[2025] UKUT 00138 (LC)

The claimant’s evidence about NR’s demand to date comes from Mr Jarvis, whose task it was until 2022 to supply that demand. In his first witness statement he said that he experienced a high of approximately 950,000 sleepers in 2014 and a low of approximately 500,000 as a result of the pandemic in 2020 and 2021. He added that a working average assumption for demand was always in the region of 750,000 per annum, and pointed out that Mr Jonathan Curtis said the same in his witness statement (see paragraph 27 above). The difficulty Mr Jarvis has is that he left NR in 2022 and no longer has access to NR’s data; so he was able to recollect in terms of round numbers but has no access to precise figures.

NR’s figures for its requirement from 2020/21 are accepted by the claimant, on the basis that volumes were heavily impacted by the pandemic and by the financial constraints that followed (when NR was required to make cuts after the heavy subsidies provided during lockdown and beyond).

As to the figures in dispute, as we said above we are not asked to make a decision about 2014/15 but it may be helpful to explain that Mr Jarvis thought the 869,625 given by NR in 2016 was too low (let alone the even lower figure NR supplied later – see the second column of table 1 above). In cross-examination he recalled giving a presentation to colleagues at the end of that year and saying that he had sourced 930,000 sleepers for NR that year. That is the sort of thing one remembers, and we think he was probably right, but we bear in mind that NR’s figures may be different because of the way purchases have been allocated across the financial year-end.

Mr Jarvis also disagreed with the 4,000 given for the first withdrawal from the stockpile in 2018/19 (the first figure in the fourth column of table 1 above); he thought it was too low. He pointed out that the wagons on which sleepers were transported carried multiples of 56 so that 4,000 did not look right.

Mr Jarvis was adamant that the figures given by NR for its requirement in 2017/18, 2018/19 and 2019/2020 were too low. His recollection was that the requirement was nearer to 500,000 in those years.

In light of Mr Jarvis’ evidence, the claimant’s position is that NR’s figures are in general too unreliable for any weight to be placed upon them. In support of that position the claimant made three points.

First, other documents indicate that the volumes NR was expecting, going forwards, were much higher than they should have been expecting on the basis of the figures now given, in particular Jonathan Curtis’ witness statement (indicating an average requirement of 750,000 (see paragraph 27 above) and the planning statement for Bescot indicating an annual requirement of “up to 1,000,000 sleepers each year”.

Second, certain errors are obvious; in paragraph 57 we noted the problem with NR’s data about the supply of USPs, which was demonstrably wrong, and the discrepancy between NR’s figure and the claimant’s sales data.

Third, Mr Heubeck’s calculation of the claimant’s contribution to the stockpile (table 2 above), based on what NR says the claimant sent to track, is about 225,000 higher than what NR said the claimant sent to the stockpile (paragraph 59 above). Both those figures cannot be right, and thus NR’s own figures are inconsistent with each other. Mr Heubeck’s calculation of the claimant’s contribution to the stockpile is also inconsistent with his own calculation of the size of the stockpile: using round numbers for a moment, if the claimant sent 525,000, TWM sent 320,000, and Tallington contributed 50,000 (see paragraph 29 above) then the stockpile comprised about 895,000 sleepers which is considerably larger than Mr Heubeck’s 820,000, again based on figures provided by NR (and than Mr Jarvis’s recollection that the stockpile was 750,000 or more, but not 800,000).

On that basis, it was argued for the claimant, no reliance should be placed upon NR’s figures insofar as they differ from Mr Jarvis’s recollection. Moreover, the size of the stockpile, and of the claimant’s contribution to it, cannot be known, and in particular Mr Heubeck’s figure for the claimant’s contribution to the stockpile should not be used as Mr Smith does to calculate the number of sleepers the claimant would have sold in the no scheme world to date.