The ABC Court Transcript
Thanks to generous donations from our supporters, we are now able to publish the full transcript of our oral hearing, and will be forwarding a copy of the following documents to the Transport Select Committee, the National Audit Office and the Public Accounts Committee.
Extract from the court transcript: QC Clive Sheldon offers adjournment compromise
Judgement from Mr Justice Ouseley
Full transcript of the oral hearing
Copyright for all transcripts remains with the Crown and DTI Global as the official transcribers.
Our Crowdfunder is open for another 9 days! Please donate if you can – all funds raised will go towards our campaign to seek the truth about the GTR contract.
The history of our case
In September 2016, over two thousand of our supporters came together to raise £50,000 for a Judicial Review of the Department for Transport over the Southern Rail Crisis. Our main ground was the unreasonable delay taken by the Secretary of State in enforcing the GTR contract regarding contractual breaches, which had been under consideration for 14 months at the time of our court submission.
A two and a half hour oral hearing took place on June 29th 2017 and the Judge ordered the DfT to produce the force majeure determinations within two weeks or go forward to a Judicial Review. He made this conditional judgement because of assurances from the DfT that the force majeure decision was already ‘imminent’ (a discussion detailed in our court documents above).
The DfT announced their decision on the last day of the deadline – a £13.4 million penalty for performance breaches, going back to GTR’s first breach of contract in July 2015. It wasn’t a fine, however – the money would be reinvested into the GTR network as an ‘improvement package’ – including 50 more onboard staff.
It was not until January 2018’s National Audit Office report that we learned that Govia Thameslink Railway had in fact been permitted to buy out two years of their performance liability at £10 million. This period also covered their future liability for performance, up until September 2018 – thus extending through the period of the May timetable collapse.
The NAO report describes ‘fast moving negotiations’, a ‘rapid timescale’ and ‘verbal decisions’ made in the 14 days after our court case, noting that they had not seen evidence of any formal discussions about the amount GTR would be willing to pay to settle its obligatons. It also states:
“At the time of writing, it is unclear how the Department will incentivise Govia Thameslink to deliver good services for passengers in the future, having removed its ability to use financial performance penalties up to September 2018.” (p.38)
Rail Plan 2020 – a new era of smoke and mirrors?
In the aftermath of the May timetable collapse, there is an urgent need to clarify whether the Department for Transport has any legal standing to enact penalties on GTR for the ongoing chaos and poor performance. We fear it does not, based on comments from David Brown, CEO of The Go Ahead Group, reported by The Times on 7th September.
“Mr Brown said that the rail company would make a robust challenge to any attempt by the government to impose a fine or cancel the franchise as punishment for the fiasco. He insisted that it had not breached its contract.”
However, Peter Wilkinson, the senior civil servant involved in agreeing the deal, assured the Public Accounts Committee in February that there were still performance mechanisms in place despite GTR’s buy out of future liability. (For the full discussion, see the Committee transcript, Q182 – Q194.)
At a time when everyone is focused on placing the blame for the May timetable collapse, we fear that the toxic contractual situation and three year history of rail crisis associated with GTR will be forgotten. Has the Department for Transport in fact given away all the power to its subcontractor, on top of a fatally flawed contract?
We ask how the Department for Transport can hold GTR to account if it has already given away all its power to enact penalties on the company? How can the ORR provide an ‘independent’ review since they were also on the Industry Readiness Board and are appointed by the DfT? And how can we expect the DfT to act in the public interest if it fears legal action from The Go Ahead Group?
After three years of ‘The Southern Rail Crisis’, we have no faith in the DfT’s leadership, and it seems that hundreds of people agree with us…
Our Crowdfunder is open for another 9 days! Please donate if you can – all funds raised will go towards our campaign to seek the truth about the GTR contract.
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