UK: Railtrack "Ransom Strip" Payment Appeal Defeated By Guinness

Last Updated: 24 February 2003

In Railtrack Plc v. Guinness Limited, the Court of Appeal recently upheld an (until now) confidential decision made by the Lands Tribunal in 2002 that may affect parties seeking to obtain access rights across land, for example enabling redevelopment projects to go ahead.

It was revealed on Thursday 20 February that Railtrack Plc and London Underground Limited ("LUL") had demanded a £33,000,000 "ransom strip" payment from Guinness in return for granting access rights for a bridge to be built over their railway tracks at Park Royal, North West London. Herbert Smith acted for Guinness at both the Lands Tribunal and Court of Appeal stages.

Background

The bridge was to be built and partly funded by Guinness and its development partner, London and Regional Properties. It was a necessary part of a Government "Single Regeneration Budget" publicly-funded access road supporting the regeneration of Western Park Royal area. The bridge’s purpose was to link that area direct with the A40 Westway. As the bridge would cross over Railtrack/LUL’s land, their consent was needed before the bridge could be built. However, they refused to grant access rights without payment. After failed negotiations, the matter was referred to the Lands Tribunal.

It is now possible to reveal that the Tribunal only awarded Railtrack and LUL a total of £5 million, to be shared between them. This followed a confidential 21 day hearing in 2001 that included a demand for payment by Railtrack/LUL of over £33 million, and evidence from 25 witnesses. In a 300-paragraph Tribunal decision, Railtrack/LUL were also denied their costs of the proceedings; their approach being seen by the Tribunal as "lacking restraint and judgment". Railtrack (but not LUL) appealed against the Tribunal’s decision.

The Law – the "Willing Seller" issue

The Tribunal decided the value of the access rights using a "residual valuation" approach: it assessed the hypothetical (i.e. future) value of the fully redeveloped Park Royal land assuming the benefit of the new access rights. It then deducted the likely construction and other costs needed to achieve that redevelopment. Finally, it compared that net figure with the value of the land without the access rights. The difference between those two sums was the sum attributable to the grant of the access rights, 50% of which was treated as Railtrack/LUL’s entitlement, namely £5 million.

In assessing the hypothetical value of the land, the Tribunal considered Section 5(2) of the Land Compensation Act 1961. This stated that:

"the value of the land shall… be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise" (emphasis added).

Railtrack’s Appeal

Railtrack alleged that the Tribunal had wrongly taken into account the personal attributes of Railtrack/LUL as "seller" of the access rights, when these should have been ignored for the purposes of the hypothetical transaction. The Tribunal had assumed a sale of the access rights by "a company regulated and subsidised by central government and subject to the political pressures as were [Railtrack/LUL] themselves". Railtrack alleged that the Tribunal took too much account of Railtrack/LUL’s "particular corporate characteristics and their particular financial position and control". Railtrack argued that the Tribunal should not have treated the hypothetical seller of the access rights as having any such attributes when assessing the price for which the seller would sell.

This point was especially important for Railtrack as the Tribunal had heard evidence of the commercial negotiations in 1999 that had preceded the Tribunal referral. In those negotiations, Railtrack had made an offer to sell the access rights for only £9.7 million, which Guinness had then turned down. Railtrack had then argued before the Tribunal that this had not in fact been a genuine offer at all but simply a "tactical ploy", an argument that the Tribunal rejected.

Railtrack also alleged in a second ground of appeal that the Tribunal had erred in its allowances for the developers’ profit and future risk.

Court of Appeal’s Decision

Railtrack’s appeal was dismissed on both grounds and the Tribunal’s original award was upheld. The Court of Appeal supported Guinness’ response that the Tribunal was correct in taking into account the fact that the access rights were over a railway line. The Tribunal was right not to ignore the fact that the "willing seller" for the purposes of the hypothetical transaction would have to be a railway infrastructure company.

The Court of Appeal also supported the factual findings of the Tribunal that Railtrack had not, in fact, been influenced by political pressure in the negotiations anyway, and that the Tribunal could rightly take Railtrack’s £9.7m offer into account as part of their overall evaluation of the evidence.

The Court of Appeal went on to refuse Railtrack’s application for permission to appeal to the House of Lords, and awarded the costs of the appeal against Railtrack.

Comment

This appeal judgment confirms the approach that should be adopted when carrying out hypothetical valuation exercises involving the assumption of a "willing seller", and in particular the extent to which personal attributes of the parties should be taken into account. From a wider perspective, it also provides an interesting insight into the earlier Tribunal hearing and Railtrack/LUL’s stance in ransom strip negotiations.

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

 


To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.