To note that the Charter Station Access Agreement provides that:

Except as provided in Clause 7.10, the Station Access Conditions are incorporated in and shall form part of this Agreement in relation to the Station.

Part F of the Station Access Conditions [ACCESS CHARGING] is not incorporated into this Agreement.

[Extracts from templated Charter Station Access Agreement Access by Charter Train Operator for the provision of Non-Regular Passenger Services, 2007 between London Underground Limited and Rail Express Systems Limited in respect of Wembley Central and 12 other stations]

(ADP50, paras 4.1, 7.10)

The Panel considered that… it had to consider the CSAA in relation to the following questions:

• What is the scope and function of the CSAA?

  • Which are the relevant interfaces that the CSAA regulates?

  • Who, at each of those interfaces, is the supplier, and who the customer? And

  • Who is the directing mind in relation to safe operation on either side of each interface? …

The Panel finds that the function of the CSAA is to give the operators of Non-Regular Passenger Services access to station facilities such as will enable the passengers on such services to make safely the transition between the Charter train and “the outside world”. In such a scenario, the physical interface between the responsibilities of the Train Operator (the customer) and the SFO (the supplier of services), and is de facto the platform edge. Within the train the Train Operator carries the responsibility for safe operation,, and on the station that responsibility is upon the SFO. In particular the SFO holds the accountability for the safe delivery of the “Common Station Amenities and Services”.

The Panel notes that considerable emphasis is laid, by LUL upon the importance of a second interface, namely that between the area of land owned by Network Rail upon which rests Wembley Central Station, and that other area of land, also owned by Network Rail, and referred to as the St Modwen development. The Panel acknowledges that station redevelopment works can have an impact upon the free flow of passengers to or from the station, but the management of the resulting issues cannot be other than the responsibility of the Station Facility Owner. It is reasonable for the SFO to expect that all Train Operators would provide such information as will assist it in addressing such problems, but:

• Train Operators have no role or responsibilities in the management of that external interface, and;

• it is the responsibility of the SFO to mitigate any external factors, and to deliver those “Common Station Amenities and Services” to which the CSAA commits it.

(ADP50, paras 14, 14.1, 16, 17, 17.1, 17.2)

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.

(ADP50, para 22)

Taking all the foregoing arguments into account, and acknowledging that the documents concerned are not always drafted unambiguously, the Panel therefore determines, in respect of the representations made by the parties, as follows:

• that the CSAA relates to the use of the Station, and exclusively to the operations within the bounds of the Station. Where the CSAA (and related incorporated documents) state or imply that the SFO will provide stated “Common Station Services or Amenities” the Train Operator is entitled to presume that the SFO will take responsibility for supplying or procuring the supply of such services;

• to the extent that the SFO has to deal with other land-owners and authorities beyond the boundary of the Station, these are a matter for the SFO to resolve. In managing these external relationships it is reasonable for the SFO to seek information from the Train Operator, and for the Train Operator to assist in such ways as it can. However, the SFO may not use the issues of its relationship with other parties as a ground for delaying, or declining any Permission to Use to which the Train Operator is entitled;

• that LUL should not have required RES to provide management of the means of access to and from the Slow Line platforms at the station;

• that RES, as an operator of Non-Regular Passenger Services, and signatory to a CSAA for the use of Wembley Central Station, could reasonably act on the presumption that, where it proposed to run such a service, and when it complied essentially with the provisions of Schedule 3 Call-off Procedure, it would be granted Permission to Use the Station;

• that, LUL, the SFO at Wembley Central, in responding to RES’ approach in relation to potential VIP Charter trains in connection with the Carling Cup Final on 28th February,

• should have been under no doubt as to the fact that time was of the essence in dealing with all issues raised, and that,

• by virtue of the speed of its response, and the stance adopted at the meeting of 29th January, had “constructively” refused RES the Permission to Use to which it was reasonably entitled, and

• by so doing given RES grounds for making the differences between it and the SFO a legitimate matter to be considered by this Panel.

that whilst the provisions of Schedule 3 Call-off Procedure contain latitudes, and discretions in relation to information to be provided and timescales to be adhered to, the SFO has a responsibility to ensure that all necessary actions and decisions are taken expeditiously with the common objective that the traffic on offer is to be won, operated safely, and not turned away.

(ADP50, para 30)

The Panel considered that … it had to consider the CSAA in relation to the following questions …

• what are the entitlements and obligations that the CSAA confers on the respective signatories in respect of

  • the terms of the “Permission to Use”?

  • the services each should provide the other?: and

  • what are the behaviours each is required to supply to the other, including communications, information to be supplied, and timescales for answers? and;

  • the extent to which the terms of contract permit one party to delegate, transfer, or subcontract any of its responsibilities to the other?

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.

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.

In support of this frame of mind the Panel would cite the following provisions of Schedule 3:

• 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;

• in 2, “The Station Facility Owner shall use reasonable endeavours to accommodate any telephone order from the Beneficiary for the provision of access, “ and

• “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.”

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:

• the Train Operator presuming on facilities that are not present, or

• the SFO seeking to provide as “Exclusive Station Services” services that are required obligations in the Station Access Conditions.

(ADP50, paras 14, 14.2, 19, 22, 23, 24)

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 to be on sale, time became of the essence in the operation of Schedule 3. The Panel is not convinced

• 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;

• 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.

Taking account of all the evidence set before it, the Panel is satisfied that

• 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;

• RES had been “constructively” refused access to Wembley Central Station;

• 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

• RES was quite within its rights to bring a reference to the AD Panel, and that

• the Panel had the jurisdiction to determine the rights of the parties.

(ADP50, paras 30.2, 30.3)

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, para 31.1)

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.

In support of this frame of mind the Panel would cite the following provisions of Schedule 3:

• 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;

• in 2, “The Station Facility Owner shall use reasonable endeavours to accommodate any telephone order from the Beneficiary for the provision of access, “ and

• “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.”

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:

• the Train Operator presuming on facilities that are not present, or

• the SFO seeking to provide as “Exclusive Station Services” services that are required obligations in the Station Access Conditions.

In this regard the Panel notes that under Part N of the National Station Access Conditions, “Station Facility Owner’s obligations… The Station Facility Owner shall (or shall procure that another person on its behalf shall):

1.3 Use all reasonable endeavours to ensure that the Common Station Services are provided to a standard and in a quantum which is at least as good as their standard and quantum as at the Relevant Date…

1.8 Save as otherwise specifically provided in the Station Access Conditions provide or procure the provision of the Common Station Services and the Common Station Amenities.”

and that furthermore Annex 1 to the Wembley Central Station Access Conditions includes amongst “The Common Station Amenities and Common Station Services”:

“3.4 Such policing as may be required by statute and such security measures as the Station Facility Owner reasonably considers are necessary.

3.6 Punctual dispatch of trains operated by or on behalf of any User.

3.7 The provision of competent and appropriately trained staff to supervise the arrival and departure of trains.

4.3 The provision of sufficient numbers of competent and appropriately trained staff to provide reasonable customer services and assistance to each Passenger Operator’s passengers (including any who are disabled), including customer assistance in relation to boarding and alighting from trains, and handling of luggage.”

(ADP50, paras 22, 23, 24, 25)

… Thus the Panel finds that:

• the parties should understand that the CSAA defines the interface between the SFO and the Train Operator, and the obligations each has to the other in relation to the transition that passengers must make between the train and the further boundary of the station;

• the SFO may adjudge that its best option for discharging some of its obligations to provide Common Services (such as train despatch) is to “procure that another person on its behalf shall” undertake the task. In the present instance RES may have agreed to be the procured person for some of the common services, but it has not done so in all cases. Where it has not, the responsibility remains with the SFO, including if appropriate, giving training to staff in relevant additional skills. This conclusion is without prejudice to any discussions the parties might enter into as to what should be considered Exclusive Station services (i.e. in respect of obligations not otherwise explicit in the CSAA);

• The Train Operator is not party to the relationship between the SFO and the St Modwen development. Whilst this may be a complicating factor for the SFO in managing Wembley Central station (and collecting the associated access revenues) the SFO may not either:

  • pray in aid difficulties arising out of that other relationship as reason for not fulfilling its obligations under the CSAA; OR

  • require the Train Operator to deploy staff or resources to assist in dealing with the difficulties in that relationship, as a condition of granting Permission to Use the Station.

(ADP50, paras 29, 29.1, 29.2, 29.3)

…the facility contemplated in Schedule 3 paragraph 1.3 for the parties to agree the nature and tariffs associated with Exclusive Station Services could usefully have been compiled at any time, building on the lessons learnt from the events of 19th April 2009, and certainly after the approach initiated on 10th December 2009. Had such an understanding already been reached it would logically have addressed most of the points of disagreement between the parties, and reduced the risk of RES’ opportunity being “timed out”. Furthermore, the existence of such an understanding would also have facilitated delivering on the presumption in the CSAA that, if it is practical to operate the proposed Non-Regular Passenger Service, the Train Operator is to be granted Permission to Use to use the Station, in return for payment of the agreed charges.

(ADP50, para 29.4)

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.

The procedures in Schedule 3 are superficially straightforward, inasmuch as they advocate Call-off Arrangements including certain benchmark, but not inviolate, timescales, by which:

• the Train Operator files an Order, giving details of the service for which specific Permission to Use is sought, and in particular clarifying any requirements for “Exclusive Station Services” (Means any services specified in paragraph 9 of Appendix 1 to Schedule 3 (Call off Specimen Order) by the Beneficiary or the Station Facility Owner in advance of the beneficiary using the Station” (CSAA Section 1 “Interpretation”);

• the SFO responds, including clarifying any issues of cost, and any further Exclusive Station Services that it considers are also required: and

• the Beneficiary (the Train Operator) confirms acceptance of the conditions made by the SFO.

The Call-off Order procedure advocates adherence to a certain proforma, set out in the Appendix to Schedule 3 In relation to RES’ bid to operate Carling Cup trains, the Call-off procedure raises the following issues of principle:

• does the information supplied have to be precise and comprehensive, i.e. as if already defined and agreed with other parties, or just sufficient to open up such necessary dialogue between the parties to test the feasibility of the request?

• is it a reasonable expectation that the “Common Station Amenities and Services” specified in the CSAA, will, as a matter of course, be supplied by SFO? and

• where Exclusive Station Services are stipulated, whether by the SFO or the Beneficiary, should these be confined to services that relate to the limits of the Station (i.e the limits within which the CSAA applies)?

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.

(ADP50, paras 19, 20, 21, 22)