Your questions answered on ABC’s Judicial Review against the Secretary of State for Transport
Q. What is a Judicial Review (JR) and what can it achieve?
A. Judicial Review is the legal framework and primary procedure for enforcing public rights. The following 3 rules must be met:
1. The decision challenged must be the decision of a public body;
2. The challenger must have the required “standing”, that is to say they must have sufficient interest in the matter; and
3. There must be sufficient grounds to bring the challenge such as illegality, unreasonableness or procedural impropriety.
There are 2 stages to a JR:
1. Permission hearing — looks at standing and whether there is a prima facie arguable case
2. Final Hearing — depending on the outcome of the final hearing, the Court then has the power to grant any of the following:
1: Mandatory / Quashing Order; 2: Declaration; 3: Injunction; 4: Damages
In contrast to the above order of events, our outcome was unique. The Judge did not hesitate to accept our “standing” and made a most unusual “conditional” decision — commanding Chris Grayling to decide the issue of Southern Rail’s contractual breaches within 14 days or our JR would go forward.
On July 13th, the final day of the deadline, the DfT announced their decision on force majeure. This means that our JR has now come to a close.
Q. What has taken the JR so long?
A. Below is a timeline of events. Drafting documents and witness statements (as the grounds change), battling to get information from the DfT and waiting for hearings has taken almost a year already:
Q. What has all the money been spent on?
A. The first £26k raised was intended to fund the initial stages of the JR and get us through the application stage. It was extremely challenging getting the required information from the DfT (as you might expect), but our lawyers worked exceptionally hard throughout; even though the money ran out long ago.
We’re now seeking a £30K target in our Crowd Justice appeal, launched shortly before the oral hearing in June 2017. This will be apportioned as follows:
· £10K pays our legal bills in connection with the oral hearing
· £17K pays a portion of the DfTs legal costs as they satisfied the Judge’s demands, and have now forwarded their costs to us.
· Any amount above £27K goes towards funding much-needed further legal advice so that we can continue the fight.
This may sound like a lot of money, but the legal work for a case like this is immense; especially when the other side is not forthcoming. It is also vital to our non-profit organisation that we retain legal advice, while we continue our investigative work to expose an extremely well-resourced and secretive government/rail industry partnership.
Q. What grounds made up the basis of our JR?
A. The difficulty in obtaining information, coupled with the tight timescales imposed in bringing JR cases meant the grounds varied from the time we sent the pre-action letter to the grounds we ultimately presented to the Court. Given what we’ve learned since, even these grounds might differ from the grounds we would raise if we brought the case today. In very brief terms, the grounds we brought the JR under were as follows:
1. The Secretary of State’s (SoS) delay in reaching a decision on force majeure is unreasonable. This was the main ground and premise of our case, and the following three smaller grounds flowed from that:
2. The SoS’s delay in reaching a decision resulted in indirect discrimination of disabled rail users under s.19 Equality Act 2010
3. The SoS’s delay in reaching a decision caused a detriment to disabled passengers under s.19 Equality Act 2010 (a proportionate means to achieve a legitimate end)
4. The SoS failed to comply with his public sector equality duty under s.149 Equality Act 2010
Q. What is Force Majeure?
A. In a contractual agreement, one or both parties have an obligation to fulfil the terms of the contract. Force majeure is an unforeseen circumstance(s) beyond a party’s control that prevents them from fulfilling the term(s) of the contract and generally exempts them from their contractual obligation.
In the present case, regarding the agreement between the SoS and GTR, GTR have claimed that the official and unofficial industrial action is such a circumstance that would excuse their performance breaches.
Q. How long has the SoS taken to reach a decision on Force Majeure?
The period in question relates to breaches by GTR of its cancellation and peak short-form performance benchmarks from 29 May 2016 onwards, where it claimed force majeure owing to unofficial and official strike action by its employees. At the time of the oral hearing, the decision for the earliest claim had been with the DfT for 16 months.
The DfT has told us that this decision has been “imminent” for months, yet it took our court order to finally force it out on 13th July, 2017.
Q. Where does ABC stand on whether GTR’s force majeure argument should be accepted?
The following chart from the long-anticipated Gibb Report shows that GTR’s performance has been in decline since 2013, long before industrial action:
The current franchise agreement began in 2014. By July 2015, GTR appeared to have breached their cancellation benchmarks and looked likely to breach their minute delay benchmarks. They were served a remedial plan notice on 7th July 2015.
The remedial plan came into effect in February 2016, yet Southern Rail’s performance has continually deteriorated against these revised benchmarks since April 2016.
Although the Gibb Report does mention the industrial dispute, it features for less than a page in a 163 page document. Chris Gibb was neither invited to discuss the dispute with the parties involved or report on it’s underlying issues. Many factors, such as insufficient staff numbers, have a much larger impact over time than the short hard hit of a strike, and it is these underlying issues that cause performance breaches month in, month out. It is also apparent from the Gibb Report that the Government is setting the strategic direction of this dispute and so has a vested interest in any such finding.
For these reasons we believe that GTR’s force majeure claims should in the large part have been declined and the penalty for breach be severe, going so far as to strip part or all of the franchise / management contract from GTR. At minimum, we must now ask for a fully transparent explanation of how force majeure was decided. We have yet to see any proof of the so-called “sickness strikes” for example; even though this allegation forms the basis of the Gibb report as well as ongoing government and GTR statements on the matter.
Q. Why was original permission on paper refused?
A. It is interesting to note that the timing, being so close to the General Election, could have resulted in embarrassment for the Government. However, the reasons given for permission being refused in the first instance were as follows:
· ABC does not have sufficient interest to bring the claim
· None of the 4 grounds are arguable
We were, therefore, right to go forward to an oral hearing, and have now adequately disproved the above two points.
Q. Who actually “won” the oral hearing on 29 June 2017?
A. See the write up here, in summary:
· The original Judge said we did not have standing, that our voice should not be heard — it was accepted at the oral hearing that we do.
· The original Judge said we did not have an arguable case — it was accepted at the oral hearing that we do.
· Our court action sought a finding on force majeure, we got it.
· Two important points of law came out of the hearing — that it is at least arguable that franchise agreements are to be enforced in a reasonable manner and that decisions under (the enforcement policy) are made in a timely manner and not left “until kingdom come” as Mr Justice Ouseley stated in his Judgment.
This effectively paves the way for future action and is a massive achievement. If we’d technically been granted permission to proceed then the outcome, on the ground of force majeure, could well have been the same. We forced the decision and the Judge upheld our position that it should not be unreasonably delayed — this is why we are viewing it as a victory. If we had gone forward to the full hearing, there would have been months of delays and huge costs.
Since first bringing the JR, the argument for disability rights under the Equality Act has changed substantially, especially with the buried accessibility report by the Rail Delivery Group that ABC leaked days before the hearing. Although highly disappointing that the Judge did not accept our arguments on equality, it should be made clear that this was never a challenge that confronted DOO specifically; only the DfT’s responsibility in enforcing the Equality Act. We feel that only the tip of the iceberg has been touched in this area and we have a lot more to follow.
Q. What did the court order set out?
A. The court order stated that if:
· The DfT reaches its decision on force majeure by 4pm 13 June 2017 then the JR shall be dismissed and ABC will pay costs.
· If they had missed the deadline, ABC would automatically have been granted permission to proceed to full hearing to decide the issue of force majeure, with no costs awarded to the DfT.
Q. Did the DfT meet the requirements of the Court Order with their announcement on 13 July 2017?
A. The Court Order stated that the SoS must notify GTR of their finding in respect of it’s findings as to GTR’s force majeure claims. They were also to notify our solicitors of this.
They did this on the final day of the deadline, when they announced a £13.4 million “fine” of Govia — all of which will now be channelled back into Southern Rail.
Unfortunately, we cannot question the leniency of the finding BUT having this finding now gives us a stronger position as far as lobbying for action is concerned. The DfT’s finding was grossly lenient, falling way short of a light slap on the wrist and further evidence that they’re highly unlikely to punish GTR when it is in fact the DfT who are setting the strategic direction of this dispute — as confirmed in the Gibb Report. A proper reading of the Gibb Report also substantiates our belief in this being a catastrophically conceived management contract; whose specifications were never realisable in the first place.
Q. What are the DfT’s costs and why does ABC have to pay them?
A. When viewed in a strict legal sense, ABC technically lost as permission to proceed was not granted (in fact it was conditional, but the condition appears to be met). For this reason they were ordered to pay two-thirds of the DfT’s legal fees in relation to the Acknowledgment of Service. This amounts to £17,278 and was due on 28 July 2017.
Q. What happens if ABC does not meet the DfT’s legal costs as ordered?
A. In short, ABC as a non-profit organisation will have to fold. The implication of this is that ABC as a strong legal, lobbying and media body will be gone, and the passengers’ voice in the Southern Rail crisis will be all but lost. All that will remain will be the DfT / GTR spin machine on one side and the Unions on the other. We are not prepared to let this happen and will do everything within our power to keep ABC alive.
Q. Can we appeal the Court’s decision?
A. In short, no — but other than costs do we really want to at this stage? As we’ve pointed out, we may not be happy with the force majeure finding, but we did force a decision and a new legal precedent now paves the way for the future.
We had our day in Court, we got some of the key issues into the public domain and forced the DfT’s hand so why would we want to find a LOT more money for legal fees to achieve effectively the same aim? This is not to say we’re done as far as the legal side of things is concerned — we’ve got a lot of unfinished business so all I will say for now is “watch this space!” A large part of our success has been the ability to change rapidly to the shifting landscape and we continue to look at ways of doing this.
As for costs, appealing these could be risky (as there’s a chance we could end up with more) and unlikely to get the outcome we hope for. It is far better to pay and be done with it — and in that payment purchase our freedom and independence to continue our work.
Q. What can I do to support ABC?
A. You can follow the Association of British Commuters on Twitter, like our Facebook page or join our Facebook group. But most importantly, we need you to support the Crowd Justice campaign to keep ABC alive!
