A cautionary note if HS2 Ltd make you an offer.

As we have now got to the serious business of petitioning, all of a sudden there has been a flurry of activity from HS2 Ltd. Despite having four and a half years to engage with councils, landowners and residents about their plans for HS2, the efforts of HS2 Ltd up until now have been pitiful. This has been clear on recent site visits from the HS2 Hybrid Bill Committee, where it would be fair to say that the MPs have been disappointed that in many cases, their visits have heralded the first time residents and HS2 Ltd employees have been on site together.

So now, as petitions start to be scheduled, HS2 Ltd are contacting petitioners to see if they can do a deal. The reason for what is happening is clear, HS2 Ltd have a brief of cutting down the number of petitioners who actually appear in front of the committee, offering assurances on condition people and organisations withdraw their petition.

Now, while we can’t fault anyone accepting a better offer from HS2 Ltd, we would be failing in our duty if we were not to tell you that it might be a trap, a trick where HS2 Ltd can make a promise and then go back on it.

About two years ago, Warwickshire County Council held one of their many HS2 summits. At it was the person who had been chief liaison officer at Kent County Council when HS1 was built. She gave this cautionary tale:

“My biggest regret, and it was not something the lawyers told us about, was not knowing the difference between an ‘assurance’ and an ‘undertaking’. As a result, we accepted many assurances which never happened. The nominated undertaker can get out of assurances, but undertakings go into the bill and become legally enforceable.” [sic]

And this is the problem now. HS2 Ltd seem to be giving out assurances like a mixed bag of sweeties, but like in Kent, they may well turn out to be sour balls. The bottom line is that a ‘assurance’ could be worthless, as it is simply a promise, and promises only count if they come from someone you trust, not someone you have every reason not to trust.

As such, if HS2 Ltd offer you a compromise, our advice is if you are happy with it, to say you want it made into an undertaking. The fact is, that if HS2 Ltd are absolutely genuine about any offer they are making, they shouldn’t have a problem saying it would become an undertaking, go into the Hybrid Bill and be legally enforceable.

If HS2 Ltd aren’t willing to offer you an undertaking, you have to ask if they are genuine about seeing through any promises they may have made.

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