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    • Hi I appealed online on 28/12/19. I have attached my submission as a further PDF   Thanks
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    • Thanks EB, I will catchup on the mentioned thread as I had used it before the hearing.   I went for hearing. Rep approached mentioning settlement, talking about them having a strong case to which I pointed out their bundle which they were going through that it says Excel here so aren't you here for the wrong company.   They mentioned sister companies, I mentioned companies house and then I said let's leave it to the judge they went away from me. The rep went into a room presumably to call their firm Elms Legal I think probably for advice.   We ended up being the last hearing before lunch, as the Usher called out our names and said the judge will call you in shortly. The rep came over saying something like I'm surprised you're going in without submitting a WS!   I said it has been served they said well I haven't seen it, when was it sent, do you have copies as I could get the Usher to copy, I said I may,  rep - you either do or you don't Take care of yourself.I said well we will have to put this in front of the judge now.   Inside the rep said to the judge about my WS not being served and they asked me on multiple occasions for the WS I said 5 minutes before coming in is not multiple occasions. The judge said they had my WS along with an index of papers I had sent in that they have been looking at.   The rep started with their page contract and terms and conditions picture in their bundle saying they have a valid contract and that in the Tariff /T&C picture it mentioned about entering into a contract with VCS.   The judge asked me what I made of that I argued where is the contract giving them, a 3rd party, authority from Excel to issue proceedings in their own rights? The judge said to the rep, Defendant not accepting this so we are not getting anywhere rep raised WS issue again saying they asked on multiple occasions, again I repeated what 5 minutes before coming in. I said I had Cert of Posting.   The rep mentioned about being given a few minutes to read it and I said I had a copy but the judge was saying it's near lunch and it will take too much time even though the rep said there is still 35 minutes left.   I said the WS was served see COP but the judge said they may have lost it etc so to send it again. I said the rep could have a copy now but the rep was like I couldn't take pictures of it and send back to my client as they only get things from them via email.   I said you could post it but the judge said the rep is saying they can't use post for whatever reason so if I could send it again. Case adjourned.   The rep asked about costs and judge said reserved and I asked about my loss of earnings and that I would have to get leave booked again. Reserved seemed to be the answer but the judge was apologising about being the last morning hearing and said he would make sure we were first next time and the rep asked for an hour instead of 45 minutes so judge asked me and I said ok.   The rep asked about the reason for adjourning to give to their client as they would have had to pay them to attend. Outside at the ushers desk the rep had spoken to the Usher to make a copy from mine (didn't accept it Infront of the judge) and also asked to see the COP and I obliged saying I deem this served now but the rep said you have an order/instruction from the judge to send to VCS. I regret giving them a copy thinking I should have said you will have it once I send it again to VCS. Whilst inside, the judge said as the hearing never started it wouldn't be infront of him again and also the rep said it would probably be someone else as she also wasn't the person named in their WS. As per POFA my understanding is one cannot be made to pay costs more than in the NTK. As it will now be a 2nd hearing, 2 days off work for me and 2 representations for them, will there be double AL for me to claim if I win or double expenses if they win?   There was supposed to  be 2 cases heard together but I only had WS for this one am I supposed to have asked for another WS? Will they be claiming the fee/expenses for both cases with one hearing yet I could only claim for the 2 days AL?   What do you make of what happened at the hearing from their rep, maybe they realised it won't be straightforward especially when it was a judge they were not aware of perhaps they conferred with their team about ways to handle aswell as ways to escape? Thanks      
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Son of Shoestring

Disrupted service 1st Capital Connect decline to pay my costs

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Hi,

 

Anyone with insight on the small claims court procedure and taking a train operator to court of breach of contract would be appreciated.

 

I bought two single tickets to London to attend an 02 concert I had booked months earlier. We set off on our journey in plenty of time to arrive at the 02, have a meal and attend the concert. After one stop, the service was suspended due to overhead wire problems.

 

We waited and waited and eventually were told a bus was being put on to take us further down the line where trains were still running. By now time was becoming tight and I decided that waiting for the buses (during school bus times) would likely place us jeopardy to reach the 02 in time for the concert, and took a taxi to the downline station.

 

We waited there for 30 mins with a sign indicvating that a train was due to arrive in 2 or 3 minutes. No trains arrived and the electronic signage simply rolled-over the 2 or 3 minute arrival time in every instance. I was eventually told by another passenger that this is programmed into the system (rolling over the arrival time of trains). After half an hour, an announcement came on the tannoy that all services were suspended.

 

Now frantic, I chose to take a taxi to London King's Cross. It seemed to take for ever. We arrived at KC at 19:00 (having arrived at the original departure station at 15:30). I then jumped in another taxi for the 02 and arrived at 19:45 - after 4.25 hours of continuous journey (bar the waiting time at the various stations). We made the Concert in time. Just.

 

The next day I wrote to Ist Capital Connect to claim a refund of my train fares (approx £50) and the taxi fares (I kept the receipts) of over £200. I also stated in that first letter that I didn't want a travel voucher but cash for the tickets.

 

1st Cap Connect wrote apologizing and enclosed two complimentary 1st Class tickets, not cash, and refused to pay the taxi fares as they had not agreed to them. I replied saying that I hadn't traveleed on the railways for years prior to this journey and in view of my what happened didn't intend to repeat the experience - and could I please have a cash refund for the tickets. I also noted that under the Supply of Goods and Services Act 1982, and I entitled to claim exemplary costs to put right any breach of contract I suffer.

 

The letters have gone backwards and forwards and the latest is that they have re-offered to return the complimentary rail tickets, but not to pay in cash or cover the cost of the taxis.

 

My only choice now is to commence small claims court action. I will do this, but would appreciate any insights and advice anyone here can provide that assist my court case.

 

Many thanks.

 

SoS

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You should send in a final claim headed 'Letter Before Action' and give them one final chance to compensate you. Give them a time limit by which they must respond and say that if you haven't had a satisfactory settlement by then you will commence action without further notice.

 

You can make your claim on line - https://www.moneyclaim.gov.uk/web/mcol/welcome

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You have NIL chance of winning anything from FCC in court.

 

This is what travel insurance is for.

 

The contract you enter into is to get you from A to B, at some point, and by some means.

 

If you arrive late, you can claim at least 20% of the ticket price back, as long as the reason for delay/cancellation is within their control. This is payable in rail travel vouchers.

 

Unless you hold a reservation no guarantee is made to accommodate you on a service.

 

If the train had arrived on time, but had been full, so you couldn't get on and missed your concert, you surely wouldn't be suing a train company, would you?!

 

You were entitled to an immediate refund of your travel fare if you decide not to travel - but that is their maximum liability to you. If you applied for a refund at a later date, a £10 administration charge is payable, (per transaction). The two first class tickets are probably better than what the rail travel vouchers would have been worth, but you can ask for the small amount of vouchers instead.

 

Consequential Loss is not their problem, you need travel insurance.

 

When you purchase a ticket, you agree unreservedly to the National Rail Conditions of Carriage.

 

Condition 42

 

This Condition 42 sets out the entire liability of the relevant Train Companies in

relation to delays, cancellations and poor service. Except as shown

in this Condition 42, the Train Companies do not accept liability for any

loss (including consequential loss) caused by the delay and/or cancellation of any

train. [...]

 

That condition basically means you can claim 20% of a single ticket, or 10% of a return ticket in compensation, in rail travel vouchers.

Edited by firstclassx

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I wouldn't let that put me off, a small claim will cost about £40 so not a lot to lose but a lot, especially pride, to win.

 

They have offered her absolutely nothing, any train used would be going wherever it's going anyway, so a couple of passengers will cost nothing. Another typical rip off company, smarmy and slimy.

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I wouldn't let that put me off, a small claim will cost about £40 so not a lot to lose but a lot, especially pride, to win.

 

They have offered her absolutely nothing, any train used would be going wherever it's going anyway, so a couple of passengers will cost nothing. Another typical rip off company, smarmy and slimy.

 

They've given her 2 first class passes for anywhere on their network!

If we assume a typical FCC journey like Cambridge to London, a first class day return is £60!

 

The longest journey, Kings Lynn to Brighton is £106.80 for 1 x First class return, so I think the passes do hold quite a good value.

 

The OP needed travel insurance, an optional extra, which they chose not to buy, and ended up taking the risk and footing the bill.

 

Could have been a suicide/trespass/fire etc outside the railway's control anyway, in which case, it is fortunate they got the 1st class passes.

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Optional insurance - another rip off, just like car warranties and ppi.

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This is something that has been tested before and the TOC's have never lost, but for the life of me cant actually find a link to an incident! As pointed out the NRCoC covers situations like this and if it were overhead line problems then this isn't down to the TOC most of the time unles it was a faulty train that brought the wires down.


Views expressed in this forum by me are my own personal opinion and you take it on face value! I make any comments to the best of my knowledge but you take my advice at your own risk.

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This is something that has been tested before and the TOC's have never lost, but for the life of me cant actually find a link to an incident! As pointed out the NRCoC covers situations like this and if it were overhead line problems then this isn't down to the TOC most of the time unles it was a faulty train that brought the wires down.

 

It is well tested, but I cannot find any case law.

 

Most business type people threaten to sue for their "loss of earnings" etc, but either:

 

1) They realise they are on a hiding to nowhere;

2) The ones that do sue are told by a judge that they are on a hiding to nowhere;

 

...and as a result, appellate courts do not get any appeals... so LexisLibary etc does not record the cases.

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Yea, a one sided contract. they get all the perks and the customer gets none.

 

I do see the point if it's not of their making, just to make that clear. :)

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In this instance, the overhead wire is part of the rail infrastructure and therefore owned by Network Rail. However, something tells me that if you write to NR, they'd only refer you to the TOC.

 

As some banks offer travel insurance, I wonder rail travel is included as part of this?


Still on the lookout for buried treasure!

 

Any advice I give here is based on my own experiences throughout my life, career and training and should not be taken as accurate. If in doubt, speak to someone more qualified - a Solicitor, Citizens Advice to name but two possible avenues!

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Thanks everyone for your viewpoints.

 

First Cap Connect have stated there was a "major overhead line issue" and that "Network Rail were unable to repair the damage quickly".

 

The whole point of the Supply of Goods and Services Act 1982 is, surely, to account for breaches in a contract - i.e., the TOC are subservient to this legislation? And this Act very clearly states that consequential losses can be claimed where a breach of contract has occurred. The Act also states that a contract for a service that is not rendered to a satisfactory level is actionable.

 

Additionally, the train operator have accepted responsibility, hence the travel voucher. But the voucher is of no more use to me than a free haircut to a bald man. I simply don't use the trains. The 02 event I'm speaking about was a one-off. Am I supposed to grow hair in order to take advantage of their offer? In other words their proposed settlement offer in no way satisfies me.

 

I am quite willing to go to court over this because put simply, I paid for a service that wasn't delivered and because of that costs were incurred. I can't see why rail operators should be treated differently to any other service provider - say the Post Office, or a Gas fitter etc., who have not provided the service they were paid for and therefore cost the contracting party to put things right.

 

Or are you all saying that rail operators are above the law of the land?

 

Thoughts please?

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The only reason there was a (claimed) major failure would have been through lack of maintenance. All problems could be avoided if they put as big an effort into preventative maintenance as the big (we've ripped them off again), smile on their faces when they impose a ten times inflation price increases on the public.

 

They are not and never have been a service company. The whole system is geared up to make money and not to provide a transport system, the highest price increases allowed and the lowest investment they can get away with so they come out the other end with huge bonuses and can retire to laugh at the UK way of doing business and the public mugs that allow them to get away with it.

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I don't really think we should be advising people to make small claims on the off-chance they may win, in cases like this it could be feasible that the other side could legitimately ask for costs even on a small claim, or for example go for summary judgement where costs ARE recoverable.

 

As suggested above, I don't think the OP has any hope in hell of recovering the costs, for starters £200 is far in excess of what a cab would charge to go from Kings X to O2, even if costs would be payable you are under a duty to mitigate your losses, a quick look at the TfL website tells me that the journey from Kings X to O2 would only take 26min by public transport, I very much doubt whether the cab you took was quicker than that., it would appear you claim it took 45 mins. The tube cost would be about £2.50 each, a cost which the OP would surely have had to pay anyway !

 

Whilst it would make interesting reading, I seriously doubt the OP would be able to successfully argue in his/her favour especially as the TOC contract would seem pretty clear.

 

Andy

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The taxi costs covered three different journeys - the last one being KC to 02 (45 mins in busy London). The rest was expended getting to KC in the first place (3 hours). Public transport was severely congested due to the overhead lines issue. This was the big pre-Christmas event that hit the news at the time. I'm happy yo argue the need.

 

I'm also content to proceed via the courts and already know that there is a maximum amount of several hundred pounds that I could possibly incur if the verdict goes against me. But I feel very strongly that the train operator are being smug by avoiding their responsibility to refund the cost of the ticket in cash. Again, I repeat that their TOC are subservient to the law itself.

 

What I am hoping for is that there is a legal brain present who can provide insight and advice on how best to proceed.

Edited by honeybee13

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The OP has already decided on a small claim, but then

My only choice now is to commence small claims court action. I will do this, but would appreciate any insights and advice anyone here can provide that assist my court case.
obviously needs to be responded to and Andy knows more about these things than I do.

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Well..my advice would be not too bother, you would be claiming damages for a breach of contract and this is not an easy area of law, I have dabbled with it myself (suing my landlord/freeholder for beach of contract) and I found it very nerve racking and very complex, as the case progressed I learnt more, amended my POC (which itself can carry costs risks), and it was settled out of court.

 

The points you have to prove are firstly that there was a breach of contract, I think you will find this very hard considering the points made by Firstclassx above, secondly that the ticket you bought is an obligation to take you from point A to B, not an obligiation to take you to point A to B within a certain time (except for the delay compensation that applies and you have already been paid)..it does not cover further unauthorised costs (it is possible to cover costs for cabs, etc..but this must be agreed first).

 

The cost you are claiming appear excessive, as Ive pointed out a trip to O2 from Kings X would take 26 mins by Tube/DLR and cost approx. £2.50/£2.80 if using Oyster or £4.50 if no Oyster, either way it would be quicker/cheaper to take tube, you didn't do this and failed to mitigate your loses.

 

Whilst costs are generally limited in small claims, they can rise, you could be liable for your costs, court fees, costs for other sides time off work (capped at £90), costs of their travel and even perhaps a hotel. Then of course the Judge could order you pay all costs (perhaps thousands) in certain circumstances, Summary Judgment is an obvious example (in this scenario, they apply for SJ, Judge decides you realistically have no case and you will be liable for all costs (as at this stage it is pre-allocation so small claims rules don't apply)).

 

Other advice would be to make sure you read, follow and understand all the CPR and the accompanying PD (Practise Directions).

 

Andy

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Obviously it's up to the OP whether they decide to continue with this and good luck if they do but my own personal opinion is you're onto a loser, the "Contract" in this case is the NRCoC, the TOC are contracturaly obliged to get you from point A to point B as stated on your ticket which is effectively your contract of travel, they do not have to convey you in any time scale or by any particular means of transport.


Views expressed in this forum by me are my own personal opinion and you take it on face value! I make any comments to the best of my knowledge but you take my advice at your own risk.

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I appreciate all your thoughts.

 

I'm going to consult with a Commercial Contract lawyer and see what is advised.

 

I'm a stubborn bugger.

 

What I do know is that traders/corporations can write anything in a contract (TOC), but if it is contrary to English law it won't stand.

 

---

 

RPI, concerning your point that the train operator doesn't have to convey me "in any time scale or by any particular means", I respectfully disagree.

 

They are bound to carry out their obligations within a "reasonable" time and in a reasonable manner. For example, they can't offer to transport me 50 miles in a pram on a Winter's day 25 years after I've bought the ticket.

 

It is for the Judge to decide what is "reasonable" and that will judgement will largely depend on the arguments presented. The train operator is, after all, a train operator - not a donkey ride on Blackpool beach.

 

I don't think anyone here has actually read the Supply of Goods and Services Act 1982. It is quite clear and also a quite strong consumer law that follows on from the Sale of Goods Act 1979. The latter is a very virile law - but many people don't use it for various reasons. This has led to a very large degree, that traders/corporations now act in an unlawful and disgraceful manner as a matter of course - and regularly seek to deny the legal rights of their customers. If you let them.

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If you could define "Reasonable" then you would be very rich, good luck to you in your quest and let us know how you get on so that it may help other people in the same situation in future :-)


Views expressed in this forum by me are my own personal opinion and you take it on face value! I make any comments to the best of my knowledge but you take my advice at your own risk.

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I really don't understand why you think you'll win this case. You've been offered first class tickets, which you refused. You weren't forced to take a taxi. You had the choice of public transport.

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The train operator is, after all, a train operator - not a donkey ride on Blackpool beach.

 

Are you sure about that :)

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There is as big difference btween being stubborn and just plain foolish, First classx and RPI are the 'experts' here, both working I blieve for TOC's, yes, its true staute law would indeed overide any contractula provisions but you have failed to point out what part of the SOGA would overide the provisions of the TOC contract, you canmt just go to court' hoping for tye best you really will need to point to specific law and indeed any case law (I'm unaware of any case law but I suspect there may be some and not min your favour).

 

A specilaist lawyer may indeed be able to help but as they would charge at least £200 per hour (and this cost would not be recoverable) I fail to see how this would help given the relaitively low cost involved.

 

Andy

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You will end up with a massive bill, especially when FCC refer the matter to the DfT/ORR (who regulate and approved the current NRCoC).

 

ATOC, who represents ALL of the TOCs in Great Britain will fund a strong defence to the tune of many millions of pounds, purely because, if your case was to win, it would open the floodgates to all sorts of consequential loss claims. The government will support the Train Operating Companies.

 

If your case was likely to be successful, do you not think that the barristers, solicitors and bankers paying £10,000 a year for their first class seasons into London, would have tried to claim for consequential loss every time they are delayed??

 

If you did not like the NRCoC terms and conditions, you should not have opted to buy a ticket and agree to those terms, (including their maximum liability to you).

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Can I ask the OP if he/she reported his/her plight to a member of train staff at the first sign of a problem? Or perhaps upon arrival at the 'station further down the line'? Or did the OP take it upon him/herself to order taxis?

 

If not, i doubt very much that a claim for the reimbursement of the taxi fares will be successfull. IMHO you havn't given the train operator an opportunity to arrange alternative transport for you. They could argue that they could of arranged a taxi for a lot less in cost than what you actually paid. Most TC's have arrangements with local taxi companies for such events. Train operators (like any other organisation) are allowed to mitigate their costs when things go wrong.

 

Unless you did approach the train company on the day to ask them to get you to the O2 as per expected arrival time, I think you should accept what they have offered you. I think you will find this will be the advice a Commercial Contract lawyer will give.


Please Note

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

I would always urge to seek face to face professional advice for clarification prior to taking any action.

 

Please click my reputation 'star' button at the bottom of my profile window on the left if you found my advice useful.

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I really don't understand why you think you'll win this case. You've been offered first class tickets, which you refused. You weren't forced to take a taxi. You had the choice of public transport.

 

There is as big difference btween being stubborn and just plain foolish, First classx and RPI are the 'experts' here, both working I blieve for TOC's, yes, its true staute law would indeed overide any contractula provisions but you have failed to point out what part of the SOGA would overide the provisions of the TOC contract, you canmt just go to court' hoping for tye best you really will need to point to specific law and indeed any case law (I'm unaware of any case law but I suspect there may be some and not min your favour).

 

A specilaist lawyer may indeed be able to help but as they would charge at least £200 per hour (and this cost would not be recoverable) I fail to see how this would help given the relaitively low cost involved.

 

Andy

 

I agree, furthermore, you were not the only traveller delayed, FCC will point to whatever arrangements were put in place and used by others in a similar position

 

The TOC have acknowledged their liability, which was to convey you from A to B in return for the fare paid, have apologised and provided recompense.

 

Andy is spot-on, being 'bloody-minded' about it isn't going to help I'm afraid

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