Excessing Railcard Discounted Tickets Used at an Invalid Time

[BongoStar]

I think one of us doesn't understand how the law works.

It might be me, so I'd be grateful for comments by anyone with legal knowledge on my argument here:

I think these are facts:

1) A contract voluntarily binds parties to act in ways that the law does not compel (otherwise a contract would be pointless) as long as it is not in breach of law AND BOTH SIDES ARE ADHERING TO THE TERMS OF CONTRACT
2) The NRCoT makes it clear that the response to being presented with a (non advance) ticket being usd at the wrong time is to require the excess to be paid. And when an invalid or no ticket ticket is presented, it's a PF, TIR and ignoring those, potential prosecution.
3) If the penalty fare regulations permit a penalty to be issued, the railway would be acting within the law but in breach of contract
4) The remedy for this would be via civil law (breach of contract)

I have made a few updates to above in bold. I think point3 and point4 are not relevant as it's a hypothetical scenario.

The passenger in question boarded the train with a ticket that would have never been issued had he disclosed all facts at time of purchase. ie: intention to board a pre-10am train.

The contract has two parts and each party has to honest in what they want from it.

It is indeed an imbalance of power if the passenger has a unilateral right to decide to change their boarding time without the ToCs having a recourse to charge any differential - to bring it in line with what would have been charged had the information been disclosed earlier and a penalty for the breach as well.

Given the passenger has altered the contract without consent of ToC, my argument would be - is the initial contract even valid?

The answer is No, and therefore the passenger has an invalid ticket. The provisions for an otherwise valid ticket do not necessarily apply.

 

[AdamWW]

I'm not really sure what you are trying to get at here but a contract is a minimum set of requirements, essentially. Nobody is going to complain if the result they get is better than that specified.

I have no idea what you're getting at either.

You seem to be arguing against my points 1-4 but rather than specifying where my legal knowledge is deficient you seem to be making statements that have nothing to do with the matter.

The NRCoT says no penalty. I don't know about you but I'd complain if I got one anyway.

 

[BongoStar]

You are attaching unwarranted significance to the selection of a train by the customer at time of purchase. The customer is not obliged to pick a train that they intend to travel on.

I am attaching a lot of significant to the timing declared at time of purchase because the ticket was priced based on that. The customer isn't obligated to pick a train, or even use the train for that matter.

When the price changed largely depends on the time selected, the whole contract takes a different meaning when that is changed.

Personally, I think it take a special kind of intelligence for someone to assume that a ticket priced at £3.65 obtained by declaring intention to travel post 10am has the same rights as a ticket priced at £5.50 sold before 10am. Especially when this information was clearly made available by the ToCs when the £3.65 purchase was being made.

The rest of your post, I have nothing to comment. As far as I understood, you are saying that ToCs should make accommodation for carelessness/absentmindedness on part of consumer.

 

[fandroid]

I often wonder what would happen in overall revenue terms if the time restriction (and min fare) was removed on all railcards?

Yes there would be some loss of revenue but equally would there be an increase in passenger numbers? Would these be new passengers or displaced (time shift) passenger

As part of fare simplification and making the job of tickets inspectors etc easier it would also deliver productivity benefits.

To my mind the £12 minimum is an example of ticket overcomplexity as it doesn't apply all year and every day of the week or even all day. That's several complexity levels too far and they should be removed as part of an overall ticketing simplification drive.

The prolonged discussion here over the exact wording to cover it on a ticket shows that it's beyond even those with expertise to explain it simply. Normal customers, especially new ones shouldn't be expected to deal with it, especially as it covers the low end of the fare range and the railways' losses (if any) due to its abandonment wouldn't be large.

 

[duffield]

To my mind the £12 minimum is an example of ticket overcomplexity as it doesn't apply all year and every day of the week or even all day. That's several complexity levels too far and they should be removed as part of an overall ticketing simplification drive.

The prolonged discussion here over the exact wording to cover it on a ticket shows that it's beyond even those with expertise to explain it simply. Normal customers, especially new ones shouldn't be expected to deal with it, especially as it covers the low end of the fare range and the railways' losses (if any) due to its abandonment wouldn't be large.

Also if it's considered essential that the railway does not lose revenue, abolishing the £12 minimum could be combined with a slight reduction in the overall discount level (1/3 to 30% maybe?), to make it cost neutral.

 

[redreni]

I am attaching a lot of significant to the timing declared at time of purchase because the ticket was priced based on that. The customer isn't obligated to pick a train, or even use the train for that matter.

When the price changed largely depends on the time selected, the whole contract takes a different meaning when that is changed.

Personally, I think it take a special kind of intelligence for someone to assume that a ticket priced at £3.65 obtained by declaring intention to travel post 10am has the same rights as a ticket priced at £5.50 sold before 10am. Especially when this information was clearly made available by the ToCs when the £3.65 purchase was being made.

The rest of your post, I have nothing to comment. As far as I understood, you are saying that ToCs should make accommodation for carelessness/absentmindedness on part of consumer.

The vast majority of online ticket sales are through retailers that do require selection of a train in order to buy a ticket. Where does it say the selection of a train by the customer constitutes a "declared intention" to travel on that train?

Selecting a train and then selecting a ticket that says it is only valid on that train would, I suppose, constitute a declared intention to travel on that train. This is pretty basic stuff.

None of what I described above is careless or absent-minded. It is, in the context of a customer who already knows that they want an Anytime ticket, entirely reasonable and rational if they do not remember about the £12 minimum fare (which they would last have seen in the Railcard leaflet/application form, or their online equivalents, potentially several months earlier).

 

[BongoStar]

The vast majority of online ticket sales are through retailers that do require selection of a train in order to buy a ticket. Where does it say the selection of a train by the customer constitutes a "declared intention" to travel on that train?

Selecting a train and then selecting a ticket that says it is only valid on that train would, I suppose, constitute a declared intention to travel on that train. This is pretty basic stuff.

None of what I described above is careless or absent-minded. It is, in the context of a customer who already knows that they want an Anytime ticket, entirely reasonable and rational if they do not remember about the £12 minimum fare (which they would last have seen in the Railcard leaflet/application form, or their online equivalents, potentially several months earlier).

So we have a customer who signed up for some T&Cs when buying a railcard agreeing to have understood them.

The same customer, when selecting tickets for travel, sees (for simplicity in our discussion), 2 prices initially. A peak fare and an off peak fare, or maybe just an anytime fare. The customer then applies the railcard discount and sees it applied to only trains after 10am. Any reasonable person would want to know why it didn't apply to the 9am one they intended to take, but did to the 11am one. Instead, they decide to select the 11am and and travel on 9am.

There is a minimum expectation what any reasonable person would do. Demanding reasonableness from ToCs when the customer themselves are being less than that is, in my opinion, asking for it.

 

[AdamWW]

None of what I described above is careless or absent-minded. It is, in the context of a customer who already knows that they want an Anytime ticket, entirely reasonable and rational if they do not remember about the £12 minimum fare (which they would last have seen in the Railcard leaflet/application form, or their online equivalents, potentially several months earlier).

Potentially almost three years ago!

And of course their belief that the anytime ticket is valid at any time is then reinforced by being told that it is indeed valid at any time!

 

[AlterEgo]

The willingness for people to row in behind the government and large businesses in a row over consumer rights will always be culturally unique to this strange, supine island of ours. The individual citizen who has no power in this relationship, is wrong, an idiot, acting in bad faith, yet the train company is doing nothing wrong.

“Passengers should have fewer rights as public transport users, actually”

 

[LJA]

what’s the reasoning for it only applying to anytime and not advances (apart from the the fact that cheap short distance advances maybe weren’t a thing when the t&cs were devised)

if the supposed purpose of the minimum fare is to dissuade peak time travel then why is it only applied to a certain class of tickets.

 

[Kite159]

what’s the reasoning for it only applying to anytime and not advances (apart from the the fact that cheap short distance advances maybe weren’t a thing when the t&cs were devised)

if the supposed purpose of the minimum fare is to dissuade peak time travel then why is it only applied to a certain class of tickets.

Short distance "buy on the day" advance tickets are only a recent thing, when the T&Cs for the 16-25 card were written advance fares were generally for longer distance services only with hardly any 'buy on the day'. Not for the short 5-minute hop between Sheffield & Meadowhall etc

 

[tspaul26]

1) A contract voluntarily binds parties to act in ways that the law does not compel (otherwise a contract would be pointless)

This is not really an apt summary as a matter of legal theory.

It is inherent in a contract that it does compel the parties. If it were not so then it would not be a contract.

2) The NRCoT makes it clear that the response to being presented with a (non advance) ticket being usd at the wrong time is to require the excess to be paid

It imposes a contractual liability to pay an excess. That much I would agree with.

3) If the penalty fare regulations permit a penalty to be issued, the railway would be acting within the law but in breach of contract

This does not follow from the stated assumptions: a penalty fare is a statutory liability which may co-exist with a contractual liability. They are not necessarily mutually exclusive.

4) The remedy for this would be via civil law (breach of contract)

The remedy for what and in whose favour?

If the above is true, it is immoral for the railway (particularly as a publicly funded entity) to behave in this way on the grounds that few people could afford step 4.

Morality doesn’t really come into it and is by and large irrelevant as far as contractual interpretation is concerned.

It is also unreasonable to expect an intending passenger to not only diligently read through the NRCoT but also consult leglslation to see if the NRCoT has only given a partial list of cirumstances in which penalty fares can be applied.

The passenger is deemed to know what the legislation says so it does not matter whether it is ‘reasonable’ (whatever that might mean in any given context).

Possibly the consumar rights act does actually put the railway in criminal territory here.

I’m afraid that I don’t really follow this point.

Arguing that a penalty fare is valid seems like the argument that it's OK to say a ticket is valid at times it isn't, i.e. that the passenger should never take anything from the railway at face value but instead consult other sets of rules and make a judgement as to whether the railway is being misleading or not.

I’m not sure I really understand this either, but as far as I understand it the parallel you seek to draw is a false one as the two instances are (from the perspective of legal theory) quite distinct.

The key point as I see it is that we are dealing with the intersection of contractual and statutory obligations, and there is little in the way of definitive authority on how that interface must be approached.

We must therefore fall back on general principles in which case there is nothing which would render the co-existence of a contractual obligation to pay an excess fare with a statutory obligation to pay a penalty fare inherently impossible as a matter of law.

== Doublepost prevention - post automatically merged: 12 Oct 2024 ==

I think they’re fundamentally at odds with the Conditions of Travel, which state without equivocation what will happen in those circumstances.

I’m not sure I really understand this reasoning. If your point is that the NRCOT render a matter which would otherwise constitute an offence in law as not being an offence at all then that is, I’m afraid, simply incorrect as a matter of law. It is impossible for the NRCOT to have such an effect.

I note that you don’t go as far as to disagree with me in your post, or give either a personal or legal opinion.

Having reviewed the NRCOT and the penalty fare regulations, my view is that there is no reason in principle why a penalty fare could not be lawfully issued for:

• use of an off peak ticket at a time which is not permitted;
• use of a railcard discounted ticket without the accompanying railcard or at a time when that discounted ticket is not valid; or
• travelling off route.

Subject of course to the other provisions of the regulations which I will not go through in detail here.

Is your argument that a penalty fare can be issued in those circumstances? If so, why in our trigger happy railway world are they not, then, habitually issued in those circumstances? Why are RPIs instructed not to do this, and why, when they are mistakenly issued, do we find they are overturned on appeal, and the assessors agree with the reasoning that they were improperly issued?

In what circumstances specifically?

 

[redreni]

So we have a customer who signed up for some T&Cs when buying a railcard agreeing to have understood them.

The same customer, when selecting tickets for travel, sees (for simplicity in our discussion), 2 prices initially. A peak fare and an off peak fare, or maybe just an anytime fare. The customer then applies the railcard discount and sees it applied to only trains after 10am. Any reasonable person would want to know why it didn't apply to the 9am one they intended to take, but did to the 11am one. Instead, they decide to select the 11am and and travel on 9am.

There is a minimum expectation what any reasonable person would do. Demanding reasonableness from ToCs when the customer themselves are being less than that is, in my opinion, asking for it.

There's at least two main problems with this. First, you have no idea if the selection of trains the customer saw included trains before 10am, so you don't even know if it would have been possible for the customer to notice a difference in the fares offered.

Second, while I agree somebody who did notice the difference in price might be curious as to the reason for it, there are of course a number of possible explanations for this kind of thing (see below). In my opinion the customer is quite entitled to dismiss the possibility that the ticket offered against departures after 10am is not valid before 10am if the website or app tells them it is valid at any time.

Only yesterday a forum user started this thread because online retailers were not offering him the price he expected to see at certain times. If he had inferred the existence of a restriction and paid the higher price as you are suggesting people should, he would have overpayed, because the failure to offer the super off-peak ticket is not due to an actual restriction, it is due to an error in the data. The user was advised to work around the issue by selecting a different train where the super off-peak fare was offered and then travelling on his desired train, which he is of course entitled to do on a flexible ticket as long as he complies with the ticket restrictions.

The same technique is also sometimes necessary when seeking to buy a super off-peak single for travel on a train where the operator (usually LNER) has set a false 'reservations compulsory' flag and journey planners are unable to offer a reserved seat or place.

I had to coach my parents to use the technique when buying tickets for a trip to London Blackfriars because TrainPal doesn't seem to recognise the fixed link between Kings Cross and St Pancras, so does not offer itineraries between Waterbeach and Blackfriars on a through rail ticket taking the fast train into Kings Cross and walking over to St Pancras. To pay the correct fare through TrainPal it is necessary to choose an itinerary with a change to a slower Thameslink train at Cambridge (but without any intention actually to take this slower route, of course).

These are all real cases raised recently on this forum. All three are cases where the appropriate fare is shown for some journeys but not for other journeys for which it is valid.

Given this sort of thing happens all the time, even if I thought we ought to entertain the notion that an acceptable way to tell customers about restrictions on flexible tickets is to show them a list of prices and let them infer what the restrictions must be (which I don't), I would not under the circumstances be able to agree that a reasonable customer would be driven to the conclusion you have suggested as regards the prices before 10am (if they saw them).

 

[John Palmer]

The key point as I see it is that we are dealing with the intersection of contractual and statutory obligations, and there is little in the way of definitive authority on how that interface must be approached.

We must therefore fall back on general principles in which case there is nothing which would render the co-existence of a contractual obligation to pay an excess fare with a statutory obligation to pay a penalty fare inherently impossible as a matter of law.

If your point is that the NRCOT render a matter which would otherwise constitute an offence in law as not being an offence at all then that is, I’m afraid, simply incorrect as a matter of law. It is impossible for the NRCOT to have such an effect.

Having reviewed the NRCOT and the penalty fare regulations, my view is that there is no reason in principle why a penalty fare could not be lawfully issued for:

• use of an off peak ticket at a time which is not permitted;
• use of a railcard discounted ticket without the accompanying railcard or at a time when that discounted ticket is not valid; or
• travelling off route.

I quibble only slightly with the implication that there is a 'statutory obligation to pay a penalty fare'. The Penalty Fares Regulations 2018 do not, in terms, set out such an obligation. Instead they declare that an operator may recover any unpaid part of a penalty fare as a civil debt, implying nothing more than that such operator may avail itself of the mechanisms for recovery of a judgment debt having first obtained the civil law judgment entitling it to do so. Apparently operators have hitherto eschewed this course, for some reason.

Subject to that, I found no fault with @tspaul26's above analysis of the interplay between contract law and statutory obligations and their ability to co-exist. That then begs a question: if an operator is free to charge a penalty fare, or indeed prosecute, where a passenger fails to produce a valid travel ticket in the circumstances set out in NRCoT 9.5.1, 9.5.2 or 13.2, then what purpose, if any, is served by those conditions? If they confer no qualified immunity from prosecution or penalty fare then they appear to be actively misleading the intending passenger as to the terms to which his travel will be subject.

Or does a railway operator's entry into a travel contract on the terms set out in the NRCoT constitute an indication to the contracting passenger that, in the circumstances contemplated by Conditions 9.5.1, 9.5.2 and 13.2 and subject to payment of the appropriate excess, he would be “permitted to travel by or be present on the train without having a travel ticket”, as envisaged by Regulation 6(2)(d) Penalty Fares Regulations 2018 and the somewhat similarly worded Railway Byelaw 18(3)(iii)? And if not, why not?

In what circumstances specifically?

For a recent case of a penalty fare appeal where Penalty Services Ltd's assessor took the view that a penalty fare should not be charged to an 'off route' passenger by virtue of NRCoT 13.2, the relevant appeal decision can be found here.

 

[AlterEgo]

Or does a railway operator's entry into a travel contract on the terms set out in the NRCoT constitute an indication to the contracting passenger that, in the circumstances contemplated by Conditions 9.5.1, 9.5.2 and 13.2 and subject to payment of the appropriate excess, he would be “permitted to travel by or be present on the train without having a travel ticket”, as envisaged by Regulation 6(2)(d) Penalty Fares Regulations 2018 and the somewhat similarly worded Railway Byelaw 18(3)(iii)? And if not, why not?

Quite. You can’t invite a passenger to board with a ticket and say it will be made good by payment of an excess and then prosecute them.

 

[tspaul26]

That then begs a question: if an operator is free to charge a penalty fare, or indeed prosecute, where a passenger fails to produce a valid travel ticket in the circumstances set out in NRCoT 9.5.1, 9.5.2 or 13.2, then what purpose, if any, is served by those conditions?

I think as a minimum those conditions would constrain any compensable loss should a prosecution be taken and a conviction secured.

Or does a railway operator's entry into a travel contract on the terms set out in the NRCoT constitute an indication to the contracting passenger that, in the circumstances contemplated by Conditions 9.5.1, 9.5.2 and 13.2 and subject to payment of the appropriate excess, he would be “permitted to travel by or be present on the train without having a travel ticket”, as envisaged by Regulation 6(2)(d) Penalty Fares Regulations 2018 and the somewhat similarly worded Railway Byelaw 18(3)(iii)? And if not, why not?

I think this is an interesting point.

It seems to me that the NRCOT could indeed constitute such an indication or permission (in theory).

However, I think it would then be incumbent upon the passenger to pay the excess fare prior to boarding if the necessary facilities are available. A failure so to do could also go towards evincing an intention to avoid his fare under RORA section 5(3).

Quite. You can’t invite a passenger to board with a ticket and say it will be made good by payment of an excess and then prosecute them.

It’s not really that simple though.

For example:

1. When, where and by whom was the passenger ‘invited to board’?
2. In the recent cases I am aware of on this forum the passengers travelling off route did not pay the excess before boarding, but could have.
3. As I mentioned above, I see no reason in principle why the passenger cannot be prosecuted as long as the requisite elements of the offence are made out.

And practice in the real world indicates that such passengers can be - and are - prosecuted.

 

[redreni]

I think as a minimum those conditions would constrain any compensable loss should a prosecution be taken and a conviction secured.


I think this is an interesting point.

It seems to me that the NRCOT could indeed constitute such an indication or permission (in theory).

However, I think it would then be incumbent upon the passenger to pay the excess fare prior to boarding if the necessary facilities are available. A failure so to do could also go towards evincing an intention to avoid his fare under RORA section 5(3).


It’s not really that simple though.

For example:

1. When, where and by whom was the passenger ‘invited to board’?
2. In the recent cases I am aware of on this forum the passengers travelling off route did not pay the excess before boarding, but could have.
3. As I mentioned above, I see no reason in principle why the passenger cannot be prosecuted as long as the requisite elements of the offence are made out.

And practice in the real world indicates that such passengers can be - and are - prosecuted.

In the cases we're discussing relating to the 16-30 Railcard minimum fare and Anytime tickets, anything under RORA is going to rely on being able to prove the passenger did it on purpose, surely? I suspect that would present enormous difficulties, given what we know about the way these tickets are retailed online.

 

[tspaul26]

In the cases we're discussing relating to the 16-30 Railcard minimum fare and Anytime tickets, anything under RORA is going to rely on being able to prove the passenger did it on purpose, surely?

Did what on purpose?

I suspect that would present enormous difficulties, given what we know about the way these tickets are retailed online.

I don’t think a competent prosecuting advocate would have much difficulty in establishing a plausible prima facie case at trial, assuming that the scenario involves a discounted anytime fare used before 10am which has been purchased online by selecting a later itinerary.

 

[redreni]

Did what on purpose?

Whatever they're accused of, of course.

I don’t think a competent prosecuting advocate would have much difficulty in establishing a plausible prima facie case at trial, assuming that the scenario involves a discounted anytime fare used before 10am which has been purchased online by selecting a later itinerary.

Hmm. Okay, I'll take it from you the offence could be made out. Seems very defensible to me, depending on the circumstances.

 

[John Palmer]

I think this is an interesting point.

It seems to me that the NRCOT could indeed constitute such an indication or permission (in theory).

However, I think it would then be incumbent upon the passenger to pay the excess fare prior to boarding if the necessary facilities are available. A failure so to do could also go towards evincing an intention to avoid his fare under RORA section 5(3).

I certainly agree that refusal to pay an excess correctly charged under Condition 9.5 is capable of evidencing the intent ingredient of Section 5(3) RoRA 1889.

However, for two reasons I can't go along with the proposition that it then becomes incumbent upon the passenger to pay the excess before boarding if facilities to do so are available.

First, it is apparent from the way NRCoT 9.5.1 and 9.5.2 are worded that they are intended to cater for situations arising whilst travel on the relevant train is actually in progress:- “are using a time-restricted Ticket … that is correctly dated but invalid for the service on which you are travelling” and “are using a route for which your Ticket is not valid”. In this respect it seems to me that the Conditions' draftsman has correctly anticipated the circumstances in which ticket imperfections the operator is content to deal with by charge of an excess will come to light.

Second, if the excess is paid before boarding, the act of doing so must be such as to cure the imperfection in the ticket's validity giving rise to liability for such excess. That means that the ticket has already become valid by the time it is presented in response to a demand made on the train, so that the need to rely upon Penalty Fares Regulations 6(1) and 6(2)(d) or Byelaw 18(3)(iii) has fallen away.

 

[Haywain]

anything under RORA is going to rely on being able to prove the passenger did it on purpose, surely? I suspect that would present enormous difficulties, given what we know about the way these tickets are retailed online.

While @tspaul26 (and, for that matter @John Palmer) is far more knowledgable on legal matters than I am, it is important to bear in mind that, in law, intent is not judged by mind reading but by words and actions. In that respect, proving intent is not as difficult as you seem to think.

 

[redreni]

While @tspaul26 (and, for that matter @John Palmer) is far more knowledgable on legal matters than I am, it is important to bear in mind that, in law, intent is not judged by mind reading but by words and actions. In that respect, proving intent is not as difficult as you seem to think.

Oh, good, can we get rid of all the strict liability offences, then?

 

[Haywain]

Oh, good, can we get rid of all the strict liability offences, then?

No.

 

[furlong]

Or does a railway operator's entry into a travel contract on the terms set out in the NRCoT constitute an indication to the contracting passenger that, in the circumstances contemplated by Conditions 9.5.1, 9.5.2 and 13.2 and subject to payment of the appropriate excess, he would be “permitted to travel by or be present on the train without having a travel ticket”, as envisaged by Regulation 6(2)(d) Penalty Fares Regulations 2018 and the somewhat similarly worded Railway Byelaw 18(3)(iii)? And if not, why not?

The overlap between Penalty Fares and NRCoC was considered by the SRA when it held responsibility for the implementation of Penalty Fares and it took the following view as to how to reconcile them (SRA Policy, May 2002):

Ticket restrictions. Many types of ticket cannot be used at certain times of day, on certain days of the week or on certain trains. These ticket restrictions can be complicated, and even familiar tickets such as cheap day returns can have different restrictions on different routes. If a passenger travels on a train on which their ticket is not valid, it is more likely that the restrictions were not properly explained to them than that they are deliberately trying to avoid paying the right fare. We believe that it is up to the train operators to make sure that each passenger understands the restrictions which apply to the ticket which they are sold. Under rule 7, a passenger may not be charged a penalty fare if he or she has a ticket for the journey which they are making that is not valid on that train only because of a ticket
restriction. In these cases, the passenger only needs to pay the excess fare, in line with the National Rail Conditions of Carriage.

Ticket routing. A passenger who has a ticket for the journey they are making, but who is using a route on which their ticket is not valid, may not be charged a penalty fare. The National Rail Conditions of Carriage allow the passenger to pay an excess fare to travel on a different route from that shown on their ticket.

As the body responsible at the time, and with essentially the same wording in force today and no public consultations regarding these matters in the intervening period, I think its position must be held as remaining persuasive today.

The other point is that ticket validity is not some abstract concept, but rather the only way to determine whether or not a ticket is "valid" is by reference to the contract itself, and as the contract is necessarily involved in a determination of whether or not a criminal offence has occurred or whether or not a civil penalty may be imposed, and this was of course known when the words were drafted, it would be wrong to treat the contract selectively and not consider it in full in the specific context of the facts in play in any particular instance.

 

[BongoStar]

Managed to get to my laptop, so a long post.

I am no expert in criminal law, just starting out in contract law (and that even business/commercial for now). However we must take a moment to understand why ToCs view that railcard discount misuse before 10am is not excess-able.

(I will keep the example limited to network card and probably refer to GWR and Reading to London Paddington or Waterloo below)

There is the reasonable assumption that anyone caught on a train before 10am with a railcard discounted ticket has done it previously and therefore allowing the passenger to excess it misses the change to investigate other instances. It is therefore completely reasonable that the passenger is not PF'ed even and details taken for further investigation.

Coming to the contractual part of it. You cannot excess something that does not exist.

We will leave aside purchases from third parties and focus on three most common methods to purchase a ticket.

1. On the counter - will not be a problem if you try to buy a ticket when not valid as you will be inquired about it.
2. At the TVM - for network card (and I have confirmed myself at Reading station this Friday), you will not be able to select the Network card discount option if you try to buy a ticket when its not valid. Having said that, if you try to buy one after 10am, then technically it is valid anytime, because from the moment it is issued, it is valid for anytime from then. To re-iterate, it will not issue you a ticket pre-10am with the discount
3. Online on GWR website. It clearly shows you on the mixing deck the various prices at various times. With a disclaimer that prices will change based on selection.


Now that we have got that out of the way, lets look at is common in all three methods above.

1. You need to specify your origin and destination
2. You need to specify when you intend to travel

And these are considered material conditions/representations. The whole contract is drafted based on these two inputs. All other items are other representations/conditions. I must emphasize the important distinction between material representations and other representations (reps for short for now).

Material reps are those that if altered even slightly, will change the decision/price/output of what is being discussed and the change, if indicated at the outset, would result in either party pricing the contract differently. It is mandatory for both parties to agree to even the slightest change in material reps.
Other reps are those that if altered slightly, would not change the eventual output and even if indicated at the outset, would not have resulted in a material change to the contract.

To the best of my knowledge, you cannot purchase a ticket without the two reps above being clear to both parties.

1. Origin and destination
No TVM or online retailer will sell you a ticket without specifying these and you might be laughed out of the queue at a counter. Fare experts can help me out, but in theory, you could buy a ticket from everywhere to everywhere, in the sense that a counter staff with enough time on their hand, may be able to sell you a set of 2-3 anytime tickets from the most north station in the country to the most south as an anytime return with break of journey permissible and perhaps you can use that to travel from anywhere to anywhere - a very expensive proposition if one wants to do.

2. When to travel
By this I do not mean the exact time, but rather where the intended time to travel falls within the fares available to issue. Going back to the methods of purcahse, if you are buying online, you must enter a time but for the other two, you only need to specify whether you are travelling peak or off peak (and when you intend to return where applicable).


Once the above two information is furnished by the customer, the ToC offers the fares it is willing to issue for the journey. These can vary based on:
1a. The origin and destination. Change these and the ToC will reprice the journey.
1b. The route taken. Change this and the ToC will reprice the journey.
2a. Whether the journey is peak or offpeak within the fare structure. Change this and the ToC will reprice the journey.
3. Class of journey (I will ignore this bit from below as all our discussion is on standard class).

There are other reps which if you change, will not result in a reprice, example seat selection, cycle rack, aisle/window etc. Change these and no reprice will happen.


In the fare offers, a customer is presented with the following options, with decreasing flexiblity:
1. Anytime / Any route permitted - no restrictions at all on when and how you travel (within routing reason)
2. Anytime / Specific route - no restriction on time, but limited to a specific route
3. Off peak / Any route - can travel at any time except peak time but can use any route
4. Off peak / Specific route - can travel at any time except peak time and limited to a specific route
5. Advance fare - travel restricted to a specific time and route. not valid in all other instances


A lot of words till now, but coming to the main point.

If a customer approaches a ticketing counter and tries to buy a ticket for travel at 9am with a network railcard, they will not be sold a ticket because such a fare offer does not exist. This is very important to grasp. Its not a question of not able to sell/buy, but fundamentally, staff/retailer can not sell what is not there. This ticket offer will exist from 10:01am onwards, but not before that.

And therefore, anyone getting on a 9am with a network discounted ticket is effectively boarding without a ticket.

This is very different from boarding a 9am with an offpeak, which the ToCs are willing to excess, because at 9am, a peak ticket exists for exactly the same journey for which the offpeak one is being used. Or for that matter, when the route is changed, the inspector may issue an excess for the correct route because both of them exist at the point in time the journey is being made. But at 9am, no "peak network railcard discounted fare" exists and therefore the question of excessing the post 10:01am ticket doesnt arise - its straight PF similar to holding no ticket or TIR if there is a cause to believe there are more instances. You can't excess to something that doesn't exist. There is the argument that why not allow them to excess to an anytime undiscounted fare, but thats inviting to "pay when challenged". In my view, the current rule is based on a framework that is tied to the fundamentals of ticket issuance and therefore provides a predictable outcome in what to do when something doesnt go per plan.

I know I have mentioned many time the importance of time selection, but where the whole "fare offer" is presented to the buyer based on just 2 key reps, it would be wrong to dismiss any of them as irrelevant.

 

[AlterEgo]

I certainly agree that refusal to pay an excess correctly charged under Condition 9.5 is capable of evidencing the intent ingredient of Section 5(3) RoRA 1889.

However, for two reasons I can't go along with the proposition that it then becomes incumbent upon the passenger to pay the excess before boarding if facilities to do so are available.

First, it is apparent from the way NRCoT 9.5.1 and 9.5.2 are worded that they are intended to cater for situations arising whilst travel on the relevant train is actually in progress:- “are using a time-restricted Ticket … that is correctly dated but invalid for the service on which you are travelling” and “are using a route for which your Ticket is not valid”. In this respect it seems to me that the Conditions' draftsman has correctly anticipated the circumstances in which ticket imperfections the operator is content to deal with by charge of an excess will come to light.

Add to this the fact the railway’s own FOI-able staff guidelines, which we have available to read, indicate when and how to charge these excesses, and that they are done so, on board and without penalty. It seems abundantly clear to me.

These rules also explain that using a time restricted ticket at the wrong time or being off route, or breaking journey when not permitted, are not to be subject to Penalty Fares.

 

[PeterC]

Reading this I realused that I could only remember the Senior Railcard time restrictions as applied to Oyster. For paper tickets in the South East the only way to check is to get a fare from a ticketing site.

I tried that on the National Rail site for a trip from Romford to Chelmsford at 8:30. Discount available on all departures except the 09:28 which is the first Greater Anglia departure. I hadn't realised that peak time rules varied by TOC for the same pair of stations.

 

[Adam Williams]

Reading this I realused that I could only remember the Senior Railcard time restrictions as applied to Oyster. For paper tickets in the South East the only way to check is to get a fare from a ticketing site.

The Senior Railcard is particularly bad for discoverability of the time restrictions due how it's designed. If you know what to look for and know which stations are considered in the South East, you can check on BRFares, but it will likely be easier to throw the details into a ticketing site.

 

[nanstallon]

The willingness for people to row in behind the government and large businesses in a row over consumer rights will always be culturally unique to this strange, supine island of ours. The individual citizen who has no power in this relationship, is wrong, an idiot, acting in bad faith, yet the train company is doing nothing wrong.

“Passengers should have fewer rights as public transport users, actually”

In Britain the hero is Giant the Jack Killer. Very sad.

 

[redreni]

In Britain the hero is Giant the Jack Killer. Very sad.

The Giant has to make "tough decisions"...