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1298/5/7/18 Achilles Information Limited V Network Rail

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1298/5/7/18 Achilles Information Limited V Network Rail 1 1 This Transcript has not been proof read or corrected. It is a working tool for the Tribunal for use in preparing its judgment. It 2 will be placed on the Tribunal Website for readers to see how matters were conducted at the public hearing of these proceedings 3 and is not to be 4 relied on or cited in the context of any other proceedings. The Tribunal’s judgment in this matter will be the final and definitive 5 record. 6 IN THE COMPETITION Case No. : 1298/5/7/18 7 APPEAL TRIBUNAL 8 Victoria House, 9 Bloomsbury Place, 10 London WC1A 2EB 11 22 February 2019 12 13 Before: 14 Andrew Lenon QC, Jane Burgess, Michael Cutting 15 (Sitting as a Tribunal in England and Wales) 16 BETWEEN: 17 Achilles Information Limited 18 v 19 Network Rail Infrastructure Limited 20 _________ 21 Transcribed by Opus 2 International Ltd. 22 (Incorporating Beverley F. Nunnery & Co.) 23 Official Court Reporters and Audio Transcribers 24 5 New Street Square, London EC4A 3BF 25 Tel: 020 7831 5627 Fax: 020 7831 7737 26 [email protected] 27 _________ 28 HEARING – Day 3 2 1 2 A P P E A R AN C E S 3 4 5 Mr Philip Woolfe and Mr Stefan Kuppen (appeared on behalf of Achilles) 6 Mr James Flynn QC, Mr David Went (appeared on behalf of Network Rail) 7 8 _________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3 1 Friday, 22 February 2019 2 (10.30 am) 3 (Proceedings delayed) 4 (10.36 am) 5 MR. FLYNN: Good morning, sir. Our first witness today is 6 Mr. Ian Prosser. 7 MR. IAN PROSSER (sworn) 8 Examination-in-chief by MR. FLYNN 9 MR. FLYNN: Could Mr. Prosser please be given bundle D. 10 At tab 3, Mr. Prosser -- 11 A. Yes. 12 Q. -- you will see a document headed, "Witness Statement of 13 Ian Prosser CBE"? 14 A. Yes, I do. 15 Q. If you turn to the end of that document you see 16 a signature? 17 A. Yes. 18 Q. Is that your signature? 19 A. It definitely is. 20 Q. Is that your evidence before the Tribunal today? 21 A. This is the evidence before the Tribunal that I've 22 prepared. Thank you. 23 MR. FLYNN: Very good, thank you. Mr. Woolfe will have some 24 questions for you. 25 Cross-examination by MR. WOOLFE 4 1 MR. WOOLFE: Good morning, Mr. Prosser. Now, can I just 2 begin with paragraph 24 of your statement. 3 I am sorry, I just want to check something. I can 4 see you have some papers of your own in front of you. 5 Can I ask what those are that you have? 6 A. This is some documentation I've got from the trial. 7 Q. From the trial. I just wanted to check. Have you got 8 your own copy of your statement there? 9 A. Yes. 10 Q. That is what I am trying to see. 11 I am just interested to know what the witness has -- 12 what you have in front of you, that is all. 13 A. I've got some -- some notes. 14 Q. Are those handwritten notes that you have made yourself, 15 or are these notes that somebody else has given you? 16 A. Some of them are emails, some of them my handwritten 17 notes. 18 Q. Are they matters that are in the trial bundle, do you 19 know? 20 A. Some of them won't be. 21 Q. Right. 22 A. But if you're -- 23 Q. As long as we know what you have. 24 A. Yeah. 25 Q. If you start referring to them, we may need to talk 5 1 about that? 2 A. Yeah, that's fine. 3 Q. Thank you. 4 Can I pick up your statement at paragraph 24? 5 A. Yeah. 6 Q. You say there -- having discussed the health and safety 7 management system and the requirement of ROGS, you say: 8 "The ORR would carefully review any major change 9 falling within the scope of ROGS 10 Regulation 13(a)(iii) ..." 11 A. Yes. 12 Q. I just want to explore with you a little bit what that 13 review would consist of. For that purpose, if I could 14 ask you to have a look at this document I am going to 15 hand up. 16 (Handed). 17 Sir, I am going to suggest in due course this goes 18 at the back of bundle G4, hence why I provided a tab, 19 but for the moment it might be easiest during this 20 examination to have it open in front of you in this 21 form. 22 Now, Mr. Prosser, this is a document published by 23 the ORR -- 24 A. Yes. 25 Q. -- as you see on the first -- it is dated 6 1 1 September 2018: 2 "Guidance on the application commission regulation 3 common safety method for risk evaluation and 4 assessment." 5 Can I just ask, were you involved in the preparation 6 of this guidance, or approval? 7 A. This -- I was not directly involved in it, but the -- 8 because this -- of this guidance, in the fact that my 9 team developed this. And obviously I did read it when 10 we decided to publish it -- 11 Q. So it is a document you are familiar with? 12 A. I know of it, yes, and I -- but I don't know, 13 obviously -- with all our documents, I don't know in 14 infinite detail. 15 Q. Thank you. In broad terms would you agree that what 16 this relates to is the preparation of risk assessment by 17 undertakings involved in the rail sector, infrastructure 18 managers in particular, and it is about them preparing 19 their risk assessments where changes are made? 20 A. Correct, yes. 21 Q. I see. 22 Could I ask you to look at page 3, paragraph 1.1. 23 If I could ask you perhaps and the Tribunal, rather than 24 me read it out, just to read it for a moment. 25 (Pause) 7 1 A. Yeah, I understand that. 2 Q. So this is an ORR document giving guidance as to an 3 EU harmonisation measure, is it not? 4 A. Yeah, in terms of application of the common safety 5 method in risk evaluation and assessment. 6 Q. The intent, it says, of the common safety method of risk 7 evaluation is to -- it addresses a perceived problem of 8 barriers to competition, and it is to harmonise risk 9 evaluation, and it is within the context of a system of 10 mutual recognition; that is right, is it not? 11 A. Yes. 12 Q. So it is companies that can be recognised in, say, 13 the UK, that can do a safety assessment that will then 14 be recognised across the EU, broadly speaking? 15 A. Broadly speaking, but it's obviously quite dependent 16 upon what you're talking about. 17 Q. Yes. We are going to go through the details of this in 18 a moment but I am trying to make sure we all understand 19 what we are talking about. 20 It says at 1.2, it is a: 21 "... framework that describes a common mandatory 22 European risk management process ... and does not 23 prescribe specific tools ..." 24 Then can I ask you to turn over the page and look at 25 1.4, and just to check that I understand the scope of 8 1 this. At 1.4 it stays: 2 "The starting point for anyone proposing any change 3 in relation to the main line railway system is the 4 CSMRA." 5 So the common safety method risk assessment: 6 "It applies when any technical, operational or 7 organisation change is being proposed to the railway 8 system." 9 You first consider if there is an impact on safety, 10 and if there is no impact on safety, you can just forget 11 about this, but if there is an impact on safety, 12 Paragraph 1.5, you have to decide whether or not 13 the impact on safety is significant. That is right? 14 A. That's correct. 15 Q. So am I right in thinking where any proposal has 16 a significant impact on safety, this common risk 17 assessment methodology must be applied? 18 A. Yeah, if -- if it's significant, yes. 19 Q. If it is significant. 20 It goes on at paragraphs 1.6 and 177, it 21 cross-refers to domestic legislation -- I think it says, 22 at the end of that paragraph: 23 "Following this approach, it is likely to mean that 24 domestic safety legislation is complied with." 25 So that is helpful. Then 1.7: 9 1 "The RSSB [it notes] has suggested applying a risk 2 management process, even if the change is not 3 significant." 4 Is that something you would advocate? 5 A. I think it depends on the situation. 6 Q. Thank you. So we are going to look in a moment at -- 7 so, a question for you. If a major change to health and 8 safety management system is proposed that will have an 9 impact on safety, this risk assessment methodology 10 should be followed? 11 A. If the -- if the change is deemed to be significant. 12 Q. Okay.
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