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.

In advance of the inauguration of the Delay Attribution Board, the Access Dispute Resolution Committee was asked 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”.

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.

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, paras 8, 9)

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” [quote taken from AD39 para 6]

(ADP07, para 10)

Taking account of all the preceding factors, the Panel determined that

• 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;

• 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;

• 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;

• 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

  • 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;

  • 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, para17)

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,

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;

such an allocation shall be unaffected by the existence of any contracts or agreements between the Train Operators concerned;

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;

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;

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, para18)

… because delay only occurs once there is an actual incident, it should be attributed, as between the Train Operator and Network Rail, by reference to which body has the responsibility for the factor which makes the decisive difference between no Delay Incident and an actual Delay Incident.

(ADP11, para16.2)

Taking account of all the preceding factors, the Panel determined that:

• 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;

• 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

  • 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;

  • 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;

• 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,

• 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, para 18)

Taking account of the arguments advanced by the parties, and the previous determination ADP07, the Panel determined that:

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;

FGW and FGWL are, in relation to the disputed circumstances, discrete legal entities governed by independent Track Access Agreements;

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;

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;

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]…”

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

“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)).

(ADP16, para 14)

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:

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

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, para 9)

… the Determination made in the name of the Panel is that:

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.

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)”;

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;

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;

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, para 42)

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:

• “Network Rail responsibility incidents” (Schedule 8 paragraph 5.2);

• “Train Operator responsibility incidents” (Schedule 8 paragraph 5.3); or

• “Joint responsibility incidents” (Schedule 8 paragraph 5.4).

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, paras 20, 21)

… 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,

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;

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.;

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, paras 23.7, 23.8, 23.9, 23.10)

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.

(AD39, para 4)