Caledonian Sleeper delay repay

[williamn]

I've been twice diverted to Edinburgh (instead of Glasgow) of late.

CS gave me delay repay for the first occasion (16 Aug), but not for the most recent (7 Sept) because I was 'given advance notice'.

On the first occasion notification was on the day, while I had a week's notice of the change the second time around.

On both occasions I arrived in Edinburgh at around 07.00, got the 07.45 to Glasgow and arrived at 08.36, which is about an hour and 15 mins later than stated on my ticket.

The compensation of 100% for the first journey is generous so I don't feel too aggrieved, but I am not sure their argument stacks up? Would be curious as to the rights and wrongs of this.

 

[221129]

I've been twice diverted to Edinburgh (instead of Glasgow) of late.

CS gave me delay repay for the first occasion (16 Aug), but not for the most recent (7 Sept) because I was 'given advance notice'.

On the first occasion notification was on the day, while I had a week's notice of the change the second time around.

On both occasions I arrived in Edinburgh at around 07.00, got the 07.45 to Glasgow and arrived at 08.36, which is about an hour and 15 mins later than stated on my ticket.

The compensation of 100% for the first journey is generous so I don't feel too aggrieved, but I am not sure their argument stacks up? Would be curious as to the rights and wrongs of this.

They are wrong. You'll need to escalate it.

 

[Bletchleyite]

They are wrong. You'll need to escalate it.

Correct. DR is paid based on the timetable in place at the time of ticket purchase. If you have an itinerary, it is unquestionably paid based on that booked itinerary.

 

[35B]

Correct. DR is paid based on the timetable in place at the time of ticket purchase. If you have an itinerary, it is unquestionably paid based on that booked itinerary.

In general, I would agree. But most contracts have provisions for change, and on many consumer contracts (I think of banks and online services in particular) I’ve been notified of a change in terms with acceptance presumed if I continue to use the service.

What basis is there for a train operator to vary the contract, with notice, so that the main term (travel from London to Glasgow) is maintained, but with a change of train and delayed arrival?

 

[221129]

What basis is there for a train operator to vary the contract, with notice, so that the main term (travel from London to Glasgow) is maintained, but with a change of train and delayed arrival?

There isn't any. You can apply for a full refund and not travel, or accept the delay and be able to claim delay compensation.

 

[AlterEgo]

There isn't any. You can apply for a full refund and not travel, or accept the delay and be able to claim delay compensation.

I don’t agree that is entirely clear. It’s received wisdom on here, but other than the absolute right to cancel or abandon a journey following advance notification of disruption of change, any delay repay compensation cannot - in my view - be a contractual right. The length of notification is likely to be important; notifying someone on the day would be fairly clear cut that delay repay would apply, but purchasing twelve weeks out and ten weeks before travel being told that your train is cancelled and you have X options to rebook isn’t what delay repay is for.

It’s just balderdash that you can book a ticket long in advance, and several weeks before be told “sorry, the 1000 isn’t running but the 1100 is” and think that a full refund of your advance ticket *and* retaining said ticket for travel is covered by delay repay rules or the NRCoT.

 

[Bletchleyite]

It’s just balderdash that you can book a ticket long in advance, and several weeks before be told “sorry, the 1000 isn’t running but the 1100 is” and think that a full refund of your advance ticket *and* retaining said ticket for travel is covered by delay repay rules or the NRCoT.

Like the way EU261 exists to discourage airlines from overbooking, this seems totally reasonable because it stops TOCs putting timetables live for booking that they have no idea if they are going to operate or not. People make plans around specific timetables and should have the right to be compensated if the railway feels like changing its mind.

 

[AlterEgo]

Like the way EU261 exists to discourage airlines from overbooking, this seems totally reasonable because it stops TOCs putting timetables live for booking that they have no idea if they are going to operate or not. People make plans around specific timetables and should have the right to be compensated if the railway feels like changing its mind.

EC261 is also time limited though. If the airline varies the schedule more than 14 days in advance you’re entitled to no compensation other than refunding or rebooking.

I don’t see anything in the NRCoT or delay repay schemes that suggest it may apply in the scenario I describe - with a booking far in advance.

 

[Watershed]

any delay repay compensation cannot - in my view - be a contractual right

NRCoT 32.1 explicitly puts delay compensation on a contractual footing:

32.1 If you are delayed in reaching your destination as a result of a delay or cancellation of a train service, you may be entitled to claim money back. You can make a claim in one or more of the following ways:

32.1.1. through the industry arrangements provided for:​

32.1.1.1. in these Conditions; and/or​

32.1.1.2. in the Passenger’s Charter of the relevant Train Company​

...

33.4. A Train Company may not be obliged to pay compensation under this Condition if the cause of the delay was entirely outside the rail industry’s control.
Each Train Company’s Passenger’s Charter will set out any exclusions that applies to such claims in respect of their services. However, you are entitled to compensation if the delay was 60 minutes or longer, regardless of fault.

There is no provision in the NRCoT that permits Train Companies to vary the advertised timetable after booking. Therefore whilst they may well do so for operational and customer services purposes, advertising a new timetable isn't capable of constituting a unilateral variation of contract.

To invert the example, a passenger couldn't write to the TOC and unilaterally say "I am demanding a 20% discount on my ticket" after booking, and assume that the TOC has agreed to that change just because they let the passenger travel.

Therefore, as OP was presumably delayed by at least 60 minutes, they are entitled to delay compensation of at least 50% of the relevant portion of their ticket - remember this entitlement exists "regardless of fault".

Furthermore, unlike some other TOCs, Caledonian Sleeper's Passenger Charter does not contain any exclusions for when they would deny Delay Repay claims. Therefore, the compensation due is actually 100% of the relevant portion of OP's ticket.

I don’t see anything in the NRCoT or delay repay schemes that suggest it may apply in the scenario I describe - with a booking far in advance.

To the contrary, there would need to be a clause stating that TOCs can vary the timetable after booking and if it's done at least X weeks in advance, you either get a refund or accept the change. But there is no such clause.

As far as the customer is concerned, if they still want to travel, there is little difference whether a delay or cancellation is advertised on the day or ahead of time. Either way it's likely to inconvenience them and force them to change their plans, and therefore they are entitled to delay compensation or Delay Repay.

 

[AlterEgo]

NRCoT 32.1 explicitly puts delay compensation on a contractual footing:

Mhm, but I don’t agree that this para is intended to apply to a definition of “being delayed or cancelled”, for example, ten weeks in advance of travel.

...


There is no provision in the NRCoT that permits Train Companies to vary the advertised timetable after booking. Therefore whilst they may well do so for operational and customer services purposes, advertising a new timetable isn't capable of constituting a unilateral variation of contract.

Why not?

To invert the example, a passenger couldn't write to the TOC and unilaterally say "I am demanding a 20% discount on my ticket" after booking, and assume that the TOC has agreed to that change just because they let the passenger travel.

I don’t understand how that is an inversion of any sort. A better analogy is that a passenger books to travel on the 1000, with an advance ticket, travels on the 1100, and because nobody from the railway objects to it (especially if their ticket was not even checked), they contractually were accepted for travel and have all passenger rights apply to them. None of us would agree this would be a variance of the contract.

To the contrary, there would need to be a clause stating that TOCs can vary the timetable after booking and if it's done at least X weeks in advance, you either get a refund or accept the change. But there is no such clause.

Why would there specifically need to be a clause?

As far as the customer is concerned, if they still want to travel, there is little difference whether a delay or cancellation is advertised on the day or ahead of time.

There’s a significant difference between cancelling a train on the day, at 11pm at Euston station, and saying “ah sorry, it’ll take you 60 minutes extra” several weeks ahead of the journey.

 

[Watershed]

Mhm, but I don’t agree that this para is intended to apply to a definition of “being delayed or cancelled”, for example, ten weeks in advance of travel.

A passenger booked to arrive at X o'clock. They end up arriving at X+1 o'clock. In what world is that not a delay?

EU261 allows airlines to escape liability for delay compensation by advising customers of changes at least 14 days in advance.

There is no parallel provision for limiting liability when it comes to rail travel, and accordingly the liability for delay compensation applies whenever the change is made.

I don’t understand how that is an inversion of any sort. A better analogy is that a passenger books to travel on the 1000, with an advance ticket, travels on the 1100, and because nobody from the railway objects to it (especially if their ticket was not even checked), they contractually were accepted for travel and have all passenger rights apply to them. None of us would agree this would be a variance of the contract.

Well that's simply ticketless travel. The fact that the passenger holds an Advance for the 1000 is irrelevant if they travel on the 1100 just because they feel like it.

Why would there specifically need to be a clause?

Because contracts are legally binding. That's a basic tenet of contract law that a lot of TOCs seem to struggle with.

You can't get out of a contract, or change its terms, after it's been made - unless there is a clause in the contract that permits you to do so (there isn't in the NRCoT) or the other side agrees (what's in it for the passenger?).

The same as you couldn't get out of a 12 month fixed tenancy by writing to your landlord a month in and saying "I propose to only stay here for 6 months, if I hear nothing I will assume you agree to this". That's just not how it works.

There’s a significant difference between cancelling a train on the day, at 11pm at Euston station, and saying “ah sorry, it’ll take you 60 minutes extra” several weeks ahead of the journey.

The level of inconvenience may be different in different circumstances, but fundamentally delay compensation clauses exist to provide a liquidated sum of damages for breach of contract.

For some passengers their damages will be far less than the compensation, for others it will be far greater. But it applies equally to both, because it's a fixed sum.

 

[Gonzoiku]

But, AlterEgo, there is no question of the traveller "“being delayed or cancelled”, for example, ten weeks in advance of travel." The traveller was advised, in advance, of diversion to Edinburgh in place of Glasgow. Arrival time at journey's end could not possibly be determined in advance, because a sufficiently early arrival (not unknown on the sleeper) in Edinburgh might well have permitted on-time arrival in Glasgow. The question of advance notice is therefore irrelevant to Delay Repay.

GZ

 

[AlterEgo]

But, AlterEgo, there is no question of the traveller "“being delayed or cancelled”, for example, ten weeks in advance of travel." The traveller was advised, in advance, of diversion to Edinburgh in place of Glasgow. Arrival time at journey's end could not possibly be determined in advance, because a sufficiently early arrival (not unknown on the sleeper) in Edinburgh might well have permitted on-time arrival in Glasgow. The question of advance notice is therefore irrelevant to Delay Repay.

GZ

Sorry I’m not following that logic. It is perfectly obvious the traveller would be delayed.

 

[williamn]

But, AlterEgo, there is no question of the traveller "“being delayed or cancelled”, for example, ten weeks in advance of travel." The traveller was advised, in advance, of diversion to Edinburgh in place of Glasgow. Arrival time at journey's end could not possibly be determined in advance, because a sufficiently early arrival (not unknown on the sleeper) in Edinburgh might well have permitted on-time arrival in Glasgow. The question of advance notice is therefore irrelevant to Delay Repay.

GZ

The Edinburgh train is timetabled to arrive at 07.22, therefore the earliest possible train to catch to Glasgow is the 07.45.

 

[Gonzoiku]

Sorry I’m not following that logic. It is perfectly obvious the traveller would be delayed.

The logic is simple: you cannot know in advance what the delay (if any) is going to be. Thus the traveller cannot accept the delay in advance, but can only accept the re-routing and consequent inconvenience.

GZ

 

[Watershed]

The Edinburgh train is timetabled to arrive at 07.22, therefore the earliest possible train to catch to Glasgow is the 07.45.

It's possible it could arrive earlier.

 

[SuspectUsual]

Surely variation of the timetable is essentially the cancellation of the train the customer was booked on, and the provision of other trains at other times, with the customer’s ticket then being valid on one of more of the replacements. So it’s within the scope of 32.1 and delay repay is due where the delay meets the threshold

 

[AlterEgo]

The logic is simple: you cannot know in advance what the delay (if any) is going to be. Thus the traveller cannot accept the delay in advance, but can only accept the re-routing and consequent inconvenience.

GZ

I think it is perfectly obvious with a replacement timetable how long the delay will be.

What happens on the day is another matter but that’s not what is being discussed here.

 

[Gonzoiku]

"That's not what is being discussed here". Well in that case we are talking at cross purposes. But I do not accept your assertion that it is perfectly obvious how long the delay will be, as may be equally obvious from my previous post

GZ

 

[35B]

The logic is simple: you cannot know in advance what the delay (if any) is going to be. Thus the traveller cannot accept the delay in advance, but can only accept the re-routing and consequent inconvenience.

GZ

I can accept the predicted delay because the timetables are published. That the amended train may run early is a different question about the fulfilment of the contract. I cannot plan on the basis of an early arrival, especially where my experience of travel on that working is of on time arrival.

== Doublepost prevention - post automatically merged: 18 Sep 2021 ==

NRCoT 32.1 explicitly puts delay compensation on a contractual footing:

...


There is no provision in the NRCoT that permits Train Companies to vary the advertised timetable after booking. Therefore whilst they may well do so for operational and customer services purposes, advertising a new timetable isn't capable of constituting a unilateral variation of contract.

To invert the example, a passenger couldn't write to the TOC and unilaterally say "I am demanding a 20% discount on my ticket" after booking, and assume that the TOC has agreed to that change just because they let the passenger travel.

Therefore, as OP was presumably delayed by at least 60 minutes, they are entitled to delay compensation of at least 50% of the relevant portion of their ticket - remember this entitlement exists "regardless of fault".

Furthermore, unlike some other TOCs, Caledonian Sleeper's Passenger Charter does not contain any exclusions for when they would deny Delay Repay claims. Therefore, the compensation due is actually 100% of the relevant portion of OP's ticket.


To the contrary, there would need to be a clause stating that TOCs can vary the timetable after booking and if it's done at least X weeks in advance, you either get a refund or accept the change. But there is no such clause.

As far as the customer is concerned, if they still want to travel, there is little difference whether a delay or cancellation is advertised on the day or ahead of time. Either way it's likely to inconvenience them and force them to change their plans, and therefore they are entitled to delay compensation or Delay Repay.

Are the NRCoT the sole governing document, though? They exist within the context of a corpus of commercial law, and where provisions like EU261 are relatively recent and constrained (rather than permitted) airlines ability to unilaterally vary routes and/or schedules following sale of tickets.

 

[Watershed]

Are the NRCoT the sole governing document, though? They exist within the context of a corpus of commercial law, and where provisions like EU261 are relatively recent and constrained (rather than permitted) airlines ability to unilaterally vary routes and/or schedules following sale of tickets.

The NRCoT, the relevant TOCs' Passenger's Charters and the retailer's terms are the only applicable contractual documents as far as I'm aware.

Of course there is lots of applicable consumer law, e.g. the Consumer Rights Act, the Consumer Protection from Unfair Trading Regulations and the ex-EU Rail Passengers’ Rights and Obligations Regulation. But that applies regardless of what the contract does or doesn't say.

What else did you have in mind and in what way do you envisage it giving TOCs the right to unilaterally vary the contract?

 

[Hadders]

If the passenger had a ticket to Glasgow then the arrival time in Glasgow is what counts.

 

[Gonzoiku]

If the passenger had a ticket to Glasgow then the arrival time in Glasgow is what counts.

Others will argue that the passenger accepted the change (although it hasn't been explained how, other than by taking the train). I think that any such acceptance could only have been of the re-routing, and the delay is an entirely separate issue. As you say, eventual arrival time in Glasgow is what counts.

GZ

 

[35B]

The NRCoT, the relevant TOCs' Passenger's Charters and the retailer's terms are the only applicable contractual documents as far as I'm aware.

Of course there is lots of applicable consumer law, e.g. the Consumer Rights Act, the Consumer Protection from Unfair Trading Regulations and the ex-EU Rail Passengers’ Rights and Obligations Regulation. But that applies regardless of what the contract does or doesn't say.

What else did you have in mind and in what way do you envisage it giving TOCs the right to unilaterally vary the contract?

My question is over the rights of a supplier unilaterally to change a consumer contract. I routinely get correspondence from my bank informing me of such changes; likewise from online services providers about their terms.

Those seem to me to be analogous to the actions of CS in this query. My question, which strikes to the heart of the OP, is how limited the ability of CS to make this change actually is given their direct contact with the purchaser - a significantly different scenario to that of previous cases where operators have attempted to put the onus on travellers to constantly check for change. As a change to the contract, the provisions around DR in NRCoT would not apply for someone catching the advertised 7:45 train, presuming it runs on time.

I do not like or condone what has happened, regarding it as sharp practice at best, but am curious about the legal position.

 

[AlterEgo]

A passenger booked to arrive at X o'clock. They end up arriving at X+1 o'clock. In what world is that not a delay?

EU261 allows airlines to escape liability for delay compensation by advising customers of changes at least 14 days in advance.

There is no parallel provision for limiting liability when it comes to rail travel, and accordingly the liability for delay compensation applies whenever the change is made.

So you say, although I am not convinced the TOC doesn’t have the right to say “sorry we cannot get you there by 1000. We now have rebooked you to travel and you can arrive at 0900 or 1100, take your pick. If you don’t accept this, you may have a full refund”. I don’t agree if you choose to travel and accept the change well in advance of travel, that you also get the journey for free if you happen to choose the later option.

Well that's simply ticketless travel. The fact that the passenger holds an Advance for the 1000 is irrelevant if they travel on the 1100 just because they feel like it.

It’s not ticketless travel. The passenger holds a ticket which is invalid, and perhaps he has told the TOC “sorry but I’m just going to travel at 1100 instead of 1000 now”. Do you agree if the train company fails to reply or enforce against this that the customer still avails themselves of all other rights? I would suggest not.

The same as you couldn't get out of a 12 month fixed tenancy by writing to your landlord a month in and saying "I propose to only stay here for 6 months, if I hear nothing I will assume you agree to this". That's just not how it works.

But what if you tell him that in advance and he agrees to the change? That’s what the passenger has done here.

The level of inconvenience may be different in different circumstances, but fundamentally delay compensation clauses exist to provide a liquidated sum of damages for breach of contract.

Disagree. Delay Repay is not a form of paying damages to a passenger but simply a promise to refund part or all of the ticket in the event of a delay or cancellation.

 

[Gonzoiku]

"Delay Repay is not a form of paying damages to a passenger but simply a promise to refund part or all of the ticket in the event of a delay or cancellation."

This flies in the face of everything I have understood about Delay Repay, namely that it is *compensation* for the inconvenience caused by delay, and *not* a refund (even though it is measured by reference to the fare paid). But maybe I have misunderestimated (!) - do you have a reference to which you can point me?

GZ

 

[Cantab26]

NRCoT 32.1 explicitly puts delay compensation on a contractual footing:

...


There is no provision in the NRCoT that permits Train Companies to vary the advertised timetable after booking. Therefore whilst they may well do so for operational and customer services purposes, advertising a new timetable isn't capable of constituting a unilateral variation of contract.

To invert the example, a passenger couldn't write to the TOC and unilaterally say "I am demanding a 20% discount on my ticket" after booking, and assume that the TOC has agreed to that change just because they let the passenger travel.

Therefore, as OP was presumably delayed by at least 60 minutes, they are entitled to delay compensation of at least 50% of the relevant portion of their ticket - remember this entitlement exists "regardless of fault".

Furthermore, unlike some other TOCs, Caledonian Sleeper's Passenger Charter does not contain any exclusions for when they would deny Delay Repay claims. Therefore, the compensation due is actually 100% of the relevant portion of OP's ticket.


To the contrary, there would need to be a clause stating that TOCs can vary the timetable after booking and if it's done at least X weeks in advance, you either get a refund or accept the change. But there is no such clause.

As far as the customer is concerned, if they still want to travel, there is little difference whether a delay or cancellation is advertised on the day or ahead of time. Either way it's likely to inconvenience them and force them to change their plans, and therefore they are entitled to delay compensation or Delay Repay.

If the passenger had a ticket to Glasgow then the arrival time in Glasgow is what counts.

I agree that these posts represent the correct legal position: the passenger clearly has a legally binding contractual right to compensation, both under the NRCOT default provisions and under Caledonian Sleeper’s Passenger Charter (which is incorporated into the contract).

Disagree. Delay Repay is not a form of paying damages to a passenger but simply a promise to refund part or all of the ticket in the event of a delay or cancellation.

Delay Repay is not a refund: it is a form of liquidated damages i.e. an amount of money that is agreed in advance as appropriate compensation if one party (in this case, the TOC) breaches the contract.

For these purposes, the advertised timetable at the time the ticket is purchased forms a term of the contract so any variation is a prima facie breach.

== Doublepost prevention - post automatically merged: 18 Sep 2021 ==

But most contracts have provisions for change, and on many consumer contracts (I think of banks and online services in particular) I’ve been notified of a change in terms with acceptance presumed if I continue to use the service.

In those cases, there will almost inevitably be an express term governing such matters - and that is subject to the unfair contract terms provisions whereby such a term is generally considered to be unfair (and unenforceable by the trader as a result) unless drawn to the consumer’s attention.

The customer almost always has a unilateral right of withdrawal as well i.e. the trader cannot impose a variation unilaterally: the consumer has an escape route from the contract.

What basis is there for a train operator to vary the contract, with notice, so that the main term (travel from London to Glasgow) is maintained, but with a change of train and delayed arrival?

None.

 

[Starmill]

The Conditions of Travel could contain a provision to vary the times subject to a cutoff, say 14 days notice and variation by +/- 2 hours until then. Or indeed just about anything really. They don't, therefore no such provision exists. If you're delayed, you're delayed. At least for the purposes of the compensation in the Conditions.

 

[AlterEgo]

For these purposes, the advertised timetable at the time the ticket is purchased forms a term of the contract so any variation is a prima facie breach.

Is that expressed in the NRCoT? Where is a promised arrival time mentioned in the NRCoT?

== Doublepost prevention - post automatically merged: 18 Sep 2021 ==


In those cases, there will almost inevitably be an express term governing such matters - and that is subject to the unfair contract terms provisions whereby such a term is generally considered to be unfair (and unenforceable by the trader as a result) unless drawn to the consumer’s attention.

The customer almost always has a unilateral right of withdrawal as well i.e. the trader cannot impose a variation unilaterally: the consumer has an escape route from the contract.

So are you suggesting that if the TOC offers to withdraw any or all of the conditions, such as the entitlement to compensation, provided the passenger gets a full refund and decided to withdraw totally, that this is okay?

In an example where a passenger purchases a ticket to Anytown Station but, for some reason, the company decides or is forced to no longer serve said station, but gives very significant notice (say, ten weeks), is this a suggestion that simply contacting a customer who booked *twelve* weeks in advance and saying “sorry we don’t go there any more, here is your money back” is not sufficient?

 

[Cantab26]

Is that expressed in the NRCoT? Where is a promised arrival time mentioned in the NRCoT?

It is expressed in the published timetable which describes a feature of the service being contracted for, is taken into account by the consumer and, as such, is incorporated as a term of the contract by virtue of the Consumer Rights Act or even at common law.

Even if it is not incorporated into the contract it may potentially be actionable as a misrepresentation or a misstatement instead (depending on the exact circumstances).

So are you suggesting that if the TOC offers to withdraw any or all of the conditions, such as the entitlement to compensation, provided the passenger gets a full refund and decided to withdraw totally, that this is okay?

If the parties agree, yes.

However, the TOC cannot impose such a variation or rescission of the contract unilaterally and any attempt so to do is highly likely to constitute unfair behaviour which is subject to separate legal restrictions on the trader.

If the passenger doesn’t agree to the change then the TOC is still subject to the binding legal obligations into which it freely entered and which it was paid to perform.

In an example where a passenger purchases a ticket to Anytown Station but, for some reason, the company decides or is forced to no longer serve said station, but gives very significant notice (say, ten weeks), is this a suggestion that simply contacting a customer who booked *twelve* weeks in advance and saying “sorry we don’t go there any more, here is your money back” is not sufficient?

No, that is not sufficient. The TOC cannot rescind the contract unilaterally if the customer is not in breach and since he is not travelling for another ten weeks it is rather difficult to imagine what manner of repudiatory breach he could have committed.