The Public Statutes Relating to Railways in Scotland

1889

solicitor. The application shall be according to Form No. 1 in the First Schedule hereto, or to the like effect.

3. Every application made to the commissioners under section 6 of The Regulation of Railways Act, 1873, or section 9 of The Railway and Canal Traffic Act, 1888, shall be for an order enjoining the company complained of to do or to desist from doing the acts therein specified.

4. Every application made to the commissioners under section 8 of The Regulation of Railways Act, 1873, shall be for an order determining the difference referred to them (with their consent) in lieu of being referred to arbitration, such consent to be signified by sealing the indorsement on such application; which indorsement shall be according to Form No. 3 in the First Schedule hereto. The applicant shall state whether or not it is a case in which any arbitrator has in any general or special Act been designated by his name or by the name of his office, or in which a standing arbitrator has been appointed under any general or special Act.

5. Every application made to the commissioners under section 9 of The Regulation of Railways Act, 1873, shall be signed by all the parties to the difference, or their solicitors, and shall be for an order determining the difference referred to the commissioners (with their consent). The consent of the commissioners shall be signified as aforesaid.

6. Every application made to the commissioners under section 10, subsection 1, of The Regulation of Railways Act, 1873, shall be for the approval by the commissioners of any working agreement between railway companies, whereof they desire to have the commissioners' approval; or shall be for the exercise of any other powers (to be specified in the said application) transferred by the said sub-section to the commissioners with respect to the approval of working agreements.1

1 The public notice required to be given by the railway companies should be according to Form No. 9 of Schedule I., and the commissioners' directions prescribing the steps to be taken to obtain their approval of working agreements are set out in Schedule IV.

7. Every application made to the commissioners under section 25, subsection 4, of The Railway and Canal Traffic Act, 1888, shall be for an order allowing the through rate or route, or through rate and route proposed by the applicant and objected to by the forwarding company or companies.

8. Every application made to the commissioners under section 25, subsections 6 and 7, of The Railway and Canal Traffic Act, 1888, shall be for an order allowing or determining (as the case may be), the apportionment of the through rate objected to by the forwarding company or companies.

9. Every application made to the commissioners under section 14 of The Regulation of Railways Act, 1873, and under sections 33 and 34 of The Railway and Canal Traffic Act, 1888, may be by summons, and shall be for an order upon the Company, against whom the application is made to keep at the stations, wharfs, or ports named in such summons, a book or books of rates and distances, and other particulars required by those sections or either of them, or for an order allowing inspection of such books, or for an order to distinguish in the book or books in such summons mentioned, how much of the rate in respect whereof the application is made, is for the conveyance of the particular description of traffic therein named on the railway or canal in question, including therein tolls for the use of the railway or canal, for use of carriages or vessels, or for locomotive or other tractive power, and how much is for other expenses, specifying the nature and detail of such other expenses. The applicant in such last-mentioned case shall file an affidavit at the time of taking out such summons, stating that he is interested in the matter, and showing how he is interested therein.

10. Every application made to the commissioners under section 15 of The Regulation of Railways Act, 1873, or under section 37 of The Railway and Canal Traffic Act, 1888, shall be for them to hear and determine the question or dispute therein mentioned, with respect to the terminal charges of the company against whom the application is made, and to decide what is a reasonable sum to be paid to such company in respect of such terminal charges.

11. Every application made to the commissioners under section 16 of The Regulation of Railways Act, 1873, shall be for them to sanction the agreement therein mentioned, such sanction to be signified by certificate under their seal. Before the companies enter into such agreement, notice of their intention to do so shall be given by them, or one of them, by advertisement to be inserted once at least in each of three successive weeks in some newspaper published or circulating in the county or counties in which the canal, to which the proposed agreement relates, or some portion of such canal, is situate. Such notice shall be according to Form No. 8 in the First Schedule hereto.

12. Every application made to the commissioners under section 17 of The Regulation of Railways Act, 1873, shall be for an order upon the railway company, against whom the application is made, restraining them from permitting and suffering the canal therein mentioned, or parts thereof, or works belonging thereto, to remain unrepaired, or in want of dredging, or not in good working condition, or without proper supplies of water thereto; and also enjoining them to keep and maintain the said canal or such parts thereof, or such works thereto belonging, thoroughly repaired or dredged or in good working condition, or to preserve the supplies of water to the same. The application in such case shall specify the obstruction, want of repair, or other defect sought to be remedied, and show in what part of the canal or works such obstruction, want of repair, or other defect exists.

13. Every application made to the commissioners under section 10 of The Railway and Canal Traffic Act, 1888, shall be for them to hear and determine the question or dispute therein mentioned with respect to the legality of any toll, rate, or charge, or portion of a toll, rate, or charge charged, or sought to be charged by any company for merchandise traffic. The parties may concur in stating such question or dispute in the form of a joint application without further pleadings.

14. Every application by a company under section 20, sub-section 3, of The Railway and Canal Traffic Act, 1888, shall be for an order determining whether the group rate, or the rate as to which there is a doubt, is or is not a contravention of section 2 of The Railway and Canal Traffic Act, 1854, and in any such application, the company applying shall state the nature of the doubt considered to exist.

Where such an application is in respect of a group rate it shall specify, in addition to the amount of the rate, the names of the places grouped together, and such distances as may be material for the purposes of the application.

The company making the application for such order, shall give one month's public notice of their intention to apply to the commissioners under this section, by advertisement in at least one London daily newspaper, and in one newspaper in general circulation in the district or districts within which the group is comprehended; such advertisement shall in each case be inserted in each of three successive weeks, at intervals of not less than a week, in each of the newspapers in which they appear. In such notice full particulars shall be given of the group rate, or the rate or rates as to which the commissioners' determination is to be asked.

15. Every application to the commissioners under section 38, sub-section 1,

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of The Railway and Canal Traffic Act, 1888, shall be for an order on the railway company, or on the directors or officers of the railway company, or on any person acting on their behalf, and having such control or right of interference as mentioned in the said section, requiring the tolls, rates, and charges levied by such railway company, directors, officers, or persons on the traffic of, or for the conveyance of merchandise on, the canal in respect of which the complaint is made to be altered and adjusted in such a manner, that the same shall be reasonable as compared with the rates and charges for the conveyance of merchandise on the railway. The applicant shall state in what manner the existing tolls, rates, and charges so levied as aforesaid are calculated to divert traffic from the canal to the railway to the detriment of the canal, or of persons sending traffic over the canal or other canals adjacent to it, and shall state the amount and the particulars of the alteration or reduction proposed.

16. Differences under section 19 of Regulation of Railways Act, 1873, The Board of Trade Arbitrations Act, 1874, and The Telegraph Act, 1878.-The procedure in cases under the following Acts shall be in each case, as nearly as may be, the same as that directed to be taken by Rule 4 of these Rules, in proceedings under the 8th section of The Regulation of Railways Act, 1873. (a) Differences between the Postmaster-General and any company, referred to the commissioners under the provisions of section 19 of The Regulation of Railways Act, 1873.

(b) Differences referred to the decision of the commissioners by the Board of Trade under the provisions of Part 2 of The Board of Trade Arbitrations Act, 1874.

(c) Differences required by sections 4 and 5 of The Telegraph Act, 1878, to be referred to the decision of the commissioners.

17. Reference under Cheap Trains Act, 1883.-When the Board of Trade, under the provisions of section 3 of The Cheap Trains Act, 1883, have referred any matters contained in the said section for the decision of the commissioners, the railway company or companies concerned shall, on receiving notice from the commissioners to do so, file an answer within such time as the commissioners may order, to the allegations contained in the order of the Board of Trade referring the matter as aforesaid.

CLAIMS FOR DAMAGES.

18. Damages, how claimed.-If the applicant, in any matter which the commissioners have jurisdiction to hear and determine, claims damages from the defendant; he shall in such case state in his application the amount of damages claimed, and the matter in respect of which such claim is made, and the defendant may before or at the time of delivering his answer, or, by leave of the commissioners, at any later time, pay into court a sum of money by way of satisfaction, which shall be taken to admit the matter in respect of which the payment is made; or the defendant may, with an answer denying liability, pay money into court. If the defendant, in any matter which the commissioners have jurisdiction to hear and determine, desire to have all claims for damages in respect of such matter dealt with by the commissioners, he shall make such claim in his answer, or, by leave of the commissioners, at any subsequent stage of the proceedings.

The provisions of Rules 2, 3, 4, 5, 6, and 7 of Order 22 of the Rules of the Supreme Court, 1883, and the forms required to be used in such rules shall, mutatis mutandis, apply to and be used in all proceedings in this rule provided for.1

1 The provisions of the rules and the forms referred to are set in Schedule II.

Money paid into court in applications made to the commissioners in English cases, shall be paid into the Bank of England (Law Courts Branch), and the manner of payment into and out of court, and the manner in which money in court shall be dealt with, shall be subject to the regulations contained in the Supreme Court Funds Rules, in force for the time being so far as the same are applicable.

Money paid into court on applications made to the commissioners in Scotch cases, shall be paid into one of the incorporated or chartered banks in Scotland.

Money paid into court on applications made to the commissioners in Irish cases shall be paid into the Bank of Ireland.

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FILING APPLICATION.

19. Filing application at the commissioners' office.-Every application to which any of the foregoing rules apply shall be indorsed as required by Rule 2, and filed with the registrar to the commissioners (hereinafter in these Rules called "the registrar ") at their office, and except in cases under sections 10 and 16 of The Regulation of Railways Act, 1873, three copies of the application shall also be left with the registrar. The registrar shall make out a list of the applications so filed according to the order in which they are received by him, and such list may be inspected at the office during office hours. The applications shall be heard by the commissioners, so far as it may in their judgment be practicable, according to the order in which they are so entered upon the list.

INDORSEMENT ON APPLICATION.

20. Indorsement upon application. In all proceedings (except proceedings under sections 8, 9, 10, and 19 of The Regulation of Railways Act, 1873, and subject to Rule 22 of these Rules) a copy of the application shall be indorsed, with a notice to the defendant to put in an answer to the application within fifteen days from the service thereof, and that in default of such answer being put in within the time named, or any extension thereof duly granted, the commissioners may proceed to hear the said application ex parte. Such indorsement shall be according to Form No. 2 in the First Schedule hereto, and shall be sealed by the registrar with their seal.

SERVICE OF APPLICATION.

21. Service of application.-A copy of the application indorsed as aforesaid shall in all cases (except under sections 9 and 10 of The Regulation of Railways Act, 1873, and subject to Rule 22 of these Rules) be served by leaving the same with the manager, secretary, or chief clerk of the defendant at his principal office in any part of the United Kingdom, or in such manner as the commissioners by special order may direct, but no such personal service shall be necessary when the defendant's solicitor or agent undertakes in writing to accept service of such copy on his behalf.

SUSPENSION OF PROCEEDINGS.

22. Communication by commissioners to company complained of.-If the commissioners think fit, in pursuance of section 7 of The Regulation of Railways Act, 1873, to communicate an application to the company against whom

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it is made, so as to afford them an opportunity of making observations thereon before requiring or permitting any formal proceedings to be taken thereon, they shall give notice thereof to the applicant within seven days from the date of the application having been left at their office, and thereupon all formal proceedings thereon shall be suspended until further notice from the commissioners to the applicant.

23. Commissioners requiring further information. The commissioners may also within the said period of seven days, or at any time thereafter, require further information or particulars or documents from the applicant, and may suspend all formal proceedings upon the application until satisfied in this respect.

24. Inquiries under the Act of 1854.-If the commissioners at any stage of the proceedings think fit to direct inquiries to be made under section 3 of The Railway and Canal Traffic Act, 1854, they shall give notice thereof to the parties to the application, and may stay proceedings, or any part of the proceedings thereon, until further notice from the commissioners.

CONSENT CASES.

25. Parties dispensing with formal proceedings.—In all cases the parties may, by consent in writing, dispense with the formal proceedings hereinafter mentioned, or some portion of them, and orders by consent may be drawn up, and, if approved of by the commissioners, may be sealed with their seal.

ANSWER.

26. Form of, and time for filing and delivery.—Within 15 days from the service of the application, or within such shorter or extended time as may be fixed by the commissioners, the defendant shall file, with the registrar, their answer to the application, and leave with him three copies of the same, and the defendant shall, within such time, deliver to the applicant or to his solicitor a signed copy of the answer. The answer shall contain a clear and concise statement of the facts which form the ground of defence, or of any other objections relied upon. It may admit the whole or any part of the facts stated in the application. It shall be divided into paragraphs numbered consecutively, and it shall be signed by the person actually making the same, and who is acquainted with the facts stated therein. It shall be indorsed with the name and address of the defendant, and if there be a solicitor acting for him in the matter, with the name and address of such solicitor, and if he be an agent for another solicitor in the matter, then also with the name and address of such other solicitor. It shall be according to Form No. 4 in the First Schedule hereto, or to the like effect.

REPLY.

27. Form of, and time for filing and delivery.-Within six days from the delivery of the answer to the applicant, or within such shorter or extended time as may be fixed by any special order of the commissioners, the applicant shall file his reply (if any) with the registrar, and leave with him three copies of the same, and shall within such time deliver to the defendant or to his solicitor a copy of the reply. The applicant, in such reply, may object to the said answer as being insufficient, stating the grounds of such objection, or deny the facts stated therein, or may admit the whole or any part of such facts. The reply shall be signed by the applicant, his solicitor, or agent, and be according to Form No. 5 in the First Schedule hereto, or to the like effect.

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The Public Statutes Relating to Railways in Scotland: With Appendix ...