Network Rail had appealed a Competition Appeal Tribunal (CAT) ruling from July 2019 where Achilles Information Limited ("Achilles") won its claim challenging the way in which Network Rail controlled access to rail infrastructure and effectively prevented Achilles providing its supplier assurance services to the rail sector. This landmark decision means that there are likely to be significant changes in the way Network Rail, the owner and infrastructure manager of most of the railway network in Great Britain, now operates.
In 2018, Network Rail informed Achilles, together with all other suppliers and contractors in the rail sector, that the only supplier assurance scheme it would recognise was RISQS (the Railway Industry Supplier Qualification Scheme). The "RISQS-only" rule, coupled with the fact that Network Rail was a 'must-have' partner for any business wishing to work in the rail sector, effectively precluded Achilles from making a credible offer of supplier assurance services to businesses in the rail sector.
This case was one of only two stand-alone competition cases before CAT in the last twelve months and European law firm Fieldfisher both brought the initial case in the CAT and defended the appeal for Achilles.
John Cassels, Head of Fieldfisher's Competition and Regulatory Team said of the judgment:
"Bringing the case in front of the Competition Appeal Tribunal was a difficult decision for Achilles and in my view this litigation could and should have been avoided, had Network Rail engaged on a reasonable basis with Achilles. Achilles ended up with no choice but to bring a case against a partner it worked with on a regular basis – Network Rail – to ensure it could continue to offer its services to the GB rail industry, as it had done previously.
"In the CAT it felt like we were being forced to take on not just Network Rail, but also the independent regulator, the Office of Rail and Road, and Her Majesty's Railway Inspectorate, which Network Rail commandeered to give evidence in support of its case. Thankfully, we were able to show that their evidence did not add up."
The Court of Appeal's decision to dismiss, in forceful terms, all six of Network Rail's grounds of appeal is significant for all rail industry suppliers in Great Britain. It means that Network Rail's rules on supplier qualification schemes are void and unenforceable, encouraging innovation and competition for assurance services.
Gavin Partridge, General Counsel of Achilles commented:
“John Cassels, Stephen May and the Fieldfisher team worked tirelessly to present our case which was not only important for Achilles, but for the rail industry as a whole. Achilles has 30 years’ experience in offering supplier assurance across complex, regulated and safety critical industries. We believe that giving customers the potential to choose from different supplier assurance schemes can bring benefits similar to those we see in other sectors.
"The dynamics of a competitive market will encourage higher standards, innovation within the supply chain, and ultimately, customer choice.
“Achilles has a very longstanding relationship with the rail industry, and we look forward to working closely with existing and new partners in the sector.”
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