A GUIDE TO PARTIES TO A PROPERTY DISPUTE WITHIN THE RAILWAY INDUSTRY

 

 

 

1.         Objective of this Guide

 

 

1.1       This Guide has been prepared for those referring a property dispute between two Industry Parties to arbitration or expert determination.  It is based on the relevant Schedule to the Overarching Agreement and on the Railway Industry Dispute Resolution (RIDR) Rules, to which the Overarching Agreements refer.

 

 

1.2.      It provides a description of the process so that a company with a potential property dispute can understand what will happen and so that its representatives can prepare themselves to put their case in the way which will best facilitate an acceptable outcome.

 

1.3       A summarised description of the process is given in the flow chart in section 3.

 

 

 

2.         General

 

2.1       The Railway Industry Dispute Resolution (RIDR) Rules have been established to provide a relatively speedy, inexpensive and informal means of resolving disputes between Industry Parties.  The RIDR Disputes Secretary facilitates the appointment of an arbitrator or independent expert to hear a property dispute and monitors the process on behalf of the railway industry to ensure that it is in practice working well logistically, is cost-effective, and that the outcomes are seen by the parties involved as having been reached with disinterested professionalism.

 

 

2.2       The RIDR Disputes Secretary provides general advice on the shape of the railway industry to property arbitrators and independent experts and will if necessary, and if the parties to the dispute agree, nominate a person knowledgeable in the sphere of railway activity relevant to that particular case to sit with and advise the arbitrator or  independent expert.

 

 

2.3       All Industry Parties holding a licence to operate railway assets, and some other Industry Parties by choice, have signed up to the RIDR Rules and therefore pay a modest annual levy to support the RIDR Committee.  For these parties, the involvement of the RIDR Disputes Secretary in a property dispute is free; for others, appropriate recognition will be agreed in advance.

 

 

3.         Flow Chart

 

This chart summarises the process set out in this Guide; it is shown from the point of view of the company originating a property dispute, but any company responding to a dispute needs to follow a similar course.

 

 

·        Identification of potential property dispute.

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·        Get support of the Company Board for escalating a potential dispute into an actual dispute; the RIDR Disputes Secretary will be able to give some guidance on likely costs and document preparation.

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·        Advise the defendant to the claim and any other parties involved therein.

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·        Complete an ‘Application for the Appointment/Nomination of an Arbitrator/Independent Expert by the RIDR Disputes Secretary’, obtainable from the Royal Institution of Chartered Surveyors (RICS) Dispute Resolution Service (01203-694757) or the RIDR Disputes Secretary (020-7465-9263/00-59263).

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·        Send the completed form to the RICS Dispute Resolution Service, with a copy to the RIDR Disputes Secretary.

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·        The RIDR Disputes Secretary will appoint an arbitrator/independent expert within 21 days.

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·        The arbitrator/independent expert will agree with the parties to the dispute under which discipline it will be heard and the procedure to be followed, including timescales.

 

 

4.         Royal Institution of Chartered Surveyors (RICS)

 

 

4.1.      For property disputes the RIDR Disputes Secretary generally utilitises arbitrators or independent experts on the panel appointed by the President of the RICS.  The arrangements for property dispute resolution therefore are those standard within the property industry, amplified somewhat to ensure that all parties are satisfied that specific railway issues will be given appropriate weight.

 

 

4.2.      Whilst this guide deals with free-standing property disputes, it may be that a property issue forms a small part of the wider dispute between Industry Parties; in such a case the dispute would normally be heard by the RIDR Committee, whose Chairman would assure himself, in conjunction with the parties to the dispute, that the Committee had appropriate property advice, generally from an RICS-appointed independent expert.

 

 

 

5.         Arbitration or Expert Determination?

 

 

5.1.      Dispute resolution provisions are covered in the relevant Schedule to the Overarching Agreement, and lay down that disputes or difficulties in relation to any of the following matters regarding a lease clause -

 

*          the term of years

*          the commencement date of the term

*          the annual rent (if any), commencement date for review of rent (if any)

*          the measured area of the land or premises to be demised

*          whether the tenancy is to be excluded from the security of tenure provisions of the Landlord and Tenant Act 1954

 

- should be referred to arbitration.  All other disputes or differences should be decided by expert determination.

 

 

5.2.      Parties to a property dispute may however agree between themselves and the prospective arbitrator/independent expert that the dispute should be dealt with under the other discipline.  In this case the arbitrator/ independent expert will advise the RICS and the RIDR Disputes Secretary accordingly before hearing the case.

 

 

 

6.         Starting Proceedings

 

 

6.1.      A person wishing to refer a property dispute to arbitration or expert determination should advise the party or parties with whom he is in dispute accordingly and complete an “Application for the Appointment/Nomination of an Arbitrator/Independent Expert by the RIDR Disputes Secretary”, obtainable either from the RICS Dispute Resolution Service (phone 01203 694757, fax 020-7334 3802) or from the RIDR Disputes Secretary (phone 020-7465-9263/00 59263, fax 020-7922-4979/00 24979).

 

 

6.2.      The completed application form should be sent to the RICS Dispute Resolution Service, with a copy to the RIDR Disputes Secretary.  Their respective addresses are on the form.  The RICS appointment fee, to which reference is made on the form, will be met by the RIDR Disputes Secretary.

 

 

6.3.      The application form has a space to show any Chartered Surveyor whose appointment/nomination the applicant feels would not be appropriate.  As only a proportion of the RICS’ panel of arbitrators/independent experts have been trained additionally in the railway overview to property disputes, it would be advisable to check with the RICS Dispute Resolution Service or with the RIDR Disputes Secretary that that person was in fact on the RICS panel.

 

 

6.4.      If there is any doubt at this stage about referring the dispute to arbitration/expert determination, the party originating the dispute should discuss the issues with the RIDR Disputes Secretary, who may if appropriate encourage the parties to the dispute to prepare a joint submission aimed at the arbitrator/independent expert and showing clearly what is agreed and what is in dispute.

 

 

6.5.      The RIDR Disputes Secretary will appoint an arbitrator/independent expert within a maximum of 21 days from the initial application; this timescale is governed by the need to ensure that potential appointees have no conflict of interest with the parties to the dispute, and have the  time available to devote to it.

 

 

 

7.         Determining the Dispute

 

 

7.1.      The arbitrator/independent expert will conduct the determination of the dispute in the way he considers most suitable for a fair resolution.  He may agree with the parties to the dispute that he will proceed on the basis of written representations only, although he would in such a case reserve the right subsequently to arrange one or more oral hearings if it became necessary to do so.

 

 

7.2.      Timescales as set out in the RIDR Rules (although they may be expanded by agreement between the arbitrator/independent expert and parties to the dispute) allow seven days from appointment of the arbitrator/independent expert for the claimant to send to him and to the other parties to the dispute a statement of the claim, seven days from receipt of that document for the defendant to reply with a statement of defence or of any counter-claim, with an award or determination being made within 28 days of the appointment of the arbitrator/independent expert.

 

 

7.3.      If either party to the dispute fails to serve a statement of claim or of defence within the seven day period, or such other time as agreed with the arbitrator/independent expert, the latter will send to such party a notice of default.  If the party fails to respond within 14 days of the date of that notice, the arbitrator/independent expert may rule that his claim/defence has been abandoned.

 

 

7.4.      Whilst the procedure has been written to expedite resolution of a dispute, all parties involved will no doubt wish to avoid any time restraints on a fair hearing and a considered award/determination.

 

 

7.5.      The statements of claim and of defence should specify any matters and conventions of law, naming the principal authorities, and be accompanied by a copy of any documents considered relevant to the dispute.

 

 

7.6.      The arbitrator/independent expert will agree with the parties to the dispute the procedure to be adopted at an oral hearing.

 

 

7.7.      The arbitrator will provide parties to the dispute with a copy of his award, together with the reasons for it. In the case of disputes resolved by expert determination, the independent expert will deliver his/her determination with reasons, unless otherwise agreed with the parties to the dispute.

 

A copy of the award/determination will be sent to the RIDR Disputes Secretary, in order to build up case law and precedents for the guidance of Industry Parties.  No sooner than 21 days from receipt, the RIDR Disputes Secretary will circulate to Industry Parties the outcome of the case in an abridged form unless, within seven days of the award/determination one of the parties has given notice to the Chairman of the RIDR Committee (via the RIDR Disputes Secretary) that confidentiality is sought.

 

 

8.         Costs

 

 

Whether or not the dispute reaches the stage of a final award/determination, the arbitrator/independent expert may order any party to pay some or a specified proportion of any other party’s costs incurred in the dispute, his own fees, any costs of his appointment and any fee paid to the RICS, assessed in such manner as the arbitrator/independent expert determines.

 

 

9.         Appeals

 

 

Both an arbitration award and an expert determination will generally be final and binding on the parties.

 

 

10.       RIDR Disputes Secretary

 

 

10.1     The RIDR Disputes Secretary is:

 

John Gott

Central House

Upper Woburn Place London WC1H 0HY

 

Phone:

020 7554 0602

Fax:

020 7554 0603

E-Mail:

sec@ridr.co.uk

Website:

www.ridr.co.uk

 

 

 

10.2.    Any Industry Party is welcome to approach the RIDR Disputes Secretary to discuss informally the RIDR Rules for the resolution of property disputes and their operation.

 

 

 

JOHN GOTT

 

April 2001