Members might be interested in Conarken Group Limited and anor v Network Rail Infrastructure Limited [2011] EWCA Civ 644, where the English Court of Appeal has considered, in a long and detailed judgment, the question of the effect of a contract between D and a 3P on the recoverability of losses caused to D as a result of P's negligence.

Briefly, the facts were these. As a result of the privatisation of the railway network in the UK, the respondent, Network Rail, is responsible for owning and maintaining the railway track, while train services are provided by companies known as Train Operating Companies (TOCs). The contracts between Network Rail and the TOCs (known as Track Access Agreements) provided that Network Rail would be liable to the TOCs for the continuing availability of the track, and would have to pay them sums calculated according to an agreed formula in respect of periods during which the track is unavailable (what were known as "Schedule 8 payments"). The negligence of the appellants resulted in part of the rail network becoming unavailable due to physical damage to the track or surrounding infrastructure. As a result, Network Rail became liable to make Schedule 8 payments to various TOCs under the Track Access Agreements, and it sought to recover these losses from the appellants. The question for the Court of Appeal was whether these payments were too remote to be recovered in the tort of negligence.

The Court of Appeal (Pill, Moore-Bick and Jackson LJJ) unanimously decided that the Schedule 8 payments were not too remote, though the emphasis of the three judgments differs.

Kind regards,

Colin