This Page was Last Updated on 3
September 2010
Rule, Clause or Condition |
Determination |
Date of Hearing |
Points made within Determination (Verbatim
extracts given in Italics, or between “quotes”)
|
|
“Permission to Use” |
ADP50 |
March 2010 |
“14. The Panel considered that …it had to
consider the CSAA in relation to the following questions: 14.1. … 14.2. what
are the entitlements and obligations that the CSAA confers on the respective
signatories in respect of 14.2.1. the
terms of the “Permission to Use”? 14.2.2. the
services each should provide the other?: and 14.2.3. what
are the behaviours each is required to supply to the other, including
communications, information to be supplied, and timescales for answers? and 14.2.4. the
extent to which the terms of contract permit one party to delegate, transfer,
or subcontract any of its responsibilities to the other? 15. .. 16. .. 17. .. 18. .. 19. In relation to the Permission to Use for which
RES applied, this is set out in Section 3 of the CSAA. There are no qualifications put upon this
Permission other than that it requires the payment of the relevant Access
Charge, and that the Train Operator observes the provisions of Schedule 3 for
the purposes of booking a specific date and time for the Non-Regular
Passenger Service. 20. … 21. … 22. The
Panel notes that wording of “Schedule 3 Call-off Procedure” concedes that
many of the stipulated actions or timescales are subject to tests of
reasonableness. The Panel considered
that, within the CSAA, and particularly in respect of Wembley Central, such
tests of reasonableness apply within the context of a presumption that the
SFO has the responsibility (and the obligation) to take such measures as are
necessary to enable the running of such Special Charter trains; any reason
for not so doing has, therefore, to be particularly compelling. 23.
In support of this frame of mind the Panel would
cite the following provisions of Schedule 3: 23.1.
in 1.3 the
opportunity that the Beneficiary “contact[s] the Station Facility Owner prior
to the access being sought and negotiates and comes to agreement with the
Station Facility Owner as to the Exclusive Station Services, and the cost
thereof, for that access.”; in other
words clears away potential obstacles to individual applications; 23.2.
in 2, “The Station Facility Owner shall use
reasonable endeavours to accommodate any telephone order from the Beneficiary
for the provision of access, “ and 23.3.
“The Station Facility Owner shall in connection with
the permission to use the Station granted by it under Clause 3 during the
term of this Agreement in relation to the Station, or during any applicable
Exclusive Period, use all reasonable endeavours to ensure that the Exclusive
Station Services are provided in accordance with the specification set out in
this Call-off Order and, if any changes have been made to them by agreement,
their standard and quantum after such changes have been made.” 24.
These facilitative provisions and the associated
“can-do” mind set, depend also upon the parties having a clear understanding
of the amenities and services that are available as a function of the
specific Station Access Conditions, so that there can be no question of 24.1.
the Train Operator presuming on facilities that are
not present, or 24.2. the SFO
seeking to provide as “Exclusive Station Services” services that are required
obligations in the Station Access Conditions. ” [ADP50] |
|
“Permission to Use” “Time of the essence” |
ADP50 |
March 2010 |
30.1.
;
“ 30.2.
it is self –evident that when, after the finalists
for the Carling Cup became known, and RES had a definite request to provide a
service, tickets for which would have soon too be on sale, time became of the
essence in the operation of Schedule 3.
The Panel is not convinced 30.2.1.
that RES was as forthcoming as it might perhaps have
been. Even though important details
such as the precise timing of the return train were not known, many matters
of principle could have been exchanged in advance of the meeting on 29th
January, and allowed LUL to conduct that meeting on an agenda of the
solutions that it proposed; 30.2.2.
that LUL appreciated the implications of the
timescales associated with planning and selling a bespoke charter train
service, as compared with catering for an augmented regular service. In particular LUL did not appear to
recognise that a Charter train operator has to make a “go/no-go” decision in
conjunction with its prospective client, in good time for the operation
either to proceed, or for the client to make alternative arrangements. 30.3.
Taking account of all the evidence set before it, the
Panel is satisfied that 30.3.1.
the stance adopted by LUL in the discussions at the
meeting on 29th January 2010, would reasonably have convinced RES
that continuing to market Carling Cup specials would have carried an
unwarranted commercial risk; and
that therefore 30.3.2.
RES had been “constructively” refused access to
Wembley Central Station; 30.3.3.
it has good reason to
take that view having regard to the contents of the respective notes made by
the parties at or around the date of the meeting on the 29th January 2010 (which
in either case could not be said to be entirely clear as to the final
mind set of the parties, particularly bearing in mind, as would have been
apparent to LUL, that there was always a limited amount of time
available to RES to implement the commercial arrangement it wished reasonably
to enter into); and that therefore" 30.3.4.
RES was quite within its rights to bring a reference
to the AD Panel, and that 30.3.5. the
Panel had the jurisdiction to determine the rights of the parties.”
[ADP50] |
|
“Permission to Use” “Time of the essence” |
ADP50 |
March 2010 |
“ 31.1. where,
as is frequently the case with proposals to run Non-Regular Passenger
services in connection with sporting events, time is of the essence in
finalising both operational and commercial arrangements, and prevarication in
the making of decisions is not acceptable, either in itself, or, where the
relevant contract makes provision for decisions to be challenged through the
Access Dispute Resolution procedure, as a subterfuge to avoid creating
grounds for a formal dispute; ” [ADP50] |