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Statement of Case Made by First MTR South Western Trains Limited 22Nd

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Statement of Case Made by First MTR South Western Trains Limited 22Nd ADA49_SWR Statement of Claim Page 1 of 105 ADA49: Statement of Case made by First MTR South Western Trains Limited 22nd January 2020 22/1/20 ADA49_SWR Statement of Claim Page 2 of 105 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. 22/1/20 ADA49_SWR Statement of Claim Page 3 of 105 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. 22/1/20 ADA49_SWR Statement of Claim Page 4 of 105 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. 22/1/20 ADA49_SWR Statement of Claim Page 5 of 105 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.
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