Other companies with newer contracts, (First Hull Trains and Grand Central) were given a charge varying with network usage.

Sullivan J held that Office of Rail Regulation’s (ORR) approach was lawful, and it had a wide discretion to manage the network in the interests of passengers and make track access agreement.

GNER could either enter the downstream rail passenger market by tendering a competitive bid, or by seeking open access.

All routes were open without discrimination, so no distortion of competition could be inferred: HJ Banks & Co Ltd v Coal Authority (2001) C-390/98.

Even if this was wrong, there would be no reason to quash the decision as GNER delayed making an application to court, and there was no real unfairness.