Introduction to the Directory of Precedents and How to Use It

Introduction

This Directory is intended to provide the opportunity to discover:

  • whether a matter has been the subject of a formal first stage determinative hearing;

  • the way in which previous points at issue have been determined; and therefore

  • whether those determinations provide relevant precedent for the resolution of a current dispute.

Where a Resolution Service Party does not wish to accept the outcome of a first stage determinative procedure, second stage “appeal” forums are available to have that outcome examined and, if deemed appropriate, overturned. Matters considered by the Office of Rail Regulation (“ORR”) are made the subject of published determinations in their turn. Where the appeal has gone to arbitration, the outcome will not necessarily be published and thus the findings of the arbitrator do not become available to stand as precedents for other disputing parties or to influence other determinative forums.

The Directory therefore contains commentaries on, paraphrases of, or verbatim extracts from:

  • the first stage determinative forums as available under the Access Dispute Resolution Rules which took effect on 1 August 2010;

  • the determinations of Access Dispute Panels and Timetabling Panels from April 2005 (the date of introduction of a substantially revised set of Access Dispute Resolution Rules) to July 2010;

  • the determinations of the predecessor Committees (Access Dispute Resolution Committee, Timetabling Committee, and Network and Vehicle Change Committee) between 1994 and 2005; together with

  • the published findings and determinations of higher appeal bodies, with particular emphasis on those instances where the higher body has overturned or modified the earlier determination.

It has to be emphasised that the Directory is essentially a signpost to enable identification of past precedents. Precedents are significant to both to disputing parties and to any future dispute resolution forum, as the Access Dispute Resolution Rules lay down that “In reaching its determination, each and every Forum shall:

1) > take note of relevant published ADA or TTP determinations (and those of any predecessor bodies) and of any other relevant tribunal excluding (to the extent referred to in (b) below) the ORR, as persuasive authority but need not be bound by them

2) > be bound by any relevant decision of the ORR on a Regulatory issue and any relevant decisions of the courts.” [ADR Rule A7]

How to use the Directory

The presumption in Access contract disputes is that the parties cannot agree as to the interpretation or application of one or more of the provisions of the contractual documents. The corollary of that presumption is that the most useful way into the possible case law relating to the disputed provision is for the relevant extracts and commentaries to be presented and referenced in the sequence that the provisions appear in the primary documents. This is the convention followed in this Directory, where all extracts, commentaries or paraphrases are laid out under the heading corresponding to a Part, Clause or section of the relevant contractual document.

Disputing parties wishing to look up case law on their area of disagreement should therefore start by identifying which provision – by clause, sub-clause, Part, Schedule etc as applicable – of the particular contractual document is the nub of the dispute. That provision is then the reference within the Directory under which any relevant material is to be found.

Significantly, in some instances, parties’ entitlements are derived from a combination of stated rights and proper compliance with procedures laid down to enable those rights to be asserted or protected. There have, in consequence, been a number of disputes where the main point for determination has related to whether the behaviour of the parties in respect of laid down procedures has been reasonably what could be deemed to honour the terms of the contract; this has particularly been the case in respect of some areas of the Network Code. Considerations or findings in such areas are generally grouped together under a sub-heading “General Principles” before the more specific matters of interpretation.

If a particular issue has not ever been a matter for determination, there will not be any material in the Directory. Otherwise the reference will be supported by commentary (from earlier determinations) or paraphrases or verbatim extracts (from later hearings). All extracts are annotated back to the reference number and date of the hearing for the determination in which they were originally set out. The full text of the determination can be found elsewhere on the Committee’s website.

Parties involved in a dispute must appreciate that identifying the existence of a precedent does not relieve them of the obligation to argue why the precedent is pertinent to their specific circumstance, both in dialogue between the disputing parties, and, where necessary, in cases presented to a determinative forum.

Keeping up to date

The contractual documents are constantly evolving and the Network Code in particular is subject to frequent amendment and re-arrangement. Such amendments can only be implemented following formal approval by the ORR, and therefore each contractual document is properly a “Controlled Document”, operative from a formal commencement date. The Access Disputes Committee has decided that, for it to be most useful, this Directory should also be regularly updated, both to incorporate recent determinations and to be aligned to the latest dated version of each contractual document. This has the following practical effects:

  • Following publication of any determination, the Committee Secretary will arrange for all pertinent conclusions to be incorporated into the relevant places within the Directory.

  • When the result of any appeal to the ORR or an arbitrator is published, the Committee Secretary will arrange for the outcome to be incorporated into the Directory, including making clear which parts of any previous determination may have been overturned, and which upheld. Outputs of ORR are highlighted using purple.

  • For each line of entry, the date of the associated hearing is given. Within each sub-section of the Directory the past precedents are listed in chronological order, so that the most recent relevant data is at the end of the section.

  • Each update of the Directory will be shown the date of uploading to the website. On the first occasion that new material is included, it will be given a green shaded background; it will revert to a white background when next published.

  • Where a document has been re-ordered (e.g. Network Code Part D has been completely re-numbered on several occasions), then the relevant section(s) of the Directory will be reviewed, and re-ordered, so that

    • Determinations relating to contractual text that has been re-located, but not otherwise substantially revised, will be re-referenced and located, to correspond with the new location in the contractual document; and

    • Cross-references to the old paragraph numbers in extracts or commentaries will be amended.

  • Where contractual provisions have been removed, or significantly altered, so as to remove the context of previous determinations, the previous precedents will normally be deleted but where it is considered by the Committee Secretary that the findings of the earlier forum may still be of direct benefit to an understanding of a specific provision, it/they will be retained but highlighted to signify “Approach with Care!”

Disclaimer

It has to be appreciated that material in the Directory has been selected from the very many determinative hearings that have taken place and may not be exhaustive in relation to any particular topic.

The Committee endeavours to ensure that all its information and material in the Directory is correct and accurate but does not warrant (including without limitation the implied warranties of suitability or fitness for a particular purpose) any of the material and cannot accept any liability for errors or omissions. In no event will the Committee be liable for:

  • any economic loss of whatever nature (whether or not such loss or damage was foreseen, direct, foreseeable, known or otherwise), including loss of anticipated profits, loss of actual profits (direct or indirect), loss of anticipated savings, loss of business, or for any indirect, special or consequential loss or damage arising out of the use of or inability to use the Directory

  • any claim attributable to errors, omissions, or other inaccuracies in the Directory.