Introduction
to the Directory of Precedents and how to use it
Introduction
This Directory is
intended to provide opportunity to discover -
- whether
a matter has been the subject of a formal first stage determinative hearing;
- the
way in which previous points at issue have been determined; and therefore
- whether those determinations provide relevant
precedent for the resolution of a current dispute.
Where a Resolution
Service Party does not wish to accept the outcome of a first stage determinative
procedure, second stage “appeal” forums are available to have that outcome examined
and, if deemed appropriate, overturned.
Matters considered by the Office of Rail Regulation (“ORR”) are made the
subject of published determinations in their turn. Where the appeal has gone to arbitration, the outcome will not
necessarily be published and thus the findings of the arbitrator do not become
available to stand as precedents for other disputing parties or to influence
other determinative forums.
The Directory
therefore contains commentaries on, paraphrases of, or verbatim extracts from –
- the first stage determinative forums as
available under the Access Dispute Resolution Rules which took effect on 1 August
2010;
- the determinations of Access Dispute Panels
and Timetabling Panels from April 2005 (the date of introduction of a
substantially revised set of Access Dispute Resolution Rules) to July 2010;
- the determinations of the predecessor Committees
(Access Dispute Resolution Committee, Timetabling Committee, and Network and
Vehicle Change Committee) between 1994 and 2005; together with
- the published findings and
determinations of higher appeal bodies, with particular emphasis on those
instances where the higher body has overturned or modified the earlier
determination.
It has to be
emphasised that the Directory is essentially a signpost to enable identification
of past precedents. Precedents are
significant to both to disputing parties and to any future dispute resolution
forum, as the Access Dispute Resolution Rules lay down that
“In reaching its
determination, each and every Forum shall:
(a) take note of relevant published ADA or TTP determinations (and
those of any predecessor bodies) and of any other relevant tribunal excluding
(to the extent referred to in (b) below) the ORR, as persuasive authority but
need not be bound by them
(b) be bound by any relevant decision of the ORR on a Regulatory issue
and any relevant decisions of the courts.” [ADR Rule A7]
The presumption in
Access contract disputes is that the parties cannot agree as to the
interpretation or application of one or more of the provisions of the contractual
documents. The corollary of that
presumption is that the most useful way into the possible case law relating to
the disputed provision is for the relevant extracts and commentaries to be
presented and referenced in the sequence that the provisions appear in the
primary documents. This is the convention
followed in this Directory, where all extracts, commentaries or paraphrases are
laid out under the heading corresponding to a Part, Clause or section of the
relevant contractual document.
Disputing parties
wishing to look up case law on their area of disagreement should therefore
start by identifying which provision – by clause, sub-clause, Part, Schedule
etc as applicable – of the particular contractual document is the nub of the
dispute. That provision is then the
reference within the Directory under which any relevant material is to be
found.
Significantly, in
some instances, parties’ entitlements are derived from a combination of stated
rights and proper compliance with procedures laid down to enable those rights
to be asserted or protected. There
have, in consequence, been a number of disputes where the main point for
determination has related to whether the behaviour of the parties in respect of
laid down procedures has been reasonably what could be deemed to honour the
terms of the contract; this has particularly been the case in respect of some
areas of the Network Code.
Considerations or findings in such areas are generally grouped together
under a sub-heading “General Principles” before the more specific matters of
interpretation.
If a particular
issue has not ever been a matter for determination, there will not be any
material in the Directory. Otherwise
the reference will be supported by commentary (from earlier determinations) or
paraphrases or verbatim extracts (from later hearings). All extracts are annotated back to the
reference number and date of the hearing for the determination in which they
were originally set out. The full text
of the determination can be found elsewhere on the Committee’s website.
Parties involved in a dispute must appreciate that identifying the
existence of a precedent does not relieve them of the obligation to argue why
the precedent is pertinent to their specific circumstance, both in dialogue
between the disputing parties, and, where necessary, in cases presented to a
determinative forum.
The contractual
documents are constantly evolving and the Network Code in particular is subject
to frequent amendment and re-arrangement.
Such amendments can only be implemented following formal approval by the
ORR, and therefore each contractual document is properly a “Controlled
Document”, operative from a formal commencement date. The Access Disputes Committee has decided that, for it to be most
useful, this Directory should also be regularly updated, both to incorporate
recent determinations and to be aligned to the latest dated version of each
contractual document. This has the
following practical effects:-
·
Following
publication of any determination, the Committee Secretary will arrange for all
pertinent conclusions to be incorporated into the relevant places within the
Directory.
·
When the
result of any appeal to the ORR or an arbitrator is published, the Committee
Secretary will arrange for the outcome to be incorporated into the Directory, including
making clear which parts of any previous determination may have been
overturned, and which upheld. Outputs
of ORR are highlighted using purple.
·
For each line
of entry, the date of the associated hearing is given. Within each sub-section of the Directory the
past precedents are listed in chronological order, so that the most recent
relevant data is at the end of the section.
·
Each update of
the Directory will shown the date of uploading to the website. On the first occasion that new material is included,
it will be given a green shaded background; it will revert to a white
background when next published.
·
Where a
document has been re-ordered (e.g. Network Code Part D has been completely
re-numbered on several occasions), then the relevant section(s) of the
Directory will be reviewed, and re-ordered, so that
o
Determinations
relating to contractual text that has been re-located, but not otherwise
substantially revised, will be re-referenced and located, to correspond with
the new location in the contractual document; and
o
Cross-references
to the old paragraph numbers in extracts or commentaries will be amended.
·
Where
contractual provisions have been removed, or significantly altered, so as to
remove the context of previous determinations, the previous precedents will
normally be deleted but where it is considered by the Committee Secretary that
the findings of the earlier forum may still be of direct benefit to an
understanding of a specific provision, it/they will be retained but highlighted
to signify “Approach with Care!”
Disclaimer
It has to be
appreciated that material in the Directory has been selected from the very many
determinative hearings that have taken place and may not be exhaustive in
relation to any particular topic.
The Committee endeavours
to ensure that all its information and material in the Directory is correct and
accurate but does not warrant (including without
limitation the implied warranties of suitability or fitness for a particular
purpose) any of the material and cannot accept any liability for errors
or omissions. In
no event will the Committee be liable for:
(ii) any claim attributable to errors, omissions, or other
inaccuracies in the Directory.