Delay Repay in relation to Lewes derailment

Is delay repay claimable in relation to delays caused by the ongoing closure of the line between Haywards Heath and Lewes? I travelled from Inverurie to Lewes yesterday, having booked prior to the derailment and the routing via Brighton caused a delay to my journey versus my scheduled route, and am wondering if I can claim, or whether these are exceptional circumstances making delay repay not valid?

Should be yes.

I don't think there are exceptional circumstances exceptions (bolding mine):

National Rail: "If you are delayed for any reason when you travel on a participating National Rail service you can claim Delay Repay"

Southern Passenger Charter: "Under our Delay Repay scheme, if your journey is delayed by 15 minutes or more, irrespective of what caused the delay, you’re entitled to claim compensation."

Delay Repay only applies to the Published Timetable of the Day, and as these changes were made before the cut off last night no delay repay is due. Whether this represents a fair contractual term is open for debate, but the actual, on paper answer is no - you don't get delay repay for this. You can always try claiming!

The industry's position, as per condition 32.1 of the National Rail Conditions of Travel (NRCoT), is that Delay Repay is calculated based on the timetable advertised on the day of travel, which will have been amended since you booked to reflect the closure. That will certainly be the way that any claim you submit will be calculated and paid out (or not) at the first instance.

I have significant doubts as to the enforceability of the relevant clause in condition 32.1, given that journey times and durations are clearly an essential term of the contract and Delay Repay is intended to provide liquidated damages for when the agreed timings are not adhered to.

The Consumer Rights Act 2015 renders 'unfair' terms non-binding. A term is unfair if it causes a significant imbalance in the parties' rights to the consumer's detriment, contrary to the requirement of good faith (see section 62). Schedule 2 of the Act sets out an indicative list of terms that may be regarded as unfair, including:

• Paragraph 11: a term enabling the trader to alter the terms unilaterally without a valid reason specified in the contract. Condition 32.1 does not list any reasons why timings might be altered, nor do timetable amendment notifications give reasons for changes.
• Paragraph 12: a term enabling the trader to alter the characteristics of the product to be provided, without a valid reason. The timings are a key characteristic of what you're paying for but can be arbitrarily amended based on the wording of 32.1
• Paragraph 14: a term giving the trader the discretion to decide the meaning of terms or their application. In this case the industry purports to allow itself to decide what the key terms of the contract are, and what "delay" means.

I wouldn't expect any success if raising a rejected/underpaid claim as an internal complaint or subsequently escalating it to the Ombudsman. Both will likely just look at the wording of the NRCoT, and point out that it says the timetable on the day counts.

Neither are likely to look beyond that and determine whether that's an unfair term, so you would probably need to take legal action to get any further. In turn, unless the value of your ticket and thus the compensation at stake is particularly high, it's probably not going to be worthwhile taking a refusal/underpayment to court.

williamn said:

Is delay repay claimable in relation to delays caused by the ongoing closure of the line between Haywards Heath and Lewes? I travelled from Inverurie to Lewes yesterday, having booked prior to the derailment and the routing via Brighton caused a delay to my journey versus my scheduled route, and am wondering if I can claim, or whether these are exceptional circumstances making delay repay not valid?

Click to expand...

It should be, but as described above, train can companies act in a very underhand manner (which puts them at significant risk of class action claims and other legal action; I am aware of several TOCs who have had to pay out £thousands to just one individual who they mistreated, not realising they are a solicitor who is able to assert his rights through the courts)

So, put the claim in, and let us know how you get on. If there's enough evidence that delay compensation claims are refused on this basis, then perhaps this could be the next class action claim (though I can think of many more areas in which the industry has placed itself at risk!)