Wife killer fails in legal bid to challenge pension entitlement ruling

David Lilburn, 54, who is currently incarcerated at the State Hospital in Carstairs after being sentenced to life imprisonment with a punishment part of 19 years following his conviction in 2008 for killing his wife Ann, had applied for a court order requiring the Pensions Ombudsman to state a case to enable him to purse an appeal.

However, the Inner House of the Court of Session refused to exercise its discretion to allow the late application to challenge the determination made nearly a decade ago.

Termination of employment

The Lord President, Lord Carloway, sitting with Lord Malcolm and Lord Glennie, heard that the noter, Mr Lilburn, had applied to the court to to ordain the first respondent, the Pensions Ombudsman, to state a case in relation to a March 2008 determination of the second respondent, a former deputy Pensions Ombudsman.

The primary issue was whether, given the significant passage of time since the determination, the court ought to allow the application late, by relieving the noter of the consequences of his failure to comply with the rules of court which prescribe a 14-day period.

The court was told that from 1 January 1983 until 31 January 2002 the noter was employed as a loss adjuster by McLaren Dick & Co, which was acquired by the Capita Group in 2001, following which Mr Lilburn became involved in a dispute with Capita about his pay and conditions.

He initiated proceedings before the employment tribunal for unfair dismissal, breach of contract, payment of redundancy pay and remuneration, and was paid £125,000 after his employment was terminated following a “compromise agreement”, dated 1 March 2002, which recorded that the termination was “on account of … disability”.

He then applied, at the age of 39, to the third respondents, CPLAS Trustees, for an ill-health early retirement pension and was awarded an unreduced lump sum and a reduced annual pension of about £2,500 per annum, but had the pension commenced at the age of 60 (his normal retirement date) it would have been about £16,800 per annum.

Ombudsman’s determination

In May 2004, the noter made a complaint to the third respondents about the reduced nature of the pension, its effective date and the interest payable on the arrears, but he was unsatisfied with the outcome of that process.

He complained to the Pensions Ombudsman, but the deputy ombudsman rejected the complaint in a determination dated 28 March 2008, which concluded that he was not entitled to an unreduced ill-health early retirement pension as he had reached an agreement to terminate his employment after initiating proceedings before the employment tribunal.

No application for a stated case was after the determination, and in July 2008 Lilburn was convicted of the murder of his wife after the jury rejected his plea of diminished responsibility, and his appeal against conviction was refused, as was a further appeal on the grounds of “fresh evidence” about his mental state, following a reference by the Scottish Criminal Cases Review Commission.

It was July 2016 before the noter eventually lodged an application requesting that the first respondent state a case in respect of the determination of 28 March 2008 and craving the court to exercise its dispensing power under RCS 2.1.

‘Balance of prejudice’

On behalf of the noter, Mungo Bovey QC argued that RCS 2.1 was designed to do “substantial justice” between the parties and the “balance of prejudice” favoured Mr Lilburn.

It was submitted that at the time of the determination, the noter was in an anti-suicide cell in HMP Barlinnie, where he remained until his transfer to the State Hospital in July 2009, and he did not have the financial resources to challenge the decision.

But his mental health had gradually improved and in 2014 he began studying for a law degree, during which time he discovered an employment law case which, he thought, suggested that the decision might have been wrong.

Thereafter he sought legal aid and instructed counsel, which caused further delay.

But on its merits, it was argued that the second respondent had “erred” in concluding that the failure of the noter to give notice that he intended to retire due to ill-health had prevented him from being eligible for an unreduced pension; he did not leave his employment at his own instigation, but due to his “employer’s insistence”.

‘Mora, taciturnity and acquiescence’

However, on behalf of the first and second respondents, Craig Connal QC argued that the noter had provide “sufficient cause” to justify invoking the dispensing power.

His incarceration was not a justification and in any event there were no papers left from the original determination, given the requirements of data protection legislation.

Jonathan Barne QC, for the third respondents, submitted that the noter was barred from proceeding with the application by “mora, taciturnity and acquiescence”.

It was argued that the delay had been “inordinate and inexcusable” and it was reasonable for the third respondents to infer that the noter had accepted the determination, and to administer the scheme on that basis.

The appeal judges refused the application to use the dispensing power under RCS 2.1 due to the length of time since the determination under challenge was made.

Delivering the opinion of the court the Lord President said: “Even if there was a stateable ground of appeal, upon which the court expresses no concluded view, the time which has elapsed renders it inappropriate for the court to exercise its discretion to invoke the dispensing power to allow the commencement of a stated case procedure over nine years after the relative decision.

“The actings of the noter do indeed amount to mora, taciturnity and acquiescence. After the expiry of the days for appealing, or at least after a substantial additional period had passed, the third respondents were entitled to proceed on the basis that the noter had accepted the determination and that the scheme’s liability to him was accordingly fixed.

“Were it to be otherwise, trustees would find it all the more difficult to assess future liabilities and to organise their affairs accordingly. They are also substantially prejudiced by the absence of the papers which formed the background to the original determination.

“Even assuming that the second respondent is able to recollect the case, it would be wholly unreasonable for him to be expected to frame a case answering the multiple questions posed by the noter at this extremely late stage.”