Expired railcard

[annonymous123]

Hi all,

I have been given a new outstanding amount to pay which I am told is £527.85, which I am told consists of £437.85 of outstanding fare and remaining administration charge. I have until 19th August to pay this fair. Again, this is incredibly high from what I calculated the difference between the fare I paid and the difference with Railcard discount.

I asked what entitles GWR to the fares not taken on their trains and they have responded ‘Revenue Protection Inspectors are Officers of the Railway and can report travel irregularities completed on any Train Operating Company in England. We are then authorised to seek the outstanding fares on behalf of these companies’. And further ‘The loss in revenue that we seek to recover is the sum of the loss to the taxpayer due to your failure to have a valid Railcard for these journeys but still purchasing tickets with that discount applied. It is your responsibility to ensure that you had the valid railcard at the point of travel.’

Please can someone kindly advice how I proceed as they have said they will not offer any further offers. Many thanks

 

[notmyrealname]

They would normally use the Anytime single rate for each journey, so double that for a return trip. And they don't usually take into account any fare that you did pay. Does that calculation get you anywhere near their figure?

 

[annonymous123]

As far as my calculation for the difference in payment with and without a railcard for GWR only trains is substantially lower than what is being requested (this was calculated and explained in a previous post).

 

[MotCO]

If you run the calculation again for all train journeys (not just GWR), does this get you near their figure? The reply you posted in #91 implies that they are acting on behalf of all rail operators, not just GWR. Is this a valid approach? - perhaps more esteemed posters can advise, and if not, what can the OP do about this, given post #91 implies that GWR are only offering a take it as it stands offer, or (presumably) we'll see you in Court?

 

[AlterEgo]

GWR can prosecute for journeys taken on other operators. This isn't in dispute although I note they are out of time. It's less clear to me how a civil claim would do, but whichever - GWR still maintain the right of prosecution. Many rail fares are aggregated between TOCs and I advise the OP not to go down the route of pettifogging ORCATS losses because that's unlikely to end well for them. If you pay the settlement the matter is concluded, if you don't they may pass the other offences detected to another train company for another carousel of fun and hassle.

 

[Watershed]

Hi all,

I have been given a new outstanding amount to pay which I am told is £527.85, which I am told consists of £437.85 of outstanding fare and remaining administration charge. I have until 19th August to pay this fair. Again, this is incredibly high from what I calculated the difference between the fare I paid and the difference with Railcard discount.

I haven't done the calculations myself, but as mentioned before, in relation to journeys where the only issue is the expired Railcard - if you are offering the difference between the discounted fares and the undiscounted equivalent (i.e. 50% of each discounted fare - that reverses the 1/3 discount) then I would consider that a reasonable offer to make. They are free to reject your offer and continue with a civil claim of course, but I think you have a reasonable defence against them wanting brand new Anytime fares for every journey made.

The journeys where they are alleging you short-fared are more problematic. The civil burden of proof is 'on the balance of probabilities', so they only need to show it's more likely than not that you travelled from e.g. Manchester to Bristol on the date you had tickets from Manchester to Stockport and Bedminster to Bristol. Unless you are able to produce evidence to contradict that claim, such as a witness statement from the person you have said gave you a lift, I would not rate your chances highly on defending that part.

As mentioned previously, they have absolutely no basis for claiming any "administration charge"; there is simply nothing in the law that would entitle them to this. In any event they would have to justify this by reference to how it has accrued, e.g. how many hours their staff have spent dealing with the matter and the cost of employing those staff members. What they can recover is fixed costs for issuing the claim, but this there to cover any legal expenses they incur - they can't claim those as well, in case that is what they are suggesting.

I asked what entitles GWR to the fares not taken on their trains and they have responded ‘Revenue Protection Inspectors are Officers of the Railway and can report travel irregularities completed on any Train Operating Company in England. We are then authorised to seek the outstanding fares on behalf of these companies’.

What a load of waffle - they have not produced anything justifying their claim to hold such authority. There is no such thing as an 'officer of the railway' in civil law. It's a concept that only exists in a very narrow branch of criminal law, e.g. the Regulation of Railways Act 1889 which they sometimes use to prosecute people.

You are quite justified in asking for evidence that you will not face 'double jeopardy' down the line and I would make this one of your points in your defence, if it proceeds to a civil claim.

And further ‘The loss in revenue that we seek to recover is the sum of the loss to the taxpayer due to your failure to have a valid Railcard for these journeys but still purchasing tickets with that discount applied. It is your responsibility to ensure that you had the valid railcard at the point of travel.’

The taxpayer doesn't have a claim against you though - only the train companies you had a contract with. Again, this is waffle from someone who clearly doesn't understand how the law actually works. They are seeing it through their lens of "the DfT has told us to recover money for the Treasury/taxpayer" rather than the legal lens of "what breach of contract, or tort, makes the passenger liable to GWR".

Please can someone kindly advice how I proceed as they have said they will not offer any further offers. Many thanks

If you feel your previous offer is reasonable then I would reiterate that, explaining why, and state that you will defend any claim which exceeds that offer.

A nuclear option would be to (threaten to) bring a counter-claim for damages resulting from an alleged breach of the GDPR. This would be on the basis that they are not a 'competent body' as defined in the GDPR and are not fulfilling a statutory function, so the law enforcement exception does not apply. That means it is questionable whether they held the necessary lawful basis to obtain and use past purchase details from retailers on a speculative basis, as they only originally had evidence of the irregularity where you were 'caught'. Indeed you have been able to prove that most of your previous purchases were legitimate, which further demonstrates the speculative basis of their data trawl.

GDPR breaches can attract substantial non-material damages for distress and inconvenience. A Court might be reluctant to award damages given that you admit to having committed the offence/breach of contract that GWR are claiming for, but I don't think that gives GWR 'carte blanche' to ignore the GDPR in detecting that. Anyway, something to think about - and it could perhaps act more as a tool in negotiations (e.g. "I'll drop the GDPR claim if you accept X amount") than anything else.

GWR can prosecute for journeys taken on other operators. This isn't in dispute although I note they are out of time. It's less clear to me how a civil claim would do, but whichever - GWR still maintain the right of prosecution.

It's now too late for GWR - or any other TOC - to prosecute alleged offences as they are all more than 6 months ago; that is why they are proceeding down the civil avenue instead.

 

[annonymous123]

This is infact causing me a lot of distress. I’ve been on annual leave and this week been sick with a severe infection which I’m still recovering from. I have stated what the difference in my fair paid and willing to pay the difference. I can’t understand all the legislation and again have provided the railcard from 2016 to 2020 which they have authenticated. Below is my response. Please let me know what more I can provide so they accept this offer and finalise the case. Thank you



Dear GWR Prosecution Team,



Thank you for your email and for providing the updated calculation of the outstanding fares. The delay in my response is due to illness this week which I have been off work and recovering from.



I fully acknowledge and understand my mistake in travelling with tickets purchased using a Railcard that had expired. As I have reiterated in each response, I take this matter very seriously and assure you that I will be far more cautious in the future to ensure I hold valid documentation before travelling. This was an oversight on my part, and I regret any inconvenience caused.



I would like to respectfully request that, in light of my acceptance of responsibility, providing evidence of previous valid Railcards and my commitment to promptly resolve this matter, you consider waiving the administration fee and accepting my offer and apologies. Therefore, in this occasion I please urge that my offer to pay the difference between the fares that I actually paid for all train tickets purchased outside of holding a valid Railcard, a sum of £119.28. I am happy to pay your admin fee in addition for the inconvenience caused. I offer this in full and final settlement of this case. If this request is accepted, I am prepared to immediately pay the outstanding fare amount to settle the case in full without the need for any further action.



I hope this demonstrates my good faith and willingness to resolve the matter promptly. I would be grateful if you could confirm whether this arrangement would be acceptable.

 

[Watershed]

@annonymous123 I completely understand why you're striking a contrite tone, but I think they have been clear that they won't accept counter-offers. Also, since they have no basis for charging the admin fee I would not be offering to pay it.

I think it is pretty clear you have two options here - either pay the inflated sum they are asking for, or let it proceed to Court and defend your case there. Given that you have stated the whole matter is causing you distress, I am not sure that Court action is the option you want to go for.

 

[AlterEgo]

Do you really mean that this is a full and final settlement? You've not even offered to pay their costs. They'll likely decide to see you in court because they'll be able to get their costs.

 

[Watershed]

Do you really mean that this is a full and final settlement? You've not even offered to pay their costs. They'll likely decide to see you in court because they'll be able to get their costs.

What basis would they have for getting their costs? Bear in mind this would be a Small Claims Track case so CPR 27.14 substantially limits the amount that can be recovered.

This has all been covered in previous posts BTW.

 

[MotCO]

Is the sum of £119.28 only for GWR journeys? In which case, you may wish to state this, arguing that you do not want to be exposed to a possible 'double jeopardy', so only want to settle the GWR element. (Have we have established above that GWR cannot act on behalf of other TOCs in civil cases?)

 

[Watershed]

Is the sum of £119.28 only for GWR journeys? In which case, you may wish to state this, arguing that you do not want to be exposed to a possible 'double jeopardy', so only want to settle the GWR element. (Have we have established above that GWR cannot act on behalf of other TOCs in civil cases?)

They could act on behalf of other TOCs if they have evidence of authority to do so (i.e. that they have effectively "bought" any claim that other TOCs would have). As of yet, GWR have not produced such authority.

 

[AlterEgo]

What basis would they have for getting their costs? Bear in mind this would be a Small Claims Track case so CPR 27.14 substantially limits the amount that can be recovered.

This has all been covered in previous posts BTW.

It'll be quite expensive for the OP if they send a witness or legal representative and have them take a day off work.

 

[annonymous123]

The sum of £119.28 is for the difference of all the train journeys outside railcard purchase. The ones for just GWR I believe is £58.54.

Based on recent response should I respond the following? Please chop and change as you please so I can get this sent off ASAP. Many thanks,

I
note from your email that the amount sought includes an administration charge, and that part of the claim relates to journeys on train services not operated by Great Western Railway. I would be grateful if you could provide:

1. Evidence of authority – confirmation and documentation showing your legal authority to pursue alleged fare shortfalls for journeys undertaken on services not operated by Great Western Railway, including the relevant contractual or statutory basis. I understand from the National Rail Conditions of Travel (Conditions 5.1, 5.2 and 6.3) and the Railways Byelaws (Byelaw 18) that only the operator of the service, or an authorised person for that operator, may enforce fare recovery.
2. Legal basis for the administration charge – a clear explanation of the legal basis upon which this fee is applied, together with a breakdown of how it was calculated and how it reflects actual administrative costs. Under the Consumer Rights Act 2015 (Section 62 and Schedule 2) and the principles in ParkingEye Ltd v Beavis [2015] UKSC 67, such charges must be proportionate, linked to a legitimate interest, and must not operate as a penalty.

In the interests of resolving this matter promptly and without the need for further action, I am prepared to make immediate payment of the outstanding fare amount of £119.28 upon confirmation that the administration fee will be waived. I hope my willingness to pay promptly, my acceptance of responsibility, and my personal circumstances will be taken into account as a gesture of goodwill.



Please confirm whether this proposal is acceptable, and kindly provide the requested evidence and explanations.

 

[Watershed]

It'll be quite expensive for the OP if they send a witness or legal representative and have them take a day off work.

Legal costs are capped in CPR 27.14 to a fixed sum of £50-80 for issuing the claim, depending on its value.

Legal costs for the hearing itself cannot be recovered unless the other party demonstrates 'unreasonable' behaviour during litigation. That is a high bar to meet - and the OP's making of a fairly reasonable settlement offer would, in my view, virtually rule out any chance of this being awarded.

The OP lives in Bath and GWR's main corporate offices are in Swindon, so the venue for any hearing/trial would almost certainly be on the GWR route. Hence if they decided to have one of their staff attend (e.g. the RPI who originally interviewed the OP), there would clearly be no travel or overnight stay costs. The provisions in CPR 27.14 also limit 'away from work' costs to:

(e) a sum not exceeding the amount specified in Practice Direction 27A for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;

There is no loss of leave for e.g. an RPI paid to attend Court, and it's unclear that a corporate claimant can use this to claim back "loss of earnings" for an employee acting as a witness - especially given that providing evidence at Court is one of an RPI's job duties, so it is arguable GWR are not "losing" any earnings or work.

Even if such costs were to be accepted, Practice Direction 27A limits the recoverable costs to "a sum not exceeding £95 per day for each person", so still hardly a huge sum. And that is assuming it goes all the way to trial - most cases are settled before then.

 

[WesternLancer]

Some good advice has been given.

can I ask how much money is at stake in broad terms? ie between the sum they are currently asking for and the sum the OP thinks they should be paying (even if this includes other fares potentially with other train operators services)

Personally I would then try bear that sum in mind, then step back and consider what this all boils down to and your appetite for the choices left - which are presumably, in general terms a choice between

a) pay that they are asking and this hopefully ends / concludes the matter
or
b) keep pushing back and be fully prepared for the time, effort and possible costs of letting this play out to its conclusion - which is presumably some sort of action in court

when it comes to brass tacks isn't this the choice to make?

Apols if this isn't very helpful - feel free to ignore it.

 

[annonymous123]

I am offering to pay £119.28 for all journeys outside railcard travel and if admin fee would be waived. They are asking for £527.85, this consists of £437.85 of outstanding fares and administration charge.

I have attached their updated calculation

 

[MotCO]

The sum of £119.28 is for the difference of all the train journeys outside railcard purchase. The ones for just GWR I believe is £58.54.

Based on recent response should I respond the following? Please chop and change as you please so I can get this sent off ASAP. Many thanks,

I
note from your email that the amount sought includes an administration charge, and that part of the claim relates to journeys on train services not operated by Great Western Railway. I would be grateful if you could provide:

1. Evidence of authority – confirmation and documentation showing your legal authority to pursue alleged fare shortfalls for journeys undertaken on services not operated by Great Western Railway, including the relevant contractual or statutory basis. I understand from the National Rail Conditions of Travel (Conditions 5.1, 5.2 and 6.3) and the Railways Byelaws (Byelaw 18) that only the operator of the service, or an authorised person for that operator, may enforce fare recovery.
2. Legal basis for the administration charge – a clear explanation of the legal basis upon which this fee is applied, together with a breakdown of how it was calculated and how it reflects actual administrative costs. Under the Consumer Rights Act 2015 (Section 62 and Schedule 2) and the principles in ParkingEye Ltd v Beavis [2015] UKSC 67, such charges must be proportionate, linked to a legitimate interest, and must not operate as a penalty.

In the interests of resolving this matter promptly and without the need for further action, I am prepared to make immediate payment of the outstanding fare amount of £119.28 upon confirmation that the administration fee will be waived. I hope my willingness to pay promptly, my acceptance of responsibility, and my personal circumstances will be taken into account as a gesture of goodwill.



Please confirm whether this proposal is acceptable, and kindly provide the requested evidence and explanations.

You may wish to attach your calculations, so that GWR cannot come back later and try to charge you for a journey covered within your calculation.

Edit: or at least list those journeys

 

[annonymous123]

Update. The fare paid of all journeys outside railcard fairs is £289.35. The 1/3 difference in the discount (50%) is 144.68.

 

[WesternLancer]

Update. The fare paid of all journeys outside railcard fairs is £289.35. The 1/3 difference in the discount (50%) is 144.68.

Thanks - so I guess its this sort of sum vs the stress / hassle of pushing back and potentially ending up with some sort of court action

only you can decide how you feel about that - your 'appetite for risk' as it is sometimes put on here - and you may also feel there is some principle involved. I can see that people here are giving you helpful advice if you do want to carry on pushing back.

 

[Watershed]

@annonymous123 I've just had a further look at the spreadsheet you've shared and there are some discrepancies. GWR have overcalculated the Anytime fare for 8 of the journeys:

Journey	Date	Actual Anytime fare	Anytime fare GWR are asking for	Issue
BDM-BRI	10/01/2021	£2.70	£4.70	Fare does not match the Anytime fare that was in force at the time
WSM-BRI	11/10/2023	£13.10	£17.20	Fare does not match the Anytime fare that was in force at the time
BTH-MAN	14/10/2023	£100.10	£119.60	You bought a "via Hereford" ticket but they are charging you for an "Any Permitted" ticket
MCV-RCD	14/10/2023	£6.00	£8.60	Fare does not match the Anytime fare that was in force at the time
RCD-MCV	14/10/2023	£6.00	£8.60	Fare does not match the Anytime fare that was in force at the time
WSM-BRI	16/12/2023	£13.10	£17.20	Fare does not match the Anytime fare that was in force at the time
WSM-BTH	30/12/2023	£16.80	£30.20	You bought a day return, but they are charging you for the more expensive period/open return
BRI-BTH	10/02/2024	£9.50	£15.10	Fare does not match the Anytime fare that was in force at the time

In total, that alone means they have overcalculated the amount you 'owe' by £53.90. Even if their methodology were correct (which you would be disputing in Court), they can only charge you the Anytime fare that was actually in force at the time, and they have to charge you for the same fare route (e.g. via Hereford) that you originally bought. Similarly for charging you for a period return when you had bought a Day Return.

I think if you point that out to them, they should at least be willing to reduce the amount they're asking for by £53.90 to reflect the correct cost of the Anytime fares.

The most contentious and significant cost comes from the return journey you made from Weston-super-Mare to London on 28 October 2023. They are charging you £268 for an Anytime Return. That is clearly out of all proportion with the £57.55 you originally paid and it's where the 'penalty clause' argument is strongest, in my view. It cannot be reasonable that you are ostensibly liable for that much, being nearly 5 times your original fare, under a clause hidden 9 pages into a 34 page set of legalese.

Anyway, that's something to think about.

Specifically on what to respond to them, I would reword your email along these lines - if you want to still maintain your partial offer of settlement. Obviously it's up to you whether you include the parts about NRCoT condition 9.2.1, but I think it fleshes out your argument (as to why you shouldn't have to pay the Anytime fares) in a lot more detail, so that they can at least consider it.

Dear [GWR member of staff],

Thank you for your email. [insert the part about illness here]

Discrepancy in Anytime fares

Firstly, I have taken another look at the amounts which you are asking for. I have noted that for 8 journeys, they do not match the Anytime fare which was applicable to the journey at that time, either due to a simple mismatch or because of the incorrect ticket type or route being selected.

Journey	Date	Correct Anytime fare	Anytime fare you are asking for	Issue
BDM-BRI	10/01/2021	£2.70	£4.70	Fare does not match the Anytime fare that was in force at the time
WSM-BRI	11/10/2023	£13.10	£17.20	Fare does not match the Anytime fare that was in force at the time
BTH-MAN	14/10/2023	£100.10	£119.60	I bought a "via Hereford" ticket but you are asking me for the cost of an "Any Permitted" ticket
MCV-RCD	14/10/2023	£6.00	£8.60	Fare does not match the Anytime fare that was in force at the time
RCD-MCV	14/10/2023	£6.00	£8.60	Fare does not match the Anytime fare that was in force at the time
WSM-BRI	16/12/2023	£13.10	£17.20	Fare does not match the Anytime fare that was in force at the time
WSM-BTH	30/12/2023	£16.80	£30.20	I bought a day return, but you are charging me for the cost of a period/open return
BRI-BTH	10/02/2024	£9.50	£15.10	Fare does not match the Anytime fare that was in force at the time

In total, this means your current claim is £53.90 higher than what I believe to be the accurate cost of Anytime fares for the journeys in question. I trust you will therefore agree that the fare element of your claim should therefore be reduced to £673.30 in Anytime fares, minus £289.35 Railcard-discounted fares paid, equalling £383.95.

This being said, I also cannot accept full liability for the amount you are asking, due to the following four issues:


1) Lack of legal basis for administration charge

The amount sought includes an administration charge, however you have been unable to explain a legal basis for recovering such fees. The National Rail Conditions of Travel (NRCoT) state the circumstances in which administration fees are payable, for example when requesting a refund or change to a ticket - but my case does not fall into any of the specified circumstances.

Condition 9.2.1, which you rely on to claim Anytime fares, sets out the contractual outcome for travelling without a valid ticket - it does not mention any administration fees. I am sure you will appreciate that I cannot consider paying administration charges for which there is no legal basis. If there is a legal basis you have not yet set out, I would invite you to do so at the earliest opportunity.


2) Lack of legal basis to recover fares for journeys you were not part of

The amount sought includes tickets where I did not hold a contract with GWR, for example Manchester to Rochdale or Stockport. I note that page 4 of the NRCoT states:

• When you buy a Ticket to travel on scheduled train services on the National Rail Network you enter into a binding contract with each of the Train Companies whose trains your Ticket allows you to use.

As you were not one of the Train Companies that these tickets allowed me to use, you were not a party to those contracts. Accordingly, there is no evidence of any contractual basis for you to bring a claim against me in relation to these tickets.

The fact that your staff are authorised officers of the railway, or that the Department for Transport may have instructed you to recover amounts for the taxpayer, does not change this core contractual position. If your claim is on an alternative basis, or you have evidence that you have been authorised to pursue contractual claims on behalf of other train companies, I would invite you to share this as soon as possible. As you will understand, I cannot consider paying amounts that other train companies could later also ask me for - this would put me at risk of 'double jeopardy'.


3) Non-applicability of NRCoT condition 9.2.1

Your claim appears to be based on condition 9.2.1 of the NRCoT - however I would deny that it applies in these circumstances. The condition states that:

• If you are unable to present a valid Ticket when asked ... we are permitted in law to ... charge you the full undiscounted “anytime” single fare to a station directly served by the train that you are on.

I would suggest that this is clearly intended as an option open to ticket inspection staff on the day of travel and onboard the train, as it refers to "the train that you are on" in the present tense. It cannot have been intended that this would give operators such as GWR the ability to go back nearly 5 years and retrospectively charge passengers for Anytime fares for tens or hundreds of past journeys.

Had I been asked for my Railcard earlier, I would have realised my mistake and would have renewed it immediately - thus avoiding this situation entirely. I would suggest that to the extent any such clause is enforceable, it cannot be applied retrospectively as this is not how the clause is drafted or intended to be applied.


4) Non-enforceability of NRCoT condition 9.2.1

Further to the applicability of the above condition, I would also deny that it constitutes an enforceable contractual clause. Contracts for train travel fall within the remit of the Consumer Rights Act. Section 62 thereof states that:

• An unfair term of a consumer contract is not binding on the consumer.

This is defined as meaning:

• A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.

Furthermore, Schedule 2 of the Act lists terms which may be regarded as unfair. Paragraph 6 of Part 1 includes:

• A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.

The significant imbalance, and disproportionality, caused by condition 9.2.1 as written is demonstrated by the journey from Weston-super-Mare to London on 28 October 2023. You are alleging I am liable for the £268 cost of an Anytime Return. Given that I had paid £57.55 for my Railcard discounted ticket, and would have paid £87.20 if I had bought an undiscounted ticket, charging £268 is clearly out of all proportion to the discount which I received.

Under section 64 of the Act, terms as to the price payable are only excluded from assessment for fairness if the they are transparent and prominent. The latter is defined as meaning:

• A term is prominent for the purposes of this section if it is brought to the consumer's attention in such a way that an average consumer would be aware of the term.

Condition 9.2.1 is not in any way brought to the consumer's attention. It is buried 9 pages into a 34 page document, which is only linked to or referenced (not even displayed) when purchasing a ticket. It is clear that no average consumer would be aware of its scope and the potential for it to lead to demands for hundreds of pounds, years after travelling.

I would also note that the clause could be viewed as a 'penalty clause' to which particular attention would have to be drawn for it to be enforceable, based on the 'red hand rule' - this is not at all the case with section 9.2.1. Furthermore, under the principles established in ParkingEye Ltd v Beavis [2015] UKSC 67, any penalty-like charges must be proportionate to be held enforceable. Condition 9.2.1 clearly does not meet this requirement.

Conclusion

Based on my concerns stated above, I cannot accept liability for the full amount you are claiming.

However, in the interests of resolving this matter promptly and without the need for further action, I am prepared to make immediate payment of the discount I incorrectly obtained using the expired Railcard (£140.20) whilst travelling on tickets which would have allowed me to travel on your services. Should you be able to provide evidence of your authority to recover amounts on behalf of other train companies, I would also be willing to make immediate payment of the discount in relation to the remaining journeys (£8.60). These amounts would be in full and final settlement of any claims in relation to the respective journeys.

I would be grateful if you could confirm whether this proposal is acceptable. Alternatively, I will have no choice but to defend any legal claim on the basis described above.

Yours sincerely,

[your name]

 

[annonymous123]

@annonymous123 I've just had a further look at the spreadsheet you've shared and there are some discrepancies. GWR have overcalculated the Anytime fare for 8 of the journeys:

Journey	Date	Actual Anytime fare	Anytime fare GWR are asking for	Issue
BDM-BRI	10/01/2021	£2.70	£4.70	Fare does not match the Anytime fare that was in force at the time
WSM-BRI	11/10/2023	£13.10	£17.20	Fare does not match the Anytime fare that was in force at the time
BTH-MAN	14/10/2023	£100.10	£119.60	You bought a "via Hereford" ticket but they are charging you for an "Any Permitted" ticket
MCV-RCD	14/10/2023	£6.00	£8.60	Fare does not match the Anytime fare that was in force at the time
RCD-MCV	14/10/2023	£6.00	£8.60	Fare does not match the Anytime fare that was in force at the time
WSM-BRI	16/12/2023	£13.10	£17.20	Fare does not match the Anytime fare that was in force at the time
WSM-BTH	30/12/2023	£16.80	£30.20	You bought a day return, but they are charging you for the more expensive period/open return
BRI-BTH	10/02/2024	£9.50	£15.10	Fare does not match the Anytime fare that was in force at the time

In total, that alone means they have overcalculated the amount you 'owe' by £53.90. Even if their methodology were correct (which you would be disputing in Court), they can only charge you the Anytime fare that was actually in force at the time, and they have to charge you for the same fare route (e.g. via Hereford) that you originally bought. Similarly for charging you for a period return when you had bought a Day Return.

I think if you point that out to them, they should at least be willing to reduce the amount they're asking for by £53.90 to reflect the correct cost of the Anytime fares.

The most contentious and significant cost comes from the return journey you made from Weston-super-Mare to London on 28 October 2023. They are charging you £268 for an Anytime Return. That is clearly out of all proportion with the £57.55 you originally paid and it's where the 'penalty clause' argument is strongest, in my view. It cannot be reasonable that you are ostensibly liable for that much, being nearly 5 times your original fare, under a clause hidden 9 pages into a 34 page set of legalese.

Anyway, that's something to think about.

Specifically on what to respond to them, I would reword your email along these lines - if you want to still maintain your partial offer of settlement. Obviously it's up to you whether you include the parts about NRCoT condition 9.2.1, but I think it fleshes out your argument (as to why you shouldn't have to pay the Anytime fares) in a lot more detail, so that they can at least consider it.

I can not thank you enough for this. I am so incredibly grateful for your support. I have now sent this email and multiple others requesting a prompt response as the deadline for payment is 19th August and I don’t believe they will respond over the weekend. They have said this settlement offer will remain on their system until 19th August 2025 but to note that should the case not be settled at this time, no further offers will be made and should the balance remain unsettled at this time, I will become liable for any additional costs accrued.

== Doublepost prevention - post automatically merged: 15 Aug 2025 ==

As a previous member commented in GWPR I have done some research and found the following. I’m wondering if anything thinks this could somehow go in my favour as the initial claim was dated back to 2018 (when I had a valid railcard). Is GWR allowed to access this information without my consent? I was not informed at the time by the officer at the time (11.02.24) as fair as I can remember, that this investigation would be taking place and they would be accessing my information this far back. This all came to light on date of first email regarding the matter on 17.07.25). I bought majority of my tickets on the Trainline app which I belive is where they have accessed all of this record from.

• Key principles include:
  • Lawfulness, fairness & transparency – you must be informed how your data is used.
  • Purpose limitation – data should only be used for the reasons it was collected.
  • Storage limitation – it shouldn’t be kept longer than necessary.
  • Data minimisation – only the needed data should be collected and processed.
  • Accountability – organisations must demonstrate compliance

GWR’s Data Retention Policy vs. Your Case

Railcard and journey data retention

• GWR states that they retain railcard data for the duration of its validity plus two years afterward, to assist with renewal if necessary .
• Your query concerns data going back to 2018—which, as of 2025, exceeds that two-year period by a wide margin.

2. Legitimate retention vs. excessive retention

• GDPR mandates data retention only for as long as necessary for the original purpose or a lawful requirement.
• GWR also states they may retain data beyond that if it’s needed for legal claims—e.g., during applicable civil statute limitations (which in England/Wales can extend up to six years) .
• So there might be legitimate justification if the data was still needed for potential legal action, but GWR must be able to clearly demonstrate this.

Is This a GDPR Breach?

Potential red flags:

• If they still hold your 2018 data without a lawful basis (i.e., neither for renewal, fraud detection, nor a defined legal claim), it may violate GDPR’s storage limitation principle.
• If they used that data for purposes beyond what was disclosed or lawful—without clarity or your consent—this could be a transparency or purpose limitation breach.

However, if GWR genuinely needed it for ongoing or potential claims, and this purpose is stated in their policy and remains lawful, then they may argue compliance.

 

[Watershed]

I can not thank you enough for this. I am so incredibly grateful for your support. I have now sent this email and multiple others requesting a prompt response as the deadline for payment is 19th August and I don’t believe they will respond over the weekend. They have said this settlement offer will remain on their system until 19th August 2025 but to note that should the case not be settled at this time, no further offers will be made and should the balance remain unsettled at this time, I will become liable for any additional costs accrued.

No problem. At the end of the day I don't see there is a lot to be lost by waiting for them to respond. The Civil Procedure Rules require parties to act reasonably to prevent cases from unnecessarily going to Court, and you have responded within a reasonable amount of time.

You've made a fair offer of settlement, along with arguments as to why you shouldn't be liable for more than that. They should give serious consideration to your offer, although in practice I am not sure they will accept it. I would expect them to probably frog-march onwards with their process. They seem to be conducting it without having got many legally qualified people involved, which may explain a number of the issues with their threatened legal action.

 

[MotCO]

No problem. At the end of the day I don't see there is a lot to be lost by waiting for them to respond. The Civil Procedure Rules require parties to act reasonably to prevent cases from unnecessarily going to Court, and you have responded within a reasonable amount of time.

You've made a fair offer of settlement, along with arguments as to why you shouldn't be liable for more than that. They should give serious consideration to your offer, although in practice I am not sure they will accept it. I would expect them to probably frog-march onwards with their process. They seem to be conducting it without having got many legally qualified people involved, which may explain a number of the issues with their threatened legal action.

Perhaps they should be directed to read this thread https://www.railforums.co.uk/thread...lay-prosecutors-in-court.290879/#post-7426001, or indeed, to read the thread we're on now.

 

[Watershed]

As a previous member commented in GWPR I have done some research and found the following. I’m wondering if anything thinks this could somehow go in my favour as the initial claim was dated back to 2018 (when I had a valid railcard). Is GWR allowed to access this information without my consent?

Well, that's the key question for any GDPR-based counterclaim.

As mentioned before, they can't rely on the law enforcement exemption from GDPR because they don't meet the necessary conditions. Therefore they have to comply with the GDPR principles, which include having a lawful basis for processing (which includes obtaining data, using it etc.).

GDPR sets out six lawful bases for processing data. The Information Commissioner's Office (ICO) has some guidance here that might be useful, but in brief they are:

1. Consent: the individual has given clear consent for you to process their personal data for a specific purpose.
2. Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract.
3. Legal obligation: the processing is necessary for you to comply with a common law or statutory obligation (not including contractual obligations).
4. Vital interests: the processing is necessary to protect someone’s life.
5. Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.
6. Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.)

Clearly, you didn't consent to such processing and it's not necessary contractually. They aren't under a legal obligation under either common law or statute to recover this money - it's something they have chosen to do. And it's also clearly not necessary for vital interests. That just leaves 'public task' or 'legitimate interests' as their possible bases for processing the data.

They might argue that either of those apply here, but I don't believe they meet the criteria for 'public task' since, as the ICO guidance says, this is if the organisation is either:

carrying out a specific task in the public interest which is laid down by law; or
exercising official authority (for example, a public body’s tasks, functions, duties or powers) which is laid down by law.

None of what they are doing in this instance is 'laid down by law' (i.e. a power or right under statutory or common law). They are simply pursuing a contractual claim against you.

That only leaves legitimate interests, which is the weakest basis of consent in my view - since there is a balancing exercise they have to conduct when deciding whether their interests overrides your interests. As the ICO guidance says:

It is likely to be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing.

Clearly, this is not a way you would expect your purchasing history data to be used and it has a major impact on you. That being said, they could say recovering historical underpayments presents a sufficient justification to override your interests - that is what GWR effectively argue in their Privacy Policy. I couldn't say which way a judge would decide any claim brought on that basis, but I would suggest that the extent of their 'trawling' (effectively all purchases you have ever made, even those beyond the statute of limitations) certainly goes against them.

In addition to the point about lawful basis, GWR would also have to demonstrate that they have met the requirement under Articles 13 and 14 of the GDPR to inform you regarding their processing of data. It's not clear whether they met this when they collected your details to begin with.

I was not informed at the time by the officer at the time (11.02.24) as fair as I can remember, that this investigation would be taking place and they would be accessing my information this far back. This all came to light on date of first email regarding the matter on 17.07.25). I bought majority of my tickets on the Trainline app which I belive is where they have accessed all of this record from.

It's possible that you would have a stronger claim against Trainline than GWR. I would argue that the 'storage limitation' principle of GDPR would suggest they need to delete purchase records certainly once the statute of limitations passes, and possibly before then. It appears they are keeping data longer than this.

• Key principles include:
  • Lawfulness, fairness & transparency – you must be informed how your data is used.
  • Purpose limitation – data should only be used for the reasons it was collected.
  • Storage limitation – it shouldn’t be kept longer than necessary.
  • Data minimisation – only the needed data should be collected and processed.
  • Accountability – organisations must demonstrate compliance

GWR’s Data Retention Policy vs. Your Case

Railcard and journey data retention

• GWR states that they retain railcard data for the duration of its validity plus two years afterward, to assist with renewal if necessary .
• Your query concerns data going back to 2018—which, as of 2025, exceeds that two-year period by a wide margin.

2. Legitimate retention vs. excessive retention

• GDPR mandates data retention only for as long as necessary for the original purpose or a lawful requirement.
• GWR also states they may retain data beyond that if it’s needed for legal claims—e.g., during applicable civil statute limitations (which in England/Wales can extend up to six years) .
• So there might be legitimate justification if the data was still needed for potential legal action, but GWR must be able to clearly demonstrate this.

Is This a GDPR Breach?

Potential red flags:

• If they still hold your 2018 data without a lawful basis (i.e., neither for renewal, fraud detection, nor a defined legal claim), it may violate GDPR’s storage limitation principle.
• If they used that data for purposes beyond what was disclosed or lawful—without clarity or your consent—this could be a transparency or purpose limitation breach.

However, if GWR genuinely needed it for ongoing or potential claims, and this purpose is stated in their policy and remains lawful, then they may argue compliance.

This definitely reads like as if it was generated by something like ChatGPT. I completely understand using AI as a research tool, but I would caution that you have to be careful with the output and fact-check anything it says, since AI can (and does) make things up or misunderstand things. For example your original email draft also read like it contained some AI-generated content; it referred to clauses of the NRCoT which didn't appear to be relevant to the point being made. That could hurt your credibility.

 

[soil]

Can only agree with Watershed.

This is a process of negotiation - essentially both parties have their dream positions (respectively hundreds of pounds and nothing), and the correct outcome is somewhere between (not necessarily in the middle).

This process should be a rational one.

Litigation proceeds along stages:

1. pre-action - nothing is legally due, just negotiations.
2. issue - costs of £35 (<£300), £50 (£300-£500), or £70 (500-£1000) are paid by the claimant
3. defence - you have 14/28 days to either (a) file a defence to the claim, (b) pay the full amount + the above fee, or (c) lose by default
4. post-issue - this involves further discussions, typically, to settle the case. You might for example file a defence, then a month later just pay up in full (i.e. claim amount + issue fee).
5. mediation - by phone, arranged by the court. Free. Attempt to agree a settlement, which could just be "we both refuse to budge"
6. 'on the papers' - possible to agree for the court to resolve the case just on paperwork
7. hearing fee - if there is a hearing, a further fee is payable by the claimant of £27/£59/£85.
8. judgment - if you lose you'd typically have to pay the issue fee, hearing fee and damages.

At the moment i think that this may be being overcomplicated.

It is NOT a problem if you are sued. Worst case is you just pay the amount they were asking for, plus the issue fee.

"Calling their bluff" is a reasonable approach here in that often people who ask for money don't follow up with a claim. So if you say "I will pay £x in full and final settlement", then if they say no, then you simply wait and see what happens next.

At that point it's quite common that what happens next is nothing. You don't get sued.

OTOH you of course might be sued, so it's then vitally important to file a defence (which is easy, just requires you to pay attention to the strict deadline), and probably get through to mediation and try to come to an agreement then.

Strategically, you can choose to spend more time now to impress upon them that they are wrong and won't get any more money from you, or you can decide that you don't want to do this and to simply reply briefly saying you won't pay them what they're asking. Neither approach is wrong, it just depends on the relative probabilities and whether you think negotiating further at this stage will have the desired effect and whether they will actually sue you.

IMO it doesn't make a lot of sense to pay what they're asking now, in that it's far from what you appear to owe, and the amount of money is also probably quite a significant one for you, so it would come down to whether you want to (perhaps) waste a lot of time now talking to them, or just curtail that with a very brief reply explaining your offer and that you are not negotiating further.

 

[annonymous123]

Thank you for your advice. I have offered many of times for them to accept my offer. Below are the emails I responded to today as I explained in #91 and the latest PDF attached in #107 is there updated calculation. I have been responding in a state of anxiety and illness trying to reach a negotiation before their payment deadline on 19th August as they threatened with further charges if a negotiation is not met or I have not paid their payment in full.

The emails what I drafted since #91 are what I’ve I sent today along with the last email that was drafted for me in #111. I asked for a response as soon as possible in another. I appreciate there is slightly discrepancy in some of the amounts but it is roughly £140. Should I send a further email clarifying that it’s my most recent email I believe to be most accurate and would appreciate a response to and acceptance of the offer?

I appreciate it looks like so fair either party is budging. So is it the court that will then contact me about the points made above about the litigation stages? Is my email response the defence for the claim or do I need to continue to defend and to whom? This is all very unfamiliar territory to me. I would appreciate advice on how to proceed as you see the penalty and admin fee are very high in comparison to the offer I am willing to pay for fare difference with and without railcard and finalise this case once and for all. What are the chances I lose this battle in court or they don’t take any further action? Any information broken down as simply as possible and and advice would be appreciated. Many thanks

 

[soil]

What happens next after you decide to stop negotiating is either

A) nothing
Or
B) they sue you.

If they sue you you will receive a notice of the claim in a brown envelope from the court, and it will explain that you have 14 days to respond.

You can respond online via court website or by post.

At the moment you haven't been sued so have no need to take any action.

 

[annonymous123]

Thank you. I will await a response and keep you updated, but for now I will not proceed any further. Many thanks

 

[MotCO]

It hardly needs saying, but any further correspondence you receive from the TOC or Court, do not respond to it until you have posted them on this thread and received aporopriate advice.