Before : The Honourable Mr Justice Sullivan between Great North Eastern Railway Limited and The Office Of Rail Regulation, Hull Trains Company Limited, Grand Central Railway Company Limited

"In these proceedings the Claimant challenges the Defendant's decision under the Railways Act 1993 (the Act) to grant the two Interested Parties track access rights which will enable them to operate passenger services on the East Coast Main Line (ECML) on which the Claimant operates the passenger services franchise

It was submitted that any discrimination assessment should focus on the "upstream market" for access to the railway infrastructure where the supply was by the infrastructure manager, Network Rail, and where it was contended the position of franchise operators and open access operators was quite different; and not on the "downstream market" for rail passenger services where the supply was by franchise operators and open access operators who were competing for passengers in the same market.

While such an analysis may well be impeccable as a matter of economic theory, and it is in any event no part of the Court's function to substitute its own view on matters of economic judgment (see the London and Continental decision cited above), the question is not whether the ORR's approach to this issue makes good sense in terms of transport economics, but whether it is compliant with the 2005 Regulations.

Unfortunately, since economists and lawyers do not speak the same language neither the Directive nor the 2005 Regulations refer to "upstream" or "downstream" markets "

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