[2025] UKUT 00138 (LC)

In light of that decision about price, we return to the question of market share. We remind ourselves (from paragraph 112 above) that NR’s requirement from 1 April 2017 to 31 March 2020 was:

How many of those sleepers would the claimant have sold? One of the questions addressed to NR by the parties in September 2024 was “In the period 2012 to 2020, how did NR decide from which supplier to purchase sleepers?”. The answer was:

“The decision as to which supplier to purchase sleepers from under their respective contracts was largely driven by volume constraints of supply from the respective suppliers. TWM could supply a maximum of up to around 380,000 to 400,000 G44 or EG47 sleepers per year. The other specialised sleepers plus the balance of G44 and EG47 sleeper demand was produced by CMX. The average requirement for NR each year was approximately 700,000 to 900,000, declining later in the period, and with the balance of what could not be produced by TWM met by the stockpile.”

For the authority Mr Ormondroyd put it to Mr Jarvis that that meant that NR took as many sleepers as possible from TWM and then turned to the claimant for the balance; in other words, NR bought from TWM in preference to the claimant. Mr Jarvis disagreed; that was not how orders were allocated between the two suppliers during the time when he was responsible for ordering. Instead, orders for sleepers were placed so as to get the best price for NR bearing in mind the price banding in the two contracts (and we saw how he put that in paragraph 21 above). This is a further instance of information provided by NR which is not evidence, and where the maker of the statement cannot be asked for an explanation. We accept Mr Jarvis’ evidence that orders were allocated between the two suppliers so as to get the best price, and that there was no preference for TWM.

One of the factors in that decision in the no scheme world (where NR is buying only its requirement and not stockpiling) is the MGV in the TWM contract. Of the requirement listed at paragraph 169 above 200,000 sleepers in each year had to be bought from TWM. Mr Jarvis expressed the view that WWH would have commanded a 60% market share throughout its operation, but that cannot be right during these years when TWM’s MGV gave it nearly 50% of the requirement.

The prices that we have found would have been payable under the extensions and the short-term contracts would have been neither as uncompetitive as the prices in the real world extensions and short-term contracts, nor so low as in the P2 bid. Mr Heubeck’s evidence was that TWM’s operations were generally more efficient and its pricing generally lower than the claimant’s but we have no specific information about TWM’s prices and we do not know how far its prices rose when levels dropped to near the MGV. Doing the best that we can we find that in the no scheme world, from 1 April 2017 to the time when the P3 contract began at WWH, the claimant would have had approximately a 50% share of the market.

The accountants now have the volume of NR’s requirement in the no scheme world in the period from 1 April 2017 to the beginning of the P3 contract, the range of prices the claimant would have charged, and the market share it would have had.