This a question asked of my colleague Justin Briggs on more than one occasion - and here is my summary of his thoughts.
In theory there are several routes available to trustees.
The first is going direct to a judge in chambers. Avoiding a hearing sounds an attractive option, but sadly is only available for questions of construction and in cases where there is unlikely to be any dispute as to the construction contended for. GMPe issues tend to resolve around the cost versus benefit of a number of different approaches (rather than uncertainty over construction of rules).
The second is applying to Court for directions. Typically this might happen if the trustees were stuck on a particular point (as happened in the Axminster case). But this can be very expensive and probably not cost effective for a GMPe query, except for the largest of schemes.
A third alternative is what's known as a Blessing Application, where the Court is asked to bless a particularly difficult decision. However, these are limited to decisions which would have a momentous impact either on the scheme itself or a category of members. It's unlikely that GMPe issues will fall under this heading.
In reality trustees will almost always, in the context of GMPe, have to work through these issues extremely carefully with their advisers and make sure that their decisions fall within reasonable parameters.
Depending on the decisions being made, it may be prudent to review adviser terms and conditions (and limitations of liability in particular). Trustees may wish to review their own protections, and conversations with employers about improving these may be appropriate.
Needless to say, decisions taken and the reasons for them should be well documented. Whether PASA guidance is or is not being followed it will be useful to say why. Provided there is a logical rationale for a decision, and the decision itself falls within what are identified as the range of available options, it will be extremely difficult to criticise trustees for taking one particular approach over another.
Trustees do not need to be right on all these issues – rather they need to be reasonable, though in saying this we do not underestimate the difficulty that being reasonable can sometimes involve.