TOCs using civil claims rather than prosecutions?

[Bletchleyite]

This thread:

Outdated 16-25 railcard

Hi all, I’m seeking some advice regarding an email I received from HM Courts and Tribunals Service Civil Claims. I was informed last December by the ticket officer on the train that my 16-25 railcard was outdated for 6 months. I bought a new railcard there and then and explained I was not...

www.railforums.co.uk

...highlights something I've never heard of happening before, certainly not on here - a TOC making a civil claim for unpaid fares rather than attempting prosecution.

Is this a new move by the TOCs so they are less reviled for misusing the Single Justice Procedure, as most people would consider that more reasonable than the rather one-sided approach of prosecuting with a threat of a record if RoRA could be used?

 

[Haywain]

I don't think this can be seen as setting any sort of precedent. However, I do note that the attachment in that post states that the OP "bought a new railcard immediately validating his journey on this day", which suggests that they were only reported for investigation of the travel history, and not for an offence on the day. Whether that is because an RPI showed discretion is something we can't know.

 

[swt_passenger]

The point just raised by @Haywain is another odd aspect to the linked case, it seems to be practically unheard of for members of staff elsewhere to allow for ‘validating his journey on this day’ by buying a railcard when checked. Don’t we usually see a report that when someone has asked if they can buy a railcard they’re told in reply it won’t prevent either a PF or follow up procedures?

I’d wonder if this was a normal guard and not an RPI, and also wonder if it’s actually normal procedure for GWR?

 

[Fawkes Cat]

This thread:

Outdated 16-25 railcard

Hi all, I’m seeking some advice regarding an email I received from HM Courts and Tribunals Service Civil Claims. I was informed last December by the ticket officer on the train that my 16-25 railcard was outdated for 6 months. I bought a new railcard there and then and explained I was not...

www.railforums.co.uk

...highlights something I've never heard of happening before, certainly not on here - a TOC making a civil claim for unpaid fares rather than attempting prosecution.

Is this a new move by the TOCs so they are less reviled for misusing the Single Justice Procedure, as most people would consider that more reasonable than the rather one-sided approach of prosecuting with a threat of a record if RoRA could be used?

It's certainly one to watch - if nothing else because collectively we don't have much experience of advising on the civil court process so we might well learn something.

For the moment, my understanding is that the railway's claim is on the same basis as used for out of court settlements and so seems to be claiming the full anytime single fares with no relief for payment already made. It will be interesting to see if that's the basis of any settlement (whether in court or prior) or whether the 'real loss' (difference between what was paid and what should have paid - or even, more ambitiously, the cost of the railcard and no more) is used instead. We've argued long and hard with each other about what should be claimable by the railway - but this may be a first chance to see what actually is claimed, and what actually is paid.

 

[Haywain]

I’d wonder if this was a normal guard and not an RPI, and also wonder if it’s actually normal procedure for GWR?

Perhaps @RPI could comment?

 

[Lewisham2221]

The point just raised by @Haywain is another odd aspect to the linked case, it seems to be practically unheard of for members of staff elsewhere to allow for ‘validating his journey on this day’ by buying a railcard when checked. Don’t we usually see a report that when someone has asked if they can buy a railcard they’re told in reply it won’t prevent either a PF or follow up procedures?

I’d wonder if this was a normal guard and not an RPI, and also wonder if it’s actually normal procedure for GWR?

It's probably only "practically unheard of" because people don't have a habit of signing up to these forums to post "I was travelling with an expired Railcard. Ticket guy allowed me to renew it on the spot and didn't charge me for it. Happy days."

 

[Watershed]

For the moment, my understanding is that the railway's claim is on the same basis as used for out of court settlements and so seems to be claiming the full anytime single fares with no relief for payment already made. It will be interesting to see if that's the basis of any settlement (whether in court or prior) or whether the 'real loss' (difference between what was paid and what should have paid - or even, more ambitiously, the cost of the railcard and no more) is used instead. We've argued long and hard with each other about what should be claimable by the railway - but this may be a first chance to see what actually is claimed, and what actually is paid.

Yes, I have long thought along those lines. It might be something the TOCs can 'get away with' in practice when it comes to an out of court settlement, since they have the upper hand - the passenger generally wants to avoid prosecution.

But it is highly questionable practice when it comes to a civil claim, where they have to prove the existence of an enforceable debt.

I am not at all convinced that the highly onerous clause (NRCoT 9.2.1) allegedly giving rise to liability for the undiscounted Anytime single, hidden in the small print with no "Denning red hand", is enforceable in the circumstances. That is as a matter of both contract law (where the Denning 'rule' originates) and particularly consumer law, where unfair terms are prohibited. Now, terms regarding the price are excluded from assessment for unfairness, but I would argue that this is a penalty clause rather than a clause setting out the price intended to be paid, so it does not fall within that exclusion.

As an absolute minimum, I would suggest that there is a counter-claim or defence on the basis of unjust enrichment, since GWR would be getting paid twice for the same journey (albeit at different rates) if they were to be entirely successful in their claim. This should at least result in the original fares paid being deducted from the claim.

 

[swt_passenger]

It's probably only "practically unheard of" because people don't have a habit of signing up to these forums to post "I was travelling with an expired Railcard. Ticket guy allowed me to renew it on the spot and didn't charge me for it. Happy days."

Could be right with that.

 

[AlterEgo]

The point just raised by @Haywain is another odd aspect to the linked case, it seems to be practically unheard of for members of staff elsewhere to allow for ‘validating his journey on this day’ by buying a railcard when checked. Don’t we usually see a report that when someone has asked if they can buy a railcard they’re told in reply it won’t prevent either a PF or follow up procedures?

I’d wonder if this was a normal guard and not an RPI, and also wonder if it’s actually normal procedure for GWR?

I suspect this was a guard, who could not interview under caution etc.

 

[furlong]

I am not at all convinced that the highly onerous clause (NRCoT 9.2.1) allegedly giving rise to liability for the undiscounted Anytime single,

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:

How can that give rise to any liability? It merely purports to act as a summary of other law. But which other law? That's what they'd need to use in a claim, not 9.2.1, surely.

 

[Watershed]

How can that give rise to any liability? It merely purports to act as a summary of other law. But which other law? That's what they'd need to use in a claim, not 9.2.1, surely.

A fair point. I'm sure they'd argue that 9.2.1 is the contractual basis for the claim, but the claim form that we've seen from the above thread seems remarkably lacking in detail and doesn't even spell this out. It's certainly a point that the OP or that thread might want to raise in their defence.

This sort of sloppiness seems to be a common theme when it comes to how TOCs conduct their revenue protection activities.

Of course there is the more fundamental point of whether the TOC can prove that the Trainline etc. account holder was the person who travelled on each occasion.

However, admittedly the burden of proof is only "on the balance of probabilities" for a civil claim, so it's possible a judge would accept this at face value unless contradicted by something such as a witness statement by the account holder to the contrary (falsification of which would be a serious matter).

 

[furlong]

A fair point. I'm sure they'd argue that 9.2.1 is the contractual basis for the claim,

Firstly, this clause only applies "if you are unable to present a valid ticket when asked". The OP was not asked (except perhaps on a single occasion which we think does not form part of the claim).
Secondly, the other two options - separated by 'or' i.e. exclusive - are to charge a Penalty Fare or to report for prosecution, and both of those indeed are defined in other legislation. You wouldn't rely upon 9.2.1 if prosecuting or imposing a PF - it is purely there for information.

 

[RPI]

Perhaps @RPI could comment?

I've mentioned it before on other threads that TOC's are now using civil courts to reclaim previous journeys, but people seemed to doubt me, they're doing the same for PF's too.

== Doublepost prevention - post automatically merged: 14 Apr 2025 ==

Obviously I need to be careful commenting on this, and anything I post is not specific to this case (I also have zero personal involvement in this case, otherwise I wouldn't comment at all), but just to be clear, ticket credit for fares already paid is always given, also, the TOC will have records of the sent correspondence, particularly if it was sent by email.

 

[furlong]

ticket credit for fares already paid is always given

There may be two issues with the amount claimed. That's one - that what's already paid should be deducted. The other is that the claim should be based on the walk-up fare for the particular journey made, similar to how a Penalty Fare takes into account the day and time, and the train and route etc. While the National Rail Conditions of Carriage used to provide a contractual basis for charging the highest priced single (or, at the passenger's choice, return), that got removed in the National Rail Conditions of Travel, replaced by an informational condition that merely describes some options that might be available at the time a person is asked to show their ticket. It has nothing to say about underpaid fares detected retrospectively so they default to the cheapest walk-up fare that would have been available for the journey at the time. I'd also argue that the type of ticket (single, return, season) should match what the passenger used. (None of this charging for two singles instead of a return if the passenger knew they needed a return - evidenced by purchasing one.)

 

[Hadders]

This is certainly an interesting development and one we need to be mindful of when giving advice.