RIDR RULES : EXPERT DETERMINATION

This document shows Section C of the RIDR Rules, as amended by Section D. The paragraph numbers are those of Section C.

Note: this document has no formal status.

1 Disputes to be decided by expert determination

Any dispute which the parties have agreed should be referred to expert determination under these Rules shall be determined by an independent expert agreed between the parties or appointed by the Disputes Secretary. Such independent expert will act as an expert and not as an arbitrator.

2 Beginning an expert determination and appointing the independent expert

2.1 Notice of expert determination

2.1.1 A person wishing to refer a dispute to expert determination shall serve a written notice of expert determination on the Disputes Secretary and shall serve a copy of the notice of expert determination on every other party to the dispute against which it wishes to assert a claim. The notice shall summarise the basis of the claim and list the other parties concerned.

2.1.2 Any party so served may within 21 days, or subject to the discretion of the independent expert at any other time in the course of the expert determination, serve a notice on any of the persons mentioned in paragraph 2.1.3 joining it as a party to the expert determination and claiming against it for contribution, indemnification or other third party relief arising out of or in connection with the subject matter of the dispute.

2.1.3 The persons referred to in paragraph 2.1.2 are any Industry Party or, subject to the discretion of the independent expert, any person who agrees to be joined.

2.1.4 Any party may suggest one or more suitable independent experts, whether from the register or otherwise.

2.2 Appointment of independent expert

The Disputes Secretary shall promptly approach all parties to the dispute and discuss with them the identity of an independent expert to decide it. Any party may suggest one or more independent experts, whether from the register or otherwise. Subject to any agreement of the parties to the contrary, if the parties fail to agree on an independent expert within 21 days of the Disputes Secretary’s initial approach, he shall appoint an independent expert from the register. Upon the appointment of an independent expert, the Disputes Secretary shall send to all the parties to the dispute a notice of the appointment of the independent expert.

2.3 Change of independent expert

2.3.1 If any independent expert acting or appointed to act under these rules resigns, withdraws, dies or refuses to act, the Disputes Secretary shall, upon application by the independent expert or any party to the expert determination, on proof satisfactory to the Disputes Secretary, declare the office of independent expert vacant.

2.3.2 If the independent expert or any party to the expert determination considers that the independent expert is unable by reason of mental or physical infirmity to perform the duties of his office or is disqualified for any reason from performing the duties of his office, or has delayed unreasonably in the conduct of the expert determination or in the making of any award, the Disputes Secretary may, at the request of the independent expert or any party to the expert determination, having heard the independent expert and the parties if they or any of them wish to be heard, declare the office of independent expert vacant.

2.3.3 Where the office of independent expert shall have been declared to be vacant pursuant to this paragraph 2.3, paragraph 2.2 shall apply to the appointment of a replacement independent expert.

3 Procedure

3.1 General

3.1.1 The independent expert shall conduct the expert determination in such manner as he considers most suitable for the fair resolution of the dispute. The parties may agree that an expert determination shall be conducted on the basis of written representations only. In such a case, nothing in this paragraph 3 shall prevent the independent expert from requiring one or more oral hearings if he considers it appropriate for the just and expeditious determination of the proceedings. The independent expert shall have the power at any time to make or amend the procedure to be followed by the parties in the expert determination. Unless the independent expert rules otherwise, the timetable and procedure laid out in this paragraph 3.1 shall apply. 

3.1.2 Within 14 days of the notice of appointment of the independent expert, the claimant shall serve on the independent expert and the other parties a written statement of its claim. The statement of claim shall specify all relevant facts and matters and contentions of law (if any, naming and attaching copies of the principal authorities) on which the claimant relies (or admits or denies) and the relief and remedies sought. When attaching copies of authorities, the claimant shall provide complete copies of the appropriate reported cases.

3.1.3 Within 14 days of service by the claimant of the statement of its claim, each other party joined in accordance with paragraph 2.1.2 shall serve on the independent expert and the claimant a written statement of its defence, which statement shall specify the defence and all relevant facts and matters and contentions of law (if any, naming and attaching copies of the principal authorities) which the respondent relies on (or admits or denies). The statement of defence may set out any counterclaim which the respondent wishes to make. When attaching copies of authorities, the party shall provide complete copies of the appropriate reported cases.

3.1.3A At the time of serving its defence any respondent may also serve a statement of claim on any other party (copied to the independent expert and all other parties) joined in accordance with paragraph 2.1.2 which shall comply with the requirements of paragraph 3.1.2. Within 14 days of service of such statement of claim, each other party so served shall serve a written statement of its defence and any counterclaim which shall comply with the requirements of paragraph 3.1.3.

3.1.4 The statements served pursuant to paragraphs 3.1.2, 3.1.3 and 3.1.3A above shall be accompanied by copies of any documents referred to in them and by copies of all other documents upon which the party serving the statement wishes to rely. That party shall, if so requested, make the originals of such documents available for inspection by the independent expert or the other party.

3.1.5 After service of the last statement of defence, the independent expert may allow the parties a period (the “adjustment period”) not exceeding 14 days within which to adjust the written pleadings so that each material averment of the parties shall be answered (whether by admission, denial, explanation or otherwise). For the avoidance of doubt, the independent expert shall, in any event, have discretion to order or permit further pleadings as he may consider necessary and to invoke the adjustment period notwithstanding the failure of one or more parties to serve a defence.

3.1.6 On the expiry of the adjustment period, the pleadings shall be finalised and within seven days thereafter the claimant shall reproduce the pleadings, as adjusted, into a single document (in Scotland, the closed record) and send two copies to each of the independent expert and the other parties to the expert determination.

3.1.7 Before the commencement of the adjustment period, the parties shall consult with each other and together draft and serve on the independent expert a statement of agreed facts. All pleadings and adjustments to pleadings shall be based on the facts as they are established in such statement. Such statement may also outline the facts which have not been agreed by the parties.

3.1.11 The independent expert may, at any time prior to delivering his award, require payment of his fees in stages and/or security for those fees in any manner (and in any proportions as between the parties) he considers appropriate.

3.1.12 In relation to the production of documents:

(a) in addition to any documents supplied pursuant to paragraph 3.1.4, parties to a dispute who have referred such dispute to expert determination pursuant to paragraph 1 may provide to the independent expert such further information or documents as they reasonably consider necessary or desirable to the independent expert’s consideration and determination of the dispute;

(b) at the request of any party to the expert determination, any Industry Party shall within a reasonable time provide to the requesting party any documents and information which the requesting party reasonably considers necessary or desirable for the independent expert’s consideration and determination of the dispute, provided that any party to a dispute or Industry Party which considers that it has reasonable grounds for not disclosing information or documents which it is unwilling to provide may apply to the independent expert for a ruling that such information or documents need not be provided or should be provided on such terms as the independent expert shall direct. In making his ruling the independent expert shall have regard to all relevant circumstances and shall rule that they need not be provided if:

(i) disclosure would impose an unreasonable administrative burden on the applicant;

(ii) disclosure would place the applicant in breach of any duty or obligation (including a duty of confidentiality) to a third party who refuses to allow the disclosure;

(iii) the information or documents requested are such that they would not have to be produced or disclosed in a court of law or it would be reasonable to expect that, on application being made, a court would order that they be produced or disclosed only upon such terms as it might direct; or

(iv) in the case of an application by the Franchising Director, the Franchising Director shows reasonable grounds for fearing that production or disclosure would be likely to prejudice his ability to carry out functions assigned or transferred to him by virtue of the Railways Act 1993.

All documents and information produced or disclosed prior to or at a hearing shall be treated as “without prejudice” communications, shall be covered by litigation privilege and shall be treated by the independent expert and the parties as confidential.

(c) the independent expert may, on the application of a party, require the production of such specific identified documents as are within the possession, custody or control of any Industry Party or of any other party to the expert determination which the independent expert considers relevant and all other parties to the expert determination shall be given the opportunity to inspect and to comment upon any document so produced;

(d) if any document is not supplied to the independent expert and each other party within such time as

the independent expert shall prescribe, the independent expert may:

(i) proceed with the expert determination on the basis of the documents already before him; or

(ii) strike out (in Scotland, dismiss) the part of the claim or defence to which the document relates,

and in making his award the independent expert shall be entitled to make such allowance as he may think fit for the failure to supply the document;

(e) no party shall be obliged to produce any document which would be privileged from production in any proceedings in an action in the courts;

(f) an application by a party to the independent expert pursuant to sub-paragraph (c) above shall be served within 35 days of the appointment of the independent expert; a party in receipt of a request from the independent expert to produce a document shall comply with such a request within seven days;

(g) any party to the expert determination which provides information or documents to the independent expert and to each other party to the expert determination pursuant to this paragraph shall be reimbursed the costs of photocopying any such documents by the party which requested them; and

(h) any Industry Party which is not a party to the expert determination and which provides information or documents either to the independent expert or to any party to the expert determination pursuant to this paragraph shall be reimbursed its reasonable costs and expenses (including, without limitation, its photocopying costs) by the requesting party. The requesting party shall agree with the relevant Industry Party the amount of such costs and expenses and in the event of any dispute in relation to this amount, the matter shall be referred to the independent expert for a decision, which shall be final and binding on the requesting party and the relevant Industry Party.

3.1.15 Each of the parties may make written closing submissions. These shall be served by all parties (except the claimant) on the independent expert and each of the other parties within seven days following the end of the hearing. The claimant’s written closing submissions shall be served on the independent expert and each of the other parties within seven days after service of the last respondent’s submission.

3.1.16 The independent expert shall deliver his determination, and (unless the parties have agreed that he should not give them) the reasons for it within 56 days of his appointment.

3.2 Proposed amendments

Immediately after his appointment, the independent expert shall require each party to inform him of any amendments to the procedure or the time limits set out in paragraph 3.1 which it considers appropriate (whether because more than two parties will be involved or otherwise). Each party shall promptly send any proposed amendments to the independent expert and the other party. Before responding, the independent expert may require the parties to meet him.

3.3 Supplemental

3.3.1 The independent expert shall have power to strike out (in Scotland, dismiss) part or all of any claim or defence made in the proceedings where any act or omission has, in the opinion of the independent expert, given rise to a substantial risk that a fair determination of the dispute will not be possible, or which is such as to cause or to have caused serious prejudice to the other party, including without limitation where any such act or omission has given rise to:

(a) wilful breach of these Rules;

(b) deliberate non-compliance by a party with any order of the independent expert; or

(c) inordinate or inexcusable delay on the part of any party.

3.3.2 The independent expert shall have power to strike out (in Scotland, dismiss) part or all of any claim or defence made in the proceedings if he is satisfied that the claim or defence or any part of it is scandalous, frivolous or vexatious.

3.3.3 If any party fails to serve a pleading within the period allowed under these Rules or by order of the independent expert, and fails to remedy its default within 14 days after despatch to it by the independent expert or any other party to the dispute of notice of that default, the independent expert shall be entitled to rule that it shall be treated as having abandoned its claim or defence (as the case may be) and, having made such a ruling, the independent expert shall be entitled to proceed with the reference on an ex parte basis.

3.3.4 Any party which becomes aware that any provision or requirement of these rules has not been complied with and which fails to state an objection to that failure within a reasonable time shall be deemed to have waived the right to object.

3.3.5 Insofar as may be necessary for the resolution of the dispute the subject-matter of the expert determination, the independent expert may consider, rule as to the effect of, and take account of the effect of, any agreement, contractual or otherwise, between any of the parties to the expert determination, but, without prejudice to the provisions of paragraph 4.1, any ruling made by the independent expert shall not be binding on any other tribunal.

4 Determinations

4.1 Final and binding

The independent expert’s determination shall be final and binding save where a Court holds it to be so clearly erroneous on its face that it would be unconscionable for it to stand.

4.2 Power to make orders

In addition to his other powers under these rules, the independent expert may make such orders in his determination as he considers necessary to resolve the dispute, including orders that:

(a) one party shall pay an amount of money (including damages) to another party, whether that amount is specified in the determination or calculated in accordance with such procedure as he shall specify;

(b) one party should take or not take specified action;

(c) the meaning of an agreement or a party’s obligations under that agreement are as stated in the determination; or

(d) any principal sum he may order one party to pay to another shall carry interest at such rate and over such period as he shall determine.

4.3 Issue of expert determination

The independent expert shall send a copy of his determination to the parties, the Chairman and the Disputes Secretary. Paragraph 6.3 applies in relation to the confidentiality of the determination.

5 Costs

5.1 Expert determination fee

Any party serving a notice of expert determination shall at the same time pay to the Disputes Secretary a fee, of an amount to be published from time to time by the Disputes Secretary but not exceeding £500 (excluding VAT). If a party which is not an Industry Party is by consent a party to expert determination under these Rules, it shall pay to the Disputes Secretary such administration fee as the Committee may from time to time determine to be fair and reasonable. The expert determination shall not start until the fee has been paid. The Disputes Secretary shall promptly certify to the independent expert (once appointed) that the fee has been paid and remit it to the Committee Secretary.

5.2 Discretion to order payment of costs

Whether or not the independent expert reaches the stage of a final determination, he may order any party to pay some or a specified proportion of any party’s costs incurred in the expert determination, the independent expert’s fees and expenses (including the cost of obtaining any legal or expert advice), any costs of his appointment and any fee paid to the Disputes Secretary pursuant to paragraph 5.1, assessed in such manner as the independent expert shall determine. Where an applicant challenges a ruling of the Chairman of the Committee and the independent expert:

(a) reaches a decision substantially the same as the Chairman’s ruling, or a decision less favourable to the applicant; or

(b) finds that neither of the following conditions is satisfied, that:

(i) the amount to be paid by the applicant pursuant to the Chairman’s ruling, or the amount reasonably claimed by it, exceeded £7,500; or

(ii) the Chairman’s ruling would have had a substantial effect on the applicant’s business

the independent expert shall retain an absolute discretion but shall usually order the applicant to pay both its own and the other party’s costs and the fees mentioned above.

6 Confidentiality

6.1 Documents

All documents and information produced or disclosed in the course of an expert determination shall be treated as confidential by the independent expert, the Chairman, the Disputes Secretary and all parties.

6.2 Use of documents

Unless otherwise agreed by all parties, such documents shall only be used:

(i) for the purposes of the expert determination, including any appeal against the expert determination (or, in Scotland, any application under section 3 of the Administration of Justice (Scotland) Act 1972), or for judicial review, in respect of the determination;

(ii) for enforcing the expert determination; or

(iii) in support of a plea of estoppel (or res judicata or the like) in any subsequent proceedings.

6.3 Confidentiality of expert determinations

6.3.1 Copies to Industry Parties and Franchising Director

(a) Subject as provided in this paragraph 6, a copy of every determination shall be sent by the Disputes Secretary to each Industry Party and the Franchising Director. No such copy shall be sent until the expiry of 21 days after the receipt by the Disputes Secretary of the determination in question, unless the Chairman shall order otherwise. The Disputes Secretary may at his sole discretion instead send a summary of the independent expert’s determination; in such circumstances, each Industry Party and the Franchising Director will thereafter be entitled to receive a copy of the complete determination upon written request to the Disputes Secretary.

(b) The Disputes Secretary may also compile a report on the procedural aspects of any proceedings and include in it recommendations as to the conduct of any future claim or proceedings. The Disputes Secretary shall submit any such report to the Committee which may at its discretion send copies to any or all Industry Parties and the Franchising Director.

(c) The Disputes Secretary may, if so requested, send to the Regulator a copy of the determination in respect of a dispute to which an Industry Party paying a licence fee is party.

6.3.2 Confidentiality

Paragraph A8.9 shall apply to a determination (mutatis mutandis) as it applies to a decision of the Committee save that the reference in paragraph A8.9.1 to the Committee Secretary shall be read as a reference to the Disputes Secretary.

7 Communications

Communications for the purposes of the expert determination shall be by telephone and confirmed in writing wherever possible. Unless the contrary is proved, faxes sent before 17.00 shall be deemed received on the day of sending and letters sent by first class post shall be deemed received two working days after posting.

8 Exclusion of liability

None of the Chairman, the Disputes Secretary or any independent expert shall be liable to any party

for any act or omission (including negligence) in connection with any expert determination under these Rules unless the act or omission is established to have been in bad faith. 

9 Jurisdiction and governing law

Expert determinations shall take place in England and be subject to English law, save where the contract out of which the dispute arises is governed (or, if more than one, the majority of such contracts is governed) by Scots law, in which cases the expert determination shall take place in Scotland and subject to Scots law. In either case the independent expert may order otherwise.

10 Language

The language of the expert determination shall be English.

1 May 2003