Guide to the Preparation of a Statement of Agreed Facts

1. The RIDR Committee’s procedures require the parties to a dispute to provide the Committee with (amongst other things) a Statement of Agreed Facts. The purpose of the Statement is to reduce the length of the dispute hearing by informing the Committee, in advance, of all potentially relevant facts on which the parties are agreed, while at the same time indicating those areas about which there is disagreement.

2. The dispute resolution process benefits from the Statement of Agreed Facts being as full as possible. Experience has shown that the parties to a dispute sometimes find it difficult to produce such a statement. This Guide is intended to help them do so. It must, however, be remembered that the facts may vary widely from case to case. Some of the items mentioned in this Guide may not be relevant to a particular case. In all cases, the parties should consider whether they could usefully add other agreed facts about aspects of the incident not listed here.

3. While the Statement of Agreed Facts must, of course, be agreed by all the parties to a particular dispute, it will usually be helpful, and speed the process, if one of the parties produces a draft to serve as a discussion document. It is always easier to amend an existing draft than to produce an entirely new document in a meeting of, perhaps, several people.

Wherever possible, the Statement should indicate those facts which may be relevant, but are not agreed. For example, a Statement of Agreed Facts relating to a derailment might include the following sentences -

“The track speed at the point of derailment was 60 mph [an agreed fact]. The Formal Inquiry found that the train was travelling at 70 mph. This finding is accepted by ABC and DEF, but is contested by XYZ [indicating that train speed is a disputed fact].”

XYZ’s reasons for disputing the finding, or perhaps for saying that train speed was irrelevant, would appear in its submission.

It is important to recognise that the inclusion of an event in the Statement does not of itself imply any agreement on its cause or effect; for example, the submission of a claim is a fact, but parties to the dispute may well have differing views as to its validity.

4. Experience has shown that the time taken to prepare a Statement of Agreed Facts is almost always longer than the parties might individually suppose. The process will often reveal gaps in documentation and that ‘facts’ which are assumed by one party do not accord with ‘facts’ assumed by another.

5. Building on the following format, or picking from relevant bits of it, may be a useful start to drafting the Statement:

5.1 Incident giving rise to the dispute (1 or 2 lines) -

· location;

· nature (e.g. derailment, injury to ...);

· date.

5.2 Basis of the claimant’s proceedings against the respondent (short paragraph) -

· contractual;

· intra-industry agreement (e.g. Claims Allocation and Handling Agreement);

· civil tort (e.g. negligence).

5.3 Loss or potential loss alleged by the claimant, which could (but need not) be expressed in simple and brief tabular form, for example :

Nature of loss	Linkage between incident and loss	Amount of claim	Liability accepted by respondent	Quantum accepted by claimant by respondent
			(these columns should be completed with a tick, cross or qualified acceptance, perhaps supported by a figure).

Any consequential loss claimed should also be listed.

According to circumstances, it may be necessary to list also the make-up of one or more of the ‘Nature of Loss’ summary lines, cross-referenced to the liability and/or quantum acceptance columns.

5.4 Chronology of events -

· incident;

· date of claim(s);

· reference to relevant correspondence;

· formal agreement between the parties on specific issues.

The chronology should give sufficient detail to enable the Committee to understand the overall environment of the dispute, and should be cross-referenced to page numbers in the Bundle of Documents.

5.5 Background; for example -

· relationship (contractual, operational, practical ...) between the parties to the dispute, and other industry parties, in respect of the circumstances of the incident;

· description of the location (infrastructure, operational);

· details of any train(s) or rail vehicle(s) involved (TOC/FOC, train reporting number, departure time from, destination, locomotive/vehicle type (loaded/empty) and where relevant number, traincrew details);

· time of incident and weather conditions.

5.6 Details of the incident -

· actual situation immediately before the incident (signal aspects, train speeds (or range if disputed), any prior warning);

· physical circumstances of the incident;

· actual situation immediately after the incident;

· steps taken to avoid further injury/damage;

· any subsequent event giving rise to further losses.

5.7 Details of any person alleged to have played a part in causing, or extending the scope of, the incident (name, job title, home station, age, experience, employer, any sub-contract involved, alleged failure).

5.8 Details of any plant or equipment alleged to have played a part in causing, or extending the scope of, the incident (description, serial number, age, ownership, maintenance/repair responsibility, programmed and actual dates, any sub-contract involved, alleged failure).

5.9 Details of recovery/repair procedures and timescales only to the extent that a claim may be made that their nature failed to minimise the loss to one or more parties.

5.10 The facts considered relevant to any arguments over:

· causation;

· contributory negligence;

· assumption of liability;

· waiver of contractual rights;

· etc.

6. The parties to the dispute should at this stage discuss whether they are respectively planning to call witnesses of fact or expert witnesses or to commission expert reports. The parties should encourage independent experts to identify and set out in writing those matters on which they agree and those on which they disagree.

7. The Committee Secretary/RIDR Disputes Secretary is available to give impartial advice to parties, if required, on the format and general content of the Statement of Agreed Facts.

John Gott

April 2001