West Coast loses legal battle – then door exemption revoked
EFFORTS by West Coast Railway (WCR) to have a judicial review of the Office of Rail and Road’s (ORR) refusal to grant a further exemption from central door locking requirements have been dismissed.
The decision in December means that the heritage train company cannot operate hinged-door carriages on the main line unless Central Door Locking (CDL) is in place.
The failure to find in favour of WCR was swiftly followed by a revocation of an existing exemption that allowed it to use hinged-door Mk.1 carriages, a decision that impacts the
Carnforth-based company’s charter operations.
The move follows on from the ORR’s decision in March 2023 not to award any future exemptions to WCR for Mk.1 stock on main line operations unless it was fitted with CDL.
The regulator wanted all operators of heritage stock to meet improved minimum safety standards.
Long time coming
As far back as 2018, the ORR told heritage operators that from 2023, exemptions from Regulation 5 of the Railway Safety Regulations 1999 would only be issued in exceptional circumstances.
WCR’s exemption for Regulation 5 was granted in 2012 for a 10 year period, but this exemption expired on March 31, 2023. The operator has been working with temporary extensions since then and, with the expiry date looming, was given permission to pursue a Judicial Review to challenge the ORR’s decision.
There were five grounds to WCR’s request:
1. The ORR misinterpreted the Railway Safety Regulations
2. The ORR unlawfully fettered its decision
3. The ORR failed to take relevant considerations into account
4. The ORR’s decision was a disproportionate interference on the Claimant’s right to the protection of property
Popular‘Jacobite’service set to go ahead with central door locking fitted.
under Article 1, Protocol 1 of the European Convention on Human Rights
5. The ORR’s decision was irrational at common law given its disproportionate and draconian effect.
Supporting evidence
Evidence was heard at the Royal Courts of Justice on November 21/22 before
Mrs Justice Thornton.
More than 1000 pages of supporting witness evidence was produced by WCR, which claimed the cost of fitting more than 130 vehicles would cost the company around £3 million (September 2021 figures).
This figure had been revised by November 2022 to £7m, and was based on direct costs and lost revenue, but the judge noted WCR did not provide any supporting evidence for this. WCR also claimed fitting CDL was “disproportionate in the context of a vanishingly small risk to safety”.
At the hearing, the ORR said it had calculated the cost of fitting CDL to be around £26,250 per vehicle, amounting to £348,440 for a 12-carriage train. The ORR added that the maximum number of trains per day for a single heritage operator was a four, meaning a potential outlay of £1,393,960 for four rakes of stock. Having carried 101,429 passengers on the ‘Jacobite’ in 2023, it was suggested that a £10 rise in fares would generate more than £1 million with no additional overheads. Profit for WCR from‘The Jacobite’was said to be £1 million based on turnover of £5.7 million.
Other operators
Mrs Justice Thornton heard that other smaller heritage train operators had invested in CDL and passed the costs onto customers through a modest increase in ticket prices. Because WCR had refused to fit central locking, it had been able to operate at a lower cost base, putting it at a significant competitive advantage. In addition, other operators had done the CDL work out of season in January and February, when fewer tours run, thus reducing the impact on revenue.
On June 9, 2023 the ORR conducted an unannounced and anonymous inspection of ‘The Jacobite’ train in Scotland following a report by a whistleblower about the operation of train doors. The inspection identified issues that were in breach of the conditions of the Regulation 5 exemption.
The ORR was concerned that an unsupervised door could be opened with the train in motion or not completely in a platform, as well as the risk of injury from a branch or lineside object from passengers leaning out of the droplight windows.
A prohibition notice was served on June 14, but services commenced the next day following WCR’s acceptable response.
A second unannounced
inspection was made on
July 14 which resulted in the service being suspended the next day due to similar concerns noted during the June inspection. This led to the withdrawal of the exemption certificate on July 19 and suspension of ‘The Jacobite’ for several weeks at the height of the season.
Following recruitment of additional stewards to patrol the vestibules, extra labelling by doors and other measures, services were allowed to recommence.
The court judgment also refers to an incident in June 2022 where a passenger attempting to open the door of a moving train overpowered a steward and had to be restrained by platform staff.
During the period while waiting for the review to be heard, WCR was able to continue operations using non-CDL Mk.1s after the ORR granted a further short-term exemption until February 29, 2024, which allowed Christmas charters to operate.
Operators of similar stock – Scottish Railway Preservation Society, Vintage Trains and Hastings Diesels – also have ongoing exemptions in place, but have been in regular dialogue with the ORR regarding fitting CDL and are working to an agreed a phased timescale to achieve this.
The Judicial Review decision had been expected towards the end of January this year but in fact it was delivered on December 22 – the day after the January issue of The RM had gone to press.
In handing down the decision, Mrs Justice Thornton noted a “deep-seated and wide ranging” disagreement between the ORR and
West Coast Railway, but nevertheless found in favour of the ORR on all five counts of the challenge.
Revoked exemption
Then, on January 11, the ORR took the unexpected decision to revoke WCR’s Regulation 5 certificate to operate hinged door stock without central door locking, effectively grounding West Coast’s Mk.1s.
Whether this decision arose as a result of a lack of interim discussions between the ORR and WCR over a timescale for fitting CDL is not clear.
An ORR spokesman told The RM: “The ORR decided in early 2023 not to grant West Coast Railway Company Limited with an exemption from Regulation 5 of the Railway Safety Regulations 1999. WCR was granted permission to judicially review that decision. While its claim for judicial review was determined, ORR granted WCR with a series of short-term exemptions from the regulations. The latest of these exemptions was valid from December 1, 2023. It was made clear to WCR that this was subject to immediate revocation in the event that its judicial review claim failed.”
West Coast response
WCR’s commercial manager James Shuttleworth said: “We are disappointed by the High Court’s judgment. We have decades of experience of operating on the main line and safety has always been, and remains, our top priority.
“We will now reflect and consider options to enable us to continue running safe services. We are committed to working with the ORR to find a long-term solution which safeguards the future of heritage services on the main line.”
The type of CDL fitted to Mk.2s (and Mk.3s) operates on air, which means a train will need to be hauled by an air-braked loco.
At present, not every steam loco is air-brake fitted. And because Mk.1s are vacuum braked, a different type of locking system will need to be installed with an independent power and/or air supply.
■ As regards other operators, Vintage Trains aims to phase in fitting of CDL by November; the Great Scottish & Western Railway (operator of the Royal Scotsman) will complete fitment by February 2025, as will VSOE for the Belmond Pullman. Both Locomotive Services Group and Riviera Trains carriage sets have CDL already fitted.
The RM understands WCR has, or is about to, embark on fitting Mk.1 carriages with a form of central door locking, focusing work on vehicles which will be used on ‘The Jacobite’. Advance bookings for this year’s Fort William to Mallaig service are at healthy levels. The seasonal service starts on March 28 with a morning-only trip and, as this issue closed for press, there were no Standard Class seats available until June
19. Similarly, seats on the afternoon train from May 6 were sold out until June 14.
On January 27, WCR operated its first charter of 2024 on behalf of the Railway Touring Company and used CDL fitted Mk.2s.