Well, quite. The couple have made a few human rights style claims. If they believe the trials haven't been conducted fairly, they may look to escalate further.
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Altnabreac station and the various legal disputes around it
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Xenophon PCDGS
Veteran Member
I am beginning to wonder if the couple in question feel that they will carry on their legal submissions similar to the Macbeth saga of "until Birnam Wood comes to Dunsinane".... 
Again, have more detailed notes, but the summary of the first ~30 minutes is that Howe has brought a motion this morning to submit more evidence and also continue proceedings in order to give time for the evidence to be reviewed. This is on the basis that they have some recordings which contradict what the Network Rail witness said yesterday, and that it was unavoidable that they bring a motion for this because it was unforeseeable that the witness yesterday would respond to questioning in the way he did.
The motion was opposed by EE's counsel. There was some discussion about what specifically in this recording relates to what specifically was said yesterday, and also whether the recording was made covertly or overtly. Broadly speaking it relates to authorised users or the level crossing, locks, etc.
Lord Lake has gone away to consider this motion.
I won't give my opinion on this, not that I imagine Lord Lake is reading this thread for it to influence his decision!
We will hopefully find out shortly if the can is to be kicked a bit further or not.
== Doublepost prevention - post automatically merged: ==
The motion is refused, on a number of grounds from delays, could've been lodged earlier, inability to verify authenticity, and irrelevance to evidence being currently considered. The case continues...
The motion was opposed by EE's counsel. There was some discussion about what specifically in this recording relates to what specifically was said yesterday, and also whether the recording was made covertly or overtly. Broadly speaking it relates to authorised users or the level crossing, locks, etc.
Lord Lake has gone away to consider this motion.
I won't give my opinion on this, not that I imagine Lord Lake is reading this thread for it to influence his decision!
We will hopefully find out shortly if the can is to be kicked a bit further or not.
== Doublepost prevention - post automatically merged: ==
The motion is refused, on a number of grounds from delays, could've been lodged earlier, inability to verify authenticity, and irrelevance to evidence being currently considered. The case continues...
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While I agree that they are timewasters, I can't bring myself to hoping that they lose everything but rather find myself having some pity and fearing that outcome.
Had they only listened to reason to start with, rather than digging themselves in through sheer obstinacy their now inevitable seeming demise could have been avoided.
And also to put off the evil day when you have to bankrupt yourself. And once you know you're bankrupt, does it matter if you are £1 in debt, or £1m in debt?
SuspectUsual
Established Member
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I bear no ill will against them, but I hope they are held accountable in exactly the same way as anyone else would be, and if that means they lose everything then so be it
That’s why I would favour bankruptcy not being an option where the debt is wilfully and recklessly or criminally incurred (not that I’m suggesting the last or those applies in this case - though IIRC there is a criminal case somewhere in there, for which I guess a fine might be a possible penalty).
By wilfully and recklessly I mean continuing to pursue / ignore a course of action when formally advised to do the opposite by a qualified, registered (where appropriate) professional in the relevant field.
The level crossing manager witness has finished his bit. That's nearly a full day he's given evidence.
Just before lunch, the couple argue that they should be allowed to effectively withdraw their existing submissions, which would mean no cross-examination, and the decision of the court be determined by the submissions of the pursuer and the cross-examination taken place so far; because Lord Lake had excluded two paragraphs regarding locking the crossing, which the couple believe to be core. Lord Lake gives the couple, and EE's counsel (who are entitled to object to this measure), lunchtime to consider whether this is desirable and how they wish to proceed.
Just before lunch, the couple argue that they should be allowed to effectively withdraw their existing submissions, which would mean no cross-examination, and the decision of the court be determined by the submissions of the pursuer and the cross-examination taken place so far; because Lord Lake had excluded two paragraphs regarding locking the crossing, which the couple believe to be core. Lord Lake gives the couple, and EE's counsel (who are entitled to object to this measure), lunchtime to consider whether this is desirable and how they wish to proceed.
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Continuing thanks to @styles for their court reporting!
norbitonflyer
Established Member
A big corporation which, in this case, was installing infrastructure for the benefit of the community.
And which many of you will be customers - giving in to legal actions on a regular baisis will affect their bottom line and thus their prices to their customers, of which I am one
And as its a plc, also their share price - some of us (or more likely our pension funds or other investments) will be shareholders.
Oh, don't get me wrong. Any and everything that's coming to them was invited by them, and has been well earned.
The reason that I have some pity towards them is because I suspect that when they started digging the hole it was due to ignorance, and they've only continued excavation due to the psychological traits that make it difficult to admit that they're in the wrong.
Yes, sometimes people believe that they have been wronged, even though in law they haven't, and there is no legal basis for 'correcting' that wrong.
on whose part?
Tetchytyke
Veteran Member
Again, no comment on the ongoing case, but it's a strategy used frequently by people not wishing to perjure themselves.
The comments on a thread here from someone who was clearly very close to the couple were illuminating. They'd seen that the platform and house were once part of the same parcel of land and so seemingly decided that this meant they were still part of the same parcel of land. They then seemingly tried to extract access fees from EE.
So lots of ignorance, yes, but quite a bit of greed too.
Lord ordinary excludes averments on title to railway crossing in interdict action over contested phone mast installation
A lord ordinary has excluded from proof a series of averments in a dispute between a telecoms company and a couple living in a former railway cottage over the proposed installation of a mast approximately half a kilometre from their property in Caithness concerning the ownership of a private level c
www.scottishlegal.com
SargeNpton
Established Member
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Did However ask any other users of the crossing to enter into an access agreement prior to EE attempting to use it? If not then there is a clear case for a right of way by historic use.
If (very heavily emphasised "if") the allegations about one or both of the defendants made on a rather bizarrely constructed web site - which I believe has been referenced on this thread in the past - are to be believed then it would not be first time that greed has been a motivation for the actions of said person or persons.
Not necessarily unexpected for someone who was a detective with GMP for 14 years.
TheWierdOne
Member
I would like to second this motion your honour
Now that everything has been heard by the relevant parties and summations are due in July... some more detailed notes (haven't had time to proofread or necessarily make fluent)...
Day 2
A contractor working on behalf of EE was the first witness. The bulk of the discussion was surrounding the events on the day the access was blocked at the level crossing. Not much of a debate was had really, but the contractor suggested Appleby's car hit one of the crossing barriers and was close to injuring him; there was a little back and forth about whether Appleby swore at the contractor, which wasn't in his witness statement. Ultimately the contractor got paid, because access or not, he gets paid either way. So that's presumably in EE's claim. I got the impression, but this is obviously subjective, that he was trying quite hard not to laugh.
Howe was prevented from asking the second witness, a sheriff officer, in-person, who served papers on the couple requiring them to remove barrier fences, vehicles, tarps; about legal questions relating to interlocuters he may not be able to answer.
"What's the point of asking over and over if he says he can't give a clear answer?", being a particularly blunt interruption from Lord Lake in response to a question from Howe regarding whether the witness peered through windows when there was no answer at the door.
It appears, if everything stated is believed, that somebody erected a fence blocking the forestry track, which was then removed by the witness. Howe questions whether any photographic evidence of this exists, to which the witness says no, but admits that in hindsight it maybe would be a good idea. It is clarified by Howe that tarps, tools, etc were not seen by the sheriff officer, which is agreed.
There is a short interruption as a train goes past. Tres exciting.
A brief discussion is had about a trail camera which Howe says they informed the sheriff officer of on the day he removed the fence. The previous owners of the station cottage apparently approached the sheriff officer and stated that they owned the land and that the camera belonged to them. The previous cottage owners are alleged to have taken the trail camera, witnessed by the sheriff officer who maintains he didn't have authority to stop anybody from taking it and wasn't aware whose property it was.
Another intervention from Lord Lake that repeatedly asking the witness the same question about authority to remove property and quality of evidence isn't really on.
"You've asked this three times already. How many more times are we going to ask it before you get a clear answer?". I think Lord Lake is not pleased.
Appleby has a few questions about the specifics of the arrangement of the fence, the position, the number of stakes used, etc. For the most part the witness says they can't recall. Lord Lake reminds Appleby that this is an opportunity for asking questions about evidence presented to the court, not one for presenting new evidence. We are shown a photo from yesterday's hearing which shows the barrier fence and there's some to-and-fro about the specifics of what was there on the day and what was removed.
Witness 3, in person, also a sheriff officer. We are shown a video of Appleby stood between the two gates on the level crossing, and refusing to move, claiming it's his land, as the locks are removed from the gates with an angle grinder. There are equivalences made with the Clearances. Interestingly, this video was seemingly made by the defendants but submitted as evidence by the pursuer. Much discussion is had about who owns which bit of land, gates, etc, and whether the sheriff officer had authority to cut the locks and access the land. His response is that he's a messenger-at-arms, and so any queries were relayed to the solicitor and the officer carried out actions under this information. Some questions also about whether the officer knew about the locks, given a locksmith attended, but asserted he did not have such knowledge, but that he had been told to take a locksmith. We are shown a photo of the couple sat on a yellow signal telephone pole blocking the crossing, though it's not clear when/if this had been installed/removed.
Witness number 4, WebEx, a telecoms worker, and some questioning about, given he had joined the WebEx yesterday and today, whether he had seen any of the previous witness testimonies, to which he says no. No questions for this witness from either side.
Witness 5, WebEx, telecoms programme manager. 4th September 2023 was to be phase 2 of works, installation of mast. Prelim visit 31st August - a vehicle allegedly followed up the track, first knowledge of mineral rights claim. A few questions from Howe but nothing too significant, just confirming the order of events in terms of contact the witness had with other parties.
Witness 6, WebEx, deployment delivery manager, BT. At the time they were a contractor and the abort costs listed from this statement alone are a bit over £40k, to perhaps give an indication of the scale of the total claim to be made.
Witness 7, WebEx, a level crossing manager from Network Rail. States that the line was constructed in the 1800s, believes the crossing was also constructed in 1800s, and says has documentation from at least 1978 in when gates etc had been widened. When asked if it could've been constructed later, says no. Questions about 19th February 2024 interaction at the level crossing. Appleby asks a few questions trying to assert if the witness remembers being recorded, notified he was being recorded, etc, to which he says he doesn't recall. Howe asks questions about the crossing manager's line management as well as their training for the role, and that they're aware of the ORR. Asked about the consequences of Network Rail not following a guideline issued by the ORR, an objection is raised, and Lord Lake disallows the question, but suggests questioning about a specific guideline or guideline breach would be dealt with as they come. Howe highlights that this witness was given sight of the couple's witness statements before he submitted his own statement; and that there was a discussion regarding the construction date of the crossing in the couples' statements, but the witness didn't submit evidence showing the date of construction of the crossing. Witness says he didn't think he'd need to submit such evidence. Objection is raised and Lord Lake states that what evidence to submit is the job of the solicitor, not the witness. Questioning continued after lunch until the end of the day, on everything from padlocking gates to their 4x4. This witness wasn't the most-prepared I'd say. The couple are effectively arguing that they're the sole authorised users of the crossing, and the witness doesn't appear to have a great answer to this.
Day 3
Day starts with a motion from Howe. Yesterday's NR witness couldn't answer a lot of the questions from Appleby and Howe, and they have (not-lodged) evidence which directly counters statements the witness made. Believes this evidence is material and brings into question the witness' evidence. The witness' statement was submitted a day before the hearing started which was the first time the couple would've seen it, yet the witness had had the opportunity to review the couples' statements. The need to rely on the not-lodged evidence the couple has is necessitated by the unforeseen nature of the witness' evidence yesterday. So the motion is a request to submit this evidence and then continue the case at a later date.
EE's counsel argues that this motion is a 'calculated ambush' on the witness and the pursuer. States that a while ago the witness clarified that he hadn't seen the dictaphone, so this isn't new information. Also that the recordings were discreet, which they expect to see more of. Opposes the motion based on authority and suggests if the motion isn't rejected, he should be given access to the recording to consider what is actually going to be presented.
Howe says the evidence relates to the witness' statements yesterday, including locks on the gates at the level crossing being changed; a phone call which apparently confirms whether or not the couple are the only authorised user on the Network Rail database, or if the forestry company are also named; and another regarding whether the witness had stated EE don't have authority to use the crossing.
Lord Lake points out that this witness isn't actually the person who decides some or all of these matters so whether he said one way or another isn't relevant.
Howe argues that their behaviour was based on information provided by Network Rail, so it is relevant.
Lord Lake interrupts as Howe puts forward an argument which is straying into submissions about who had access or not; the current conversation is about whether to accept the motion, not to debate the actual evidence being submitted.
Howe clarifies that the recordings weren't covert, but also that the recording itself includes telling the witness that the conversation was being recorded.
--
The motion is refused, on a number of grounds from delays, could've been lodged earlier, inability to verify authenticity, and irrelevance to evidence being currently considered. The case continues.
The remainder of the morning appeared to focus on a report of how a member of the public or signaller had reported having to lift the gate off its hinges to use the level crossing because the gate had been padlocked, the involvement of an NR mobile operations manager (MOM), the specific dates this was reported, the dates it was dealt with, how this incident is logged and tracked by Network Rail, etc. Howe focuses on whether an event occurred on the 22nd February or 23rd February, whether the control log was consulted in order to compile the witness statement, and this led to Howe casting doubt given discrepancies between the two. EE's counsel interjects when Howe suggests the witness had withheld information, and Lord Lake appears to agree that there's a different between not submitting, and withholding. The witness clarifies that there is no intentionally withheld information, and there's nothing being hidden from the control log, but the solicitor didn't ask for it. Howe says that the report came from themselves, not another party. The witness suggests he can actually open the control log right now to get an accurate version of events, which all parties agree to. I assume this is CCIL? Control log says that on 23rd, signaller advises member of public working for EE that members of the public are lifting off the hinges to use the crossing, and that he wouldn't have been the one to complete it, and that it's logged in realtime. Howe says that she and Appleby also made a similar report, witness doesn't recall that. It's agreed by both sides that a caution is put in place on the line, which involved speed restrictions. There is some to-and-fro about whether a line of questioning about what the MOM stated about the status of the crossing is relevant. Howe agrees to move on.
On a couple of casual tangents. Appleby has been absent from the video feed for most of the morning, which I suppose he's allowed to do. Howe appears to be in a dressing gown; personally if I were attending court, even remotely, I'd probably put a shirt on. Apparently it's 14 degrees Celcius in Altnabreac at the moment, so maybe a bit chilly, so maybe it's understandable. The couple have what appears to be a sort of soup couldron on the stove behind them which I quite like the look of, so I may be off to check Nisbets later today to see if I can get one. As I finish typing this, Appleby's shoulder reappears into the side of the video feed.
We are shown a still from a video of one side of the south side of the level crossing (the opposite side of the railway to the EE mast). The witness points out the pieces missing - the CC05Z sign, and the telephones, but the poles are there for them to be mounted. The video is then played, which shows Appleby carrying a chain, Howe, and someone in an orange hi-viz walking north->south across the level crossing. The witness can't identify the person in orange hi-viz owing to video quality (I agree with him on this - I had a better video feed than he did and I couldn't read anything on the hi-viz). Howe questions whether the absence of the signs and the telephones marries up with the crossing 'operating as designed' as the witness had in their statement. Lord Lake reiterates that this is a cross-examination of a witness statement, not to determine necessarily whether Network Rail's policies were being followed. Some discussion is had about Appleby carrying a lock and a chain, EE's counsel objects on the basis that this concerns excluded evidence, which is upheld by Lord Lake.
A bizarre situation occurs where a court staffer tries to zoom in on a video where we're trying to establish the text on the rear of an orange hi-viz jacket, upon Lord Lake's request, as if zooming in will somehow improve quality. This obviously doesn't work. The court resorts to going back a few video frames to try and get a better still but the answer is still no. Very much a live example of the 'ENHANCE' meme.
We move on to EE's examination of the witness. The witness confirms there, at least from memory, was at least one other authorised user of the crossing, and also that living near, but not on, the property of a crossing, may give that person authorised user status. The witness clarifiies that EE may have been invitees of said additional authorised user and that this is common practice. Some ORR guidelines on private crossings is referenced which says others may be given permission to use it; and also that, "Where there are a limited number of authorised users, the crossing may be locked by the infrastructure manaager and users provided with a key. Alternatively, users may provide their own locks." The witness proactively admits that this document wasn't issued to the defenders, but a separate private level crossing user guide was. We scroll down through the guide sent to Howe and it's clarified that nothing in the guide makes references to adding own locks. Also clarified that authorised users are allowed to delegate access to others, e.g. telecoms workers.
Just before lunch, the couple argue that they should be allowed to withdraw their submissions, which would mean no cross-examination, and the decision of the court be determined by the submissions of the pursuer; because Lord Lake had excluded two paragraphs from their two statements seemingly regarding locking the crossing, which the couple believe to be core. Lord Lake gives the couple, and EE's counsel, lunchtime to consider whether this is desirable and how they wish to proceed.
--
No cross examination of the couple so we move to the 15th July 11:30am for final submissions.. bold strategy, but there we are.
== Doublepost prevention - post automatically merged: ==
On the whole, while Lord Lake clearly had to intervene a few times with the couple, mainly Howe, I wouldn't rule out them having some success. The Network Rail witness got a full day of grilling about the specifics of authorised users of level crossings, locks, access, etc, and it wasn't a stand-out performance I have to say.
I guess it remains to be seen what each parties' summarising remarks are in a couple of weeks.
Day 2
A contractor working on behalf of EE was the first witness. The bulk of the discussion was surrounding the events on the day the access was blocked at the level crossing. Not much of a debate was had really, but the contractor suggested Appleby's car hit one of the crossing barriers and was close to injuring him; there was a little back and forth about whether Appleby swore at the contractor, which wasn't in his witness statement. Ultimately the contractor got paid, because access or not, he gets paid either way. So that's presumably in EE's claim. I got the impression, but this is obviously subjective, that he was trying quite hard not to laugh.
Howe was prevented from asking the second witness, a sheriff officer, in-person, who served papers on the couple requiring them to remove barrier fences, vehicles, tarps; about legal questions relating to interlocuters he may not be able to answer.
"What's the point of asking over and over if he says he can't give a clear answer?", being a particularly blunt interruption from Lord Lake in response to a question from Howe regarding whether the witness peered through windows when there was no answer at the door.
It appears, if everything stated is believed, that somebody erected a fence blocking the forestry track, which was then removed by the witness. Howe questions whether any photographic evidence of this exists, to which the witness says no, but admits that in hindsight it maybe would be a good idea. It is clarified by Howe that tarps, tools, etc were not seen by the sheriff officer, which is agreed.
There is a short interruption as a train goes past. Tres exciting.
A brief discussion is had about a trail camera which Howe says they informed the sheriff officer of on the day he removed the fence. The previous owners of the station cottage apparently approached the sheriff officer and stated that they owned the land and that the camera belonged to them. The previous cottage owners are alleged to have taken the trail camera, witnessed by the sheriff officer who maintains he didn't have authority to stop anybody from taking it and wasn't aware whose property it was.
Another intervention from Lord Lake that repeatedly asking the witness the same question about authority to remove property and quality of evidence isn't really on.
"You've asked this three times already. How many more times are we going to ask it before you get a clear answer?". I think Lord Lake is not pleased.
Appleby has a few questions about the specifics of the arrangement of the fence, the position, the number of stakes used, etc. For the most part the witness says they can't recall. Lord Lake reminds Appleby that this is an opportunity for asking questions about evidence presented to the court, not one for presenting new evidence. We are shown a photo from yesterday's hearing which shows the barrier fence and there's some to-and-fro about the specifics of what was there on the day and what was removed.
Witness 3, in person, also a sheriff officer. We are shown a video of Appleby stood between the two gates on the level crossing, and refusing to move, claiming it's his land, as the locks are removed from the gates with an angle grinder. There are equivalences made with the Clearances. Interestingly, this video was seemingly made by the defendants but submitted as evidence by the pursuer. Much discussion is had about who owns which bit of land, gates, etc, and whether the sheriff officer had authority to cut the locks and access the land. His response is that he's a messenger-at-arms, and so any queries were relayed to the solicitor and the officer carried out actions under this information. Some questions also about whether the officer knew about the locks, given a locksmith attended, but asserted he did not have such knowledge, but that he had been told to take a locksmith. We are shown a photo of the couple sat on a yellow signal telephone pole blocking the crossing, though it's not clear when/if this had been installed/removed.
Witness number 4, WebEx, a telecoms worker, and some questioning about, given he had joined the WebEx yesterday and today, whether he had seen any of the previous witness testimonies, to which he says no. No questions for this witness from either side.
Witness 5, WebEx, telecoms programme manager. 4th September 2023 was to be phase 2 of works, installation of mast. Prelim visit 31st August - a vehicle allegedly followed up the track, first knowledge of mineral rights claim. A few questions from Howe but nothing too significant, just confirming the order of events in terms of contact the witness had with other parties.
Witness 6, WebEx, deployment delivery manager, BT. At the time they were a contractor and the abort costs listed from this statement alone are a bit over £40k, to perhaps give an indication of the scale of the total claim to be made.
Witness 7, WebEx, a level crossing manager from Network Rail. States that the line was constructed in the 1800s, believes the crossing was also constructed in 1800s, and says has documentation from at least 1978 in when gates etc had been widened. When asked if it could've been constructed later, says no. Questions about 19th February 2024 interaction at the level crossing. Appleby asks a few questions trying to assert if the witness remembers being recorded, notified he was being recorded, etc, to which he says he doesn't recall. Howe asks questions about the crossing manager's line management as well as their training for the role, and that they're aware of the ORR. Asked about the consequences of Network Rail not following a guideline issued by the ORR, an objection is raised, and Lord Lake disallows the question, but suggests questioning about a specific guideline or guideline breach would be dealt with as they come. Howe highlights that this witness was given sight of the couple's witness statements before he submitted his own statement; and that there was a discussion regarding the construction date of the crossing in the couples' statements, but the witness didn't submit evidence showing the date of construction of the crossing. Witness says he didn't think he'd need to submit such evidence. Objection is raised and Lord Lake states that what evidence to submit is the job of the solicitor, not the witness. Questioning continued after lunch until the end of the day, on everything from padlocking gates to their 4x4. This witness wasn't the most-prepared I'd say. The couple are effectively arguing that they're the sole authorised users of the crossing, and the witness doesn't appear to have a great answer to this.
Day 3
Day starts with a motion from Howe. Yesterday's NR witness couldn't answer a lot of the questions from Appleby and Howe, and they have (not-lodged) evidence which directly counters statements the witness made. Believes this evidence is material and brings into question the witness' evidence. The witness' statement was submitted a day before the hearing started which was the first time the couple would've seen it, yet the witness had had the opportunity to review the couples' statements. The need to rely on the not-lodged evidence the couple has is necessitated by the unforeseen nature of the witness' evidence yesterday. So the motion is a request to submit this evidence and then continue the case at a later date.
EE's counsel argues that this motion is a 'calculated ambush' on the witness and the pursuer. States that a while ago the witness clarified that he hadn't seen the dictaphone, so this isn't new information. Also that the recordings were discreet, which they expect to see more of. Opposes the motion based on authority and suggests if the motion isn't rejected, he should be given access to the recording to consider what is actually going to be presented.
Howe says the evidence relates to the witness' statements yesterday, including locks on the gates at the level crossing being changed; a phone call which apparently confirms whether or not the couple are the only authorised user on the Network Rail database, or if the forestry company are also named; and another regarding whether the witness had stated EE don't have authority to use the crossing.
Lord Lake points out that this witness isn't actually the person who decides some or all of these matters so whether he said one way or another isn't relevant.
Howe argues that their behaviour was based on information provided by Network Rail, so it is relevant.
Lord Lake interrupts as Howe puts forward an argument which is straying into submissions about who had access or not; the current conversation is about whether to accept the motion, not to debate the actual evidence being submitted.
Howe clarifies that the recordings weren't covert, but also that the recording itself includes telling the witness that the conversation was being recorded.
--
The motion is refused, on a number of grounds from delays, could've been lodged earlier, inability to verify authenticity, and irrelevance to evidence being currently considered. The case continues.
The remainder of the morning appeared to focus on a report of how a member of the public or signaller had reported having to lift the gate off its hinges to use the level crossing because the gate had been padlocked, the involvement of an NR mobile operations manager (MOM), the specific dates this was reported, the dates it was dealt with, how this incident is logged and tracked by Network Rail, etc. Howe focuses on whether an event occurred on the 22nd February or 23rd February, whether the control log was consulted in order to compile the witness statement, and this led to Howe casting doubt given discrepancies between the two. EE's counsel interjects when Howe suggests the witness had withheld information, and Lord Lake appears to agree that there's a different between not submitting, and withholding. The witness clarifies that there is no intentionally withheld information, and there's nothing being hidden from the control log, but the solicitor didn't ask for it. Howe says that the report came from themselves, not another party. The witness suggests he can actually open the control log right now to get an accurate version of events, which all parties agree to. I assume this is CCIL? Control log says that on 23rd, signaller advises member of public working for EE that members of the public are lifting off the hinges to use the crossing, and that he wouldn't have been the one to complete it, and that it's logged in realtime. Howe says that she and Appleby also made a similar report, witness doesn't recall that. It's agreed by both sides that a caution is put in place on the line, which involved speed restrictions. There is some to-and-fro about whether a line of questioning about what the MOM stated about the status of the crossing is relevant. Howe agrees to move on.
On a couple of casual tangents. Appleby has been absent from the video feed for most of the morning, which I suppose he's allowed to do. Howe appears to be in a dressing gown; personally if I were attending court, even remotely, I'd probably put a shirt on. Apparently it's 14 degrees Celcius in Altnabreac at the moment, so maybe a bit chilly, so maybe it's understandable. The couple have what appears to be a sort of soup couldron on the stove behind them which I quite like the look of, so I may be off to check Nisbets later today to see if I can get one. As I finish typing this, Appleby's shoulder reappears into the side of the video feed.
We are shown a still from a video of one side of the south side of the level crossing (the opposite side of the railway to the EE mast). The witness points out the pieces missing - the CC05Z sign, and the telephones, but the poles are there for them to be mounted. The video is then played, which shows Appleby carrying a chain, Howe, and someone in an orange hi-viz walking north->south across the level crossing. The witness can't identify the person in orange hi-viz owing to video quality (I agree with him on this - I had a better video feed than he did and I couldn't read anything on the hi-viz). Howe questions whether the absence of the signs and the telephones marries up with the crossing 'operating as designed' as the witness had in their statement. Lord Lake reiterates that this is a cross-examination of a witness statement, not to determine necessarily whether Network Rail's policies were being followed. Some discussion is had about Appleby carrying a lock and a chain, EE's counsel objects on the basis that this concerns excluded evidence, which is upheld by Lord Lake.
A bizarre situation occurs where a court staffer tries to zoom in on a video where we're trying to establish the text on the rear of an orange hi-viz jacket, upon Lord Lake's request, as if zooming in will somehow improve quality. This obviously doesn't work. The court resorts to going back a few video frames to try and get a better still but the answer is still no. Very much a live example of the 'ENHANCE' meme.
We move on to EE's examination of the witness. The witness confirms there, at least from memory, was at least one other authorised user of the crossing, and also that living near, but not on, the property of a crossing, may give that person authorised user status. The witness clarifiies that EE may have been invitees of said additional authorised user and that this is common practice. Some ORR guidelines on private crossings is referenced which says others may be given permission to use it; and also that, "Where there are a limited number of authorised users, the crossing may be locked by the infrastructure manaager and users provided with a key. Alternatively, users may provide their own locks." The witness proactively admits that this document wasn't issued to the defenders, but a separate private level crossing user guide was. We scroll down through the guide sent to Howe and it's clarified that nothing in the guide makes references to adding own locks. Also clarified that authorised users are allowed to delegate access to others, e.g. telecoms workers.
Just before lunch, the couple argue that they should be allowed to withdraw their submissions, which would mean no cross-examination, and the decision of the court be determined by the submissions of the pursuer; because Lord Lake had excluded two paragraphs from their two statements seemingly regarding locking the crossing, which the couple believe to be core. Lord Lake gives the couple, and EE's counsel, lunchtime to consider whether this is desirable and how they wish to proceed.
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No cross examination of the couple so we move to the 15th July 11:30am for final submissions.. bold strategy, but there we are.
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On the whole, while Lord Lake clearly had to intervene a few times with the couple, mainly Howe, I wouldn't rule out them having some success. The Network Rail witness got a full day of grilling about the specifics of authorised users of level crossings, locks, access, etc, and it wasn't a stand-out performance I have to say.
I guess it remains to be seen what each parties' summarising remarks are in a couple of weeks.
The main takeaway I have from this is that this is a surprisingly asymmetric case, where Appleby and Howe have devoted every single iota of their being into the case, having nothing else to do - and the professional witnesses opposing them are being distracted by day jobs and other responsibilities, and hence are under-prepared and less invested.
I agree to some extent.
But I do also think EE, Network Rail, ScotRail, in their various claims, have a significant stake here because if the couple win in some of these cases (which people shouldn't rule out), they'll be forced to negotiate access fees or get permission which can be tricky at short-notice, etc. I suspect that Network Rail and ScotRail have a bit less interest now that the claim of owning the platform appears to have waned, because they can at least use on-track plant to get to it and do maintenance even if it is a bit more faffy, and there's a bypass for foot traffic if the driveway dispute comes up again.
In fact, for all we know, EE may have brought this claim not to recover a hundred grand, but to establish the land ownership, and access procedures for getting to their mast.
swt_passenger
Veteran Member
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- 7 Apr 2010
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Autocorrect strikes again…
"I don't recall", to quote one particular witness! But as the Network Rail level crossing manager mentioned in evidence, if there's another authorised user for the level crossing, they can effectively delegate access to 'invitees' as he described them. It's incredibly common, as a lot of crossings are used by everyone from Royal Mail to Amazon, Tesco grocery drivers to gas engineers.
I don't know for sure, but I'd expect a lot of these are either longstanding access (like delivery companies), or a quick email or phone call from BT wanting to fix a telegraph pole asking, "Mind if we use your crossing on Monday?" I imagine having formal access agreements, particularly with fees, is less common, but maybe somebody else here would know more about that.
I didn't know Nicola Sturgeon was appearing
EYFanatic
Member
In my opinion (that covers me legally I think!!!) I don't think they can win but I can see this being taken to any other possible higher court because they seem to be the type to do so
I can only imagine their reactions when ownership of the land and access rights are settled because if it goes against them, they will make a fair few videos out of it. Now, just imagine they do so after it all goes against them would they be in contempt under Scots Law?
I can only imagine their reactions when ownership of the land and access rights are settled because if it goes against them, they will make a fair few videos out of it. Now, just imagine they do so after it all goes against them would they be in contempt under Scots Law?
It can go to the Inner House, then, under the right grounds, the UK Supreme Court and the ECHR, but you're getting into human rights territory here. The cost of doing so is also quite prohibitive in many cases, though I suppose they could try and crowdfund. Just under 2 years ago, they created a crowdfunder for their cases, with a £10k target. It is currently at £2,878, which is quite a good effort, but also short of the kind of funds they'd need to appeal this at the highest levels with qualified legal counsel. I suppose they can continue to self-represent, but I think as the appeals get higher up, the chance of succeeding without qualified legal counsel decreases, and any case losses will incur even further fees from the other party.
Buzby
Established Member
We're talking about the current civil case? The parallel criminal case will not be so encumbered, and with it may well bring a further financial penalty as HMP Inverness is unlikely to be involved (especially as the estate is bursting at the seams) the imposed financial penalty may well be considerably less than than the amount claimed by EE, but these hearings will not be 'free' and the loser pays.