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A GUIDE TO PARTIES TO A DISPUTE REFERRED TO THE RAILWAY INDUSTRY DISPUTE RESOLUTION COMMITTEE

1. Objective of this Guide

1.1 This Guide has been prepared for those taking a dispute before the Railway Industry Dispute Resolution (RIDR) Committee, or considering doing so. It provides a step-by-step description of the process so that a company in dispute can understand what will happen and so that its representatives can prepare themselves to put their case in the way which will best help the Committee to reach a decision.

1.2 The Guide is based on the Committee’s Procedural Rules. A summarised description of the process is given in the typical sequence of events in section 3.

2. General

2.1 The RIDR Committee has been established to provide an informal, speedy and inexpensive means of resolving disputes between Industry Parties. Its proceedings are governed by the RIDR Rules, the working of which to the general benefit of the railway industry as a whole is overseen by the RIDR Council, a body elected by Industry Parties. The Committee has adopted the procedures described in this Guide in order to ensure, so far as possible, that the Committee’s decisions on disputes are based on a full and clear understanding of the relevant facts and the arguments put forward by the parties, and that all necessary preparatory work has been carried out in advance of the Committee’s meeting to consider a dispute.

2.2 The RIDR Committee comprises an independent Chairman and five members elected by Industry Parties on the basis of their perceived ability to act judicially in a disinterested way, and to contribute to the Committee’s deliberations an expertise and experience in their specific areas of activity. Each member appoints an alternate.

2.3 The RIDR Committee is funded by an annual levy on Industry Parties, the time of members and their alternates being provided free by their employers. Apart from the costs of advisers or experts, dispute resolution by the Committee is free to Industry Parties. Costs are not recoverable from the other parties to a dispute unless, exceptionally, the Committee decides that a claimant’s case was so lacking in merit that it should not have been brought, or the conduct of any party before or during the hearing was such as to justify the award of costs against it.

3. Typical Sequence of Events

This typical sequence of events summarises the process set out in this Guide; it is shown from the point of view of the company originally referring a dispute to the Committee, but any company responding to a dispute needs to follow a similar course.

· Dissatisfaction

· Get support at an appropriate level in the company, insurers being involved where appropriate, for escalating dissatisfaction into a dispute.

· Informal discussion with the Committee Secretary to ensure mutual understanding of the nature of the dispute and that the Committee has jurisdiction.

· Send a formal notice of dispute to the Committee Secretary and to every other party to the dispute; it should contain the information shown in paragraph 5.1 below.

· Try to agree with other parties to the dispute a joint Statement of Agreed Facts, supported by a copy of all documents which any party to the dispute believes to be relevant.

· Send a summary of the company’s arguments, expressed in sufficient detail to be understood by the other parties, to the Committee Secretary.

· Supply any written expert evidence on which the company wishes to rely.

· Apply to the Committee Secretary for the Chairman’s authority to call any witness, citing what evidence the company wishes to establish, and how long this is likely to take.

· The Committee Secretary confirms the hearing date. If the Chairman believes that the issue in dispute has not been exposed with sufficient clarity or that it is so complex that the Committee needs legal or technical advice, there will be a preliminary meeting with the parties to discuss such issues (see paragraph 6.2 below).

· At least seven days before the hearing advise the Committee Secretary of who will represent the company at the hearing, and who will also be in attendance (see paragraph 6.5 below).

· The hearing will be conducted in as informal a way as possible consistent with enabling the Committee to reach a determination in an orderly fashion. The time available for oral representations to the Committee will be limited, as the Committee relies primarily on the written material supplied to it in advance.

· At the end of the hearing one representative with decision-making authority of each of the parties to the dispute will remain with the Committee and have a vote on the determination of the dispute. The aim is to achieve a nem. con. determination (i.e. one with no votes against) on all or part of the dispute. If that cannot be achieved, the Chairman may give a ruling on the dispute or on that part of it which has not been determined by the Committee (see paragraph 8.2 below).

· Any application for confidentiality in respect of the dispute determination must be made through the Committee Secretary within seven days.

4. Parties to a Dispute

4.1 Any Industry Party may unilaterally refer to the Committee any dispute covered by a provision in a contract or agreement between two or more Industry Parties which requires such a dispute to be referred to the Committee. Other disputes between Industry Parties may be referred to the Committee, but only if all parties to the dispute agree. A dispute between an Industry Party and someone who is not an Industry Party may be referred to the Committee only if (a) the non-Industry Party agrees, and (b) either the dispute is part of a wider dispute between more than one Industry Party, or the dispute involves the allocation of a third party liability under the Claims Allocation and Handling Agreement (CAHA), or the Committee consents.

4.2 The parties to a dispute are -

· someone who has made a claim in the dispute (the claimant);

· someone against whom a claim has been made ( the respondent);

· any other party likely to be materially affected by the outcome of the dispute.

5. Starting Proceedings

5.1 A person wishing to refer a dispute to the Committee should contact the Committee Secretary in order to clarify the nature of the dispute and the contract or other document giving the Committee jurisdiction to consider it. The Committee Secretary may also contact other parties to the dispute in order to clarify the arrangements with them.

The party referring the dispute to the Committee should then serve a written notice of reference on the Committee Secretary and on every other party to the dispute -

· stating the subject matter of the dispute,

· identifying the names and addresses of the other parties concerned,

· giving a summary of the nature and circumstances of the dispute.

The Committee Secretary may at this stage arrange a meeting with the parties to agree the process and timetable for addressing the dispute. This meeting will be concerned with how to deal with the issues in dispute, and not in any way with their merits.

5.2 The parties to the dispute should jointly prepare a Statement of Agreed Facts, supported by relevant documents agreed by the parties.

5.3 Each party to the dispute should provide to the Committee Secretary and to other parties to the dispute a summary of its arguments expressed in sufficient detail to be understood by the other parties, and supported by such further information or documents that it considers necessary or desirable for the Committee’s consideration of the dispute.

Each party will have the opportunity of submitting a written response to the arguments of the other party.

5.4 The parties to the dispute should within this process provide the Committee Secretary with -

· a copy of the contract or other document giving the Committee jurisdiction to hear the dispute;

· an estimate of the amount in dispute;

· an advice of that party’s intention to call witnesses, or to rely an expert report, or to cite legal authorities;

· any written material (e.g. diagram, photograph, calculation) considered relevant to the dispute;

· the decision sought from the Committee.

All documents and information produced will be treated by the Committee as confidential.

5.5 There is a presumption that that Committee will hear the dispute with the benefit of oral contributions from the parties, rather than reaching a decision through a ‘documents only’ process. When all necessary documents have been received the Committee Secretary will agree with the parties the date of the hearing.

5.6 Any party wishing to call a witness should apply to the Chairman through the Committee Secretary with the name, business address and occupation of the witness, what the party is seeking to establish through his evidence and how long that is likely to take. If, under the joint submission process, a witness’s evidence is not disputed by any other party, it may be given in writing (a “witness statement”), but all disputed evidence of fact must be given in person at the hearing. It is the responsibility of the party calling a witness to ascertain whether a witness statement will be adequate, to ensure that the witness is available to give evidence at the appropriate time and to reimburse the witness for all travelling and other expenses.

5.7 Any party wishing to rely on expert evidence should supply the Committee Secretary with the name, address, occupation and qualifications of the expert. That party must also agree with the other parties, and the Committee Secretary, the date by which a copy of the expert’s report is to be supplied to them. There is no requirement for the expert to attend the hearing merely to prove his report but, if any other party makes prior application to the Chairman in accordance with paragraph 5.6 to cross-examine the expert, the party who commissioned his report must arrange for his attendance as a witness at the hearing.

If reports addressing substantially the same issues are commissioned from more than one expert, the parties must arrange for their respective experts to produce a schedule identifying these matters and conclusions on which they agree and those on which they disagree.

5.8 Each party providing any written material to be considered at the hearing must agree with the Committee Secretary how many copies are required, and who is responsible for providing such material to other parties to the dispute; this responsibility will normally be that of the party originating such material.

6. Before the Hearing

6.1 If it at any time or times appears to the Committee Secretary, in consultation with the Chairman, that the Committee is likely to need the benefit of independent legal or technical advice in order to be able to resolve the dispute, the Committee Secretary will so inform the parties, giving them an estimate of the cost of obtaining such advice. The cost of obtaining that advice shall be borne by the parties in such proportion as they may agree (or, failing agreement, as the Chairman may determine). If the parties wish to proceed with the hearing they must each forthwith remit to the Committee Secretary their agreed proportion of the estimated cost. Any additional cost arising from the appointment of independent legal or technical advisers will be shared between the parties, unless they agree otherwise, in the same proportion as the original estimate; at the time of initial agreement by the parties to pay for such advice they may place a limit on any additional costs to be incurred.

6.2 In any case where it appears to the Committee Secretary, in consultation with the Chairman, that the issue in dispute has not been identified with sufficient clarity, or that the parties could reasonably be expected to produce further information about the dispute in advance of the meeting of the Committee, or that it will be necessary for the Committee to obtain independent legal or technical advice on the dispute, or that for any other reason a preliminary hearing is necessary or desirable, the Committee Secretary will arrange such a preliminary hearing with the Chairman. The Chairman will hear the parties to the dispute and establish with them, or at his discretion make rulings on, such matters as -

· the issues in dispute;

· if there is to be an agreed statement of facts, when it is to be produced;

· whether expert evidence is to be given and, if so, when the experts’ reports are to be exchanged;

· the maximum amount to be spent on obtaining independent legal or technical advice and how that will be apportioned between the parties to the dispute;

· whether two or more disputes should be dealt with by the Committee together or in succession;

· where more than two parties are involved, the arrangements for each to be able to make oral representations to the Committee.

6.3 Members of the Committee may require further information or clarification. The Committee Secretary may then, in advance of a hearing, submit to one or all of the parties to a dispute a list of questions which the Committee wishes those parties to treat with special attention and/or a list of documents which the Committee wishes the parties to provide before or at the meeting.

6.4 If a party to a dispute fails to receive the notification of the meeting from the Committee Secretary and the information submitted by each other party to the dispute at least seven days before the meeting it can require the Committee to postpone the meeting. Any party seeking an extension of time to prepare or serve documents should apply to the Chairman of the Committee (through the Committee Secretary) giving reasons.

The Committee will be entitled to proceed to consider any dispute referred to it unless

· any party to the dispute has, before the beginning of the meeting, exercised any right to have consideration of the dispute postponed, or

· the Chairman, on the application of any party to the dispute, determines that the Committee’s consideration of the dispute should be postponed on the grounds that the party which has made the application has received insufficient notice in any respect.

If the Committee’s consideration of the dispute is not so postponed, no objection may be made in relation to the failure of any party to receive on time any notification, information or documents.

6.5 Each party must not later than seven days prior to the time fixed for the meeting of the Committee fax to the Committee Secretary -

(a) the name, address and position of the officer or employee with decision-making status who is to represent it at the meeting of the Committee; such person may be a member or alternate member of the Committee but, if so, cannot sit as a member of the Committee while hearing the dispute in question;

(b) if it wishes, a request that the Chairman direct that it may be represented by a named individual who is not one of its officers or employees, with details of the individual and the reasons for the request;

(c) if it wishes, and if its representative is not legally qualified, a request that the Chairman direct that its representative may be accompanied by a named individual who is legally qualified, with details of the individual; and

(d) details of any representative of the party’s insurers and of any persons with technical or professional expertise (other than legal advisers) whom it wishes to attend the meeting of the Committee.

6.6 The Chairman may extend any period of time specified in this Guide, whether or not that period of time has expired.

6.7 None of the steps described prevent the parties continuing to communicate directly in an attempt to settle the dispute before the Committee hearing; indeed, where appropriate, the Committee Secretary will encourage them to do so.

7. Hearing of the Dispute

7.1 The purpose of the hearing is to enable the Committee to obtain a full understanding of the issues described in the written material provided by the parties and to explore issues that may not have been fully covered therein.

7.2 The Committee will start its meeting by considering and noting for the record the contract clause or other document that gives it jurisdiction to hear the dispute.

Any member of the Committee who is employed by, or is a director or shareholder of, a party to the dispute, or is otherwise an interested party, shall, except at the discretion of the Chairman, be entitled to participate fully in the proceedings and the subsequent decision-making.

The Committee will briefly consider the written submissions and identify the parties involved and their representation; the parties will then be admitted, and the hearing start. All parties will stay in the room until the end of the hearing.

7.3 A person may represent a party to the dispute even if he is a witness in the proceedings. A party may be represented by different persons in relation to different disputes or, if the hearing lasts more than one day, at different meetings of the Committee, although this would be most undesirable.

The representative of a party to the dispute may be accompanied by a representative of that party’s insurance advisers, by persons with technical or professional expertise (other than legal advisers) in relation to the subject-matter of the dispute and/or, with the Chairman’s prior agreement, by a person who is legally qualified. None of such persons may, without the consent of the Chairman, address the Committee, but must confine their participation to advising the representative of the relevant party to the dispute.

7.4 The Chairman and the Committee shall have regard to, but shall not be bound by, the views expressed by any adviser engaged by the Committee. The Chairman shall disclose to the parties the substance of the advice that has been obtained before the conclusion of the hearing

7.5 Each party will be given the opportunity to address the Committee orally for up to 20 minutes or for such longer period as the Chairman may allow. The claimant will normally be invited to address the Committee first. The respondent, and any other parties, will then be invited to speak. All parties will be given an opportunity to reply if and to the extent that points have been made orally that were not adequately exposed in the relevant summarised submission. The Chairman will not normally expect parties to speak for more than 20 minutes

Written material not previously supplied will only be admitted at the hearing at the Chairman’s discretion.

7.6 After being questioned by the party calling him, a witness may be questioned by the other party or parties and by members of the Committee. Unless agreed otherwise, a witness will not be required to remain on hand to respond to any further questions.

7.7 Members of the Committee may ask the parties’ representatives questions both during and after their oral representations (allowance will be made for this in calculating the limit of 20 minutes referred to above). Once the parties have completed their oral representations, and the members of the Committee have no further questions, the Chairman will terminate the hearing.

Phone:	020 7554 0602	E-mail:	sec@ridr.co.uk

Fax:	020 7554 0603	Website:	www.ridr.co.uk