinary person would tangle with a multinational at the risk of having to pay for a lot of lawyer activity.  (The only people who can do it are the very rich who wont notice the cost and the poor who cannot have costs enforced against them.  McLibel was a latter case.)  So I wrote my application as conditional:  if the cost to me can be contained then consider the pros and cons.

The High Court campus has a number of people working there who are not lawyers.  It turned out that the form I was advised to use and used was not capable of doing the job - there could not be a conditional application.  So back to square one with a preliminary - an application only about the cost arrangements for a potential member representative.  The argument I wrote was that potential member representatives should be treated like appointed member representatives.  (It is well established in Chancery documentation that appointed representatives should be protected from personal costs from the outset - nobody would volunteer to be a member representative without that).

Master Teverson was not sufficiently impressed by my analogy and refused my request.  Even withdrawing the application(s) was not as straightforward as you might expect;  DLA Piper offered and provided efficient help in doing that.  After accepting the withdrawal, there was no need for a Court to deliberate the pros and cons of the potential appointment.

So if the non-employees think that there is a case for dedicated representation for them they will have to be pro-active; it cannot be done by piggybacking on the employee efforts.  Maybe that was always a good guess at the situation but confirmed information, even if unwelcome, can only be a plus.