The Pension Regulator’s anti-avoidance case against ITV’s Box Clever Pension Scheme is to be heard in the Upper Tribunal following a decision by the Court of Appeal to block the broadcaster's latest legal challenge.

ITV had wanted to appeal a decision which allows the regulator to introduce new evidence in its anti-avoidance case against the broadcaster when the case is heard in the Upper Tribunal. The hearing in January 2018 will be the first time an anti-avoidance case by TPR has been heard in full in the Upper Tribunal.

Box Clever was formed in 2000 after a merger between the TV rental businesses of Granada (now ITV) and Thorn (now Carmelite). In December 2011, the regulator found it reasonable for the companies to provide financial support for the Box Clever Group Pension Scheme, after the company became insolvent in 2003, leaving the scheme with a deficit of approximately £62m at the end of 2009, on the section 75 ‘buyout’ basis.

A Financial Support Direction (FSD) requires the recipient to secure that reasonable financial support is put in place for a particular pension scheme, although the precise form of that support is not prescribed, giving FSD recipients significant flexibility in practice.

ITV referred this decision to the Upper Tribunal in January 2012 but, since then, TPR has been fighting various legal challenges brought by ITV, which has prevented the case being heard before now. Its pension scheme, with around 2,800 members, now has a buy-out deficit of over £90m.

Commenting, TPR director of case management Mike Birch said: "It is vital for us to be able to introduce new evidence where appropriate when we are pursuing anti-avoidance and so we welcome this latest important ruling. The ruling also brings closer the prospect of greater certainty for members of the Box Clever Group Pension Scheme which due to legal challenges by ITV has been delayed for six years.

"We have fought at every stage to bring our case for an FSD and are pleased the courts have agreed with our position. This sends a clear message that we will not shy away from pursuing regulatory action to protect workplace pensions."

ITV originally went to the Upper Tribunal in January 2012 to challenge TPR’s determination to issue an FSD and began its challenge of TPR’s ability to submit additional evidence in late 2013.

A number of hearings followed, including an appeal to the Court of Appeal, before the Upper Tribunal found in TPR’s favour in 2016. ITV then made subsequent requests for permission to appeal with the most recent being refused by the Rt Hon Lady Justice Arden at the Court of Appeal. It is the fourth time the courts have considered these issues and agreed with TPR’s position.

In her decision, the Rt. Hon Lady Justice Arden stated that: "[The] Appellants fail to advance any argument...which would entitle this Court to interfere." She then confirmed that TPR is not bound by the case it put before the Determinations Panel and is entitled to raise matters not previously raised where a determination is referred to the Upper Tribunal.

The hearing examining TPR’s decision to issue an FSD is scheduled to start on 29 January 2018 and is expected to last for two weeks.

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