Advice on pre-court settlement offer

[aztec29]

Make it easy for them to close the matter - enclose a cheque for the £5 fare.

I would have done, but I've emailed the response, and in any case I haven't written a cheque for so long that I'm not even sure where my chequebook is.

I did try paying the £5 online, but was only given the option to pay the full £84.40 settlement.

 

[MalaiseForever]

I would have done, but I've emailed the response, and in any case I haven't written a cheque for so long that I'm not even sure where my chequebook is.

I did try paying the £5 online, but was only given the option to pay the full £84.40 settlement.

Could you not just stick a fiver in with your letter?

 

[ForTheLoveOf]

Could you not just stick a fiver in with your letter?

The OP has said they have emailed the response, so no letter, and the other problem is that a fiver can all too easily be lost or "pocketed" along the way. A cheque is something that has to be actively accepted but also whose acceptance is provable; if it is accepted then there can be no doubt that the fare has been tendered by GWR.

 

[MalaiseForever]

The OP has said they have emailed the response, so no letter, and the other problem is that a fiver can all too easily be lost or "pocketed" along the way. A cheque is something that has to be actively accepted but also whose acceptance is provable; if it is accepted then there can be no doubt that the fare has been tendered by GWR.

Missed the part about the email, and good points anyway.

 

[island]

I think GWR are being quite unreasonable here.

A byelaw 18 prosecution would be bound to fail because you started your journey at a station with no ticketing facilities. However with a section 5 RRA prosecution, you could get magistrates taking the view that you should indeed have sought out the conductor on one of the trains or paid at the excess office at Bristol Temple Meads, and therefore convict. Somewhat of a sticky wicket.

As GWR has shown no willingness to back down on the matter, you now need to decide whether you want to pay the sum demanded (in my opinion unjustly) so that it will go away, or see what charge they lay.

If paying, you may decide to send a letter stating you still feel strongly that you have acted correctly and enclose two cheques, one for the fare and the other for the admin fee, asking them to consider banking only the former.

If you are charged under byelaw 18 then you can probably go to court and speak to the prosecutor on the day to point out their case is hopeless because you joined at an unstaffed station. Prosecutors are strict but they’re not thick and a quick word will likely result in no evidence being offered and you can be on your way.

If you are charged under section 5 RRA you are then probably best advised to see a solicitor.

 

[ForTheLoveOf]

A byelaw 18 prosecution would be bound to fail because you started your journey at a station with no ticketing facilities. However with a section 5 RRA prosecution, you could get magistrates taking the view that you should indeed have sought out the conductor on one of the trains or paid at the excess office at Bristol Temple Meads, and therefore convict. Somewhat of a sticky wicket.

Far from a sticky wicket, because there is no such obligation in law and the Magistrates would be overstepping considerable opposing case law. But to keep it simple in protecting against such a possibility, the OP could bring along a copy of the NRCoT, in particular the parts which contain provisions for what you should do if you can't buy a ticket at your origin station.

That demonstrates what the TOCs deem as reasonable (although it of course doesn't affect the law itself), so I would suggest that complying with the requirement therein is strong evidence of a lack of any intent to avoid payment. Of course, I would like to hope that GWR aren't in the business of conducting what might appear to be, at best "unfounded" prosecutions, and that they will soon confirm that it was all a big mistake. But if they do go for RoRA, I agree that at the very least, an initial (hopefully free) consultation with a solicitor would-be advisable.

 

[The_Train]

The bit that's really riled me from the email the OP received is.....

'If our Inspector was not at Patchway upon your arrival, it is likely you would have left the station without payment of the fare due.'

Who are GWR to assume that a person they know nothing about is 'likely' to leave the station without paying?

Some great advice on here though and hopefully GWR will see sense. When they do I would take 500 pennies to the offices the revenue team are based at and make payment of your £5 fare that way

 

[221129]

The bit that's really riled me from the email the OP received is.....

'If our Inspector was not at Patchway upon your arrival, it is likely you would have left the station without payment of the fare due.'

Who are GWR to assume that a person they know nothing about is 'likely' to leave the station without paying?

Some great advice on here though and hopefully GWR will see sense. When they do I would take 500 pennies to the offices the revenue team are based at and make payment of your £5 fare that way

Which doesn't have to be accepted. Of course the OP would be likely to leave Patchway without paying as there is no way to pay there. So it's a very safe assumption.

 

[The_Train]

Of course the OP would be likely to leave Patchway without paying as there is no way to pay there. So it's a very safe assumption.

Makes it all the more daft to include it in the email then. If GWR can't be bothered to provide ticketing facilities then that's their issue not the OP's

 

[Peter Kelford]

The first thing to consider is that the offence is called 'Travelling with Intent to Avoid Paying'. The OP did not intend to avoid paying, but rather wasn't given the opportunity to pay. The OP has 'made all reasonable attempts' to pay for the ticket. GWR has issued the OP with an 'unreasonable' admin fee, especially as the OP has shown active intent to pay the ticket upon questioning by GWR staff.

 

[island]

Far from a sticky wicket, because there is no such obligation in law and the Magistrates would be overstepping considerable opposing case law. But to keep it simple in protecting against such a possibility, the OP could bring along a copy of the NRCoT, in particular the parts which contain provisions for what you should do if you can't buy a ticket at your origin station.

That demonstrates what the TOCs deem as reasonable (although it of course doesn't affect the law itself), so I would suggest that complying with the requirement therein is strong evidence of a lack of any intent to avoid payment. Of course, I would like to hope that GWR aren't in the business of conducting what might appear to be, at best "unfounded" prosecutions, and that they will soon confirm that it was all a big mistake. But if they do go for RoRA, I agree that at the very least, an initial (hopefully free) consultation with a solicitor would-be advisable.

Whilst I personally don't think the OP has any case to answer, magistrates are unpredictable. In a fair and just world it would be obvious that the OP has done nothing wrong, but the risk here is around the OP being unfairly put to cost, difficulty, and stress – all of which would be caused by a Magistrates' court appearance.

 

[ForTheLoveOf]

Whilst I personally don't think the OP has any case to answer, magistrates are unpredictable. In a fair and just world it would be obvious that the OP has done nothing wrong, but the risk here is around the OP being unfairly put to cost, difficulty, and stress – all of which would be caused by a Magistrates' court appearance.

There can be no doubt in that, and indeed it's the reason some refer to Magistrates' Courts as Kangaroo Courts (something that I don't entirely disagree with!). But ultimately if they are clearly wrong, a solicitor may recommend an appeal to the Crown Court on a case stated basis. None of these options ought to be ruled out in favour of the "easy" way out by admitting defeat where GWR are so terribly, terribly in the wrong.

 

[Peter Kelford]

There can be no doubt in that, and indeed it's the reason some refer to Magistrates' Courts as Kangaroo Courts (something that I don't entirely disagree with!). But ultimately if they are clearly wrong, a solicitor may recommend an appeal to the Crown Court on a case stated basis. None of these options ought to be ruled out in favour of the "easy" way out by admitting defeat where GWR are so terribly, terribly in the wrong.

'many would rather trial by ducking stool rather than the magistrates'. Gary Bell QC, in a TV interview

 

[Peter Kelford]

Whilst I personally don't think the OP has any case to answer, magistrates are unpredictable. In a fair and just world it would be obvious that the OP has done nothing wrong, but the risk here is around the OP being unfairly put to cost, difficulty, and stress – all of which would be caused by a Magistrates' court appearance.

Could the OP not consider a costs order, especially considering that First Group is a multi billion pound business whilst the OP is an ordinary citizen?

 

[island]

There can be no doubt in that, and indeed it's the reason some refer to Magistrates' Courts as Kangaroo Courts (something that I don't entirely disagree with!). But ultimately if they are clearly wrong, a solicitor may recommend an appeal to the Crown Court on a case stated basis. None of these options ought to be ruled out in favour of the "easy" way out by admitting defeat where GWR are so terribly, terribly in the wrong.

I agree with the principles. Tiny technical point: a case stated would be to the High Court rather than the Crown Court.

 

[Peter Kelford]

I agree with the principles. Tiny technical point: a case stated would be to the High Court rather than the Crown Court.

A case stated appeal would be towards the High Court Queen's Bench Division. Alternatives include Magistrate's Court reconsideration and Crown Court appeal

 

[aztec29]

Here is GWR's reply:

Thank you for your email relating to your journey from Bedminster to Patchway 11th February 2019 and for the offer to pay for the ticket from Bedminster to Patchway.

I am sorry you are unhappy with our offer to settle this matter.

The offer of £84.40 remains outstanding and is available until 22nd March 2019.

Buying a ticket on the train
As my colleague (name redacted) advised in his email, as you had come from a station with no facilities it would have been your responsibility to seek out the person selling tickets on the train.
It is not up to our member of staff to come to you as they do not always get time to go through the whole of the train as something could prevent them from doing so.

Allowing extra time
Whilst I appreciate that there was little time before your connecting train at Bristol Temple Meads Station, it would be up to you to go and purchase your ticket from the facilities there or to wait for the next train.

Online ticket purchase
There would also have been the option to purchase an e-Ticket before you started your journey at Bedminster.

Retrospective ticket purchases
We do not allow the purchase of a ticket once a travel irregularity has taken place.

Late trains
Having looked carefully into this case and your email, I can see that our inspector has followed the correct procedures and taken the correct action. I can also see from your email that you are not happy with some of our services, we cannot deal with this here in this team. In order to formally raise this issue, you need to get in touch with our Customer Services team, their details are below. Please remember to resolve your ticket issue, here with this team, Customer Services will not be able to help with this.
• By telephone on 0345 7000 125
• By e-mail at [email protected]
• By post at Freepost GWR CUSTOMER SUPPORT

What happens next
If we receive payment of £84.40 by 22nd March 2019 this case will be closed with no further action. If we do not receive payment you will incur further costs.

How to pay (etc.)

This reply makes hardly any reference to the legal matter, and I wonder whether I'm dealing with administrators who, firstly, don't have a good knowledge of the law - which is in itself is remarkable since they're a part of the Prosecutions Unit - and secondly, are assuming that I must be guilty of something since I've been interviewed under caution.

In any event, I'm content to wait until after Friday to see what else they come back with.

 

[ForTheLoveOf]

Here is GWR's reply:

This reply makes hardly any reference to the legal matter, and I wonder whether I'm dealing with administrators who, firstly, don't have a good knowledge of the law - which is in itself is remarkable since they're a part of the Prosecutions Unit - and secondly, are assuming that I must be guilty of something since I've been interviewed under caution.

In any event, I'm content to wait until after Friday to see what else they come back with.

What a load of unbelievable drivel by GWR!

As my colleague (name redacted) advised in his email, as you had come from a station with no facilities it would have been your responsibility to seek out the person selling tickets on the train.
It is not up to our member of staff to come to you as they do not always get time to go through the whole of the train as something could prevent them from doing so.

It would seem whoever wrote that email has never ever read the (relevant sections of the) NRCoT, and that they think that by just repeating a statement ad infinitum, that makes it true. I'm afraid that won't cut it when they're the ones in Court that have the obligation to prove, beyond any reasonable doubt, that you've committed a criminal offence. Unfortunately the shrinking violet that wrote that email won't be facing that challenge in Court.

Whilst I appreciate that there was little time before your connecting train at Bristol Temple Meads Station, it would be up to you to go and purchase your ticket from the facilities there or to wait for the next train.

So they are suggesting that you should delay your journey in order to get a ticket, because of the fact that they are too tight to pay for ticketing facilities at Bedminster, and that they are too tight to pay either for sufficient resources to ensure there is an assistant fare collector on the train in addition to the guard, and/or that they are too incompetent to ensure that guards always proactively collect fares. Sounds about right to me - blame the victim!

Online ticket purchase
There would also have been the option to purchase an e-Ticket before you started your journey at Bedminster.

Oh, so because some people have a smartphone and feel like taking the risk of forgetting to activate their ticket, or their phone running out of battery, or the app crashing, that constitutes an opportunity to buy a ticket? This comment is completely irrelevant.

Retrospective ticket purchases
We do not allow the purchase of a ticket once a travel irregularity has taken place.

Presumably this is in response to your offer of paying the fare due. They have the right to refuse that once an irregularity has taken place - but no irregularity has taken place here!

Late trains
Having looked carefully into this case and your email, I can see that our inspector has followed the correct procedures and taken the correct action. I can also see from your email that you are not happy with some of our services, we cannot deal with this here in this team.

Having looked carefully? The correct procedure and the correct action? What a load out outright lies! Even the most rudimentary investigation into the circumstances would determine that the inspector had no right to demand your details in the first place, let alone to issue you with a TIR. And they claim they can't deal with the misconduct of their own inspector? Biggest load of nonsense I ever heard.

What happens next
If we receive payment of £84.40 by 22nd March 2019 this case will be closed with no further action. If we do not receive payment you will incur further costs.

You will incur further costs? Perhaps they mean that they will send you a letter fishing for more money. But either way it is them who are going to incur a whole host of costs one way or another. They may even be liable for damages given they didn't have the right to demand your details and are now misusing them in the hope of extracting money.

One truly hopes that they will realise the error of their ways, and quickly. If they do not, I would be more than happy in assisting you to obtain the fullest extent of the available recourse against them.

 

[furlong]

Well that reply suggests an interesting willingness to test some boundaries of the generally accepted existing law. It seems difficult to align it with the NRCoT ("wait for the next train" vs "provided there is sufficient time before your connecting service") and it's indeed surprising they haven't backed up those claims with appropriate references.

 

[ainsworth74]

and it's indeed surprising they haven't backed up those claims with appropriate references.

I suggest @aztec29 hit the nail on the head when they suggested an admin type had penned the email. I would gamble a reasonable chunk of change that that letter is basically a proforma and that person sending it has no actual knowledge or experience relevant to the cases that came across their desk. Simply identify the stage of the action, use the prepared paragraphs to reply and fill in the specific details for that case.

 

[Peter Kelford]

The case may well be thrown out of court if GWR does choose to pursue a £4.60 ticket through the court - they haven't considered ADR.

 

[aztec29]

One truly hopes that they will realise the error of their ways, and quickly. If they do not, I would be more than happy in assisting you to obtain the fullest extent of the available recourse against them.

Thanks, although my main concern is, as you say, to stop them threatening me with prosecution. However, the fact that this is a public forum and I've effectively been publishing their incompetence online is not lost on me.

I suggest @aztec29 hit the nail on the head when they suggested an admin type had penned the email. I would gamble a reasonable chunk of change that that letter is basically a proforma and that person sending it has no actual knowledge or experience relevant to the cases that came across their desk. Simply identify the stage of the action, use the prepared paragraphs to reply and fill in the specific details for that case.

Unfortunately it begs the question of how far I have to get in this process before someone who knows what they're doing gets hold of it...

 

[ForTheLoveOf]

The case may well be thrown out of court if GWR does choose to pursue a £4.60 ticket through the court - they haven't considered ADR.

Unfortunately this isn't a civil matter, they are proposing a private prosecution. Much to my misgiving, there is no 'public interest' test for private prosecutions to meet. If there were, no doubt cases about £4.60 tickets would be thrown out very quickly, just as they would be in the County Court. ADR isn't relevant to a criminal case unfortunately.

Thanks, although my main concern is, as you say, to stop them threatening me with prosecution. However, the fact that this is a public forum and I've effectively been publishing their incompetence online is not lost on me.

Unfortunately it begs the question of how far I have to get in this process before someone who knows what they're doing gets hold of it...

What I'm finding difficult to fathom is how or why they think that their template (if indeed it is one) is correct or appropriate. They need to be aware that they are proposing an out of Court settlement with a consumer - they could be on the hook for a considerable amount of liability, potentially for fraudulent misrepresentation, if they were deemed to intentionally mislead as to the legal position.

 

[jkdd77]

I generally stay clear of this section of the forum, because I am aware of my lack of specialist knowledge, and do not wish to inadvertently give incorrect, or potentially dangerous advice.

However, for what it worth, I'm sure I recall that the old FGW website (as was) included a Severn Beach development plan which specifically acknowledged that, where a person both started and finished their journey at an unstaffed station with no facilities, and was unable to purchase a ticket onboard, then this represented "inadvertent ticketless travel" (to use their phrase) rather than fare evasion.

Of course, neither Bedminster nor Patchway is a Severn Beach line station, but I would argue that the same principle applies. Unfortunately, I can no longer locate the document I remember reading several years ago. I don't know whether anyone else might have more success.

Turning to the information box in the NRCoT (as previously quoted by furlong in post #18), I would argue that, regardless of whether it strictly forms part of the contract of travel, it is nevertheless deemed by virtue of statute law to form part of the contract for travel if the consumer took account of it when making his or her purchase decision: http://www.legislation.gov.uk/ukpga/2015/15/section/50/enacted

50 Information about the trader or service to be binding
(1)Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if—

(a)it is taken into account by the consumer when deciding to enter into the contract, or

(b)it is taken into account by the consumer when making any decision about the service after entering into the contract.

(2)Anything taken into account by the consumer as mentioned in subsection (1)(a) or (b) is subject to—

(a)anything that qualified it and was said or written to the consumer by the trader on the same occasion, and

(b)any change to it that has been expressly agreed between the consumer and the trader (before entering into the contract or later).

(3)Without prejudice to subsection (1), any information provided by the trader in accordance with regulation 9, 10 or 13 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) is to be treated as included as a term of the contract.

 

[Fawkes Cat]

Thanks, although my main concern is, as you say, to stop them threatening me with prosecution

If your main concern is to get the railway to stop threatening you with prosecution, then the easiest option is to give them the money that they want.

I make no comment on whether this is the right thing to do: a lot comes down to the balance you make between your wallet, your good name, your conscience, your time, your peace of mind and your appetite for risk. Only you can make that judgement, but if getting the risk of prosecution to go away is by far the most important thing, then pay up.

 

[Peter Kelford]

Thanks, although my main concern is, as you say, to stop them threatening me with prosecution. However, the fact that this is a public forum and I've effectively been publishing their incompetence online is not lost on me.

Unfortunately it begs the question of how far I have to get in this process before someone who knows what they're doing gets hold of it...

If your main concern is to get the railway to stop threatening you with prosecution, then the easiest option is to give them the money that they want.

I make no comment on whether this is the right thing to do: a lot comes down to the balance you make between your wallet, your good name, your conscience, your time, your peace of mind and your appetite for risk. Only you can make that judgement, but if getting the risk of prosecution to go away is by far the most important thing, then pay up.

I would recommend that the OP does not pay up, but rather writes back to GWR citing NRCoT.

 

[ukkid]

Does the latest letter mention prosecution (the previous did but couldn't see it in the latest) or just that you will incur further costs. If the latter, can it be inferred they gave up on prosecution and are just chancing an administrative cost which would not be recoverable civilly.

Additionally how to they determine he failed to seek out the conductor or even that there was one on the train? If someone considers thelmselves unfit or unsafe to walk up and down a train to search for one telling them to do so breaches the Equality Act. They don't even point out where he should have gone to seek out the conductor. If it went as far as court they would have prove one was on board (by bringing them to court) and there was sufficient information for the passenger to know where to find one or how to alert them.

With magistrates I don't think they are as unreasonable as you think. A well dressed defendant pointing out no facilities at the start, not enough time to delay at Bristol and not obliged to do so, no evidence of a conductor and most importantly that in similar circumstances in the past has always bought tickets at Patchway is unlikely to come across as an intentional fare dodger. Additionally where is the signage or the announcements if you start at a unmanned station you must delay your journey at an interchange or find the conductor in carriage x and buy it from him/her.

Is it worth writing to the ceo and customer services ccing prosecutions pointing NRCOT and their failure to have adequate purchasing facilities renders no case to answer.

 

[aztec29]

Does the latest letter mention prosecution (the previous did but couldn't see it in the latest) or just that you will incur further costs. If the latter, can it be inferred they gave up on prosecution and are just chancing an administrative cost which would not be recoverable civilly.

No, it didn't, and I suspect you're right.

Is it worth writing to the ceo and customer services ccing prosecutions pointing NRCOT and their failure to have adequate purchasing facilities renders no case to answer.

If I hear from them again after the 22nd, I may well do that.

 

[Peter Kelford]

Does the latest letter mention prosecution (the previous did but couldn't see it in the latest) or just that you will incur further costs. If the latter, can it be inferred they gave up on prosecution and are just chancing an administrative cost which would not be recoverable civilly.

Additionally how to they determine he failed to seek out the conductor or even that there was one on the train? If someone considers thelmselves unfit or unsafe to walk up and down a train to search for one telling them to do so breaches the Equality Act. They don't even point out where he should have gone to seek out the conductor. If it went as far as court they would have prove one was on board (by bringing them to court) and there was sufficient information for the passenger to know where to find one or how to alert them.

With magistrates I don't think they are as unreasonable as you think. A well dressed defendant pointing out no facilities at the start, not enough time to delay at Bristol and not obliged to do so, no evidence of a conductor and most importantly that in similar circumstances in the past has always bought tickets at Patchway is unlikely to come across as an intentional fare dodger. Additionally where is the signage or the announcements if you start at a unmanned station you must delay your journey at an interchange or find the conductor in carriage x and buy it from him/her.

Is it worth writing to the ceo and customer services ccing prosecutions pointing NRCOT and their failure to have adequate purchasing facilities renders no case to answer.

I met GWR's commercial manager a couple of years back and he seems like a reasonable man. I imagine that reasoning with management might get you an apology.

 

[RPI]

Scanning this thread it does seem strange that GWR are pursuing this any further than simply recovering the fare due, the cynic in me is asking the question as to whether there are any additional or aggravating factors? In the past when I've become aware of people regularly travelling between two stations with no facilities and avoiding their fare we have conducted special operations, the simple but effective way of doing this is to put a Ticket Examiner on the train, ensure that they pass through the train selling tickets and have covered the whole train, then RPI'S have been at the problem station safe in the knowledge that people have had the opportunity to buy tickets.
We would only continue with reporting anyone stopped if the person on the train had confirmed that they had passed through the entire train from end to end and we would have their body camera footage and the train CCTV as evidence.

I'm not suggesting that this is the case here but it is a technique used by several TOC'S and one that has been both successful and not so successful in court in my experience.
I do apologise that I've only skimmed this thread but did the op say straight away where they had travelled from or was another, closer station stated when first stopped?