Settlement offer over a year after the incident

[Trainbike46]

@UnhappyCamper
This response from GWR is absolutely fascinating. They have finally shown their hand, and in doing so, they have revealed some massive weaknesses.

First, you should not be intimidated by the case citation (GWR v GR). A decision by a District Judge in the County Court is not binding precedent. It simply means that one judge, on one specific day, agreed with their argument. Another judge in a different court could hear the exact same facts and rule the complete opposite way. It is persuasive, but it is not ‘The Law’ in the way a High Court judgment would be.

We should be sceptical about the source of the case citation. The phrase ‘extract is taken from a document written by a lawyer regarding the case’ is doing an immense amount of heavy lifting. This reads like an internal briefing note or a ‘Revenue Protection Playbook’ written by their own legal team, rather than a neutral record of the court's decision. They are effectively marking their own homework. If they want to rely on a case, they should provide the official approved judgment, not a hearsay summary written by their own side.

However, look closely at what they admitted about that judgment. They state: ‘GWR were successful in that he found that GWR did have standing to bring all the claims bar the one on the day the Defendant was caught’.

That is a huge admission. Even in their own ‘victory’ case, the judge ruled they could not claim for the journey on the day of the incident. For you, that applies to the Taunton journey. They are effectively admitting that, even by their own best legal precedent, they probably cannot claim the full Anytime fare for the day you were stopped.

Crucially, they have completely ignored the Penalty argument. They have addressed ‘Standing’ (can we sue?) and ‘Choice of Remedy’ (can we sue after reporting?), but they have stayed silent on ‘Quantum’ (is the amount a penalty?). They haven't provided a single precedent where a judge ruled that charging £150 for a £30 loss is a valid, genuine pre-estimate of loss rather than an unenforceable penalty.

Finally, they explicitly stated: ‘I am investigating a fraud’. This confirms exactly what we feared. The interview is a criminal investigation designed to gather evidence for a fraud charge. You absolutely must not attend.

Here is a draft response. It acknowledges their case citation but flips it back on them, challenging the source and using their own admission against them regarding the final journey.

Subject: Re: Case Reference [Number] - Response to Legal Standing

Dear [Name],

Thank you for your email and for providing the extract regarding GWR v GR (419MC334).

1. PACE Interview. I note your confirmation that you are "investigating a fraud". As I have previously stated, I will not be attending an interview under caution. I strongly refute any allegation of fraud; my failure to renew my Railcard was an honest oversight, not a deliberate attempt to evade payment.

2. The Cited Case and Legal Standing. I note that the text you have pasted is explicitly described as "an extract from a document written by a lawyer" rather than the approved judgment itself.

This is, by definition, a subjective commentary rather than an official record of the Court’s decision. If you intend to rely on this case as a persuasive authority, please provide the official transcript of the judgment approved by District Judge Le Bas. Without the full context of the Judge’s reasoning, rather than a summary prepared by your legal team, I cannot accept this as an accurate reflection of the legal position.

However, even taking your summary at face value, I note with interest the admission that the Judge refused to award GWR the claim for the journey on the day the defendant was caught. By your own cited logic, GWR is therefore not entitled to the claim regarding my final journey to Taunton.

3. The Penalty Doctrine. Crucially, your email fails to address my primary objection regarding the amount claimed.

Even if GWR has standing, the sum demanded (full Anytime Fares plus administrative fees) constitutes a contractual penalty. Unlike the ParkingEye case, GWR had statutory powers (Penalty Fares and Prosecution) available to deter breaches. Having failed to use those statutory powers within the relevant time limits, GWR cannot rely on a disproportionate contractual penalty to recover sums far in excess of the actual financial loss.

As you are aware, the civil court's function is restitution, not punishment.

4. Final Settlement Offer. To bring this to a close, and reflecting your own admission that the claim for the final journey is likely unenforceable, I maintain my offer to settle for the actual loss incurred by the operators.

I am prepared to pay £XXXX in full and final settlement.

This offer remains open for acceptance for 14 days. If you decline, please issue a Letter of Claim compliant with the Pre-Action Protocol so we may proceed to court.

Yours sincerely,

UnhappyCamper

A few points:
- I fully agree reading the judgement itself is essential, whether that is obtained from the court in question directly, or via GWR. I don't believe the cited case is listed on the judgements page of the HMCTS, unfortunately.
- Have GWR brought up the ParkingEyes case? If not, I don't think the OP should mention it to them if they have not
- I think the fact GWR is very handwavy about the "various cost arguments" in point C suggests they didn't get all they wanted regarding to costs. We really should try to get access to the judgement though, so we can be sure.

 

[z444z]

I don't believe the cited case is listed on the judgements page of the HMCTS, unfortunately.

I’ve searched various sources including a few search engines and a few court databases for the case reference number provided and found nothing.

 

[Puffing Devil]

- Have GWR brought up the ParkingEyes case? If not, I don't think the OP should mention it to them if they have not

In terms of the GWR correspondence? No. They are strictly avoiding it.

Some know this is the weak spot. GWR knows this is the weak spot, which is why they are ignoring it and hoping the "Standing" argument distracts the OP.

By putting ParkingEye front and centre in the reply, we are forcing GWR to fight on the one patch of ground they are desperately trying to avoid.

 

[robbeech]

I find it interesting that GWR have brought up the NRCOT 9.2 part in their little anecdote about a previous case after it was mentioned here. Makes you wonder if it will be possible to find the original documents regarding that case doesn’t it.

 

[furlong]

He liked the point that otherwise you would have to buy a separate ticket for each leg of a journey with a different TOC.

That is the key sentence that tells us either that the facts of that case are not comparable with this one (as it speaks to the opposite side of the argument), or that the judge was not appraised of the complete picture (or that the judgement is being misreported).

If you want the best value ("Advance") fares, the industry today frequently DOES require you to buy a separate ticket for each leg of a journey with a different TOC! And I think that's precisely why the sentence in Part B now says what it does! To override the more general default term in these particular cases.

(I actually do have a counter-argument for GWR and, personally, I would consider that the NRCoT should be updated to support GWR's position unambiguously and avoid any possibility of there being an enforceable second independent claim. The key point is that as long as it is possible that a different judge might make the opposite determination, UnhappyCamper would bear the risk of having to pay twice. Until such time as this ambiguity in the interpretation of the NRCoT is removed, I believe GWR should present something that amounts to a binding undertaking from any other train companies involved that this won't happen. This ought to be reasonably easy to obtain as it presumably merely reflects the existing understood position of all the train companies, notwithstanding the poor drafting here in the NRCoT.)

 

[MotCO]

(I actually do have a counter-argument for GWR and, personally, I would consider that the NRCoT should be updated to support GWR's position unambiguously and avoid any possibility of there being an enforceable second independent claim. The key point is that as long as it is possible that a different judge might make the opposite determination, UnhappyCamper would bear the risk of having to pay twice. Until such time as this ambiguity in the interpretation of the NRCoT is removed, I believe GWR should present something that amounts to a binding undertaking from any other train companies involved that this won't happen. This ought to be reasonably easy to obtain as it presumably merely reflects the existing understood position of all the train companies, notwithstanding the poor drafting here in the NRCoT.)

So in any agreement, GWR should indemnify the OP against any future claims from other TOCs for journeys included within the agreement. Whether GWR accepts this is up to them, but if they don't, it does suggest their legal argument is a bit shaky.

 

[talldave]

Fantastic work above.

OP, don’t forget to remove the final journey from your calculation of the amount £XXXX in case you haven’t already.

So for the four journeys totalling £57.05, the "loss" is £28.53?

This is insane, every email reply is costing them more than that and the UK doesn't have a Microscopic Claims Court!!

I would also point out to the judge that if TOC staff had done their job correctly and spotted the expired railcard on journey 1, the "loss" would have been £7.25.

 

[fandroid]

Hi all,

I have just received a bit of a shock. April 2024, I was unknowingly travelling with an expired railcard. I had done so on five journeys, where my ticket and railcard had been checked each time and the inspectors found no issue with my railcard, so I had assumed it to be fine.

I would also point out to the judge that if TOC staff had done their job correctly and spotted the expired railcard on journey 1, the "loss" would have been £7.25.

I've put part of the OP's very first post up here to add substance to talldave's very valid point.

 

[WesternLancer]

Hi @UnhappyCamper
I wondered if you would be prepared to update your thread here - there was a lot of info given by forum members as things progressed, but I don't think we know what the final outcome was and how it was resolved from your point of view.

We've had some other recent cases that are similar in context - and it would be very helpful to those people I think if you were able to share any sort of update here.

Thanks in advance.