Permitted routes

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DaveNewcastle

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A consumer contract may be a for the supply of goods (transfer of ownership) or for the supply of services - rail travel falling into the latter category. . . .
I'd be grateful if you could demonstrate how a Ticket for a Rail Journey is captured by The Unfair Terms in Consumer Contracts Regulations, S 4.2.(a) may help.

As I commented, I acknowledge that this is a popular belief (by which I mean that there is ample evidence of reports from other people who share that belief and who have made that assertion), even a very popular belief, and it is trivially easy to read 5.1 of those Regulations as if it applied to a Rail Journey.
So its a belief for which I would be grateful to find substantiation in Law as until we do, I am simply unable to agree with you that "that there is a clear indication that these consumer protection regulations are intended to cover railway contracts", (though whether that was the Department of Trade's intention or not at the time is perhaps only of passing interest now).

Turning to your reference to The Office of the Rail Regulator, the ORR has limited jurisdiction in assisting the passenger in a dispute concerning the subject of this thread unless it has broader impact.
 
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MarkyMarkD

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I'm not sure I quite understand your point there, Dave. NRCOC is a contractual document, and rail travel involves a contract between the customer and the train operating companies.

The only way I can read the section you refer to is that, clauses of NRCOC which simply reflect statutory provisions, are not subject to UTCCR but that the rest of NRCOC is.
 

DaveNewcastle

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Yes, I'm very familiar with the thinking (that tickets for Rail journeys are undertaken by way of a Contract and that the Contract contains Terms which may be open to interpretation as being 'unfair').
What I am not familiar with is the evidence which shows that the Routing restrictions and permissions we're discussing are captured by that Consumer Legislation. The Regulation of Railways Act is an unusual creature in that it extends the reach of Criminal Law to cover Rail Travel. What I think we are looking for is evidence of Consumer Legislation capturing terms within the scope of Criminal Law (even if a particular matter may alternatively be dealt with by way of a Civil Claim or even under additional legislation such as the Penalty Fares Regulations).

My point, if I am trying to make one at all, is that I would like to be shown evidence of Consumer Legislation being successfully applied to Routing (or similar arcane Railway restrictions) in Rail Travel. (Even evidence of an unsuccessful application would be helpful, as that's all I suspect we will find!).
 

34D

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Well, in your example, definitely yes, because the customer was sold the ticket by a member of staff of an ATOC member, in good faith believing it was valid for the itinerary shown. As has previously been mentioned, whilst tickets are sold subject to NRCOC, these are not made readily available and do not therefore form an effective part of the contract made; even if NRCOC was made available, the statements by the member of staff over-ride standard conditions in the event of any inconsistency. ** It's worth emphasising that there is case law that shows the precedence of specific statements over standard contract wording (Couchman v Hill if anyone is interested!). **

Consumers in the same situation in any other supplier/consumer situation would definitely not be prosecuted for the equivalent of fraud/theft.

And, by extension, if a consumer is sold a ticket by an online ATOC certified website, and relies on the itinerary provided, it is ludicrous that there should ever be any attempt by an ATOC member to pursue the customer for travelling without a valid ticket.

The correct resolution for any such situation is to address the failings by the retailer of the ticket, not to prosecute the customer.

So are we concluding that the tickets technically aren't valid (by a route that isn't permitted) and in theory the passenger is guilty of a strict liability offence, BUT that in reality no TOC would take action against a passenger with such a ticket?
 

transmanche

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I'd be grateful if you could demonstrate how a Ticket for a Rail Journey is captured by The Unfair Terms in Consumer Contracts Regulations, S 4.2.(a) may help.
I assume you feel that the NRCoC falls into the category of "contractual terms which reflect mandatory statutory or regulatory provisions". I'd be grateful if you could demonstrate how and why that could be so.

Turning to your reference to The Office of the Rail Regulator, the ORR has limited jurisdiction in assisting the passenger in a dispute concerning the subject of this thread unless it has broader impact.
Er, I didn't suggest that ORR would deal with individual complaints. I merely pointed out that that under the Unfair Terms in Consumer Contracts Regulations 1999 the ORR (along with the OFT and Consumers' Association) is listed one of the few qualifying bodies which can formally investigate complaints under the regulations.

So any of these bodies could investigate whether the NRCoC breach the Unfair Terms in Consumer Contracts Regulations.

If these consumer protection rules were not designed to cover passenger railway journeys, then the ORR would not have been explicitly included in schedule 2.
 

DaveNewcastle

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We could write to the ORR and ask for clarification of their own understandng of the scope of their jurisdiction. That might resolve our doubts in that area.

As for the more substantial question of whether or not the UTCCR captures the ancilliary Railway Routing documentation we've been discussing, I remain unconvinced through want of evidence.

I'm sorry that I shalln't respond to your request for further analysis of the legislation, because I fear we'll simply be indulging in rhetoric (interesting and enjoyable as it may be!). Rather than deconstruct the legislation, perhaps we should look for other cases where Criminal legislation has been challenged under the UTCCR. Surely what we really wish for is evidence or authorities which answer the question for us.
In the absense of such confirmation, perhaps you'll join me in the meantime by remaining unpersuaded.

I'm sorry if this isn't the sort of reply you hoped for.
 
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transmanche

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perhaps we should look for other cases where Criminal legislation has been challenged under the UTCCR.
Er, what 'criminal legislation'? The NRCoC are not 'criminal legislation'. They are contractual conditions that you are deemed to accept when purchasing a ticket. Therefore if you are a consumer (rather than a business) such contracts are subject to the UTCCR. Simple.
 
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MarkyMarkD

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I think what we are looking for to justify your position, Dave, is reference in legislation (not in NRCOC) to the existence of permitted routes and the means via which such permitted routes are defined. If there isn't such reference, I cannot see how the permitted routes aspect of NRCOC is exempt from UTCCR.

If they are indeed subject to UTCCR, the conditions should be made clear to customers before they buy tickets. And to achieve that, customers should have some means - and not by following the impossibly arcane routeing guide process - to determine whether the specific journey they wish to make is actually valid.

For ticket office purchases, they can ask the staff member - but some have the view that this isn't binding.

For online purchases, they can try to get the website to show their intended route, but this is not possible for all scenarios (in fact, it's impossible to show many such itineraries, particularly those involving break of journey or non-quickest routes).

For ticket machine purchases, there is hardly any information available and often many different fares offered for the same journey - with slightly different time of day or route restrictions, some of which are extremely obscure to the potential customer.

The whole thing is a bit of a mess to be honest.

I'd be very interested to know how many prosecutions are tried, and how many are successful, for obscure routeing issues rather than more obvious intention to avoid purchasing the correct ticket for the journey made.
 

DaveNewcastle

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Er, what 'criminal legislation'?
The RoRA 1889 S.5.3 (b).

I'd be very interested to know how many prosecutions are tried, and how many are successful, for obscure routeing issues rather than more obvious intention to avoid purchasing the correct ticket for the journey made.
I'm not aware that data is collated to differentiate what we are referring to as Routing anomolies and simply travelling over-distance, as the same wording will be applied: "Having paid his fare for a certain distance, knowingly and wilfully proceeds by train beyond that distance without previously paying the additional fare for the additional distance"
 

transmanche

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The RoRA 1889 S.5.3 (b)
That's not relevant here - it doesn't form part of the formation of a contract that happens when you purchase a railway ticket.

Where it becomes relevant is a topic for a separate discussion - but its not at this stage.
 

MarkyMarkD

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"Having paid his fare for a certain distance, knowingly and wilfully proceeds by train beyond that distance without previously paying the additional fare for the additional distance"
That wording in itself is interesting. It clearly dates from an era when railways fares were logical, and travelling further always cost more than travelling less far.

We all know that this is no longer the case. It is frequently possible to be charged a lower fare, for travelling considerably further than a higher fare would permit.

As I said before, the whole issue is a mess. The ridiculously-outdated legislation govering railway travel should be updated with some modern, consumer-friendly, legislation which recognises current ticketing practices.
 

First class

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That's not relevant here - it doesn't form part of the formation of a contract that happens when you purchase a railway ticket.

Where it becomes relevant is a topic for a separate discussion - but its not at this stage.

Byelaws are "criminal" offences. The Byelaws form part of the NRCOC. Therefore NRCoC contains and relies upon both civil and criminal legislation.

Section A(1b)

Byelaw 17/18 then create offences for travelling/being a person upon the railway without a valid ticket or authority.
 
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transmanche

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That's not relevant here - it doesn't form part of the formation of a contract that happens when you purchase a railway ticket.

Where it becomes relevant is a topic for a separate discussion - but its not at this stage.

Byelaws are "criminal" offences. The Byelaws form part of the NRCOC.
Again, not relevant at this stage.

What was under discussion was the formation of a contract under the NRCoC. Specifically the application of the complex (and sometimes seemingly ambiguous or contradictory) rules of the Routeing Guide and whether these were 'unfair terms' within the meaning of the UTiCCR - being that the consumer will in most cases not be aware of the rules and that the supplier (i.e. the 'railway') appears to be the sole arbiter of how the rules are applied.

The RoRA and the byelaws do not come into it... at this stage.
 

OwlMan

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The operation of Railway Companies (including sale of tickets) is subject to the following regulation
i) The franchise agreement - which is regulated by the ORR
and under the franchise agreement The Ticket and Settlement agreement
ii) The Eurpopean Passenger Licence - which is regulated by the ORR
iii) The Statement of National Regulatory Provisions (SNRP) - - which is regulated by the ORR

the companies also have the various Railway Acts to follow (1993 & 2005 as well as earlier ones)

I would consider these to be mandatory statutory or regulatory provisions.
 

transmanche

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I would consider these to be mandatory statutory or regulatory provisions.
Yes, but they are not relevant to the formation of a contract under the NRCoC.

Imagine that you've gone into your local branch of Boots. Boots will be subject to a myriad of "mandatory statutory or regulatory provisions" - none of which will have any impact on your formation of a contract with them to buy tube of toothpaste.
 
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