This Page was last updated on 19th January 2010
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
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Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
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Attention is drawn to the way in which, over time, and as documented below, Committees and Panels have differentiated between three complementary, but discrete, processes, namely
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B2.1 |
AD3 |
Feb 1996 |
The Committee
determined that, in the case of Trust Attribution code XA applied
to incidents of vandalism, including stone throwing from without Railway
premises, the attribution should be to Railtrack, if the train is standing on
Railtrack controlled infrastructure, and in all other cases to the Operator
of the Train. {AD3} |
B2.1 |
AD27 |
December 2001 |
TRUST Attribution is the process by which
incidents and train delays on the network are attributed to the perpetrator
of such incidents and delays. This
information is then used to drive Performance Regimes included in each
operator’s Track Access Agreement.
Any disputes should be determined in the first instance by reference
to the terms of the Performance Regime.
Where Model Clauses are proposed for such areas of the Track Access
Agreement, it may be a matter of importance whether the Model Clause is
intended to cause a change of practice, or to provide better textual
justification for existing practice {AD27}, and the reason for the change
should be stated in any consultation process. [Note: at the time of this determination,
operation of the Performance regime was informed by the Delay Attribution
Guide (DAG), but issues in dispute were resolved on the basis of arguments in
respect of Performance Regimes (Schedule 8 of Passenger Track Access
Agreement). With the incorporation
of the DAG into the Network Code, disputes have centred upon the application
of DAG codes to circumstances, and the conversion of attribution into
Performance Regime responsibility has been made correspondingly more
automatic.] |
B2.1 |
AD29 |
April 2003 |
In advance of the inauguration of the
Delay Attribution Board, the Access Dispute Resolution Committee was asked
{AD29} to determine the proper allocation of delays resulting from the
non-deliberate closing of the Main reservoir pipe on an EMU whilst in
service. The Committee determined
that, in all the circumstances of this case, there were no reasonable grounds
for allocating the incident other than to the Train Operator as “originating
from or affecting rolling stock operated by…the Train Operator”. [Note: at the time of this determination, operation of the Performance regime was informed by the Delay Attribution Guide (DAG), but issues in dispute were resolved on the basis of arguments in respect of Performance Regimes (Schedule 8 of Passenger Track Access Agreement). With the incorporation of the DAG into the Network Code, disputes have centred upon the application of DAG codes to circumstances. The conversion of attribution into Performance Regime responsibility has been made correspondingly more automatic.] |
B2.1 |
AD39 |
October 2004 |
“8.
The Committee considered that AD27 had established a distinction that was of
direct relevance to this case, namely that the (largely mechanistic) process
that, in accordance with the terms of the Track Access Agreement, attributes
an Incident that causes Delay to one or other of the contracting parties, is
something totally different in kind from the discovery and attribution of the
cause of that Incident. Attribution
to the right contracting party is a function of the operation of Schedule 8
in relation to quantified Delays that have occurred, and as such is the
proper province of the TRUST Delay Attribution Guide. Establishing possible chains of
causality, relates, speculatively, to matters which may or may not have lead
to Delay, and which are not therefore themselves Delay Incidents; as such they have no part in the
operation of Schedule 8, nor are they
within the province of the TRUST Delay Attribution Guide.” 9. In respect of the current case, the
Committee was of the view that, until the fire on the train was reported (at
23:56, by the local Fire brigade), there was no Delay Incident. Thereafter, there was Delay, and that
Delay should properly all be attributed to the fact of the Fire on the Train,
and not to any speculation as to how the fire came to be on the train.” {AD39} |
B2.1 |
ADP07 |
August 2005 |
“10. The Panel therefore concluded that the
conclusion that the former Access Dispute Resolution Committee had reached on
the practical force of the DAG, in its Determination AD39, was still valid,
and did not require to be reversed as a consequence of the amendment to
Network Code Condition B1.3 to incorporate the DAG into the Network
Code. Thus, the Panel’s …“standing
in the case derived from the fact that delay attribution is first and
foremost a matter of the application of the relevant section (in this case
section 5 of Schedule 8) of the Track Access Agreement between the
parties. The Delay Attribution Guide
is a convenient accumulation of the case law in relation to Delay
Attribution, but….it relates to the way in which incidents that have occurred
should, in accordance with the Track Access Agreement, be charged to the
account of one or other party. It is
not any part of a mechanism by which one or other party is held responsible
in law for an incident”. (AD39 paragraph 6)” {ADP07} |
B2.1 |
ADP07 |
August 2005 |
17.
Taking account of all the preceding factors, the Panel determined that 17.1 there is a separation between the delay attribution process,
and the contractual process by which, under Schedule 8 of the Track Access
Agreement, responsibility is allocated as between the Train Operator and
Network Rail; 17.2 the delay attribution process may inform the process of
allocation of responsibility, but, in circumstances where the delay
attribution process (as in DAG paragraphs 4.17, or 4.38) recognises finer
matters of causality that are not specifically recognised in the contract, it
would not be reasonable to expect to re-interpret the contract to accommodate
those nuances; 17.3 in any one Track Access Agreement the allocation of
responsibility for delay can only be as between Network Rail, and the Train
Operator that holds the access rights applicable to the delayed train; 17.4 the principle established in Determination AD39, where
responsibility under Schedule 8 was allocated in relation to the
circumstances at the time that the delay commenced, is applicable, by the
same logic, to a consideration of the responsibility for delay in despatching
a continuing service; thus 17.4.1
until a train fails to depart on time from the first
station to which the relevant access rights relate, there is no delay
incident as regards that train; 17.4.2
where a train that fails to depart on time because the
requisite rolling stock or train crew are not available from the arriving
service operated by another Train Operator, that delay, within the terms of
the bilateral Track Access Agreement, can only be the responsibility of the
Train Operator that owns the Track Access Right for the continuing service;…” {ADP07} |
B2.1 |
ADP07 |
August 2005 |
18.
“The
Panel therefore finds that, in the circumstance where a single train, or set
of train crew, operates a through service utilising the Track Access rights
of more than one Train Operator, 18.1. allocation of the responsibility for delay
at any boundary point shall be determined as between Network Rail, and the
Train Operator whose Track Access Right supports the continuing service; 18.2. such an allocation shall be unaffected by
the existence of any contracts or agreements between the Train Operators
concerned; 18.3. such an allocation shall be unaffected by
any attribution back to root cause of delay relating to the arriving service
(whether in relation to the DAG, or to the allocation of delay as between
Network Rail and the Train Operator of the arriving train, under the terms of
that Train Operator’s Track Access Agreement). For purposes of delay attribution services do not give rise to
TOC on TOC delays at the point at which an arriving service operated by one
Train Operator becomes a continuing service operated by another; 18.4. where the responsibility for delay to a
train is allocated to a Train Operator, that responsibility shall be assessed
in terms of the provisions of the Track Access Agreement that contains the
rights to run that train over the relevant section of route; 18.5.
there is
no entitlement for the Train Operator, in such a specific circumstance, to
require Network Rail to levy performance payments (under Schedule 8), from
another Train Operator.” {ADP07} |
B2.1 |
ADP11 |
November 2005 |
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B2.1 |
ADP11 |
November 2005 |
18. “Taking account of all the preceding
factors, the Panel determined that: 18.1. in any one Track Access Contract the
allocation of responsibility for delay can only be as between Network Rail
and the Train Operator that holds the access rights applicable to the delayed
train; 18.2. the principle established in Determination
AD39, where responsibility under Schedule 8 was allocated in relation to the
circumstances at the time that the delay commenced, is applicable, by the
same logic, to a consideration of the responsibility for delay to a service
leaving a stabling depot; thus 18.2.1. until it is discovered that a train is not
fit to depart on time from the stabling point to which the relevant access
rights relate (e.g. because of the need to reset a LIM), there is no delay
incident as regards that train; 18.2.2. where a train that fails to depart on time
from the stabling point because the requisite rolling stock is not ready to
depart, again because of a need for a LIM key reset, that delay, within the
terms of the bilateral Track Access Contract, can only be the responsibility
of the Train Operator; 18.3. this principle is not disturbed by
considerations of the specific occurrence that triggered the LIM shutdown,
nor of the manner in which the Train Operator complied with the Vehicle
Acceptance procedure, nor by any respect in which the Train Operator may have
misdirected itself as to the significance of that acceptance as giving assurances
in respect of the wider performance of the Network; and that therefore 18.4. the delays arising out of the need for a
LIM key reset on Class 377 trains as a consequence of the incorporation
within those trains of a “Blue Line” sensitivity to a 200Hz frequency should
be allocated to the Train Operator, Southern, in compliance with Schedule 8
Paragraph 5.3(a)(ii), “in its capacity as an operator of trains”.
{ADP11} |
B2.1 |
ADP16 |
April 2006 |
14.
Taking
account of the arguments advanced by the parties, and the previous
determination ADP07, the Panel determined that 14.1.
the
entitlements of the parties could only be determined by reference to the
Track Access Agreement relating to the train in question, and in force at the
time of any incident; 14.2.
FGW and
FGWL are, in relation to the disputed circumstances, discrete legal entities
governed by independent Track Access Agreements; 14.3.
arrangements
between Train Operators to use rolling stock to mutual advantage are, within
the terms of the Track Access Agreements, invisible, and therefore, as
previously determined in ADP07, have no bearing upon the attribution of
Delay. They are also arrangements
that are made, and can be unmade, at the discretion of the Train Operators,
and therefore are not factors to affect the interpretation of pre-existing
Track Access Agreements; 14.4.
by the
same token, the fact of ownership of one or more Train Operators is
“invisible” to the operation of any individual Track Access Agreement, and,
within the “star model”, each Track Access Agreement stands in a comparable
relationship with Network Rail and with all other Track Access Agreements
irrespective; 14.5. Network Rail is correct to construe ADP07 as applicable to the generic case in this appeal, and to allocate delay to departing services solely in respect of the provisions of the operative Track Access Agreement. If the departing service departs on time there is no incident. Otherwise, if it departs late because no rolling stock is available (for whatever reason) at the booked departure time then it fulfils one of two criteria for which “the Train Operator shall be allocated responsibility” , namely that the ”incident [is one that]…” 14.5.1. causes delay to…the commencement of a Train’s journey, which is caused by the late running for any reason whatever of any rolling stock included in that Train when that rolling stock is operated by or on behalf of another train operator..” (Schedule 8 paragraph 5.3 (b) (ii)). OR 14.5.2. “is caused wholly or mainly by circumstances… (whether or not the Train Operator is at fault) within the control of the Train Operator in its capacity as an operator of trains” (Schedule 8 paragraph 5.3 (a) (ii)). |
B2.1 |
ADP19 |
October 2006 |
9.
The
Panel considered that, in respect of all the detail of this dispute, there
was a need to bear in mind the clear distinction between the provisions of
the Network Code, which are incorporated within and form a mandatory element
of every Network Rail Track Access Contract approved by the Office of Rail
Regulation, and the specific, and sometimes bespoke, provisions of the
individual Track Access Contract with the individual Train Operator. In particular, the Panel differentiated 9.1.
the
multilateral process set out in the DAG, and enforced by the contractual
obligations set out in paragraphs 5 & 6 of Schedule 8 of the Track Access Agreement (TAA) by which the nature of an incident is
determined, coded, and, along with any resulting Delay Minutes, is attributed
to a responsible organisation (“the TRUST DA process”); from 9.2.
the
bilateral contractual mechanism by which relevant information from the TRUST
DA process is converted, through the intermediary of the PEARS system, and
subject to any other agreements between the parties, into payments due under
the terms of the individual Train Operator’s performance regime (”the money
process”). In the case of FSR these
were contained in Schedule 8 of its Passenger Track Access Agreement/Track
Access Contract (paragraphs 7,8,9 and 10 of Schedule 8).
{ADP19} |
B2.1 .
Determination of Causes of Delays or Cancellations |
ADP31 |
February 2008 |
42. “… the Determination made in the name of
the Panel is that 42.1. 3K21 was immobilised, and incurred both
direct and reactionary delay because a part of the air system for the doors
of the leading coach, and caused a loss of air pressure, resulting in an
emergency brake application and the train coming to a stand. 42.2. the provisions of Condition B2.2, combined
with the provisions of the Delay Attribution Guide, taken at face value,
would initially result in this
incident being allocated, within the terms of Schedule 8 of the Passenger
Track Access Contract as a Train Operator Responsibility incident , as caused
“(whether or not
the Train Operator is at fault) by any act, omission or circumstance
originating from or affecting rolling stock operated by or on behalf of the
Train Operator (including its operation)”; 42.3. in the light of the manner in which
information was passed between the parties at the time of the incident, there
are no grounds for suggesting that any action was left undone which might
have lead to further information being available; 42.4. the damage to the train that resulted in
the train stopping out of course, and incurring the delay, could not, on the
balance of probability, be the result of other than the train having struck
an object , lying foul of the swept envelope; 42.5. whilst the operation of the Delay
Attribution Guide does not require the parties to carry out a forensic
consideration of any chain of causality, except to the extent that the Guide
differentiates between causes of incidents in the coding structure, it is
determined that this incident should be coded in a way that reflects that the
responsibility for keeping the swept envelope clear of extraneous objects (
whatever their provenance) lies with Network Rail;…” {ADP30) |
B2.1 . Determination of Causes of Delays or
Cancellations |
ADP39
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July 2009 |
“ 20.
The Panel reminded itself that the practical
function of the DAG is provide criteria by which to judge circumstances in
which delay has occurred, and to make a pragmatic attribution of responsibility,
for the purposes of furnishing the data necessary to calculate the sums
payable, in this case, under the Passenger Schedule 8 Performance
Regime. On the other hand, however
useful the guidance given, where the DAG does not contemplate the
circumstances of a case then the correct attribution has to be based upon an
assessment of how the specific circumstances in question align with the three
different categories of defined contractual responsibility in Schedule 8: 20.1.
“Network
Rail responsibility incidents”
(Schedule 8 paragraph 5.2); 20.2.
“Train Operator responsibility
incidents” (Schedule
8 paragraph 5.3); or 20.3.
“Joint
responsibility incidents” (Schedule 8 paragraph 5.4). 21.
The Panel acknowledged that in this case neither FSR
nor Network Rail had sought to apply paragraph 5.4 and so, Schedule 8
admitting of no other options, the issue in question is which of paragraph
5.2 or 5.3 properly applies. In the
absence of an appropriate code in the DAG, the Panel must decide the
allocation on the basis of all relevant available information. ”[ADP39] |
B2.1 . Determination of Causes of Delays or
Cancellations |
ADP39
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July 2009 |
“ 23.6.
23.7.
the responsibility for ensuring that all Train
Operators work to a common set of Rules, aimed at achieving consistent safe
outcomes, lies with Network Rail.
However 23.8.
the responsibility for translating the achievement
of those outcomes, insofar as they impact upon the ways in which trains are
driven, is a matter for the Train Operator, which bears the responsibility
for assuring that its employees (in this case its drivers) are trained,
supervised, and maintained to the necessary level of professional competence
to meet its obligations to Network Rail; 23.9.
if that larger responsibility for the professional
competence of its drivers lies with the Train Operator, it must follow that,
if the proper discharge of that professional competence results in a train
delay, then that delay is inevitably within “the control of the Train
Operator in its capacity as an operator of trains”, and therefore the
attribution of the delay has to be to the Train Operator, in accordance with
Passenger Schedule 8 paragraph 5.3. 23.10. by
contrast, Network Rail has no control over the nature or quality of the
judgements to be made by the driver, either on the day or in the formation of
the relevant professional competence.
Furthermore, in this instance, Network Rail has not failed in any
respect in the normal operation of the Network, that would justify these
delays being attributed to “circumstances within the
control of Network Rail in its capacity as operator of the Network”. It would therefore be quite wrong to
designate these delays “Network Rail responsibility
incidents”. ”[ADP39] |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
B2.4.4
Guidance from the Board |
AD39 |
October 2004 |
“4. …The Committee noted that the findings of the Delay
Attribution Board have, under the terms of Track Access Condition B2.4, the
status of guidance and are not a determination. In the circumstances envisaged in Track Access Condition
B2.4.4 the Industry Committee is not acting as a court of appeal, but as the
determining body of first instance.
In these circumstances the Committee considered that it … should rather confine itself to a
consideration of the cases as made directly by the parties.” |
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Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
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Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
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