National Rail Conditions of Travel 'unlawful'

[meridian2]

You may well be having a laugh but when I was a bus driver somebody did actually write in and complain that because my bus was (unusually) on time she missed it.

My Manager looked at me and said "I dont know whether to castigate or congratulate you, either way dont do it again, I think", he then burst out laughing!

I can well believe it. Systematic lateness is something people can factor in to their journey times, random lateness is harder to accommodate. Once or twice a week my wife will have to chair a committee or something similar that demands she's sitting at her desk by 9 o'clock. If she went by the timetable she'd be ten minutes early for work, pretty much ideal, but experience has shown she'd probably be a few minutes late, and no one wants to be last at the meeting, especially if you're chair. So a couple of times a week she catches the train an hour earlier, which is late much less often, getting her to her desk an hour and ten minutes too soon.

It seems the service is mostly running to time now, but years of the old regime means she tends to catch the earlier train even though the new one would probably get her to work on time. Sacrificing an extra hour in bed, especially in winter, on a will-it-or-won't-it be late basis does nothing for her stress levels!

 

[Richard_B]

I agree that there is always going to be a problem with drawing the line, but I don't think that's a reason to let the TOCs get away with it. The whole reason we have a court system is to adjudicate things like where the line of reasonable is. To me it just seems like making the TOCs less liable for their trains being late stinks of the attitude that the timetable is just a suggestion and that it's not really to be taken seriously. And I don't think that's a good thing for passengers or anyone

 

[HH]

I'd say the law was fairly clear on the matter - if the loss is foreseeable then the railway would be generally responsible for that loss. Of course there will be circumstances that are arguable.

As to the wording of the NRCOC, I'd say it did need changing. Although it does say that it's not trying to remove consumer rights, the wording is likely to cause trouble if it's ever challenged in court, as denying consequential losses may be deemed an Unfair Contract Term.

 

[All Line Rover]

I'd say the law was fairly clear on the matter - if the loss is foreseeable then the railway would be generally responsible for that loss. Of course there will be circumstances that are arguable.

Would you care to articulate why this is? That is, refer to a particular case or statutory provision that supports this?

A contract for travel by rail is a contract to get from A to B. Only. TOCs might not contractually agree to get a customer to B on time, but failing to do this could, in certain circumstances, be construed as a failure to exercise "reasonable care and skill" in providing the service, which should justify a price reduction. Delay Repay does this perfectly well for delays of at least to 30 minutes, although not for delays (particularly frequent delays) that are less than 30 minutes.

However, a contract for travel by rail is not a contract to get from A to B for an important business meeting at B that, if arriving at B late, will result in a profitable contract being lost.

If the suggestion is that a taxi fare was incurred because the customer was only conveyed halfway from A to B and was left to their own devices to complete their journey, and it is the taxi fare which should be recoverable as consequential losses, I agree that the taxi fare should be recoverable. This confines consequential losses to losses incurred in getting to B (as agreed under the contract), and not consequential losses incurred as a result of a delayed arrival at B.

 

[infobleep]

But what is a reasonable contingency for the TOC to have? A number of spare drivers equivalent to the number rostered? A number of spare trains equivalent to the number in use?

In which case it may be chose to pay out now and again rather than hire.

 

[HH]

Would you care to articulate why this is? That is, refer to a particular case or statutory provision that supports this?

This is general case law; it's not statutory. I am not a lawyer, just experienced in dealing with contracts. You can easily find some written opinions on consequential loss if you Google. Opinion means that it is not law (yet); however I don't think you'd find an opinion that differed substantially from what I said - the principles here are well established.

A contract for travel by rail is a contract to get from A to B. Only. TOCs might not contractually agree to get a customer to B on time, but failing to do this could, in certain circumstances, be construed as a failure to exercise "reasonable care and skill" in providing the service, which should justify a price reduction. Delay Repay does this perfectly well for delays of at least to 30 minutes, although not for delays (particularly frequent delays) that are less than 30 minutes.

Exactly what is the contract for rail travel? On the back of my ticket it states that it is issued subject to the NRCoC (although, in fact they were replaced by the NRCoT on 1/10/16). However, the NRCoT is still subject to the laws of the land, both statutory and common (case). Whether the railway exercised reasonable care and skill is an argument about whether it's at fault, whereas the argument about consequential loss is one about damages.

The point that Which is making is that the NRCoT appears to try and limit those damages beyond what it can legally do. I don't know whether they are correct, but it certainly looks like there's 'a case to answer'.

However, a contract for travel by rail is not a contract to get from A to B for an important business meeting at B that, if arriving at B late, will result in a profitable contract being lost.

If the suggestion is that a taxi fare was incurred because the customer was only conveyed halfway from A to B and was left to their own devices to complete their journey, and it is the taxi fare which should be recoverable as consequential losses, I agree that the taxi fare should be recoverable. This confines consequential losses to losses incurred in getting to B (as agreed under the contract), and not consequential losses incurred as a result of a delayed arrival at B.

I said something similar earlier, but that's an opinion, not a fact.

 

[lejog]

Would you care to articulate why this is? That is, refer to a particular case or statutory provision that supports this?

A contract for travel by rail is a contract to get from A to B. Only. TOCs might not contractually agree to get a customer to B on time.

While I agree that that is true of the current contract, the Consumer Rights Act 2015 says:

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.......

I certainly take into account timetabled departure and arrival times before buying a ticket.

 

[EM2]

I certainly take into account timetabled departure and arrival times before buying a ticket.

Some timetables note the type of train that will be used to run a service. If you book a ticket based on that information, and it turns out not to be the case, would you have a claim under the Consumer Rights Act?

 

[HH]

Some timetables note the type of train that will be used to run a service. If you book a ticket based on that information, and it turns out not to be the case, would you have a claim under the Consumer Rights Act?

You might, but you would also have to prove you suffered damage; in most cases that might prove a little difficult.

 

[lejog]

I'd say the law was fairly clear on the matter - if the loss is foreseeable then the railway would be generally responsible for that loss.

Would you care to articulate why this is? That is, refer to a particular case or statutory provision that supports this?

I already have, but you put forward your opinion that:

A term excluding liability for consequential losses is not inappropriate.

This flies in the face of years of rulings by the OFT under the previous Unfair Terms legislation, now incorporated in the 2015 Act, which has ordered the removal of terms with blanket exclusions of consequential loss (such as that found in the NRCOT) from consumer contracts and agreed replacement terms which only exclude business related losses or losses due to unforseen circumstances. Several examples of old and new clauses excluding consequential loss may be found on p32-3 of OFT Unfair Terms Guidance - here are a couple:

Original term: In no event shall Microsoft or its suppliers be liable for lost profits or indirect, consequential, incidental, special or punitive damages ... arising out of any breach or failure of Microsoft even if Microsoft or its suppliers have been advised of the possibility of such dangers ...

New term: Microsoft's and its suppliers' liability shall not in any event include losses related to any business of the Customer such as lost data, lost profits or business interruption.

Original term: Sky shall have no liability under this Agreement in respect of any indirect or consequential loss resulting from negligence or any other tort on the part of Sky or any of its officers, employees or agents.

New term: We will not be liable under this contract for any loss or damage caused by us or our employees or agents in circumstances where:
i) there is no breach of a legal duty of care owed to you by us or by any of our employees or agents
ii) such loss or damage is not a reasonably foreseeable result of any such breach, and
iii) any increase in loss or damage resulting from breach by you of any term of this contract.

 

[lejog]

I also refer you to the current (post 2015) guidance relating to consequential loss exclusion issued by the Competition and Markets Authority

5.6.10 Fairness is more likely to be achieved, for example, by excluding liability for:
(a)losses that were not foreseeable to both parties when the contract was formed
(b)losses that were not caused by any breach on the part of the trader
and
(c)business losses, and/or losses to non-consumers

 

[All Line Rover]

This flies in the face of years of rulings by the OFT under the previous Unfair Terms legislation, now incorporated in the 2015 Act

Where have they been incorporated? This is a simple question to which I am still awaiting an answer. Part 2 of the Consumer Rights Act, by and large, incorporates the UTCCRs.

The OFT lost numerous times in the Supreme Court on their interpretation of unfair terms, so I wouldn't take their (former) views as gospel, although in any case the examples you give from Sky and Microsoft are of a different nature from the NRCoT, which reads:

"Except as shown above [personal injury / property damage etc], Train Companies will not accept liability for any loss (including consequential loss), caused by the delay and/or cancellation of a train service. However, they will consider additional claims in exceptional circumstances.

This [does] not affect rights and remedies you would otherwise have under the Consumer Rights Act 2015..."​

Arguably that could do with being cleaned up, although not to the extent that some posters seem to be suggesting in this thread.

 

[lejog]

Where have they been incorporated? This is a simple question to which I am still awaiting an answer. Part 2 of the Consumer Rights Act, by and large, incorporates the UTCCRs.

The subordinate clause in my post referred to the word previous word legislation, not the more distant phrase "years of rulings". I fear your question will remain unanswered while you insist on taking a different view of the meaning of the phrase "inappropriately excluding or limiting the legal rights" from that which has prevailed since 1999.

The OFT lost numerous times in the Supreme Court on their interpretation of unfair terms, so I wouldn't take their (former) views as gospel,

Since the Supreme Court only handled 92 cases covering the whole law last year, I find it difficult to believe that the decisions of OFT with regard to unfair terms have featured "numerous times" even since 1999. While your opinion may not be to "trust" the decisions of the OFT, the fact is that 2015 Act still delegates the initial enforcement of unfair terms to regulators, principally nowadays the CMA.

However rather than discussing the degree of competence of an extinct regulator let's return to the on-topic matter of the NRCOT's exclusion clause. Can you please inform us of cases where any regulator's decisions limiting consequential loss exclusion to unforseeable and business-related losses have been overturned by the courts?

although in any case the examples you give from Sky and Microsoft are of a different nature from the NRCoT, which reads:.

I believe they showed how terms were limited, whatever their nature. However there are more examples in the link provided, and these themselves are only examples.

Arguably that could do with being cleaned up, although not to the extent that some posters seem to be suggesting in this thread.

I hope such "cleaning up" is in line with the current CMA guidelines (as an identified first level enforcer of unfair terms legislation) and only attempts to exclude unforseeable and business related losses.

Also that the NRCOT complies fully with Chapter 4 of the 2015 Act, rather than passengers having to rely on the law to insert compliant terms.

 

[All Line Rover]

I fear your question will remain unanswered while you insist on taking a different view of the meaning of the phrase "inappropriately excluding or limiting the legal rights" from that which has prevailed since 1999.

I take the view that there is no one legally binding interpretation applicable in all contexts that has "prevailed since 1999". No more, no less.

Since the Supreme Court only handled 92 cases covering the whole law last year, I find it difficult to believe that the decisions of OFT with regard to unfair terms have featured "numerous times" even since 1999.

Pedant alert: I don't bother distinguishing between the HL and SC.

Two of the most notable cases are First National Bank (2001) and Abbey National (2009). If you want more, look up a book.

the fact is that 2015 Act still delegates the initial enforcement of unfair terms to regulators, principally nowadays the CMA.

I agree. But Which is not necessarily saying what the CMA is saying and, even if Which were, the rail industry could refuse to comply with the CMA's request and seek a judicial determination, as has happened previously in the banking industry (amongst others).

Can you please inform us of cases where any regulator's decisions limiting consequential loss exclusion to unforseeable and business-related losses have been overturned by the courts?

How about informing us of such decisions that are pertinent to the NRCoT clause under consideration, rather than draw general and unsubstantiated conclusions which you interpret as fact?

 

[HH]

Two of the most notable cases are First National Bank (2001) and Abbey National (2009). If you want more, look up a book.

...the rail industry could refuse to comply with the CMA's request and seek a judicial determination, as has happened previously in the banking industry (amongst others).

The case of Abbey National's Overdraft Charges appears to bear scant resemblance to the NRCoT.

At the very least the NRCoT needs to re-written to make clear what it is trying to say.

In addition I feel that if someone claimed consequential losses based on missing a flight because a train was more than 2 hours late that they would succeed in court. Do you disagree, and if so, why?

 

[All Line Rover]

The case of Abbey National's Overdraft Charges appears to bear scant resemblance to the NRCoT.

...

In addition I feel that if someone claimed consequential losses based on missing a flight because a train was more than 2 hours late that they would succeed in court. Do you disagree, and if so, why?

I mentioned the Abbey National case to show that viewpoints firmly held by the OFT / CMA aren't always adopted by the judiciary. The particular issue involved was, as you identify, different.

We don't have an integrated transport system. Consequential losses resulting from a missed flight are little different to consequential losses resulting from e.g. a missed theatre show. So yes, I do disagree, in that I believe that consequential losses resulting from a missed flight or a theatre show differ from consequential losses resulting from e.g. personal injury.

 

[lejog]

I take the view that there is no one legally binding interpretation applicable in all contexts that has "prevailed since 1999". No more, no less.

That's your view. Of course there's no legally binding interpretation, let alone one "appropriate in all contexts". The first level of enforcement has been delegated to regulators, and AFAIK no appeal has been made to the level of a precedence setting court. It seems that all companies from the size of Microsoft downwards have changed their ts&cs regarding consequential losses rather than appeal. Little sign of support for your interpretation of "inappropriately excluding or limiting the legal rights" there, the regulators seem to have a somewhat higher high success rate with theirs.

Two of the most notable cases are First National Bank (2001) and Abbey National (2009). If you want more, look up a book.

I'm not particularly interested thank you, I merely questioned your use of the word "numerous". I wouldn't personally say that two was numerous.

I agree. But Which is not necessarily saying what the CMA is saying and, even if Which were, the rail industry could refuse to comply with the CMA's request and seek a judicial determination, as has happened previously in the banking industry (amongst others)

Which? are only at the stage of writing a letter to TOCs, and currently we have only a typically garbled press release to go on, not the actual letter. However they do seem be talking of both factors concerning both Parts 1 (Consumer Contracts) and 2 (Unfair terms) of the 2015 Act, which I presume would have to be dealt with by the courts. The rail industry could appeal against any CMA decision on consequential loss as high as they wish, but it seems no-one else has bothered in 18 years.

How about informing us of such decisions that are pertinent to the NRCoT clause under consideration, rather than draw general and unsubstantiated conclusions which you interpret as fact?

I gave, in my view, examples of terms found to be unfair, which are similar in content to the potential unfair term in the NRCOT - TOCs "will not accept liability for any loss (including consequential loss)".

• Microsoft will not "be liable for lost profits or indirect, consequential, incidental, special or punitive damages"
• Sky "shall have no liability .... in respect of any indirect or consequential loss"

We are discussing unfair terms regarding consequntial loss here aren't we? Can you specify more precisely how you wish examples of unfair terms to be "more pertinent"?

 

[All Line Rover]

We are discussing unfair terms regarding consequntial loss here aren't we? Can you specify more precisely how you wish examples of unfair terms to be "more pertinent"?

If you haven't identified that already I don't believe there is anything more I can add.