The provisions of this part set out clear procedures and duties on both parties wishing to promote change, and those wishing to oppose such proposals; the arrangements include the means of entering dispute resolution. If either party fails to protect its interests by invoking the provisions of this clause, then there will be deemed to be tacit acceptance of the other party’s case. Contractually this is an end of a road.

The Committee “was firm in its view that, if an issue of change had been properly processed by one party, and the other party had not, at the due time, exercised any contractual rights to protect its interests, that other party could not, by withholding due payments, obtain a “second bite” chance to get its arguments heard”

(AD21 para 12)

The provisions of this part set out clear procedures and duties on both parties wishing to promote change, and those wishing to oppose such proposals; the arrangements include the means of entering dispute resolution. If either party fails to protect its interests by invoking the provisions of this clause, then there will be deemed to be tacit acceptance of the other party’s case. Contractually this is an end of a road.

The Committee “was firm in its view that, if an issue of change had been properly processed by one party, and the other party had not, at the due time, exercised any contractual rights to protect its interests, that other party could not, by withholding due payments, obtain a “second bite” chance to get its arguments heard”

(AD21 para 12)

To note that the model Charter Station Access Agreement provides that

“4.1 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”.

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

Where the Residual Variable Charge shall have been under or over paid, there is provision that, at the time of reckoning, interest shall be paid on any outstanding or overpaid amounts. This provision does not in any way qualify any obligations to present detailed and clear accounts, or to make prompt settlement of accounts, or to pursue areas of disagreement through due procedures, invoking necessary protections within due time scales.

“where there was evidence that payments were being withheld as an alternative to seeking a settlement using the processes enshrined in Station Access Conditions C and H, the Committee could not countenance making any determination that would appear to short-circuit these processes”

(AD21, para 13)

The Committee noted that Station Access Condition L10 reminds the parties that they retain the general obligation in law to mitigate loss or damage resulting from breach of contract. Whilst noting the extent of the case law on the interpretation of landlords’ obligations to their tenants under leases, and that the essence of one party’s case is that there has been no breach of contract, the Committee took the view that the parties’ behaviour should be assessed in part against such a general obligation. In this regard…

…it would not be reasonable, given general custom in relation to buried pipes, to expect Railtrack to attach loggers to every tenant’s meter, or to carry out regular testing of the pipes, as had been proposed by CSE.

…there was a duty on CSE, both as the party with the direct interest in monitoring the consumption of water, and as the only party in a position to influence levels of consumption, to identify its potential loss at the earliest practicable stage, and to give Railtrack the earliest opportunity to meet its obligations. The two years taken by CSE to identify its possible loss, during which time Railtrack was not prompted to take remedial action, was not reasonable.

(AD19 paras 10, 10.2, 10.3)