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TOC - Delay Repay liability

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Throttle

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I have read up VERY extensively on the issue of which company is liable for delay claims. I have also tried to track down any cases that have reached court.

Can anybody connected with these forums point me to any legally binding regulation or better still a binding court precedent that allows the ticket issuing company to pass liability to another train operator for a ticket with multiple carriers.

The Consumer Rights Act 2015 is exceedingly clear that any purchase for a service is contracted with the "Trader". That is very clearly in these cases the ticket issuer. To pass liability to another party would require any agency or assignation to be very transparently stated at contract - i.e. ticket purchase.

I have read just about every document, from franchise agreements through to The Ticketing & Settlement Agreement.

Yes National Rail Conditions of Travel does fudge the issue. But it is very noticeable that the March 2018 version has included multiple references to The Consumer Rights Act 2015. The previous version may have verged on criminally misleading the consumer's rights!!!

Current version " 35, 1. If you need to make a claim against a Train Company or Rail Service Provider for personal injury or any loss or damage to property, or a claim or complaint arising under the Passenger's Charter or these Conditions, you should write to the relevant Train Company or Rail Service Provider in the first instance,"

THEN

"35.2. Please note that a Train Company is not responsible for:

35.2.1. another Train Company not running any trains;"

That is total gibberish in my opinion.

Oh and I have run through the online ticketing screens of both TPE and Virgin through to purchase. Neither company could be deemed to "transparently" assert to be acting as an agent. The multiple cross references can only be found deep in hyperlinked documents. Such linking during a low value ticket purchase are highly unlikely to be enforceable as valid in court - even if they aren't total gibberish as above. Under the act tems that are "incorporated by reference" as these links to other lengthy documents qualify as, are most unlikely to pass a transparency test.

Grateful to hear any views - particular of any test cases. The delay repay system is a mess as exemplified by the Northern fiasco. I'm working with a number of other parties with MP support to get this particular issue nailed or legislated against.
 
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AlterEgo

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I’m unclear exactly what you’re looking to get from this. Delay Repay is always awarded by the first TOC in your itinerary to cause a delay. It’s not awarded by the seller of the ticket.
 

Fawkes Cat

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Can anybody connected with these forums point me to any legally binding regulation or better still a binding court precedent that allows the ticket issuing company to pass liability to another train operator for a ticket with multiple carriers.

I suspect that Delay Repay will never have gone to court - let alone to a sufficiently senior court to set a precedent.

In general, train tickets are low-value items: as an example, there is a thread discussing the Daily Mail's outrage at a fare (which turned out to be two fares) of £951.20. That sounds like a lot (and compared to most fares, it is a lot) but consider the practical costs and difficulties of getting a precedent-setting ruling on Delay Repay: you will have to go to court, and (most likely) to an appeal to get to a level where there will be a precedent. For most people, if they are trying to recover less (quite possibly much less) than a thousand quid, they will look at the costs of going to court (probably paying for a barrister) and decide not to bother. And if they lose in the first round, even if they could appeal they will probably decide that fighting the point further will just be throwing good money after bad. In practice, for the money involved the barriers to taking delay repay to court are insurmountable.

It's impossible to prove a negative, and maybe there is a reported case that has reached a court that can set precedent. But if the (in my experience) knowledgeable and well-informed contributors to this forum haven't spotted it, then that probably means that there isn't one.
 

Throttle

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I’m unclear exactly what you’re looking to get from this. Delay Repay is always awarded by the first TOC in your itinerary to cause a delay. It’s not awarded by the seller of the ticket.
Why? And that is not substantiated by ATOC who say it is the liability of the company who created the greatest component of the delay. In any case I and others are asking this question here to see if any of the experienced members has any evidence to substantiate that the liability can legally be transferred.

"We would recommend that a claim be made to either the TOC that caused the initial delay, or where multiple TOC delays are involved, the TOC which carried them for the longer part of their journey. In the small number of cases where this is not obvious, the customer can choose who they claim from but they can only claim under one passengers' charter, and will be subject to that charter for the calculation of any refund due on the whole value of their ticket."
 
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Throttle

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I suspect that Delay Repay will never have gone to court - let alone to a sufficiently senior court to set a precedent.

In general, train tickets are low-value items: as an example, there is a thread discussing the Daily Mail's outrage at a fare (which turned out to be two fares) of £951.20. That sounds like a lot (and compared to most fares, it is a lot) but consider the practical costs and difficulties of getting a precedent-setting ruling on Delay Repay: you will have to go to court, and (most likely) to an appeal to get to a level where there will be a precedent. For most people, if they are trying to recover less (quite possibly much less) than a thousand quid, they will look at the costs of going to court (probably paying for a barrister) and decide not to bother. And if they lose in the first round, even if they could appeal they will probably decide that fighting the point further will just be throwing good money after bad. In practice, for the money involved the barriers to taking delay repay to court are insurmountable.

It's impossible to prove a negative, and maybe there is a reported case that has reached a court that can set precedent. But if the (in my experience) knowledgeable and well-informed contributors to this forum haven't spotted it, then that probably means that there isn't one.
Thanks what you report is pretty much our research. I agree with your precedent point. Indeed many companies in the travel sector are not even responding to the courts on similar potentially precedent setting claims. They are happy to suffer the judgment and pay up to avoid creating that precedent. Which is why unless somebody here can convince that a legal justification exists for the policy we will force for a defining judgment. We are awaiting pre-action disclosure due by today from one TOC today and another one next Friday.
 

Throttle

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Is delay repay a liability since it exceeds the contractual obligations?
I understand your point and I wouldn't try and take a case to court where Delay Repay exceeds legal obligations. But in most ATOC ToC's the Delay Repay is not much more generous than GB (Not Northern Ireland) legal obligations which are less generous than EC for consequential delay. Parliament opted to declare several key sections of EC 1371/2007 "Non-Core" in 2009 renewed in 2014 for a further 5 years -

2014 No. 2793
TRANSPORT
The Rail Passengers’ Rights and Obligations (Exemptions) Regulations 2014
 

ForTheLoveOf

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Why? And that is not substantiated by ATOC who say it is the liability of the company who created the greatest component of the delay. In any case I and others are asking this question hear to see if any of the experienced members has any evidence to substantiate that the liability can legally be transferred.
I agree that delay compensation schemes (remember, not all TOCs do Delay Repay yet!) could definitely do with being made clearer as to who bears liability for delayed journeys involving multiple TOCs. At current, the 'rule' that it's the TOC which first delays you or makes you miss a connection, is not 100% clearly codified anywhere that I can tell.

Something else that should definitely be changed the next time the NRCoT are reviewed is making clear that delay compensation is not a customer service or goodwill matter, but that's it's a legal liability which can be enforced at Court if necessary.
 

AlterEgo

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Why? And that is not substantiated by ATOC who say it is the liability of the company who created the greatest component of the delay. In any case I and others are asking this question here to see if any of the experienced members has any evidence to substantiate that the liability can legally be transferred.

"We would recommend that a claim be made to either the TOC that caused the initial delay, or where multiple TOC delays are involved, the TOC which carried them for the longer part of their journey. In the small number of cases where this is not obvious, the customer can choose who they claim from but they can only claim under one passengers' charter, and will be subject to that charter for the calculation of any refund due on the whole value of their ticket."

Where do RDG (who used to be ATOC) day this? Is this in a document intended to be customer-facing? It has never been the case in practice that on a multi-leg itinerary the “greatest” delayed leg was the one you claimed from - always the first leg you were delayed on causing you to miss a connection.

I don’t know the legal reason why the responsibility for Delay Repay falls to the TOC rather than the ticket seller, but would note that this also is the case for a number of other industries, such as airlines, whose cases continue to grace the courts.
 

Throttle

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I agree that delay compensation schemes (remember, not all TOCs do Delay Repay yet!) could definitely do with being made clearer as to who bears liability for delayed journeys involving multiple TOCs. At current, the 'rule' that it's the TOC which first delays you or makes you miss a connection, is not 100% clearly codified anywhere that I can tell.

Something else that should definitely be changed the next time the NRCoT are reviewed is making clear that delay compensation is not a customer service or goodwill matter, but that's it's a legal liability which can be enforced at Court if necessary.
Totally agree the liability is a mess - I think this matter will be in court and before parliament within a month. As I said to others I accept Delay Repay is often beyond legal obligations. So for future reading of the thread please read my point as Legally obliged train delay compensation!

But as in my OP I can't see the ticket issuing systems being operated would enable either Virgin or TPE to claim to be anything other than "The Trader" under The Consumer Rights Act 2015. They would need to transparently assert they were agents or assigning liabilities - and even if they did that I still can't see them being able to defend such a claim!
 

Throttle

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Where do RDG (who used to be ATOC) day this? Is this in a document intended to be customer-facing? It has never been the case in practice that on a multi-leg itinerary the “greatest” delayed leg was the one you claimed from - always the first leg you were delayed on causing you to miss a connection.

I don’t know the legal reason why the responsibility for Delay Repay falls to the TOC rather than the ticket seller, but would note that this also is the case for a number of other industries, such as airlines, whose cases continue to grace the courts.

My quote was from nationalrail.co.uk

Airline tickets across carriers on a single ticket (PNR) bought in the EU for flights originating in The EU liability is with the original ticket issuer.

Airline cases rarely get to court because they get settled "quietly" - or the airline ignores the summons and pays up as BA appears to have done for a least one case involving the deicing fiasco at Heathrow earlier this year.
 

ForTheLoveOf

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Totally agree the liability is a mess - I think this matter will be in court and before parliament within a month. As I said to others I accept Delay Repay is often beyond legal obligations. So for future reading of the thread please read my point as Legally obliged train delay compensation!

But as in my OP I can't see the ticket issuing systems being operated would enable either Virgin or TPE to claim to be anything other than "The Trader" under The Consumer Rights Act 2015. They would need to transparently assert they were agents or assigning liabilities - and even if they did that I still can't see them being able to defend such a claim!
The issue is, though your receipt or card statement may say that you have bought something from TPE or Virgin Trains etc., in reality these are acting as agents of the train companies whose services your ticket(s) permit you to use. So they aren't necessarily the 'trader' as such, whereas the train companies whose services your ticket entitles you to use probably are.

It's definitely a complex and messy situation when you buy your ticket from anywhere other than exactly the train company you travel with.
 

AlterEgo

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The issue is, though your receipt or card statement may say that you have bought something from TPE or Virgin Trains etc., in reality these are acting as agents of the train companies whose services your ticket(s) permit you to use. So they aren't the traders as such, or perhaps they are but so are the train companies whose services your ticket entitles you to use.

It's definitely a complex and messy situation when you buy your ticket from anywhere other than exactly the train company you travel with.

It is indeed complex and messy. I’m trying to figure out what sort of consumer detriment the OP is trying to address here and whether passengers would be better off claiming Delay Repay from retailers, adding another layer to the money-go-round.
 

Throttle

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It is indeed complex and messy. I’m trying to figure out what sort of consumer detriment the OP is trying to address here and whether passengers would be better off claiming Delay Repay from retailers, adding another layer to the money-go-round.
I disagree. The point of contract has clearly been established in all recent UK Law as "The Trader". That was legislated for clarity to the consumer.

Delay Repay offering extra protection is no different in status to "A Guarantee" that some manufacturers offer. Such guarantees are additional protections but cannot overwrite or even pretend to limit normal legal rights.

" in reality these are acting as agents of the train companies whose services your ticket(s) permit you to use."

This hits the nail on the head. Can somebody prove that "Reality" ....as in the ticket issuer is an agent. The ticketing process would need to TRANSPARENTLY state and explain that under The Consumer Rights Act 2015.

(Please advise me if such an agency relationship is mentioned in NRToC. I can only find it buried in The TSA and even then there is a clearly laid out settlement process between ToC's when;

" if an Operator incurs any out of pocket expenses under Condition 43 of the National Rail Conditions of Travel as a result of a failure by another Operator to provide the relevant train service it was due to provide, that other Operator must reimburse the first Operator on demand for any reasonable expenses which were incurred"

From my testing, the ticketing process for multi carriers does not even mention other carriers until the ticket is issued - that is post contract. "Traders" are not allowed to change terms post contract - The Consumer Rights Act 2015

For the Avoidance of Doubt. My motives are purely altruistic. I am not legally qualified. Whilst a UK resident I live 10 months of the year overseas. I am simply sick of having to help elderly neighbors wade through this kind of over written ambiguous UK consumer cr1p. For full disclosure I have an outstanding claim for £11.30 LOL
 

AlterEgo

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I disagree. The point of contract has clearly been established in all recent UK Law as "The Trader". That was legislated for clarity to the consumer.

Delay Repay offering extra protection is no different in status to "A Guarantee" that some manufacturers offer. Such guarantees are additional protections but cannot overwrite or even pretend to limit normal legal rights.

" in reality these are acting as agents of the train companies whose services your ticket(s) permit you to use."

This hits the nail on the head. Can somebody prove that "Reality" ....as in the ticket issuer is an agent. The ticketing process would need to TRANSPARENTLY state and explain that under The Consumer Rights Act 2015.

(Please advise me if such an agency relationship is mentioned in NRToC. I can only find it buried in The TSA and even then there is a clearly laid out settlement process between ToC's when;

" if an Operator incurs any out of pocket expenses under Condition 43 of the National Rail Conditions of Travel as a result of a failure by another Operator to provide the relevant train service it was due to provide, that other Operator must reimburse the first Operator on demand for any reasonable expenses which were incurred"

From my testing, the ticketing process for multi carriers does not even mention other carriers until the ticket is issued - that is post contract. "Traders" are not allowed to change terms post contract - The Consumer Rights Act 2015

For the Avoidance of Doubt. My motives are purely altruistic. I am not legally qualified. Whilst a UK resident I live 10 months of the year overseas. I am simply sick of having to help elderly neighbors wade through this kind of over written ambiguous UK consumer cr1p. For full disclosure I have an outstanding claim for £11.30 LOL

Regardless of the legal ins and outs...

I don’t really understand how sending the consumer to the retailer instead will result in a more efficient system.
 

Throttle

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Regardless of the legal ins and outs...

I don’t really understand how sending the consumer to the retailer instead will result in a more efficient system.
Firmly established in all UK and EC consumer law. It prevents the consumer being fobbed off to the manufacturer. Indeed for items over £100 the liability can be placed on a credit card company if so purchased. (Consumer Credit Act Act 1974 Section 75). Be interested to hear if anybody has filed a Section 75 on a train ticket!
 

AlterEgo

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Firmly established in all UK and EC consumer law. It prevents the consumer being fobbed off to the manufacturer. Indeed for items over £100 the liability can be placed on a credit card company if so purchased. (Consumer Credit Act Act 1974 Section 75). Be interested to hear if anybody has filed a Section 75 on a train ticket!

Lots of people have filed Section 75 claims successfully - we have had stories on this forum. I still don’t understand what consumer detriment you are trying to ameliorate here.

Why do you think it would be better to change things so that ticket retailers paid and administered Delay Repay? Why would that be a good thing and why would it lead to better outcomes for consumers?
 

bb21

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Lots of people have filed Section 75 claims successfully - we have had stories on this forum. I still don’t understand what consumer detriment you are trying to ameliorate here.

Why do you think it would be better to change things so that ticket retailers paid and administered Delay Repay? Why would that be a good thing and why would it lead to better outcomes for consumers?

Agreed.

I don't think what the OP is after is anywhere near the expertise of this forum, so no point in continuing considering the evasiveness.
 

yorkie

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Why? And that is not substantiated by ATOC who say it is the liability of the company who created the greatest component of the delay. In any case I and others are asking this question here to see if any of the experienced members has any evidence to substantiate that the liability can legally be transferred.
Please do contact me if you have a source for this claim. I can then put this to a senior person within ATOC.
"We would recommend that a claim be made to either the TOC that caused the initial delay, or where multiple TOC delays are involved, the TOC which carried them for the longer part of their journey. In the small number of cases where this is not obvious, the customer can choose who they claim from but they can only claim under one passengers' charter, and will be subject to that charter for the calculation of any refund due on the whole value of their ticket."
That's the quote from ATOC?

I am not at all convinced that this is an official view by ATOC, but if you can disclose to me privately the source, I can take this up with my contacts.

Firmly established in all UK and EC consumer law. It prevents the consumer being fobbed off to the manufacturer. Indeed for items over £100 the liability can be placed on a credit card company if so purchased. (Consumer Credit Act Act 1974 Section 75). Be interested to hear if anybody has filed a Section 75 on a train ticket!
I am not interested in helping you if you are seeking to somehow implicate retailers when train companies are liable to compensate customers.

However if you have any workable proposals I would be prepared to listen to any suggestions, but I do not think it fair that any additional burden is placed on retailers for matters that are totally outwith their control, and I very much doubt that it would be possible to implement a fair system that would allow the retailer to allocate delay liability without retailers incurring disproportionate costs and also be acceptable to train companies.
 
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