Sole Reference (“TTP1 198”) by Rail Express Systems to a

Timetabling Panel in accordance with the provisions of Chapter

H of the ADR Rules effective from 1 August 2010 (and

subsequently amended)

SOLE REFERNCE BY RAIL EXPRESS SYSTEMS LIMITED IN RESPECT OF A DISPUTE

RELATING TO AN OBJECTION BY NETWORK RAIL INFRASTRUCTURE LIMITED TO A

NOTICE OF DISPUTE SUBMITTED TO THE SECRETARY BY DB CARGO (UK) LIMITED ON

1 DECEMBER 2017 PURSUANT TO CONDITIONS D2.7.2 OF THE NETWORK CODE IN

RESPECT OF THE 2018 SUBSIDIARY NEW WORKING TIMETABLE (‘P1 198”)

I DETAILS OF PARTIES

1.1 The names and addresses of the parties to the reference are as follows:-

(a) Rail Express Systems Limited (Company number 2938991) whose Registered

Office is at Lakeside Business Park, Carolina Way, Doncaster DN4 5PN (“Rail

Express Systems”) (“the Claimant”); and

1.2 Network Rail Infrastructure Limited (Company number 2904587) whose Registered

Office is at 1 Eversholt Street, London NW1 2DN ç’NRIL”) (“the Defendant”)

(a) The Claimant’s point of contact is Quentin Hedderly, Network Capacity

Manager, Lakeside Business Park, Carolina Way, Doncaster DN4 5PN (Tel:

01302 575201) (E-mail: quentin.hedderIydeutschebahn.com)

(b) The Defendant’s point of contact is Matthew Allen, Head of Timetable

Production (Capacity Planning) (Tel: 07734 282514) (E-mail:

matthew.allen@networkrail.co.uk)

2 THE CLAIMANT’S RIGHT TO BRING THIS REFERENCE

2.1 This matter is referred to Timetabling Panel (“the Panel”) for determination in

accordance with Condition D2.7.2 (D5.1.1) of the Network Code.

3 CONTENTS OF REFERENCE

This Sole Reference includes:

(a) The subject matter of the dispute in Section 4;

(b) A detailed explanation of the issues in dispute in Section 5;

(c) In Section 6, the decisions sought from the Panel in respect of

(i) legal entitlement, and

(ii) remedies;

(d) Appendices and other supporting material.

4 SUBJECT MATTER OF DISPUTE

4.1 This is a dispute regarding the application of Decision Criteria set out in Condition D4.6 of the

Network Code and the allocation of capacity in the New Working Timetable in respect of the

2018 Subsidiary Change (‘May 18 WiT’).

4.2 The Timetabling Change process set out in Part 0 of the Network Code is undertaken

on the Claimant’s behalf by its sister Company DB Cargo (UK) Limited (“DB Cargo”)

who raised a large number of issues (over 200) in its response to the Defendant’s May

18 WTT (including the Claimant’s Train Slot that is the subject of this particular dispute

reference).

4.3 Following an initial dispute raised by the Defendant in respect of the validity of the

Notice of Dispute issued by DE Cargo that was subsequently resolved amicably,

since 1 December 2017 the parties have been working through the large number of

issues seeking solutions. All such issues have now been resolved with the sole

exception of the Claimant’s Train Slot that is the subject of this particular dispute,

which is the 1Y46 10:58 ThO London (Victoria) to Folkestone West (via Canterbury

East) (arr.13:05) (“1Y46”) which is a Pullman passenger service operated on behalf

of the Claimant’s customer, Belmond.

4.4 The Claimant has operated 1Y46 for a number of years without any major issues

arising during each relevant Timetable Change. 1Y46 is routed via Canterbury East as

a set down is necessary for passengers travelling on Belmond’s ‘Historic Canterbury”

day excursion. In line with previous timetable changes, the Claimant, through DB

Cargo, requested that the previously established schedule be rolled over’ into the May

18WTT

a.

4.5 Unfortunately, the Defendant had exercised its Flexing Right in the May 18 WU.

Whilst the new departure Ume from London Victoria at 11:01 is acceptable to the

Claimant and Belmond, the new later arrival time at Folkestone West at 13:30, is not.

4.6 Appendix A — Extract of Train Schedule 1Y46 path offer for 24/05/18 — 06/12/18

Appendix B — 19/04/18 example detailing Train Schedule 1Y46 path for Dec 17 WTT

(14/12/17 — 17/05/1 8)

Appendix C —050318 e-mails

Appendix D —200418 e-mails

5 EXPLANATION OF EACH ISSUE IN DISPUTE AND THE CLAIMANT’S

ARGUMENTS TO SUPPORT ITS CASE

5.1 As mentioned in paragraph 4.4 above, the Claimant (and its predecessors) has for

many years operated the Belmond Pullman (previously Venice Simplon Orient

Express). Since the train’s re-launch in 1982, one of its regular operaUons is to

convey passengers on the first and/or ultimate leg of their through journey between

London, Paris and Venice (or vice versa). Belmond also offer an “Historic

Canterbury” day excursion as part of the regular Thursday operaUon. After being

served brunch, passengers on the day excursion alight at Canterbury East. A

significant majority of passengers (c.70 - 80%) are using the Pullman as part of an

International rail journey and travel through to Folkestone West. Continental

passengers are transferred by road coaches and Eurotunnel shuttle to connect with

the Venice Simplon Orient Express scheduled to depart from Calais ViNe at 17:19

CET. There are a significant number of constraints which must be adhered to in

order that customers of Belmond Pullman receive a premium service. The Pullman is

planned to operate on 16 x Thursdays on the Folkestone itinerary during the current

timetable period.

5.2 The Claimant (through DB Cargo) received a timetable Offer for 1Y46 for the May

2018 timetable period which provides an arrival at Folkestone West at 13:30 (see

Appendix A). This is 25 minutes later than the 13:05 arrival which has prevailed in

previous timetable periods (see Appendix B for the schedule which applied for the

previous Timetable period). An arrival time at Folkestone West of 13:30 is too late to

3.

provide a robust connection for continental bound passengers travelling on the same

day’s Venice Simplon Orient Express. The Defendant has chosen to flex 1Y46

significantly in order to accommodate South-eastern and GTR services. To

compound matters, opportunities which could have provided an earlier arrival at

Folkestone West, have been frustrated through capacity being awarded to empty

coaching stock inter-depot movements.

5.3 The Claimant disputes the outcome of the Timetable Offer in providing a significantly

later arrival at Folkestone West for 1Y46. Whilst the Claimant accepts that the

Defendant is entitled to exercise its Flexing Rights, it would also expect the

Defendant to have exercised its Flexing Rights in respect of other relevant services

on the network that have prevented an earlier arrival being achieved, all such

decisions to be by reference to the Decision Criteria set out in CondiUon D4.6 of the

Network Code. In other words, carry out the process for all services in parallel so that

appropriate decisions can be made on any flexing options that would better

accommodate all of the relevant Access Proposals.

5.4 Instead, the Claimant believes that the Defendant has accommodated other

passenger services in the May 18 WTT first and then tried to accommodate 1Y46 in

the ‘white space’ available capacity that remains. There have been a large number of

changes on the South Eastern Route in the May 18 WTT, which has resulted in less

‘white space’ being available. Nevertheless, all of Network Rail’s timetabling

decisions under Part D of the Network Code should be by reference to the Decision

Criteria irrespective of the ‘level’ of priority services enjoy under Condition D4.2.2(d)

of the Network Code.

5.5 This assertion is reinforced by ORR’s appeal decision in respect of UP No.1174

issued on 15 February 2018 (relevant extracts as follows):

“ORR considers that it is fundamental to a proper understanding of the provisionsrelating to the Decision Criteria that the wording of Condition D4.6 imposes anobligation on Network Rail. The provisions do not confer an entitlement or power. Theobligation is to achieve the Objective (applying the Considerations) where NetworkRail ‘s required to decide any matter’ In relation to the compilation of the V17Network Rail’s obligation is reinforced by the language of Condition D4.2. 1”(paragraph 61)

r.

‘The meaning of the words “where Network Rail is required to decide any matter inthis Part D” in Condition D4. 6.1 must, in OAR’s view, be interpreted in light of the factthat they explain the extent of Network Rails obligation, rather than qualifying itspowers.” (paragraph 62)

Part D sets out a number of decisions which Network Rail is required to make.Network Rail submitted that Condition D4.6. I is very widely drafted and that, whenPart D is considered as a whole, there are clear general obligations imposed on itrelating to the compilation of the WTT such that Condition D4. 6.1 applies generally todecisions it makes when compiling the VVTT.” (paragraph 64)

“OAR agrees that Condition D4.6.1 applies generally to such decisions. In particular,we note the following points:

• Condition Dl. 1.1 imposes a general responsibility on Network Rail to establishthe WTT and Condition D2. 6.1 obliges Network Rail to compile the proposedWIT. Network Rail will necessarily be required to make many decisions as itcompiles the WTT It is a natural reading of the words in Condition D4.6. Ithat the Decision Criteria apply to all such decisions.

• This is supported by Condition D4. 2.1, which expressly provides that NetworkRail shall apply the Decision Criteria in compiling the VVTT and does sowithout qualification. Condition D1.1.5 similarly requires that in conductingthe processes prescribed by Part D (including the compilation of the W7j)decisions shall be made in accordance with the principles set out inCondition D4 (which includes the Decision Criteria). These provisions areinconsistent with the argument that the Decision Criteria are relevant only tospecified types of decision.

• OAR does not agree that “decisions” are required only where there is a conflictbetween Access Proposals or with the Timetable Planning Rules. NetworkRails responsibility for compiling the WTT means that, in practice, it mustdecide whether to include, vary or reject each Train Slot requested in anAccess Proposal (doing so in accordance with the provisions of Part D). Anysuch decision is binding unless overturned by an appeal

• The wording of the Network Code therefore strongly supports the interpretationthat Network Rail has an obligation to apply the Decision Criteria to all of thedecisions it makes and we see no reason why a limitation should be implied.The nature of the Objective and Considerations are such that they are ofrelevance generally to the compilation of the VVTT. It is entirely consistentwith the purpose of the Decision Criteria that they should apply to alldecisions which Network Rail makes in compiling the Wfl so that there is aconsistent driver in decision making which affects the interests of many andvaried parties. In contrast, we do not consider that it would align with thepurpose of the Decision Criteria if Network Rail was only required to applythem to certain decisions” (paragraph 65)

55

5.6 The main reason given by the Defendant for not being able to achieve an earlier

arrival time for 1Y46 at Folkestone West can be summarised as Unfortunately the

increased volume of traffic and the recast timetable for GTR and Southeastern

means that it is not possible to make improvements to the paths for these trains”

fincluding 1Y461 along with a mention of the specific trains preventing an earlier

arrival time at Folkestone West for 1Y46 (see Appendices C & D). Whilst these may

or may not be valid reasons, they do not absolve the Defendant from making

decisions by reference to the Decision Criteria. The Claimant has received no

information from the Defendant detailing the decisions it has made when considering

the Decision Criteria when allocating capacity between 1Y46 and the specific trains

preventing an earlier arrival time at Folkestone West for 1Y46 in the May18 WTT.

5.7 Consequently, without such information and given the characteristics of 1Y46, the

Claimant does not believe or at least cannot be certain that the Defendant has met

the objective set out in Condition D4.6.1 of the Network Code i.e.:

Where Network Rail is required to decide any matter in this Part D its objective shall

be to share capacity on the Network for the safe carriage of passengers and goods

in the most efficient and economical manner in the overall interest of current and

prospective users and providers of railway sewices.”

In addition, the Claimant would argue that in any such consideration of the Decision

Criteria themselves set out in Condition D4.6.2 of the Network Code, the Defendant

has not, or at least does not appear to have done, given sufficient weight to the

particular Decision Criteria that demonstrate it has considered the full range of

adverse implications to the Claimant and its customer, Belmond, of a significantly

later arrival at Folkestone West. The Claimant would have expected the following

Decision Criteria to have featured highly in Network Rail’s decision:

(b). that the spread of services reflects demand; 1Y46 arrival time at Folkestone

West is 25 minutes later in the May 18 WIt than the previous timetable and does

not provide a satisfactory connection for International passengers.

(d). that journey times are as short as reasonably possible; 1Y46 journey time has

been extended by 22 minutes in the May 18 WTT when compared with the previous

timetable.

G

(e). maintaining and improving an integrated system of transport for passengers and

goods. With the later arrival time at Folkestone West in the May 18 WU, passengers

travelling on 1Y48 would experience a significant risk to their onward Paris and

Venice connections.

(U. the commercial interests of which Network Rail is aware. The extended transit

and later arrival at Folkestone West will adversely affect the commercial interests of

the Claimant in that its customer may decide to remove some of its business from

rail.

U). enabling operators of trains to utilise their assets efficiently. There are

implications for the Claimant’s train crew and the customer service staff on 1Y46

resulUng from the extended journey time of the later scheduled arrival of 1Y46 at

Folkestone West and from the current temporary mitigation measures that have had

to be introduced to achieve an earlier arrival time for 1Y46 at Folkestone West.

5.8 Given that the May 18 WU is now in operation, it should be noted that in order to

meet its customer’s requirement for an earlier arrival time at Folkestone West the

Claimant has attempted to provide a temporary solution through the good offices of

Southeastern. In order to afford a robust connection for continental passengers an

earlier path has been identified from London Victoria to Folkestone West (via

Canterbury East) for 1Y46, but is reliant on Southeastern relinquishing its Train Slots

for 5Y70 and 5L19 on the day in question. There is currently no agreement currently

in place to enable this mitigation measure to be operated for the duration of the May

18 WU. Notwithstanding this, the Claimant does not consider that this mitigaUon

measure is ideal as a permanent solution because it causes two key adverse issues

to its customer.

5.9 Firstly with check-in at Victoria for a 10:01 departure, it means that more passengers

will have to stay in London prior to their trip. Check-in at Victoria is rushed as a

‘bottle neck’ is created by passengers arriving closer to departure time. Secondly,

whilst some additional time must be allowed for possible delays with the Channel

transfer, a 12:30 arrival at Folkestone West means an addibonal 30 minutes must be

“lost” somewhere, which detracts from the overall passenger experience. There is

7

additional crewing time both for the Claimant and Belmond staff arising from the

earlier departure time.

5.10 The wording of the Network Code strongly supports the interpretation that Network

Rail has an obligation to apply the Decision Criteria to all of the decisions it makes

that are of relevance to the compilation of the WU. Condition D4.6.3 of the Network

Code requires Network Rail to ‘reach a decision which is fair and not unduly

discriminatory as between any individual affected Timetable Participants or as

between any individual affected Timetable Participants and Network Rail’. In the

context of this dispute, the Claimant has seen no evidence that any consideration of

the Decision Criteria has been taken when the Defendant decided that 1Y46 could

not continue to enjoy an earlier arrival time at Folkestone West in the May 18 WTT.

6 DECISION SOUGHT FROM PANEL

6.1 The Claimant is seeking the panel to determine that (1) the Defendant has not

applied the Decision Criteria correctly (or indeed at all) in its decisions concerning

the allocation of capacity in the May 18 WIf between 1Y46 and the relevant trains

preventing an earlier arrival for 1Y46 at Folkestone West and, consequently, (2) that

the panel to direct the Defendant to provide a Train Slot in the remainder of the May

18 WTT which meets the key criteria of (i) reaching Folkestone West at or prior to

13:10, (B) contains a Canterbury East set down and (iii) does not depart London

Victoria before 10:00.

SIGNATURE

For and on behalf of DB Cargo (UK) Limited

Signed

Print NameQUENTIN HEDDERLY

PositionNETWORK CAPACITY MANAGER

8

Il P P j,ja inerated on 20/04/2018,14:43:58Project: Subsidiary 2018 Production (MkYI8) (22598 Production + 1 (P.1))Timetable: Subsidiary2Olo Production (18 br1dng limetable)lnfrasthjcture: INFRAFREE 180419 (25095)Database: IWSPPPeriod: 20/05/2018 - 08/12,2018Planning Conte4 20105/2018-08112,2018 Planning Lotion Set RENT, SUSSD(rsion: IFS 4.5,102

________

L_zTrain: XU 1Y46BD(WP [ThO (1 06391 64fl [WN720303051 DBSchenlcer lI (Ihq Limited (09/1 2/2012-31/1 2/2025)

,L&n Lecation me ing limes li,

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Line — aié

Pr Dep Pr Dep Plat Line Big pth psi P4 Per Dep

‘1CTRlE LONDON 1CTCRlA 11.00 11.01 11.00 11.01 01:00 TB 0-2 Terminal Bay ft 00:00 00:00

GRRBW GROS\€NCR BRIDGE JN 11/03 / Dn Chatham Nbin FL — — — — 00:00 00:00

\tITRDJ TPJRERQDJN. — 11,05% — — I D-DCMFastDown — ¼ — ¼ 000 0000

BRIXItN BRIXTON 11738 — — / DnOafford — — — — 0000 0000

CPNRDJ CNTERBURYRQ6DJUNC11ON 71/08% — / D-DCLFastDown — 00:00 00:00

CBRIJN CPvBRIAJN 71/10 / D-DCLFastDown — % 00:00 00:00

DENrvRIGI DENt#RKHILL 11/11% / D-4FastDown — — — — 00:00 00:00

CFTNRJN CR(ON RQ4D JN — 11/12 — I D-DCL Fast Dow,i — 3 — — 00:00 00:00

NUNHED NUNHEPD — 11/17 — / D-2FastDown — 4% — — 00:00 00.00

BELNGHM BELLINGIPM 11,26 — / D-2FastDown — 2% — — 00:00 0000SHRThNJ SHORTLPNDSJN 11731 — I D-DSSlowDown SL 00:00 00:00

BROM..YS BRtEYSUJTh 11732% / D4 Slow Down SL 00:00 00:00

BICKLYJ BIORLEYJN 11,34 / D-DCSSlowDown SL — ¼ — — 0000 00:00

SThRYCJ STMRYCRYJN — 1125% — — / D-DS Slow Down SL — 3 — — 0000 0&.00

SWX SWNALEY — 11/42% — — / D4 Slow Down — — — — 00:00 00:00

FMiGIMJ FAWCHN.IJUNC1Th 11/48% — — / D-DOMDown Fast — — — — 0000 0000

SEST SESTREEF 11/53% — 1 D-2FastDown — 3 00:00 00:00

ROHTBDJ ROOHESTER BRIDGE JN 12103% / Fast Down — 1 00:00 00:00

ROHT ROOHESTER 7206% / D-2 Fast Down — 3 — — 0000 00:00

GLN&IM( GILLINaINvIflN1) 12114% — — / D-3 Down Fast — 1 — — 0000 0000

RPJNHEJ RAJNHPMEPSTJUNC1fl1 12’20% — — / Down Chatham DC — — — — 0000 0000NEWNSrN NEWNGTON 12’22% — / D-DF Fast Down — — — — 0000 0000

SThGWJN WESlERNJN(SflNGEOJRNE) 12725% — I D-DFFastDown — 3¼ 00:00 00:00

EJSTNGS EPSTERN JN (SITONGEOJRNE) 12)29% 1 D-DF Fast Down — 1 00:00 00:00

SThGBRN SITflNGSOJRNE 12731% / D-2 Fast Down — — — 00:00 00:00

FA’RSHM FA’,ERSHN.l — 12’39% — / D-3 Fast Down — — — — 00:00 0000

CNTBE PNTERBURYEPST 1153 12.56 1253 1256 0300 T D-2 Fast Down — 2% — — 00:00 0000

SWELL SHEPHERDS WELL 13V8% D-2 Fast Down — — — — 0000 OOcOO

BCKJN BUCFQPND JN 13/13% D-Down Nin — 00:00 00:00

DCvERP DO’sERPRICRY 13/15 0-1 FastOown — 00:00 00:00

FLKSTNE FaSESrONEE4ST 13/25 U-i Staff Halt — — — — 00:00 00:00

FtflTNC FQJ(ESICNE CENTRAL — 1327 U-I Fast Up — 00:00 00:00

FLKSTNW FWESiG1E¼EST 13.30 13.31 13.30 13.31 01:00 Th U-i FastUp — 00:00 00:00

NetworkRail

- •&::‘ t

IY46BD1Y46cF

Train Class:

TOO TraintD:TraintD:SignalID:Bid/aTer Status:

TOO Status:

From:Ogin Loc.:Destination Loc.:Distance:

PubIiUon Date:

Bank Holidays:ReserzUons:

Business Sector

20/05/2018tCThlEFLRSThW

137.969km2018-01/10

N

08/12i2018

11:0113:3075/P/47/1 3Coath260

74.5645mph

TOO Head Code:Until:01gm lime:Destination lime:F/bdel Train:Train Length (m):Limiting Speed:Sleepers:Brand:

kmmodation:

Train Category

Train UID:IidityStatus:

Days Pattern:

Ser\ice Code:

liming Load:

Power Type:Trailing Load:Catering:qs Char.:Ut Number:

P81072Y

ThO (10639164)

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II

4,

Appendix C

From: Nick Rendell <Nick.Rendell(networkrail.co.uk’To: “Stephen.Hewitt(&deutschebahn.com’ <Stephen.Hewitt(Edeutschebahn.com>Cc: “NataIie.Brooks(deutschebahn.com” <Natalie.Brooks@deutschebahn.com>, Robinson Andrew (Planning)<Andrew. Rob i nson(anetwork rail. co uk>Date: 05103/2018 16:09Subject: RE: VSOE / Cant Trips WTT Thursdays

Stephen,

We have reviewed the paths in light of the comments you have raised. The 1007 service from Chesterfield has

been looked at by the East Midlands team but due to wholesale changes on the MML with GTR and EMT the

path for 1007 WO remains as is at 20/49 at Acton Wells.

The other trains have been reviewed across the former Southern Region with a view to resolving the problems

raised. Unfortunately the increased volume of traffic and the re-cast timetable for GTR and Southeastern mean

it has not been possible to make improvements to the paths for these trains.

Kind regards

Nick

Nick Rendell I Operational Planning Specialist I 07740 783757

V 1*

Appendix 0

From: Bennett-Poynter Chris <Chris.BennettSPoynter@networkraiI.co.uk>To: “Natalie.Brooks@deutschebahn.com” <Natalie.Brooks@deutschebahn.com>Cc: Nick Rendell <Nick.Rendell@networkrail.co.uk>Date: 20/04/2018 15:03Subject: RE: VSOE / Cant Trips WU Thursdays

HI Natalie

Nick has asked me to look at this for you and am just trying to get to the bottom of this.

1Y46BC THO 11:-i London Vic to Folkestone West arriving at 13:30 running via Canterbury.

The reason for the retiming is due to a complete timetable recast for all operators on the South East

route for May 18 and an uplift in services as per the operators franchise agreements with DFT. I have

reviewed the path and confirm there is no opportunity to run earlier.

Between London Victoria and Brixton the 1Y46 follows headway behind 2M44, 1Y46 has then been

pathed out to run behind 9K23B5. This is a new Thameslink service from Kentish Town to Orpington

which runs in a standard clock face time throughout the day. 1’(46 is then pathed out by 3 minutes

to run behind 1C26 from Strood to Sittingbourne. 1C26 now runs behind 9P21 which is a new

Thameslink Luton to Rainham Service.

From Sittingbourne the 1Y46 only has 214 minutes of pathing through to Folkestone West

The addition of Thameslink services into Kent has meant that the paths have had to be revisited and

the additional time added in.

F3 attached

Many thanks

Chris

Chris Bennett-Poynter / Operational Planner - South East & HS1 LTP

Chris.Bennett-Poynter@networkrail.co.uk / 085 21308 / 01908 781308

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VFrom: Natalie.Brooksdeutschebahn.com [mailto:Natalie.Brooks@deutschebahn.comlSent: 20 April 2018 10:59To: Nick RendellSubject: RE: VSOE I Cant Trips WYF Thursdays

Hi Nick

I have been asked to find out details of where the actual problems would be i.e. Clashes etc withhaving the train arriving at 13:05 so that we can look at the detail.

I understand that there has been the timetable re-cast however we haven’t sight of where theproblems are with the schedules and whether any type of flex/pathing movement could be looked atso we are trying to gather this sort of detail. The only information that can track down following thenumerous email chains etc is the below from yourself:

Unfortunately the increased volume of traffic and the re-cast timetable for GTR and Southeastern mean it

has not been possible to make improvements to the paths for these trains.”

If further detail has already been provided then apologies, could a copy be sent forward to me?

Kindest regards,

Natalie

Natalie Brooks

Timetable Manager

DR Cargo (UK) LimitedLakeside Business ParkCarolina WayDoncasterDN4 5PN

(t): +44 (0)1302 575571(m): +44 (0)7766 132917(e): Natalie.Brooks(ädeutschebahn.com(w): www.rail.dbschenker.co.uk

IDBI

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