Settlements and Court regulation

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furlong

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Mod Note Split from this thread http://www.railforums.co.uk/showthread.php?t=127029

Since it's an out of court settlement they are allowed to set the amount as high or low as they choose.

What references can you provide to support this claim (which is contrary to my understanding) that the courts would never regulate such a settlement in a criminal (not a civil) matter?
 
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najaB

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What references can you provide to support this claim (which is contrary to my understanding) that the courts would never regulate such a settlement in a criminal (not a civil) matter?
Why would the court be involved in regulating the amount of an out of court settlement?
 

furlong

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Why would the court be involved in regulating the amount of an out of court settlement?

A criminal offence has been alleged and public policy shouldn't be ignored.

If you have no references, what are your legal qualifications?
 

Haywain

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What references can you provide to support this claim (which is contrary to my understanding) that the courts would never regulate such a settlement in a criminal (not a civil) matter?

Perhaps you could explain how the courts could regulate a matter that doesn't come before them?
 

najaB

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A criminal offence has been alleged and public policy shouldn't be ignored.

If you have no references, what are your legal qualifications?
I ask again: How / why would the court regulate an out of court settlement?
 

Haywain

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A criminal offence has been alleged and public policy shouldn't be ignored.

If you have no references, what are your legal qualifications?

What is this public policy that you speak of?

And I have no legal qualifications, which I suspect is much the same as you.
 

furlong

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What is this public policy that you speak of?

Here's an extreme example:

10. He valued the price for abandoning the criminal prosecution at £30,000.00...
11. ... In the second paragraph they observed that the request for £30,000.00 (Thirty Thousand Pounds) in return for agreement not to commence a private prosecution was tantamount to blackmail. It might not be blackmail, but it certainly would have rendered the agreement unenforceable on public policy grounds. ...
 

furlong

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Perhaps you could explain how the courts could regulate a matter that doesn't come before them?

Two scenarios as examples:
a) The person agrees the settlement but doesn't pay (part or all), so the company sues, seeking the court's assistance to enforce it (in full);

or
b) The person pays initially, but then judges that the courts would probably not enforce it in full and sues for the return of the (excess) money paid.
 

najaB

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Two scenarios as examples:
a) The person agrees the settlement but doesn't pay (part or all), so the company sues, seeking the court's assistance to enforce it (in full);

or
b) The person pays initially, but then judges that the courts would probably not enforce it in full and sues for the return of the (excess) money paid.
Neither of which scenarios places a limit on the amount that the TOC could request. Or am I missing something?
 

Haywain

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The clear implication being that it is the amount that would render the agreement unenforceable, rather than the principal. As najaB states, asking for an amount lower than a court may impose seems to be perfectly acceptable, and happens all the time. And not just with Train Operating Companies, other organisations like Her Majesty's Revenue & Customs indulge in this sort of thing on a regular basis.
 

Tetchytyke

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A very interesting read, I do love a good proper mental plaintiff, but I'm not sure what reference it has to the conversation.

A TOC can ask for an out-of-court settlement of cash in exchange for not pursuing prosecution for any amount they choose. One may consider this to be blackmail, but the cost of that settlement is a private matter between the two parties.

If the two parties cannot agree an appropriate amount, then it remains at the liberty of the TOC whether they wish to pursue it.
 

furlong

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But there is nothing stopping a TOC from asking for a settlement amount of their choosing, other than there being no point in asking for an amount higher than the maximum fine that the court could impose.

It is one thing for a TOC to reach an agreement that recovers its loss and any actual direct costs in handling a particular case, but in a criminal matter surely it is for the courts alone to determine any penalty. (Penalty Fares provide the one exception where Parliament has explicitly permitted the TOCs to impose a penalty.)
 

najaB

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If the two parties cannot agree an appropriate amount, then it remains at the liberty of the TOC whether they wish to pursue it.
And there's a natural ceiling on the settlement amount, particularly where a Byelaw prosecution is concerned. There would be no point in the passenger paying a £1001 pound settlement to escape a maximum possible fine of £1000.
--- old post above --- --- new post below ---
It is one thing for a TOC to reach an agreement that recovers its loss and any actual direct costs in handling a particular case, but in a criminal matter surely it is for the courts alone to determine any penalty.
By their very nature, out-of-court settlements move the matter from the criminal to the civil domain.
 

Tetchytyke

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It is one thing for a TOC to reach an agreement that recovers its loss and any actual direct costs in handling a particular case, but in a criminal matter surely it is for the courts alone to determine any penalty.

Unless and until it goes before a criminal court, it is just a civil matter.

A TOC can ask for anything they want in exchange for deciding not to pursue the matter in a criminal court. It is for the other party to decide whether the offer represents good value or not.

As najaB says, there's a natural limit on the amount anyone can charge, which is what court would cost them if they lost.
 

furlong

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By their very nature, out-of-court settlements move the matter from the criminal to the civil domain.

In the two examples I gave above, it would be a civil court considering the enforceability of what amounts to a penalty for a criminal offence decided outside the courts.
 

najaB

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...what amounts to a penalty for a criminal offence decided outside the courts.
You might see it that way, but that isn't what it is. It is a private agreement between two parties to settle a dispute without involving the court. There isn't a punitive intent (though some may, as you have done, infer that one exists).
 

furlong

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The clear implication being that it is the amount that would render the agreement unenforceable, rather than the principal.

I read it as the principle rather than the amount.

A further example comes from the correspondence between the DfT and Northern regarding its "Fixed Penalty Notices", where Northern stated that its settlements do not go beyond costs:

5. ...The sum of £80 is a properly costed assessment of the average amount of time needed to process a typical case of this kind and is not intended to represent a punitive sum. ...
 

DaleCooper

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Two scenarios as examples:
a) The person agrees the settlement but doesn't pay (part or all), so the company sues, seeking the court's assistance to enforce it (in full);

In this case the TOC would presumably just prosecute as if the person had not agreed to the settlement as their actions have nullified the agreement.
 

Haywain

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Just because Northern have assessed the average cost incurred as being £80 does not mean that another TOC will not have incurred a higher amount - which is almost certain to be the case if the work is outsourced. It seems clear that the TOCs who agree out of court settlements work on the basis that payment is the only representation of that agreement, so they will never have to seek to enforce the agreement.
 

Fare-Cop

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Just because Northern have assessed the average cost incurred as being £80 does not mean that another TOC will not have incurred a higher amount - which is almost certain to be the case if the work is outsourced. It seems clear that the TOCs who agree out of court settlements work on the basis that payment is the only representation of that agreement, so they will never have to seek to enforce the agreement.

My understanding is that Northern did not make that assessment in relation to the quoted extract repeated below.

5. ...The sum of £80 is a properly costed assessment of the average amount of time needed to process a typical case of this kind and is not intended to represent a punitive sum. ...

I believe that this quote comes from an independent Barrister's report who looked at the matter of Northern's payment notice on behalf of DfT.


--- old post above --- --- new post below ---

I think it is probably helpful to post the complete paragraph to put the matter in context and the copy that I have reads as follows:

“Whether or not the recipient of any opportunity to settle letter enters into the arrangement is entirely at the discretion of that passenger. The sum quoted is a properly costed assessment of the average amount of time and cost needed to properly process a typical case of this kind and is not intended to represent a punitive sum."

This makes perfectly clear that the recipient of such a letter does not need to accept the opportunity nor make any payment to dispose of a case, but may reject that opportunity and have their day in Court if that is what they prefer to do.

As DaveNewcastle has also made clear in other threads, anyone choosing to have their day in Court ought to seek properly qualified legal advice and will almost certainly benefit from proper representation should they decide to plead 'Not Guilty'.

Furthermore, the total cost quoted in any letter will normally include both those administration costs and any outstanding fare that is claimed too.
 
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Harlesden

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Forgive me for saying so, but furlong does seem rather persistent.
Surely the concept is so simple.
If I went round somebody's house and smashed their front window, they have several possible courses of action.
1. Call the plod without giving me opportunity to pay for the damage
2. Offer me the chance to compensate him for the damage without taking any further (a settlement).
That is the key to a TOC's "Settlement" - an agreement for one party to pay the aggrieved party a sum of money (compensation) on the understand that there will be no further action taken. There is no requirement on the part of any TOC to offer a Settlement as the TOC is well within its legal rights to refer the infraction for prosecution.
 

DaveNewcastle

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Out of Court settlements are not, of course, confined to private prosecutions nor to Criminal matters. Such settlements by statutory bodies such as the Police are codified and subject to a degree of transparency and accountability, while at the other extreme, a settlement between two individuals would be entirely a matter for them and would be beyond any regulatory mechanism.

I see no impediment to a Company and an individual agreeing to a settlement of their mutual agreement, provided that it is freely entered into and that the proper and due process of law is not perverted (in Railway fare and ticketing offences, that's effectively allowing the Company to pursue a Prosecution and the passenger to present a full Defence, if that settlement is not agreed, regardless of the figure agreed).

Suggestions have been made of 'blackmail' and 'extortion'. I see no grounds for either of these. Perhaps if the unrealistic figures which Furlong cited were offered then there would be a basis for a challenge. There may be scope for anyone suitably aggrieved to make a claim against a Company on the grounds of improper business practice and I have no idea how that might be framed. Equally, the Department could make a regulation to limit the powers of its franchisees.
 
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Agent_c

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Question. With the TOCs effectively doing private prosecutions, what is to stop a TOC coming to a settlement, and then some other interested body (maybe another TOC, CPS, some concerned citizen with too much money) pushing a seperate prosecution forward?
 

najaB

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...what is to stop a TOC coming to a settlement, and then some other interested body (maybe another TOC, CPS, some concerned citizen with too much money) pushing a seperate prosecution forward?
Technically nothing, I suppose. But the absence of evidence from the original TOC would mean that it would fail pretty quickly.
 

DaveNewcastle

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. . . . what is to stop a TOC coming to a settlement, and then some other interested body (maybe another TOC, CPS, some concerned citizen with too much money) pushing a seperate prosecution forward?
The provisions of the 1985 Prosecutions of Offences Act.
That Act not only ratifies the Common Law right for a person to bring a Prosecution, but it also authorises the DPP (i.e. the CPS) to intervene to cause a Private Prosecution to be abandoned, (by taking it over and then presenting no Evidence). In addition, the Criminal Procedure Rules issue specific guidance to Magistrates Courts in cases where a Prosecution is attempted which is, either, already underway, or, has already been discontinued.

Depending on the details of such an incident as you're envisaging, it might also engage the rules on 'double jeopardy' and/or an 'abuse of process'.

An 'Out-of-Court Settlement' is so called because it 'settles' the matter. That doesn't leave it open to another attempt at a prosecution! The terms of the 'Settlement' should leave no doubt about this. [So called 'settlements' with certain statutory bodies such as HMRC and the CPS will not preclude re-opening the matter if evidence becomes available in the future which justifies a prosecution.]


Furlong said:
Haywain said:
Perhaps you could explain how the courts could regulate a matter that doesn't come before them?
Two scenarios as examples:
a) The person agrees the settlement but doesn't pay (part or all), so the company sues, seeking the court's assistance to enforce it (in full);

or
b) The person pays initially, but then judges that the courts would probably not enforce it in full and sues for the return of the (excess) money paid.
In the first 'example', the Company would not be likely to succeed in their action to recover the amount, as it is not 'loss' or 'damages' or any other 'debt', it is a settlement to achieve an agreed outcome INSTEAD of another outcome (the Prosecution). In default of the settlement not to Prosecute, resuming the original Prosecution is the remedy.

In the second 'example', I'm unclear what you are proposing and what the passenger guesses that the Courts would not enforce. If I understand you correctly, then it seems to me that if a person enters into a 'bad bargain' and changes their mind, then the two most obvious approaches are: a) to revert to the default position (recover the amount paid and elect for a trial on the facts), or b) to accept the misfortune of having paid for a 'bad bargain' (with no recovery of the amount paid and benefit from the assurance in perpetuity that the Offence will not be prosecuted).
 
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Tetchytyke

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An 'Out-of-Court Settlement' is so called because it 'settles' the matter. That doesn't leave it open to another attempt at a prosecution! The terms of the 'Settlement' should leave no doubt about this

How did this work in the recent SouthEastern Burrows case, where SouthEastern and the banker were happy with the agreement but the Court of Public Opinion meant the BTP started looking at it separately?
 

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How did this work in the recent SouthEastern Burrows case, where SouthEastern and the banker were happy with the agreement but the Court of Public Opinion meant the BTP started looking at it separately?

Did the BTP end up prosecuting him?
 

DaveNewcastle

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There's a big difference between investigating some circumstances and Prosecuting an offence.

My answer above should be adequate in indicating the difficulties that must be overcome if seeking to opening a settled matter, but that it is not impossible, especially if further information comes to light which in itself tends in favour of a prosecution (or if the wording of the settlement did not preclude a prosecution).
With reference to the passenger you mention, I responded to that possibility at the time, here : http://www.railforums.co.uk/showpost.php?p=1806445&postcount=184.
 
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