Expert witness for Routing and Passenger Issues

[319321]

This thread is to do with the issues that I uploaded here - the moderators created its own thread. As this matter is now before the courts, I will not be posting further detailed information (I may describe the issues in more detail if it will help me find an appropriate expert). I have had further discussions and have further evidence I can use that I am sure forum members will find interesting, but please understand why I am not posting it in a public forum at this time. ainsworth74, a forum moderator has also asked forum members to remain on topic.

I am aware that some people want to offer opinions on my case, and do so all you want when I post further details, but please keep this (and any other threads I create) on topic. I will not respond to any posts that simply offer an opinion of me and/or my case.

I've had a search but this issue doesn't seem to have been discussed before.

Who would Joe Public use as an expert witness for routeing and fares issues?

I have a couple of names in mind - Andrew Head of Rail Settlement Plan and Philip Wilkes of Transport Focus. The problem with the RSP man is that ultimately his salary is paid by the TOC's and the problem with the Transport Focus man is that he is employed by a body meant to represent consumers.

Is there someone more independent that could be called?

** I have changed the title of the thread as I have realised that the information required may be outside the scope of the original thread title.

Mod note - If anyone has any suggestions for industry experts to contact, or would be happy to nominate themselves, please send the OP a PM. (You need to have a minimum of 5 posts to send PMs. If you don't have the facility, please speak to a forum administrator, but not a moderator.)

Mod note 2 - Reopened for further discussion and OP to update.

 

[Llanigraham]

Why are they needed?
I think you need to give a lot more background.

 

[furlong]

Is this a question regarding a specific matter, or a general question?

The answer would, as ever, depend on the specific circumstances that led to the perceived need for such a witness - or witnesses, as there can be more than one. It's their knowledge and experience of the matter concerned that ought to be considered - in an ideal world, independence wouldn't have any bearing on matters of fact.

 

[319321]

llanigraham - I am trying to find out if anyone has any ideas as to who would be appropriate to call as an expert witness in a court case that involves routeing issues. It is to do with the case described in an earlier thread on here (which itself was split off from another thread) entitled 'Rochford to London via Southend issues with c2c and PF'

 

[ainsworth74]

I've removed some off-topic comments regarding a locked thread. The thread was locked for a reason and trying to discuss that thread on here will result in such posts being deleted.

Please stick to the topic at hand which is about expert witnesses for a routeing issue.

 

[DaveNewcastle]

Neither of the people you suggest should be able to introduce any bias into their evidence as a result of their employment.

Experts duty to the court
19.2 (1) An expert must help the court to achieve the overriding objective—
(a) by giving opinion which is—

(i) objective and unbiased, and
(ii) within the expert’s area or areas of expertise; and​

(b) by actively assisting the court in fulfilling its duty of case management under rule 3.2, in particular by—

(i) complying with directions made by the court, and
(ii) at once informing the court of any significant failure (by the expert or another) to take any step required by such a direction.​

(2) This duty overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid.

(3) . . .

When considering the value of expert evidence please note that the Courts are now urged to keep any debate about expert details to pre-trial discussion between parties. The parties should have agreed which of the expert's points are commoon ground and which are in dispute:

Introduction of expert evidence
19.3 (1) A party who wants another party to admit as fact a summary of an expert’s conclusions must serve that summary—
(a) on the court officer and on each party from whom that admission is sought;
(b) as soon as practicable after the defendant whom it affects pleads not guilty.

(2) A party on whom such a summary is served must—
(a) serve a response stating—

(i) which, if any, of the expert’s conclusions are admitted as fact, and
(ii) where a conclusion is not admitted, what are the disputed issues concerning that conclusion; and . . . .​

From this, you should be able to see that the benefit of an expert witness is to provide both parties and the Court with a clear indication of the point that is in dispute and to provide the authorities which will assist the Court in determining which opinion to accept (where it is relevant to determining the charge before them).

The Civil Procedure Rules are not dissimilar but include:

Duty to restrict expert evidence
35.1 Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

and

General requirement for expert evidence to be given in a written report
35.5 (1) Expert evidence is to be given in a written report unless the court directs otherwise.

and[

Written questions to experts
35.6 (1) A party may put written questions about an expert's report (which must be proportionate) to –

(a) an expert instructed by another party; or
(b) a single joint expert appointed under rule 35.7.​

(2) Written questions under paragraph (1) –

(a) may be put once only;
(b) must be put within 28 days of service of the expert’s report; and
(c) must be for the purpose only of clarification of the report,​

unless in any case –

(i) the court gives permission; or
(ii) the other party agrees.​

There's more than one person on this forum who has the necessary expertise, but I'll leave it to them to introduce themselves if they wish to do so.

What is the "court case" ? A civil or a criminal matter? An original claim, an Appeal or a Judicial Review of an earlier decision.

 

[furlong]

If this is regarding the thread you referenced, are you trying to navigate the system yourself, and, if so, is it perhaps dispassionate advice from an independent legal expert that you need before considering any potential role for an expert witness?

 

[319321]

@DaveNewcastle The case is a civil case between a me as member of the public and a train operating company. The case has been provisionally allocated to the small claims track. The case is currently at 'Directions' stage, I have filed the claim and they have filed a defence.

The case was filed in early November 2015. Due to a mix-up with my paperwork (on my side) and ongoing 'without prejudice' discussions between myself and the defendant and the Christmas holiday period, the defence has only just been filed. I thought that the case was going to be resolved after the 'without prejudice'discussions, but the defendant wants to impose a restriction on myself in addition to the usual 'denial of liability etc etc' which I specifically did not agree to in the without prejudice meeting. I said I was not willing to agree to such a restriction. The defendant therefore instructed solicitors and filed a defence. The defence is of a very poor quality, but as I am relying on industry documents and the defendant is not admitting liability for not following them, I need the expert to confirm that they are indeed meant to be followed.

@furlong Thank you for the suggestion, but I do not feel I would be able to pay for the kind of advice that I would need. The question here is specific, and I doubt the local solicitor would be able help with the particular question I am asking.

 

[DaveNewcastle]

I've had a quick glance at the other thread but it just seems to be an expression of an obsession with a sense of indignation - I couldn't see the point of law you have chosen to pursue and gave up.

I am at a loss to see what 'civil action' this could reasonably be.
A 'Breach of Contract' claim to recover the cost of a ticket?
A tort to recover some 'damages' incured (such as negligence, misfeasance, etc.) ?

What does "liability for not following industry documents" have to do with you? What liability do you think is recoverable?

If you can't affort some legal advice to give you a clear assessment of options and probabilities, and a focus on the point at issue, then your prospects during the Hearing look very poor to me.

Take care.

 

[319321]

@DaveNewcastle

The original thread was created by a moderator from a post I made to a thread entitled 'What do you think of Transport Focus?'. Given how they acted in my case, I felt they acted very poorly and posted that document as evidence of that. Obviously when filing my case I extensively researched the law and made sure that I had a very decent chance of winning before paying my court fee.

My case is framed within the Consumer Protection From Unfair Trading Regulations 2008 as amended by the Consumer Protection Regulations 2014, in particular section 27J. The basic allegation is that their staff misrepresented the validity of my ticket (Regulation 5) and acted aggressively (Regulation 7) through threatening me with a penalty fare and accusing me of fraudulently passing through the barrier at Southend Victoria unless I bought another ticket.

With regards to 'liability for not following industry documents', I am seeking to show that the defendent cannot use the defence provided for in 27J(5), namely

(5) A consumer does not have the right to damages if the trader proves that—
(a)the occurrence of the prohibited practice in question was due to—
(i)a mistake,
(ii)reliance on information supplied to the trader by another person,
(iii)the act or default of a person other than the trader,
(iv)an accident, or
(v)another cause beyond the trader’s control, and
(b)the trader took all reasonable precautions and exercised all due diligence to avoid the occurrence of the prohibited practice.

I am seeking to show that had the defendant followed industry guidance, their franchise agreement, their penalty fares scheme, the National Rail Conditions of Carriage etc. they would have avoided the occurrence of the prohibited practice.

With regards to the line "expression of an obsession with a sense of indignation", it certainly is. I will not stand for people accusing me of criminal offences and treating me like cack. Some people just let the incompetent ticket inspectors walk all over them, but I won't. The fact that the TOC hasn't even corporately apologised in a meaningful way or offered me my money back is appalling.

I have no idea how many other people have been falsely accused by ticket inspectors of not having a valid ticket when in fact they do (judging from this forum, its a fair few) and the rail companies profiting from this, but after the year of hell I have had I am not going to let this issue go.

 

[Llanigraham]

Perhaps the OP would like to state EXACTLY what his action is about, and what broken Laws he is taking the action over.
Certainly isn't very obvious here or in the locked thread.
Like Dave I suspect this could prove very expensive.

 

[319321]

Llanigraham - I am not posting further information about my case until it is settled. Some information I have has been provided 'without prejudice' and I do not want to compromise my case by revealing all in a public forum. It's not obvious here or in the locked thread, because at the time of making that post I had not framed my arguments within the law as I was still hoping for a resolution without having to take court action. This thread was to ask for specific information and offer the information I already knew.

What DaveNewcastle said about the expert witnesses having to provide independent evidence is true, but I would rather it came from someone independent of this situation. ATOC and Transport Focus have already been involved in this case and have aims/employers that may cause internal conflict when they give evidence.

The answer may well be that no-one can or is willing to provide any recommendations; but nothing asked, nothing gained.

 

[ainsworth74]

I would ask that we remain on topic. As the OP has alluded to it is not wise to discuss the details of the case until the pending legal action is concluded so no matter what your feelings are on the matter please would member desist.

If anyone has any information or advice regarding the topic of this thread please feel free to post it.

 

[DaveNewcastle]

. . . I suspect this could prove very expensive.

As this 'dispute' seems to be 'fast tracked' in the Small Claims Court, then the costs will be low, and correspondingly, the depth of analysis is also low.
The sums recoverable by a successful claimant are also low.

I'm not going to comment on Consumer Regulations as applied to rail travel, I have done so on here in the past. Any more detail of comment on that specific topic published on this forum is likely to be at risk of being prejudicial to the administration of justice, which the forum staff would be vigilant to prevent.

 

[miami]

So who can resolve fare problems?

In many cases when the TOCs claim one thing but the COC claims another, it's clear that the TOCs have the upper hand. The BTP will believe the tea lady rather than the passenger, the government will believe the franchisee rather than the passenger, and in the rare case the TOC admits they were wrong they get to say "oops sorry here have a voucher", where the passenger is risking far more.

Would a journalist like Christian Woolmer or Simon Calder be admissable as an "expert"? Or are the only allowed experts from the industry? Will the Judges simply look at the terms and conditions of the ticket at face value, ignoring what is claimed by one side or the other in a John Deed style fashion, or will they take "guidance" from the industry?

 

[319321]

The criminal age of responsibility is ten and the railway byelaws make it an offence not to have a valid ticket.

If a ten year old is expected to grasp the principles of valid tickets and risks being made a criminal by failing to understand them, I fail to see how railway servants and managers can rely on 'mistakes' as a defence
when they breach the Railway Byelaws and other legislation.

 

[ainsworth74]

Wolmar isn't really an expert in fares but Barry Doe would be considered as fares would clearly be within his area of expertise. But heavens alone knows how much he'd charge for expert testimony!

 

[CheesyChips]

Do you have a hearing date set?

 

[TonyR]

@DaveNewcastle The case is a civil case between a me as member of the public and a train operating company. The case has been provisionally allocated to the small claims track. The case is currently at 'Directions' stage, I have filed the claim and they have filed a defence.

In case you are not aware, you need the Court's permission to submit an expert witness report in the Small Claims Court and each party bears its own costs so you will not be able to reclaim the costs of any expert witness even if you win. Given the costs involved you might consider pragmatism over standing on your rights.

I should also add the Courts tend not to look too favourably on point of principle small claims that could have been settled but weren't and where the costs of claiming are far more than the claim.

But good luck.

 

[319321]

@CheesyChips - No hearing date has been set as yet.

@TonyR - I am aware of that (needing the courts permission and costs). I am just asking the question with regards to expert witnesses so I can be prepared should the issue arise.

This is a genuine case and is not just to 'make a point'. I have done everything I can to settle this matter out of court, but the defendent will not settle the claim without imposing restrictions on my freedom to act as any other passenger.

 

[DaveNewcastle]

Would a journalist like Christian Woolmer or Simon Calder be admissable as an "expert"? Or are the only allowed experts from the industry?

I have seen an established railway reporter (such as these) provide very helpful information to a Court in a claim for damages, and do so in a concise and robust manner.

 

[34D]

In case you are not aware, you need the Court's permission to submit an expert witness report in the Small Claims Court and each party bears its own costs so you will not be able to reclaim the costs of any expert witness even if you win. Given the costs involved you might consider pragmatism over standing on your rights.

I should also add the Courts tend not to look too favourably on point of principle small claims that could have been settled but weren't and where the costs of claiming are far more than the claim.

But good luck.

I expect there will be a case management discussion and an order to appoint a joint expert.

Barry is one option, and arguably someone from this forum could be another bet (doubtless everyone knows who I have in mind, though he hasn't posted in this thread yet).

However, if it is about how to work the routeing guide I would say Res Ipsa Loquiter (the facts speak for themselves).

Was the date of the matter before or after the rg changed to require one to consult the online planner?

 

[Tetchytyke]

In many cases when the TOCs claim one thing but the COC claims another, it's clear that the TOCs have the upper hand.

I don't think that is clear at all, First Capital Connect proved that much after losing in court with a Routeing Guide issue.

The issue is, of course, is that many people interpret things the way they would like them to be, as opposed to how they actually are.

Interpretations of the Routeing Guide, for instance, are largely a finding of fact and I am uncertain what benefit a self-proclaimed "fares expert" would bring to this particular situation. Expert witnesses would usually only be required for issues outside the reasonable scope of the court's knowledge (e.g. psychology, forensics). IMO interpreting a legal document would not be outside the scope of the court's knowledge.

The facts speak for themselves. You would prepare and submit to the court a detailed explanation of why you believe the Routeing Guide supports your assertion; the TOC will provide a detailed explanation of why they disagree, and the court will decide which viewpoint they believe has more credence.

I don't recall an "expert witness" being used in the St Albans court case.

 

[319321]

Was the date of the matter before or after the rg changed to require one to consult the online planner?

18 November 2014. NRE and the TOC's own web site showed it at as a permitted route and they still do.

The TOC are trying to defend my claim against them as they say it was a 'mistake' and they took all reasonable precautions and exercised all due diligence to avoid the occurrence of the prohibited practice.

What I am trying to show (and where an expert witness may be useful) is:

* It is an accepted practice that railway passengers may use walks between stations where:
---- In the days of 'ANY REASONABLE ROUTE' where the walk was short and reasonable (e.g. made the journey shorter in distance, shorter in time, or not so significantly different in terms of fares when compared to journeys without the walking link that the walking link should not be allowed)
---- In the days of permitted routes, where the National Rail Timetable shows the station combinations as permitted routes
---- Where Journey Planners allow walking tranfers to be made

* That railway employees should recieve the training that a penalty fares scheme says they will recieve

* That it is not compulsary to show or hold a ticket on any public area of a railway station unless that area has been designated a compulsary ticket area

* That in order to have taken all reasonable precautions and excercised all due dilligence, that a railway company must be compliant with the undertakings that it has made to the Department for Transport in order to operate a penalty fares scheme, to obtain the railway franchise to to obtain the necessary licenses to operate the passenger railway service.

* The TOC should also comply with it's own Complaints Handling Procedure, Revenue Protection Policy and Customer Charter

* The TOC should ensure that its own website is accurate

 

[najaB]

18 November 2014. NRE and the TOC's own web site showed it at as a permitted route and they still do.

The TOC are trying to defend my claim against them as they say it was a 'mistake' and they took all reasonable precautions and exercised all due diligence to avoid the occurrence of the prohibited practice.

What I am trying to show...

Might I remind you of something posted earlier:

I am not posting further information about my case until it is settled...

 

[Llanigraham]

At least 4 of those points have nothing to do with the Routing Guide, and an Expert Witness would be of no relevance.

 

[Agent_c]

I'd really like to hear about the outcome of your case, when it happens.

 

[Tetchytyke]

The issues are a matter of law- whether it is a mistake and, if so, whether you're entitled to rely on it- and an expert witness is not required.

Most of the other issues are a waste of the Court's time.

 

[34D]

* That it is not compulsary to show or hold a ticket on any public area of a railway station unless that area has been designated a compulsary ticket area

Hmm. Few issues here:
-a station isnt public (anyone seeking to rely on NRs recent accession to public authority note that we are going back to Nov 2014).
-even stations that have a public right of way are still private land
-in general there is no unfettered right of access to a concourse or platform. Private security guards can and do remove people from either.

Finally, by not shoeing your ticket when so demanded by an authorised person you have breeched a byelaw

 

[najaB]

Hmm. Few issues here...

Can I remind everyone of something which was posted earlier in the thread:

I've removed some off-topic comments regarding a locked thread. The thread was locked for a reason and trying to discuss that thread on here will result in such posts being deleted.

Please stick to the topic at hand which is about expert witnesses for a routeing issue.