“to provide such that operators both individually and collectively are no better and no worse off financially than they would be if they did not participate in the [Arrangements] in accordance with the principles set out in the [Regulations]”, subject to TFWM not being liable for any failure to achieve such objective. iv) Paragraph 16 of the 2000 Act Arrangements provided that: “The standard method for assessing the total number of journeys made by eligible persons under the Arrangements is set out in Schedule 2. The standard method for assessing the fares value to be attributed to those journeys is set out in Schedule 3. The standard method for calculating the reimbursement for revenue forgone due to the operator will be on the basis of the formula and parameters set out in Schedule 4. The standard method for calculating any costs additional to basic operating costs is set out in Schedule 6.” v) Paragraph 17 of the 2000 Act Arrangements then provided that: “In calculating the reimbursement due to the operator, the Authority will take into account any data supplied by the operator if it can be shown that the data supplied is more accurate than the standard method and is more likely to enable the Authority to meet the applicable, ‘no better, no worse’ objectives for reimbursement set out in the [Regulations] and EU Regulation 1370/2007.” vi) Schedule 3 to the 2000 Act Arrangements sets out the “standard method” of determining the average fare that would be paid in the absence of the concession. This involves determining the “Average Cash Fare”, i.e., what passengers would have paid in cash for each journey, and to then apply a “Discount Factor”, the principal determinants of which are the relative prices of cash fares, daily tickets and weekly tickets as described in Department of Transport guidance (“DfT Guidance”). Operators are required to provide four specified values of data with regard to cash fares, daily tickets and weekly tickets to be used to estimate the average cash fare paid by commercial passengers for each journey, and the average price per ticket of daily and weekly tickets respectively (paragraph 4 of Schedule 3). Paragraph 5.1 of Schedule 3 then provides that the four values are to be input into a spreadsheet which draws on the data included in the DfT model or other local data if more applicable (“the Look-up table”) to populate a DfT Discount Factor calculation. Paragraph 5.1 provides that the specific values in the Look-up table are locally derived from all smart card concessionary journeys originating in the Principal Area over a representative time period. In this way the Discount Factor is arrived at, which is then applied to the Average Cash Fare to arrive at the “Average Fare Forgone”. vii) Schedule 4 to the 2000 Act Arrangements then sets out the “standard method” for determining “Revenue Forgone”
“if it can be shown that the data supplied is more accurate than the standard method and is more likely to enable [TfWM] to meet the applicable “no better, no worse” objectives for reimbursement.”
“a) Data period – 2018/2019 and 2019/2020. b) Data limited to just those passengers who used a DBL Service during the data period. c) Anonymised data at passholder level showing (1) journeys’ during the relevant periods and (2) the services taken (including point of boarding). d) To facilitate iii), passholder numbers showing, each time a pass was used, (1) date and time; (2) service number and operator; (3) use on each operator’s services; and (4) point of boarding.”
“31.16 (1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where– (a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs. (4) An order under this rule must – (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require him, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.” (a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs. (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require him, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.”
“i) The respondent and applicant must both be likely to be parties to subsequent proceedings. It is not however necessary to show in addition that the initiation of such proceedings is itself likely: Black v Sumitomo Corp[2002] 1 WLR 1562 at [71 – 72], Rix LJ, which is the leading case on the rule. ii) The documents sought must fall within the scope of the standard disclosure which the respondent would have to give in the anticipated proceedings. It follows that at the time of the application, the issues must be sufficiently clear to enable this requirement to be properly addressed. iii) Disclosure before proceedings have started must be desirable (i) to dispose fairly of the anticipated proceedings, (ii) to assist the dispute to be resolved without proceedings, or (iii) to save costs:CPR 31.16 (3)(d). iv) In considering whether to make an order, among the important considerations are the nature of the loss complained of, the clarity and identification of the issues raised by the complaint, the nature of the documents requested, the relevance of any protocol or pre-action inquiries, and the opportunity which the complainant has to make his case without pre-action disclosure (Black v Sumitomo Corp at [88]). v) The anticipated claim must have a real prospect of success. vi) In the commercial context, a pre-action disclosure order, even if not exceptional, is unusual.”
“76 Based on DfT's guidance, it is TfWM's view that the accuracy of the Look-up table used for calculating Average Fare Foregone increases with the amount of data that is included. As such the current approach used by TfWM is to use data based on the entire West Midlands area passenger data. DBL's Average Fare Foregone claim, as set out in its draft Particulars of Claim, is based on an assumption by DBL that demand from concessionary fare passengers is lower on its services than the average demand from concessionary fare passengers for all bus operators across the West Midlands areas. The level of demand from concessionary fare passengers plays a significant role in the calculation of a number of elements of reimbursement under the scheme, not just in the calculation of the Average Fare Foregone. If the disclosure of the requested information supports the assumption that demand on DBL's services is lower, and Oxera produce an updated Look-up table to reflect this, with a higher Average Fare Foregone, the lower demand would mean that DBL would be entitled to lower reimbursements in relation to other elements of the Scheme reimbursement calculations. By way of an example the base level of demand used within the generation factor element of the reimbursement calculations under the Scheme is based on averages across the West Midlands area. If DBL's demand is lower than average, then this would need to be applied to this element of the reimbursement calculations. The result of this would be a smaller number of journeys paid at the Average Fare Forgone cost rate and larger number at marginal cost rate, reducing the reimbursement rate and therefore overall level of reimbursement that DBL receive. 77 Accordingly, if TfWM were to accept an alternative look up table produced by Oxera, then it would also be necessary to recalculate wider elements of reimbursement under the Scheme Arrangements. It is for this reason that TfWM consider that the Average Fare Foregone dispute should be determined by an independent under the Dispute Resolution Procedure, looking at the calculations as a whole. On that basis, it is therefore unlikely that disclosure of the data and production of a further Look-up table in relation to one element of reimbursement under the scheme will be of use to the parties in either disposing of or narrowing the Average Fare Foregone Dispute as it will not capture the wider ramifications of such changes to reimbursement as a whole.”
“(a) the fares value to be attributed to journeys by persons eligible to receive concessions on the operators (sic) eligible services covered by the Arrangements.”