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

Central House

Fax:

020 7554 0603

14 Upper Woburn Place

E-mail:

sec@ridr.co.uk

London WC1H 0HY

Website:

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