The King (on the application of West Coast Railway Company Ltd) v Office of Rail and Road
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 22 December 2023 |
| Neutral Citation | [2023] EWHC 3338 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1845/2023; AC-2023-LON-001563 |
[2023] EWHC 3338 (Admin)
THE HON. Mrs Justice Thornton
Case No: CO/1845/2023; AC-2023-LON-001563
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Cross and Raphael Hogarth (instructed by DLA Piper UK LLP) for the Claimant
Hugh Davies KC and Daniel Mansell (instructed by the Office of Rail and Road) for the Defendant
Hearing dates: 21 st – 22 nd November 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 10.00am on 22 nd December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Thornton
Introduction
The Claimant, West Coast Railway Company Limited, is the largest operator of heritage train tours in the United Kingdom. It runs a number of well-known services. These include the Jacobite Steam Train from Fort William, which is known popularly as the “Hogwarts Express”, having featured in the Harry Potter films and described as ‘the greatest railway journey in the world’. It also operates the “Flying Scotsman” which is considered to be one of the best-known locomotives in the world.
The Defendant, the Office of Rail and Road (“the ORR”), is the safety regulator for Britain's railways.
The trains operated by the Claimant are predominantly Mark I vehicles which meet the “heritage” appearance required for many heritage train tours. Particular heritage features are hinged doors, known also as ‘slam doors’, and droplight windows. Hinged doors can be opened by anyone inside the train even when the train is moving. The majority of the doors open outwards and in order to open them, it is necessary to lower the ‘droplight’ window in the doorframe and reach out of the window to turn the handle. There is no central locking system whereby all doors are locked and unlocked simultaneously by a single individual from a central control point. Instead, the doors on the Claimant's trains are locked by pulling the door shut into a locked position and then engaging a bolt on the inside of the coach. The mechanism is known as secondary door locking.
The Railway Safety Regulations 1999 (SI 1999/2244) were made following fatalities and injuries caused by passengers falling from the doors of Mark 1 rolling stock or being hit by the doors when they were opened at platforms. Regulation 5 came into force in January 2005. It prohibits the operation of any rolling stock on the railway if the rolling stock has hinged doors, other than doors which have a means of centrally locking them in a closed position. Regulation 6 provides a discretion to the regulator to issue an exemption from the prohibition.
As the safety regulator, the ORR's position is that it does not wish to see heritage train operators go out of business but, as from March 2023, it wants to ensure that heritage trains meet minimum safety standards by introducing minimum engineering safety solutions, namely central door locking. The Claimant contends that its operating procedures for the secondary door locks on the hinged doors of its trains are as safe as a central door locking mechanism. Trained stewards operate the doors, not passengers. There are warning signs in all the carriages and passenger announcements to alert passengers to the risks.
The decision under challenge is contained in two letters issued by the ORR on 31 January and 16 March 2023 refusing to issue the Claimant with an exemption from the legislative prohibition on the use of hinged doors without central door locking. The Claimant challenges the decision as unlawful on five grounds:
i) The ORR misinterpreted the Railway Safety Regulations,
ii) The ORR unlawfully fettered its discretion,
iii) The ORR failed to take relevant considerations into account,
iv) The ORR's decision was a disproportionate interference with the Claimant's right to the protection of property under Article 1, Protocol 1 of the European Convention on Human Rights,
v) The ORR's decision was irrational at common law given its disproportionate and draconian effect.
Legal and policy framework
The Railway Safety Regulations
Regulation 5 of the Railway Safety Regulations ( SI 1999/2244) provides that:
“(1) no person shall operate, and no infrastructure controller shall permit the operation of any rolling stock on a railway if the rolling stock has hinged doors for use by passengers for boarding and alighting from the train (other than doors which have a means of centrally locking them in a closed position).
(2) Paragraph (1) shall not apply to rolling stock which at the relevant time is being exclusively operated other than for the carriage of fare paying passengers.”
Regulation 6 provides:
“(1) The relevant authority may, by certificate in writing, exempt any person or class of persons, railway, part of a railway or class of railways, train or rolling stock, or class of train or rolling stock from any prohibition imposed by these Regulations and any such exemption may be granted subject to conditions and to a limit of time and may be revoked by a certificate in writing at any time.
(2) Before granting an exemption the relevant authority shall consult such persons as it considers appropriate.
(3) In deciding whether to grant any such exemption the relevant authority shall have regard to –
(a) the conditions, if any which it proposes to attach to the exemption;
(b) any other requirements imposed by or under any enactment which apply to the case;
(c) all other circumstances of the case.” ORR policy and guidance
Railway Safety Regulations 1999: Guide to operation of Mark 1 type and hinged door rolling stock
The ORR's policy in relation to the grant of an exemption from the prohibition in Regulation 5 is as follows. The numbering is as set out in the ORR's document and references to CDL are to central door locking:
“ (ii) criteria for ORR granting an exemption from regulation 5 concerning hinged door rolling stock not currently fitted with Central Door Locking
1.1 ORR will consider granting an exemption from regulation 5 where the applicant can demonstrate that there are exceptional circumstances, for example:-
(f) where a robust evidenced case is provided setting out alternative automated door locking or single-action multi-door locking solutions that provide an equivalent level of safety protection to CDL or
(g) where fitment of CDL cannot be completed by the expiry of current exemptions.
4.5 ORR expects any such application to demonstrate the requirements set out in ORR document ( Railway Safety Regulations 1999, Assessment and Guidance Manual for Exemption Applications) are met by either:
(a) Setting out how the means of controlling risks associated with the operation of hinged doors other than the use of CDL as required under regulation 5:
i. are in line with the hierarchy of controls within the Management of Health and Safety at Work Regulations 1999;
ii. provide an alternative engineering solution not relying on individual human action to lock each door, that ensures doors are secondarily locked in position at all times the carriage is in the course of its journey; and
iii. is supported by a quantified risk assessment to demonstrate as a minimum, equivalence to CDL as a means of risk control;
or:
where fitment of a form of CDL to rolling stock with hinged doors is not achievable by the 31 March 2023 date; that a time bound programme of work is in hand for such fitment.
In such cases a limited period of exemption may be considered to allow the programme to be completed, so long as other methods of secondary door locking are in place and being operated effectively in the meantime.”
The Railway Safety Regulations 1999 Assessment and Guidance Manual for Exemption Applications
The guidance explains that a risk assessment and details of operational arrangements for the safe carriage of passengers is mandatory for all applications for an exemption under Regulation 6. The operational arrangements should include procedures for training staff who will operate the hinged door rolling stock including ongoing monitoring and competence assessment. The ORR offers and encourages pre-application meetings so applicants can understand the ORR's assessment process. An application will undergo initial screening to assess whether an applicant has provided sufficient justification and reasoning as to why an exemption is required. An application will be put on hold in the event that evidence has not been supplied.
“7.4 The evidence provided should clearly demonstrate the ability of the applicant to safely manage the operations or section of infrastructure from which they have requested to be exempt from the regulations.
7.5 Where supporting evidence is provided and additional information or clarity is required, the assessor should contact the applicant directly and obtain this. Once this additional evidence is obtained, it should be uploaded to the Box case.
……
7.7 If the case team have any serious concerns about the quality of supporting evidence provided or are not convinced or confident that existing control measures or those to be implemented are suitable measures of risk control, a meeting should be held with the applicant to set out these specific concerns.”
Factual background
The consultation that preceded the introduction of the Railway Safety Regulations 1999 explained that there were then approximately 2,300 ‘Mark 1’ vehicles still in passenger service on the main rail network plus others in charter fleets and on heritage railways. The stock mainly dated from between 1959 and 1974. The majority of the vehicles were operated by three companies, Connex South Eastern, Connex...
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