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    • Which would require a hearing....so the fee would be £255.00
    • When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:   a.     must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or b.     can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?   It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.   The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act. The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):   1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974 2.     Name and address of the debtor 3.     Name and address of the creditor 4.     Cancellation clause applicable to the executed agreement.   All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.   The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done. The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.   In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.   Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?   A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.   Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form? The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.     If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?   If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.     As your agreement is post April 2007  Section 61(1)(a) and 127(3)   Consumer Credit Act 1974 would not apply.   Andy
    • well start a new thread for the court claim.   as for this one i'd await the letter of claim  
    • Useful information...   And....   https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55
    • nice and ofcourse totally unlawful.   £349.50 is the usual sum RLP try and fleece out of people under some silly civil threats none of goes to the store it all goes in RLP's pocket for their next staff holiday paid for by mugs that fall for their twaddle ignore!!
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morpheus2

Penalty Fare payment by post 'not received' by First Capital Connect- do I now have to pay more/face prosecution??

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Dear all

I was issued with a penalty fare about a month ago as I had stupidly failed to notice that my railcard was out of date.

 

I paid half the penalty fare on the spot as I was down to my last £10 cash and was already at my overdraft limit, so (I thought) it would have cost me more to go into unpaid overdraft...

 

The ticket inspector issued me with a bit of paper which I then lost (I am the Queen of organisation....:/). Thus I did not have the PF number so waited for the reminder letter which arrived on 2 Dec dated 26 November. The internet payment option failed to recognise my penalty number notice so I sent my card details by post on about the 7th of December. Within the allotted time.

 

I today received a letter dated 11 Dec saying they had not received payment and I now had to pay another£20 'administration costs' or they will prosecute.

 

They could well have lost my letter or delayed the payment themselves. Should I pay yet another£20 on top (for a £10 'missing' amount!?) or should I write to them about the matter first? It is grim that they use the threat of criminal prosecution as a cosh in this way and I've vowed never to use FCC's poxy service again (I'm not a commuter on that line thank God).

 

I also wondered if it would be worth representing myself in court to get declared not guilty as I accepted the PF and had no intention whatever to evade fares. Stupidity and ignorance are defences to an intentional fraud prosecution. There is also the strict liability element, but as I have in fact paid (and sent my card details today authorising them to take the £10 again) would this apply? And how can a strict liability offence (like a parking fine) bar you from certain careers and entering the USA etc?! This seems crazy to me (and I am a lawyer :D)

I've also written to FCC customer complaints about the whole sorry saga and am waiting to hear back. I'll let you know what they say :S

 

R

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I've just read online that the strict liability offence does apply to all just by being on the train with incorrect ticket, however I'm not clear if actually trying to pay the PF discharges the liability or not.

 

I also read that it is an offence which shows up at CRB 'enhanced disclosure' but not clear if this would affect things like entry to USA and when it would become spent?

 

It seems a crazy situation that there is now a sort of crime of a. being flaky and disorganised on public transport b. not having the ability to pay up early and settle. The latter doesn't apply to me but I've read some hairraising stories on here of 16 year olds etc (or rather their parents) having to pay hundreds to settle out of court. The strict liability criminal offence clearly means nothing in terms of actual conduct a reasonable person would deem criminal- and one would hope enlightened employers are increasingly ignoring it.

 

thanks all for looking

R

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Dear all

I was issued with a penalty fare about a month ago as I had stupidly failed to notice that my railcard was out of date.

 

I paid half the penalty fare on the spot as I was down to my last £10 cash and was already at my overdraft limit, so (I thought) it would have cost me more to go into unpaid overdraft...

 

The ticket inspector issued me with a bit of paper which I then lost (I am the Queen of organisation....:/). Thus I did not have the PF number so waited for the reminder letter which arrived on 2 Dec dated 26 November. The internet payment option failed to recognise my penalty number notice so I sent my card details by post on about the 7th of December. Within the allotted time.

 

I today received a letter dated 11 Dec saying they had not received payment and I now had to pay another£20 'administration costs' or they will prosecute.

 

They could well have lost my letter or delayed the payment themselves. Should I pay yet another£20 on top (for a £10 'missing' amount!?) or should I write to them about the matter first? It is grim that they use the threat of criminal prosecution as a cosh in this way and I've vowed never to use FCC's poxy service again (I'm not a commuter on that line thank God).

 

I also wondered if it would be worth representing myself in court to get declared not guilty as I accepted the PF and had no intention whatever to evade fares. Stupidity and ignorance are defences to an intentional fraud prosecution. There is also the strict liability element, but as I have in fact paid (and sent my card details today authorising them to take the £10 again) would this apply? And how can a strict liability offence (like a parking fine) bar you from certain careers and entering the USA etc?! This seems crazy to me (and I am a lawyer :D)

I've also written to FCC customer complaints about the whole sorry saga and am waiting to hear back. I'll let you know what they say :S

 

R

 

As a lawyer you can assess if a court will believe that you lost the paperwork, and then sent the payment (after the reminder) but it got lost in the post.

As a lawyer, you no doubt sent the payment with the potential for such an impact on you by a recorded delivery method, or at least got a certificate of posting?

As a lawyer, you will no doubt have assessed the risk that they will decide they might not succeed with a charge of "intent" but may instead use a strict liability charge : would you be able to defend against not showing a valid ticket (if the ticket relied on a valid railcard that you did not have) "on demand": did they ask to see a valid ticket, and did you produce one?.

 

A criminal conviction may result from a strict liability offence : as a lawyer are you arguing that strict liability offences shouldn't be permitted?.

 

It would be up to e.g. US immigration and / or your professional body to assess the risk based on the details of an offence, if found guilty if a strict liability offence.

 

If convicted, it may be that the USA would still allow you to visit : having a conviction might not bar you from the USA : it might just mean that you could no longer use the "visa waiver" scheme, and would have to have a visa approved in advance.

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er.... actually 'as a lawyer' I've no idea if the court would 'believe' me. From what I have seen (and my area of work isn't criminal) magistrates tend to go very much by class etc eg they are more likely to let off a middle class woman if they are one themselves. The defendant speaks their language. But whoever I end up in front of might not like the look of me.

 

From the one's I've met, judges and magistrates do forget paperwork- especially small stuff like tickets- as much (or more than!) anyone else. They have to pay fines like this themselves as they lead busy lives and forget details which is what the train companies seem to be taxing us all on- and I haven't met one who speaks favourably of strict liability fining. For a start it clogs up the (publicly funded) courts with a load of vexatious nonsense aimed at maximising train company profits.

 

Thanks for the info on USA. I know drugs offences etc really bar you for life, but a missing ticket seems very far from that.

 

I think I DID use recorded delivery however, I usually do for things like that. Will check as that could help, but they could still try to charge me anyway with the threat of prosecution couldn't they? I'll try it at least.I have not heard anything much good about the 'Independent' appeals service.

 

It appears FCC will try to get money any way they can. I am just not sure whether courts will agree with them as to their methods.

 

As understandably most people are frightened into settling, there doesn't seem to be much on the web about people actually going through court battles with this lot.

They clearly have me for the SL offence. It's SL like a parking fine. My query was whether a court would take into account that I have accepted the PF and tried to pay.

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btw 'as a lawyer' I do have a lot of arguments against SL defences, as many others do lawyers or not!! But that's not relevant here as the law is in place so they have got me on it and I committed the offence. But do I have to do the full time, as it were, that's what I want to know :)

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It might be worth checking back with the First Connect as to whether they have received your payment now. Their letter took several days to arrive and as yours was later in December,

may well have been held up by Christmas mail.

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Dear all

I was issued with a penalty fare about a month ago as I had stupidly failed to notice that my railcard was out of date.

 

I paid half the penalty fare on the spot as I was down to my last £10 cash and was already at my overdraft limit, so (I thought) it would have cost me more to go into unpaid overdraft...

 

The ticket inspector issued me with a bit of paper which I then lost (I am the Queen of organisation....:/). Thus I did not have the PF number so waited for the reminder letter which arrived on 2 Dec dated 26 November. The internet payment option failed to recognise my penalty number notice so I sent my card details by post on about the 7th of December. Within the allotted time.

 

I today received a letter dated 11 Dec saying they had not received payment and I now had to pay another£20 'administration costs' or they will prosecute.

 

They could well have lost my letter or delayed the payment themselves. Should I pay yet another£20 on top (for a £10 'missing' amount!?) or should I write to them about the matter first? It is grim that they use the threat of criminal prosecution as a cosh in this way and I've vowed never to use FCC's poxy service again (I'm not a commuter on that line thank God).

 

I also wondered if it would be worth representing myself in court to get declared not guilty as I accepted the PF and had no intention whatever to evade fares. Stupidity and ignorance are defences to an intentional fraud prosecution. There is also the strict liability element, but as I have in fact paid (and sent my card details today authorising them to take the £10 again) would this apply? And how can a strict liability offence (like a parking fine) bar you from certain careers and entering the USA etc?! This seems crazy to me (and I am a lawyer biggrin.png)

I've also written to FCC customer complaints about the whole sorry saga and am waiting to hear back. I'll let you know what they say :S

 

 

Sorry, I don't often get really annoyed by threads on here, but I have to say.............What a lot of drivel!

 

As a lawyer perhaps you might remind yourself that the rail companies do not maximise profits by going to Court with these cases. They are actually a cost to the companies, some of which they may recoup through awards following successful prosecution, but the fines and surcharges all go into the Courts central funds, a great deal of which is then paid out to lawyers for various reasons.

 

As a lawyer you might also remind yourself that you are asking your clients to pay you substantial fees for checking details.

As a lawyer, perhaps you should remind yourself that it was your failure to check details i.e; that your Railcard hadn't expired, which got you into this situation in the first place

As a lawyer having made that mistake, you then managed to lose the all important notice that was just a reminder to deal with the issue without further problem

 

You say 'thank God' that you are not a regular commuter on the FCC route. I think a few readers may be thinking 'if this person is so disorganised, I hope that isn't the lawyer I've just engaged to deal with my matter!'

 

er.... actually 'as a lawyer' I've no idea if the court would 'believe' me. From what I have seen (and my area of work isn't criminal) magistrates tend to go very much by class etc eg they are more likely to let off a middle class woman if they are one themselves. The defendant speaks their language. But whoever I end up in front of might not like the look of me.

 

From the one's I've met, judges and magistrates do forget paperwork- especially small stuff like tickets- as much (or more than!) anyone else. They have to pay fines like this themselves as they lead busy lives and forget details which is what the train companies seem to be taxing us all on- and I haven't met one who speaks favourably of strict liability fining. For a start it clogs up the (publicly funded) courts with a load of vexatious nonsense aimed at maximising train company profits.

 

I think I DID use recorded delivery however, I usually do for things like that. Will check as that could help, but they could still try to charge me anyway with the threat of prosecution couldn't they? I'll try it at least.I have not heard anything much good about the 'Independent' appeals service.

 

It appears FCC will try to get money any way they can. I am just not sure whether courts will agree with them as to their methods.

 

As understandably most people are frightened into settling, there doesn't seem to be much on the web about people actually going through court battles with this lot.

 

They clearly have me for the SL offence. It's SL like a parking fine. My query was whether a court would take into account that I have accepted the PF and tried to pay.

 

 

As a lawyer I don't think your apparently clear class prejudices will help endear you to many clients. (post 4)

As a lawyer perhaps a reassessment of your opinions, achieved by acknowledging the thousands of successful cases heard every year by Magistrates across the country, might help you to understand that the Courts do not consider these matters to be what you describe as 'a load of vexatious nonsense aimed at maximising train company profits'.

 

As a lawyer, I am quite surprised by your comment here: 'It appears FCC will try to get money any way they can. I am just not sure whether courts will agree with them as to their methods.

 

Their 'methods' appear to me to be:

i) to allow a traveller who has failed to comply with a rule to resolve an otherwise prosecutable strict liability matter by paying a charge, determined by statutory instrument.

ii) to allow that traveller 21 days to pay, or successfully appeal

iii) to allow the traveller, who has not paid, or appealed within the 21 days, a further 14 days to pay the fare plus a bit of the administration cost that was incurred by dealing with the traveller's failures

iv) to remind the traveller that they have had 3 chances to resolve the matter, which they have failed to act upon and then to issue the summons that could have been issued at step one.

 

As a lawyer, put yourself in the position of a lay Magistrate, being presented with that information and being asked to consider why a trained lawyer had not responded to a strict liability allegation given three separate opportunities to do so

 

You say; 'As understandably most people are frightened into settling, there doesn't seem to be much on the web about people actually going through court battles with this lot.'

 

As a lawyer, maybe you should again remind yourself that 'the web' is not the only resource available to check for such information, but having said that, I do not agree. There is a mass of information posted by many hundreds of people on these various sites.

 

Generally speaking, the majority do not come back and tell us how they got on, very frequently because they lost, but as in all these matters, there will be exceptions.

 

To get to the main point, as a lawyer perhaps you might reflect on the fact that most people are not 'frightened into settling' as you claim. A proportion of people facing these issues appear to weigh up their chances, ask advice of others, have a look at the 'web', frequently seek legal advice from a good lawyer, recognise that they have not complied with a clear rule and write to ask the TOC to allow them to make a payment rather than risk a conviction and much higher charge.

 

You have not yet been charged with any offence. My guess is that if you choose not to pay and if a summons is issued that summons will allege that you 'did fail to show a valid ticket on demand' contrary to National Railway Byelaw 18.2 [2005].

 

A discounted travel ticket that is presented without a valid railcard authorising the traveller's claim of entitlement to that discount, is not a valid ticket.

 

If you were charged with 'intent to avoid a fare', which in my opinion is very unlikely, it would be a different matter and I would say that you have a defence, but you have the option of getting rid of all the risk in relation to strict liability right now.

 

Your call

Edited by Old-CodJA
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Just wanted to report all sorted by First Capital Connect Customer Services. They say payment was debited 13 Dec so they are not going to pursue the charge.

 

What a bunch of dull pedants there are on here. People post for advice and that's it. Get a grip!

 

For anyone who actually wants to sort out their issue with a penalty fare rather than be lectured by said loons, best to go direct to customer services who it appears can sort all the nonsense out post haste.

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Looking at other thread I've noticed the same angry little men (I assume it's men) posting rants at people who are just asking for advice. Why not go and commit a bit of road rage instead? You'll feel better, I assure you.

 

Thanks to those who bothered to give decent advice eg Bazza.

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Oh, and by the way Old Cod, I am currently off sick with a severe illness and have to take medication which leads to lapses of concentration, absent mindedness and fainting fits.

 

Although you will no doubt be horrified to hear that I am still doing some part time work from home where I can and check everything 10x for my clients. I have had no complaints in 10 years. A file of paperwork managed under specific conditions is very different from the administrative details of one's own life, which take a back seat where concentration and energy are in short supply. My work is for my clients and not you to make assumptions about and you don't know what the hell you are talking about, so stay out of it.

 

I saw no reason to mention that in my original post as it is hardly anyone's business but mine, although it might have been relevant in court later.

 

So stick that in your smugly judgemental craw. If you ever get ill (and we all do at some time) I hope that you find yourself able to maintain your obviously impeccable standards of... whatever, because no one's going to want to give an inch for such a bitter person. (You may be a total delight in real life but frankly, I doubt it).

Edited by morpheus2

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I really do remain amazed as to how the internet facilitates this bizarre level of judgemental superiority from people who clearly have no grounds for it whatever. I guess it is the a forum where sad little people can feel superior to everyone else and spit their bile anonymously.

 

I mean it when I say I think you'd feel better if you went out and actually talked to real people.Then if you still felt like insulting them gratuitously, at least you'd be doing it from a correct knowledge base.

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Please lets keep this Civil...there is little point in personal attacks.

 

Regards

 

Andy


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Please lets keep this Civil...there is little point in personal attacks.

 

Regards

 

Andy

 

 

Thanks Andy,

 

I agree we should always keep it civil, which is why I referred only to the relevant matters.

 

As you probably know, having spent most of the past 30 years in and out of courtrooms dealing with these issues and fiesty solicitors, such personal attacks are water off this old Drake's back.

 

Yes, I'm definitely male, unfortunately we cannot escape the fact that the OP's later flood of short posts did underline my point about prejudices.

 

Despite that, I'm genuinely glad it's sorted for her.

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Looking at other thread I've noticed the same angry little men (I assume it's men) posting rants at people who are just asking for advice. Why not go and commit a bit of road rage instead? You'll feel better, I assure you.

 

Thanks to those who bothered to give decent advice eg Bazza.

 

What little information I've gathered to be able to offer advice has been based on my own experience, Internet research, but primarily reading the postings of "industry experts" like Old-CodJA.

 

I've had people criticise my posts, too .... Usually when they haven't liked my answer, rather than them disagreeing as to its factual accuracy. I haven't seen where OCJA's post was inaccurate.

 

I'm glad it was resolved for the OP. If FCC had chosen instead to proceed with the strict liability offence it would have been hard to defend.

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It would appear there is a resolution in this case - I am therefore closing the thread.


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