Consequential Losses

[whole diary]

[TaplowGreen]

Transport Focus offers their view - which is a tad different to what you are expecting

The new right could be applied to areas which are currently not covered by the industry’s compensation arrangements. For example, a failure to provide advertised catering arrangements, or reserved seating intended to enable a family or group of friends to sit together, or a failure to warn an intending passenger of longer journeys because of planned engineering works or comfort issues. Claims for consequential losses such as missing a flight would still need to pursued through the courts unless agreement can be reached.
Passengers making a claim of this kind can refer to the Act. However, if they are making a complaint and seeking redress that goes beyond that set out in a Delay Repay scheme or beyond what a train company may have offered in an individual case passengers are going to have to take the train company to court to obtain compensation, as opposed to the relatively simple current arrangements which are dealt with by train companies on a ‘no fault’ basis.

Passengers will generally need to show one of two things. Did the train company (or, for example, Network Rail) provide the service with reasonable care and skill? Did the train company mislead them in some way - was information that they relied on incorrect? In many cases this might be very difficult or impossible to prove.
There are also practicalities that apply to all legal claims. The passenger will have to draft a claim which is legally sound and pay fees to get it issued, and further fees if there is to be a court hearing. Even though virtually all such cases would be dealt with by the less formal Small Claims Procedure we do not think that this will be an easy or user-friendly system, and the fees involved will be beyond the price of many tickets. The passenger will also have to persuade the court that the loss suffered can be quantified (and the fees charged by the court will vary according to the amount claimed).
Part of the package of wider consumer rights includes a cheaper form of legal redress, known as Alternative Dispute Resolution (ADR). This is designed to avoid the need to go to court. Currently ADR is not in use on the railway, but we continue to press for the introduction of a binding dispute resolution system.
Claims that involve novel or substantive legal issues might also be deemed unfit for the relatively fast track Small Claims procedure. They might then be referred to the main County Court system with its attendant fees and the risk that costs might be awarded against an unsuccessful party. Quite a deterrent.
The train companies could also seek to show that their Delay Repay schemes are an adequate compensation method in a mass transport, heavily Government funded and regulated environment. The rail industry Delay Repay schemes go well beyond anything seen in other transport sectors such as aviation. They also go beyond the Act in one important aspect – they offer compensation irrespective of the cause of the delay, you do not have to prove that there was fault (that is, a lack of care and skill).
So, a claim may have to be relatively large or a claimant very determined to mount a successful claim.

The real effect?
Perhaps the most likely effect is a far more subtle one. Strengthening and broadening rail passengers’ rights is welcome. This will focus more attention on the consistent delivery of the basics of train services such as length of trains and information.
Train companies and others are likely to pay far more attention to their written material to make sure what they are promising is clear and deliverable. We will probably see statements on timetables and in other places about the endeavours that will be made to provide the service, but that any disclaimers do not affect passengers’ statutory rights.
Train companies will probably issue stricter guidance to staff about what information to give passengers. It will be even more important, for example, to tell passengers that a bus replacement service is in operation, catering or Wi-Fi is not available or a connecting journey only has First Class for part of the way. If you can argue that you would not have bought the ticket if you had known that in advance then you may have a case. Similarly, if a cheaper ticket was not available on a ticket vending machine or if booked assistance does not materialise could this constitute lack of care and skill?
Complaints procedures might well be given more attention to make sure they provide better explanations to passengers as to why things went wrong. We are already looking at the advice we give passengers (and publish) to see if there is anything we need to tighten up in the light of the new Act. We will start to build up a bank of good practice and procedure. There will probably be more focus on complying with regulatory codes of practice.
Transport Focus, through its complaint handling work, will monitor and report on how the new Act works in practice. Joint working with the Office of Rail and Road will help ensure that existing complaints handling procedures are adhered to and improved.
Once the promised 15 minute Delay Repay trigger is in place we will closely watch its effect. Above all we will continue to press train companies to advertise the fact passengers can claim compensation and monitor and report on take up.
Conclusion
So, does the Act bring about a revolution in rail passenger rights? No, it perhaps modernises them and brings them into line with other consumer sectors. However, it does shine a welcome light on compensation schemes and complaints and helps to remove any temptation to hide behind the ‘small print’. In addition, and perhaps most importantly, it adds more incentive to provide what has been promised to passengers.

My emphasis

To be clear, and as Which have pointed out, this is not a "new" right, it is one that has existed since 1st October 2016, however the TOCs^▸ (Train Operating Company) have chosen to mislead their customers since then - now the NRCoT will better reflect the law of the land.

[Fourbee]

To be clear, and as Which have pointed out, this is not a "new" right, it is one that has existed since 1st October 2016, however the TOCs^▸ (Train Operating Company) have chosen to mislead their customers since then - now the NRCoT will better reflect the law of the land.

I'd like to see the NRCoT rewritten starting from a blank piece of paper, removing all the superfluous waffle and adding a dose of clarity to half the bilge it touts.

[ChrisB]

Still being recruited by Transport Focus.....

[grahame]

I'd like to see the NRCoT rewritten starting from a blank piece of paper, removing all the superfluous waffle and adding a dose of clarity to half the bilge it touts.

I thought that was the idea when the NRCoC^▸ (National Rail Conditions of Carriage) turned into the NRCoT ...

[JayMac]

Still being recruited by Transport Focus.....

Who is?

[ChrisB]

How does the new rail Ombudsman come into this, if at all?

[martyjon]

How does the new rail Ombudsman come into this, if at all?

With all bark and no bite, probably

[didcotdean]

Things haven't really moved on from the situation within the discussion in this thread.

References to the phrase consequential loss should have already been removed because they have the potential to deter a consumer from seeking redress when it should be available. However, this is because the term 'consequential loss' is not clearly understood by the general public, not that it may be unreasonable in principle to exclude loss that is too remote from the contract.

The CMA considers it reasonable to explicitly exclude 'losses that were not foreseeable to both parties when the contract was formed', so I would be somewhat surprised if terms of this kind are not introduced in replacement for blanket 'consequential loss'.

As Transport Focus indicated, some test cases will undoubtedly occur to try to define the boundaries.

[TaplowGreen]

Interesting......

https://www.bbc.co.uk/news/amp/uk-england-suffolk-43310621?__twitter_impression=true

[grahame]

Interesting......

https://www.bbc.co.uk/news/amp/uk-england-suffolk-43310621?__twitter_impression=true

From that article

A commuter fed up with "continually" delayed trains has won a legal bid for compensation against the rail company.

Seph Pochin, of Halesworth, Suffolk, had described the service between his home and Ipswich as "woeful", with one train delayed by 100 minutes.

A warrant has now been issued for bailiffs to seize Greater Anglia (GA^▸ (Greater Anglia)) property after it failed to pay him £350 compensation.

No doubt customers and customer groups are getting more likely to go to law and challenge the train operators.

[TaplowGreen]

Interesting......

https://www.bbc.co.uk/news/amp/uk-england-suffolk-43310621?__twitter_impression=true

From that article

A commuter fed up with "continually" delayed trains has won a legal bid for compensation against the rail company.

Seph Pochin, of Halesworth, Suffolk, had described the service between his home and Ipswich as "woeful", with one train delayed by 100 minutes.

A warrant has now been issued for bailiffs to seize Greater Anglia (GA^▸ (Greater Anglia)) property after it failed to pay him £350 compensation.

No doubt customers and customer groups are getting more likely to go to law and challenge the train operators.

I suspect Customers on the Cotswold Line will find it particularly interesting.

[IndustryInsider]

Might be a bit counterproductive if the bailiffs seize certain items.  Station benches, customer information screens, trains, etc... 

[JayMac]

They can only seize assets that belong to the operator. That rules out all station fittings and, in FirstGroup's case, nearly all the trains it operates.

[ray951]

Might be a bit counterproductive if the bailiffs seize certain items.  Station benches, customer information screens, trains, etc... 

Won't most of those items be leased and not owned by the TOC^▸ (Train Operating Company)? Trains are generally leased, NR^» (Network Rail - home page) own the stations, vehicles are probably leased.
A TOC may pay for benches, CIS^▸ (Customer Information System), fare machines but when the franchise ends these generally pass to the next franchisee so not clear who 'owns' them.
If you want to sieze items for non-payment then probably best go to the TOC's head office and take a few chairs, computers, coffee machines, etc.

[IndustryInsider]

They can only seize assets that belong to the operator. That rules out all station fittings and, in FirstGroup's case, nearly all the trains it operates.

Won't most of those items be leased and not owned by the TOC^▸ (Train Operating Company)? Trains are generally leased, NR^» (Network Rail - home page) own the stations, vehicles are probably leased.
A TOC may pay for benches, CIS^▸ (Customer Information System), fare machines but when the franchise ends these generally pass to the next franchisee so not clear who 'owns' them.
If you want to sieze items for non-payment then probably best go to the TOC's head office and take a few chairs, computers, coffee machines, etc.

I wasn't being particularly serious.  It would have to be a pretty sizeable warrant that a train might be considered for seizure