Delay Repay question (hypothetical)

[Haywain]

Yesterday morning I was on a train which was significantly delayed. It was 20 minutes late leaving its origin station and prior to departure passengers for the following service had been invited to board. A group of 4 boarded and sat in first class but held standard class tickets for the following service. The guard advised them that to sit in first they would have to pay to upgrade which they chose not to do after some consideration (during which time one of them, apparently, purchased a first class eTicket - he then chose to sit in standard with his friends after he had received his complimentary bacon roll!). The train was ultimately almost 2 hours late arriving at its destination.

My question is whether the upgrade part of the fare would be equally valid for DR as the original fare? In this case, the DR thresholds were passed before the journey was at the half distance point and many of those on board would be hitting the full 2 hours delay because of onward connections. So, if the excess is valid for DR they could have all piled in to first class at that point knowing that it would, effectively, be at zero cost.

 

[OhNoAPacer]

I feel that a TOC could make the argument that the upgrade was purchased after the delay was known and so not pay it.

 

[Super Hans]

Interesting thought, yes it would be paid on DR.