I am prepared to defend this in court if there is a strong chance the outcome will be a reduced figure
No-one can guarantee you a particular outcome at Court. Nor am I a lawyer or legally qualified, so if you want formal legal advice then now would be the time to obtain this.
As I see it, the worst case scenario is pretty much that you owe what they are asking you for now, plus the costs I list below.
The best case scenario is that a judge agrees they are not entitled to claim as much as they are asking for, and reduces the amount awarded to something near what you were offering.
The actual outcome will likely be somewhere on that spectrum.
but what will the likely process
The first formal step towards taking legal action would be them sending you a Letter Before Claim (or similar) and giving you 30 days to respond. There are certain things they are required to include in such a letter, as per the
Pre-Action Protocol for Debt Claims.
If you still can't agree a settlement following this, they would issue their claim with the County Court, either through paper forms or online. You will receive a copy of that claim form and will then have 14 days to state whether you accept the claim in full or in part, defend the claim, or whether you want to acknowledge it. Acknowledging it gives you an additional 14 days to respond. Once you have submitted your defence, you cannot easily change it or add additional grounds of defence down the line - you need to apply to the Court to get permission to do this (and GWR would likely object). So it
is vital that you draft your defence very carefully.
The next step is that the Court will send out a
Directions Questionnaire to you and GWR which asks some procedural questions, such as which Track of the County Court you each think the claim should be allocated to (this would almost always be the Small Claims Track for a claim of this value), whether you'd be open to mediation, whether you think the matter can be dealt with on paper (i.e. without a hearing), which local Court you would like the claim to be heard at, and any dates when you or your witness(es) are not available for a hearing.
The Courts service will try to arrange mediation between you, if you have both agreed to this. This typically gives a 28-day period during which the claim is effectively paused to allow you to negotiate. If this doesn't succeed, the Court will then allocate your case to a particular Track and give instructions for when you each need to provide witness statements and any other documents to each other, and will also set a date for a hearing.
If mediation doesn't succeed, in the immediate run-up to a hearing it would be customary to agree a 'bundle' between you and the other side. This is essentially just an organised collection of all the documents to do with the case which either you, GWR or the judge might need to refer to in the hearing. There's no strict requirement for one in a Small Claims Track hearing but it helps to agree on one. Similarly you might want to prepare a 'skeleton argument' where you briefly summarise the key points you will be arguing.
If you have a hearing in person, negotiation is often still possible even on the Courtroom door - so it pays to be at Court in good time if it gets to this stage. The pressure of an imminent trial can often make either side agree to things they previously disputed. Small Claims Track hearings are supposed to be conducted informally so there is no one procedure that is used, but generally speaking the judge would let both of you summarise your cases and examine any witnesses that are there, and then ask you any questions they think are relevant. They would tend to give you a decision there and then, but you won't get it in writing for a few more days or weeks after the hearing.
If you pay a judgment in full within 30 days of the written judgment, you can submit a
'notice of cancellation' to make sure the judgment does not appear on your credit report. Otherwise it will be visible there for 6 years and will make it tricky for you to get most types of loans, car finance, mortgages, credit cards and bank accounts with overdrafts.
Everything where I haven't specified a deadline above generally works quite slowly. You may have to wait a few weeks for the Directions Questionnaire to be sent, and a few weeks or even months for the following instructions after any mediation, and any hearing date is likely to be set several months into the future. Overall it is likely to take at least 6 months, up to a year or possibly even longer, from when you are sent the LBC until a hearing takes place - unless your local Court is doing particularly well in terms of its case backlog.
As above, depending on the degree to which the judge agrees with your counterarguments/defences, GWR might be awarded as much as they are asking for, or potentially much less. There is also the possibility, as we have seen from another recent civil case involving GWR, that they will be willing to accept a slightly lower amount (I think it was £5k for a ~£6.5k claim) when it comes to mediation. That would be because at that point, they realise that you are serious about defending the claim, which means they will incur either staff costs/time or external legal fees - which they cannot fully be compensated for even if they win.
In terms of costs, GWR can only recover limited costs, as set out in
Civil Procedure Rule 27.14. The types they would be likely eligible to claim in a case such as this would be:
- the Court fees - £115 to commence the claim if they set the amount they're asking for to between £1500-£3000, and a further £181 if it proceeds to a hearing
- £80 of legal costs for commencing the claim (see Table 2 of Practice Direction 45) and a further £40-£55 if you admit part of the claim (the idea being that you should pay what you admit before it gets to Court)
- their representative's direct travel costs for attending a hearing (if they are a GWR member of staff and the hearing is on GWR 'territory' then this might be nothing or very little; if it's an external solicitor then it might be more)
- theoretically, their representative's or witness' costs of being away from work - but unless you call up the RPI as a witness or similar then I think this would be unlikely to apply
They can include a claim for interest, which is usually claimed at 8% simple (i.e. not compounded), under
section 69 of the County Courts Act 1984. This is at the discretion of the judge, so it is not guaranteed that they would be awarded interest, although it would be customary for a debt claim such as this. You could of course defend any interest claim on the basis that the NRCoT does not state that interest applies and condition 9.5.2 is worded to suggest it applies on the train only, so again the possibility of being awarded interest lends weight to your argument that condition 9.5.2 cannot be applied retrospectively.
As per paragraph (2)(g) of the rules linked above, if GWR are deemed to act 'unreasonably' then they might not be awarded some/all of the above costs, or you might be awarded some of your own costs (e.g. travel costs or for being off work) even though you have lost. There is a fairly high bar to meet this standard; rejecting a settlement offer does not automatically constitute unreasonable behaviour, but it can be part of the circumstances relied upon. Breaching Court orders or the Civil Procedure Rules would tend to be better evidence of unreasonableness.
What would your advice be as I can’t afford to pay the amount they want?
If it were me, I would be defending it in Court, but I can appreciate that it wouldn't necessarily be the right decision for someone else.
