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Upper Tribunal (Lands Chamber) Advises on Scope for Tomlin Order Terms in the Final Settlement of Statutory Compensation Claims

Juan Lopez

The Upper Tribunal (Lands Chamber) (Judge Elizabeth Cooke), by consent, has disposed of references arising from statutory compensation claims brought against Network Rail Infrastructure Limited, as Compensating Authority, in respect of agreements made under the Railway Regulation Act 1842 and under licences dating from 2013. The claimant was a licensee of land used for fishing activities and had argued interference to land and business caused by urgent infrastructure works carried out by Network Rail.

During a case management hearing for disposal of all claims, Judge Cooke explained a pragmatic, working preference of the Tribunal – taking full account of its jurisdictional competence under the Upper Tribunal (Lands Chamber) Rules 2010, including under Rule 5(3)(j) (case management; power of staying) and Rule 50(1) (consent orders) – not to ‘keep references alive’ by way of Tomlin Order terms, merely to allow for subsequent enforcement (whether by order for payment, specific performance or compensation claim) in circumstances where the parties’ relationship is already governed adequately by separate licence agreements, fully enforceable by the Court in separate proceedings. This was especially in light of powers such as the power to withdraw a reference and to subsequently apply to reinstate under Rule 20(4). Prejudice to the parties’ interests was also a material consideration. 

In final settlement, the Compensating Authority agreed to undertake permitted works of remediation and reinstatement in respect of land under the licensee’s control, including to sections of river bank and other fishing areas subject to the Claimant not preventing or restricting access.

Juan Lopez acted for Network Rail Infrastructure Limited.