Should Out of Court Settlements Use the Full Fare or Difference in Fares

[Titfield]

Moderator Note - split from:

Expired Rail Card 1000 fine! Please help.

Hi all, On the 29th January, I was on the train and asked for my railcard, to which i realised it had expired on the 26th June 2024, meaning they took all my details down and i received this letter. I immediately bought a rail card as soon as I realised In the expired period, I've bought 7...

www.railforums.co.uk

It does depend on how bold you wish to be in this matter.

You could for example state:

1. The Train Operating Company is only out of pocket by £30 - the price then of the railcard.
OR
2. The total value of the discount(s) that you benefitted by.
OR
3. The total value of the undiscounted fares (ie the fares before the discount was applied)

IMHO charging the full adult single fare for all journeys is punitive and disproportionate to the error made.

The TOC could of course reject all these offers and take you to court.

Now for the "risky bit".

If it went to court then you would be found guilty, fined (based on income), victim surcharge (based on income) and have to pay compensation (for the fares not paid). The question would be is what view the magistrates would take of the full adult anytime single fare being charged given that the TOC is only out of pocket for the value of the railcard.

I do of course accept that there has to be some form of "financial deterrent" imposed on the passenger and that simply making good "the loss" would encourage the "pay when challenged" approach.

IMHO a proportionate penalty would be the value of the discounts the OP benefitted from PLUS an administration fee of £150.

 

[AlterEgo]

I do of course accept that there has to be some form of "financial deterrent" imposed on the passenger and that simply making good "the loss" would encourage the "pay when challenged" approach.

IMHO a proportionate penalty would be the value of the discounts the OP benefitted from PLUS an administration fee of £150.

£150 is the value of some penalty fares. Not really proportionate when there are many “offences” detected.

 

[Titfield]

£150 is the value of some penalty fares. Not really proportionate when there are many “offences” detected.

But it could be argued that they are being excessively punished currently by both the full anytime single fare being charged and the admin fee on top.

 

[Hadders]

I do of course accept that there has to be some form of "financial deterrent" imposed on the passenger and that simply making good "the loss" would encourage the "pay when challenged" approach.

IMHO a proportionate penalty would be the value of the discounts the OP benefitted from PLUS an administration fee of £150.

But it could be argued that they are being excessively punished currently by both the full anytime single fare being charged and the admin fee on top.

I have some sympathy for this position but I think further discussion needs to take place in a separate thread, so as not to confuse it with the issue at hand.

We know that SWR take a hard line in these sort of cases and there is a real danger that if @benwilkinson05 proposed this to SWR they would withdraw the settlement offer and send the case to court. Consequently, we need to be clear about whether this is advice or discussion.

 

[Titfield]

We know that SWR take a hard line in these sort of cases and there is a real danger that if @benwilkinson05 proposed this to SWR they would withdraw the settlement offer and send the case to court. Consequently, we need to be clear about whether this is advice or discussion.

Agreed. @benwilkinson05 in post #8 states he would not wish to go to court thus indicating his rejection of this possible course of action.

This issue has been discussed on numerous occasions and to try and bring this matter to a conclusion IMHO the course of action adopted by the TOCS needs to be challenged.

 

[RichHI]

Much like others, I think you will have to pay. These offences do not require intent. You have the fares info so you have a choice. One is to decide to pay up and write to the Railway Company apologizing for your omission and explain your personal circumstances asking for an affordable agreement to repay the sums they require. That is what I would do. The other option is to recruit a good legal team to fight your case. There are a number of cases around this area which have raised concern amongst the Judiciary on appeal, notable being certainty of consequences but this option is plagued with items not in your favour. The most notable being courts of first instance often being amateur magistrates who will normally side with the establishment view. You might then be faced with higher payments “to encourage the others”. Additionally Good Legal representation is not cheap and you will have to pay that which will well exceed the sums in question. Hope that helps.

 

[island]

@benwilkinson05 just to clarify the bit about fine and surcharge being based on income, seeing as you're a student and may therefore not have an income. Unfortunately for you, no income doesn't mean no fine; there's a baseline used and anyone with income below that level is treated as having the baseline income. You may also have to pay towards the prosecution's costs

Indeed. The amount used is £120 for this purpose.

There are a number of cases around this area which have raised concern amongst the Judiciary on appeal, notable being certainty of consequences but this option is plagued with items not in your favour.

Can you cite some of these cases and explain how you have inferred they have "raised concern among the Judiciary", please?

The most notable being courts of first instance often being amateur magistrates who will normally side with the establishment view.

That's quite a serious accusation.

 

[Puffing Devil]

There are a number of cases around this area which have raised concern amongst the Judiciary on appeal, notable being certainty of consequences

Can you cite some of these cases and explain how you have inferred they have "raised concern among the Judiciary", please?

Also very keen to see this and where the "amateur magistrates" side with the establishment view.

 

[RichHI]

Indeed. The amount used is £120 for this purpose.


Can you cite some of these cases and explain how you have inferred they have "raised concern among the Judiciary", please?

That's quite a serious accusation.

Indeed. The amount used is £120 for this purpose.


Can you cite some of these cases and explain how you have inferred they have "raised concern among the Judiciary", please?

That's quite a serious accusation.

The concerns regarding certainty have been raised repeatedly.

You could start with the following authority which is a representative example:

Ballington v Northern Trains Ltd [2024] 8 WLUK 114

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 591

R v Rimmington [2006] 1 AC 459

With regard to the role of Amateur Magistrates:

Amateur Magistrates are not expected to have detailed knowledge of all areas of law and rely on the Clerk of the Court for this. Amateur Magistrates fulfill a useful role in helping to uphold the law which normally is used to protect society from disorder and criminal enterprise and as a result these Magistrates can be reluctant to support any claim that could be seen to undermine that. Arguing the omission of certainty in the fees and calculations and the case law on same would almost certainly have to go to an appellate court with Judges. This would all add cost to the original poster. The facts here are not in dispute and the offence does not require intent so any defence would likely be to fight on the calculations of fares due which one might argue would be the discounts given and also the service charge. It is quite likely the terms and conditions of the rail card may specify this in detail in which case you would have to question whether the booking office staff which sold the rail card satisfied themselves that the purchaser had read and understood the terms and conditions but I would not put much faith in that. What might be another possibility is whether the booking office clerk issued discounted tickets without asking to see the rail card. If they were purchased on a machine obviously no likelihood there.

Hope that helps.

Almost forgot; the above and previous posts on same are not to be seen as legal advice and should not be relied upon for any course of actions.

 

[chrisjo]

The concerns regarding certainty have been raised repeatedly.

You could start with the following authority which is a representative example:

Ballington v Northern Trains Ltd [2024] 8 WLUK 114

'Ballington v Northern Trains' can be examined here:

https://www.judiciary.uk/wp-content/uploads/2024/08/Railway-Ruling-Final-Judgment-1.pdf

The word 'certainty' appears in the judgment just twice, and neither time is it being used in the context of 'certainty of consequences' that you imply.

 

[RichHI]

'Ballington v Northern Trains' can be examined here:

https://www.judiciary.uk/wp-content/uploads/2024/08/Railway-Ruling-Final-Judgment-1.pdf

The word 'certainty' appears in the judgment just twice, and neither time is it being used in the context of 'certainty of consequences' that you imply.

I am afraid that it is not my issue that you do not have a legal education. This is one reason why discussing legal matters in a non legal forum is a mistake. My suggestion was a personal view that for a student of limited means to try to fight this would not be the best course in these circumstances.

I took a look at the SWR website and they lay out their processes but they do make reference to requesting a waiver of the surcharge. So I stand by my post to contact them in writing within the 21 days apologize, explain the position and ask constructively for some help. Escalation would not serve the Original Poster.

 

[AdamWW]

£150 is the value of some penalty fares. Not really proportionate when there are many “offences” detected.

But in this case the loss to the railway is the same for a single incidence or multiple ones within a year.

What is the justification for punishing someone who has made what might well be a genuine error more harshly than someone who has applied a discount they don't qualify for, or indeed just not bought tickets at all, when in the latter two cases they are unlikely to be accidental and will have lose the railway more money?

And I don't see how any of this is about deterrance - if it was they would actually warn people when they buy a railcard how expensive forgetting to renew it could get.

I've seen many times the policy of using anytime single fares in cases of fare evasion justified on the grounds that if someone is caught fare evading once they have probably done it many times, so the penalty should be effectively taking that into account and acting as sufficient deterrance. This argument fails when the railway does have the ability to detect the previous occasions and is charging for each one.

(When is a penalty fare £150? I thought it was £100, reduced to £50 if paid or appealed quickly).

 

[chrisjo]

I am afraid that it is not my issue that you do not have a legal education. This is one reason why discussing legal matters in a non legal forum is a mistake. My suggestion was a personal view that for a student of limited means to try to fight this would not be the best course in these circumstances.

Yes, I am a mere layman, but even so I'm entitled to have an opinion, and I can still read. I assume from your tone that you do have a legal education, but such qualification does not per se entitle those who do to perfunctorily dismiss the observations of those who do not, particularly in a non-specialist forum.

FWIW I agree with your view of the OP's best course of action in the case that was being discussed, but we've moved on from that I think.

 

[island]

(When is a penalty fare £150? I thought it was £100, reduced to £50 if paid or appealed quickly).

A Penalty Fare is £100 plus the full single fare for the journey in question. So if the journey in question cost £50, the Penalty Fare would be £150, reducing to £100 for prompt payment.

 

[AdamWW]

A Penalty Fare is £100 plus the full single fare for the journey in question. So if the journey in question cost £50, the Penalty Fare would be £150, reducing to £100 for prompt payment.

Right but it was being compared to a proposal of a £150 admin fee in addition to the difference in ticket costs.

I have to say I just can't comprehend how anybody can justify the railway charging someone over £1000 for something that has lost the railway so little money on any grounds other than that the railway can and they want the money.

 

[island]

Ballington v Northern Trains Ltd [2024] 8 WLUK 114

Does not relate to an appeal, and arises from the improper actions of railway prosecutors, not magistrates.

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 591

Relates to a civil case which never involved a magistrate.

R v Rimmington [2006] 1 AC 459

Relates to public nuisance, an indictable-only offence which was tried by a circuit judge.

So I'm afraid you're zero for three on case citations that support your assertions about the competencies of magistrates and "concerns" that the judiciary have on appeals.

Amateur Magistrates fulfill a useful role in helping to uphold the law which normally is used to protect society from disorder and criminal enterprise and as a result these Magistrates can be reluctant to support any claim that could be seen to undermine that.

This sentence has no basis in fact and is merely your personal, unsupported, and (in my opinion) unreasonable opinion. Lay magistrates are sworn to apply the law and usages of the realm without fear or favour, affection or ill-will, and do so daily throughout England and Wales.

I don't think you're posting in good faith and will not be responding to you further.

 

[KNN]

Right but it was being compared to a proposal of a £150 admin fee in addition to the difference in ticket costs.

I have to say I just can't comprehend how anybody can justify the railway charging someone over £1000 for something that has lost the railway so little money on any grounds other than that the railway can and they want the money.

It's lost the railway far more than one ticket price. Ticket fraud is hugely expensive, from ticket barriers, to Rpos, to HQ fraud teams, to prosecution costs, to higher ticket prices for the honest. £150 is cheap.

 

[AlterEgo]

Right but it was being compared to a proposal of a £150 admin fee in addition to the difference in ticket costs.

It’s not what I meant, although I can see how what I wrote would imply it!

I have to say I just can't comprehend how anybody can justify the railway charging someone over £1000 for something that has lost the railway so little money on any grounds other than that the railway can and they want the money.

Oh I agree as much as you that the railway is extremely greedy here. It’s an avaricious business which isn’t properly funded and relies on low hanging fruit like passenger misdemeanours to supplement its income.

I’d have a lot more sympathy for the railway if two things were true:

- low level misdemeanours like expired railcards treated with excesses, penalty fares or new tickets as appropriate, and

- Judge Dredd style justice for the endless stream of low level frauds and grifters who short ticket, donut, bump barriers, and use stolen and “borrowed” free passes.

The railway is not even required to positively identify anyone it comes into contact with. It’s a laughable system full of holes and only the most compliant, willing and naive passengers face consequences.

 

[AdamWW]

Oh I agree as much as you that the railway is extremely greedy here. It’s an avaricious business which isn’t properly funded and relies on low hanging fruit like passenger misdemeanours to supplement its income.

I’d have a lot more sympathy for the railway if two things were true:

- low level misdemeanours like expired railcards treated with excesses, penalty fares or new tickets as appropriate, and

- Judge Dredd style justice for the endless stream of low level frauds and grifters who short ticket, donut, bump barriers, and use stolen and “borrowed” free passes.

Quite.

It's not the punishment fitting the crime, it's the punishment fitting what the railway can argue it's entitled to.

We see people who almost certainly have made a genuine mistake being punished with heavy "fines", and people engaged in sustained fare evasion given the same chance to settle out of court.

And I really do think that the idea of charging the maximum fare available needs revisiting now the railway can go back and find every time that someone has travelled with their expired railcard.

It's lost the railway far more than one ticket price. Ticket fraud is hugely expensive, from ticket barriers, to Rpos, to HQ fraud teams, to prosecution costs, to higher ticket prices for the honest. £150 is cheap.

I don't follow that argument.

If the only form of ticket fraud was the loss of a railcard price per passenger per year, it wouldn't be worth doing all of that.

Unless you used the fact that you were doing it to justify ludicrous "fines" to fund it all, I suppose.

All that insfrastructure is justified by the people who are actually costing the railway serious money.

Also I'm not convinced that forgetting to renew a railcard is fraud.

 

[Puffing Devil]

The concerns regarding certainty have been raised repeatedly.

You could start with the following authority which is a representative example:

Ballington v Northern Trains Ltd [2024] 8 WLUK 114

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 591

R v Rimmington [2006] 1 AC 459

With regard to the role of Amateur Magistrates:

Amateur Magistrates are not expected to have detailed knowledge of all areas of law and rely on the Clerk of the Court for this. Amateur Magistrates fulfill a useful role in helping to uphold the law which normally is used to protect society from disorder and criminal enterprise and as a result these Magistrates can be reluctant to support any claim that could be seen to undermine that. Arguing the omission of certainty in the fees and calculations and the case law on same would almost certainly have to go to an appellate court with Judges. This would all add cost to the original poster. The facts here are not in dispute and the offence does not require intent so any defence would likely be to fight on the calculations of fares due which one might argue would be the discounts given and also the service charge. It is quite likely the terms and conditions of the rail card may specify this in detail in which case you would have to question whether the booking office staff which sold the rail card satisfied themselves that the purchaser had read and understood the terms and conditions but I would not put much faith in that. What might be another possibility is whether the booking office clerk issued discounted tickets without asking to see the rail card. If they were purchased on a machine obviously no likelihood there.

Hope that helps.

Almost forgot; the above and previous posts on same are not to be seen as legal advice and should not be relied upon for any course of actions.

I must admit I found your post's overall tone quite condescending. I'm sure that wasn't your intention, but it's how it came across to me.

It's clear from the structure and content of your posts that you are familiar with legal processes and terminology, including access to resources like Westlaw or similar. Given your detailed contributions, perhaps you'd be comfortable sharing, in general terms, what background or experience informs your perspective?

Regarding the case law you provided (Ballington v Northern Trains Ltd, Black-Clawson International Ltd, and R v Rimmington), while access to such databases is useful, I'm not entirely convinced these authorities are as germane to the specific issue of "raising concerns with the judiciary". As @island has also pointed out, their direct relevance seems questionable here. Could you perhaps elaborate on how you see them directly applying to the matters raised, particularly at the Magistrates' court level?

Finally, I've noticed a consistent theme in your remarks about "Amateur Magistrates." It does make me wonder about the basis for what appears to be a somewhat critical stance on their role or perceived biases. You didn't address my question in response to your earlier assertion about questioning "where the 'amateur magistrates' side with the establishment view." I'd still be very interested to hear your elaboration on that specific point.

 

[KNN]

If the only form of ticket fraud was the loss of a railcard price per passenger per year, it wouldn't be worth doing all of that.

Unless you used the fact that you were doing it to justify ludicrous "fines" to fund it all, I suppose.

All that insfrastructure is justified by the people who are actually costing the railway serious money.

Also I'm not convinced that forgetting to renew a railcard is fraud.

This thread is a break off from the specifics of that previous one. In general, fines and costs cover a lot more than the 1/3rd price difference for the person concerned.

I'd personally like a more generous solution in some instances like that, though at the same time a blanket change to ticketless travel and paying on board, the current approach is confusing and unfair.

If I was in charge I'd make Railcard holders enter the expiry date/number when buying a ticket, it could all be scanned in automatically with the right technology. Then this specific incident can't happen, if you don't have a valid card you can't buy a ticket.

 

[Camsus]

IMHO a proportionate penalty would be the value of the discounts the OP benefitted from PLUS an administration fee of £150.

I think you'll find that most tocs charge an investigation cost and not an admin fee. If a rail company identifies someone who avoided fares on 150-200+ dates and conducts an investigation, I imagine £150 wouldn't anything like cover the actual costs incurred, once the man hours and other resources that are necessary to investigate are considered.

Saying a blanket charge of £150 should be applied isn't practical, as the additional costs should be applied on a case by case basis.

 

[AlterEgo]

I think you'll find that most tocs charge an investigation cost and not an admin fee. If a rail company identifies someone who avoided fares on 150-200+ dates and conducts an investigation, I imagine £150 wouldn't anything like cover the actual costs incurred, once the man hours and other resources that are necessary to investigate are considered.

How difficult to do you think sending a stock email to Trainline is? All you do is export into Excel and write an email to the passenger. It would take me about two hours max.

There is no meaningful "investigation".

 

[Lockwood]

I've said on a similar thread that it does feel like the company is getting two bites of the apple.

They get the income from the incorrect fare, then the income of the most expensive fare available. You bought an off-peak railcard return instead of an off-peak return? We'll charge you for an anytime single (and you'll need to buy another single for your return journey).

I understand the need to have a punitive element, otherwise everyone would be "pay the difference when challenged", but it does sometimes read like the scales are tipped too far the other way. From a limited data set, we never see here "SWR sent me a letter, I put my hands up, accepted it was a reasonable price, paid it and moved on"

I think I read from one of our learned posters that a civil claim would have the company recover what is needed to put things right had the evasion not occured. I would argue that treating 5 off-peak discounted returns as 10 anytime singles is not putting things right as that is not what the "correct" fare would be. The "correct" fare there would be 5 off-peak undiscounted returns. (Especially on those routes where the difference between a single and a return is pennies)


I don't know where the balancing point is, but it does sound like it is not quite in the right place at the moment.

 

[Titfield]

I don't know where the balancing point is, but it does sound like it is not quite in the right place at the moment.

My rationale was / is:

asking someone with an expired or no railcard to purchase a railcard backdated to the date of the first journey with discount claimed plus an investigation / admin fee of £150 balances the true loss of revenue with an investigation /admin fee which also serves as a deterrent / incentive to check in the future.

The investigation / admin fee has to be greater than a Penalty Fare charge (£100/£50) because more work is done in the back office.

 

[spotify95]

I have some sympathy for this position but I think further discussion needs to take place in a separate thread, so as not to confuse it with the issue at hand.

We know that SWR take a hard line in these sort of cases and there is a real danger that if @benwilkinson05 proposed this to SWR they would withdraw the settlement offer and send the case to court. Consequently, we need to be clear about whether this is advice or discussion.

I was waiting for this to be split off, since a discussion about the practices of TOCs when calculating administrative settlements would be beneficial without derailing anyone's predicament.

Personally I do not think that Anytime Singles should be used unless the journey took place at a time whereby the regular customer would choose an Anytime ticket. If someone is caught without a ticket and reported for further investigation, then any such compensation (which is effectively what an out of court settlement is) should be based on what the customer would have purchased, rather than profiting through harsh anytime rates. Further, a return journey is a return journey - NOT two single journeys - no-one ever purchases two singles instead of a return, so charging two Anytime Singles for an Off Peak return journey (or similar) is completely wrong and immorral by the TOC.

As for not reimbursing invalid fares already paid. The fare originally paid wasn't valid anyway, so a new, valid fare for the journey taken would be required, and especially so for deliberate fare evasion. However if it was a genuine mistake (and a 1st offense), rather than repeated and continuous evasion (which would be what a trainline check is for) then discretion may be applied.

Definitely correct to charge administrative fees (as long as they are not excessive) as a deterrent. £120-£150 or so seems right for most basic offenses, since a penalty fare is £100 (excluding prompt payment discount), with the cost going up if persistent fare evasion is found through a search of the user's train booking accounts.

The question to be asked is - how serious is a criminal conviction for fare evasion, under a bylaw or RoRA offense? Most TOCs wouldn't ever have enough evidence to use the Fraud Act 2006 (at least for the cases posted here) so if a person is not in employment that is exempt from the Rehabilitation of Offenders Act, and doesn't care about visiting somewhere like America or Australia, a conviction for a single offense (Bylaws via SJPN) may actually be preferential compared to the very high settlement figures running into 4 figures, based off Anytime Singles, etc. And the courts would get the costs, not the TOC... If I was ever found in a situation where a TOC was being unreasonable with their settlement amount, I know what I'd choose (not that I would ever do fare evasion anyway).

 

[AdamWW]

The question to be asked is - how serious is a criminal conviction for fare evasion, under a bylaw or RoRA offense? Most TOCs wouldn't ever have enough evidence to use the Fraud Act 2006 (at least for the cases posted here) so if a person is not in employment that is exempt from the Rehabilitation of Offenders Act, and doesn't care about visiting somewhere like America or Australia, a conviction for a single offense (Bylaws via SJPN) may actually be preferential compared to the very high settlement figures running into 4 figures, based off Anytime Singles, etc. And the courts would get the costs, not the TOC... If I was ever found in a situation where a TOC was being unreasonable with their settlement amount, I know what I'd choose (not that I would ever do fare evasion anyway).

The court gets the fine, but doesn't the railway get to ask for the lost revenue?

Though maybe a court wouldn't go along with the way they calculate that.

 

[Pushpit]

The basis for punishment in England and Wales is the Magistrates / Crown Court process. For debt recovery it's the Civil court system. Debt recovery is based on a fairly narrow interpretation of losses.

In my view railways should seek to recover their direct loss and on a reasonable basis. It's not their job to punish people. Loss recovery will rarely be via Anytime Singles, there may be rare exceptions, and any fare that was paid should be set against the loss recovery. It is also reasonable to charge their costs of recovery. But the case that inspired this thread split is an example of unreasonable behaviour - no student would dream of making that long trip on an Anytime Single basis, moreover by facilitating hefty discounts the TOCs know this, and charge more sensible restricted fares and offer railcards.

So for out of court settlements, this should be tailored towards potentially fairly low sums in many cases, and not trying to administer a punishment beating via their powers of prosecution.

For almost any other area of life, crime gets reported to the police, who may or may not take action. Civil courts enforce debt recovery. Railways are abusing their position.

 

[Titfield]

In my view railways should seek to recover their direct loss and on a reasonable basis.

So please give an example. Is the direct loss the difference between the discounted fare and the non discounted fare? What about the administration or investigation costs? What about some form of deterent to avoid the "pay when challenged" problem?

 

[AlterEgo]

So please give an example. Is the direct loss the difference between the discounted fare and the non discounted fare? What about the administration or investigation costs? What about some form of deterent to avoid the "pay when challenged" problem?

The railway is happy to entertain pay when challenged in many situations; it’s encoded into the passenger contract.

The direct loss is arguably the price of the railcard for railcard expired tickets. What investigation costs are there? Why does the company need to investigate anything? Other businesses don’t treat their customers like this.