ADA49_SWR Statement of Claim Page 1 of 105

ADA49: Statement of Case made by First MTR South Western Trains Limited

22nd January 2020

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1. DETAILS OF PARTIES 1.1 The names and addresses of the parties to the reference are as follows:- (a) First MTR South Western Trains Limited, a company registered in England under number 2904587 having its registered office at 4th Floor, Capital House, 25 Chapel Street, London, NW1 5DH (“SWR”) ("the Claimant")); and (b) Network Rail Infrastructure Limited, a company registered in England under number 2904587 having its registered office at 1 Eversholt Street, London NW1 2DN ("Network Rail") ("the Defendant")). (c) Correspondence details of SWR’s contacts are as follows: a) Dave Waldron, Current Performance Manager SWR, South Bank Central, 30 Stamford Street, London SE1 9LQ: [email protected] : 07585 405449; and b) David Rourke, Regulatory Access Manager SWR, South Bank Central, 30 Stamford Street, London SE1 9LQ: [email protected] : 07814 347296.

2 THE CLAIMANT’S’ RIGHT TO BRING THIS REFERENCE

2.1 This matter is referred to an Access Dispute Adjudication (“ADA”) for determination in accordance with Schedule 8 paragraph 16.1 of the Track Access Contract dated 20th May 2004 between SWR and Network Rail (“the Agreement”1). The clause in question, namely Schedule 8 paragraph 16.12, reads as follows:

2.2 Having followed the process outlined in Schedule 8 paragraph 16.1, above (including making a joint submission to the Delay Attribution Board, which was considered at a hearing on 19th November 2019, the conclusions arising from

1 This was the Track Access Contract that was in place, between the parties, at the time of each of the three incidents from which this Statement of Claim arises. 2 The relevant extracts from Schedule 8 of the Agreement, including paragraph 16. are available at Annex 3.

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which are published as ‘DAB guidance 50’, approval date 17th December 193), SWR and Network Rail have been unable to reach agreement regarding the attribution of delays in three incidents. 2.3 In all three incidents, there was a common inability to mitigate delays owing to the non-availability of a set of points which, if operational, could have been used to divert services around a stationary train. 2.4 At the Delay Attribution Board hearing on 19th November 2019, the unanimous finding regarding the principle at issue, and therefore all three incidents, was that attribution should fall to SWR. 2.5 SWR disagrees with this finding. Therefore, SWR has raised this dispute with the Access Disputes Committee, via the provisions of Schedule 8 paragraph 16.1(d) of the Agreement, by way of a ‘Notice of Dispute’ dated December 31st 2019.

3 CONTENTS OF REFERENCE

This Statement of Case includes:- (a) In Section 4, the subject matter of the dispute in Section 4; (b) In Section 5, a detailed explanation of the issues in dispute prepared by the Claimant; (c) In Section 6, the decisions of principle sought from the ADA in respect of a) legal entitlement, and b) remedies; and (d) Annexes containing supporting material.

4 SUBJECT MATTER OF DISPUTE

4.1 This dispute concerns the allocation of delay responsibilities, arising from three incidents at a common location.

4.2 The three TRUST incidents in question are as follows4: No. Date Description Trains Mins FTS Canc 132414 22nd June Mitigation to 2G23 Class 456 Unit 44 388 14 1 2018 Failure at Wimbledon 188908 12th July Mitigation to 1D45 Sick Driver at 94 1069 47 2 2018 Wimbledon 508283 29th October Mitigation to 2H59 Passenger 5 45 0 0 2018 taken ill at Wimbledon Totals 143 1502 61 3

4.3 It should be noted that the delays shown above relate purely to mitigation of the original incidents, caused by the noted events, which affected SWR trains at Wimbledon station platform 8.

3 ‘DAB Guidance 50’, and the paper dated 21st October 2019 which was jointly submitted to the Delay Attribution Board meeting of 19 November 2019 by Network Rail and SWR, are reproduced at Annex 9. 4 A list of the TRUST delays, cancellations & fails to stop attributed to each of the three incidents, is available at Annex 2.

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4.4 In the case of each incident, there is no dubiety regarding the prime causes, which are, respectively, a SWR train failure, a SWR driver taken sick and an ill SWR passenger. Delays appropriate to these prime causes have been accepted by SWR, as they clearly fall within Schedule 8 paragraph 5.3 (a) (i) (ii) or (iii) of the Agreement5 and are therefore classified as ‘Train Operator responsibility incidents’.

4.5 In each of the three incidents, with a SWR train service stationary in platform 8 (Down Slow line) at Wimbledon station – owing to incidents which rendered each of train services in question unable to proceed – the non-availability of 722 points, to the London End of Wimbledon station, prevented services in rear of each stationary train being diverted from the Down Slow to the Down Fast line.

4.6 722 points are located between Earlsfield and Wimbledon stations on the Down Slow line, at 6 miles 50 chains from London Waterloo station, to the London End of Wimbledon station. By means of route setting from W183 signal, 722 points allow train services to be routed from the Down Slow line to the Down Fast line, thereby serving or passing through platform 7 at Wimbledon station, as opposed to serving or passing through platform 8 on the Down Slow line6.

4.7 722 points were unavailable for use for nine months in total, from 14th February 2018 until 19th November 2018.

4.8 Had 722 points been operational and available, Network Rail would have had the ability to mitigate delays arising from the three prime cause incidents in question, by routing Down train services via 722 points onto the Down Fast line through Wimbledon station, and then back onto the Down Slow line via 752 points at Wimbledon West Junction, 7 miles 49 chains, located at the Country End of Wimbledon station.

4.9 Between London Waterloo and Wimbledon stations, the only other location available to cross trains from the Down Slow to Down Fast is via 1600 points, at 1 mile 20 chains, at the London End of Vauxhall station. (The appropriate line descriptions at Vauxhall are Down Main Slow and Down Main Fast.)

4.10 A diversion between 1600 points and 752 points would last for approximately 6½ miles, whereas a diversion between 722 points and 752 points would last for just under one mile. The former diversion is far less feasible than the latter diversion, given the intensive train service between London Waterloo and Wimbledon West Junction, and the fact that the former diversion would lead to some trains making station calls on the Down Main (or Down Main Fast).

4.11 Thus, the combined impact to the train service of a stationary train in Wimbledon platform 8, and the non-availability of 722 points, was effectively to “trap” trains on the Down Slow (or Down Main Slow) between Vauxhall and Wimbledon stations, with services therefore having to wait for the stationary train to move from platform 8 at Wimbledon station.

4.12 SWR considers that the delays arising from each incident were inflated by 722 points being unavailable, as this hindered recovery and mitigation, thereby

5 The relevant extracts from Schedule 8 of the Agreement are available at Annex 3. 6 See Annex 1 for a track diagram of the route between London Waterloo and Wimbledon West Junction, including Wimbledon station area.

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exacerbating the delay impact on trains trapped between Vauxhall and Wimbledon stations.

4.13 SWR’s contention is that the out of use points represent a ‘Network Rail responsibility incident’, under the provisions of Schedule 8 paragraph 5.2 (b) of the Agreement, and that the concomitant inability of the parties to mitigate the impact of each incident arises from Network Rail being in breach of Schedule 8 paragraph 5.1 (b) of the Agreement7. Therefore, this issue falls under the aegis of the Delay Attribution Rules and Principles (DAPR), Section D4, ‘Failure to Mitigate’8.

4.14 This being the case, SWR believes that the non-availability of 722 points is the prime cause for each of the three incidents, and that the delays should be attributed to Network Rail, under incidents coded IB (points failure) and ICQX (responsible manager Infrastructure Manager Wessex Inner), owing to this infrastructure asset being out of use.

4.15 In addition to Schedule 8 and DAPR applicability cited at paragraph 4.12 above, SWR considers that Network Rail is in breach of other sections of the contractual matrix, for overseeing a situation whereby 722 points were non-operational for 9 months. The contractual breaches are as follows: a) Network Licence granted to Network Rail Infrastructure Limited as at 1 April 2014, Part III, Part A, paragraph 1 (“Network management”), particularly paragraphs 1.1, 1.2 and 1.199; b) Railway Operational Code, specifically section 9.110; c) Clause 4.1 of the Agreement, ‘Standard of Performance; d) Clause 5 of the Agreement, ‘Permission to Use’, specifically clause 5.1 and 5.2(a) and (b); e) Clause 6.1 (b) of the Agreement, regarding ‘Operation and Maintenance of... [the] Network’11; f) Schedule 2 paragraph 2 of the Agreement, regarding SWR having permission to divert12; g) Schedule 8 paragraph 5.1 (b) of the Agreement, regarding failure to mitigate the effects of the incidents; and h) Network Code Part G, paragraph (b)(ii) of the definition of “Network Change”, regarding 722 points being non-operational “for more than six months”: nevertheless, Network Rail did not instigate the Network Change process13.

7 The relevant extracts from Schedule 8 of the Agreement are available at Annex 3. 8 Section D4 of the Delay Attribution Rules and Principles is reproduced at Annex 4. 9 The relevant extracts from the applicable Network Licence are reproduced at Annex 5. 10 The relevant extracts from the Railway Operational Code are reproduced at Annex 6. 11 Clauses 4, 5 and 6 of the Agreement are reproduced at Annex 7. 12 Schedule 2 paragraph 2 of the Agreement is reproduced at Annex 8. 13 The relevant extract from Part G of the Network Code is reproduced at Annex 8; cf Network Rail ‘Network Statement 2020’, p31: “Operational changes are only classed as Network Changes if they last, or are likely to last, for more than six months.”

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5 EXPLANATION OF EACH ISSUE IN DISPUTE AND THE CLAIMANT’S ARGUMENTS TO SUPPORT ITS CASE

5.1 Non-Availability of 722 points and Network Rail’s Failure to Mitigate

5.1.1. As stated in section 4.9, above, a situation prevailed on a very busy section of the South West Main Line, between London Waterloo and Wimbledon via Clapham Junction, where a set of points (722) was out of use for nine months.

5.1.2. The effect of this asset non-availability was, inter alia, to severely reduce the ability of SWR and Network Rail to mitigate the impact of three incidents between June 2018 and October 2018 (listed and quantified at section 4.2, above) affecting SWR services in the vicinity of Wimbledon station.

5.1.3. It is SWR’s contention that such a state of affairs - whereby an infrastructure asset located close to London on a very busy mainline route, was unavailable for use for nine months - should not occur under the stewardship of “a skilled and experienced… network owner and operator” acting “with that degree of skill, diligence, prudence and foresight which should be exercised”14 by such a concern.

5.1.4. Moreover, owing to the infrastructure asset’s deterioration and subsequent removal from use for nine months, SWR contends that Network Rail is in breach of paragraph 1.1 of Part III, Part A of its Network Licence, because it has not acted “in accordance with best practice and in a timely, efficient and economical manner” with regard to either “the operation and maintenance of the network” or “the quality and capability of the network”15 in the case of 722 points.

5.1.5. Under clause 5.2 of the Agreement16, Network Rail gives SWR permission “to use the track comprised in the Routes for the provision of the Services using the Specified Equipment”, and “to use the track comprised in the Network in order to implement any plan established under Part H of the Network Code”.

5.1.6. Moreover, this permission is echoed in Schedule 2 paragraph 217, whereby “[i]n order to provide Services when any part of the route is unavailable, the Train Operator has permission to use any reasonable route for diversionary purposes”. SWR considers that, during an incident involving a stationary train occupying platform 8 at Wimbledon station, it is reasonable to mitigate this incident by using 722 points to divert services.

5.1.7. However, SWR was denied the option of using this mitigation, and of exercising its rights under the contractual provisions cited, owing to the prolonged unavailability of 722 points.

5.1.8.Furthermore, Network Rail compromised its obligations regarding ‘Control Arrangements’ and incident management under Section 1 paragraph 9.1.3(b) of the Railway Operational Code (ROC) 18 by way of 722 points being inoperative for nine months, thereby limiting its ability and obligation regarding “diverting and rerouting services where necessary.”

14 Clause 4.1 of the Agreement refers; see Annex 7. 15 See Annex 5 for the relevant extracts from the applicable Network Licence. 16 See Annex 7 for reproduction of clause 5 of the Agreement. 17 See Annex 8 for reproduction of Schedule 2 of the Agreement. 18 The relevant extract from the Railway Operational Code is reproduced at Annex 6.

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5.2 Standard of Maintenance by Network Rail 5.2.1. It is SWR’s contention both that the situation regarding 722 points should not have prevailed, and also that, having prevailed, the situation should then not have endured for nine months.

5.2.2. Reference has been made, at sections 5.1.1., 5.1.3. and 5.1.4., above, to the contractual provisions relating to effective asset maintenance, and ipso facto to Network Rail’s failure to meet contractual obligations and expectations, regarding 722 points.

5.2.3. It is clear to SWR that the responsibility which is conveyed to Network Rail under Part III, Part A paragraph 1.19(a) of its Network Licence19, was not met regarding 722 points.

5.2.4. A further issue, relating specifically to incident 508283 on 29th October 2018, is the failure of Network Rail to issue a Network Change relating to 722 points being, by that time, out of use for longer than six months.

This represents non-adherence, by Network Rail, to Part G Condition G1 of the Network Code20, as the definition of “Network Change” specifically cites “any change to the operation of the Network… which… is likely materially to affect the operation of trains… and… has lasted for or is likely to last for more than six months”.

5.2.5. In such circumstances, the mechanisms available to SWR to gain redress from, and impose accountability onto Network Rail, are Schedule 8 of the Agreement and Part G of the Network Code.

5.2.6. Finally, while SWR acknowledges that this is not a contractual document, it considers the ‘South Western Railway Performance Review’ of August 2018 procured by the Department for Transport21 relevant to this matter. The ‘South Western Railway Performance Review’ makes a number of references to the condition of infrastructure on Network Rail’s Wessex Route, and to the regime of maintenance and renewals. (The report was, serendipitously, published in August 2018, during the nine month period that 722 points were out of use). The report’s conclusions on this topic are epitomised by the following quote from pp66-67: “ the existence of [Temporary & Emergency] speed restrictions [TSRs and ESRs] in this [large] quantity is an indicator of a wider problem relating to the adequacy of maintenance and renewals on the infrastructure... a much stronger focus is required to tackle TSRs and ESRs which daily erode timetable resilience. ”

19 See Annex 5 for the relevant extracts from Network Rail’s Network Licence. 20 The relevant extract from Part G of the Network Code is reproduced at Annex 8. 21 Relevant extracts from the ‘South Western Railway Performance Review’ (which is known colloquially as ‘The Holden Report’) are reproduced at Annex 10. The entire report is available via the following internet link: https://www.southwesternrailway.com/other/about-us/independent-performance-review

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5.3 Summary: Network Rail’s full responsibility for ‘failure to mitigate’ incidents 5.3.1. SWR’s contention is, therefore, that the non-availability of 722 points arose from breaches, by Network Rail, of various contractual provisions.

5.3.2. These breaches created a situation, which played out on three separate occasions, whereby the mitigation available for incidents was severely compromised.

5.3.3. As such, SWR believes Network Rail rendered itself unable to adhere to the provisions of Schedule 8 paragraph 5.1 (a)-(b) of the Agreement22, and therefore that its “failure to take such [mitigatory] steps shall be regarded as a separate incident”.

5.3.4. The provisions of sections D4.1-D4.2 of DAPR23 are also relevant regarding the inability of Network Rail to mitigate the three incidents in question:

22 The relevant extracts from Schedule 8 of the Agreement are available at Annex 3. 23 Section D4 of the Delay Attribution Rules and Principles is also reproduced at Annex 4.

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6 DECISION SOUGHT FROM THE ADJUDICATION

6.1 SWR seeks the following decisions from the ADA’s determination:

6.1.1 Matters of Principle a) That the attribution to SWR of delays arising from the three incidents which are the subject of this Statement of Claim (listed above at section 4.2) is unreasonable, given the contractual obligations of Network Rail regarding asset maintenance, and given the inability to mitigate delays arising from the three incidents, which stemmed from 722 points being out of use;

b) That, regarding the specific issue of delay attribution, the applicability of Schedule 8 paragraph 5.2 of the Agreement is confirmed, as is Network Rail’s breach of the following sections of the Agreement: i. Clause 4.1, ‘Standard of Performance; ii. Clause 5, ‘Permission to Use’, specifically clause 5.1 and 5.2(a) and (b); iii. Clause 6.1 (b), regarding ‘Operation and Maintenance of... [the] Network’; iv. Schedule 2 paragraph 2, regarding SWR having permission to divert; and v. Schedule 8 paragraph 5.1 (b), regarding failure to mitigate the effects of the incidents;

c) That Network Rail’s non-adherence to the processes relating to Network Change set out Part G of the Network Code, in relation to 722 points being out of use for longer than six months, should be noted in the specific case of incident 508283; therefore

d) That the disputed delays should be re-attributed to Network Rail, under incidents coded IB/IQCX, to reflect the aforementioned contractual breaches by Network Rail, particularly the fact that 722 points were out of use for a prolonged period, which rendered more difficult the ability of SWR and Network Rail to mitigate incidents on a very busy part of the Network.

6.1.2 Specific Conclusions deriving from those Matters of Principle. a) That specific instruction should henceforth be included in the Delay Attribution Guide regarding infrastructure assets which are taken out of use by Network Rail for a prolonged period, and regarding the impact on the Network of infrastructure asset’s non-availability when relevant incidents and delays occur, regardless of the frequency with which said infrastructure asset is ordinarily utilised.

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7. APPENDICES

The Claimant confirms that it has complied with Access Dispute Resolution Rule G16(a)(ix) which requires the following: “Copies of the following documents … shall be annexed and cross referenced to the statement: (A) the relevant extracts of contractual Documents containing the provision(s) under which the referral to the ADA arises and/or provision(s) associated with the substance of the dispute; and (B) the relevant extracts of any other Documents referred to in the reference”.

All appendices and annexes are bound into the submission and consecutively page numbered. To assist the ADA, quotations or references that are cited in the formal submission are highlighted (or side-lined) so that the context of the quotation or reference is apparent. Any information only made available after the main submission has been submitted to the ADA will be consecutively numbered so as to follow on at the conclusion of the previous submission.

8 SIGNATURE

For and on behalf of First MTR South Western Trains Limited Ltd

______Signed

David Rourke ------Print Name

Regulatory Access Manager, SWR ______Position

______

This is a control mechanism; it provides the ADA with assurance that the dispute has been referred with the knowledge and understanding of the disputing corporate body. This is important, as engaging in formal dispute resolution implies a commitment to accepting the outcome of that process. In this context, the Claimant is reminded that in sending representatives to argue its case before the ADA, “it shall… ensure that the competencies, skills and knowledge of any chosen representative are appropriate to the issues involved in the dispute (content, subject and value), as per ADR Rule A19.

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The Annexes

Annex 1:Map of the rail route between London Waterloo station and Wimbledon West Junction. Annex 2: List of TRUST delays, cancellations and fails to stop for the following incidents:  132414;  188908; and  508283. Annex 3: Relevant extracts from Schedule 8 of the Agreement. Annex 4: Relevant extracts from the Delay Attribution Rules & Principles. Annex 5: Relevant extracts from Network Rail’s Network Licence. Annex 6: Relevant extracts from the Railway Operational Code. Annex 7: Clauses 4, 5 and 6 of the Agreement. Annex 8: Schedule 2 of the Agreement. Annex 9: Delay Attribution Board correspondence:  Joint submission dated 21st October 2019 by Network Rail and SWR;  Guidance no.DAB50, arising from the Delay Attribution Board hearing on 19th November 2019; and  SWR Notice of Dispute dated 31st December 2019, in relation to Guidance no.DAB50. Annex 10: Relevant extracts from South Western Railway Performance Review published August 2018. Annex 11: Relevant extracts from Network Code Part G, ‘Network Change’.

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Annex 1:

Map of the rail route between London Waterloo station and Wimbledon West Junction.

22/1/20 ADA49_SWR Statement of Claim Track Diagrams - Wessex Page 13 of 105 V20 Revised October 2018 This document is uncontrolled

Purpose To enable these diagrams to be kept up to date To indicate track & signalling, station would you please email the address below if you locations & crossing sites in Wessex notice any errors or necessary alterations. [email protected]

Contents Index page buttons Diagrams...... 1-108 Route Map...... 113 A- C Index A-C...... 114 D - H Index D-H ...... 115 ...... I - Q Index I-Q . 116 Updates Index R-T...... 117 R - T Index U-Y ...... 118 Provisional Redbridge Depot ...... 109-110 U - Z Provisional Fulwell to Shepperton...... 111-112 Updates...... 119-127 Click on any page number to jump to index map

© Copyright 2017 This document is the property of Network Rail. It should not be reproduced in whole or in part, nor disclosed to a third party without written permission Network22/1/20 Rail Page i ADA49_SWR Statement of Claim Page 14 of 105 Symbols

Road/Rail Vehicle access point Showing mileage Not all areas are covered Veh in this revision 0m 36ch

Auto Signal plate Some signals are semi-auto Signal aspect control (bar is only half length) is automatic.

Signal Replacement facility Some signal boxes can control Auto signal can be switched to red aspect. all auto signals so there is no need Location of switch isnot always on signal post. for signal replacement facility. (Switch locations taken from ellipse)

Limited access to signal posts This is only shown for signal posts other locations may have limited access

Axle counter reset areas BOM010 Reset areas covered by possession Signal system groups axle counters need to be quoted in WON as shown with reference number.

Axle counter areas A possession can be taken around Axle Counter areas: a train but it must exit the possession EGRES required before it can be given up,

22/1/20 Page ii ADA49_SWR Statement of Claim Page 15 of 105 Wimbledon Panel 2 Int. 0062522 Ext. 0208 5455522 BML1 RDG1 1528B 1528A 1526A 1526B WATERLOO 1570B 1570A 0m 0ch 1571A 1571C

W37(1) P19 W37(2) P19 To 1535A 1536A W37 3 International Jn P18 W35(1) W35(2) 3 P18 W35 W33(1) W33(2) RDG1 See 2 0.29 P17 1536B P17

6 1532A W8 1535B W33 4 Windsor Reversible 1531A 1531B P16 1573B 1545B 1554A W1012 1534 W31(1) W31(2) 6 1532B 4 P16 W10 W31 W29(1) P15 W29(2) UP WINDSOR 1554B 1545A P15 RDG1 1573A 1548B 1553A 1528A

W1024 5 1533 1526B W29 DOWN WINDSOR 1553B 1548A 1526A 1528B P14

11 1571C 1570A W27(1) P14 W27(2) W6 W27 5 W25(1) P13 W25(2) UP MAIN RELIEF 1569B 1571A 1570B W25 3 P13 1571B 12 1569C W1010 1525A 1519 W4 UP MAIN FAST 1569A 1524C 1525B 1524B 1518 1524A P12 W23 3 1568B 1567A W23(1) P12 W23(2) 1514C 1520B P11 W21 DOWN MAIN FAST W1022 1568A 1567B BML1 3 P11 1517 1515A 1520A W21 7 W2 UP MAIN SLOW 1512B 1514 1515B B P10 1565B 1564A 1514A W19 W19 3 P10 W17 DOWN MAIN SLOW W1020 1565A 1564B 1513 P9 3 P9 1509 W17 1566A 1506 W1016 5 6 1508 SOUTH SIDING 1507 P8 1566B 3 W15 Waterloo Substation P8 BML1 W15 P7 W13 00m 28ch 1512A P7 3

W13CA 3 ENGINEERS SIDINGS W13 1502 1503B P6 W11 2 P6 W11 P5 1501B P5 W9 2 1503A P4 W7 2 P4 P3 P3 W5

1501A P2 W3 P2 P1 P1 W1 Wimbledon Panel 1 Int. 0062521 Ext. 0208 5455521 Wessex 1 22/1/20 ADA49_SWR Statement of Claim Page 16 of 105 Wimbledon Panel 2 Int. 0062522 Ext. 0208 5455522 Waterloo International Terminal

P24 W909BR NORTH SIDING 2 P24 W909 P23 W907BR P23 2 1549A W907 P22 W905BR JAT 1550 2 P22 W905 P21 W903BR 1549B P21 2 1547A W903 1551A 1546A P20

1546B 2 1557B P20 W901 W901BR 1547B 1558B 1551B 1558A 1552 A JAT A

1559 1 W908 5 JAT W906 1 m 5

International Jn 1 NOTE: BML1 to RDG1 between 1583A pts & 1583B pts. 00m 40ch W915

To 1 To Vauxhall W911 Carlisle Lane Jn Waterloo 00m 45ch See 3 1.03 0.72 0.55 0.52 Windsor Relief Line 2 See 1

W912 Windsor Relief Line 1

3 0.34 W914 Z JAT Windsor Reversible 1589 1580A Windsor Reversible 1581 W49 5 W32 4 1591A 1585 1575A W917 W913 1580B Up Windsor W22 1591B UP WINDSOR RDG1 W57 5 1590A 1588 1575B 1576A RDG1 1586B 1586A Down Windsor Fast 1590B 1577B 1576C 1578B DOWN WINDSOR 1584 1576B 1578A W79 W67 W55 1583A 1578C 1577A Up Main Relief Down Windsor Slow 1582B 1578D 1582A W34 1583B W77 W61 3 W59 W16 1593 1582C 1587B UP MAIN FAST 1582D 1587A BML1 1587C 1592B DOWN MAIN FAST 1587D 1592A W30 W65 W75 4 W53 BML1 W14 1592C UP MAIN SLOW

W1030 1595A 2 1595B DOWN MAIN SLOW

W73 W63 W E S T C R O S S I N G S W51 SOUTH SIDING

Buffer stop arrangement/renewal TBC ENGINEERS SIDINGS

Wimbledon Panel 1 Int. 0062521 Ext. 0208 5455521 Wessex 2 22/1/20 2 m WimbledonADA49_SWR Panel 2 Statement of Claim Page 17 of 105 Int. 0062522 Ext. 0208 5455522

New Covent Garden To Police Compound To Queenstown Road Nine Elms Jn W926 Waterloo RDG1 WINDSOR REVERSIBLE 1m 78c 1.70 1.46 See 4 VAUXHALL See 2 1m 29ch W922 W918 W916 UP WATERLOO CURVE Windsor Reversible 1781A P1 W64 W54 W44 W924 W923 W919 P2 AHG DOWN WATERLOO CURVE 1786B 1781B A UP WINDSOR AHG 1786A 1780A RDG1 W76 UP WINDSOR 1780B DOWN WINDSOR FAST 1778A P3 RDG1 1784 W109 W99 W89 P4 DOWN WINDSOR 1778B DOWN WINDSOR SLOW 608B W107 W72 W97 W62 W52 W87 W42 608A UP MAIN FAST To 607B P5 Queenstown Road W42R 1601B 607A DOWN MAIN FAST P6 1601dia See 4 BML1 1600B W103 W70 W93 W60 W50 W85 BML1 UP MAIN SLOW W40 1601A 1600dia P7 DOWN MAIN SLOW P8 1600A

W101 W83R BATTERSEA W91 W83 FLYOVER 2.20 Vauxhall Substation Wimbledon Panel 1 RRV New Covent Garden 01m 31ch 2m 16ch Market Int. 0062521 Ext. 0208 5455521

Arrange access via Clapham DU

2m 44ch A WESSEX ROUTE SOUTHEAST (KENT)

DOWN WATERLOO CURVE AHG Linford Street Jn UP WATERLOO CURVE AHG 2m 50ch VS73 VIR To VIR 1m 45ch Wandsworth Road

See Kent 3 754

756 Linford Street T.P. Hut 732A 02m 42ch 732B

DOWN CHATHAM MAIN UP CHATHAM MAIN To Victoria Panel 7 Battersea Pier Jn CHATHAM REVERSIBLE Wessex 3 Ext. 0207 904 0107 See Kent 3 VIR 22/1/20 ADA49_SWR Statement of Claim Page 18 of 105 Wimbledon Panel 2 Int. 0062522 Ext. 0208 5455522

2½ m 3 m QUEENSTOWN ROAD To 2m 50ch West London E Junction EVERSIBL W927 DSOR R See 5 WIN 1790 628A Platform W928 RDG1 628B Out of Use UP WINDSOR BATTERSEA W86 FLYOVER RDG1 616 W929 DOWN WINDSOR FAST 610 UP WINDSOR

617B 611A 4 P2 609B W119 DOWN WINDSOR SLOW 617A 611B P3 DOWN WINDSOR 609A

612A W82 W92 W117 612B UP MAIN FAST 613A 613B To DOWN MAIN FAST Vauxhall BML1 W90 614A W80 BML1 W113 See 3 UP MAIN SLOW 614B 615A 615B DOWN MAIN SLOW

W111 2.48 BRIGHTON M.L CHATHAM LINES Sussex ATLANTIC LINES Kent STEWARTS LANE STEWARTS (OVER) Sussex (OVER) LOW LEVEL LINES ROAD (OVER) 2m 42ch 2m 61ch Kent 2m 37ch 2m 50ch 2m 38ch Queens Road Substation 02m 66ch

Wimbledon Panel 1 Int. 0062521 Ext. 0208 5455521 Wessex 4 22/1/20 ADA49_SWR Statement of Claim SOUTHEA Page 19 of 105 To Latchmere No 3 Jn

See 108 ST (SUSSEX) SCC Victoria Panel 2A Ext. 0207 904 0211

03m 30c Wimbledon Panel 2 See 108 See 108 Int. 0062522 Ext. 0208 5455522 WESSEX ROUTE. DOWN KENSINGTON Up Sheepcote Lane

DOWN LUDGATE UP KENSINGTON

ONDON UP LUDGATE

ST L

Down Sheepcote Lane

WEST LONDON

CONTROLLED BY CLAPHAM UP YARD SHUNTER DOWN WE W1040 & W1042 MAY ALSO BE W118

W934 UP WINDSOR SLOW W116 627B UP WINDSOR FAST W932 To Clapham Junction 627A DOWN WINDSOR FAST See 6 West London Jn To W133 626 RDG1 B 03m 17c Queenstown Road W131 DOWN WINDSOR SLOW WESSEX ROUTE SCC See 4 3.16 3.10 W930 TRAIN OP. CO. 626A 624dia Windsor Reversible W1044 WESSEX ROUTE. WEST LONDON SIDINGS No 6 CY7 625 W931 W96 TRAIN OP. CO. ENGINEERS SIDINGS 624 UP WINDSOR 1038 C+P 618B W1042 1036 RDG1 or CY4 WEST LONDON SIDINGS No 3 618A DOWN WINDSOR FAST 623 CY5 1034 W1040 C.W.M 1032 W129 or CY2 WEST LONDON SIDINGS No 1 622 621B DOWN WINDSOR SLOW To CY3 Clapham Junction TRAIN OP. CO. TRAIN OP. CO. 620B 621A W104 1031 W127 UP MAIN FAST WESSEX ROUTE WESSEX ROUTE 620A UP MAIN FAST See 6 W112 619B DOWN MAIN FAST 619A DOWN MAIN FAST

BML1 W139 W110 W102 W123 BML1 UP MAIN SLOW UP MAIN SLOW

DOWN MAIN SLOW DOWN MAIN SLOW

WESSEX ROUTE W137 WESSEX ROUTE W121

SOUTHEAST SUSSEX SOUTHEAST (SUSSEX) UP LU DOWN LU DOWN KENSINGTONUP KENSINGTON

3.39 DGATE

DGATE

DON

Longhedge Jn Access point Wimbledon Panel 1 See 108 UP WEST LONDON RRV Int. 0062521 Ext. 0208 5455521 Clapham Yard Shunter DOWN WEST LON FLL2 Ext. 0207 922 9931 1m 74ch See 108 Wessex 5 22/1/20 ADA49_SWR Statement of Claim Page 20 of 105 Victoria Panel 2A

Ext. 0207 904 0211 To CJL Latchmere No 2 Jn

See 108

Note: Spad indicator platform 8 applies to both W122 and W124 signals. Wimbledon Panel 2 Int. 0062522 Ext. 0208 5455522 Down LatchmereUp Latchmere Curve CurveSOUTHEAST (SUSSEX)

4 m W161 c

To CLAPHAM JUNCTION 3 Victoria Panel 7

Wandsworth 3m 74ch 1 00m 47

Town Ext. 0207 904 0107 5

See 83 W629A 3 FLL3 Ludgate GW Jn W149 WESSEX ROUTE

Middle SidingW1074 168 yds 2 3m 57.5ch W312 W311 P1 UP LUDGATE 699 W306

123 yds W629B 3.49 To P2 W304 CJL W FLL3 Longhedge Jn

W310 4 Platform 1 DOWN LUDGATE 686B See 108 Limit of shunt Platform 2 668B 661 643 630A RDG1 667B FLL3 686A 668A 642 630B 1085 3

W302 6 P3 663A W145

P4 667A 663B 687B 3 UP WINDSOR SLOW

W300 6 664A 645 647A WESSEX ROUTE687A 664B W1049 UP WINDSOR FAST W309 TRAIN O 4 685B W307 W1058 647B 649A CARRI P. CO. P5 RDG1 AGE SI W1047 DINGS CY4 P6 W1070 649B 4 685A CY43 651 DOWN WINDSOR FAST

3 640A CY42 675B W143 2 652B 653B 640B DOWN WINDSOR SLOW To CY28 654C 652A CY40 675A Clapham Yard 653A WESSEX ROUTE 2 WESSEX ROUTE. CY96B W141 CY98 TRAIN OP. CO. TRAIN OP. CO. CY26 654A/B LOCAL PANEL 3 See 97 CY97 CY96C CY96 CY91C CY95B CY19 CY90C CY91B To CY38 CY95A Queenstown Road CY96D 3 CY90B CY91A CY24 CY95 CY20 CY17 4 m W124 CY90A CY16 See 5 681A 681B TRAIN OP. CO. 633B 632A 4 TRAIN OP. CO. TRAIN OP. CO. CY11 W122 633A 632B WESSEX ROUTE S 682 WESSEX ROUTE WESSEX ROUTE. 673 4 UP MAIN FAST P7 SPAD W1062 669dia 638A INDICATOR W1041 P8 638B DOWN MAIN FAST Up Main Loop 669A W157R W120669B W153 BML1 UP MAIN SLOW Up Main Fast P9 P10 671dia 671 Down Main Fast W1060 DOWN MAIN SLOW WESSEX ROUTE WESSEX ROUTE. W157

W151 1 SOUTHEAST (SUSSEX) SOUTHEAST (SUSSEX) W155R 3.59 BML1 P11P12 VC594 UP BRIGHTON M.L 3.49 Up Main Slow Clapham Junction Substation To Down Main Slow 03m 65ch Earlsfield W155 Wimbledon Panel 1 Clapham Yard Shunter See 7 AST (SUSSEX) Int. 0062521 Ext. 0208 5455521 Ext. 0207 922 9931 SOUTHE Wessex 6 22/1/20 ADA49_SWR Statement of Claim Page 21 of 105

To 6 m 4 m Wimbledon 5 m Traincare Depot EARLSFIELD TOC maintenance area 5m 46ch LIMIT OF SHUNT

See 98 2 W1102 SHUNT NECK W1081 702B W152 W148 W142 W138 W132 684A Wessex IMC 684B 702A Up Main Fast Up Main Fast W1101 Down Main Fast Down Main Fast W181 W150 Plat 1 W146 W130 BML1 W177 Plat 2 W173 W140 W169 W136 BML1 Up Main Slow W165 Up Main Slow To Wimbledon Down Main Slow Down Main Slow See 8 W179 Plat 3 W175 W171 W167 W163 To RIVER Clapham Jn WANDLE Earlsfield Substation See 6 05m 20ch RRV 5m 36ch

Wimbledon Panel 3 Int. 0062523 Ext. 0208 5455523

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Wimbledon Panel 3 Wimbledon Park Yard Panel Int. 0062523 Ext. 0208 5455523 Int. 0062174 Ext. 0208 5455174

To Wimbledon Park Note: Spad indicators in up direction apply See 83 7 m to W166 and W168 individually. The spad indicator in Down direction applies to both W166 and W168. PPW WIMBLEDON (LUL) ROUTE NOW AVAILABLE FROM W168 (SHUNT) CHAINAGE + 08m 47c TO UPSIDING No 2 VIA 731 & 730 POINTS (15/2/92) (VIA EAST PUTNEY) .L. W374 L.U To 745A UP PUTNEY Wimbledon Park DURNSFORD ROAD Sidings Plat 1 W382 742B 740 736 73 STAFF HALT 741 W3 Plat 2 W380 745B W375 DOWN PUTNEY See 99 742A

6 L.U.L. 6m 28ch L.U.L. 730 724B PPW W1127 T.O.C. 744 724A 6 UPSIDING No 2 5 7 13 ACCESS SIDING NO. 2 27 Plat 3 W378 743 T.O.C. 1 4 9 12 26 C.W.M W1108 T.O.C. 2 Plat 4 W376 2 W1124 UPSIDING No 1 2 3 8 10 28 26 ACCESS SIDING NO. 1

L.U.L. 2 725A 720B W1123 707B WESSEX ROUTE * W158 WESSEX ROUTE. 725B W1135 707A 738 W168 731 UP SLOW WESSEX ROUTE 720A Up Main Fast W162 Up Fast Plat 5 732 723B W160 705B Plat 6 W166 W1107 734dia UP FAST 723A Down Fast 705A Down Main Fast 704B BML1 W1144 W185 W156 BML1 4 734 DOWN FAST Up Slow 704A 722B Plat 7 To Plat 8 W189 W1105 Earlsfield DOWN SLOW 722A Down Slow W1142 747B See 7 WESSEX ROUTE. W187 W183 TVC830 Durnsford Road Substation Plat 9 747A TOP YARD SHUNTERS LOBBY. CONTROLS POWER OPERATED POINTS 06m 26ch

412A 3 411B DOWNSIDING A WITHIN CSD (TY) 412B 411A TVC177 Down sidings A&B OOU * SMS2 SMS1 410A DOWNSIDING B Durnsford Road Substation To TVC179 Annexe 06m 42ch Wimbledon West Jn Up St Helier See 9 410B Down St Helier

TVC827

TVC826

SOUTHEAST (SUSSEX) To Haydons Road Sutton & Wimbledon Workstation See Sussex 91 Wessex 8 Int. 085 75353 Ext. 01293 621 353 22/1/20 ADA49_SWR Statement of Claim Page 23 of 105

Wimbledon Panel 3 Int. 0062523 Ext. 0208 5455523

W197 SHOW: S = SLOW LINE W195 F = FAST LINE H = ST. HELIER LINE To Wimbledon West Jn W193 SHOW: H = ST. HELIER LINE WIMBLEDON To Raynes Park S = SLOW LINE 755A pts - 7m 54.2ch 7m 19ch Earlsfield See 10 See 8 W176 W172 W197 Up Slow 3

W170 750A P5 W174 W195 P6 Up Fast 750B 3 757B 751A BML1 BML1 757A Down Fast 751B

756B 752A 3 1148 P7 W203 W193 P8 756A Down Slow 752B WESSEX ROUTE 755B 753A WESSEX ROUTE W201 TVC836 W191 SOUTHEAST (SUSSEX) 755A 753B SOUTHEAST (SUSSEX)

Wimbledon Substation TVC851 UP ST. HELIER SOUTHEAST (SUSSEX) 2 VC422A WESSEX ROUTE TVC838 VC415 P9 07m 70ch SMS2 TVC833 P10 VC423A DOWN ST. HELIER M&EE SIDING VC423B VC422B SMS2 SMS1 3 TVC853 TVC186 7m 20ch 3m 5ch TVC854 (Start) (End)

WIMBLEDON WEST YARD (C+P FOF ENGINEERS' USE ONLY 9/91)

S+T WORKSHOPS WATERLOO A.S.C 'W'

TRAMLINK LINE

SMS2 TVC856

WIMBLEDON CHASE

To TVC857 South Merton See Sussex Page 94

Sutton & Wimbledon Workstation Wessex 9 Int. 085 75353 Ext. 01293 621 353 22/1/20 ADA49_SWR Statement of Claim Page 24 of 105

Annex 2: List of TRUST delays, cancellations and fails to stop for the following incidents:  132414;  188908; and  508283.

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Annex 3: Relevant extracts from Schedule 8 of the Agreement.

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SCHEDULE 8

(PERFORMANCE REGIME)

1. Interpretation

1.1 Definitions

In this Schedule 8 and its Appendices, unless the context otherwise requires:

"Applicable Timetable" means, in respect of a day, that part of the Working Timetable in respect of that day which is required to be drawn up in accordance with Condition D2.1.1 of the Network Code as at 22:00 hours on the day prior to that day, and which is applicable to the Trains;

"Bi‐annual Timetable" means in respect of any day or any Period the Passenger Timetable commencing on either the Principal Change Date or Subsidiary Change Date (as the case may be) in which falls the last day of the Period containing that day or the last day of that Period respectively;

"Cancelled Stop" means in relation to a Train scheduled in the Applicable Timetable to stop to set down passengers at a Monitoring Point, the Train failing to trigger that Monitoring Point (except where the failure of the train to trigger the Monitoring Point is due to a malfunction of the Monitoring Point);

"Cancellation Minutes" means, in relation to a Cancelled Stop, the number of Cancellation Minutes specified in column F of Appendix 1 for the Service Group which includes that Train;

"Cap" means, in relation to a Monitoring Point, or a Train, the cap for the relevant Service Group in column G of Appendix 1;

"Capped Value" means in relation to any Service Group, the capped value (if any) specified in respect of that Service Group in Appendix 1 (as indexed in accordance with paragraph 9);

“CPI” has the meaning ascribed to it in Schedule 7;

"Charter Destination Point" means any such station so specified in Appendix 2;

"ETCS" means the European Train Control System;

"Initial Indexation Factor" has the meaning ascribed to it in Schedule 7;

"Joint Inquiry" means a formal inquiry which is required by any of the Railway Group Standards to be held or is permitted by any of the Railway Group Standards to be held and is in fact held;

"Minutes Delay" means, in relation to a Train and a Recording Point, the delay at that Recording Point, calculated in accordance with paragraph 3;

"Minutes Late" means, in relation to a day and a Monitoring Point, the lateness at that Monitoring Point, calculated in accordance with paragraph 2;

"Monitoring Point" means, in relation to a direction of a Service, a point listed in column J of Appendix 1 as a point to be used for recording lateness of Trains in

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accordance with paragraph 2, and each such Monitoring Point shall be treated as a separate Monitoring Point notwithstanding that it may also be a Monitoring Point for the same Service in the opposite direction and/or for other Services;

"Network Rail Performance Point" or “NRPP” means, in relation to a Service Group, the Network Rail performance point specified in column B of Appendix 1;

"Off‐Peak" where applicable, has the meaning ascribed to it in Schedule 5;

"Passenger’s Charter" means a commitment to passengers generally (whether or not legally binding) made by the Train Operator or any Passenger Transport Executive (in respect of any services operated by the Train Operator which are the subject of arrangements between the Train Operator and that Passenger Transport Executive) in relation to the punctuality and/or reliability of all or any of the Trains. The foregoing shall not be construed as to include any specific alternative or additional arrangements with any particular passenger (whether or not legally binding);

"Passenger Timetable" means those elements of the Applicable Timetable which are intended to be advertised to the public;

"Peak" Where applicable, has the meaning ascribed to it in Schedule 5;

"Performance Data Accuracy Code" means the version of the Performance Data Accuracy Code referred to in Part B of the Network Code;

"Performance Monitoring System" means the recording system which Network Rail is required to operate under Part B of the Network Code;

"Performance Sum" means, in relation to a Service Group, a sum of money which Network Rail or the Train Operator is liable to pay to the other under this Schedule 8, as calculated in accordance with paragraph 9 or 10, as the case may be;

"Period" means each consecutive period of 28 days during the term of this contract commencing at 00:00 hours on 1 April in each year, provided that the length of the first and last such Period in any year may be varied by up to seven days on reasonable prior notice from Network Rail to the Train Operator;

"Recording Point" means a point at which Network Rail records Trains using the Performance Monitoring System;

"Recovery Time" means additional time incorporated in the Applicable Timetable to allow for a Train to regain time lost during an earlier part of its journey;

"Relevant Year" has the meaning ascribed to it in Schedule 7;

"Restriction of Use" has the meaning ascribed to it in Schedule 4;

"Season Ticket" means any ticket valid for unlimited travel on a Service for not less than a period of one calendar month;

"Service Code" means the third, fourth and fifth digits of an eight character train service code applied in the Performance Monitoring System to Trains and used to identify them;

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"Service Group" means a collection of Services contained within the service groups specified in column A of Appendix 1;

"Train" means each train operating a Service which is:

(a) operated by or on behalf of the Train Operator pursuant to the permission to use the Routes granted under this contract; and

(b) used to provide services for the carriage of passengers by railway,

but excludes any and all trains making an Ancillary Movement; and

"Train Operator Performance Point" means, in relation to a Service Group, the Train Operator performance point specified in column D of Appendix 1.

1.2 Interpretation

For the purposes of this Schedule 8:

(a) a Train shall be treated as being in a Service Group for that part of its journey during which it satisfies the characteristics specified in columns A, H and J of Appendix 1 as forming a Service which is included in that Service Group;

(b) events in respect of a Train shall be treated as occurring on the day on which the Train is scheduled in the Applicable Timetable to depart from the first point at which it is to pick up passengers; and

(c) save as otherwise provided, each final calculation of minutes shall be accurate to three decimal places.

1.3 Suspension Notices

Wherever a Suspension Notice is in force, the effects of that Suspension Notice shall be the subject of clause 3.6 and not of this Schedule 8. Accordingly, for the purposes of this Schedule 8:

(a) neither Network Rail nor the Train Operator shall be allocated any responsibility for those effects; and

(b) those effects shall not be regarded as causing any Minutes Late or Minutes Delay or Cancelled Stops.

2. Calculation of Minutes Late

The Minutes Late at a Monitoring Point on a day shall be derived from the following formula:

𝑀𝑖𝑛𝑢𝑡𝑒𝑠 𝐿𝑎𝑡𝑒 ∑𝐿

where:

L in respect of a Train is the lesser of:

(i) the number of minutes (rounded down to the nearest whole minute) by which the time at which the Train stops at the

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Monitoring Point is later than the time at which that Train is scheduled in the Passenger Timetable to stop at that Monitoring Point; and

(ii) the Cap,

provided that no regard shall be had for any Train which is not recorded as stopping at the Monitoring Point; and

∑ is the sum across all those Trains in the relevant Service Group which are scheduled in the Passenger Timetable to stop at that Monitoring Point on that day which do so stop.

3. Calculation of Minutes Delay

The Minutes Delay in respect of a Train when it triggers a Recording Point shall be equal to:

(a) in respect of the first Recording Point triggered by that Train on any day, the number of minutes (rounded down to the nearest whole minute) by which the time at which that Train triggers the Recording Point is later than the time at which that Train is scheduled in the Applicable Timetable to do so; and

(b) in respect of any other Recording Point, the lesser of:

(i) the number of Minutes Delay in respect of that Recording Point calculated in accordance with paragraph 3(a) (as if that Recording Point were the first Recording Point triggered by that Train); and

(ii) the greater of 𝐴 𝐴 𝐵 and zero

where:

A1 is the number of minutes between the time at which the Train triggers the Recording Point (rounded down to the nearest whole minute) and the time the Train last triggered a Recording Point (rounded down to the nearest whole minute);

A2 is the relevant time lapse scheduled in the Applicable Timetable between those same two Recording Points; and

B is any Recovery Time between those Recording Points incorporated in the Applicable Timetable;

provided that:

(1) any Minutes Delay which arise from a single incident or a series of related incidents and which are less than three minutes in aggregate shall be deemed to be zero; and

(2) if for any Train the aggregate Minutes Delay in respect of all Recording Points caused by a single

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incident are in excess of the Cap specified in column G of Appendix 1 for that Service Group, then such excess shall be disregarded.

4. Recording of performance information

4.1 Recording of lateness, Minutes Delay and Cancelled Stops

Without prejudice to its obligations under Part B of the Network Code, Network Rail shall use the Performance Monitoring System to record for each day in respect of each Train scheduled in the Applicable Timetable:

(a) the time at which the Train stops to set down passengers at each Monitoring Point;

(b) each Cancelled Stop and the incident(s) causing such Cancelled Stop where the incident can be identified;

(c) the time at which the Train triggers each Recording Point;

(d) the Minutes Delay for that Train at each Recording Point;

(e) where the Minutes Delay which that Train has accrued since the last Recording Point are greater than or equal to three minutes:

(i) the incident(s) causing each minute of any delay included in Minutes Delay; and

(ii) those Minutes Delay for which Network Rail is unable to identify a cause; and

(f) for each Charter Destination Point in respect of Trains for which the Charter Destination Point is a destination for the purposes of a Passenger’s Charter, the time of the Train’s arrival.

The provisions of this Schedule 8, which concern the recording of train performance information or which refer to information regarding train performance, and the rights and remedies of the parties in respect of the recording of that information, shall be subject to and interpreted in accordance with the provisions of the Performance Data Accuracy Code.

4.2 Recording of allocated responsibility for Minutes Delay and Cancelled Stops

Network Rail shall for each day and for each Train scheduled in the Applicable Timetable record separately in the Performance Monitoring System those Minutes Delay and Cancelled Stops caused by incidents:

(a) for which Network Rail is allocated responsibility in accordance with paragraph 5.2;

(b) for which the Train Operator is allocated responsibility in accordance with paragraph 5.3;

(c) for which Network Rail and the Train Operator are allocated joint responsibility, in accordance with paragraph 5.4;

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(d) for which no cause can be identified; and

(e) which are planned incidents in accordance with paragraph 5.7.

4.3 Failed Recording Points

Without prejudice to its obligations under Part B of the Network Code, Network Rail shall use all reasonable endeavours:

(a) to restore as soon as reasonably practicable any failed Recording Point; and

(b) pending such restoration, to compile such information from manual records and other sources, including the Train Operator, and otherwise to substitute such information as is appropriate to reflect as accurately as is reasonably practicable the actual performance of the relevant Trains for the purposes of this Schedule 8.

4.4 Provision of information by Train Operator

The Train Operator shall record and shall continue to record such information as Network Rail may reasonably require and which it is reasonable to expect the Train Operator to have or procure in connection with any Minutes Delay that may arise and shall provide such information to Network Rail promptly after such information first becomes available to the Train Operator.

Network Rail shall promptly notify the Train Operator upon Network Rail becoming aware of any failure or any likely failure to record accurately the information which it is required to record under paragraph 4.1. Any such notification shall be in sufficient detail to enable the Train Operator to institute the recording of such information in connection with the Trains for which the recording of information is subject to such failure or likely failure as the Train Operator may reasonably achieve. The Train Operator shall institute such recording as soon as it is reasonably able following receipt of the notification from Network Rail and will provide Network Rail with the resulting information no later than 17:00 hours two Working Days following the day on which it was recorded.

5. Allocation of responsibility for Minutes Delay and Cancelled Stops

5.1 Assessment of incidents causing Minutes Delay and Cancelled Stops

(a) In assessing the cause of any Minutes Delay or Cancelled Stop, there shall be taken into account all incidents contributing thereto including:

(i) the extent to which each party has taken reasonable steps to avoid and/or mitigate the effects of the incidents; and

(ii) where a Restriction of Use overruns due to the start of such Restriction of Use being delayed by a late running Train, the incident(s) giving rise to that late running;

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(b) The parties shall take reasonable steps to avoid and mitigate the effects of any incidents upon the Trains and any failure to take such steps shall be regarded as a separate incident;

(c) Network Rail shall identify:

(i) in respect of each incident recorded under paragraph 4.1(e)(i) as causing Minutes Delay, the extent to which that incident caused each of the Minutes Delay; and

(ii) in respect of each incident recorded under paragraph 4.1(b), the extent to which that incident caused the Cancelled Stop;

(d) So far as Network Rail is reasonably able to do so, it shall identify whether responsibility for incidents causing Minutes Delay or Cancelled Stops is to be allocated to Network Rail or to the Train Operator or to them jointly in accordance with the following provisions of this paragraph 5.

5.2 Network Rail responsibility incidents

Responsibility for Minutes Delay and Cancelled Stops on a day caused by incidents for which Network Rail is allocated responsibility pursuant to this paragraph 5.2 shall be allocated to Network Rail. Unless and to the extent otherwise agreed, Network Rail shall be allocated responsibility for an incident other than a planned incident (as defined in paragraph 5.7), if that incident is caused wholly or mainly:

(a) by breach by Network Rail of any of its obligations under this contract; or

(b) (whether or not Network Rail is at fault) by circumstances within the control of Network Rail in its capacity as operator of the Network; or

(c) (whether or not Network Rail is at fault) by any act, omission or circumstance originating from or affecting the Network (including its operation), including, subject to paragraph 5.3(b)(i), any incident in connection with rolling stock on the Network for which any train operator other than the Train Operator would be allocated responsibility if it were the Train Operator under this contract.

5.3 Train Operator responsibility incidents

Responsibility for Minutes Delay and Cancelled Stops on a day caused by incidents for which the Train Operator is allocated responsibility pursuant to this paragraph 5.3 shall be allocated to the Train Operator. Unless and to the extent otherwise agreed, the Train Operator shall be allocated responsibility for an incident other than a planned incident (as defined in paragraph 5.7) if that incident:

(a) is caused wholly or mainly:

(i) by breach by the Train Operator of any of its obligations under this contract; or

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(ii) (whether or not the Train Operator is at fault) by circumstances within the control of the Train Operator in its capacity as an operator of trains; or

(iii) (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), including any such act, omission or circumstance originating in connection with or at any station (other than in connection with signalling under the control of Network Rail at that station or physical works undertaken by Network Rail at that station), any light maintenance depot or any network other than the Network; or

(b) causes delay to:

(i) rolling stock operated by or on behalf of another train operator which is delayed in entering or leaving the Network due to any act, omission or circumstance originating in connection with a light maintenance depot or network other than the Network and, as a result of that delay, rolling stock operated by or on behalf of the Train Operator which is scheduled to leave or enter the Network at the connection with that light maintenance depot or other network is then delayed behind the first mentioned rolling stock; or

(ii) 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.

5.4 Joint responsibility incidents

(a) Network Rail and the Train Operator shall be allocated joint responsibility for:

(i) any incident which is not a planned incident (as defined in paragraph 5.7), caused by an act, omission or circumstance originating in connection with or at a station which:

(1) is an act, omission or circumstance which affects the Network, or its operation, and prevents a Train entering or passing through a station at the time it is scheduled to do so; and

(2) prevents the access of passengers through the station to or from the Train;

and paragraphs 5.2 and 5.3 shall not apply to any such incident; or

(ii) any identified incident in respect of which Network Rail and the Train Operator are equally responsible and for which

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these purposes being a day which is not a Saturday, Sunday or a Public Holiday in the place where the transmission is to be received); and

(d) if sent by email, (unless a notice of non‐delivery is received) upon receipt.

16. Disputes

16.1 If any dispute is notified under paragraph 11.2 it shall be resolved according to the following procedure:

(a) within seven days of service of the relevant notice (or, if the dispute relates to an incident the responsibility for which is or is to be the subject of a Joint Inquiry, within seven days of publication of the conclusion of that Joint Inquiry), the parties shall meet to discuss the disputed aspects with a view to resolving all disputes in good faith;

(b) if, for any reason, within seven days of the meeting referred to in paragraph 16.1(a), the parties are still unable to agree any disputed aspects, each party shall promptly and in any event within seven days prepare a written summary of the disputed aspects and the reasons for each such dispute and submit such summaries to the senior officer of each party;

(c) within 28 days of the first meeting of the parties, the senior officers of the parties shall meet with a view to resolving all disputes; and

(d) if no resolution results before the expiry of 14 days following that meeting, then either party may refer the matter for resolution in accordance with the ADRR.

17. Amendments to Appendix 1

17.1 Circumstances in which parties agree to amend Appendix 1

Either party may by notice to the other propose that Appendix 1 be amended in accordance with this paragraph 17.

17.2 Procedure for amendments to Appendix 1

(a) The party who wishes to amend Appendix 1 shall notify the other party of any such proposed change and the date from which it proposes that such change will have effect:

(i) where such change relates to a forthcoming timetable change, on or before the first day of the month six months before the relevant Principal Change Date or Subsidiary Change Date on which that timetable change is due to occur; and

(ii) in any other case, prior to the date from which it proposes such change shall have effect.

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Annex 4: Relevant extracts from the Delay Attribution Rules & Principles.

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DELAY

ATTRIBUTION

PRINCIPLES AND RULES

.

Issued by: The Secretary Delay Attribution Board, Floor 8, 1 Eversholt Street, LONDON, NW1 2DN

22/1/20

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SECTION D: GUIDANCE ON RESPONSIBILITIES AND CODING OF DELAY INCIDENTS

D1 INTRODUCTION D1.1 This section gives detailed guidance to Network Rail Control, Performance and other staff on how many types of occurrence causing ‘Minutes Delay’ and, or Reliability Events should be coded, and identify likely situations where the default attribution may need to be overridden. It should be noted that the list is not exhaustive. The contracting parties will be expected to agree attribution for events not fully covered by this document or for which exceptional circumstances apply. See paragraph A2.1.

D1.2 Normally all ‘Minutes Delay’ (whether direct or reactionary) and, or Reliability Events because of an occurrence will be allocated to one TRUST Incident and will be attributed to the Responsible Manager identified. Two principal exceptions are Joint Responsibility incidents (see Section D2) and incidents arising out of other access agreements (see Section D3)

D2 Joint Responsibility incidents D2.1 A special type of incident may affect trains of a Template Schedule 8 Train Operator. These are contractually known as Joint Responsibility incidents and fall into two categories. The first are specifically those incidents at stations which prevent a train entering or passing through a station at the time it is scheduled to do so and the access of passengers through the station to or from the train.

D2.2 The other circumstance is where Network Rail and the Train Operator agree that they are equally responsible for an incident under their access contract and the circumstance is not covered elsewhere in the DAPR.

D2.3 When Joint Responsibility criteria is met the Responsible Manager Code attributed to the incident takes the form of D##*, indicating that the incident is jointly accepted and that the delays will be shared between the parties in the performance systems downstream from TRUST.

D2.4 In all the circumstances in this Section D2, the term station should be taken to include Network Rail Managed Stations and individual platforms at a station.

D2.5 For Joint Responsibility to be applicable for an incident at, or directly affecting a station both of the following criteria need to be met by the train incurring ‘Minutes Delay’ or cancellation:

a) The train is prevented from entering the station at the time it is booked to call, and b) Passengers would be prevented from accessing the train if the train called at the station at the time it was booked to call.

D2.6 Only when both criteria have been met can the train incurring ‘Minutes Delay’ or cancellation be attributed to an incident with a D##* Responsible Manager Code.

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D2.7 In all cases the closure of access to the station must be undertaken by a responsible person (e.g. station manager, emergency services, MOM) and be reasonable and justified in the circumstances (in accordance to what is known at the time of decision). The closure times and reasoning for closure should be detailed in the incident freeform text. This would not include stations closed as a consequence of an incident remote from that station.

D2.8 In the event of Joint Responsibility being applicable in accordance with the guidance above, an incident should be created for each operator incurring at least one direct Primary Delay in respect of any train booked to call at the station affected during the period of closure. Any subsequent direct delays in respect of trains booked to stop incurred by that operator should be allocated to this incident. However, where trains of one operator so delayed then affect those of another operator elsewhere on the Network the delay to the second operator’s train should be allocated to the incident created for the first operator, i.e. normal arrangements apply in respect of the attribution of Reactionary Delay (see Section B7.3). Subsequent directly affected trains not booked to call should be attributed to Network Rail.

D2.9 Failures to call at a booked stop (otherwise known as cancelled stops or cancellations) may also be allocated to the Joint Responsibility incident where the train would not have been able to call (stop) at the time it is scheduled to do so and the access of passengers to/from that train would have been prevented.

D2.10 Initial attribution in accordance with the guidance above should be reviewed by performance/account teams to ensure that all parties have taken reasonable steps to avoid and/or mitigate the effects of the incident. Any failure to mitigate delay must be attributed to the responsible party in accordance with Section D4 Failure to Mitigate.

D2.11 Circumstances may arise where Joint Responsibility criteria are met for only a limited period within the overall duration of an incident; for example, initially both the line and the station may be closed, but then one re-opens, while the other remains closed. In these circumstances multiple incidents may be required. For example, a failure to call at a booked stop should not be allocated to a Joint Responsibility incident where the access of the train to the station was not prevented – this would be a cancelled stop the responsibility of the Train Operator. Equally, the failure to call at a booked stop should not be allocated to a Joint Responsibility incident where the access of passengers to/from that train would not have been prevented – this would be a cancelled stop the responsibility of the party causing the incident that led to the cancellation.

D2.12 Joint Responsibility criteria would NOT apply in any of the following circumstances: • Where ONLY the operation of the network is affected. • Where the source of the incident originates from or directly affects the station (see D2.13) but does NOT affect the network or its operation • Where the source of the incident originates on a train (e.g. fire on board, suspect package on board, person alighting direct to track) • Where the source of the incident originates in or on operational infrastructure equipment signalling, OHLE or track) • Where the source of the incident originates from works being carried out on the operational infrastructure (signalling, OHLE or track) within the station. • Where the station access to passengers is affected/prevented by default (e.g. station closed only due to no trains running or resulting overcrowding)

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D2.13 The causes of Joint Responsibility incidents in connection with stations are wide-ranging and therefore guidance on the correct Delay Code to use is provided in the Section of the DAPR relating to the type of incident, examples include: • Fatalities (Section Q3) • Trespass, including threats of suicide (Section Q4) • Weather affecting station buildings (Section Q5) • Security alerts (Section Q7) • Fires, including false alarms (Section Q8)

D2.14 Guidance for the correct allocation of delays caused by Joint Responsibility type incidents at a station is given in Section N11 and also further application guidance and examples of common scenarios are covered in DAB Process and Guidance Document 6 – Joint Responsibility Application.

D2.15 Where Joint Responsibility criteria are met as set out in Section D2 but the cause of the incident is unknown (e.g. origin of trespass, origin of fire) then Joint Responsibility should be applied as per paragraph D2.8. D3 Incidents arising out of other Access Agreements Incidents can arise from other access agreements, such as those due to Station Operating activities (station access agreements) or delays or Reliability Events arising on infrastructure not operated by Network Rail. The latter include, but are not limited to depots, and private sidings off Network Rail operated infrastructure and London Underground or Eurotunnel lines (see Sections H1, H2, H3 and Q7). A separate incident is created for each Train Operator affected. However, where trains of one operator so delayed then affect those of another operator elsewhere on the Network the delay to the second operator’s train should be allocated to the incident created for the first operator, i.e. normal arrangements apply in respect of the attribution of Reactionary Delay (see Section B7.3). Specific guidance is given in the relevant sections where these kinds of incidents may occur.”

D3.1 Engineering trains and on-track machinery (including those servicing possessions) are now subject to an incentivised performance scheme. It is therefore vital that delays to these trains are attributed delay codes and responsible manager codes, subject to the full provisions of this document. Section P1 refers. D4 Failure to Mitigate D4.1 When agreeing attribution of ‘Minutes Delay’, or Reliability Events the contractual responsibility of Network Rail and Train Operators to mitigate the effects of an Incident should be taken into account. This includes where one of the Track Access Contract parties refuses a reasonable request (usually defined with reference to any contingency / service recovery plans that may have been agreed) to terminate one or more trains short of destination to prevent knock-on effects continuing for an extended period on intensively diagrammed services. A separate incident attributed to the party concerned is to be created for the effects of such failure to mitigate.

D4.2 In the case of incidents where Network Rail is held to be responsible, if the acts or omissions of the Train Operator were such as to prevent the mitigation of delay then the additional delays should be attributed in accordance with paragraph D5.2. The converse also applies to the acts or omissions of Network Rail, its staff or agents, in the case of incidents where a Train Operator is to be held responsible.

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D4.3 If Network Rail or Train Operator after discussion, considers the other party has failed to mitigate in line with paragraphs D4.1 and D4.2 above, any subsequent attribution should then be made in line with the following:- • Any perceived failings of either party during an incident shall be highlighted in real time during the incident or event to which that failure is cited. • Demonstration that a recovery plan was agreed / implemented and where that plan was not delivered. • Demonstration that regular updates/conferences were held throughout the incident with plan adjustments agreed as appropriate. • Identification where something reasonable could or should have been done; that wasn’t (not necessarily part of any agreement) • The reason for the failure to mitigate was demonstrated and stated in any incident created. Referencing where time deadlines/trains/actions contravene any agreement for service recovery arrangements. • Individual trains should be highlighted if they alone fall short of the agreed contingency plans – this makes for easier checking/challenging. • Cognisance taken if there is more than one incident ongoing on the affected line of route/area. • Any incident attributed as a “failure to mitigate” should be coded to the party’s Operational Control code and NOT the code of the causal incident. D5 Reactionary Principles D5.1 As mentioned in paragraph B7.5, the group of Y* Codes (Reactionary Delays) are used to describe the effect of late running due to an earlier occurrence on the same or other trains. Although the ‘Minutes Delay’ carries a separate TRUST Reactionary Delay Code they are still attributed to the principal Incident (i.e. the one that has the largest number of ‘Minutes Delay’ allocated to it that contributes to the lateness at that point). Where two or more Incidents have had the same affect then the Reactionary Delay must be split equally between them. Reactionary Example 1 Suppose a Plymouth to York train is delayed as follows:- At Plymouth: 10 minutes due to vehicle defect. Approaching Bristol: 3 minutes due to loss of path. Approaching Derby: 8 minutes due to signal failure. Approaching 4 minutes due to waiting platform (due to its late running it has lost Sheffield: its platform ‘slot’). The ‘Minutes Delay’ approaching Bristol would be attributed to the vehicle defect but using the Delay Code YC or YD to describe its loss of path. If no time were regained then the 4 ‘Minutes Delay’ approaching Sheffield would also be attributed to the vehicle defect using code YO since the 13 ‘Minutes Delay’ due to this exceeds the 8 ‘Minutes Delay’ due to the signal failure. However, if the train had regained all but 5 minutes by the time it left Birmingham, the delay outside Sheffield would be attributed to the signal failure since only 5 minutes of the lateness approaching Sheffield is due to the vehicle defect. It is important that the effects of subsequent incidents are properly taken into account when considering the attribution of reactionary delays, and determining where the earlier incident’s effects have ceased.

Apart from YL in respect of FOC delays (See N2(f)), the only other exception is where the main or only cause of delay is a P* coded incident in which case the code JB is to be used, reflecting that the location of the Recovery Time in the train schedule does not avoid conflicts with other trains after the TSR has been encountered. See Section O18.

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Annex 5: Relevant extracts from Network Rail’s Network Licence.

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Network Licence

granted to

Network Rail Infrastructure Limited

(As at 1 April 2014)

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Part III - Conditions

Part A Network management and timetabling

1 Network management

Purpose

1.1 The purpose is to secure:

(a) the operation and maintenance of the network;

(b) the renewal and replacement of the network; and

(c) the improvement, enhancement and development of the network,

in each case in accordance with best practice and in a timely, efficient and economical manner so as to satisfy the reasonable requirements of persons providing services relating to railways and funders, including potential providers or potential funders, in respect of:

(i) the quality and capability of the network; and

(ii) the facilitation of railway service performance in respect of services for the carriage of passengers and goods by railway operating on the network.

General duty

1.2 The licence holder shall achieve the purpose in condition 1.1 to the greatest extent reasonably practicable having regard to all relevant circumstances including the ability of the licence holder to finance its licensed activities.

Specific obligations

1.3 The following obligations in this condition are without prejudice to the generality of the general duty in condition 1.2 and compliance with those obligations shall not be regarded as exhausting that general duty. In fulfilling

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each of those obligations, the licence holder shall at all times comply with the general duty in condition 1.2.

Planning

1.4 The licence holder shall plan the means by which it will comply with the general duty in condition 1.2 over the short, medium and long term to meet reasonably foreseeable future demand for railway services.

1.5 In complying with condition 1.4, the licence holder shall consult, and take into account the views of, persons providing services relating to railways and funders so as to facilitate effective industry-wide planning.

1.6 In complying with condition 1.4, the licence holder shall prepare and provide to ORR plans, strategies or other documents demonstrating its compliance and proposed compliance with the general duty in condition 1.2, including:

(a) the delivery plan referred to in condition 1.10;

(b) those associated with or arising from the long term plans (including route utilisation strategies) referred to in condition 1.14;

(c) other plans, strategies or documents that ORR may reasonably require from time to time; and

(d) revisions of the plans, strategies and other documents referred to in condition 1.6 (a) to (c) that ORR may reasonably require from time to time.

1.7 Each of the plans, strategies and other documents referred to in condition 1.6 shall demonstrate the position, as appropriate, on a network-wide basis and at a suitably disaggregated level of detail.

1.8 Each of the plans, strategies and other documents prepared in compliance with condition 1.6 shall be provided to ORR in respect of such period, in such format and structure, to such standard and level of detail and in accordance with such requirements (including any requirements as to publication) as ORR may, from time to time, specify by notice or in guidelines to the licence holder.

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1.9 Any notice or guidelines to the licence holder issued under condition 1.8 may include a procedure under which ORR may object to the contents of a plan, strategy or other document on grounds specified in the notice or guidelines.

Delivery plan

1.10 In complying with the duty in condition 1.4, the licence holder shall prepare, provide to ORR and publish a delivery plan setting out what the licence holder proposes to do to comply with the general duty in condition 1.2.

1.11 The delivery plan shall be prepared in such format and structure, to such standard and level of detail and in accordance with such requirements as ORR shall specify by a notice or in guidelines issued to the licence holder under condition 1.8 so as to enable:

(a) providers of services relating to railways and potential providers to plan their businesses; and

(b) funders of services relating to railways and potential funders to plan their future financial and service requirements,

in each case with a reasonable degree of assurance.

1.12 No notice or guidelines issued by ORR under condition 1.8 shall be effective in relation to the delivery plan unless:

(a) it is issued on or before the date which is 5 months before the delivery plan is to be published; and

(b) ORR has first consulted the licence holder and taken into consideration any representations duly made.

1.13 The licence holder shall be excused from the obligation to publish any part of the delivery plan to the extent that ORR:

(a) is satisfied, after consultation with the licence holder, that publication would or might seriously and prejudicially affect the interests of the licence holder or any other person; and

(b) gives notice to the licence holder to that effect.

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Long term planning process

1.14 In complying with condition 1.4, the licence holder shall establish and maintain long term plans to promote the long term planning objective in accordance with guidelines issued by ORR under condition 1.8.

1.15 The long term planning objective referred to at 1.14 means the effective and efficient use and development of the capacity available on the network, consistent with the funding that is, or may become, available during the period of the long term plans and with the licence.

1.16 The licence holder shall have due regard to the long term plans when carrying out its licensed activities.

1.17 The licence holder shall from time to time and when so directed by ORR review and, if necessary, amend each long term plan to ensure that it continues to promote the long term planning objective.

Capacity allocation

1.18 In complying with the general duty in condition 1.2, the licence holder shall co- operate with any potential provider or potential funder so as to identify ways in which its reasonable requirements in respect of the allocation of capacity on the network could be satisfied.

Asset management

1.19 In complying with the general duty in condition 1.2, the licence holder shall:

(a) develop the policies and criteria it will apply in respect of the maintenance, renewal, replacement, improvement, enhancement and development of the relevant assets, which shall demonstrate how the licence holder will comply with the general duty in condition 1.2;

(b) apply those policies and criteria; and

(c) make appropriate information about those policies and criteria readily accessible to persons providing services relating to railways and funders, including potential providers and potential funders.

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1.20 The licence holder shall maintain appropriate, accurate and readily accessible information about the relevant assets, including their condition, capability and capacity.

1.21 ORR may permit the licence holder to exclude from the definition of “relevant assets” assets of such description or classes as shall be provided to and approved by ORR.

1.22 The licence holder shall from time to time and when so directed by ORR review and, if necessary, revise the policies and criteria provided for in condition 1.19 to ensure that they remain sufficient to comply with the general duty in condition 1.2.

Timetable planning

1.23 In complying with the general duty in condition 1.2 the licence holder shall:

(a) run an efficient and effective process, reflecting best practice, for establishing a timetable, and any changes to it; and

(b) where necessary and appropriate, initiate changes to relevant industry processes,

so as to enable persons providing railway services and other relevant persons to plan their businesses with a reasonable degree of assurance and to meet their obligations to railway users.

Interpretation

1.24 In this condition:

“excluded assets” means assets which are the subject of an exclusion granted under condition 1.21;

“network” includes, where the licence holder has any estate or interest in, or right over a station or light maintenance depot, such station or light maintenance depot;

“network code” means the set of rules called the “Network Code” which is incorporated by reference into, and

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Annex 6: Relevant extracts from the Railway Operational Code.

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The Railway Operational Code

ROC Section 1 - Control Arrangements

Established date 28 September 2005

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ROC Section 1 – Control Arrangements

This section details the protocols, principles and interfaces necessary in respect of each party to enable the provision of effective arrangements for operational control of the Network in a safe and efficient manner.

The following terms used in this section are defined elsewhere:

• the Network Code defines Disruptive Event, establishment (when used in the context of establishing this section), Objective and ORR ROC Criteria ( in Part H), Access Parties, Network, Services, Train Crew, Train Operator and Working Timetable ( in Part A) and Ancillary Movements (in Part D).

References to a Train Operator in paragraph 7.1 are also deemed to be references to a Freight Customer Access Option Holder (ROC General and introductory section, paragraph 4.1.5(b)).

The section introduces new definitions for matters relating to operational control that replace and supplement the previous definitions in Part H of the Network Code.

This explanatory note does not form part of the ROC.

1. Definitions

1.1 In this section, unless the context otherwise requires:

1.1.1 “Contingency Plan” means a plan of a c t i o n in r e l a t i o n to a Disruptive Event or Events, being either a Contingency Plan under Part H of the Network Code in existence when this section comes fully into effect or a Contingency Plan subsequently prepared in accordance with the Railway Operational Code. Such plans may be those prepared under s thi section, the section “ROC Section 3 – Arrangements for the Provision of Equipment to Deal with Adverse and Extreme Weather Conditions; and the Preparation for and Response to Seasonal Disruptions” or the section “ROC Section 5 – Arrangements for Clearance of Track Blockages and Assistance for Failed Trains”. In each case, 22/1/20 “Contingency Plan” refers to such plans as subsequently ADA49_SWR Statement of Claim Page 62 of 105

9. Action following notification of a Disruptive Event

9.1 Determination by Network Rail

9.1.1 Network Rail shall, as soon as reasonably practicable following notification of a likely Disruptive Event or following the occurrence of a Disruptive Event determine the most appropriate action to be taken to fulfil best the Objective in a manner consistent with the ORR ROC Criteria, having regard to the matters referred to in paragraph 4.3 and any applicable Contingency Plans or action defined within any applicable Route Codes of Practice and:

(a) (whether before, during or after such determination, as the circumstances admit) Network Rail shall consult with each Train Operator affected or likely to be affected by the Disruptive Event, as fully and regularly as is reasonably practicable in the circumstances, regarding the action it proposes to take, the implementation of that action and its subsequent review; and

(b) such action may, upon the occurrence or likely occurrence of a Disruptive Event include the recording by Network Rail Operational Control that the Service Recovery Process applies, and subsequently Network Rail will adhere to the Service Recovery Process.

9.1.2 In undertaking such action, Network Rail shall have overall accountability for the direction and management of train movements on the Network in accordance with the Objective in a manner consistent with the ORR ROC Criteria. Each Train Operator will remain responsible for its own Train Operator Operational Control and carry out that function in accordance with paragraph 4.4.

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9.1.3 Network Rail will be responsible as part of its Operational Control function for:

(a) directing the response to the Disruptive Event in terms of incident response staff and the deployment of its maintenance and repair resources in respect of the Network;

(b) directing the movements of trains on the Network, subject to the availability of relevant rolling stock, Train Crews and other necessary operational resources, diverting and rerouting services where necessary;

(c) co-ordinating and directing the manner and extent of service provision where a Disruptive Event results in degraded operations; and

(d) taking action in accordance with and as applicable with any other section of the Railway Operational Code.

9.2 Access Parties’ response to Disruptive Events

9.2.1 Where Network Rail considers a Contingency Plan should be implemented, the relevant Access Parties shall co-operate in this and use all reasonable endeavours to adapt such implementation so as to meet the specific circumstances of and surrounding the relevant Disruptive Event.

9.2.2 Where no Contingency Plan exists or deals adequately with a particular Disruptive Event, the relevant Access Parties shall use all reasonable endeavours to work together in the application of measures contained within the Route Codes of Practice including where appropriate for the formulation of a Contingency Plan.

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Annex 7: Clauses 4, 5 and 6 of the Agreement.

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4. Standard of performance

4.1 General standard

Without prejudice to all other obligations of the parties under this contract, each party shall, in its dealings with the other for the purpose of, and in the course of performance of its obligations under, this contract, act with due efficiency and economy and in a timely manner with that degree of skill, diligence, prudence and foresight which should be exercised by a skilled and experienced:

(a) network owner and operator (in the case of Network Rail); and

(b) train operator (in the case of the Train Operator).

4.2 Good faith

The parties to this contract shall, in exercising their respective rights and complying with their respective obligations under this contract (including when conducting any discussions or negotiations arising out of the application of any provisions of this contract or exercising any discretion under them), at all times act in good faith.

5. Permission to use

5.1 Permission to use the Routes

Network Rail grants the Train Operator permission to use the Routes.

5.2 Meaning

References in this contract to permission to use the Routes shall, except where the context otherwise requires, be construed to mean permission:

(a) to use the track comprised in the Routes for the provision of the Services using the Specified Equipment;

(b) to use the track comprised in the Network in order to implement any plan established under Part H of the Network Code;

(c) to make Ancillary Movements;

(d) to Stable, which shall be treated, for the purposes of Part D of the Network Code, as the use of a Train Slot;

(e) for the Train Operator and its associates to enter upon that part of the Network comprising the Routes, with or without vehicles; and

(f) for the Train Operator and its associates to bring things onto that part of the Network comprising the Routes and keep them there,

and such permission is subject, in each case and in all respects to:

(i) the Network Code;

(ii) the Applicable Engineering Access Statement; and

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(iii) the Applicable Timetable Planning Rules.

5.3 Permission under clauses 5.2(e) and 5.2(f)

In relation to the permissions specified in clauses 5.2(e) and 5.2(f):

(a) the Train Operator shall, and shall procure that its associates shall, wherever reasonably practicable, first obtain the consent of Network Rail, which consent shall not be unreasonably withheld or delayed;

(b) the Train Operator shall remove any vehicle or other thing so brought onto any part of the Network when reasonably directed to do so by Network Rail; and

(c) whilst exercising any rights conferred by clauses 5.2(e) and 5.2(f), the Train Operator shall, and shall procure that its associates shall, comply with such reasonable restrictions or instructions as Network Rail shall specify.

5.4 Changes to Applicable Engineering Access Statement and Applicable Timetable Planning Rules

Changes to the Applicable Engineering Access Statement and the Applicable Timetable Planning Rules are subject to regulatory protection (including appeals) in accordance with Part D of the Network Code.

5.5 Engineering Access Statement, Timetable Planning Rules and Restrictions of Use

Schedule 4 shall have effect.

5.6 The Services and the Specified Equipment

Schedule 5 shall have effect.

5.7 Performance

Schedule 8 shall have effect.

5.8 Stabling

Without prejudice to Network Rail’s obligations, if any, under Schedule 5 to provide Stabling, Network Rail shall use all reasonable endeavours to provide such Stabling facilities as are necessary or expedient for or in connection with the provision of the Services in accordance with the Working Timetable.

6. Operation and maintenance of trains and Network

6.1 General

Without prejudice to the other provisions of this contract:

(a) the Train Operator shall maintain and operate the Specified Equipment used on the Network in accordance with clause 4.1 with a view to permitting the provision of the Services on the Routes in

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accordance with the Working Timetable and the making of Ancillary Movements; and

(b) Network Rail shall maintain and operate the Network in accordance with clause 4.1 with a view to permitting the provision of the Services on the Routes using the Specified Equipment in accordance with the Working Timetable and the making of Ancillary Movements.

6.2 Trespass, vandalism and animals

Without prejudice to the other provisions of this contract, each of the parties shall use all reasonable endeavours (including participating in such consultation and joint action as is reasonable in all the circumstances) to reduce:

(a) trespass;

(b) vandalism; and

(c) intrusions on to the Network by animals,

in each case as may affect either the provision of the Services or the Routes.

6.3 Safety

In relation to Safety Obligations:

(a) the Train Operator shall comply with any reasonable request by Network Rail in relation to any aspect of the Train Operator’s operations which affects or is likely to affect the performance of Network Rail’s Safety Obligations; and

(b) Network Rail shall comply with any reasonable request by the Train Operator in relation to any aspect of Network Rail’s operations which affects or is likely to affect the performance of the Train Operator’s Safety Obligations.

6.4 Use of Railway Code Systems

6.4.1 General

The parties shall:

(a) use the Railway Code Systems in their dealings with each other in connection with matters provided for in this contract; and

(b) comply with the Systems Code.

6.4.2 Provision of Train Consist Data

Without prejudice to clause 6.4.1, the Train Operator shall:

(a) provide to Network Rail such Train Consist Data as shall be necessary to enable Network Rail to calculate the amount of Track Charges; and

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Annex 8: Schedule 2 of the Agreement.

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SCHEDULE 2

(THE ROUTES)

1. In order to provide the Services, the Train Operator has permission to use the routes specified in Column 1 of Table 2.1 and Table 2.2 of Schedule 5.

2. In order to provide Services when any part of the route is unavailable, the Train Operator has permission to use any reasonable route for diversionary purposes, subject to obtaining any necessary route clearance for the Specified Equipment over the route in question.

3. In order to make Ancillary Movements, the Train Operator has permission to use any reasonable route, subject to obtaining any necessary route clearance for the Specified Equipment over the route in question.

4. In order to Stable railway vehicles, the Train Operator has permission to use any reasonable location, subject to obtaining any necessary route clearance for the Specified Equipment for the location in question.

5. Use of all routes is subject to the Network Code.

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Annex 9: Delay Attribution Board correspondence:  Joint submission dated 21st October 2019 by Network Rail and SWR;  Guidance no.DAB50, arising from the Delay Attribution Board hearing on 19th November 2019; and  SWR Notice of Dispute dated 31st December 2019, in relation to Guidance no.DAB50.

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REQUEST FOR GUIDANCE

A JOINT SUBMISSION OF A REQUEST FOR GUIDANCE FROM

First MTR South Western Railway

AND

NETWORK RAIL INFRASTRUCTURE LIMITED

TO THE

DELAY ATTRIBUTION BOARD

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Submission Check List

1. Have the parties agreed that the investigation of the Yes No incident(s) referenced in this request is/are complete?

2. Has the prime cause of the incident(s) been Yes No identified?

3. Have the facts of the incident(s) been agreed? Yes No

4. What part(s) of the Delay Attribution Guide (DAG) or Not in DAPR Delay Attribution Principles and Rules (DAPR) have been referred to?

5. Do the parties believe that the DAG or DAPR covers Yes No this scenario?

6. Have there been any similar incidents (including Yes No principles) which have been heard by the DAB or ADC? If so, which? (Insert DAB / ADC references here with rationale set out in section 4/5)

7. Have there been any historic incidents of this exact Yes No nature, if so, how were they resolved previously?

8. Has an independent investigation been carried out Yes No and completed? If yes, please attach the report to the submission.

Notes:  The Delay Attribution Board will only hear a Request for Guidance once the investigation into the incident and the attribution has been agreed by the parties to be complete. All of the facts of the incident(s) must be provided within the paper and the check list above must have been completed therefore answering ‘Yes’ to checklist items 1 to 3  In order to provide guidance, the Board will apply the Delay Attribution Principles and Rules (DAPR) (or Delay Attribution Guide (DAG) if prior to June 2017) which was in use at the time of the incident and, if applicable, the appropriate contracts.  The Board will advise Parties when the DAPR or DAG has been misinterpreted or where process has not been followed.  The Board is unable to provide guidance regarding technical problems that, for example have not been fully investigated or understood by the Parties or where a cause has not been identified .

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Submission Date: 21st October 2019

The names and addresses of the parties to the reference are:

Dave Waldron Anna Langford Current Performance Manager Data Quality Manager FMSWR Wessex South Bank Central, 4th Floor, 30 Stamford South Bank Central, 4th Floor, 30 Stamford Street, London, SE1 9LQ Street, London, SE1 9LQ : 07585 405449 07713 801822

[email protected] [email protected]

1. Joint Statement

This matter is jointly referred by First MTR South Western Railway (SWR) and Network Rail (“the parties”) to the Delay Attribution Board (DAB) for guidance to be given in accordance with Condition B2.4 of the Network Code.

The parties have discussed the issues relevant to this matter, in accordance with the agreed procedures for obtaining agreement in relation to a disputed attribution.

2. Factual background to the incident(s)

Incidents that form this Request for Guidance are: ‐

 132414 2G23 Unit Failure Wimbledon on 22nd June 2018

 188908 1D45 Driver Wimbledon on 12th July 2018

 508283 2H59 Ill Passenger Wimbledon on 29th October 2018

2.1 The above 3 incidents are ‘duplicate incidents’ and contain ONLY the disputed reactionary delays from the original Prime Cause incidents (which have been accepted by SWR).

2.2 The disputes relate to the unavailability of 722 points at the London end of Wimbledon station due to the points being plain‐lined and out of use.

2.3 In all three incidents the prime train involved was standing in Wimbledon station in Platform 8 on the Down Main Slow. 722 points would have enabled a train, in rear, at W183 to cross over to the Down Main Fast and pass through Wimbledon on the Down

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Main Fast line crossing back to the Down Main Slow at Wimbledon West Jn on the country side of Wimbledon station. (see appendix 1 for track diagram).

2.4 Between London Waterloo and Wimbledon the only other set of points available to cross trains from the Down Main Slow to Down Main Fast is at the London side of Vauxhall station so the impact to the train service is to “trap” trains on the Down Main Slow between Vauxhall and Wimbledon with services having to wait for the primary train to move from Platform 8 at Wimbledon.

2.5 The points are not required to be used for the planned service and no alteration to the plan of the day was required as a result of 722 points being plain lined. The points had been out of use since 14th February 2018 with no impact to the planned train service.

2.6 The parties believe there is no clear guidance in DAPR to aid resolution of these incidents.

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3. ‘First MTR South Western Railway’ view of the incident

3.1 SWR believe that the delays caused by 722 points being unavailable should be considered a new Prime Cause incident and attributed to the infrastructure being out of use, in this instance 722 points, as this hindered recovery and exacerbated the impact to the trains trapped between Vauxhall and Wimbledon.

3.2 There is no specific guidance in the DAPR regarding infrastructure being unavailable but having no impact on the Plan of the Day.

3.3 If 722 points had failed on the day when being used to cross trains to the Down Main Fast a new prime cause would have been created and attributed to IB/IQCX as per DAPR.

3.4 No Network Change had been applied for and the points should be available as per the Sectional Appendix. This impacts incident 508283 on 29th October 2018 as it was over 6 months since 722 points had been taken out of use

4. Network Rail ‘Route’ view of the incident

4.1 Network Rail believes that the incidents should remain with the initial incidents rather than a new Prime Cause for 722pts. This is due to the fact that the points had been plain lined since the 14th Feb 2018 and require no change to plan of the day (i.e. the plan of the day reflects that 722 points are not planned to be used).

4.2 Network Rail therefore believes that the plan of the day reflecting 722 points being out of use constitutes a ‘planned’ event. Attribution (as governed by Schedule 8 of the Track Access Contracts) is applicable to (and payable for) unplanned events.

4.3 Network Rail maintains that without the SWR incidents occurring no delay would have occurred due to the unavailability of 722 points (as above, the plan of the day reflected their non‐availability).

4.5 In response to SWR 3.4 only the last incident 508283 is over the 6 month timeline for a Network Change to be applied. However, the unavailability of 722 points had no impact on the base timetable and the intention was always to fix 722 points which was completed in Week 34 (November 2018)

4.6 Network Rail believe that the Prime Cause of Delay is the SWR incidents / events (train failure, driver issue and passenger ill as set out in Section 2). Without these events no delay would have occurred irrespective of 722 points being out of use.

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5. Requirement of the Board

The Delay Attribution Board is asked to give guidance on:

5.1 DAB is asked to provide guidance on the attribution of these incidents and where the responsibility lies for the additional delays caused by infrastructure being out of use but not requiring an amendment to the agreed plan of the day.

5.2 SWR believe that this should be considered a new Prime Cause and the attribution should reflect 722 points being out of use and attributed to IB/IQCX

5.3 Network Rail Wessex Route believe the current attribution is correct and sthe incidents should remain code‐matched to the original Prime Cause as the 722 points had not failed and their unavailability had been reflected within the Plan of the Day.

5.4 Both Parties also request DAB to provide guidance on whether it believes attribution would be different in circumstances where infrastructure is out of use and did require an amendment to the plan of the day (actioned) but a new Prime Cause incident would again have the impact mitigated if this infrastructure was available for use.

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Appendix 1 – 722 Points track diagram

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Questions submitted by Board Members to the Parties prior to the Hearing – Points out of Use

Question 1 (In relation to Factual Background point 2.1) – It is stated that the incidents in dispute contain the delays that were identified as being as a result of 722 points not being available. Could NR advise if this is the full delay experienced by the train(s) prevented from crossing over at 722 points or a proportion of the delay considered the ‘additional’ impact?

If it is the full delay – was the train not considered as being delayed by the incident ahead?

If it is a proportion of the delay ‐ how was the value ascertained / agreed upon?

Response (NR) – The full delay was removed for the trains delayed behind the prime train that were between Clapham Jn and Wimbledon. It was not possible to identify how much time they would have lost to the prime train only and what time they potentially lost due to not using the points. Historically when an incident occurs at Wimbledon train usually cross to the down fast prior to Vauxhall.

Question 2 – Could the parties advise if they believe 722 points being out of use is a ‘planned’ or ‘unplanned’ event with their rationale provided?

Response (NR) – NR would consider the points being out of use a planned event.

The points were already out of use at 2200 the night before and are not required to operate for the plan of the day as agreed at 2200 the night before.

Response (SWR) – SWR consider it to be unplanned. There was no network change notification made to SWR that the points were out of use. Although no trains are planned to use them in the SX timetable the assumption being they are available for disruption.

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Guidance No: DAB50 Attribution of Responsibility for Service Recovery affected by points being out of use.

1. Introduction

The Delay Attribution Board (the Board) received a Request for Guidance in connection with the attribution of various TRUST incidents involving additional delays caused by a set of points being out of use and hindering service recovery 1.1. The Board received the Joint Request for Guidance from First MTR South Western Railway (South Western Railway) and Network Rail; Wessex Route on the 21st October 2019. 1.2. Summary of the submission:

1.2.1. Guidance from the Board is sought for the resolution of an issue which has been progressed through the relevant process but for which no resolution has been achieved.

1.2.2 To provide guidance from the Board in relation to additional delays caused by a set of points being out of use that hindered service recovery.

1.2.3 For the Board to provide guidance on whether the responsibility for the incidents should be allocated to Network Rail or to South Western Railway.

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2 Factual Background to the Incidents

2.1 Incidents that form this Request for Guidance are: ‐

 132414 2G23 Unit Failure Wimbledon on 22nd June 2018  188908 1D45 Driver Wimbledon on 12th July 2018  508283 2H59 Ill Passenger Wimbledon on 29th October 2018 2.1 The above 3 incidents are ‘duplicate incidents’ and contain ONLY the disputed reactionary delays from the original Prime Cause incidents (which have been accepted by SWR).

2.2 The disputes relate to the unavailability of 722 points at the London end of Wimbledon station due to the points being plain‐lined and out of use.

2.3 In all three incidents the prime train involved was standing in Wimbledon station in Platform 8 on the Down Main Slow. 722 points would have enabled a train, in rear, at W183 to cross over to the Down Main Fast and pass through Wimbledon on the Down Main Fast line crossing back to the Down Main Slow at Wimbledon West Jn on the country side of Wimbledon station.

2.4 Between London Waterloo and Wimbledon the only other set of points available to cross trains from the Down Main Slow to Down Main Fast is at the London side of Vauxhall station so the impact to the train service is to “trap” trains on the Down Main Slow between Vauxhall and Wimbledon with services having to wait for the primary train to move from Platform 8 at Wimbledon.

2.5 The points are not required to be used for the planned service and no alteration to the plan of the day was required as a result of 722 points being plain lined. The points had been out of use since 14th February 2018 with no impact to the planned train service.

2.6 The parties believe there is no clear guidance in DAPR to aid resolution of these incidents.

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3. Requirement of the Board

3.1 The Delay Attribution Board was asked to review the specific circumstances relating to these incidents and provide guidance as to which party they believe is responsible for the additional delays caused by a set of points being out of use and hindering service recovery.

3.2 SWR believed that this should be considered a new Prime Cause and the attribution should reflect 722 points being out of use and attributed to IB/IQCX

3.3 Network Rail Wessex Route believe the current attribution is correct and the incidents should remain code‐matched to the original Prime Cause as the 722 points had not failed and their unavailability had been reflected within the Plan of the Day.

3.4 Both Parties also request DAB to provide guidance on whether it believes attribution would be different in circumstances where infrastructure is out of use and did require an amendment to the plan of the day (which was actioned) but a new Prime Cause incident would again have the impact mitigated if this infrastructure was available for use.

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4. South Western Railway’s View

4.1 SWR believe that the delays caused by 722 points being unavailable should be considered a new Prime Cause incident and attributed to the infrastructure being out of use, in this instance 722 points, as this hindered recovery and exacerbated the impact to the trains trapped between Vauxhall and Wimbledon.

4.2 There is no specific guidance in the DAPR regarding infrastructure being unavailable but having no impact on the Plan of the Day.

4.3 If 722 points had failed on the day when being used to cross trains to the Down Main Fast a new prime cause would have been created and attributed to IB/IQCX as per DAPR.

4.4 No Network Change had been applied for and the points should be available as per the Sectional Appendix. This impacts incident 508283 on 29th October 2018 as it was over 6 months since 722 points had been taken out of use

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5 Network Rail’s View

5.1 Network Rail believes that the incidents should remain with the initial incidents rather than a new Prime Cause for 722pts. This is due to the fact that the points had been plain lined since the 14th Feb 2018 and require no change to plan of the day (i.e. the plan of the day reflects that 722 points are not planned to be used).

5.2 Network Rail therefore believes that the plan of the day reflecting 722 points being out of use constitutes a ‘planned’ event. Attribution (as governed by Schedule 8 of the Track Access Contracts) is applicable to (and payable for) unplanned events.

5.3 Network Rail maintains that without the SWR incidents occurring no delay would have occurred due to the unavailability of 722 points (as above, the plan of the day reflected their non‐availability).

5.4 In response to SWR 3.4 only the last incident 508283 is over the 6‐month timeline for a Network Change to be applied. However, the unavailability of 722 points had no impact on the base timetable and the intention was always to fix 722 points which was completed in Week 34 (November 2018)

5.5 Network Rail believe that the Prime Cause of Delay is the SWR incidents / events (train failure, driver issue and passenger ill as set out in Section 2). Without these events no delay would have occurred irrespective of 722 points being out of use.

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6. Locus of the Board

6.1 The Board reviewed its locus in respect of providing guidance on this issue. The Board’s locus to provide guidance is set out in the Network Code Conditions B2.4.3 and B6.1.3. 6.2 The Board noted that while it could offer guidance to the Party regarding how incidents of this nature should be attributed, this guidance was not binding on either Party involved. If either of the Access Parties were dissatisfied with the guidance provided, they could refer the matter to Access Dispute Adjudication (ADA). 6.3 If the issue was referred to ADA, then an Access Dispute Adjudication Panel (ADA Panel) would be formed to consider the dispute. In doing so, the ADA Panel would take account of the guidance provided by the Board but would not be bound by it. The ADA Panel would then make a determination that was binding on the Parties concerned. This document is therefore being prepared as the vehicle for providing the guidance and the reasons for how the Board arrived at its position both to the Parties and, if necessary, to the relevant ADA Panel. 6.4 The Board agreed that it should seek to provide guidance that meets with the delay attribution vision:

“For all parties to work together to achieve the prime objective of delay attribution – to accurately identify the Prime Cause of delay to train services for improvement purposes”. 6.5 The Board would need to consider if, in providing guidance, an amendment to the Delay Attribution Principles and Rules should be proposed to improve clarity.

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7 Consideration of the Issues 7.1 The Board at its meeting on 19th November 2019 considered the Request for Guidance and took account of the following: 7.1.1 The facts provided by South Western Railway and Network Rail in connection with the incidents disputed and the Joint Request for Guidance submission paper. 7.1.2 The additional information provided by South Western Railway and Network Rail in response to questions raised by the Board prior to the Hearing (Set out in Appendix A). 7.1.3 The additional information provided by South Western Railway and Network Rail in response to questions raised by the Board at the Hearing (Set out in Appendix B). 7.1.4 The guidance provided within the Delay Attribution Principles and Rules (as was in place at the time of the incident(s) occurring) and any other related DAB Guidance documentation. 7.2 The Board regarded the following points as particularly relevant during discussion of the incidents:

7.2.1 That Network Change process shouldn’t influence attribution although at the sameg ti me notin that compensation could still be sought by SWR through the Network Change process outside of attribution. 7.2.2 That whilst Network Rail should be incentivised to repair its infrastructure this can be achieved through other mechanisms (e.g. see Network Change above) and not necessarily attribution and Schedule 8. 7.2.3 That 722 points being out of use should be considered as ‘planned’ as the points were not planned to be used for any booked movements in the ‘Plan of the Day’ (no amendments to the plan were required) 7.2.4 That the same principles would apply if the ‘Plan of the Day’ had been amended to reflect 722 points being out of use (effectively Network Rail would be mitigating the points’ impact on services) 7.2.5 That regardless of whether the appropriate notification had been provided to SWR in relation to 722 points being out of use (unconfirmed), the delays that occurred on the days in question would still have been of the same magnitude (i.e. any notification would not have changed what happened on the day) 7.2.6 Whilst 722 points should be an available asset and could be used for contingency reasons, any mitigating crossing moves are ordinarily carried out at Vauxhall. 7.2.7 That 722 points being out of use caused no direct delay on previous days. The delays only occurred as a result of the SWR incidents blocking the Down Slow line at Wimbledon. 7.2.8 That attributing the delay to the ‘trapped’ trains into a new incident for 722 points would effectively mean the SWR (unplanned) incidents blocking

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the Down Slow line would not be allocated any of that delay (when in effect the SWR incidents were the direct cause of that delay) 7.2.9 That there would be wider implications if those principles were applied. A delay could then be allocated to the reason a diversion can’t be utilised rather than the immediate cause on a train’s booked route / line (a reverse situation could occur where delay due to a Network Rail infrastructure incident is then allocated to an Operator incident blocking the diversionary route) 7.2.10 In situations such as this (and potentially where two unplanned incidents occur simultaneously) that any direct delay should be allocated to the incident on the affected train’s booked line or line of route.

8 Guidance of the Board 8.2 Based on the information presented, the Board agreed, unanimously, the following: ‐ 8.1.1 That South Western Railway is responsible for the incidents raised as part of this submission. 8.1.2 That the Delay Code applied to the incidents in this submission should be matched to the original South Western Railway incidents (frome which th delays were removed).

8.3 In reaching its conclusion the Board also noted the following points: 8.2.1 The Board needs to consider providing further guidance in the DAPR, or its supporting Process Guides, for circumstances to clarify that any parties’ planned restrictions or events (factored into the ‘Plan of the Day’) should not be considered as impacting recovery of any unplanned incident. 8.2.2 The Board also needs to consider providing further guidance in the DAPR, or its supporting Process Guides, for circumstances where two unplanned events occur simultaneously, and each could be considered as impacting recovery of the other by preventing the implementation viable diversions.

This guidance was approved by the Delay Attribution Board on 17th December 2019 Jim Pepper (Deputy Chair) Signature:

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APPENDIX A

Additional information provided by SWR and Network Rail in response to questions by Board members prior to the 19th November 2019 Hearing.

Question 1 (In relation to Factual Background point 2.1) – It is stated that the incidents in dispute contain the delays that were identified as being as a result of 722 points not being available. Could NR advise if this is the full delay experienced by the train(s) prevented from crossing over at 722 points or a proportion of the delay considered the ‘additional’ impact?

If it is the full delay – was the train not considered as being delayed by the incident ahead?

If it is a proportion of the delay ‐ how was the value ascertained / agreed upon?

Response (NR) – The full delay was removed for the trains delayed behind the prime train that were between Clapham Jn and Wimbledon. It was not possible to identify how much time they would have lost to the prime train only and what time they potentially lost due to not using the points. Historically when an incident occurs at Wimbledon train usually cross to the down fast prior to Vauxhall.

Question 2 – Could the parties advise if they believe 722 points being out of use is a ‘planned’ or ‘unplanned’ event with their rationale provided?

Response (NR) – NR would consider the points being out of use a planned event.

The points were already out of use at 2200 the night before and are not required to operate for the plan of the day as agreed at 2200 the night before.

Response (SWR) – SWR consider it to be unplanned. There was no network change notification made to SWR that the points were out of use. Although no trains are planned to use them in the SX timetable the assumption being they are available for disruption.

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APPENDIX B

Additional information provided for clarification purposes by SWR and Network Rail during questioning by Board members at the 19th November Hearing.

Question 1 – Can NR confirm if the delays experienced by the trapped trains has been removed in its entirety or just a proportion?

Response (NR) – All the delay has been removed and is in a separate holding incident that will be recoded as per the DAB Guidance.

Question 2 – So in effect the parties have agreed that if the incident is allocated to NR for the points failure then effectively no delay would have been caused by the SWR incident on the down slow line?

Response (SWR) – The delay in the holding incidents has been agreed so it will all be coded to the responsibility as per the DAB guidance.

Response (NR) – It would be too difficult to ascertain what amount delay would or wouldn’t have occurred if 722 points had been available and the trains went onto the down fast line.

Question 3 – Was 722 points listed on the out of use register or similar documentation and how are SWR usually advised of such restrictions?

Response (NR) – Control were unable to confirm where and when it was recorded or advised but highlighted that the points are not used for any WTT services.

Question 4 – So what is the purpose of 722 points?

Response (NR) – They would generally only be used for engineering work and sometimes additional stock moves to from Wimbledon depot.

Question 5 – Are 722 points not used for recovery or mitigation purposes?

Response (NR) – They could be but generally trains are crossed from the slow to the fast at Vauxhall (north of Wimbledon). 722 points are rarely used for mitigation purposes.

Question 6 – Are 722 points in any contingency plans and have they been used in that capacity since repaired?

Response (SWR) ‐ The contingency plan doesn’t generally detail specific assets

Response (NR) – Not sure if they have been utilised since as it wouldn’t be recorded in the log specifically that they were used.

Question 7 – Why were 722 points being out of use not processed through Network Change?

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Response (NR) – As they were due to be fixed [November 2018] a few weeks after the stipulated 6 month time period for Network Change.

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Notice of Dispute: December 31st 2019

On behalf of First MTR South Western Trains Limited, Company Number 07900320 (SWR), and pursuant to Network Code Condition B2.4.4, I give Notice of Dispute with Network Rail Infrastructure Limited in relation to DAB Guidance 50 and the non-availability of 722 points at Wimbledon due to an Infrastructure defect.

This dispute is brought on the basis that the non-availability of 722 points at Wimbledon, from 14/02/2018 onwards, exacerbated the delays to train services arising from specific operational incidents during 2018, by denying Network Rail and SWR the opportunity to mitigate the impact of said incidents.

The incidents in question, which are currently attributed to SWR, are as follows:  132414 2G23 Unit Failure Wimbledon on 22nd June 2018  188908 1D45 Driver Wimbledon on 12th July 2018  508283 2H59 Ill Passenger Wimbledon on 29th October 2018.

SWR considers that the delays from these incidents should be attributed to Network Rail, because the inability of the parties to mitigate the delays arose from the non-availability of a Network Rail asset, namely 722 points. As such, SWR’s opinion is that Network Rail was in breach of certain clauses contained within the Track Access Contract between the parties.

The following are, inter alia, relevant clauses from SWR’s Track Access Contract:  Standard of Performance (clause 4);  Permission to Use (clause 5), which refers to “Routes”;  Operation & Maintenance of the Network (clause 6.1(b));  Schedule 2 paragraph 2, “In order to provide Services when any part of the route is unavailable, the Train Operator has permission to use any reasonable route for diversionary purposes”; and  Schedule 8 paragraphs 5.2(b)&(c), regarding NR’s responsibility for incidents, “by circumstances within the control of Network Rail in its capacity as operator of the Network”.

Determination of this matter should proceed in accordance with Access Dispute Resolution Rule B6.

We are not aware of any other Party which might be concerned with this matter.

Name Dave Waldron Job title Current Performance Manager For First MTR South Western Trains Limited Telephone 07585 405449 e-mail [email protected]

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Annex 10: Relevant extracts from South Western Railway Performance Review published August 2018.

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Coledale Consulting Ltd/Atkins Global Contents 1. Executive summary and table of recommendations………..………………………………………3 2. Structure of this report………………………………………………………………………………………….13 3. Historical data analysis………………………………………………………………………………………….14 4. Organisational, leadership and cultural issues……………………………………………………….33 5. Performance management processes and capability…………………………………………….41 6. Core resilience of the timetable…………………………………………………………………………….50 7. Control and resourcing structures…………………………………………………………………………69 8. Infrastructure management and performance………………………………………………………81 9. Improving overnight infrastructure maintenance productivity……….………..…………..86 10. Operations and fleet…………………………………………………………………………………………….92

Appendix A. Project remit set 9th April 2018………………………………………………………………113

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Coledale Consulting Ltd/Atkins Global

1. Executive summary and table of recommendations

1.1 Work packages 1 and 2 – operational performance

Operational performance has been in long term decline since a peak in January 2011 during which time the timetable and train mileage run have been broadly static. The two biggest principal causes of this decline over eight years are considered to be:

A loss of timetable resilience caused by the following:

 Increasing passenger loadings over time putting dwell times under pressure  A progressive increase in the impact of defensive driving behaviour  Shortage of fully trained drivers combining with operational complexity of train crew diagrams leading to lack of resourcing resilience and heavy dependence on free day working  Serious loss of operational expertise and command and control capability in Control function before and after the move to Basingstoke  Increase in various train lengths over time from 8 to 10 and 12 cars, meaning that junctions take longer to clear and trains approach platform ends slower  Insufficient focus on prevention and removal of Temporary and Emergency Speed Restrictions on the network Degradation in service recovery capability during and after disruption due to:

 Loss of capability to control train crew during disruption due to physical separation of resource management from operational control coupled with complexity of train crew diagrams  Significant shortfall in compliance with the driver and guard route and traction knowledge matrix, especially at Waterloo Depot and for Class 707 traction  inadequate knowledge of key diversionary routes/depots amongst traincrew In addition, a number of other factors have come together and acted to worsen operational performance:

1. A significant increase in the impact of infrastructure failures over time 2. Ageing infrastructure assets being more intensively used, and with insufficient proactive maintenance and renewals activity, over a sustained period of time

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Coledale Consulting Ltd/Atkins Global

 Managers are significantly distracted through a range of tasks including training contingency guards, planning, communicating and executing amended services, and attempting to negotiate a settlement to the dispute. This removes much of the time that might otherwise have be available to address performance problems on the network. Thus, despite the obvious need to focus efforts on arresting and reversing the decline, this need is frustrated by more pressing tasks.  Individual members of train crew who are either in dispute already, or sympathetic to the guards’ cause, may be less motivated to go the extra mile to maintain or recover performance during or after disruption.

6.10 Too many Temporary and Emergency Speed Restrictions on the network.

In recent years there has been an increase in the number of unplanned TSRs and ESRs. In the early days of the Railtrack era the target for these on what is now the Wessex Route was set at zero, and was closely monitored to ensure that when ESRs or TSRs were instigated there was a plan quickly developed to have them removed quickly, with the plan tracked weekly.

The reason this is so important is because of the intensity with which the network is operated. There are no engineering allowances on the former Southern Region, as there are on all other NR Routes. Instead, all point-to-point timings contain a 5% allowance to allow for fluctuations in the DC power supply, and for normal variations in traction and driving performance. This allowance has effectively already been consumed by amended driving practices introduced following the installation of TPWS OSSs and professional driving policies.

Following the Hatfield derailment in 2000, which exposed the growth of rolling contact fatigue as more modern traction types were introduced, Railtrack imposed many thousands of unplanned TSRs and embarked on a major programme of re-railing. Whilst TSR numbers were eventually brought back under control, NR has never since managed to regain the position where zero ESRs and unplanned TSRs are seen as an achievable goal. Rather, the existence of large number of these has become normalised within the organisation.

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Coledale Consulting Ltd/Atkins Global

In recent times the Wessex Route has been averaging somewhere between 30 and 35 ESRs and unplanned TSRs in place at any time. Of course, the location and severity, and therefore the impact of these varies greatly from the minimal to the very significant indeed. Recently these numbers have increased and (at the time of writing14) there are a total of 62 speed restrictions in place on the Wessex Route, split 45 ESRs and 17 TSRs. Of this total 14 are differential speed restrictions where only freight trains are directly affected (passenger trains may suffer reactionary delays of course). Between 18 and 3815 of the remaining 48 live restrictions can be expected to create direct delay to passenger trains, some much more than others. Of the 62 existing restrictions, 11 currently have no planned removal date shown for them, some planned removal dates have passed without the remedial work having been completed as planned, and some of the dated planned removals are as far away as 202016.

The timetable cannot be expected to work properly when there are speed restrictions in place which routinely delay trains by a minute or more. Neither can it cope with any severe speed restrictions at all on an intensively worked section of track.

Earlier this summer we saw consecutive severe speed restrictions on the Main Line between Basingstoke and Bournemouth. When three or more of these are in the same direction, as has happened recently, trains are highly likely to fail PPM. Even one severe speed restriction will mean trains routinely approaching key junctions late: a 20mph TSR on the Up Line departing Guildford recently led to every train for several weeks approaching the critical junction at Woking around 2 minutes late. This is guaranteed to spread delays across the network.

There are currently 50mph ESRs on both the Up and Down Main Fast lines at Weybridge, where the line speed is 90mph and is used by a minimum of 12 express passenger trains per hour per direction in the off peak alone, with more in the peaks. Each train incurs a delay of around 45-50 seconds. They have been there in their current form since January.

14 31st August 2018 15 A matter of judgement depending on their severity and precise location relative to stations etc 16 This is a fluid position, changing day by day, and this data has changed quite a bit during the edit phase of this report. 65

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The reason the ESRs are in place is a longstanding difficulty with maintaining adequate formation for high speed over a facing crossover. Many attempts have been made to fix this problem over several years, but none of them have proved to be anything more than short term stop gaps. In the view of NR’s Head of Maintenance, this crossover is unmaintainable for the existing linespeed. However, there is as yet no alternative approach in development to deal with the problem properly. A permanent solution is likely to involve some form of S&C renewal, and will thus be expensive and take time to plan. But a budget has not been identified and so the problem has been left to persist week after week17.

Because the delay suffered by each train is usually less than one minute, and it is on a four track section, the delay is not ‘networked’ in TRUST-DA and so is not captured as a cause of delay. But the impact of eating into timetable resilience occurs all day every day. Here are two examples of the impact this can have:

 Trains already running perhaps a minute late will arrive at the next key junction perhaps two minutes late, and thus be out of path and delay other trains in turn. In the case of the example quoted, this tends to affect the joining sequence at Berrylands Junction in the Up direction, and crossing moves at Woking or Woking Junction in the Down direction.  Trains which might have arrived four minutes late at destination instead arrive five minutes late and just fail PPM; there is also one minute less to achieve a punctual turnround for the next service to start on time. This situation will prevail until such time that NR is able to remove these speed restrictions and prevent new ones from arising. These restrictions are most often caused by poor quality track condition, but sometimes by poor condition of structures or earthworks, and occasionally are imposed for sightline deficiencies at user-worked or pedestrian level crossings. Of course, the existence of speed restrictions in this quantity is an indicator of a wider problem relating to the adequacy of maintenance and renewals on the

17 During the course of this review NR has developed a proposal for this location, but at the time of writing it is not yet funded 66

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infrastructure, which we address in Section 8. In the meantime, a much stronger focus is required to tackle TSRs and ESRs which daily erode timetable resilience.

NR has provided incremental funding this year to its Wessex Route with which it has created additional temporary teams whose role is to tackle the TSR/ESR problem. However, it would appear that even with this additional resource the Route is struggling to get on top of the issue. A long spell of hot weather this summer has undoubtedly created additional strain on the Permanent Way teams. It will be important that this level of increased resource is further augmented and sustained for the foreseeable future.

Committed Obligations assisting ESR & TSR management

CO45 – installation of operational track monitoring equipment to 125 vehicles across 5 rolling stock fleets to provide real time data on track condition to Network Rail

6.11 Other considerations

The consequence of all these issues, taken collectively, is to make the timetable that small bit less reliable in any given set of circumstances. This is sufficient to degrade punctuality on any given day by maybe between 1 and 3 percentage points, although for obvious reasons it is difficult to quantify this. Unfortunately, it is not possible to relax train running schedules any further at the key points on the network without loss of train capacity, and any loss of train capacity would result in increased overcrowding leading to greater dwell time exceedances, thus making any re-timing exercise counter-productive.

The recommendations made in the body of this section, if carried through, are considered to result in partial mitigation of this problem of reduced timetable resilience. We do not consider it possible, within the constraints of the railway infrastructure and operational practices as they exist today, to restore the level of core timetable resilience seen in the years after the current timetable structure was introduced in 2004, unless fewer trains are run at peak times. We do not believe it would be either sensible or acceptable to reduce the peak train service specification, for the reasons given above.

This means that the only way to restore a 2004 level of core resilience in the timetable is to introduce a number of infrastructure improvement schemes designed to improve the

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It is axiomatic that a high performing train service requires highly reliable infrastructure to operate over. Over the review period the number of delay incidents attributable to non-track assets reduced by about 12%, implying improved asset quality, which is confirmed by NR’s own comparative composite reliability indicator data across the Routes. Considering the steadily ageing average age of signalling assets this is perhaps worthy of congratulation. However, simply counting the number of incidents might be useful if you are an asset steward, but how those incidents are managed and how much impact they have on the train service are of great importance to the end customer. Sadly, the data shows a huge growth in DPI across the eight year review period, almost a threefold worsenment.

For Track it’s slightly worse even than that. Here we have the incident count remaining broadly static across the eight year period, with DPI showing a very similar adverse trend of nearly threefold deterioration. The number of track defects can be seen as an indicator of the underlying health of the track asset, and the way it is being maintained and renewed. The number of Track incidents occurring represents a major area of concern for performance, as these are often high impact events.

8.2 Infrastructure maintenance and renewals

It is clear that the Wessex infrastructure maintenance team is under pressure. There are a number of things which have come together over a period of time to conspire to make its life harder:

8.2.1 Rate of asset renewal

The rate of asset renewals has been insufficient over several Control Periods to maintain average asset life in a steady state condition. For example, the average used life of ballast has increased from around 50% in March 2010 to 56% at March 2018, and is projected (based on the agreed renewals profile for CP6) to reach 62% by March 2024. Likewise, the average used life of sleepers has gone from 61% in March 2010 to 66% in March 2018, and is projected to reach 73% by March 2024. Given that ballast and sleepers are the foundation on which the rest of the railway infrastructure sits, gradually decaying ballast and sleepers implies increasing problems with contaminated ballast, wet beds, flooding, dipped joints, poor quality top and line, leading to track circuit failures, rough ride reports,

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Annex 11: Relevant extracts from Network Code Part G, ‘Network Change’.

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Revised Part G

DEFINITIONS

In this Part G, unless the context otherwise requires:

“authorised variation” means a variation to an established Network Change, where:

(a) the terms and conditions on which the Network Change in question was established contain a variation procedure;

(b) that variation procedure has been followed in accordance with its terms; and

(c) the result of the operation of that variation procedure is that the established Network Change has been varied;

“change” includes:

(a) improvement or deterioration, enlargement or reduction; and

(b) for the purposes of paragraph (b) of the definition of Network Change, a series of changes;

“Complex Projects means the procedure set out in Conditions G5 to G7; Procedure”

“Effective Date” means the date specified in a notice of proposal of a Short Term Network Change upon which the Short Term Network Change is proposed to become effective;

“Established Date” means the first date upon which a Short Term Network Change can be implemented in accordance with Condition G10, whether or not the change is implemented on that day;

“established Network means a change falling within the definition of “Network Change” Change” and which:

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(a) in the case of a Network Change proposed by Network Rail, Network Rail is entitled to carry out having complied with the procedural and other requirements of this Part G; and

(b) in the case of a Network Change proposed by an Access Beneficiary, Network Rail is required by this Part G to carry out,

and “establish” and “establishment” of a Network Change shall be construed accordingly;

“Expiry Date” means the date specified in a notice of proposal in relation to a Short Term Network Change which shall not be more than two years, or such longer period as is agreed between Network Rail and each Access Beneficiary that may be affected by the implementation of the proposed Short Term Network Change or determined in accordance with Condition G11, from the later of the Effective Date and the Established Date;

“Governmental Body” means any local, national or supra-national agency, authority, department, inspectorate, minister, ministry, official, court, tribunal, or public or statutory person (whether autonomous or not and including the Office of Rail and Road);

“method of delivery” includes the means of securing access to an operational document and the ability to make use of the data contained in an operational document;

“modification” includes additions, alterations and omissions, and cognate expressions shall be construed accordingly;

“Network Change” means, in relation to an Access Beneficiary:

(a) any change in or to any part of the Network (including its layout, configuration or condition) which is likely materially to affect the operation of:

(i) the Network; or

(ii) trains operated by, or anticipated as being operated in accordance with the terms of

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any access option, by or on behalf of that Access Beneficiary on the Network; or

(b) any change to the operation of the Network (being a change which does not fall within paragraph (a) above) which:

(i) is likely materially to affect the operation of trains operated by, or anticipated as being operated in accordance with the terms of any access option, by or on behalf of that Access Beneficiary on the Network; and

(ii) has lasted or is likely to last for more than six months,

including

(x) a temporary speed restriction;

(y) a material change to the location of any of the specified points referred to in Condition B1.1(a); or

(z) a change to the method of delivery of any operational documentation (other than Railway Group Standards) owned or used by an Access Party; or

(c) any material variation to an established Network Change, other than an authorised variation,

but does not include a closure (as defined in the Railways Act 2005) or a change made under the Systems Code;

“Preparatory Works” means testing, trials, pilot activities, surveys and all other activities reasonably necessary to develop the proposed Network Change;

“Relevant Costs” means, in respect of any Network Change implemented in accordance with Condition G9:

(a) in respect of Network Rail, all costs, direct losses and expenses (including loss of revenue and liabilities to other Access Beneficiaries but

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