The obligation to act in good faith requires the parties to (inter alia) “observe reasonable commercial standards of fair dealing”. This is established by the cases cited by [the TOC]. These were Berkeley Community Villages Ltd and Anor v F Pullen and Anor [2007] 1330 Ch, (of which I found paragraphs 86-98 particularly helpful) and CPC Group Ltd v Qatari Real Estate Investment Company[2010] EWHC 1535 (see the analysis at paragraph 237 – 248).

The obligation to observe reasonable commercial standards of fair dealing should mean that agreements are adhered to, especially when they are legally binding …

However, that is not what happened in this case. Here the Parties entered into an agreement that was confirmed in writing … Subsequently, however, NR has sought to go back on and deny the validity of the agreement on grounds … that have failed and which could and should have been mentioned before the agreement was entered into …

NR voluntarily entered into the agreement, which I have concluded is enforceable - because NR’s points of defence fail … This seems to me to be a breach of reasonable commercial standards; there is a breach of “reasonable commercial fair dealing”. Therefore NR is in breach of the obligation of good faith …

(ADA27, paras 5.7.2, 5.7.3, 5.7.4, 5.7.7)

…although at first sight the requirement in the [Track Access Contract] for each party to comply with ‘all applicable obligations’ may seem onerous, this must be interpreted to reflect the way in which safety law is enforced on the Network.

[A Safety Management System (“SMS”)] must include: ‘procedures to ensure that accidents, incidents, near misses and other dangerous occurrences are reported, investigated and analysed and that necessary preventative measures are taken’ … Schedule 1 to ROGS [Railways and Other Guided Transport Systems (Safety) Regulations 2006] deals with SMSs and Article 2 sets out the basic requirements of an SMS. The section quoted above appears at 2(f)(ii). In my judgment this duty must be conducted honestly and transparently, sharing information with other industry parties where appropriate. Even if this were not the case, the power in [the Track Access Contract] for either Party to make reasonable requests of the other relating to Safety Obligations is relevant.

Clearly the first duty on the Parties is to discuss any safety concerns with the other, whether these concerns arise from day-to-day operations on the Network or … from a specific incident.

…parties to [Track Access Contracts] who must inevitably hold a Safety Certificate or Authorisation - should be familiar with the duties placed on them in their [Track Access Contract], especially those relating to safety.

(ADA20, paras. 5.1.2, 5.1.9, 5.1.10, 5.12.3)

…one of the rights which passed to [the TOC] pursuant to the Transfer Scheme was a right to make and pursue a claim for compensation under Network Code Condition G2.2 arising from the consequences of Network Change Notices …

(ADA29, para 7.1)

[TOC] raised the issue of the adequacy of the Schedule 4 revenue compensation available to it for its disrupted services, in relation to its assumed actual revenue loss resulting from overall suppression of passenger numbers rather than just directly affected trains, with the assertion … that its potential revenue loss if the proposed possessions are taken could exceed its Schedule 4 compensation … it seems that this cannot be a proper consideration for a Panel such as this to take into account in evaluating the proposed timing of possessions. As far as the Panel is concerned, the level of Schedule 4 compensation, including the extent (if any) to which it takes account of estimated levels of disaffected would-be passengers, must be regarded as a ‘given’ determined by policy and consultation, and ultimately by ORR.

(TTP376/377, para 8.3.5)

[The ORR’s findings on appeal in this case are best understood by treating them as individual comments (some upholding, and some qualifying), on the findings of the Panel). Note that references to specific numbered paragraphs in Schedule 4 are no longer correct, following changes to the model contract.] Thus:

The column C Notification Factor applies only where the facts of the case fit the wording of paragraph 4.1 of Schedule 4. If they do not (for example, because the ROU was not reflected in the First Working Timetable, and this was not because of a request by FGW that it should not be) Network Rail cannot claim the benefit of column C whatever FGW’s shortcomings may have been

(ADP20, para 56.10)

ORR upheld the Panel’s finding at paragraph 56.10 of the Interim Determination.

the use of the word “because” in paragraphs 4.1(b)(iii) and 4.2(b)(ii) of Schedule 4 to the Track Access Contract means that the column C (or as the case may be D) NF applies only where Network Rail’s failure to upload to TSDB by T-12 has been caused by FGW’s failure to submit a Revised Bid by T-18 (taking account of all that is said in this determination). A “but for” test should be applied. This test would not be satisfied if it appeared that the true cause was a complete failure of Network Rail’s systems. It would be unlikely to be satisfied if what FGW had prepared and intended as a Revised Bid failed to qualify as such only because it was submitted a day late.

(ADP20, para 56.11)

[ORR upheld the Panel’s finding at paragraph 56.11 of the Interim Determination as it agreed that the word “because” in paragraphs 4.1 (b)(iii) and 4.2(b)(ii) of Part 3 of Schedule 4 pt the T AA meant there must be a causal connection between the train operator’s failure to submit a Revised Bid in accordance with Condition 04.8.3, and the fact that the ROU was not reflected in the Working Timetable on the relevant day. ORR rejected the Panel’s finding that the appropriate test for causation is the “but for” test and found that the correct test is whether the failure to submit a Revised Bid is a substantial cause of the fact that the ROU is not included in the Working Timetable, even if there are other concurrent causes.]

given the discretions and authorities at Network Rail’s disposal in the operation of Condition D4.8.2, instances when a failure to “upload to TSDB at T-12” is “because the Train Operator has failed to give Network Rail a Revised Bid in accordance with Condition D4.8.3”, and the “but for” test is therefore satisfied, are likely to be specialised and infrequent.

(ADP20, para 56.12)

[ORR rejected the Panel’s finding at paragraph 56.12 of the Interim Determination]

Schedule 4, and in particular paragraphs 5 and 4, are drafted on the basis that a) all ROUs require Network Rail to pay compensation to the Train Operator; b) the extent to which the compensation factor is reduced by one Notification Factor rather than another depends largely on steps to be taken by Network Rail; accordingly c) the onus of proof is on Network Rail to demonstrate that those steps were taken to justify application of a particular Notification Factor.

(ADP20, 56.13)

[ORR rejected the Panel’s finding at paragraph 56.13 of the Interim Determination and found that in so far as there is a dispute of fact between the parties, the onus of proof is on the party alleging the relevant fact and once the facts are established the duty of any tribunal will be to construe the relevant provisions of the contract. and apply them to the facts.]

[Following the interim findings and the ORR’s determination on Appeal, the Parties were able to reach agreement and there wasn’t a final hearing of ADP20.]

[This dispute, which concerned the interplay between Journey Time Protection rights sold in Schedule 5 and subsequent planning of Engineering Access via Part D of the Network Code, predated the industry review of specificity in Access Contracts, and the move towards ‘Quantum Only’ Access Rights. Nevertheless, it was thought helpful to retain this excerpt regarding the relationship between rights in Schedule 5 and the Engineering Access Statement and Timetable Planning Rules. Thus:]

Here the Panel finds that, in relation to WCT’s very specifically protected Firm Rights, and Network Rail’s rights to implement Restrictions of Use, the following considerations apply, and derive from the operation of all the procedures contemplated in Part D of the Network Code and the incorporated Rules of the Plan [now Timetable Planning Rules], and Rules of the Route [now Engineering Access Statement]:

• Restrictions of Use are specific single events, each catering for particular work. They can be incorporated into the Working Timetable using the Rules of the Route consultation process as laid down in Conditions D2.1 Review of the Rules of the Route/Rules of the Plan, or D2.2 Possession Strategy Notice, or D4.8 Supplemental Timetable Revision Process, all of which processes are subject to challenge by Train Operators;

• the outcome of such processes can be that

  • the work is be undertaken within the span of a Standard Possession Opportunity (Section 4 of the Rules of the Route);

  • the work requires possessions that exceed the Standard Possession Times and are detailed in Section 5 Possession Strategy and/or Section 7 Register of Possessions;

• individual Restrictions of Use established in accordance with the due processes and incorporated into the Applicable Rules of the Route, may require rescheduling of WCT trains, and such rescheduled Train Slots need not, in accordance with the terms of Paragraph 7.1(c), comply with the Key Journey Time provisions in Table 6;

• in the absence of any specific Restriction of Use (which may include a recurring Restriction of Use), extending WCT’s Journey Times beyond the limits defined in Table 6 (e.g. to accommodate a standard 2TTR) has no contractual sanction, and is therefore a breach of WCT’s rights …

Except where Network Rail can demonstrate, on a case by case basis, that there are such specific circumstances as are contemplated by WCT Schedule 5 paragraph 7.1(c), namely a Restriction of Use that has been incorporated into the Applicable Rules of the Route

• it is bound by the provisions of WCT Track Access Contract Schedule 5 paragraph 7.1(a), including in respect of the Key Journey Time Firm Rights with which all Offers of Train Slots should comply and therefore

• is precluded, by those same provisions, from proposing for incorporation into the Applicable Rules of the Plan, or Applicable Rules of the Route, any amendments that, would prevent it from:

  • scheduling a Journey Time which is equal to or less than the Fastest Key Journey Time in respect of at least one Passenger Train Slot for each of the Key Journeys specified in Table 6.2 in respect of each Weekday; and

  • which is equal to or less than the Maximum Key Journey Time specified for every Passenger Train Slot consistent with each Key Journey of the type specified in Table 6.3; and

  • should be taking all necessary steps to ensure that only Train Slots compliant with WCT’s Firm Rights are incorporated into the Working Timetable.

Where a current Offer does not comply with a Key Journey Time provision at the behest, or with the acquiescence, of WCT, Network Rail is not absolved from the need to achieve compliant Offers, but the Panel would accept that this might be a matter of lower priority.

(TTP324, paras 35, 38.1, 38.2)

[This letter, relating to the ORR’s decision on an old application for enhanced Schedule 5 access rights, predates the industry review of specificity in Access Contracts, and the move towards ‘Quantum Only’ access rights. Nevertheless, it was thought helpful to retain this excerpt regarding the relationship between rights in Schedule 5 and the Engineering Access Statement and Timetable Planning Rules. Thus:]

Virtually all rights in a track access contract are subject to the RoR [now Engineering Access Statement] and the RoP [now Timetable Planning Rules]. In respect of the RoR, this is because rights should not unduly obstruct Network Rail’s maintenance and renewal requirements. In respect of the RoP this is because it is quite likely that that certain allowances contained within them may need to change over the lifetime of a track access contract …

We expect contractual journey time protection to contain a degree of flexibility so that Network Rail can provide for changes to successive timetables over the life of the contract, including accommodating future growth. We would usually expect the majority of journey time protection to be in the form of maximum journey times which are subject to the RoP/RoR which include industry consultation, agreement and appeal procedures if necessary …

Our policy is that maximum key journey times should include a reasonable amount of additional time above the clean path time (i.e. the minimum achievable time) to afford Network Rail that same flexibility in the design of the timetable (in this [Scotrail] dispute we have referred to this flexibility as “headroom”). Under the model contract provisions, even with “key” journey times Network Rail can propose changes to the RoP, e.g. to extend sectional running times, as long as it can still timetable the service within the key journey time cap …

…in considering the services for which ScotRail has sought journey time protection we have had regard to the following principles:

(a) because of the constraints they place on Network Rail, key journey times should only be approved for services that are very commercially important (i.e. in terms of passenger revenue);

(b) other than in very exceptional circumstances we should not approve provisions in a bilateral contract that frustrate multilateral network code processes;

(c) we should not object to any of the protection that Network Rail is prepared to offer on the basis that we are broadly content with what is proposed.

(ORR letter of 1 February 2010, paras 51, 55, 101, 110)

The Committee reminded the Industry that it is not appropriate to attribute fault to an external “force majeure” because the Passenger Track Access Agreement is framed in a way which does not admit, for the purposes of monitoring of train performance, any concept of “force majeure”. All forms of train delay must, by definition, be attributed either to the Train Operator named in the individual Track Access Agreement, or to Railtrack. This does not however, prevent specified delays from being attributed on an allocation of shared responsibility.

There is an obligation on the parties to a Passenger Track Access Agreement “to take reasonable steps to avoid and/or mitigate the effects of incidents” (including loss of adhesion).

[The quoted extract above can now be found in Schedule 8 Clause 5.1b (model contract as at February 2021).]

The Committee considered a reference in which specific matters of interpretation of Schedule 8 were raised, and there was potential linkage with proposed amendments to the Rules of the Plan. The Committee decided that any decision as to whether, in future, a Passenger Timetable should show different times for arrival at final destination from those in the Working Timetable, was a matter for the commercial judgement of the Train Operator alone, where it related to matters of passenger perception and not to achieving any real difference in operational reliability. The Committee also concluded that achieving alignment of the Passenger Timetable and Working Timetable, where these had not previously been aligned, would potentially affect the calculation of sums payable under the Performance Regime. It noted that there was nothing in the Track Access Agreement that placed any explicit restraint on achieving such an alignment, or required that such a re-alignment should precipitate any consequential re-adjustment to Schedule 8. The Committee concluded that any such re-alignment, like any change to the Rules of the Plan [now Timetable Planning Rules], must meet tests of reasonableness.

The Committee reminded the industry about inbuilt tests provided for in the contracts, for example whether or not, during the time that services were disrupted, any passengers who wished to commence or finish journeys at an affected station were prevented from so doing.

In a case relating to train delays resulting from a fatality on tracks within station platforms, the Committee decided that a Train Operator’s duties as an operator of stations are entirely discrete from its role as “an operator of trains”, and that paragraph 5.5(b) of Schedule 8 [now para 5.3a(ii) as at February 2021] was not therefore applicable in the particular circumstances.

…the duty that is imposed upon the driver by the Rule Book in the event of fog is not to reduce speed; it is rather a duty to make a judgement in the circumstance “if you cannot see the signals at the normal distance during…-fog” and then to make the consequential judgement as to whether, or by how much, to reduce the speed of the train (“You must reduce the speed of your train as you consider necessary … if you cannot see the signals at the normal distance during-fog”);

… the First Scotrail Professional Driving Policy expresses the same idea in a similar way (“When the sighting of signals or speed restriction indicators is being impeded by fog or falling snow, you should reduce the speed of your train as necessary”): the driver is accountable for assessing the situation, and making the appropriate “necessary” response, on the basis of his or her professional competence.

… in one instance the Rule Book does prescribe a specific response that does not require the driver to exercise his judgement (“You must not exceed 40 mph during fog or falling snow on a line where AWS is not provided on the line of route, or is not in use on the train”): this is not applicable to the circumstances of this case;

… 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 23.3, 23.4, 23.5, 23.6, 23.7, 23.8, 23.9)