Without prejudice save as to costs
Dear X,
Thank you for your continued correspondence. I am keen to resolve this matter cooperatively and in line with the Civil Procedure Rules and the Practice Direction on Pre-Action Conduct. To assist in narrowing the issues, I address your points as follows.
Points 1 & 2 - Evidence of the Railcard
As previously explained, I am unable to provide physical evidence of the 16–17 Railcard belonging to the young person for whom some of the tickets were purchased. The railcard expired in July 2024, and I did not retain copies of documents belonging to another individual.
I note your concern that images “could be edited", which I understand. However, I don't think it is reasonable to assert that all evidence that could be provided to resolve this matter could be falsified. Therefore,
I would be grateful if you could clarify whether the expired physical railcard is the only form of evidence you are willing to accept. If so, please confirm this explicitly so we can avoid going over the same matter.
Point 3 - Alleged High Court Judgment & Claims on Behalf of Other TOCs
You have repeatedly referred to a High Court judgment which you say entitles GWR to claim losses on behalf of other Train Operating Companies. However, you have not provided the name or citation of this case, and the wording you have quoted does not resemble judicial language.
I have attempted to locate such a judgment myself and have been unable to do so. The inability to identify the authority relied upon is concerning, as is the suggestion that GWR is entitled to recover losses for operators with whom I had no contractual relationship.
The National Rail Conditions of Travel are completely explicit about which companies a passenger holds a contract with: those on whose services the ticket is valid. There is no ambiguity on this point and no indication that a Court would set aside the contractual position. GWR keep returning to the point about taxpayers' money, but that is not relevant from a legal standpoint, as this is a contractual claim under the NRCoT. Therefore, GWR can only claim what the contract entitles it to: losses in relation to journeys where the passenger would travel with GWR ("When you buy a Ticket ... you enter into a binding contract with each of the Train Companies whose trains your Ticket allows you to use.").
Furthermore, if GWR maintains that it is entitled to claim sums on behalf of other operators,
please confirm whether GWR will indemnify me should any other Train Operating Companies subsequently attempt to bring their own claim in relation to the same journeys. Without such an indemnity, there is a clear risk of multiple claims for the same alleged loss, which is plainly contrary to fairness and proportionality. Unless you can provide this, I propose only to look at the contractual losses arising from the GWR so that we can resolve this matter quickly.
Alternatively, please provide the citation of the High Court judgment you rely upon. In line with the Civil Procedure Rules and the Practice Direction on Pre-Action Conduct, which require parties to minimise the areas in dispute before any legal action, by failing to explain your position, this may cause more areas to remain disputed than is strictly necessary.
I would also be grateful if you could address the issue of proportionality, which appears central, if this matter proceeded to court. NRCoT condition 9.2.1 is being applied in a manner that results in a claim of many multiples of the alleged underpayment. Where a contractual term has such an effect in practice, it raises questions under the Consumer Rights Act 2015 as to whether the term, or its application in this instance, may be unfair due to causing a significant imbalance between the parties’ rights and obligations. A Court would inevitably consider not only the construction of NRCoT 9.2.1 but also whether the overall sum being claimed is proportionate to any actual loss suffered. Given the very high figure being sought, it would be helpful if you could explain how GWR considers its approach to be fair, transparent, and proportionate within the meaning of the Act.
I am also concerned by the legal basis on which GWR has reviewed and processed my historic ticket-purchasing data in connection with this single incident. From my understanding of the UK GDPR and the Data Protection Act 2018, any processing of personal data must be necessary, proportionate, and limited to what is strictly required for the specific purpose. In this case, I am concerned that a broad retrospective analysis of my ticket history may exceed what is necessary to investigate the isolated journey on the date in question. Unless you can demonstrate this data trawl is GDPR compliant, I would have to raise this as a counter-claim to any court claim you bring, which, of course, would add to both of our expenses and costs.
Point 4 - Administration Fees
You have referred to GWR policy documents published on your website in support of the administration fees you wish to charge. However, the existence of an internal policy does not, by itself, give rise to a contractual entitlement.
The NRCoT does not incorporate these fees, and under the Small Claims Track costs rules (CPR 27.14), such discretionary administrative fees are not ordinarily recoverable. You have not provided any legal basis for their recovery beyond stating that they appear in your policy documents on your website.
To comply with the overriding objective and to avoid unnecessary dispute, please set out the specific contractual or statutory basis upon which you contend these fees are recoverable.
Settlement Offer (Without Prejudice Save as to Costs)
I remain committed to resolving this civil debt claim proportionately and without recourse to litigation, as per the Civil Procedure Rules and the Practice Direction on Pre-Action Conduct.
In calculating a settlement offer, as GWR has not confirmed that it will indemnify me for claims brought by other Train Operating Companies, I can only base any settlement offer on fares relating to journeys undertaken wholly or partly with GWR.
I therefore set out below the fares in dispute relating to GWR only, so that a focused settlement proposal can be made. I have re-added all GWR fares which include a 16-17 saver, in the possibility that these discounts were redeemed incorrectly, since I am unable to provide the railcard retrospectively and in the spirit of pre-court settlement. I believe that this would also resolve the evidential issues arising from my not being able to provide the railcard and GWR's policy of needing these fares to be addressed. However, I note that this is not an admission that this is the case due to previously mentioned reasons. I have used the relevant undiscounted walk-up fare from BR Fares (Fare period: 5 Jul 24 - 14 Sep 24).
| Date | Journey | Relevant undiscounted walk-up fare | Fare Paid |
| 28/03/2024 - 04/04/2024 | London to Newton Abbot return | £118.70 | £59.35 (Super off-peak return) |
| 30/03/2024 - 30/03/2024 | Paignton to Newton Abbot return | £6.70 | £3.20 (Off-peak return) |
| 03/04/2024 | Paignton to Newton Abbot single | £6.50 | £3.10 (Anytime day single return) |
| 04/05/2024 - 14/04/2024 | London to Newton Abbot return | £118.70 | £59.35 (Super off-peak return) |
| | Total: £250.6
If reduced by fare paid: £125.60 | £125 |
In the spirit of negotiation, I am willing to offer either of the following that GWR find acceptable, and I can pay this amount immediately with no need for a payment scheme. This would be helpful to both parties and save a lot of time and cost in the long term. These offers are:
1) The difference in fares + the administration fee (despite the issues above) + the cost of a railcard, amounting to a full and final settlement of £125.60 + £90 + £35 =
£250.60.
2) The total of relevant undiscounted walk-up fares and waive the value of fares already paid, amounting to a full and final settlement of
£250.60
A court is unlikely to award GWR more than this, since this is a genuine pre-estimate of loss rather than the unfair and punitive figures previously given.
Thank you for your attention to these points. I look forward to your clarification so that this matter may be resolved without unnecessary escalation or further dispute.
