[2025] UKUT 00138 (LC)

We explained above that in the no scheme world as in the real world the 2012 WWH contract would have been extended as it was in reality (paragraphs 30 and 41), and further short-term contractual arrangements made, to bridge the gap between 31 March 2017 when the fixed term of the 2012 contract expired and the beginning of the P3 contract in early summer 2020.

We have to make decisions that will enable the accountants to express their opinions about what the claimant’s profit or loss would have been in that period in the no scheme world. We have made findings about the volume of sleepers required by NR for work on the track during this period; it is agreed that that requirement would have been the same in the no scheme world. Ms Clutten in closing suggested that in the no scheme world perhaps more work might have been done on the track during this period, without the distraction of the stockpile and of the imminent closure of WWH; we reject that suggestion, first because it is speculative and second because it goes against the agreed basis on which we have looked at requirement.

So the volume of NR’s requirement is now a given. How many of those sleepers would the claimant have supplied, and at what price?

Mr Humphries KC in closing argued that the contract extensions in the real world remained subject to the MGV in the 2012 contract, and would equally have been subject to it in the no scheme world; aside from that the claimant’s position was that we should leave it to the accountants to fill in the detail about price and market share during this period. Ms Fowler has expressed her own views as to the price the claimant would have charged, and the market share it would have achieved.

For the authority it was argued that price during this period would have been the same as in the real world; Mr Smith, the forensic accountant, has expressed his own views about the volume the claimant would have sold.

In our view these are not issues for the accountants. The accountants are not experts in the supply of sleepers; price and market share are for the sleepers experts. Our approach is therefore to use what we have learnt from the evidence we have heard so far in order to make findings about price and market share in this short interlude between the end of March 2017 and early summer 2020.