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Hypothetical - changing an advance if the facilities offered change

Discussion in 'Fares Advice & Policy' started by Phil from Mon, 8 Jan 2019.

  1. Phil from Mon

    Phil from Mon Member

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    If I bought an advance ticket for a service that offers particular facilities, for example a restaurant car or hot food, and that enhanced service is withdrawn (eg for maintenance issues) before I travel, would I be entitled to change the advance booking without penalty? It seems to me that it would be a significant change that, in other industries, might allow it.
     
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  3. island

    island Established Member

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    I don’t think you’d have a legal entitlement as a ticket is for travel and most onboard facilities like this are complimentary and subject to change, though I suspect a polite phone call to the relevant TOC’s customer service line would elicit a favourable response.

    There is a contrary view that if you relied on representations by the trader that such and such a service would be available on board, it is now a term of the contract, though even accepting this view as right for the sake of argument, the remedy for this would be a reduction in the price of the service (i.e. a partial refund) rather than rescission (the ability to cancel or change the contract for free).
     
    Last edited: 8 Jan 2019
  4. ForTheLoveOf

    ForTheLoveOf Established Member

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    In my view, even though the rail industry's conditions do not explicitly allow this, I think it is likely to be the case thanks to Section 50 of the Consumer Rights Act 2015 (not to mention the principles of contract law, being that such a change may represent a unilateral, material variation, to which you have the right to object).

    If you are told that these services are available, this influences your purchasing decision (note, it need not be the deciding factor, it merely needs to influence your decision), and the services end up not being available, it would stand to reason that you are entitled to an "appropriate" (S56(1)) price reduction/refund if you end up nevertheless travelling. If you decide not to travel, it stands to reason that the contract can be rescinded at your option, i.e. that you return the tickets and receive a full refund.
     
  5. island

    island Established Member

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    In what part of the law are you seeing a right to rescind the contract? I cannot see this as an entitlement.
     
  6. ForTheLoveOf

    ForTheLoveOf Established Member

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    It is a unilateral change to the contract, and it may be considered material (if for example the passenger has decided to pay more for a first class ticket, having predicated that choice on receiving additional services). Therefore, the right to refuse the variation exists. If the train company insists on the variation, then the only option remaining is to terminate the contract. Any term purporting to require the consumer to accept the variation (not that such a term really exists in the NRCoT or elsewhere) is a grey-listed unfair term under Schedule 2 of the Consumer Rights Act 2015, and is considered by the Competition and Markets Authority to likely be unfair, and therefore not binding on the consumer.

    Furthermore, as you asked for the common law basis of my claim, here goes. Historically, any alteration not approved by all the parties to the original document made to a deed or other instrument (e.g. a contract) after the execution would render it void (Pigot's Case (1614) 11 Co Rep 266; Master v Miller [1791] 4 Term Rep 320). However, the rule in Pigot's Case has since been held to be applicable only where the alteration made was a material alteration (Aldous v Cornwell (1868) LR 3 QB 573; Crediton (Bishop) v Exeter (Bishop) [1905] 1 Ch 455).

    Whether or not an alteration would be considered material depends on whether or not there has been an alteration in the legal effect of the contract or instrument concerned in the sense of some alteration in the rights and obligations of the parties (Raiffeisen Zentralbank Osterreich AG v Crossseas Shipping Ltd [2000] 1 WLR 1135). I have discussed the application of whether or not the variation in this case would be material earlier; I don't think there is any case to be made that removing complimentary services that were advertised as available, and which induced the passenger to pay more than they otherwise would have, is not a material variation.
     
    Last edited: 8 Jan 2019
  7. island

    island Established Member

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    There are no terms requiring the customer to accept the variation, so let’s ignore all that. The CRA does not give any right to rescind or repudiate the contract, so that’s no help. The contract itself has no such terms either (contrast with, for example, package holidays, where the contract normally has a right to cancel for a “material change”). We therefore need to fall back on the common law.

    Here we are dealing with an anticipatory breach of contract, but not a repudiatory one. To be a repudiatory breach, the breach would have to deprive the innocent party of the substantial benefit of the contract. The substantial benefit of a normal train ticket is travel from A to B. The non-provision of catering on board the train does not deprive the passenger of the substantial benefit of the contract. It follows that the appropriate remedy, if any, is damages at common law for breach of contract, or in the alternative, an appropriate price reduction under the CRA. The amount of any damages or reduction would be for the parties to agree, or the courts to decide on in default of agreement.

    (By contrast, were we discussing a rail tour or similar arrangement where the journey is circular and substantial meals are included in the ticket price, I would be considerably more likely to conclude that the non-provision of that on-board service deprives the passenger of the substantial benefit of the contract and gives rise to a right of repudiation.)

    In the present situation, however, it is not correct that the theoretical passenger has the right to refuse the variation and repudiate the contract (or obtain a free ticket change); however, as I said previously, I anticipate either of these options would be offered by the TOC if asked politely.

    You can read more on the topic of anticipatory and repudiatory breaches at https://www.inbrief.co.uk/contract-law/anticipatory-breach-of-contract/
     
  8. Silverdale

    Silverdale Member

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    Exactly. It depends... And where the parties disagree, only a court can decide the matters of whether a change is material or not, and if so whether it renders the contract void, or simply that the provider is in some material breach.

    What's not the case is that the customer can decide for themselves whether a change is material or not, conclude that it must be, that the contract is therefore void and that it necessarily follows that they can simply decide not to travel and be entitled to a full refund, which is what you appear to be claiming.
     
  9. Phil from Mon

    Phil from Mon Member

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    Thanks guys, an interesting legal problem. It would appear that the “polite request” would be the best way to go, unless someone is willing to test the legal arguments.
     
  10. ForTheLoveOf

    ForTheLoveOf Established Member

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    Polite request is usually always the best first approach, regardless of whether you are legally in the right or the wrong. It is only if that polite request is denied that a legal claim comes into consideration.

    Making a claim against a train company for breach of contract is not difficult or expensive, although it may take a while if you are not used to the process. I don't think anyone should shy away from exercising their rights because of the fear of taking the matter to Court.
     
  11. Starmill

    Starmill Events Co-ordinator

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    The discussion of contract law and then Consumer Rights Act is likely to be for the birds, frankly.

    I would be rather disappointed in any operator who didn't agree to allow travel on a different train where capacity allows in cases where, for example, no catering can be provided.
     

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