SCHEDULES
SCHEDULE 14PROTECTIVE PROVISIONS
PART 4FOR THE PROTECTION OF RAILWAY INTERESTS
Interpretation
schedule 14 paragraph 42 42.—(1) The undertaker must pay to the Company all reasonable and properly incurred costs, charges, damages and expenses not otherwise provided for in this Part of this Schedule (but subject always to the remaining provisions of this paragraph and to article 67 (no double recovery) which may be occasioned to or reasonably incurred by the Company—
schedule 14 paragraph 42 1 a (a)by reason of the construction or maintenance of a specified work or a protective work or the failure of it; or
schedule 14 paragraph 42 1 b (b)by reason of any act or omission of the undertaker or of any person in the undertaker’s employ or of the undertaker’s contractors or others whilst engaged upon a specified work or a protective work,
and the undertaker must indemnify and keep indemnified the Company from and against all claims and demands arising out of or in connection with a specified work or a protective work or any such failure, act or omission; and the fact that any act or thing may have been done by the Company on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the engineer’s supervision will not (if it was done without negligence on the part of the Company or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under the provisions of this sub-paragraph.
(2) The Company must—
schedule 14 paragraph 42 2 a (a)give the undertaker written notice of any such claims or demands as soon as reasonably possible after the Company became aware of any such claims or demands;
schedule 14 paragraph 42 2 b (b)not admit liability or make any offer to settle or settle or compromise any such claim or demand without the prior consent of the undertaker (which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand);
schedule 14 paragraph 42 2 c (c)take all reasonable steps to mitigate any liabilities relating to such claims or demands; and
schedule 14 paragraph 42 2 d (d)keep the undertaker informed in relation to the progress of any such claims and demands and pay due regard to the undertaker’s reasonable representations in relation to them.
(3) In no circumstances is the undertaker liable to the Company under sub-paragraph (1) for any indirect or consequential loss or loss of profits, except that the sums payable by the undertaker under that sub-paragraph include a sum equivalent to the relevant costs in circumstances where—
schedule 14 paragraph 42 3 a (a)the Company is liable to make payment of the relevant costs pursuant to the terms of an agreement between the Company and a train operator; and
schedule 14 paragraph 42 3 b (b)the existence of that agreement and the extent of the Company’s liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the undertaker, but not otherwise.
(4) Subject to the terms of any agreement between the Company and a train operator regarding the timing or method of payment of the relevant costs in respect of that train operator, the Company must promptly pay to each train operator the amount of any sums which the Company receives under sub-paragraph (3) which relates to the relevant costs of that train operator.
(5) The obligation under sub-paragraph (3) to pay the Company the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator under sub-paragraph (4).
(6) In this paragraph—
term the relevant costs “the relevant costs” means the costs, direct losses and expenses (including loss of revenue) properly and reasonably incurred by each train operator as a consequence of any restriction of the use of the Company’s railway network as a result of the construction, maintenance or failure of a specified work or a protective work or any such act or omission as mentioned in sub-paragraph (1); and
term train operator “train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 (licences) of the Railways Act 1993.