The other interesting thing here relates to the original message from the solicitor, which gave out some heavy handed wording in the first two substantive paragraphs relating to "offences" and "fraud". It is now clear that not only are we in the civil court process - for which the word "offence" is not appropriate - but that the solicitors have no line of sight into the criminal court process in respect of your case. At least your daughter will not be getting a criminal record, which you understandably mentioned in your first post.
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South Western Railway fine
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This is an update:
We have received a breakdown of all journeys from the train company. They claim that my daughter owes £1616 for the journeys on which she used the wrong railway card. She already paid £808 (half of that amount by using the railway card which gives her 50% discount), but they do not care that she paid half of it already. That seems a bit harsh to me.
Any help with the following would be appreciated.
Our initial reply and proposal were the following:
Thank you for the report you sent. xxxxx and I had a look at it.
The amount of £1616 which is the total of all trips xxxxxx made using the wrong card.
xxxxxxx should have never paid £1616 as she had railway cards.
xxxxxxx has already paid £808 by using the wrong card (50% discount).
xxxxxxx should have paid £1131 by using the correct card (30% discount).
The difference that xxxxxx did not pay is £323, which is the total that xxxxxx owes.
xxxxxx's case should have never arrived at the stage of civil recovery as nobody has ever asked her to pay anything.
The communication breakdown from the side of South Trains should be acknowledged as xxxxxx tried to sort out this much earlier in the process.
Our proposal is for xxxxxxx to pay £323 immediately so we can close this case.
The solicitor came back with the following:
I have spoken to my client regarding the issues raised in your previous email and we cannot accept your proposal of £323.
Section 8.5 of The National Rail Conditions of Travel states:
8.5 If you are travelling with a Railcard discounted Ticket and are unable to present the Railcard when asked by the staff or authorised agents of a Train Company, you will be treated as having joined a train without a valid Ticket and Conditions 9.1 – 9.5 will apply
xxxxxxx did not have a valid ticket for every journey made with the incorrect discount applied, this means that the fare avoided for each journey is the full undiscounted ticket price.
Section 9.2 of The National Rail Conditions of Travel states:
9.2 If you are unable to present a valid Ticket when asked and the conditions set out in Condition 6 do not apply, we are permitted in law to take one of the following measures:
9.2.1 To charge you the full undiscounted “anytime” single fare to a station directly served by the train that you are on. You will not be entitled to any discounts or special terms, or to a Ticket to a station other than one served by the train that you are on; or
9.2.2 To charge you a Penalty Fare on certain trains and stations (see Condition 10 below); or
9.2.3 To report you for prosecution.
Therefore, the original debt quoted by our client is the correct and total outstanding sum. Please see the attached copy of xxxxxx’s train usage which was sent to you by my colleague on the 21/02/2025.
Whilst the deadline for payment technically expires today, we are prepared to extend that period by a further 7 days to allow your daughter to either make full repayment of the debt or alternatively present us with an acceptable proposal to tackle this debt.
We have received a breakdown of all journeys from the train company. They claim that my daughter owes £1616 for the journeys on which she used the wrong railway card. She already paid £808 (half of that amount by using the railway card which gives her 50% discount), but they do not care that she paid half of it already. That seems a bit harsh to me.
Any help with the following would be appreciated.
Our initial reply and proposal were the following:
Thank you for the report you sent. xxxxx and I had a look at it.
The amount of £1616 which is the total of all trips xxxxxx made using the wrong card.
xxxxxxx should have never paid £1616 as she had railway cards.
xxxxxxx has already paid £808 by using the wrong card (50% discount).
xxxxxxx should have paid £1131 by using the correct card (30% discount).
The difference that xxxxxx did not pay is £323, which is the total that xxxxxx owes.
xxxxxx's case should have never arrived at the stage of civil recovery as nobody has ever asked her to pay anything.
The communication breakdown from the side of South Trains should be acknowledged as xxxxxx tried to sort out this much earlier in the process.
Our proposal is for xxxxxxx to pay £323 immediately so we can close this case.
The solicitor came back with the following:
I have spoken to my client regarding the issues raised in your previous email and we cannot accept your proposal of £323.
Section 8.5 of The National Rail Conditions of Travel states:
8.5 If you are travelling with a Railcard discounted Ticket and are unable to present the Railcard when asked by the staff or authorised agents of a Train Company, you will be treated as having joined a train without a valid Ticket and Conditions 9.1 – 9.5 will apply
xxxxxxx did not have a valid ticket for every journey made with the incorrect discount applied, this means that the fare avoided for each journey is the full undiscounted ticket price.
Section 9.2 of The National Rail Conditions of Travel states:
9.2 If you are unable to present a valid Ticket when asked and the conditions set out in Condition 6 do not apply, we are permitted in law to take one of the following measures:
9.2.1 To charge you the full undiscounted “anytime” single fare to a station directly served by the train that you are on. You will not be entitled to any discounts or special terms, or to a Ticket to a station other than one served by the train that you are on; or
9.2.2 To charge you a Penalty Fare on certain trains and stations (see Condition 10 below); or
9.2.3 To report you for prosecution.
Therefore, the original debt quoted by our client is the correct and total outstanding sum. Please see the attached copy of xxxxxx’s train usage which was sent to you by my colleague on the 21/02/2025.
Whilst the deadline for payment technically expires today, we are prepared to extend that period by a further 7 days to allow your daughter to either make full repayment of the debt or alternatively present us with an acceptable proposal to tackle this debt.
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Fawkes Cat
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You might want to edit your post above to obscure your daughter's name (whether personal name as you have used, or family name as in the railway's response).
The issue here is that selecting the wrong railcard makes the ticket invalid, and train companies will not normally take fares already paid into consideration when calculating settlements. If they did, no-one would ever buy a railcard and just pay the difference if challenged.
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Thank you for pointing out
As @Hadders has pointed out, the amount sought is legally correct but harsh in its totality in the circumstances.
I am not sure if you have any choice other than to pay the amount sought and perhaps then involve your MP about the unjustness of this which whilst the amount is correct nevertheless means that you will have paid a punitive sum on top of the actual fares.
I would say involve a solicitor but given the fees you are likely to incur and the prospects of success being low it would be a waste of money.
I am not sure if you have any choice other than to pay the amount sought and perhaps then involve your MP about the unjustness of this which whilst the amount is correct nevertheless means that you will have paid a punitive sum on top of the actual fares.
I would say involve a solicitor but given the fees you are likely to incur and the prospects of success being low it would be a waste of money.
Gloster
Veteran Member
I will just say that I do not think you have a good case for arguing down the sum requested as the railway appears to have adopted the standard practice. I think you should concentrate on being allowed to pay the sum as an out of court settlement, which at least avoids any legal record.
As a salutary lesson, on this forum another parent got involved with a case recently over a £3 error. They were offered a settlement of £63, £3 fare and £60 for the railway’s investigation costs (this was half or less than what the railway normally asks for). He fought and lost: it cost him £783 (£3 fare, £400 for the railway’s costs, which seemed to be higher as he had involved a solicitor, so (presumably) also requiring them to involve a solicitor, and £380 for his own solicitor’s fees, which were lower than they often charge.
I am not an expert.
As a salutary lesson, on this forum another parent got involved with a case recently over a £3 error. They were offered a settlement of £63, £3 fare and £60 for the railway’s investigation costs (this was half or less than what the railway normally asks for). He fought and lost: it cost him £783 (£3 fare, £400 for the railway’s costs, which seemed to be higher as he had involved a solicitor, so (presumably) also requiring them to involve a solicitor, and £380 for his own solicitor’s fees, which were lower than they often charge.
I am not an expert.
I guess it depends on your risk appetite.
You have offered the difference between 50% discount and 33% discount, which is the minimum view of the loss incurred by the railway. They want 100%.
I can see why they would consider your offer inadequate, but if you offered the difference between a 50% discount and what you would have paid without a railcard (ie another 50%) then they might accept that. (Maybe adding something to cover their expenses?) I would have thought that, notwithstanding the NRCoT, as quoted above, that might be deemed to be an acceptable offer, and thus you would not have to pay the other side's costs (and they would have to pay yours).
Ultimately it will cost them to take you to court, and if the outcome is an award no greater than what you have offered then AIUI, they would not get their costs paid. Of course, if they are awarded more then I believe you would be liable to pay their costs. (Caveat - I am not a lawyer.)
By the way, I think it's sneaky of their letter to quote 9.2.3 without making clear that it is not an option here - that feels very underhand in terms of making clear their position.
You have offered the difference between 50% discount and 33% discount, which is the minimum view of the loss incurred by the railway. They want 100%.
I can see why they would consider your offer inadequate, but if you offered the difference between a 50% discount and what you would have paid without a railcard (ie another 50%) then they might accept that. (Maybe adding something to cover their expenses?) I would have thought that, notwithstanding the NRCoT, as quoted above, that might be deemed to be an acceptable offer, and thus you would not have to pay the other side's costs (and they would have to pay yours).
Ultimately it will cost them to take you to court, and if the outcome is an award no greater than what you have offered then AIUI, they would not get their costs paid. Of course, if they are awarded more then I believe you would be liable to pay their costs. (Caveat - I am not a lawyer.)
By the way, I think it's sneaky of their letter to quote 9.2.3 without making clear that it is not an option here - that feels very underhand in terms of making clear their position.
methecooldude
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Only if it was a valid Part 36 offer
(https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part36#36.5)
The letter the OP has set does not meet b, c and potentially d. Therefore it's not a valid Part 36 offer and does not attract the costs consequences (Also, not a lawyer)
John Palmer
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I will assume for the sake of argument that the train operator has accurately calculated the undiscounted fares for journeys where the wrong railcard discount was claimed, and that there is no basis for claiming that journeys have been included in the calculation for which the correct fare was paid.
I do not see a basis on which the OP's daughter can apply a discount to the sum claimed by reference to the fact that she held a 16-25 Railcard. On the basis of my assumption above she did not claim the discount made available by that railcard for any of the journeys forming the subject of the claim at the time of ticket purchase, and cannot do so retrospectively to reduce the measure of the operator's loss.
My understanding of the operator's case is that that the undiscounted fares for those journeys amount in aggregate to £1,616 and that the OP's daughter claimed a 50% discount on those fares by falsely representing that she was eligible for such discount by virtue of the 16-17 Railcard she held. On that basis the implication must be that she actually paid the operator sums totalling £808 for the journeys concerned. The fact remains, therefore, that she has made payments to the operator for the journeys giving rise to the claim, so that the actual loss of fare income suffered by the operator is the wrongly claimed discount of £808.
The operator's solicitors appear to be approaching this as a claim in contract, judging by their reliance on NRCoT. I think it could equally be approached as a claim for the civil wrong of causing loss to the operator by misrepresentation (that the OP's daughter's was entitled to a 50% fare discount as a 16-17 Railcard holder and remained within the eligible age range). But in either case the measure of damages recoverable must reflect the actual loss to the injured party, and credit should be given by that party for the fare income received from the wrongdoer for the journeys giving rise to its claim.
The expense to a claimant of investigating a claim such as this is, in principle, recoverable as a head of damages, subject amongst other things to such expense being provable as an actual cost to the operator concerned. The operator's 'Fraud Investigation Costing' contains some indications that a record has been kept of staff time spent on the matter, although the time expenditure being recorded as full hours suggests that it may not be backed up by detailed records of time spent, and is thus open to challenge. 'Case Processing Costs' of £150 likewise appears open to challenge, and the response should request details of the documentation supporting the claim for these expenses. If they cannot be substantiated as an actual cost to the operator, it is likely to recover no more than a nominal sum for these as a separate head of damages.
I do not see a basis on which the OP's daughter can apply a discount to the sum claimed by reference to the fact that she held a 16-25 Railcard. On the basis of my assumption above she did not claim the discount made available by that railcard for any of the journeys forming the subject of the claim at the time of ticket purchase, and cannot do so retrospectively to reduce the measure of the operator's loss.
My understanding of the operator's case is that that the undiscounted fares for those journeys amount in aggregate to £1,616 and that the OP's daughter claimed a 50% discount on those fares by falsely representing that she was eligible for such discount by virtue of the 16-17 Railcard she held. On that basis the implication must be that she actually paid the operator sums totalling £808 for the journeys concerned. The fact remains, therefore, that she has made payments to the operator for the journeys giving rise to the claim, so that the actual loss of fare income suffered by the operator is the wrongly claimed discount of £808.
The operator's solicitors appear to be approaching this as a claim in contract, judging by their reliance on NRCoT. I think it could equally be approached as a claim for the civil wrong of causing loss to the operator by misrepresentation (that the OP's daughter's was entitled to a 50% fare discount as a 16-17 Railcard holder and remained within the eligible age range). But in either case the measure of damages recoverable must reflect the actual loss to the injured party, and credit should be given by that party for the fare income received from the wrongdoer for the journeys giving rise to its claim.
The expense to a claimant of investigating a claim such as this is, in principle, recoverable as a head of damages, subject amongst other things to such expense being provable as an actual cost to the operator concerned. The operator's 'Fraud Investigation Costing' contains some indications that a record has been kept of staff time spent on the matter, although the time expenditure being recorded as full hours suggests that it may not be backed up by detailed records of time spent, and is thus open to challenge. 'Case Processing Costs' of £150 likewise appears open to challenge, and the response should request details of the documentation supporting the claim for these expenses. If they cannot be substantiated as an actual cost to the operator, it is likely to recover no more than a nominal sum for these as a separate head of damages.
Fawkes Cat
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That seems to me like a fairly good result, given that the initial claim was for something like £1850. Thanks for letting us know how things turned out - it will help us to give advice if other people come to us in a similar position.
I agree, we ended up having a phone conversation with the solicitor, and that helped enormously instead of cold emails bouncing around.
John Palmer
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From the terms of settlement agreed South Western Trains appears to have accepted that its actual loss was the wrongly claimed discount of £808, so a reasonable outcome on that score. The company might have had difficulty in substantiating the claimed expenditure of exactly four hours on evidence gathering, analysis and file preparation, so I suspect there may have been scope for driving a harder bargain as regards that head of claim. In effect the terms of settlement involve a payment of around £192 for expenses of investigation as against the £258 claimed, so only a modest reduction in that respect notwithstanding the reported failure of SWT to respond to earlier communications from the OP's daughter.
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