Discussion ABout Whether Out of Court Settlements Should Take into Account the Fare Already Paid

[talldave]

Moderator Note - split from https://www.railforums.co.uk/threads/swr-£1489-fine-for-expired-railcard-–-seeking-advice.283103/

There needs to be some reform here. It seems that retailers are not under any obligation to retain records of expired railcards although some do. If TOCs are going to trawl through records of past ticket purchases looking for tickets bought with Railcard discounts, someone, somewhere needs to retain these records to prevent TOCs making spurious allegations.

Perhaps the reform needs to be against TOCs speculatively trying to extort money out of their customers with threats of legal action for which they have no evidence. Purchasing tickets with Railcard discount is not an offence. Having an expired Railcard is not an offence. Not having a Railcard from 4 years ago is not an offence.

Only people on trains without Railcards to support Railcard discounted tickets are fair game.

 

[Hadders]

Perhaps the reform needs to be against TOCs speculatively trying to extort money out of their customers with threats of legal action for which they have no evidence. Purchasing tickets with Railcard discount is not an offence. Having an expired Railcard is not an offence. Not having a Railcard from 4 years ago is not an offence.

Only people on trains without Railcards to support Railcard discounted tickets are fair game.

I do have some sympathy for this view but we do need to bear in mind that a train company does reserve the right to prosecute the original offence where the passenger was caught without a railcard. Based on what I see generally on this forum most people would rather pay a settlement covering previous journeys (even if it is more expensive than the fine and costs resulting from a conviction) because they want to avoid a court case and criminal conviction.

 

[domes649]

This may be a silly question but why am I paying the full amount of the ticket and not just the money on top that I should have paid initially. I understand it is a fine but it seems like a ridiculous amount of money. Could I ask this or is it unlikely they will take it well?

 

[Titfield]

Because the original ticket was invalid, the fare paid is lost. Furthermore if all you had to do was pay the difference then people would take the chance as effectively there would be no financial penalty. You could argue why can’t you just pay the railcard price for the gap without a card but that argument fails for the same reasons.

 

[jumble]

This may be so for SWR but as I understand it GWR do usually deduct fares paid when reaching a settlement
They presumably feel that double dipping is not very fair

 

[swt_passenger]

This may be so for SWR but as I understand it GWR do usually deduct fares paid when reaching a settlement
They presumably feel that double dipping is not very fair

If only they were all consistent with each other. I can’t really see all the other operators levelling down though…

 

[AlterEgo]

This may be a silly question but why am I paying the full amount of the ticket and not just the money on top that I should have paid initially. I understand it is a fine but it seems like a ridiculous amount of money. Could I ask this or is it unlikely they will take it well?

It isn't a fine.

On each occasion where you didn't pay the correct fare, the passenger contract entitles the train company to charge the full undiscounted Anytime fare for the journey.

You can ask for them to waive this right, and to only charge the difference, but they are under no obligation to do so.

 

[Starmill]

If you don't choose to agree to a negotiated the settlement, which you are under absolutely no obligation to, you will likely have to plead guilty, or face a high probability of being found guilty. If you are convicted it would likely only be over the occasion you were stopped, but this would come with a fine (and an appropriate reduction here could apply if you pleaded guilty at the first instance), costs and/or compensation awarded to the prosecution, and something the courts like to term "surcharge". At this stage we can only make educated guesses as to what that bill might add up to. There are some relatively minor non-financial negative consequences possible from the conviction also but this depends heavily on your circumstances. Only you can decide what it's worth to avoid this.

 

[WesternLancer]

If you don't choose to agree to a negotiated the settlement, which you are under absolutely no obligation to, you will likely have to plead guilty, or face a high probability of being found guilty. If you are convicted it would likely only be over the occasion you were stopped, but this would come with a fine (and an appropriate reduction here could apply if you pleaded guilty at the first instance), costs and/or compensation awarded to the prosecution, and something the courts like to term "surcharge". At this stage we can only make educated guesses as to what that bill might add up to. There are some relatively minor non-financial negative consequences possible from the conviction also but this depends heavily on your circumstances. Only you can decide what it's worth to avoid this.

Not to mention the criminal record, which naturally most people want to avoid if they can.

 

[furlong]

This may be a silly question but why am I paying the full amount of the ticket and not just the money on top that I should have paid initially. I understand it is a fine but it seems like a ridiculous amount of money. Could I ask this or is it unlikely they will take it well?

It is not a fine - only a court can impose any form of penalty. It is purely compensation to put the company back into the financial position it would have been in had the situation not arisen.

In your position I'd be discussing with them paying only the difference. (There's even another argument that their true loss amounts merely to the cost of the railcards.) If the matter reached court, you'd expect to offset any sums already paid such that the company isn't able to enrich itself unduly from the situation. If they wouldn't budge I'd be inviting them to set out their legal justification in writing so that even if I paid the higher amount now I could follow it up afterwards - with the hope of obtaining a decision that would help anyone else in a similar situation (past or future) and which could be very expensive for the company if it was found to have repeatedly done wrong.

 

[Fawkes Cat]

It is not a fine - only a court can impose any form of penalty. It is purely compensation to put the company back into the financial position it would have been in had the situation not arisen.

In your position I'd be discussing with them paying only the difference. (There's even another argument that their true loss amounts merely to the cost of the railcards.) If the matter reached court, you'd expect to offset any sums already paid such that the company isn't able to enrich itself unduly from the situation. If they wouldn't budge I'd be inviting them to set out their legal justification in writing so that even if I paid the higher amount now I could follow it up afterwards - with the hope of obtaining a decision that would help anyone else in a similar situation (past or future) and which could be very expensive for the company if it was found to have repeatedly done wrong.

It has to be said that whilthis advice seems attractive, I don't recall it ever actually working. We do occasionally see journeys removed from the list to be paid for but not (as far as I remember) the railway reducing the rate they charge.

 

[talldave]

It has to be said that whilthis advice seems attractive, I don't recall it ever actually working. We do occasionally see journeys removed from the list to be paid for but not (as far as I remember) the railway reducing the rate they charge.

The list does appear worthy of some duplicate filtering.

However, @furlong makes a very valid point, that the industry's loss (had Railcard continuity been sustained) equates to a few months of £30 pro-rata'd. £60 would probably more than cover it? I wonder why TOCs choose to correct such situations by attempting to charge for every invalid ticket in full, rather than charging for a full Railcard year for each of the gaps in Railcard "cover"??

 

[Hadders]

It is not a fine - only a court can impose any form of penalty. It is purely compensation to put the company back into the financial position it would have been in had the situation not arisen.

In your position I'd be discussing with them paying only the difference. (There's even another argument that their true loss amounts merely to the cost of the railcards.) If the matter reached court, you'd expect to offset any sums already paid such that the company isn't able to enrich itself unduly from the situation. If they wouldn't budge I'd be inviting them to set out their legal justification in writing so that even if I paid the higher amount now I could follow it up afterwards - with the hope of obtaining a decision that would help anyone else in a similar situation (past or future) and which could be very expensive for the company if it was found to have repeatedly done wrong. be pointed out that SWR are entitled to prosecute the original offence in court if they want to.

We should point out that SWR could prosecute the original offence where the OP was caught in the Magistrates Court. If SWR feel like they are being 'messed around' then this is a risk.

 

[island]

It has to be said that whilthis advice seems attractive, I don't recall it ever actually working.

Indeed. It has never worked, and I do not think it ever will.

We do occasionally see journeys removed from the list to be paid for but not (as far as I remember) the railway reducing the rate they charge.

Yes, journeys get removed sometimes when a good explanation has been made, e.g. evidence that a Railcard was held for a journey, or a convincing explanation for a short fare.

 

[furlong]

We should point out that SWR could prosecute the original offence where the OP was caught in the Magistrates Court. If SWR feel like they are being 'messed around' then this is a risk.

...which could provide an opportunity to seek the court's guidance on whatever the remaining points of disagreement were in the settlement discussions. (I.e. if SWR was confident in its position.)
(Arguably the failed settlement discussions may need to be disclosed anyway when applying for a summons under the duty of candour.)

 

[Fawkes Cat]

...which could provide an opportunity to seek the court's guidance on whatever the remaining points of disagreement were in the settlement discussions. (I.e. if SWR was confident in its position.)

Why would a bench of magistrates hearing a criminal charge be interested in settlement discussions that had ended (logically, without agreement)?

 

[simonw]

The list does appear worthy of some duplicate filtering.

However, @furlong makes a very valid point, that the industry's loss (had Railcard continuity been sustained) equates to a few months of £30 pro-rata'd. £60 would probably more than cover it? I wonder why TOCs choose to correct such situations by attempting to charge for every invalid ticket in full, rather than charging for a full Railcard year for each of the gaps in Railcard "cover"??

I see this thought expressed here a number of times and the answer remains the same, why would anyone but a railcard if the only penalty for buying a railcard discounted ticket without a railcard having been acquired why would anyone but a railcard.They would just pay the cost of they were ever caught.

 

[talldave]

I see this thought expressed here a number of times and the answer remains the same, why would anyone but a railcard if the only penalty for buying a railcard discounted ticket without a railcard having been acquired why would anyone but a railcard.They would just pay the cost of they were ever caught.

Yes, but we're not talking about penalties for being caught, we're talking about speculatively extorting cash from Trainline customers under threat of being taken to court for something for which no evidence exists.

 

[Titfield]

The list does appear worthy of some duplicate filtering.

However, @furlong makes a very valid point, that the industry's loss (had Railcard continuity been sustained) equates to a few months of £30 pro-rata'd. £60 would probably more than cover it? I wonder why TOCs choose to correct such situations by attempting to charge for every invalid ticket in full, rather than charging for a full Railcard year for each of the gaps in Railcard "cover"??

But this “solution” would have minimal deterrent value which surely has to be a consideration in any revenue protection policy. It becomes close to the oft discussed pay when challenged issue.

 

[simonw]

Yes, but we're not talking about penalties for being caught, we're talking about speculatively extorting cash from Trainline customers under threat of being taken to court for something for which no evidence exists.

Well only the alleged perpetrator knows what actually occurred If they feel that they weren't guilty of any offence they are free to have their day in court.

 

[AlterEgo]

I see this thought expressed here a number of times and the answer remains the same, why would anyone but a railcard if the only penalty for buying a railcard discounted ticket without a railcard having been acquired why would anyone but a railcard.They would just pay the cost of they were ever caught.

You could ask why the railway is not happy for that to be the case but is happy to only charge the difference in fares when travelling off route or during the peak when holding an off peak ticket. “Why would anyone buy the correct route in the first place?” “Why would anyone buy an Anytime at all?”

 

[furlong]

Why would a bench of magistrates hearing a criminal charge be interested in settlement discussions that had ended (logically, without agreement)?

Because the failure might have been due to, let's say just a potential misunderstanding of a private prosecutor's obligations?

But this “solution” would have minimal deterrent value which surely has to be a consideration in any revenue protection policy. It becomes close to the oft discussed pay when challenged issue.

No part of the railway is entitled to decide the current rules aren't enough of a deterrent and so to invent its own unauthorised system of additional unofficial penalties!

 

[island]

Why would a bench of magistrates hearing a criminal charge be interested in settlement discussions that had ended (logically, without agreement)?

They won't.

Because the failure might have been due to, let's say just a potential misunderstanding of a private prosecutor's obligations?

Which obligations? Be specific, and provide a link to any codes, legislation, statutory instruments, or case law that you are citing.

 

[furlong]

Well we've often discussed the Post Office but here's another example of a private prosecutor expensively getting things wrong with some informative commentary on the obligations and a few references:

https://www.qebholliswhiteman.co.uk/cms/documents/QEB_Hollis_Whiteman_Briefing_Note_09.11.18.pdf

 

[island]

Well we've often discussed the Post Office but here's another example of a private prosecutor expensively getting things wrong with some informative commentary on the obligations and a few references:

https://www.qebholliswhiteman.co.uk/cms/documents/QEB_Hollis_Whiteman_Briefing_Note_09.11.18.pdf

In this case, a settlement agreement was agreed but a prosecution was taken anyway.

This is the exact opposite to the matter at hand.

I am not going to let you wriggle out of backing up your assertions that a criminal court will take any interest in failed settlement discussions. Do so, or withdraw them.

 

[furlong]

(I gave that reference for the commentary and references within.)

If, for example, the defence raised the matter because the prosecution failed in its duty of candour to do so itself, the court could get to consider what happened in failed negotiations. (We have seen submissions on the forum that mention settlement offers in court papers, generally ones that were ignored and show the prosecutor in a good light, so some do cover their bases by disclosing as they should.) The allegation may be that negotiations failed only because a private prosecutor was acting in bad faith, putting a corporate interest (to squeeze excess profit out of the situation, which no court would be expected to uphold) above public interest duties and duties to the court, potentially bringing the criminal justice system into disrepute as an abuse of process and perhaps worse (misconduct, criminal even). A court might express a view, formally or informally, and then adjourn to provide space for settlement discussions to recommence.

 

[RPI]

This may be so for SWR but as I understand it GWR do usually deduct fares paid when reaching a settlement
They presumably feel that double dipping is not very fair

Correct, the new fare will always be the Anytime fare, but monies paid will be deducted - because a court will always rule that monies paid should be taken into account.

 

[Lockwood]

Just paying the difference makes it easy for people to "get away with it", with the usual discussion around that.

Let's say that Fred paid £50 for a off peak return journey that he should have paid £100 for.

Paying £50 + £150 admin is still hitting Fred in the wallet.

The TOC saying he should pay for 2 any time singles at £80 each, plus £150 is a bit harsh. It isn't just "putting things right", and perhaps consideration should be given to the fare actually due rather than the maximum available fare?

 

[minderbinder]

Just paying the difference makes it easy for people to "get away with it", with the usual discussion around that.

Let's say that Fred paid £50 for a off peak return journey that he should have paid £100 for.

Paying £50 + £150 admin is still hitting Fred in the wallet.

The TOC saying he should pay for 2 any time singles at £80 each, plus £150 is a bit harsh. It isn't just "putting things right", and perhaps consideration should be given to the fare actually due rather than the maximum available fare?

But if Fred is paying £50 for an off-peak return journey that he should be paying £100 for, and he does this 3 times per week over the course of six months, the fact that he only has to pay the difference in fares plus a single £150 admin fee is perhaps starting to look like it’s a risk worth taking.

 

[fandroid]

But if Fred is paying £50 for an off-peak return journey that he should be paying £100 for, and he does this 3 times per week over the course of six months, the fact that he only has to pay the difference in fares plus a single £150 admin fee is perhaps starting to look like it’s a risk worth taking.

Fred would still have a hit for £3900 + £150. That would be extremely painful for most Freds as they'd have been assuming that the money "saved" was theirs to spend, and they would have spent it.