WCRC loses judicial review in High Court

[Carnforth_24]

https://assets.caselaw.nationalarchives.gov.uk/ewhc/admin/2023/3338/ewhc_admin_2023_3338.pdf

3.17. We have determined that the Applicant has not demonstrated equivalence, or better, in risk control and therefore has not provided cogent justification and reasoning why it should not progress with fitment of CDL.

 

[AdamWW]

https://assets.caselaw.nationalarchives.gov.uk/ewhc/admin/2023/3338/ewhc_admin_2023_3338.pdf

3.17. We have determined that the Applicant has not demonstrated equivalence, or better, in risk control and therefore has not provided cogent justification and reasoning why it should not progress with fitment of CDL.

I wonder how far they could have got with fitting CDL for what they must have paid to mount this challenge.

 

[YorkshireBear]

I wonder how far they could have got with fitting CDL for what they must have paid to mount this challenge.

And how far they could have got during the low season to have carriages ready for when the season returns....

I have absolutely no doubt a lot of the press will paint this as H&S against the world.

 

[AM9]

I have absolutely no doubt a lot of the press will paint this as H&S against the world.

And a few here as well.

 

[dgl]

Yet the ruling is clear that it was their lack of risk control that is primarily at fault here, if you have a lax attitude to the health and safety of your customers then your current way of working isn't going to satisfy a magistrate that it is safe and you can carry on as you are.
WCR had an agreed way of working that they did not adhere to and as such it's not surprising that their challenge has failed

 

[31160]

Well I for one is glad at this outcome, however I'm sure WCR will appeal and draw it out instead of just accepting that its the right thing to do and just get on with it. The owner has bought another kettle so he can't say he's hard up

 

[DarloRich]

Yet the ruling is clear that it was their lack of risk control that is primarily at fault here, if you have a lax attitude to the health and safety of your customers then your current way of working isn't going to satisfy a magistrate that it is safe and you can carry on as you are.
WCR had an agreed way of working that they did not adhere to and as such it's not surprising that their challenge has failed

This is all that needs to be said.

 

[Llanigraham]

Yet the ruling is clear that it was their lack of risk control that is primarily at fault here, if you have a lax attitude to the health and safety of your customers then your current way of working isn't going to satisfy a magistrate that it is safe and you can carry on as you are.
WCR had an agreed way of working that they did not adhere to and as such it's not surprising that their challenge has failed

This was not held in front of Magistrate. It was a High Court Judicial Review, so held in front of a High Court Judge.

 

[DDB]

I've only skimmed it but it seems to fully vindicate ORR and condem WCRC. It mentions the many fatal accidents that lead to the ORRs policy and the poor quality of the WCRCs risk assessments and the lack of review of them after WCRCs own incidents.
The damming testimony from another operator that points out WCRC have had an unfair competitive advantage by not paying for this safety measure and that the ORR have been flexible with the timing and given lots of notice to allow a long time to fit the whole fleet and only fitting during the off season.

 

[Ediswan]

https://assets.caselaw.nationalarchives.gov.uk/ewhc/admin/2023/3338/ewhc_admin_2023_3338.pdf

3.17. We have determined that the Applicant has not demonstrated equivalence, or better, in risk control and therefore has not provided cogent justification and reasoning why it should not progress with fitment of CDL.

That appears to part of an ORR letter quoted in the judgement, not the judgement itself.

 

[Blindtraveler]

Whilst I agree with views expressed elsewhere that this could be the thin end of the wedge for heritage operations generally and that there are plenty of those out there that unlike WC RC could not afford this work, I hold holy convinced in my view that if the agreed practices were not being adhered to which I'm sure many a heritage operation does then they should pay the price, that price in this case is fitment of cdl and presumably pretty bloody quick

 

[43096]

This is good news. WCRC didn’t so much lose as get utterly humiliated, and deservedly so.

 

[bleeder4]

Interesting to discover that the Jacobite visits were the result of a whistleblower. The incident at Reading that is mentioned in there is new to me as well. I knew about the one at York but that one at Reading must have passed me by.

 

[AndyPJG]

BBC News

Harry Potter train operator loses High Court door safety challenge
The operator of a train service that featured in the Harry Potter films has lost a High Court challenge against a rail regulator over door safety.
West Coast Railways (WCR) challenged demands for central locking systems to be fitted to the carriage doors.
The owners of the Jacobite - which appeared as the Hogwarts Express in the boy wizard films - said implementing the new measures could cost £7m.
It operates on the iconic West Highland Line from Fort William to Mallaig.
WCR took legal action against the Office of Rail and Road (ORR) after it refused to exempt the company from rules banning the use of hinged doors without central locking.
The company relies on safety exemptions that allow for the continued use of heritage rolling stock

• Hogwarts Express steam train can return to service
• End of the line? Hogwarts train waits for ruling

A judge dismissed the operator's case and concluded that the ORR had taken a "justifiable" approach.
The judge said a feature of WCR's Mark I trains was their hinged doors that "can be opened by anyone inside the train even when the train is moving".
Instead of a central locking system, the carriages have a "secondary" mechanism where doors are pulled shut into a locked position and a bolt is used on the inside of a coach.
The ORR, the safety regulator on Britain's railways, told the judge that "it does not wish to see heritage train operators go out of business" but from March this year wanted to ensure heritage trains "meet minimum safety standards" by introducing central locking.
Heritage appeal
The legal challenge centred on an ORR exemption refusal in January and March.
Welcoming the ruling, an ORR spokesperson said: "As the rail regulator, we are committed to ensuring the safety of all passengers.
"Other charter heritage operators which use the mainline railway have made the necessary investment to install central door locking on 'hinged door' carriages and it remains open to the West Coast Railway Company Limited to do the same.
"Such converted carriages can both retain their heritage appeal yet also reflect minimum modern safety standards."
West Coast Railway Company Ltd has been contacted for comment.

 

[Titfield]

Whilst I agree with views expressed elsewhere that this could be the thin end of the wedge for heritage operations generally and that there are plenty of those out there that unlike WC RC could not afford this work, I hold holy convinced in my view that if the agreed practices were not being adhered to which I'm sure many a heritage operation does then they should pay the price, that price in this case is fitment of cdl and presumably pretty bloody quick

It was noted in the decision that (a) timetables for the works to be carried out were flexible and had allowed operators a considerable period of time to carry out the works particularly during the winter (non operational) period (b) that the demographics of those purchasing the Jacobite allowed fares to be increased to cover the costs of works.

If I was a heritage railway operator operating on their own lines (ie not national network) I would be thinking of a phased move to cdl because it will eventually be applied to heritage railways across the board. Why? the risk of passengers opening doors as a train arrives at the station and striking someone on the platform seems to me to be a risk that requires reducing and was referenced in the decision.

 

[SuperLuke2334]

So WCR have to fit CDL now if they wish to continue operating charters? Is the Northern Belle CDL fitted?

 

[D Williams]

If I was a heritage railway operator operating on their own lines (ie not national network) I would be thinking of a phased move to cdl because it will eventually be applied to heritage railways across the board. Why? the risk of passengers opening doors as a train arrives at the station and striking someone on the platform seems to me to be a risk that requires reducing and was referenced in the decision.

This would, of course, result in most Heritage Railway operations closing down. Which is probably what the ORR (and Government) want.

 

[Wilts Wanderer]

If I was a heritage railway operator operating on their own lines (ie not national network) I would be thinking of a phased move to cdl because it will eventually be applied to heritage railways across the board. Why? the risk of passengers opening doors as a train arrives at the station and striking someone on the platform seems to me to be a risk that requires reducing and was referenced in the decision.

This would likely kill off quite a lot of heritage line operators if it were to be implemented.

 

[AdamWW]

This would, of course, result in most Heritage Railway operations closing down. Which is probably what the ORR (and Government) want.

Why would the government want heritage railways to all close?

 

[Wilts Wanderer]

Why would the government want heritage railways to all close?

They don’t, it’s wibble.

 

[duncombec]

I skimmed the judgement as a relatively dispassionate observer (I've never been on a railtour or the Jacobite), and the review appears to present the attitude of WCRC as being one of "leave it long enough and it will go away".

If I read it correctly, some things I noted were:
- All ORR requires at this point to grant a continued exemption is a plan to fit CDL (Central Door Locking), or a suitable risk assessment as to why another method - e.g. secondary door locking - achieves the same risk-reducing aim. It has so far been presented with neither.
- WCRC has not (and seemingly cannot) justify its cost claims, which means that ground failed automatically in favour of the lower one suggested by ORR. Similarly, nor can it justify the alleged loss of revenue, because ORR would be satisfied with fitting in non-running months (e.g. Jan and Feb) over a number of years, as long as a plan is set down.
- All other operators have either fitted CDL already, or have an approved plan to do so, and have therefore been granted an exemption.
- WCRC have had numerous occasions to furnish the ORR with the desired information and have not done so (whilst acting fairly belligerently), whilst at the same time having at least two incidents that essentially prove the current system isn't working, all the time insisting that it is sufficient.
- The specific reason for requiring CDL is the main-line operation at speeds of up to 100 mph, and a significant decrease in passengers familiar with "slam-door" operation, as evidenced by the reduction in incidents as it was phased out on franchised operators. They accept other forms on other lines (do I understand from elsewhere on this forum heritage operations are restricted to 25mph?), and may be willing to do so on the mainline if it is provided with evidence.
- Another operator supplied a witness statement essentially suggesting WCRC now had an unfair competitive advantage by virtue of not having fitted it, whereas said other operator has, and recouped the cost through higher ticket prices. The market for said tours, the Jacobite in particular is not seen as particularly price-sensitive.

The "loss" doesn't seem hugely surprising based on those facts alone, and as was commented upthread, one wonders how much this review has cost that could have gone towards just getting on with it!

 

[yorksrob]

And a few here as well.

ORR are still against sensible third rail extensions, so are not entirely trustworthy IMO unfortunately.

 

[Wilts Wanderer]

The somewhat related question - does this sound the end of vacuum-braked stock and locomotives on the main line? Or are we now likely to see the reemergence of the ‘generator car’ to provide power for a CDL system.

I imagine Jeremy Hoskins will be having a very merry Christmas this year, having just seen his principal market competitor severely hamstrung - presumably this outcome is what LSL/Saphos were hoping for when they brought the original complaint to ORR. (Call me cynical)

 

[Killingworth]

I hope WCRC don't waste time and money on appealing the judgement, accept it, provide a serious schedule of work to comply within a realistic period agreed with the ORR and actually show they're doing it. Then, with spot checks on progress and compliance a further time limited exemption should be agreed.

The tone of the judgement strongly suggests that is the ORR's view. Hopefully WCRC have had long enough to see that coming and should be prepared. Their website advertises services available to book now throughout 2024. That's either foolhardy stubbornness or awareness of an acceptable plan.

One more incident without taking action would finish them off. Insurance premiums must already be loaded against them now.

 

[snookertam]

Pretty glad about this outcome. If the Jacobite has to stop because of this then that’s entirely down to WCR themselves, no matter how they try and paint it. You can’t operate on a mainline railway, with all the track access charges involved, and earn the fares associated with this service, and claim to not have the money to do this.

There was a very cynical article recently suggesting that the village of Mallaig would lose heavily because of this. If the summer Jacobite services stopped then yes some people would no longer visit, but it seemed to leave out that it still has a 4x daily weekday train service.

Wouldn’t be the worst thing if they pulled out, I’m sure another operator might be interested in running the service.

 

[Killingworth]

There was a very cynical article recently suggesting that the village of Mallaig would lose heavily because of this. If the summer Jacobite services stopped then yes some people would no longer visit, but it seemed to leave out that it still has a 4x daily weekday train service.

Wouldn’t be the worst thing if they pulled out, I’m sure another operator might be interested in running the service.

LSL are, little doubt about it.

Scotrail might be too if they had freedom to make more of the line.

 

[Wilts Wanderer]

Pretty glad about this outcome. If the Jacobite has to stop because of this then that’s entirely down to WCR themselves, no matter how they try and paint it. You can’t operate on a mainline railway, with all the track access charges involved, and earn the fares associated with this service, and claim to not have the money to do this.

There was a very cynical article recently suggesting that the village of Mallaig would lose heavily because of this. If the summer Jacobite services stopped then yes some people would no longer visit, but it seemed to leave out that it still has a 4x daily weekday train service.

Wouldn’t be the worst thing if they pulled out, I’m sure another operator might be interested in running the service.

I suspect the town of Mallaig is indeed severely worried about the prospect of the Jacobite ceasing operations, it is a very important majority of summer tourism there.

 

[Kingham West]

It’s a terrible decision, although the evidence did not help WCR. More expensive safety work for the rail industry , to prevent a 1in a billion risk, potentially driving passengers to road travel where risks are massively greater.
It lacks rigorous Benefit Cost Analysis.

 

[bleeder4]

It’s a terrible decision, although the evidence did not help WCR. More expensive safety work for the rail industry , to prevent a 1in a billion risk, potentially driving passengers to road travel where risks are massively greater.
It lacks rigorous Benefit Cost Analysis.

What? Why would it drive people to road travel? We're talking about heritage railtours, not regular public transport. Someone who wants to go on the Jacobite and can't because it isn't running won't drive to Mallaig. They'll get the ScotRail service instead, as happened every day during the suspension earlier this year. And someone who books a railtour from their local area to say, York, only to have it cancelled won't get in the car and drive to York. They'll book on another railtour going from their local area.

 

[Wilts Wanderer]

I personally know people who do not work in / around the railway, nor have a particular interest in it, who called off their holiday to the Fort William area when the Jacobite was suspended last summer. I don’t think theres any real comparison with the normal Scotrail DMU service, other than it runs over the same route. People want to experience the steam train.