43.—(1) The undertaker must—
(a)pay to Network Rail all reasonable and proper costs, charges, damages and expenses not otherwise provided for in this Part (but subject to the provisions of this paragraph) which may be occasioned to or reasonably incurred by Network Rail by reason of—
(i)the construction or maintenance of a specified work or the failure of such a work; or
(ii)any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon a specified work; and
(b)indemnify and keep indemnified Network Rail from and against all claims and demands arising out of or in connection with a specified work or any such failure, act or omission.
(2) The fact that any act or thing may have been done by Network Rail on behalf of the undertaker or in accordance with plans approved by the engineer or in accordance with any requirement of the engineer or under the supervision of the engineer does not (if it was done without negligence on the part of Network Rail or of any person in its employ or of its contractors or agents) excuse the undertaker from any liability under sub-paragraph (1).
(3) Network Rail must—
(a)give the undertaker written notice of any such claims or demands as soon as reasonably possible after Network Rail become aware of any such claims or demands;
(b)not admit liability or make any offer to settle or settle or compromise any such claim or demand without the prior consent of the undertaker (which, if it withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand);
(c)take all reasonable steps to mitigate any liabilities relating to such claims or demands; and
(d)keep the undertaker informed in relation to the progress of any such claims and demands and pay due regard to the undertaker’s reasonable representations in relation to them.
(4) In no circumstances is the undertaker liable to Network Rail under sub-paragraph (1) for any indirect or consequential loss or loss of profits, save that the sums payable by the undertaker under that sub-paragraph include a sum equivalent to the relevant costs in circumstances where—
(a)Network Rail is liable to make payment of the relevant costs pursuant to the terms of an agreement between Network Rail and a train operator; and
(b)the existence of that agreement and the extent of Network Rail’s liability to make payment of the relevant costs pursuant to its terms has previously been disclosed in writing to the undertaker,
but not otherwise.
(5) Subject to the terms of any agreement between Network Rail and a train operator regarding the amount, timing or method of payment of the relevant costs in respect of that train operator, Network Rail must promptly pay to each train operator the amount of any sums which Network Rail receives under sub-paragraph (4) which relates to the relevant costs of that train operator.
(6) The obligation under sub-paragraph (4) to pay Network Rail the relevant costs is, in the event of default, enforceable directly by any train operator concerned to the extent that such sums would be payable to that operator pursuant to sub-paragraph (5).
(7) In this paragraph—
“relevant costs” means the costs, direct losses and expenses (including loss of revenue) reasonably incurred by a train operator as a consequence of any restriction of the use of Network Rail’s railway network as a result of the construction, maintenance or failure of a specified work or any such act or omission as mentioned in sub-paragraph (1);
“train operator” means any person who is authorised to act as the operator of a train by a licence under section 8 of the Railways Act 1993.