Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set...
Transcript of Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set...
![Page 1: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/1.jpg)
Response Statement
by the
Grand Central Railway Company Limited
in relation to formal dispute numbered ADA31against
Network Rail Infrastructure Limited
1
![Page 2: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/2.jpg)
1 DETAILS OF PARTIES
1. The names and addresses of the parties to the reference are as follows:-
(a) GRAND CENTRAL RAILWAY COMPANY LIMITED whose Registered Office is at 1
Admiral Way, Doxford International Business Park, Sunderland SR3 3XP. ("Grand
Central") ("the Claimant")); and
(b) NETWORK RAIL INFRASTRUCTURE LIMITED, whose Registered Office is at 1
Eversholt Street, London, NW1 2DN (“Network Rail”) ("the Defendant")).
(c) All correspondence relating to this dispute to be sent to:
Grand Central
Jonathan Cooper at : [email protected]
Mark Robinson at : [email protected]
2
![Page 3: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/3.jpg)
2 INTRODUCTION
This document has been prepared as a response to Network Rail’s Statement of Defence in relation to
ADA31. In this document Grand Central has referred to the statements made by Network Rail and
provided comments and clarification points.
3 SUMMARYGrand Central's case is based upon the following:
A. There was no agreement or any discussion on compensation arrangements prior to the
emergency timetable being introduced. There was no agreement on how the affected trains
would be coded in systems. Network Rail has acted on its own initiative.
B. Network Rail believe that no compensation is due to Grand Central as the emergency timetable
was a Restriction of Use. Grand Central dispute this view and have asked for evidence from
Network Rail that the timetable was uploaded into the train service database by 22:00 the day
before to be classed as a Restriction of Use. When asked, Network Rail were unable to
evidence that the revised timetable was uploaded before 22:00 on 26th December and were
therefore unable to confirm that the revised timetable should be classed as the Applicable
Timetable. Grand Central argue that not only was there no discussion about compensation
arrangements, they also dispute Network Rail’s view as the emergency timetable being a
Restriction of Use. Grand Central believe the emergency timetable was uploaded shortly
before 22:27 on the 26th December 2014.
C. Grand Central will argue that there has been a breach of contract by Network Rail failing to
provide access.
D. Furthermore Grand Central will argue that Network Rail has not acted in good faith in trying to
resolve this matter after the emergency timetable was implemented.
E. Grand Central will cite as evidence as a lack of good faith Network Rail’s failure to respond to
two formal letters that were sent with clearly defined timescales. Network Rail ignored the
Letter Before Claim sent by Grand Central and did not act until a complaint was made.
4 COMMENTS AND CLARIFICATION ON NETWORK RAIL’S STATEMENT OF DEFENCE
3
![Page 4: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/4.jpg)
In this section we have highlighted areas where Grand Central disagree with Network Rail’s Statement
of Defence.
Network
Rail
reference
Comment by Network Rail Grand Central Response
4(A) SUBJECT MATTER OF DISPUTE
4(A) page 5
Following an incident near to Finsbury Park
on 26 December 2014 in relation to the
Christmas 2014 possession blockade,
Grand Central agreed to amend its services
further to allow the introduction of an
emergency timetable on 27 December
2014. Network Rail compensated Grand
Central in accordance with the provisions in
the contract (contained within Schedule 4
and Schedule 8).
Grand Central did agree to amend its
timetable further to assist Network Rail in
the creation of the emergency timetable.
However this agreement did not include
any discussion regarding compensation.
Grand Central has not agreed to waive its
schedule 8 compensation in relation to the
emergency timetable of the 27th
December 2014.
Grand Central disputes the statement that
“Network Rail has compensated Grand
Central in accordance with the provisions
of the contract”.
4(A) page 5
4.1: Network Rail disagrees that it is in
breach of contract of “Clause 4.2 “Good
faith” of the TAC”. Network Rail assumes
that use of the phrase “TAC” refers to the
contract.
The referral to “TAC” relates to “Track
Access Contract”
4(A) page 5
4.2: Network Rail disagrees with the use of
the word “refusal”.
Grand Central believes that the use of the
word “refusal” is the ideal word to use in
this context.
4(A) page 5
4.5: Network Rail disagrees that a failure to
provide access was a breach of Schedule 5
in the contract
Grand Central believes that a failure of
Network Rail to be able to provide access
to its Network is a breach of the contract.
4
![Page 5: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/5.jpg)
4(A) page 5
4.6: Network Rail disagrees that Network
Rail’s “P coding” resulted “in Grand Central
not receiving any compensation for the
emergency timetable through schedule 8
Grand Central notes that the effect of “P”
coding services removes these from the
downstream performance payment
systems resulting in Network Rail not
compensating Grand Central for the
emergency timetable alterations of the
27th December 2014.
Grand Central argues that Network Rail
has no agreement to “P” code these
services and that there is no requirement
under Part H of the Network Code.
Grand Central also argues that under
Para 5.2.2 of Part H (see Appendix 13 of
Network Rail’s Statement of Defence at
page 176 that Network Rail is under an
obligation to consider the impact of the
emergency timetable on Train Operators.
Para 5.22 states Network Rail must have
“regard to the feasibility of implementation
insofar as it impacts on Affected Train
Operators). The impact to Grand Central
was significant in terms of impact on our
passengers and the financial impact.
4(A) page 5
4.7: Network Rail disagrees that “the coding
of the services as “P” was not discussed at
the teleconferences and hence no
agreement was reached on compensation”.
Grand Central maintains that there was no
discussion on how compensation
arrangements would be made until after
the event. Network Rail also states in
paragraph 1 of page 12 of its Statement of
Defence “The Network Rail Route Control
Manager has confirmed that
compensation arrangements are never
discussed as there is no requirement to
do so”. It is clear from this statement that
5
![Page 6: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/6.jpg)
neither party has agreed what
compensation arrangements would be in
place.
Grand Central agreed to an emergency
timetable not to an agreement to waive its
right to compensation.
4(A) page 6
4.8: Network Rail does not understand
Grand Central’s point. This may be due to
there being two sentences instead of one.
Grand Central has stated in its Statement
of Claim
“4.8 Grand Central maintains that as no
agreement was reached on
compensation. The default position is that
compensation to Grand Central should
have been via schedule 8”
This should have read:
““4.8 Grand Central maintains that as no
agreement was reached on
compensation, the default position is that
compensation to Grand Central should
have been via schedule 8”
Grand Central argues that in the absence
of any agreement on compensation
arrangements for the emergency
timetable being implemented, Network
Rail did not have the right to refuse to pay
compensation under schedule 8.
4(A) page 6
4.9: Network Rail is in disagreement with
the words chosen.
Grand Central notes this but would like to
understand what the words are that
Network Rail is in disagreement with.
4(A) page 6
4.10: Network Rail is in disagreement with
the words chosen. Grand Central has
Grand Central notes this but would like to
understand what the words are that
6
![Page 7: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/7.jpg)
obligations under Part H of the Network
Code and verbatim from Part H are listed in
Appendix 13 of this Statement of Defence.
Network Rail is in disagreement with.
With regard to Grand Central’s obligations
under Part H. We are full aware of these
obligations and have shown full
compliance particularly in relation to
development of the emergency timetable
for Finsbury Park. Operators can refuse
to agreement of an emergency timetable.
4(A) page 6
4.13: Network Rail disagrees with Grand
Central that Network Rail was in agreement
that compensation should be paid to Grand
Central for agreeing to the emergency
timetable
Grand Central notes this statement.
However, this statement is at odds with
the actions of the NR LNE route team who
have been sympathetic and have tried to
pursue compensation. In addition at level
1 meetings with the LNE team they have
presented a case that they were in
agreement with Grand Central and that it
was only the CCG panel that was refusing
to compensate.
In addition see Appendix 4 Paragraph 13
of Grand Central’s Statement of Claim.
Where Network Rail states the “… LNE
and EM route were supportive of an extra
contractual payment to Grand central”.
4(A) page 6
4.14: Network Rail disagrees with Grand
Central’s statement.
Grand Central notes this but would like to
understand what the area of disagreement
is.
4(A) page 6
4.15: Network Rail does not agree that it did
not respond until a “compolaint” was made.
Grand Central has tried to resolve the
claim amicably and to avoid a formal
dispute.
Unfortunately, Network Rail did not
respond to the Letter before Claim or the
7
![Page 8: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/8.jpg)
offer of mediation in letters dated 9th May
2016 and 12th September 2016 until a
complaint was made to Network Rail on
the 26th October 2016 (Appendix 4 of the
Grand Central’s Statement of Claim). It
was only at this stage that Network Rail
responded.
4(A) page 6
4.17: Network Rail responded formally on
27 October 2016
This appears to be an error. For clarity
only one response was made by Network
Rail on the 27th October 2016.
4(A) page 6
4.19: Network Rail disagrees with this
statement.
Grand Central notes this but would like to
understand what the area of disagreement
is.
4(A) page 6
4.20 Part a): refers to an email from Grand
Central to Network Rail dated 5 January
2015 and Network Rail disagrees with the
following words stated by Grand Central:
“receiving nothing from you to reflect the
massive impact inflicted on our
operation…”.
Grand Central notes that at the time this
was the case. Grand Central had not
received any compensation associated
with the implementation of the Emergency
Timetable.
Grand Central also note it has taken
nearly two years to dispute this statement.
4(A) page 6
4.20 Part b): Network Rail notes that this is
referring to 9th May 2016.
Agreed
4(A) page 6
4.20 Part (c): fails to point out that Network
Rail did respond and provide information
following the 9 May 2016 letter.
Part (d): fails to point out that Network Rail
did respond and provide information
following formal letters of Grand Central.
Grand Central has simply listed the
documents that it has provided. The
response from Network Rail has been
listed in 4.20 e). Grand Central is not
suggesting that Network Rail did not
provide a response – the descriptions in
4.20 c) and d) are simply descriptions of
the letters contained in the Statement of
Claim.
With regard to Network Rail’s response of
8
![Page 9: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/9.jpg)
the 27th October 2016:
Unfortunately, Network Rail did not
respond to the Letter before Claim or the
offer of mediation in letters dated 9th May
2016 and 12th September 2016 until a
complaint was made to Network Rail on
the 26th October 2016 (Appendix 4 of the
Grand Central’s Statement of Claim). It
was only at this stage that Network Rail
responded.
In any event the Letter Before Claim was
made under the Civil Procedure Rules
and Network Rail was made clear of this
fact. It chose simply to ignore the CPR
timescales and the letter until the
complaint.
4(A) page 7
4.20 Part (f): the Appendix 6 mentioned
fails to list the entire clause 5 of the contract
(PERMISSION TO USE) as clauses 5.3 to
5.8 are missing. Network Rail provides the
full version of clause 5 of the contract in
Appendix 10 of this Statement of Defence.
Grand Central has provided extracts of
clause 5 of the contract so as to focus on
the relevant parts of the contract. In this
case we have not supplied clauses 5.3 to
5.8 as they do not form part of our case.
This is in accordance with Access Dispute
Resolution Rule G16(a)(ix) and the
guidance given in the template Statement
of Claim which states:
“Copies of the following documents …
shall be annexed and cross referenced to
the statement:
A) the relevant extracts of
contractual Documents containing
the provision(s) under which the
9
![Page 10: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/10.jpg)
referral to the ADA arises and/or
provision(s) associated with the
substance of the dispute;”
4(A) page 7
4.20 Part (g): Appendix 7 mentioned is not
the relevant copy of Schedule 5 that was in
place on 27 December 2014. The Schedule
5 listed in Grand Central’s Statement of
Claim includes the third supplemental
agreement that was Office of Rail and Road
(ORR) approved on 7 August 2015. The
correct copy of the contract that was live on
27 December 2014 included the first
supplemental agreement which had an
effective date of 00:01 on 14 September
2014 and was entered into pursuant to the
Passenger Access (Short Term Timetable
and Miscellaneous Changes) General
Approval 2009. Network Rail provides the
applicable Schedule 5 that was live on 27
December 2014 in Appendix 11 of this
Statement of Defence.
Grand Central has provided a
consolidated copy of the schedule 5 as at
the 27th May 2016 from the ORR website.
The Third Supplemental agreement
amended the calling pattern table relevant
to Wakefield Kirkgate only. It has not
altered any of the relevant schedule 5
provisions relied upon by Grand Central in
its claim.
The First Supplemental agreement was
for changes to the Schedule 8 berthing
offsets at Hartlepool and Wakefield
Kirkgate. This has not amended schedule
5. Grand central has re-run its claim
based on the performance points in place
at the time. The claim amount is totally
unchanged based on the correction of
benchmarks (the third decimal point). It
changed the pennies and not the pounds
and the claimed for amount (note without
interest or costs which shows our
principled approach) is the same.
None of the supplemental amendments
identified by Network Rail change the
claim. We are content to use the version
of the Schedule 5 supplied by Network
Rail in its Statement of Defence.
4(A) page 8
4.20 Part (i): in the Appendix 9 mentioned,
Network Rail notes that clause 8.1 is
Agreed – there was a formatting error. We
are content to use the version supplied by
10
![Page 11: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/11.jpg)
incorrectly listed Network Rail in its Statement of Defence.
4.20 Part (j): in the Appendix 10 mentioned,
Network Rail disagrees with the claim laid
out. Network Rail notes that the
Performance Points listed in Grand
Central’s Appendix 10 are incorrect as the
correct copy of the contract that was live on
27 December 2014 included the first
supplemental agreement which had an
effective date of 00:01 on 14 September
2014 and was entered into pursuant to the
Passenger Access (Short Term Timetable
and Miscellaneous Changes) General
Approval 2009. The first supplemental
agreement amended the Performance
Points in Appendix 1 to Schedule 8.
Network Rail provides the 1st supplemental
agreement that includes the applicable
Appendix 1 to Schedule 8 that was live on
27 December 2014 in Appendix 12 of this
Statement of Defence.
We agree that Performance Points used
were not the ones in place at the time of
the incident. We have input the correct
Performance Points. The claim amount is
totally unchanged based on the correction
of benchmarks (the third decimal point). It
changed the pennies and not the pounds
and the claimed for amount (note without
interest or costs which shows our
principled approach) is the same.
4(A) page 8
4.20 Part (k): in the Appendix 11 mentioned
Network Rail disagrees with the timeline of
events listed.
Grand Central notes that Network Rail has
not disputed the details of the issues
raised on the Grand Central timeline.
Network Rail has sought to add to this
timeline. Grand Central produced a
timeline covering the issues relevant to
the claim. We feel that many of the items
that Network Rail have suggested be
added to the timeline add very little.
However if Network Rail believe that the
items they have raised are relevant to the
claim and will make a material difference
11
![Page 12: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/12.jpg)
we are happy to include these.
4(A) Page 10
This section is headed “In addition to the contract , the relevant contractual framework should also be included in the following:
4(A) Page 10
References are made to page 747 of the
PR13 final determination
Grand Central notes these references and
is fully aware of them. For clarity we are
in agreement with the statements made
as part of the periodic review. It would be
helpful for clarity if Network Rail would
highlight or extract the parts that are
relevant to their case.
5 EXPLANATION FROM THE DEFENDANT’S PERSPECTIVE OF EACH ISSUE IN DISPUTE
5.2 Issues where the Defendant qualifies or refutes the Claimant’s Case, and the reasons therefore.
5.2 page 11
In relation to the statement set out in 4.1 by
Grand Central in its Statement of Claim,
Network Rail disagrees that it is in breach
of contract of “Clause 4.2 “Good faith” of
the TAC”. Network Rail assumes that use of
the phrase “TAC” refers to the contract.
Network Rail disagrees that there had been
a “failure to pay Grand Central
compensation under schedule 8 or under
clause 8.2 of the TAC”. Grand Central
received from Network Rail a compensation
payment for unplanned disruption on 27
December 2014 in accordance with
Schedule 8 of the contract based on the
emergency timetable that was agreed and
The use of the term “TAC” is a term used
by the industry. Network Rail is safe to
assume it means contract. Specifically this
relates the Track Access Contract (TAC)
between Network Rail and Grand Central
dated 14th August 2014.
On the issue about compensation
received Grand Central accepts it has
received compensation under schedule 8
of the contract for the unplanned
disruption on the day. For clarity this was
12
![Page 13: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/13.jpg)
so planned in advance. for unplanned disruption that was
measured against the emergency
timetable implemented on the 27th
December 2014.
Grand Centrals claim is in relation to the
impact of the Emergency Timetable
against the base timetable that was
agreed by Grand Central in September
2014. This base timetable included
engineering work agreed for week 40.
5.2 page 11
In relation to the statement set out in 4.2 by
Grand Central in its Statement of Claim,
Network Rail disagrees with the use of the
word “refusal”. Network Rail and Grand
Central agreed to an emergency timetable
in advance of 27 December 2014 and
Network Rail compensated Grand Central
in accordance with the contract. Network
Rail has no obligation under the contract to
compensate Grand Central for agreeing to
amend its services.
Network Rail has refused to compensate
Grand Central for its agreement to
introduce the Emergency Timetable on
the 27th December 2014.
Grand Central agreed to introduce the
Emergency timetable at Network Rail’s
request and acted in good faith. At no
stage has discussion taken place about
compensation as part of the agreement to
the emergency timetable. At no stage
was any debate had about how the
implementation of the emergency
timetable and how it would impact on
Schedule 8 payments. Network Rail has
chosen to “switch off” the Schedule 8
payment for the introduction of the
emergency timetable without any
13
![Page 14: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/14.jpg)
discussion or debate with Grand Central.
Grand Central clearly had an expectation
of compensation be that by way of
Schedule 8 or via clause 8.2 of the
contract. For clarity Grand Central agree
that under schedule 4 they would not have
been eligible for compensation. This is
how the Grand Central Schedule 4 works.
Network Rail believes that the only
payment mechanism is via schedule 4.
Grand Central do not agree.
5.2 page 11
In relation to the statement set out in 4.5 by
Grand Central in its Statement of Claim,
Network Rail disagrees that a failure to
provide access was a breach of Schedule 5
in the contract. Grand Central and Network
Rail agreed an emergency timetable and
Grand Central were allowed to run the
services listed in the emergency timetable.
Grand Central believes that a failure by
Network Rail to provide access to the
network particularly without compensation
is a material breach of the contract.
Network Rail has a Track Access Contract
with Grand Central and it has failed to
provide the firm rights that support that
access.
Grand Central in effect had no choice to
do anything but agree to the emergency
timetable given the serious issues facing
Network Rail. This was done in good faith
to assist Network Rail. We believe that to
argue that agreement to the emergency
timetable in order to escape a claim of
compensation for breach is a further
example of a breach of good faith by
Network Rail especially given the nature
and seriousness of the incident that
Network Rail was facing.
14
![Page 15: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/15.jpg)
5.2 page 11
In relation to the statement set out in 4.6 by
Grand Central in its Statement of Claim,
Network Rail is in disagreement with Grand
Central that Network Rail’s “P coding”
resulted “in Grand Central not receiving any
compensation for the emergency timetable
through schedule 8”. Grand Central were
compensated in accordance with Schedule
8 (unplanned disruption the day) for the
emergency timetable agreed
Grand Central’s claim relates solely to the
lack of compensation for the introduction
of the emergency timetable. Grand
Central acknowledge that compensation
was paid for services that did not operate
to the emergency timetable schedule.
Grand Central did agree to the
introduction of the emergency timetable
but not at any point to how it would be
compensated. Network Rail has stated in
paragraph 1 of page 12 of its Statement of
Defence “The Network Rail Route Control
Manager has confirmed that
compensation arrangements are never
discussed as there is no requirement to
do so”. It is clear from this statement that
neither party has agreed what
compensation arrangements would be in
place for the emergency timetable.
5.2 page 11
In relation to the statement set out in 4.7 by
Grand Central in its Statement of Claim,
Network Rail is in disagreement with Grand
Central that “the coding of the services as
“P” was not discussed at the
teleconferences and hence no agreement
was reached on compensation”. By Grand
Central agreeing to the emergency
timetable, Grand Central in effect agreed to
Network Rail P-coding services so that the
real time industry train running system
TRUST could be updated to reflect the
timetable agreed. Network Rail’s control
Grand Central does not accept the view
pursued by Network Rail that by agreeing
to an emergency timetable or “P coding”
that this is in effect automatic agreement
on compensation arrangements.
Grand Central maintains that no
discussion took place about compensation
arrangements nor was this the right place
or time to discuss this.
Grand Central does not agree where
Network Rail has stated “By Grand Central agreeing to the emergency timetable, Grand Central in effect agreed
15
![Page 16: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/16.jpg)
centre staff undertook this in line with the
Network Rail standard “National Control
Instructions” (NCI). The NCI instructions
apply at all Network Rail Controls [ICCS]
and the National Operations Centre and in
addition they are available to Train
Operators. The Network Rail Route Control
Manager has confirmed that compensation
arrangements are never discussed as there
is no requirement to do so. Route Control
managers are responsible for making sure
the railway can operate as effectively as
possible on any given day and so operators
are contacted to make any arrangements
accordingly.
to Network Rail P-coding services so that the real time industry train running system TRUST could be updated to reflect the timetable agreed.”
Grand Central argues that the absence of
any discussion on compensation at the
emergency meeting does not mean that a
default position of no compensation is
agreed.
5.2 page 12
In relation to the statement set out in 4.8 by
Grand Central in its Statement of Claim,
Network Rail does not understand Grand
Central’s point. Network Rail believes that
there was no requirement to agree bespoke
compensation arrangements as
compensation arrangements are listed in
the contract and these have been duly
followed, i.e. Grand Central did receive
compensation via Schedule 8 for the
emergency timetable that was agreed to
run on 27 December 2014.
Network Rails case is based on the
premise that agreement to the emergency
timetable results in no compensation
associated with its introduction. Grand
Central dispute this. There was no
agreement whatsoever on the
compensation arrangements associated
with the introduction of the emergency
timetable. Network Rail has stated in
paragraph 1 of page 12 of its Statement of
Defence “The Network Rail Route Control
Manager has confirmed that
compensation arrangements are never
discussed as there is no requirement to
do so”.
16
![Page 17: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/17.jpg)
5.2 page 12
In relation to the statement set out in 4.9 by
Grand Central in its Statement of Claim,
Network Rail is in disagreement with the
words chosen. Network Rail did “P” code
services following agreement from Grand
Central to do so. If Network Rail had not “P”
coded the relevant services then the real
time information system TRUST would not
have reflected the correct timetable that
was agreed.
For clarity Grand Central did not agree to
the “P” coding of the services. Grand
Central agreed to the implementation of
the emergency timetable.
We note the comments about the real
time information systems. However the
ORR review1 into the possession overruns
at Kings Cross and Finsbury Park noted:
“The late changes to the timetable caused incorrect information to be displayed on some information systems on the morning of 27 December. Reports also suggest that the information screens on stations were not keeping up with the changes to the service caused by further cancellations during the day. In some cases, a difference was noted in the information displayed on station screens and live information provided by train crew or station staff.
Grand Central believe that Network Rail
should not have “P” coded the services as
these would then have shown up in
passenger information systems as
cancelled. Because they were “P” coded
the train details simply vanished from the
system leaving passengers confused.
5.2 page 12
In relation to the statement set out in 4.10
by Grand Central in its Statement of Claim,
Network Rail is in disagreement with the
words chosen. Grand Central can receive
Grand Central would welcome clarity on
which of the words that Network Rail is in
disagreement with if we are to be able to
respond.
1 Office of Rail Regulation investigation report: Disruption caused by engineering overruns on 27 and 28 December 2014 at King’s Cross and Paddington stations 12 February 2015
17
![Page 18: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/18.jpg)
compensation through Schedule 4 if a
restriction of use is greater than 120 hours
(a type 3 restriction of use). Network Rail
agrees that Grand Central could not receive
compensation under Schedule 4 in relation
to the incident on 27 December 2014 (and
the amended timetable agreed for 28
December 2014) as its duration was less
than 120 hours. Network Rail realises that
Grand Central could have refused to agree
to the emergency timetable though notes
that industry parties are required to adhere
to the Railway Operational Code in Part H
of the Network Code (please see Part H
verbatim in Appendix 13 of this Statement
of Defence).
Grand Central notes that Network Rail
believes that the emergency timetable is a
“Restriction of Use”. However to qualify
for this, the emergency timetable must
have been uploaded into the train service
database by 22:00 on the 26th December
2014.
Network Rail believe that no
compensation is due to Grand Central as
the emergency timetable was a
Restriction Of Use. Grand Central dispute
this view and have asked for evidence
from Network Rail that the timetable was
uploaded into the train service database
by 22:00 the day before to be classed as
a Restriction Of Use. When asked,
Network Rail were unable to evidence that
the revised timetable was uploaded before
22:00 on 26th December and were
therefore unable to confirm that the
revised timetable should be classed as
the Applicable Timetable. Grand Central
argue that not only was there no
discussion about compensation
arrangements, they also dispute Network
Rail’s view as the emergency timetable
being a Restriction of Use. Grand Central
believe the emergency timetable was
uploaded shortly before 22:27 on the 26th
December 2014. As evidence of this we
refer to Appendix 5 attachment 2 of
Network Rail’s Statement of Defence. At
Page 62 at 22:27 on the 26th December it
states “NR have now input amended
18
![Page 19: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/19.jpg)
schedules for our services for tomorrow”.
For Network Rail to rely upon its claim that
it was contractually compliant and that this
was indeed a Restriction Of Use it must
be able to demonstrate that the
emergency timetable was uploaded in
accordance with schedule 4 of the track
access contract. Please can Network Rail
confirm if it has complied in uploading the
emergency timetable?
For clarity we note that no agreement was
made between Network Rail and Grand
Central on compensation arrangements
associated with the introduction of the
emergency timetable. Network Rail
appears to have assumed that the
introduction of the emergency timetable is
compensated under schedule 4. In this
case for Grand Central there would be no
compensation under schedule 4.
Grand Central maintain that there was no
agreement on compensation and that
Network Rail could have compensated
either via Schedule 8 or via clause 8.2 of
the TAC.
5.2 page 12
In relation to the statement set out in 4.11
by Grand Central in its Statement of Claim,
Network Rail is in disagreement that it has
breached Clause 4.2 “Good faith”. Network
Rail believes that there was no requirement
to agree bespoke compensation
arrangements as compensation
Grand Central argues that by agreeing to
implement the emergency timetable in the
cooperative and timely manner that it did
and the fact that there was a clear
expectation of compensation on Grand
Centrals part that the parties could have
19
![Page 20: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/20.jpg)
arrangements are listed in the contract and
these have been duly followed, i.e. Grand
Central expected to receive Schedule 8
compensation and did receive
compensation via Schedule 8 for the
emergency timetable that was agreed to
run on 27 December 2014. Thus there was
no reliance on Grand Central to have
compensation by the fact that they agreed
to the emergency timetable. Network Rail is
in agreement that emergency conference
calls are not the time nor the place to
discuss compensation.
agreed to compensation.
Network Rail argues that it is unable give
compensation to Grand Central because
it’s not entitled to it. Grand Central
disputes this. Grand Central did not agree
to “P” code services – Network Rail did
this and it is this which has nullified the
possible schedule 8 compensation route.
Grand Central has argued breach of
schedule 5 leading to a claim under
clause 8.2 of the TAC and a breach of
clause 4.2 in relation to “Good Faith”.
Grand Central also believes that the “good
faith” argument has been exacerbated by
Network Rail’s failure to respond to the
two formal letters until a formal complaint
was made.
5.2 page 13
In relation to the statement set out in 4.12
by Grand Central in its Statement of Claim,
Network Rail agrees that this statement is
factually correct apart from the final line as
Appendix 11 of Grand Central’s Statement
of Claim does not include the full timeline of
events. Network Rail has elaborated on the
missing events from the timeline within
section (a) above under the heading
“Relevant background information not
already provided in Grand Central’s
Statement of Claim”.
Grand Central notes that Network Rail has
not disputed the details of the issues
raised on the Grand Central timeline.
Network Rail has sought to add to this
timeline. Grand Central produced a
timeline covering the issues relevant to
the claim. We feel that many of the items
that Network Rail have suggested be
added to the timeline add very little.
However if Network Rail believe that the
items they have raised are relevant to the
claim and will make a material difference
we are happy to include these.
5.2 page 13
In relation to the statement set out in 4.13
by Grand Central in its Statement of Claim,
Network Rail route teams have given the
impression to Grand Central that it was in
20
![Page 21: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/21.jpg)
Network Rail disagrees with Grand Central
that Network Rail was in agreement that
compensation should be paid to Grand
Central for agreeing to the emergency
timetable. Network Rail believes that Grand
Central should be compensated in
accordance with the contract and Network
Rail’s LNE & EM route took papers to the
route claims panel and commercial claims
group to explore compensation avenues
under the contract and so within Network
Rail corporate governance. Once
compensation avenues under the contract
had been exhausted, Network Rail explored
the possibility of an extra-contractual
payment in exceptional circumstances and
this possibility was rejected in consideration
of Network Rail’s obligations of fairness in
relation to all industry parties, in particular
the fact that Grand Central do not pay an
Access Charge Supplement (ACS). If
Grand Central did pay an ACS then it would
receive compensation in relation to a type 1
restriction of use and a type 2 restriction of
use which by definition would have meant
compensation for agreeing to the
emergency timetable that ran on 27
December 2014.
agreement that compensation should be
paid. It also gave the impression that had
the new devolution arrangements been in
place it could have settled the claim.
In addition, Grand Central argues that it
too should be compensated in accordance
with the contract. It is Network Rail who
have chosen to “turn off” the schedule 8
compensation that would have been
payable had the emergency timetable
services not been “P” coded by Network
Rail. Grand Central agreed to implement
the emergency timetable and no
agreement was reached on compensation
that resulted in “P” coded services being
excluded from Schedule 8 compensation.
With regard to payment under Schedule 4
following payment of an ACS. It is
disingenuous for Network Rail to suggest
that had we paid the ACS we might have
benefitted from compensation. Grand
Central applied to Network Rail for an
ACS quote three years ago and is still
waiting.
5.2 page 13
In relation to the statement set out in 4.14
by Grand Central in its Statement of Claim,
Network Rail disagrees with Grand
Central’s statement. The ACS is for
planned possessions where operators are
given restricted access to the network; as
Grand Central note that the calculation of
the ACS does not include emergency
timetables – it covers only possessions
which are planned in relation to normal
engineering works.
Grand Central did agree to the emergency
21
![Page 22: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/22.jpg)
Grand Central agreed to the emergency
timetable this was in effect agreement to
restricted access to the network. The
contract was implemented after the
implementation of the ORR Periodic
Review 2013 (PR13) and so Schedules in
the contract were adjusted to reflect PR13.
On page 747 of the PR13 final
determination it states: Network Rail then quote the ORR PR13 review…..
timetable to assist Network Rail in a very
difficult situation. Had Grand Central
realised that there would be no
compensation it would not have agreed to
the emergency timetable and would have
received compensation under schedule 8.
Grand central maintains that no
agreement was reached relating to
compensation only the implementation of
the emergency timetable.
5.2 page 14
In relation to the statement set out in 4.15
by Grand Central in its Statement of Claim,
Network Rail does not agree that it did not
respond until a “compolaint” was made.
Network Rail may have not formally
responded to Grand Central until 27
October 2016 but there has been regular
dialogue between the parties to try to
resolve the issue, for example
the meeting between Grand
Central and Network Rail on 6 June
2016 at Northern House whereby
Network Rail stated that they were
requesting archived data for 27
December 2014.
emails on 16 June 2016 between
Grand Central and Network Rail
whereby Network Rail confirmed
that information was received from
archived files so a Schedule 8
investigation could be undertaken.
the Level 1 meeting between
On the 9th May 2016 of Grand Central
sent a Letter Before Claim under the Civil
Procedure Rules (see Appendix 2).
Network Rail did not respond within the
Civil Procedure Rules timescales. In any
event Network Rail only responded to this
when a complaint was made.
The letter before Claim required a formal
response – Network Rail ignored this.
The various meetings that Network Rail
have listed show that Grand Central was
pushing to resolve the matter rather than
Network Rail being proactive in trying to
resolve the issue. There may have been
some limited engagement but this was at
the request of Grand Central not Network
Rail.
22
![Page 23: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/23.jpg)
Grand Central and Network Rail
held on 3 August 2016, including
an email dated 1 August 2016 from
Grand Central that requested the
agenda item “Boxing Day
possession overrun” for the Level 1
meeting agenda held on 3 August
2016 (see Appendix 4 for a copy of
the email).
an email of 5 August 2016 following
the Level 1 meeting on 3 August
2016 from Grand Central to
Network Rail whereby Grand
Central demonstrated the services
they wished to run on 27 December
2014, as well as their own
investigation into what occurred on
27 December 2014.
an email of 6 October 2016 from
Grand Central to Network Rail
whereby Grand Central
demonstrated the emergency
timetable that agreed to on 27
December 2014 (see Appendix 6
for a copy of the email).
a meeting on 7 October 2016
between Grand Central and
Network Rail whereby both parties
undertook a detailed check for any
discrepancies between the agreed
emergency timetable and what
actually ran on 27 December 2014
(see Appendix 7 for a copy of the
23
![Page 24: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/24.jpg)
work undertaken).
5.2 page 15
In relation to the statement set out in 4.16
by Grand Central in its Statement of Claim,
Network Rail did respond formally on 27
October 2016 and this was following regular
dialogue between the parties to resolve the
situation:
an email of 6 October 2016 from
Grand Central to Network Rail
whereby Grand Central
demonstrated the emergency
timetable that agreed to on 27
December 2014 (see Appendix 6
for a copy of the email).
a meeting on 7 October 2016
between Grand Central and
Network Rail whereby both parties
undertook a detailed check for any
discrepancies between the agreed
emergency timetable and what
actually ran on 27 December 2014
(see Appendix 7 for a copy of the
work undertaken).
Grand Central sent a letter to Network
Rail on the 12th September which was a
follow up to the Letter before Claim issued
on the 9th May 2016.
The meetings listed as suggesting regular
dialogue were all instigated by Grand
Central. In any event these meetings did
not address the concerns raised in the
letter.
5.2 page 15
In relation to the statement set out in 4.17
by Grand Central in its Statement of Claim,
Network Rail did respond formally to Grand
Central’s letters on 27 October 2016 though
Grand Central do not mention the dialogue
that was taking place to try to resolve the
issue:
the meeting between Grand
Central and Network Rail on 6 June
2016 at Northern House whereby
Grand Central was the instigator of the
meetings and in any event Network Rail
had two formal letters to answer one
within the CPR timescales. Grand Central
was infuriated by the fact that Network
Rail had not responded. Grand Central
does not accept that the meetings were
an adequate response to two formal
letters.
24
![Page 25: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/25.jpg)
Network Rail stated that they were
requesting archived data for 27
December 2014.
emails on 16 June 2016 between
Grand Central and Network Rail
whereby Network Rail confirmed
that information was received from
archived files so a Schedule 8
investigation could be undertaken
the Level 1 meeting between
Grand Central and Network Rail
held on 3 August 2016, including
an email dated 1 August 2016 from
Grand Central that requested the
agenda item “Boxing Day
possession overrun” for the Level 1
meeting agenda held on 3 August
2016 (see Appendix 4 for a copy of
the email).
an email of 5 August 2016 following
the Level 1 meeting on 3 August
2016 from Grand Central to
Network Rail whereby Grand
Central demonstrated the services
they wished to run on 27 December
2014, as well as their own
investigation into what occurred on
27 December 2014.
an email of 6 October 2016 from
Grand Central to Network Rail
whereby Grand Central
demonstrated the emergency
timetable that agreed to on 27
25
![Page 26: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/26.jpg)
December 2014 (see Appendix 6
for a copy of the email).
a meeting on 7 October 2016
between Grand Central and
Network Rail whereby both parties
undertook a detailed check for any
discrepancies between the agreed
emergency timetable and what
actually ran on 27 December 2014
(see Appendix 7 for a copy of the
work undertaken).
5.2 page 16
In relation to the statement set out in 4.18
by Grand Central in its Statement of Claim,
Network Rail disagrees with this statement
that Network Rail has breached Clause 4.2
of the contract (Good faith). Good faith
means "adhere to the spirit of the contract,
to observe reasonable commercial
standards of fair dealing, to be faithful to the
agreed common purpose, and to act
consistently with the justified expectations
of [the other party]" [CPC Group Ltd v
Qatari Diar Real Estate Investment
Company [2010] EWHC 1535 (Ch)].
Network Rail has observed reasonable
commercial standards of fair dealing so that
the contract is adhered to as it is legally
binding. Network Rail has compensated
Grand Central as it was obliged to under
the provisions of Schedule 8 for the
timetable agreed for 27 December 2014.
Network Rail has been very open with
Grand Central, sharing status of internal
panel papers (CCG and Route Claims
Grand Central stands by its statement in
Para 4.18. and entirely agrees with the
definition of Good faith highlighted by
Network Rail – it is exactly against these
behavioural standards that Grand Central
believes that Network Rail have fallen
short of by its unilateral use, without
Grand Central’s knowledge, of its own
processes to “switch off” the TAC
mechanisms by which Grand Central
would have received compensation for
implementation of the Emergency
Timetable
Grand Central do not believe that has
acted in good faith particularly in relation
to observing reasonable commercial
standards of fair dealing. We draw your
attention to the two letters from Grand
Central that we argue were ignored until a
complaint was raised (Grand Central’s
Statement of Claim Appendix 2 and 3).
26
![Page 27: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/27.jpg)
Panel) and Network Rail has investigated
any obligation to make a further payment
within Network Rail’s governance as well as
confirmed that the correct amount was paid
under Schedule 8 in relation to 27
December 2014. Network Rail suggested
an independent mediation and Grand
Central did not agree; Grand Central
suggested ADA was the industry way that
was quickest and easiest. As a
consequence the parties agreed that ADA
was the appropriate forum instead of
mediation. Network Rail disagrees with the
reference made to how the ADA process
was agreed stated in the row dated “31st
Oct 2016” of Appendix 11 of Grand
Central’s Statement of Claim.
With regard to the statement that Network
Rail has made here that:
“Network Rail suggested an independent mediation and Grand Central did not agree; Grand Central suggested ADA was the industry way that was quickest and easiest. As a consequence the parties
agreed that ADA was the appropriate
forum instead of mediation. Network Rail
disagrees with the reference made to how
the ADA process was agreed stated in the
row dated “31st Oct 2016” of Appendix 11
of Grand Central’s Statement of Claim.”.”
This statement is misleading and factually
incorrect.
In the letter dated the 12th of September
2016 (see Appendix 3 of Grand Central’s
Statement of Claim) it was Grand Central
who suggested the use of mediation and it
was Network Rail that rejected this.
Grand Central was very willing to try
mediation and it was Network Rail that
was unwilling to accept independent
mediation.
In Network Rail’s letter of 27th October
(see Appendix 5 of Grand Central’s
Statement of Claim) there was no mention
of mediation despite the offer being in the
letter from Grand Central dated the 12th
September(see Appendix 3 of Grand
27
![Page 28: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/28.jpg)
Central’s Statement of Claim)·
At the level 1 meeting on 31st October
Grand Central raised it again in the
context of their refusal to respond to the
offer in the letter from Grand Central. It
was only at this point that Network Rail did
then acknowledge this may be a way
forward. However by this stage Grand
Central had begun the process via the
Access Dispute Committee. Network Rail
agreed that the most appropriate course
at that stage was to continue with the ADA
process.
5.2 page 17
In relation to the statement set out in 4.19
by Grand Central in its Statement of Claim,
Network Rail disagrees with this statement.
Clause 8.2 of the contract states: (Network Rail the quotes Clause 8.2)
Clause 8.2 is not relevant as it requires
there to have been a breach of contract and
there has not been a breach of contract.
Grand Central was compensated in
accordance with Schedule 8 for the
timetable that was agreed to be run on 27
December 2014
Grand Central argue that a failure to
provide access to the network in
accordance with the track access contract
without any compensation amounts to a
breach of contract.
Grand Central disagree that there has not
been a breach of contract and although
Grand Central agreed to the emergency
timetable in reality there was no
alternative solution.
5.2 page 17
In relation to the statement set out in 4.20
by Grand Central in its Statement of Claim:
Part a) refers to an email from Grand
Central to Network Rail dated 5 January
2015 and Network Rail believes that the
statement Grand Central “receiving nothing
Grand Central argues that at the time of
the statement this was the case. Grand
Central had not received any
compensation. The Schedule 8
Statements supplied by Network Rail in
their Appendix 2 to the Network Rail
28
![Page 29: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/29.jpg)
from you to reflect the massive impact
inflicted on our operation…” is incorrect.
Grand Central were compensated in
accordance with Schedule 8 for unplanned
disruption on 27 December 2014 as the day
42 statement demonstrates a total minutes
delay set to Railtrack (Network Rail) of
55.50 minutes for service group EC01 and
200 minutes for service group EC02 (see
Appendix 2 within this Statement of
Defence for a copy of the signed day 42
statement relevant to 27 December 2014.
Statement of Defence were not created
until the 27th February 2015 whereas the
email from Grand Central which states
“receiving nothing from you to reflect the
massive impact inflicted on our
operation…” was sent of the 5th January
2015. This statement was correct.
The Schedule 8 compensation in the
statements was for trains not running to
plan against the emergency timetable on
the 27th December 2014. Grand Central is
not questioning this compensation. It is
claiming compensation due to the
implementation of the emergency
timetable.
5.2 page 17
Part (c) fails to point out that Network Rail
did respond and provide information
following the 9 May 2016 letter:
Part (d) fails to point out that Network Rail
did respond and provide information
following formal letters of Grand Central.
Grand Central has simply listed the
documents that it has provided. The
response from Network Rail has been
listed in 4.20 e). Grand Central is not
suggesting that Network Rail did not
provide a response – the descriptions in
4.20 c) and d) are simply descriptions of
the letters contained in the Statement of
Claim.
With regard to Network Rail’s response of
the 27th October 2016:
Unfortunately, Network Rail did not
respond to the Letter before Claim or the
offer of mediation in letters dated 9th May
2016 and 12th September 2016 until a
complaint was made to Network Rail on
the 26th October 2016 (Appendix 4 of the
29
![Page 30: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/30.jpg)
Grand Central’s Statement of Claim). It
was only at this stage that Network Rail
formally responded.
In any event the Letter Before Claim was
made under the Civil Procedure Rules
and Network Rail was made clear of this
fact. It chose simply to ignore the CPR
timescales and the letter until the
complaint by Grand Central.
5.2 page 18
Appendix 5 mentioned in part (e) fails to
include the Appendix contained within
Network Rail’s letter which is relevant as it
demonstrates a timeline of events.
Grand Central agree – this was an error in
preparing the Grand Central Statement of
Claim. We note that Network Rail has
supplied this in its Appendix 8 to its
Statement of Defence. Grand Central are
content with its inclusion.
5.2 page 18
Appendix 6 mentioned in part (f) fails to list
the entire clause 5 of the contract
(PERMISSION TO USE), i.e. clauses 5.3 to
5.8 are missing. Network Rail provides the
full version of clause 5 of the contract in
Appendix 10 of this Statement of Defence
as clauses 5.3 to 5.5. are relevant to this
subject.
Grand Central has provided extracts of
clause 5 of the contract so as to focus on
the relevant parts of the contract. In this
case we have not suppled clauses 5.3 to
5.8 as they do not form part of our case.
This is in accordance with Access Dispute
Resolution Rule G16(a)(ix) and the
guidance given in the template Statement
of Claim which states:
“Copies of the following documents … shall be annexed and cross referenced to the statement:
the relevant extracts of contractual Documents containing the provision(s) under which the referral to the ADA arises and/or provision(s) associated with the substance of the dispute;”
5.2 page Appendix 7 mentioned in part (g) is not the Grand Central has provided a
30
![Page 31: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/31.jpg)
18 relevant copy of Schedule 5 that was in
place on 27 December 2014. The Schedule
5 listed in the Statement of Claim includes
the third supplemental agreement that was
ORR approved on 7 August 2015. The
correct copy of the contract that was live on
27 December 2014 included the first
supplemental agreement which had an
effective date of 00:01 on 14 September
2014 and was entered into pursuant to the
Passenger Access (Short Term Timetable
and Miscellaneous Changes) General
Approval 2009. Network Rail provides the
applicable Schedule 5 that was live on 27
December 2014 in Appendix 11.
consolidated copy of the schedule 5 as at
the 27th May 2016 from the ORR website.
The Third Supplemental agreement
amended the calling pattern table relevant
to Wakefield Kirkgate only. It has not
altered any of the relevant schedule 5
provisions relied upon by Grand Central in
its claim.
The First Supplemental agreement was
for changes to the Schedule 8 berthing
offsets at Hartlepool and Wakefield
Kirkgate. This has not amended schedule
5. Grand central has re-run its claim
based on the performance points in place
at the time. The claim amount is totally
unchanged based on the correction of
benchmarks (the third decimal point). It
changed the pennies and not the pounds
and the claimed for amount (note without
interest or costs which shows our
principled approach) is the same.
None of the supplemental amendments
identified by Network Rail change the
claim. We are content to use the version
of the Schedule 5 supplied by Network
Rail in its Statement of Defence.
5.2 page 18
In relation to the Appendix 9 listed in part
(i), Network Rail notes that clause 8.1 is
incorrectly listed
Agreed.
In relation to Appendix 10 referred to in part
(j), Network Rail disagrees with the claim
made following a meeting with Grand
Grand Central has provided a
consolidated copy of the schedule 5 as at
the 27th May 2016 from the ORR website.
31
![Page 32: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/32.jpg)
Central on 7 October 2016 which confirmed
that the emergency timetable agreed ran as
planned. Network Rail notes that the
Performance Points listed are incorrect as
the correct copy of the contract that was
live on 27 December 2014 included the first
supplemental agreement which had an
effective date of 00:01 on 14 September
2014 and was entered into pursuant to the
Passenger Access (Short Term Timetable
and Miscellaneous Changes) General
Approval 2009. Network Rail provides the
applicable Appendix 1 to Schedule 8 in
Appendix 11 of this Statement of Defence.
The Third Supplemental agreement
amended the calling pattern table relevant
to Wakefield Kirkgate only. It has not
altered any of the relevant schedule 5
provisions relied upon by Grand Central in
its claim.
The First Supplemental agreement was
for changes to the Schedule 8 berthing
offsets at Hartlepool and Wakefield
Kirkgate. This has not amended schedule
5. Grand central has re-run its claim
based on the performance points in place
at the time. The claim amount is totally
unchanged based on the correction of
benchmarks (the third decimal point). It
changed the pennies and not the pounds
and the claimed for amount (note without
interest or costs which shows our
principled approach) is the same.
None of the supplemental amendments
identified by Network Rail change the
claim. We are content to use the version
of the Schedule 5 supplied by Network
Rail in its Statement of Defence.
5.2 page 19
Network Rail disagrees with the statement
made in 5.6 of Grand Central’s Statement.
Network Rail does not believe it has
breached clause 4.2 (Good faith). Good
faith means "adhere to the spirit of the
contract, to observe reasonable commercial
standards of fair dealing, to be faithful to the
agreed common purpose, and to act
Grand Central stands by its statement in
Para 4.18. and entirely agrees with the
definition of Good faith highlighted by
Network Rail – it is exactly against these
behavioural standards that Grand Central
believes that Network Rail have fallen
short of by its unilateral use, without
Grand Central’s knowledge, of its own
32
![Page 33: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/33.jpg)
consistently with the justified expectations
of [the other party]" [CPC Group Ltd v
Qatari Diar Real Estate Investment
Company [2010] EWHC 1535 (Ch)].
Network Rail has observed reasonable
commercial standards of fair dealing so that
the contract is adhered to as it is legally
binding. Network Rail has compensated
Grand Central as it was obliged to under
the provisions of Schedule 8 for the
timetable agreed for 27 December 2014.
Network Rail believes that there was no
requirement to agree bespoke
compensation arrangements as
compensation arrangements are listed in
the contract and these have been duly
followed, i.e. Grand Central did receive
compensation via Schedule 8 for the
emergency timetable that was agreed to
run on 27 December 2014. Network Rail is
in agreement that emergency conference
calls are not the time nor the place to
discuss compensation.
processes to “switch off” the TAC
mechanisms by which Grand Central
would have received compensation for
implementation of the Emergency
Timetable
Grand Central do not believe that has
acted in good faith particularly in relation
to observing reasonable commercial
standards of fair dealing. We draw your
attention to the two letters from Grand
Central that we argue were ignored until a
complaint was raised (Grand Central’s
Statement of Claim Appendix 2 and 3).
Grand Central has in effect agreed to
implement an emergency timetable at
very short notice over the Christmas
period in order to assist Network Rail.
Grand Central held an expectation that
compensation would be paid via Schedule
8 of the contract. (See Appendix 1 of the
Grand Central Statement of Claim).
Network Rail has “P” coded the amended
schedules without the agreement of
Grand Central. There has been no
discussion on compensation prior to
Network Rail deciding to “P” code the
affected services.
Despite Grand Central playing its part in
helping Network Rail out it and acting in
good faith, Network Rail has not done so.
This agreement by Grand Central has
cost it in the region of £50K. For a small
33
![Page 34: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/34.jpg)
Network Rail suggested an independent
mediation and Grand Central did not agree;
Grand Central suggested ADA was the
industry way that was quickest and easiest.
As a consequence the parties agreed that
ADA was the appropriate forum instead of
mediation. Network Rail disagrees with the
reference made to how the ADA process
was agreed stated in the row dated “31st
Oct 2016” of Appendix 11 of Grand
Central’s Statement of Claim.
regional company this is a significant
financial loss. It is perverse that Grand
Central has assisted Network Rail in this
manner only to find that it has been
financially penalised because of Network
Rails possession overrun at Finsbury
park.
Where Network Rail’s Statement of
Defence has indicated that “Network Rail
suggested an independent mediation and
Grand Central did not agree; Grand
Central suggested ADA was the industry
way that was quickest and easiest.” This
statement is misleading and factually
incorrect.
In the letter dated the 12th of September
2016 (see Appendix 3 of Grand Central’s
Statement of Claim) it was Grand Central
who suggested the offer of mediation and
it was Network Rail that rejected this.
Grand Central was very willing to try
mediation and it was Network Rail that
was unwilling to accept independent
mediation.
In Network Rail’s letter of 27th October
(see Appendix 5 of Grand Central’s
Statement of Claim) there was no mention
of mediation despite the offer being in the
letter from Grand Central dated the 12th
September (see Appendix 3 of Grand
Central’s Statement of Claim)·
At the level 1 meeting on 31st October Grand
Central raised it again in the context of their
34
![Page 35: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/35.jpg)
refusal to respond to the offer in the letter
from Grand Central. It was only at this point
that Network Rail did then acknowledge this
may be a way forward. Shortly after this
meeting Grand Central proposed the
industry form of mediation using
ADRC and in consultation with Network
Rail.
5.2 page 19
By Grand Central agreeing to the
emergency timetable, Grand Central in
effect agreed to Network Rail P-coding
services so that the real time industry train
running system TRUST could be updated to
reflect the timetable agreed. Network Rail’s
control centre staff undertook this in line
with the Network Rail standard “National
Control Instructions” (NCI). The NCI
instructions apply at all Network Rail
Controls [ICCS] and the National
Operations Centre and in addition they are
available to Train Operators. The Network
Rail Route Control Manager has confirmed
that compensation arrangements are never
discussed as there is no requirement to do
so. Route Control managers are
responsible for making sure the railway can
operate as effectively as possible on any
given day and so operators are contacted
to make any arrangements accordingly.
Grand Central does not accept the view
pursued by Network Rail that by agreeing
to an emergency timetable that this also
constituted an agreement for “P coding”
that this is in effect automatic agreement
on compensation arrangements.
Under the Track Access Contract and the
Network Code there is no obligation or
requirement for Network Rail to “P” code
services. Nor is there any obligation
placed on a Train Operator to agree to “P”
Code. Grand Central has provided by
way of additional information the
Emergency timetabling flowchart from
Part H of the Network Code. This is in
Appendix 1.
Grand Central asks Network Rail to
provide the evidence to suggest that by
“agreeing to the emergency timetable,
Grand Central in effect agreed to Network
Rail P-coding services so that the real
time industry train running system TRUST
could be updated to reflect the timetable
agreed.”
Grand Central maintains and Network Rail
35
![Page 36: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/36.jpg)
agree that no discussion took place about
compensation arrangements nor was this
the right place or time to discuss this.
Grand Central does not agree where
Network Rail has stated “By Grand Central agreeing to the emergency timetable, Grand Central in effect agreed to Network Rail P-coding services so that the real time industry train running system TRUST could be updated to reflect the timetable agreed.”
Grand Central argues that the absence of
any discussion on compensation at the
emergency meeting does not mean that a
default position of no compensation is
agreed.
For clarity Grand Central did not agree to
“P” coding the trains this was Network Rail
that acted on its own initiative.
5.2 page 20
Network Rail disagrees with the statement
made in 5.10 of Grand Central’s Statement.
By Grand Central agreeing to the
emergency timetable, Grand Central in
effect agreed to Network Rail P-coding
services so that the real time industry train
running system TRUST could be updated to
reflect the timetable agreed. At no stage did
Network Rail and Grand Central agree that
compensation would be paid. Network
Rail’s control centre staff undertook the P-
coding in line with the Network Rail
standard “National Control Instructions”
(NCI). The NCI instructions apply at all
Grand Central does not accept the view
pursued by Network Rail that by agreeing
to an emergency timetable that this also
constituted an agreement for “P coding”
that this is in effect automatic agreement
on compensation arrangements.
Under the Track Access Contract and the
Network Code there is no obligation or
requirement for Network Rail to “P” code
services. Nor is there any obligation
placed on a Train Operator to agree to “P”
Code. Grand Central has provided by
way of additional information the
Emergency timetabling flowchart from
36
![Page 37: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/37.jpg)
Network Rail Controls [ICCS] and the
National Operations Centre and in addition
they are available to Train Operators. The
Network Rail Route Control Manager has
confirmed that compensation arrangements
are never discussed as there is no
requirement to do so. Route Control
managers are responsible for making sure
the railway can operate as effectively as
possible on any given day and so operators
are contacted to make any arrangements
accordingly
Part H of the Network Code. This is in
Appendix 1.
Grand Central asks Network Rail to
provide the evidence to suggest that by
“agreeing to the emergency timetable,
Grand Central in effect agreed to Network
Rail P-coding services so that the real
time industry train running system TRUST
could be updated to reflect the timetable
agreed.”
Grand Central maintains and Network Rail
agree that no discussion took place about
compensation arrangements nor was this
the right place or time to discuss this.
Grand Central does not agree where
Network Rail has stated “By Grand
Central agreeing to the emergency
timetable, Grand Central in effect agreed
to Network Rail P-coding services so that
the real time industry train running system
TRUST could be updated to reflect the
timetable agreed.”
Grand Central argues that the absence of
any discussion on compensation at the
emergency meeting does not mean that a
default position of no compensation is
agreed.
For clarity Grand Central did not agree to
“P” coding the trains this was Network Rail
that acted on its own initiative.
5.2 page 20
Network Rail disagrees with the statement
made in 5.12 of Grand Central’s Statement.
Grand Central notes this statement.
However, this statement is at odds with
37
![Page 38: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/38.jpg)
Network Rail agreed to explore all possible
ways to compensate that were within the
scope of the contract and within
governance
the actions of the NR LNE route team who
have been sympathetic and have tried to
pursue compensation. In addition at level
1 meetings with the LNE team they have
presented a case that they were in
agreement with Grand Central and that it
was only the CCG panel that was refusing
to compensate.
In addition see Appendix 4 Paragraph 13
of Grand Central’s Statement of Claim.
Where Network Rail states the “… LNE
and EM route were supportive of an extra
contractual payment to Grand Central”.
5.2 page 20
Network Rail disagrees with the statement
made in 5.13 of Grand Central’s Statement.
The Schedule 8 regime of the contract was
in place on 27 December 2014, following
agreement to the emergency timetable for
27 December 2014, and Grand Central
were compensated in accordance with
Schedule 8. The emergency timetable was
not imposed on Grand Central; the
emergency timetable was agreed and
Grand Central attended the conference
calls proposing their amended train plan
(see Appendix 5 of this Statement of
Defence for a copy of the email that
included a Review of Service Disruption by
Grand Central).
Grand Central maintain that the facts of
the case are that there was no agreement
on compensation arrangements and this
is supported by Network Rail when it
states in paragraph 1 of page 12 of its
Statement of Defence “The Network Rail Route Control Manager has confirmed that compensation arrangements are never discussed as there is no requirement to do so”. It is clear from this
statement that neither party has agreed
what compensation arrangements would
be in place.
Grand Central agreed to an emergency
timetable not to an agreement to waive its
right to compensation.
Grand Central did not agree to “P” coding
as suggested by Network Rail.
5.2 page 21
Network Rail disagrees with the statement
made in 5.14 of Grand Central’s Statement.
Grand Central has asked Network Rail for
an ACS quotation on many occasions and
38
![Page 39: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/39.jpg)
Calculating an ACS is a substantial piece of
work and is normally undertaken as part of
the periodic review process for the following
Control Period. Grand Central has asked
for an ACS quotation from Network Rail and
then told Network Rail it was no longer
interested in an ACS quotation at a meeting
on 17 October 2014 held at Grand Central’s
office where the parties discussed a
bespoke Schedule 4 and Schedule 8
regime model with Network Rail’s Senior
Regulatory Economist in attendance. Since
then Grand Central has asked Network Rail
for an ACS quotation via email on 20 April
2016 (see Appendix 18 of this Statement of
Defence for a copy of the email trail).
Network Rail will be calculating an ACS for
Grand Central as part of the Periodic
Review 2018 process so there is the option
for Grand Central to pay into an ACS from
the start of Control Period 6. If Grand
Central would have been genuinely
interested in having an ACS then it would
have been included in its current contract
that went live from 1 August 2014.
Network Rail has been unable to supply a
quotation. This appears to be through a
lack of knowledge when individuals have
left Network Rail.
With regard to the email request for an
ACS quotation this predates the date that
you have suggested. This request was
put as part of a request for our sister
company GNWR. This request originally
dates back to 2013.
With regard to the statement that
“Calculating an ACS is a substantial piece
of work and is normally undertaken as
part of the periodic review process for the
following Control Period”.
Network Rail has been able to calculate
an ACS charge for GNWR during a
control period. It has taken time not
necessarily because it is complex – it has
been slow because of a lack of knowledge
in Network Rail on the calculation of an
ACS.
5.2 page 21
Network Rail disagrees with the statement
made in 5.15 of Grand Central’s Statement.
Network Rail does not believe it has
breached clause 4.2 (Good faith). Network
Rail believes that there was no requirement
to agree bespoke compensation
arrangements as compensation
arrangements are listed in the contract and
these have been duly followed, i.e. Grand
Grand Central do not believe that bespoke
compensation was necessary. Had
Network Rail not “P” coded Grand
Central’s services it would have received
compensation payment for the emergency
timetable through Schedule 8.
We believe that Network Rails poor and
39
![Page 40: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/40.jpg)
Central did receive compensation via
Schedule 8 for the emergency timetable
that was agreed to run on 27 December
2014.
slow response to two formal letters both of
which offered alternatives to raising a
formal dispute is an indicator of a lack of
good faith in dealing with this dispute.
Network Rail has only responded to these
letters following a formal complaint (See
Appendix 4 of Grand Central’s Statement
of Claim).
Network Rail did not respond to Grand
Centrals Letter Before Claim of the 9th
May 2016 within the required timescales
under the Civil Procedure Rules. Had
Grand Central taken this matter to court
the court could have imposed sanctions
for non-compliance. We believe that this
action in itself shows a lack of good faith
on Network Rail’s part.
5.2 page 21
Network Rail disagrees with the statement
made in 5.16 of Grand Central’s Statement.
Network Rail was in regular dialogue with
Grand Central on this subject. Network Rail
did respond and provide information
following the 9 May 2016 letter:
Grand Central would like to understand
from Network Rail which part of Grand
Central’s statement it does not agree with.
For clarity Paragraph 5.16 states:
Furthermore Grand Central has also
sought to resolve the dispute
amicably and without the need to
revert to a formal dispute.
Grand Central issued A Letter Before
Claim on the 9th May 2016 under the
Civil Procedure Rules and also sought
agreement from Network Rail for
mediation (see Appendices 2 and 3).
With regard to the Letter before Claim
Network Rail did not respond within
40
![Page 41: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/41.jpg)
the CPR timescales and only
responded after a formal complaint
was made.
The various meetings that Network Rail
have listed show that Grand Central was
pushing to resolve the matter rather than
Network Rail being proactive in trying to
resolve the issue. There may have been
some limited engagement but this was at
the request of Grand Central not Network
Rail.
5.2 page 22
Network Rail disagrees with the statement
made in 5.17 of Grand Central’s Statement.
Network Rail suggested an independent
mediation and Grand Central did not agree;
Grand Central suggested ADA was the
industry way that was quickest and easiest.
As a consequence the parties agreed that
ADA was the appropriate forum instead of
mediation. Network Rail disagrees with the
reference made to how the ADA process
was agreed stated in the row dated “31st
Oct 2016” of Appendix 11 of Grand
Central’s Statement of Claim.
Where Network Rail’s Statement of
Defence has indicated that “Network Rail
suggested an independent mediation and
Grand Central did not agree; Grand
Central suggested ADA was the industry
way that was quickest and easiest.” This
statement is misleading and factually
incorrect.
In the letter dated the 12th of September
2016 (see Appendix 3 of Grand Central’s
Statement of Claim) it was Grand Central
who suggested the offer of mediation and
it was Network Rail that rejected this.
Grand Central was very willing to try
mediation and it was Network Rail that
was unwilling to accept independent
mediation.
In Network Rail’s letter of 27th October
(see Appendix 5 of Grand Central’s
Statement of Claim) there was no mention
41
![Page 42: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/42.jpg)
of mediation despite the offer being in the
letter from Grand Central dated the 12th
September (see Appendix 3 of Grand
Central’s Statement of Claim)·
At the level 1 meeting on 31st October
Grand Central raised it again in the
context of their refusal to respond to the
offer in the letter from Grand Central. It
was only at this point that Network Rail did
then acknowledge this may be a way
forward. Shortly after this meeting Grand
Central proposed the industry form of
mediation using ADRC and in consultation
with Network Rail.
5.2 page 22
Network Rail disagrees with the statement
made in 5.18 of Grand Central’s Statement.
The Network Rail response dated 27
October 2016 took numerous days of
analysis and preparation and it is by
coincidence that Grand Central sent a
chasing email to Network Rail’s Route
Managing Director the day before the
Network Rail letter was submitted to Grand
Central.
Grand Central notes this explanation.
However Network Rail’s still missed the
deadline under the Civil Procedure Rules
by a wide margin.
5.2 page 23
Network Rail disagrees with the statement
made in 5.19 of Grand Central’s Statement.
Network Rail has never refused to pay
compensation. Grand Central was
compensated on 27 December 2014 in
accordance with the provisions of the
contract.
It is clear that Network Rail has not yet
understood the basis for Grand Central’s
claim. This is of concern as it is nearly
three years old. The compensation that
Grand Central is seeking relates to the
introduction of the emergency timetable
and the cancelations and delays
associated with this when compared to
the planned engineering timetable agreed
42
![Page 43: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/43.jpg)
in September 2014.
5.2 page 23
Network Rail disagrees with the statement
made in 5.20 of Grand Central’s Statement.
Network Rail has been in regular
engagement with Grand Central on this
subject as evidenced in this section above.
Grand Central do not agree that there has
been engagement on this matter.
However, the responses from Network
Rail have been slow and are not
acceptable particularly with regards to
how it has responded to formal letters.
Grand Central has tried to engage with
Network Rail by raising the dispute at
meetings but this has not moved the
dispute forward – if anything raising this
dispute over a two year plus period has
delayed its resolution.
Grand Central does not accept that
evidence of meetings shows active
discussion and a willingness to resolve
the issue. In Grand Central’s case our
experience has been quite the opposite.
Grand Central has tried to elicit a
response from Network Rail by issuing
two formal letters. This has not worked
despite the offer of mediation and the
issue of a Letter before Claim. Grand
Central has reluctantly has had no option
but to progress this matter via a formal
dispute.
5.2 page Network Rail disagrees with the statement Grand Central has provided extracts of
43
![Page 44: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/44.jpg)
23 made in 5.22 of Grand Central’s Statement.
Clause 5.1 of the contract listed in
Appendix 6 of Grand Central’s Statement of
Claim fails to list the entire clause 5 of the
contract (PERMISSION TO USE), i.e.
clauses 5.3 to 5.8 are missing. Network Rail
provides the full version of clause 5 of the
contract in Appendix 10 of this Statement of
Defence as clauses 5.3 to 5.5. are relevant
to this subject.
Permission to Use is subject to the terms in
the contract which includes the Network
Code and Grand Central agreed to an
emergency timetable for 27 December
2014. Further Grand Central agreed to the
amended timetable well in advance of the
Christmas 2014 possession blockade, a
reduced Grand Central service compared to
Grand Central’s standard timetable, for the
days 27 December 2014 and 28 December
2014 (see Appendix 14 of this Statement of
Defence. Permission to use does not mean
a 24 hour / 7 days a week right to the
network and agreeing emergency
timetables is included as part of the
process. Network Rail does not agree that
Grand Central is able to recover all
“Relevant Losses” as Network Rail is not in
clause 5 of the contract so as to focus on
the relevant parts of the contract. In this
case we have not suppled clauses 5.3 to
5.8 as they do not form part of our case.
This is in accordance with Access Dispute
Resolution Rule G16(a)(ix) and the
guidance given in the template Statement
of Claim which states:
“Copies of the following documents … shall be annexed and cross referenced to the statement:
the relevant extracts of contractual Documents containing the provision(s) under which the referral to the ADA arises and/or provision(s) associated with the substance of the dispute;”
Grand Central agrees that Permission to
use is subject to the terms in the contract
which includes the Network Code and Grand
Central agreed to an emergency timetable for
27 December 2014.
Grand Central agrees that “Further Grand
Central agreed to the amended timetable well
in advance of the Christmas 2014 possession
blockade, a reduced Grand Central service
compared to Grand Central’s standard
timetable, for the days 27 December 2014
and 28 December 2014 (see Appendix 14 of
this Statement of Defence.
Grand central agrees with “Permission to use
does not mean a 24 hour / 7 days a week
right to the network and agreeing emergency
timetables is included as part of the process.”
Grand Central disagrees with “Network
Rail does not agree that Grand Central is
44
![Page 45: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/45.jpg)
breach of contract. Furthermore, the
schedule 5 provided by Grand Central in
Appendix 7 of its Statement of Claim is not
the Schedule 5 of the contract applicable on
27 December 2014. The schedule 5 listed
in the Statement of Claim of Grand Central
includes the third supplemental agreement
that was ORR approved on 7 August 2015.
The correct copy of the contract that was
live on 27 December 2014 included the first
supplemental agreement which had an
effective date of 00:01 on 14 September
2014 and was entered into pursuant to the
Passenger Access (Short Term Timetable
and Miscellaneous Changes) General
Approval 2009. Network Rail provides the
applicable Schedule 5 that was live on 27
December 2014 in Appendix 11 of this
Statement of Defence.
able to recover all “Relevant Losses” as
Network Rail is not in breach of contract.”
Grand central believe that a failure to
provide access without compensation is a
breach of contract.
Grand Central has provided a
consolidated copy of the schedule 5 as at
the 27th May 2016 from the ORR website.
The Third Supplemental agreement
amended the calling pattern table relevant
to Wakefield Kirkgate only. It has not
altered any of the relevant schedule 5
provisions relied upon by Grand Central in
its claim.
The First Supplemental agreement was
for changes to the Schedule 8 berthing
offsets at Hartlepool and Wakefield
Kirkgate. This has not amended schedule
5. Grand central has re-run its claim
based on the performance points in place
at the time. The claim amount is totally
unchanged based on the correction of
benchmarks (the third decimal point). It
changed the pennies and not the pounds
and the claimed for amount (note without
interest or costs which shows our
principled approach) is the same.
None of the supplemental amendments
identified by Network Rail change the
claim. We are content to use the version
of the Schedule 5 supplied by Network
45
![Page 46: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/46.jpg)
Rail in its Statement of Defence.
5.2 page 24
Network Rail disagrees with the statement
made in 5.27 of Grand Central’s Statement.
Grand Central were not “perversely
penalised” for agreeing to the emergency
timetable. Network Rail acted reasonably in
accordance with the contract to facilitate an
emergency timetable. Network Rail does
not agree that there is a “perverse”
incentive to agree to future emergency
timetables as the parties are obligated to do
so under Part H of the Network Code
(Railway Operational Code) (see Appendix
13 of this Statement of Defence for Part H
verbatim).
This is a matter fact for Grand Central.
Grand Central has a significant loss of
around £50K, due to the agreement of the
emergency timetable. This agreement
was to assist Network Rail during a
difficult incident.
Grand Central also note that Part H does
not deal with compensation arrangements
here and this is the matter in dispute.
Under Part H there is no obligation to
agree to the timetable as Network Rail
seems to suggest.
Grand Central also argues that under
Para 5.2.2 of Part H (see Appendix 13 of
Network Rail’s Statement of Defence at
page 176 that Network Rail is under an
obligation to consider the impact of the
emergency timetable on Train Operators.
Para 5.22 states Network Rail must have
“regard to the feasibility of implementation
insofar as it impacts on Affected Train
Operators). The impact to Grand Central
was significant in terms of impact on our
passengers and the financial impact.
5.2 page 24
Network Rail disagrees with the statement
made in 5.28 of Grand Central’s Statement
of Claim as explained in Network Rail’s
view on 5.22 of Grand Central’s Statement
of Claim listed above. Network Rail does
not understand the following statement
made in half brackets by Grand Central in
5.28: “(Appendix is a breach of contract and
Grand Central believes that a failure by
Network Rail to provide access to the
network particularly without compensation
is a material breach of the contract.
Network Rail has a Track Access Contract
with Grand Central and it has failed to
provide the firm rights that support that
46
![Page 47: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/47.jpg)
whether Clause 8.2 allows Grand Central to
recover compensation for the disruption to
its services.”
access.
Grand Central in effect had no choice to
do anything but agree to the emergency
timetable given the serious issues facing
Network Rail. This was done in good faith
to assist Network Rail. We believe that to
argue that agreement to the emergency
timetable in order to escape a claim of
compensation for breach is a further
example of a breach of good faith by
Network Rail especially given the nature
and seriousness of the incident that
Network Rail was facing.
With regard to the error relating to the
“(Appendix is a breach of contract and
whether Clause 8.2 allows Grand Central
to recover compensation for the disruption
to its services.” This should read
“(Appendix 7) is a breach of contract and
whether Clause 8.2 allows Grand Central
to recover compensation for the disruption
to its services.” Apologies for the error.
5.2 page 24
Network Rail disagrees with the statement
made in 5.29 of Grand Central’s Statement
of Claim. Network Rail agreed an
emergency timetable with Grand Central for
27 December 2014 in accordance with the
contract and the Network Code and Grand
Central were allowed access to run those
services on 27 December 2014.
Grand Central maintain that agreement by
Grand Central in the circumstances of the
incident was the only option available and
that if Grand Central had not agreed then
this could have resulted in a much worse
situation for Network Rail. Grand central
agreed to an emergency timetable,
however there was no agreement on
compensation.
Grand Central believes that a failure by
47
![Page 48: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/48.jpg)
Network Rail to provide access to the
network particularly without compensation
is a material breach of the contract.
Network Rail has a Track Access Contract
with Grand Central and it has failed to
provide the firm rights that support that
access.
5.2 page 24
In Appendix 11 of Grand Central’s
Statement of Claim, a timeline of events is
listed which does not include all of the
events that have occurred. In Appendix 5 of
its Statement of Claim, Grand Central
chose to include Network Rail’s letter dated
27 October 2016 without including
Appendix 1 that was attached to Network
Rail’s letter and this Appendix 1 listed a
timeline of events yet Grand Central has
not included all of these events in Appendix
11 of the Statement of Claim. The full
version of Network Rail’s 27 October 2016
letter, including its Appendix 1, is included
in Appendix 8 of this Statement of Defence.
Grand Central notes that Network Rail has
not disputed the details of the issues
raised on the Grand Central timeline.
Network Rail has sought to add to this
timeline. Grand Central produced a
timeline covering the issues relevant to
the claim. We feel that many of the items
that Network Rail have suggested be
added to the timeline add very little.
However if Network Rail believe that the
items they have raised are relevant to the
claim and will make a material difference
we are happy to include these.
5.3 Issues not addressed by the Claimant that the Defendant considers should be taken into account as material to the determination, and the reasons supporting these contentions.
5.3 Page 24
If Grand Central paid into the ACS regime,
parts 2.5 and 2.6 of the ORR model clause
contract would replace the 2.5 and 2.6 in
the contract and compensation would have
been received by Grand Central under
Schedule 4 for 27 December 2014 for a
Type 1 Restriction of Use.
The ADA is asked to note the difficulty in
obtaining an ACS quotation from Network
Rail. The ACS is based solely on planned
possessions known well in advance it is
not based on emergency possessions of
the type that had occurred here. In any
event Grand Central does not agree with
Network Rail that schedule 4 is the only
48
![Page 49: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/49.jpg)
route to compensation. Grand Central
has identified clause 8.2.
Grand Central also reiterates that
although they agreed to the emergency
timetable there was no agreement on
compensation. Grand Central expected to
be compensated under schedule 8 for the
introduction of the emergency timetable.
It was only after the event that it became
clear that Network Rails decision to “P”
cod services would leave Grand Central
with a significant financial loss.
5.3 Page 25
Grand Central should have included all
events included in Appendix 1 of Network
Rail’s letter dated 27 October 2016. In
Appendix 5 of its Statement of Claim,
Grand Central chose to include Network
Rail’s letter dated 27 October 2016 without
including Appendix 1 that was attached to
Network Rail’s letter. The full version of
Network Rail’s 27 October 2016 letter,
including its Appendix 1, is included in
Appendix 8 of this Statement of Defence.
Agreed – this was an error in the
translation process from a Pdf to a word
document.
5.4 Why the arguments raised in 5.1 to 5.3 [sections (b) and (c) above] taken together favour the position of the Defendant.
In relation to “not acting in good faith”:
5.4 Page 26
Network Rail has compensated Grand
Central as it was obliged to under the
provisions of Schedule 8 for the timetable
agreed for 27 December 2014.
Grand Central dispute this as
compensation for the introduction of the
emergency timetable was not discussed.
It was Network Rail who decided to
remove Grand Central services from the
schedule 8 compensation regime.
49
![Page 50: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/50.jpg)
Grand Central has at no stage has
agreed to waive its contractual right to
compensation. Indeed the issue of
compensation was raised at the earliest
opportunity on the 5th January 2015
(Appendix 1) and discussions have been
ongoing ever since at regular meetings
between Network Rail and Grand Central
managers.
5.4 Page 26
Thus there was no reliance on Grand
Central to have compensation by the fact
that they agreed to the emergency
timetable. Network Rail is in agreement that
emergency conference calls are not the
time nor the place to discuss compensation.
Grand Central dispute this as
compensation for the introduction of the
emergency timetable was not discussed.
It was Network Rail who decided to
remove Grand Central services from the
schedule 8 compensation regime.
Grand Central has at no stage has
agreed to waive its contractual right to
compensation. Indeed the issue of
compensation was raised at the earliest
opportunity on the 5th January 2015
(Appendix 1) and discussions have been
ongoing ever since at regular meetings
between Network Rail and Grand Central
managers.
5.4 Page 26
The statements made in 5.2 and 5.5 of
Grand Central’s Statement of Claim
demonstrate Network Rail working in good
faith to facilitate the emergency timetable
Grand Central argue that the breach of
good faith has occurred after the
agreement of the emergency timetable.
We believe that Network Rails poor and
slow response to two formal letters both of
which offered alternatives to raising a
formal dispute is an indicator of a lack of
good faith in dealing with this dispute.
50
![Page 51: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/51.jpg)
Network Rail has only responded to these
letters following a formal complaint (See
Appendix 4 of Grand Central’s Statement
of Claim).
Network Rail did not respond to Grand
Centrals Letter Before Claim of the 9th
May 2016 within the required timescales
under the Civil Procedure Rules. Had
Grand Central taken this matter to court
the court could have imposed sanctions
for non-compliance. We believe that this
action in itself shows a lack of good faith
on Network Rail’s part.
5.4 Page 26
Network Rail realises that Grand Central
could have refused to agree to the
emergency timetable though notes that
industry parties are required to adhere to
the Railway Operational Code in Part H of
the Network Code. Network Rail believes
that the parties are here to serve the needs
of the passenger in times of disruption
Grand Central agrees that it would not
have been appropriate to refuse to alter
services based on compensation
discussions.
In this case Grand Central has agreed to
the emergency timetable in order to assist
Network Rail and to serve the needs of
the passenger in times of disruption.
Compensation was not discussed until
after the event and by this stage Network
Rail had already decided to “P” code
Grand Central’s services that resulted in
no schedule 8 compensation for an
unplanned incident which was solely
Network Rail’s responsibility.
Network Rail should not have “P” coded
these services without agreement.
5.4 Page 27
The full timeline of events, the Appendix 11
in Grand Central’s Statement of Claim plus
the additional events mentioned by Network
On the 9th May 2016 of Grand Central
sent a Letter Before Claim under the Civil
Procedure Rules (see Appendix 2).
51
![Page 52: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/52.jpg)
Rail in this Statement of Defence,
demonstrate the regular dialogue between
the parties on this subject and Network Rail
believes this is within the spirit of good faith.
Network Rail did not respond within the
Civil Procedure Rules timescales. In any
event Network Rail only responded to this
when a complaint was made.
The letter before Claim required a formal
response – Network Rail ignored this.
Had Grand Central taken this matter to
court the court could have imposed
sanctions for non-compliance. We
believe that this action in itself shows a
significant and worrying lack of good faith
on Network Rail’s part.
The various meetings that Network Rail
have listed show that Grand Central was
pushing to resolve the matter rather than
Network Rail being proactive in trying to
resolve the issue. There may have been
some limited engagement but this was at
the request of Grand Central not Network
Rail.
We believe that Network Rails poor and
slow response to two formal letters both of
which offered alternatives to raising a
formal dispute is an indicator of a lack of
good faith in dealing with this dispute.
Network Rail has only responded to these
letters following a formal complaint (See
Appendix 4 of Grand Central’s Statement
of Claim).
Had Grand Central taken this matter to
court the court could have imposed
sanctions for non-compliance. We believe
that this action in itself shows a lack of
52
![Page 53: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/53.jpg)
good faith on Network Rail’s part.
In relation to making “a failure to pay compensation”:
5.4 Page 27
As stated in 20.33 of PR13 conclusions, the
ACS is about “planned possessions”, where
“planned” simply means agreed before the
day on which it occurred and “this is
principally as a result of Network Rail
undertaking engineering work”,
Paragraph 20.33 states:
“The Schedule 4 possessions regime is designed to compensate train operators for the financial impact of planned possessions where operators are given restricted access to the network, principally as a result of Network Rail undertaking engineering work.”
The definition of “planned” does not form
part of 20.33. Indeed what went on in
relation to the incident at Finsbury Park
can in no way be classed as “planned
possession”
5.4 Page 26
Network Rail can only compensate Grand
Central further, via clause 8.2 of the
contract, if there has been a breach of
contract and this is not the case. Network
Rail and Grand Central agreed to an
emergency timetable in advance of 27
December 2014.
Grand Central believes that a failure by
Network Rail to provide access to the
network particularly without compensation
is a material breach of the contract.
Network Rail has a Track Access Contract
with Grand Central and it has failed to
provide the firm rights that support that
access.
Grand Central in effect had no choice to
do anything but agree to the emergency
timetable given the serious issues facing
Network Rail. This was done in good faith
to assist Network Rail. We believe that to
argue that agreement to the emergency
timetable in order to escape a claim of
53
![Page 54: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/54.jpg)
compensation for breach is a further
example of a breach of good faith by
Network Rail especially given the nature
and seriousness of the incident that
Network Rail was facing.
5.4 Page 26
Network Rail disagrees with Grand Central
that Network Rail was in agreement that
compensation should be paid to Grand
Central for agreeing to the emergency
timetable as set out in 4.13 of Grand
Central’s Statement of Claim
Grand Central notes this statement.
However, this statement is at odds with
the actions of the NR LNE route team who
have been sympathetic and have tried to
pursue compensation. In addition at level
1 meetings with the LNE team they have
presented a case that they were in
agreement with Grand Central and that it
was only the CCG panel that was refusing
to compensate.
In addition see Appendix 4 Paragraph 13
of Grand Central’s Statement of Claim.
Where Network Rail states the “… LNE
and EM route were supportive of an extra
contractual payment to Grand central”.
54
![Page 55: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/55.jpg)
5 SIGNATURE
For and on behalf of the Grand Central Railway Company Ltd
Signed
------------------Jonathan Cooper-----------------
Print Name
___________________________________
Position
Head of Contracts
___________________________________
55
![Page 56: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/56.jpg)
Annex 1 Emergency Timetable Flow Chart Extract from part H of the network Code
56
![Page 57: Template Format for a Joint Reference submission …... · Web viewIn relation to the statement set out in 4.2 by Grand Central in its Statement of Claim, Network Rail disagrees with](https://reader033.fdocuments.us/reader033/viewer/2022041505/5e24b2345a4ef2691b18d831/html5/thumbnails/57.jpg)
57