A
GUIDE TO PARTIES TO A DISPUTE REFERRED TO
EXPERT
DETERMINATION UNDER THE RAILWAY INDUSTRY DISPUTE RESOLUTION RULES
1. Objective
of this Guide
1.1 This Guide has been prepared for those taking a dispute for
settlement by expert determination under the Railway Industry Dispute
Resolution (RIDR) Rules, or for those 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 resolution of the dispute.
1.2 The Guide is based on the RIDR Rules but does not form part of
them and is not exhaustive. A
summarised description of the process is given in the typical sequence of events
in paragraph 5.
1.3 Parties wishing to refer a dispute to expert determination
should study Parts C and D of the RIDR Rules (available from the RIDR Disputes
Secretary or on the RIDR website: www.ridr.co.uk), and not simply rely on this
Guide.
2. General
2.1 The RIDR Rules provide a framework for the resolution of
disputes within the railway industry in an informal, speedy and inexpensive way
by using Alternative Dispute Resolution procedures, thereby avoiding the delay
and expense of court proceedings. The
Rules apply to all forms of dispute between Industry Parties, other than
disputes about access or ATOC issues.
The working of the Rules to the benefit of the industry as a whole is
overseen by the RIDR Council, a body elected by Industry Parties.
The RIDR Rules may be used for the
resolution of a dispute between one or more Industry Parties and a non-Industry
Party, provided that the latter agrees and pays an administration fee.
2.2 Mixed disputes - those involving both access and other issues,
for example following a mishap - should under the RIDR Rules be referred first
to the RIDR Committee Secretary, who will ensure that each element in the
dispute is dealt with in accordance with the relevant Rules.
2.3 Property disputes within the railway industry are dealt with
by arbitration or expert determination, according to the nature of the
dispute. This process is described in
“A Guide to Parties to a Property Dispute within the Railway Industry”, a copy
of which is available from the RIDR Disputes Secretary or on the RIDR website
(www.ridr.co.uk).
2.4 Many
of the agreements between Industry Parties contain a clause specifying how
disputes between the parties are to be resolved. If a dispute is not covered by such a clause, the parties must
agree at the time which Alternative Dispute Resolution procedure they wish to
adopt in order to avoid the need for court proceedings. The RIDR Rules provide a choice of four
procedures:
·
reference
to the RIDR Committee
·
mediation
·
arbitration
·
expert
determination.
3. Parties
to a Dispute
3.1 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.
4. Starting
the Process
4.1 A person wishing to refer a dispute to
expert determination should contact the RIDR Disputes Secretary in order to
clarify the nature of the dispute and any agreement or other document governing
the dispute resolution process.
4.2 If the parties have already agreed that
disputes between them are to be handled in a particular way, the claimant may
initiate the agreed resolution process without more ado. Otherwise, all parties to the dispute must
agree to the process at the time.
4.3 The RIDR Disputes Secretary maintains a
register of independent experts and will seek to agree with the parties to a
dispute a person from that register or a person suggested by one or more of
those parties to determine the dispute.
The RIDR Disputes Secretary is empowered
by the RIDR Rules to nominate an independent expert if the parties cannot reach
agreement on such a person within 21 days of the initial approach from the RIDR
Disputes Secretary.
4.4 At this stage the parties to the dispute
and the independent expert will enter into a brief agreement formalising the
dispute and recognising that the fees and expenses of the independent expert will
be paid by the parties to the dispute in such proportions as the independent
expert may determine.
4.5 No charge is payable by those Industry
Parties who pay an annual levy to support the RIDR Committee for work carried
out by the RIDR Disputes Secretary in connection with dispute resolution by
expert determination. This work includes monitoring, in the overall interests
of the railway industry, the process of expert determination under the RIDR
Rules. Parties who have any
reservations about the efficiency or effectiveness of the process are therefore
encouraged to contact the RIDR Disputes Secretary at the earliest opportunity.
4.6 The independent expert may decide that it
would be useful for him to have the benefit of advice on certain issues from an
expert assessor; the RIDR Disputes Secretary will normally assist in this
appointment.
5. Typical
Sequence of Events
This typical sequence of events
summarises the processes set out in this Guide; it is shown from the point of
view of the party initiating the dispute resolution process, but any party
responding to a dispute needs to follow a similar course.
·
Dissatisfaction
¯
·
Decide that
expert determination is the appropriate dispute resolution mechanism.
¯
·
Get support
at an appropriate level in the company, insurers being involved where
applicable, for escalating dissatisfaction into a dispute.
¯
·
Informal
discussion with the RIDR Disputes Secretary to ensure mutual understanding of
the nature of the dispute and of the process to be used for its resolution.
¯
·
Send formal
notice of dispute to the RIDR Disputes Secretary and every other party to the
dispute.
¯
·
Agree with
other parties to the dispute, through the
RIDR Disputes Secretary, the process to be used for resolution of the dispute
and the name of the independent expert.
¯
·
The
mediator, arbitrator or independent expert will agree with the parties to the
dispute the logistics of its resolution and any changes to the timescales laid
down in the RIDR Rules, which provide for determination of the dispute within a
period of some 70 days.
¯
·
Any
application for confidentiality in respect of the dispute determination must be
made through the Committee Secretary within seven days.
6. The
Process
6.1 A party wishing to refer a dispute to expert determination
must serve written notice on the RIDR Disputes Secretary, with a copy to all
other parties to the dispute.
6.2 The independent expert will conduct the determination in the
manner he considers most suitable for the fair resolution of the dispute. Even where the parties to the dispute have
agreed that the determination will be based only on written representations,
the independent expert may require an oral hearing.
6.3 On
appointment the independent expert will ask each party to the dispute whether
it seeks any amendment to the procedure and timescale set out in Parts C and D of
the RIDR Rules and summarised (but not exhaustively) in 6.4 below; any party
making such a request should send a copy to the other parties to the dispute.
6.4 Unless the independent expert rules otherwise the following
procedure and timetable will apply:
(i) Within 14 days of the independent expert’s appointment the
claimant should send to the independent expert and to the respondent a full
written statement of his claim and of the relief or remedies sought.
(ii) Within 14 days of receipt of the claimant’s
statement the respondent should send to the independent expert and to the
claimant a full written statement of his defence, including any counterclaim he
may wish to make.
(iii) Both these statements should be
accompanied by documents on which the party to the dispute wishes to rely.
(iv) Within this 28 day period the parties
should jointly prepare a Statement of Agreed Facts, which may also outline the
facts that have not been agreed between them.
(v) The independent expert may allow the parties an adjustment
period of not more than 14 days from receipt of the respondent’s statement,
during which the claimant may amend his written statement to deal with material
points made by the respondent.
(vi) Within seven days of the expiry of the
adjustment period the claimant should combine all the finalised written
statements and supporting documents into a single document and send two copies
to the independent expert and to each of the other parties to the dispute.
6.5 The independent expert may require the production by any party
to the dispute within seven days of two copies of any specific document, one of
which must be made available for inspection and comment by each of the other
parties. A party to the dispute may ask
the independent expert to require the production of the document not more than
35 days after his appointment.
If such a document is not produced for
any reason other than its being privileged the independent expert may proceed
on the basis of documents he does have, or strike out the part of the claim or
defence to which the document relates.
6.6 The
independent expert will send to the parties to the dispute and to the RIDR
Disputes Secretary a determination, with reasons unless the parties to the dispute
have agreed otherwise, within 56 days of his appointment. The determination will be final and binding
unless it is so clearly erroneous that it would be unconscionable for it to
stand.
The independent expert may order that one
party pays to the other a sum of money, which may include damages and/or the
payment of interest, that the party should or should not take specific action,
or that one party pay another party’s costs.
6.7 Not less than 21 days after receipt of the determination the
RIDR Disputes Secretary will send a copy of the determination to each Industry
Party. Each party to the dispute should
advise the Secretary to the RIDR Committee within seven days of receipt of the
determination whether, and on what grounds, it wishes the determination to be
treated as confidential. The RIDR
Committee Chairman may rule that a determination be kept confidential if its
publication might prejudice the interests of any party to the dispute to an
extent outweighing the interests of the industry.
6.8 The RIDR Disputes Secretary may compile and circulate a report
on the procedural aspects of the expert determination, including
recommendations to help parties to any future expert determination. The parties to the dispute will not be
identified by name.
7. General
Provisions
7.1 All communications referred to in this Guide should if
appropriate be by telephone and confirmed by fax; faxes sent before 17.00 are
deemed to be received that day, while letters sent by first class post are
deemed to be received two days after posting.
7.2 Any party to a dispute who becomes aware that a requirement of
this process has not been complied with and who fails to state an objection
within a reasonable time is deemed to have waived the right to object.
8. RIDR
Disputes Secretary
8.1 The RIDR Disputes Secretary offers also an informal service to
Industry Parties with the intention of helping parties to resolve a dispute
without referring it formally to mediation, arbitration or expert
determination.
8.2 The RIDR Disputes Secretary maintains a register of mediators,
arbitrators and independent experts, and will, in conjunction with the parties
to a dispute, select an individual from the appropriate register or from
another source who is acceptable to all parties, and who is able to undertake
the work.
8.3 The RIDR Disputes Secretary monitors the efficiency and
effectiveness of the process in the interests of the railway industry as a
whole.
8.4. The RIDR Disputes Secretary is -
|
John Gott |
Phone: |
020 7554 0602 |
|
RIDR |
|
020 7554 0603 |
|
8th Floor, |
E-mail: |
sec@ridr.co.uk |
|
London
NW1 2DN |
|
www.ridr.co.uk |
John Gott is also Secretary to the RIDR
Committee and in that capacity the person through whom any application to the
RIDR Committee Chairman should be made.
8.5. Any Industry Party is welcome to approach
the RIDR Disputes Secretary to discuss informally the RIDR Rules and their
operation.
April 2001