[2025] UKUT 00138 (LC)

As we said above, it is agreed that the number of sleepers required by NR is unaffected by the scheme and so is the same in the real world and the no scheme world. The timing of its requirement does differ, because in the no scheme world there is no stockpile, but the total number of sleepers required is the same. We use the term “required” (etc) to mean what NR needed for work on the track, and “demand” to mean what it bought from its suppliers each year. Thus in the years when NR was stockpiling sleepers demand exceeded requirement. In the no scheme world there is no stockpile and sleepers would have been bought when required; thus we need to ascertain NR’s requirement to date. We have to do so because figures supplied by NR about its requirement to date and about the stockpile are not agreed to be accurate. The volume of NR’s requirement will then be needed at a later stage in our decision when we turn to the number of sleepers the claimant would have sold, to date, in the no scheme world; in order to determine the market share it would have achieved we have to make a finding about the size of that market.

NR has provided information in response to questions asked of it by the parties in the course of proceedings. The claimant has concerns about its accuracy and indeed it is clear that some figures cannot be right. That causes difficulties because there is no evidence from NR. We do not know how or by whom the figures have been produced, and the person who produced them cannot be asked for an explanation or clarification and cannot be cross-examined. An added problem is that it is difficult for NR to quantify the stockpile. A physical stock count is awkward because the sleepers are stacked close together, so that it is not possible to walk between the stacks, in order to prevent vandalism. Mr Jarvis explained that a drone is used to survey the stacks from above, but there is obvious scope for error. Discrepancies in the available data about the stockpile are said by the claimant to cast doubt on the figures as a whole, and as we shall see there is some truth in that.

The following table sets out what NR has said about its requirement, for sleepers for the track, from 2009/10 onwards (with financial years ending on 31 March in each year). The first column contains the figures for 2009/10 to 2015/16 taken from a document produced by NR in 2016 for tenderers in the P2 procurement exercise. In the second column are the figures given by NR for the sleepers it purchased from both TWM and the claimant for work on the track, in response to questions addressed to it in this litigation. The shaded cells are those where NR itself stated that the figures were “believed to be unreliable”. The figure for 2024/25 was provided in December 2024 and is estimated so far as the final three months are concerned. As we said above, we are not asked to determine the requirement before the year 2017/18, but we have included the earlier figures because it will be important to see the sort of quantities NR required before that date. In the third column are the numbers of sleepers that NR has told the parties, in response to their questions, that it has withdrawn from the stockpile. In the final column are the totals of the second and third column, adding NR’s purchase for track to its withdrawals from the stockpile to give NR’s total requirement, according to NR’s own figures, for the years from 2017/18 to date. Throughout the table the figures that are challenged by the claimant are emboldened.

The figures given in the second column for NR’s purchases for track in 2016/17 onwards are further broken down by NR into purchases from the claimant and TWM. According to NR, the claimant provided the following numbers of sleepers for track; again, the figures from 2017/18 onwards are not accepted by the claimant.

The claimant has supplied figures for its total sales to NR to date (for track and stockpile together), and they are unchallenged. The figure given in table 1a for 2016/17 is about 10,000 lower than the claimant’s own figure for its sales to NR in that financial year, which bears out NR’s own observation that the figure is unreliable. NR has also supplied a break-down of what the two suppliers sold by sleeper type. An earlier version of the figures which appeared to show that the claimant did not sell any sleepers with USPs (see paragraph 12 above) was obviously incorrect and NR corrected it.

If the figures in table 1a were accepted by the claimant then we would know how many sleepers the claimant sent to the stockpile, but those figures are not agreed; and the claimant is unable to supply its own figure for the sleepers it sent to the stockpile. Mr Heubeck thought the claimant should be able to do so on the basis that sleepers going to the stockpile were identifiable because they went out by road not rail, and did not have clips fitted; but Mr Jarvis and Mr Neil’s evidence was that although most went by road, not all did, and that some sleepers went by road to track. We accept the evidence given for the claimant that it does not know how many sleepers went from WWH to the stockpile.

NR has supplied its own figures for the number of sleepers sent by the claimant and by TWM to the stockpile. The figures are detailed, being broken down by sleeper type; in total, NR said that the claimant sent 304,161 and TWM sent 321,273, giving a total of 625,434. However, NR’s chart setting out those figures is annotated as follows:

“Please note a physical stock count was undertaken in 2020 showing a further ~100,000 sleepers. However, these stock counts are known to be inaccurate due to the nature of the activity.”

So we can take it that the stockpile at some point in 2020 contained, according to a physical count (and we have noted the limitations in such counts, see paragraph 54 above) about 725,000 sleepers. In December 2024 NR stated that a physical count of the stockpile in July 2022 indicated that it contained 526,278 sleepers – and of course we know that by then a substantial number had been withdrawn (the third column of table 1 above).

In setting out what the parties say about NR’s requirement to date it is easiest to start with the authority’s position, because it advanced a positive case on the basis of NR’s figures.