[2025] UKUT 00138 (LC)

For the authority, Mr Heubeck expressed confidence in NR’s data, and it was argued that because NR expressed doubt about some of its figures (the shaded cells in tables 1 and 1a above) the rest could be taken as correct. Mr Heubeck took the physical stockpile count from July 2022 (526,278) and observed that by 31 March 2022 NR had used 263,481 sleepers (column 3 of table 1 above). 133,151 sleepers are said to have been withdrawn in 2022/23, and so he suggested that one quarter of 133,151 might have been used between April and July 2022. Accordingly, Mr Heubeck said, if the July 2022 count was right, then the stockpile in total was (526,278 + 263,481 + 33,288) = 823,047.

Mr Heubeck then took the claimant’s own sales data, which have not been challenged, and subtracted from them the number of sleepers said by NR to have been purchased from the claimant for use at work sites (table 1a, paragraph 55 above). If those figures are correct then the claimant sent 525,386 sleepers to the stockpile:

We have not yet heard evidence from the forensic accountants, but it is useful to be aware of the use the authority’s forensic accountant made of that figure. Mr Adam Smith, for the authority, expressed the view that sleepers sold for the stockpile in the real world would have been sold for track between 2020 and 2024. He therefore subtracted 500,000 (rounding Mr Heubeck’s 525,386) from the claimant’s sales data in 2017/18 to 2019/20 (making the assumption that what the claimant would have sold during those years would otherwise have been unchanged) and then spread the 500,000 evenly across the following four years. Thus on the authority’s (as yet untested) case 500,000 sleepers sold at an inflated price in the real world would have been sold for far less, and later, in the no scheme world. The claimant resists that conclusion. This decision is not about the accountants’ evidence, but we mention Mr Smith’s calculation in order to explain why the parties attached a great deal of importance to the stockpile figures.