procedpd.htm

PROCEDURE FOR PROPERTY DISPUTES

WITHIN THE RAILWAY INDUSTRY

1. OVERARCHING AGREEMENT

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;

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

2. RAILWAY INDUSTRY DISPUTE RESOLUTION RULES

The procedures for arbitration and expert determination are set out in the Railway Industry Dispute Resolution Rules dated 21 September 1995 (draft 19604/0.31), as amended by the relevant Schedule to the Overarching Agreement, and are as shown in 3 and 4 below.

3. ARBITRATION

(Note: the references in brackets to the right of each clause are to the Railway Industry Dispute Resolution Rules).

3.1 Beginning an arbitration

3.1.1 Notice of arbitration

A person wishing to refer a dispute to arbitration shall serve a written notice of arbitration on the RIDR Disputes Secretary and shall serve a copy of the notice of arbitration on every other party to the dispute. The notice shall summarise the basis of the claim and list the other parties concerned. It may suggest one or more appropriate arbitrators, whether from the register or otherwise.

(C2.1)

3.1.2 Appointment of arbitrator

The RIDR Disputes Secretary shall promptly approach all parties to the dispute and discuss with them the identity of an arbitrator to decide it. Subject to any agreement of the parties to the contrary, if the parties fail to agree on an arbitrator within seven days of the RIDR Disputes Secretary’s initial approach, he shall appoint an arbitrator from the register. Upon the appointment of an arbitrator, the RIDR Disputes Secretary shall send to all the parties to the dispute a notice of the appointment of the arbitrator.

(C2.2)

3.1.3 Change of arbitrator

3.1.3.1 If any arbitrator acting or appointed to act under these rules resigns, withdraws, dies or refuses to act, the RIDR Disputes Secretary shall, upon application by the arbitrator or any other party to the arbitration, on proof satisfactory to the RIDR Disputes Secretary, declare the office of arbitrator vacant.

(C2.3.1)

3.1.3.2 If the arbitrator or any party to the arbitration considers that the arbitrator is unable by reason of mental or physical infirmity to perform the duties of his office or is disqualified for any reason from performing the duties of his office, or has delayed unreasonably in the conduct of the arbitration or in the making of any award, the RIDR Disputes Secretary may, at the request of the arbitrator or any party to the arbitration, having heard the arbitrator and the parties if they or any of them wish to be heard, declare the office of arbitrator vacant.

(C2.3.2)

3.1.3.3 Where the office of arbitrator shall have been declared to be vacant pursuant to this paragraph 3.1.3, paragraph 3.1.2 shall apply to the appointment of a replacement arbitrator.

(C2.3.3)

3.2 Overall responsibility of the arbitrator

3.2.1 The arbitrator shall have regard to:-

(i) the objectives referred to in paragraph 2(1)(b) of Schedule 8 of the Railways Act 1993, namely, the clarification and modifications of the division of a transferor’s undertaking as will best serve the proper discharge of the respective functions of a transferor and a transferee; and

(ii) any submission or a counter-submission made by or on behalf of any party to the arbitrator which refers to any statement of policy made at any time by Her Majesty’s Government regarding the restructuring and/or reorganisation of the railway industry.

3.3. Procedure

3.3.1 General

The arbitrator shall conduct the arbitration in such manner as he considers most suitable for the fair resolution of the dispute. The parties may agree that an arbitration shall be conducted on the basis of written representations only. In such a case, nothing in this paragraph 3.3 shall prevent the arbitrator from requiring one or more oral hearings if he considers it appropriate for the just and expeditious determination of the proceedings. The arbitrator shall have the power at any time to make or amend the procedure to be followed by the parties in the arbitration. Unless the arbitrator rules otherwise, the following timetable and procedure shall apply:

(i) Within seven days of the notice of appointment of the arbitrator, the claimant shall serve on the arbitrator and the other party a written statement of its claim. The statement of claim shall specify all relevant facts and matters and contentions of law (if any, and naming the principal authorities) on which the claimant relies (or admits or denies) and the relief and remedies sought.

(ii) Within seven days of service by the claimant of the statement of its claim, the other party shall serve on the arbitrator and the claimant a written statement of its defence. The statement of defence shall specify the defence and all relevant facts and matters and contentions of law (if any, naming the principal authorities) on which the respondent relies (or admits or denies). The statement of defence may set out any counterclaim which the respondent wishes to make.

(iii) The statements served pursuant to sub-paragraphs (i) and (ii) above shall be accompanied by copies of any documents available for inspection by the arbitrator or the other party; that party shall, if so requested, make the originals of such documents available for inspection by the arbitrator or the other party.

(iv) and (v) Not used.

(vi) Applies only if specifically ordered by the arbitrator: Within 14 days after the pleadings have been so finalised, each party shall serve upon the arbitrator and the other party signed statements of any factual or arbitrator witnesses upon whose evidence it wishes to rely, together with any copies of documents referred to in them not already in the possession of the other party. The party serving the statements shall, if requested to do so, make the originals of such documents available for inspection by the arbitrator or the other party.

(vii) Applies only if specifically ordered by the arbitrator: A party may rely on the evidence of no more than one arbitrator witness per discipline, and no more than two arbitrator witnesses in total.

(viii) Applies only if specifically ordered by the arbitrator: Within seven days after the pleadings have been finalised, the RIDR Disputes Secretary shall agree with the arbitrator and the parties a hearing date and the estimated length of the hearing. The hearing date shall be no later than 28 days after the finalisation of the pleadings.

(ix) Not used.

(x) Applies only is specifically ordered by the arbitrator: At least five days before the hearing each party shall serve on the other and on the arbitrator its written submissions.

(xi) Applies only if specifically ordered by the arbitrator: At the hearing-

(a) there shall be no oral submissions, but the arbitrator may ask the parties questions arising out of their written submissions or pleadings;

(b) any party may apply to the arbitrator for an order that any witnesses whose written statement is to be relied upon by a party should attend for oral examination at a hearing and the arbitrator shall make such order unless, having heard the parties, he is satisfied that such oral examination is not likely to assist him in making his award. If a witness is ordered to attend and fails to do so, the arbitrator may:

(aa) place such weight on the written statement as he see fit; or

(bb) exclude it altogether;

(c) there shall be no examination-in-chief of factual or arbitrator witnesses who give oral evidence. The parties may cross-examine witnesses on oath or affirmation to the extent permitted by the arbitrator;

(d) the parties may make oral closing submissions, not exceeding 20 minutes each:

(e) the parties may be legally represented; and

(f) the arbitrator shall be entitled to receive such evidence as he shall consider relevant, whether or not such evidence would have been admissible in a court of law.

(xii) Applies only if specifically ordered by the arbitrator (otherwise clause (xiii) applies): The arbitrator shall deliver to the parties a reasoned award within 14 days of the end of the hearing. He may make such delivery conditional upon payment of his own fees in the arbitration. Such payment may be made either in the proportions advised by him or by either or both parties without prejudices to his order as to costs.

(xiii) The arbitrator shall deliver his determination and, (unless the parties have agreed that he should not give them) the reasons for it, within 28 days of his appointment.

(C3.1)

3.3.2 Proposed amendments

Immediately after his appointment, the arbitrator shall require each party to inform him of any amendments to the procedure or the time limits set out in paragraph 3.3.1 which it considers appropriate (whether because more than two parties will be involved or otherwise). Each party shall promptly send any proposed amendments to the arbitrator and the other party. Before responding, the arbitrator may require the parties to meet him.

(C3.2)

3.3.3 Supplemental

3.3.3.1 The arbitrator shall have power to strike out (in Scotland, dismiss) part of or all of any claim or defence made in the proceedings on any one or more of the following grounds:

(a) wilful breach of these rules;

(b) deliberate non-compliance by a party with any order of the arbitrator; or

(c) inordinate or inexcusable delay on the part of any party, where such act or omission has, in the opinion of the arbitrator, given rise to a substantial risk that a fair determination of the dispute will not be possible, or which is such as to cause or to have caused serious prejudice to the other party.

(C3.3.1)

3.3.3.2 The arbitrator shall have the power to strike out (in Scotland, dismiss) part or all of any claim or defence made in the proceedings if he is satisfied that the claim or defence or any part of it is scandalous, frivolous or vexatious.

(C3.3.2)

3.3.3.3 If either party fails to serve a pleading within the period allowed under these rules or by order of the arbitrator, and fails to remedy his default within 14 days after despatch to him by the arbitrator or any other party to the dispute of notice of that default, the arbitrator shall be entitled to rule that he shall be treated as having abandoned his claim or defence (as the case may be) and, having made such a ruling, the arbitrator shall be entitled to proceed with the reference on an ex parte basis.

(C3.3.3)

3.3.3.4 Any party who becomes aware that any provision or requirement of these rules has not been complied with and who fails to state an objection to that failure within reasonable time shall be deemed to have waived the right to object.

(C3.3.4)

3.4 Awards

3.4.1 Final and binding

Without prejudice to the provisions of the Arbitration Act 1979 or, for arbitrations taking place in Scotland, the Administration of Justice (Scotland) Act 1972 and the provisions of any agreement between the parties to the disputes, awards shall be final and binding on the parties.

(C4.1)

3.4.2 Issue of arbitration award

The arbitrator shall send a copy of his award to the parties and the RIDR Disputes Secretary.

3.5 Costs

3.5.1 Arbitration fee

Any party serving a notice of arbitration shall at the same time pay to the RIDR Disputes Secretary a fee, of an amount to be published from time to time by the RIDR Disputes Secretary but not exceeding £500 (excluding VAT). The arbitration shall not start until the fee has been paid. The RIDR Disputes Secretary shall promptly certify to the arbitrator (once appointed) that the fee has been paid and remit it to the RIDR Committee Secretary.

(C5.1)

3.5.2 Discretion to order payment of costs

Whether or not the arbitration reaches the stage of a final award, the arbitrator may order any party to pay some or a specified proportion of any party’s costs incurred in the arbitration, the arbitrator’s fees, any costs of his appointment and any fee paid to the RIDR Disputes Secretary pursuant to paragraph 3.5.1, assessed in such manner as the arbitrator shall determine.

(C5.2)

3.6 Communications

Communications for the purposes of the arbitration shall be by telephone and confirmed in writing wherever possible. Unless the contrary is proved, faxes sent before 5.00 p.m. shall be deemed received on the day of sending and letters sent by first class post shall be deemed received two working days after posting.

(C7)

3.7 Exclusion of liability

None of the Chairman of the Railway Industry Dispute Resolution Committee, the RIDR Disputes Secretary or any arbitrator shall be liable to any party for any act or omission (including negligence) in connection with any arbitration under these rules unless the act or omission is established to have been in bad faith.

(C8)

3.8 Jurisdiction and governing law

Arbitrations shall take place in England and be subject to English law, save where the contract out of which the dispute arises is governed (or, if more than one, the majority of such contracts is governed) by Scots law, in which case the arbitration shall take place in Scotland and subject to Scots law. In either case the arbitrator may order otherwise.

(C9)

4.2 Overall responsibility of the independent expert

4.2.1 The independent expert shall have regard to:-

(i) the objectives referred to in paragraph 2(1)(b) of Schedule 8 of the Railways Act 1993, namely, the clarification and modifications of the divisions of a transferor’s undertaking as will best serve the proper discharge of the respective functions of a transferor and a transferee; and

(ii) any submission or a counter-submission made by or on behalf of any party to the expert which refers to any statement of policy made at any time be Her Majesty’s Government regarding the restructuring and/or reorganisation of the railway industry.

4.3 Procedure

4.3.1 General

The independent expert shall conduct the expert determination in such manner as he considers most suitable for the fair resolution of the dispute. The parties may agree that an expert determination shall be conducted on the basis of written representations only. In such a case, nothing in this paragraph 4.3 shall prevent the independent expert from requiring one or more oral hearings if he considers it appropriate for the just and expeditious determination of the proceedings. The independent expert shall have the power at any time to make or amend the procedure to be followed by the parties in the expert determination. Unless the independent expert rules otherwise, the following timetable and procedure shall apply:

(i) Within seven days of the notice of appointment of the independent expert, the claimant shall serve on the independent expert and the other party a written statement of its claim. The statement of claim shall specify all relevant facts and matters and contentions of law (if any, and naming the principal authorities) on which the claimant relies (or admits or denies) and the relief and remedies sought.

(ii) Within seven days of service by the claimant of the statement of its claim, the other party shall serve on the independent expert and the claimant a written statement of its defence. The statement of defence shall specify the defence and all relevant facts and matters and contentions of law (if any, naming the principal authorities) on which the respondent relies (or admits or denies). The statement of defence may set out any counterclaim which the respondent wishes to make.

(iii) The statements served pursuant to sub-paragraphs (i) and (ii) above shall be accompanied by copies of any documents available for inspection by the independent expert or the other party; that party shall, if so requested, make the originals of such documents available for inspection by the independent expert or the other party.

(C3.1)

(iv) and (v) Not used.

(vi) Applies only if specifically ordered by the independent expert: Within 14 days after the pleading have been so finalised, each party shall serve upon the independent expert and the other party signed statements of any factual or expert witnesses upon whose evidence it wishes to rely, together with any copies of documents referred to in them not already in the possession of the other party. The party serving the statements shall, if requested to do so, make the originals of such documents available for inspection by the independent expert or the other party.

(vii) Applies only if specifically ordered by the independent expert: A party may rely on the evidence of no more than one expert witness per discipline, and no more than two expert witnesses in total.

(viii) Applies only if specifically ordered by the independent expert: Within seven days after the pleadings have been finalised, the RIDR Disputes Secretary shall agree with the independent expert and the parties a hearing date and the estimated length of the hearing. The hearing date shall be no later than 28 days after the finalisation of the pleadings.

(ix) Not used.

(x) Applies only if specifically ordered by the independent expert: At least five days before the hearing each party shall serve on the other and on the independent expert its written submissions.

(xi) Applies only if specifically ordered by the independent expert:

At the hearing-

(a) there shall be no oral opening submissions, but the independent expert may ask the parties questions arising out of their written submissions or pleadings;

(b) any party may apply to the independent expert for an order that any witnesses whose written statement is to be relied upon by a party should attend for oral examination at a hearing and the independent expert shall make such order unless, having heard the parties, he is satisfied that such oral examination is not likely to assist him in making his award. If a witness is ordered to attend fails to do so, the independent expert may:

(aa) place such weight on the written statement as he sees fit; or

(bb) exclude it altogether;

(c) there shall be no examination-in-chief of factual or expert witnesses who give oral evidence. The parties may cross-examine witnesses on oath or affirmation to the extent permitted by the independent expert;

(d) the parties may make oral closing submissions, not exceeding 20 minutes each:

(e) the parties may be legally represented; and

(f) the independent expert shall be entitled to receive such evidence as he shall consider relevant, whether or not such evidence would have been admissible in a court of law.

(xii) Applies only if specifically ordered by the independent expert (otherwise clause (xiii) applies): The independent expert shall deliver to the parties a reasoned award within 14 days of the end of the hearing. He may make such delivery conditional upon payment of his own fees in the expert determination. Such payment may be made either in the proportions advised by him or by either or both parties without prejudice to his order as to costs.

(xiii) The independent expert shall deliver his determination, and (unless the parties agreed that he should not give them) the reasons for it within 28 days of his appointment.

(C3.1)

4.3.2 Proposed amendments

Immediately after his appointment, the independent expert shall require each party to inform him of any amendments to the procedure or the time limits set out in paragraph 4.3.1 which it considers appropriate (whether because more than two parties will be involved or otherwise). Each party shall promptly send any proposed amendments to the independent expert and the other party. Before responding, the independent expert may require the parties to meet him.

(C3.2)

4.3.3 Supplemental

4.3.3.1 The independent expert shall have power to strike out (in Scotland, dismiss) part of or all of any claim or defence made in the proceedings on any matter of the following grounds:

(a) wilful breach of these rules;

(b) deliberate non-compliance by a party with any order of the independent expert; or

(c) inordinate or inexcusable delay on the part of any party, where such act or omission has, in the opinion of the independent expert, given rise to a substantial risk that a fair determination of the dispute will not be possible, or which is such as to cause or to have caused serious prejudice to the other party.

(C3.3.1)

4.3.3.2 The independent expert shall have the power to strike out (in Scotland, dismiss) part of all of any claim or defence made in the proceedings if he is satisfied that the claim or defence or any part of it is scandalous, frivolous or vexatious.

(C3.3.2)

4.3.3.3 If either party fails to serve a pleading within the period allowed under these rules or by order of the independent expert, and fails to remedy his default within 14 days after despatch to him by the independent expert or any other party to the dispute of notice of that default, the independent expert shall be entitled to rule that he shall be treated as having abandoned his claim or defence (as the case may be) and, having made such a ruling, the independent expert shall be entitled to proceed with the reference on an ex parte basis.

(C3.3.3)

4.3.3.4 Any party who becomes aware that any provision or requirement of these rules has not been complied with and who fails to state an objection to the failure within a reasonable time shall be deemed to have waived the right to object.

(C.3.3.4)

4.4 Awards

4.4.1 Final and binding

The independent expert’s determination shall be final and binding save where it is so clearly erroneous on its face that it would be unconscionable for it to stand.

4.4.2 Issue of expert determination award

The independent expert shall send a copy his award to the parties and the RIDR Disputes Secretary.

4.5 Costs

4.5.1 Expert determination fee

Any party serving a notice of expert determination shall at the same time pay to the RIDR Disputes Secretary a fee, of an amount to be published from time to time by the RIDR Disputes Secretary but not exceeding £500 (excluding VAT). The expert determination shall not start until the fee has been paid. The RIDR Disputes Secretary shall promptly certify to the independent expert (once appointed) that the fee has been paid and remit it to the RIDR Committee Secretary.

(C5.1)

4.5.2 Discretion to order payment of costs

Whether or not the expert determination reaches the stage of a final award, the independent expert may order any party to pay some or a specified proportion of any party’s costs incurred in the expert determination, the independent expert’s fees, any costs of his appointment and any fee paid to the RIDR Disputes Secretary pursuant to paragraph 3.5.1, assessed in such manner as the independent expert shall determine.

(C5.2)

4.6 Communications

Communications for the purposes of the expert determination shall be by telephone and confirmed in writing wherever possible. Unless the contrary is proved, faxes sent before 5.00 p.m. shall be deemed received on the day of sending and letters sent by first class post shall be deemed received two working days after posting.

(C7)

4.7 Exclusion of liability

None of the Chairman of the Railway Industry Dispute Resolution Committee, the RIDR Disputes Secretary or any independent expert shall be liable to any party for any act or omission (including negligence) in connection with any expert determination under these rules unless the act or omission is established to have been in bad faith.

(C8)

4.8 Jurisdiction and governing law

Expert determinations shall take place in England and be subject to English law, save where the contract out of which the dispute arises is governed (or, if more than one, the majority of such contracts is governed) by Scots law, in which case the expert determination shall take place in Scotland and subject to Scots law. In either case the independent expert may order otherwise.

(C9)

5. PRACTICAL ACTION

5.1 Any Industry Party wishing to implement the property dispute procedure should obtain an “Application/Nomination of an Arbitrator/Independent Expert by the President of the Royal Institute of Chartered Surveyors (RICS)” form either from the RIDR Disputes Secretary (phone 020-7465-9263 (00-59263), fax 020-7922-4979 (00-24979)) or from the RICS Dispute Resolution Service (phone 01203-694757, fax 020-7334-3802).

5.2 This application form should be filled in to show details of the disputing parties and the nature of the dispute.

5.3 The RICS has a panel of some 30 arbitrators/independent experts who have been trained additionally on the railway element of property disputes. While the Application Form has a space to show any Chartered Surveyor whose appointment/nomination the applicant feels would not be appropriate, it would be advisable to check with the RICS or the RIDR Disputes Secretary that that person was in fact on the RICS panel.

5.4 The completed Application Form should be sent to the RICS Dispute Resolution Service and to the RIDR Disputes Secretary. Both addresses are on the form. Although the form specifies that it should be accompanied by a cheque to cover the RICS fee for appointing an arbitrator/independent expert, this fee is in fact paid by the RIDR Committee in respect of property disputes between two or more Industry Parties which have signed up to the RIDR Rules.

5.5 The RICS exercises a quality control monitor of a proportion of disputes to check the degree of satisfaction that both parties feel for the process. These statistics are passed back to the RIDR Disputes Secretary so that the railway industry can satisfy itself as to the efficiency of the arrangements or take appropriate action.

John Gott

RIDR Disputes Secretary

Central House

14 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

April 2000