14 September 2010

South West Trains Taking Money Under False Pretences?

There follows a peculiar tale from the Daily Echo under the title,

Couple fined £114 for getting off South West Train too early at Eastleigh

Which says, " A HAMPSHIRE couple were fined more than £100 – for getting off a too train early.

Emma Clark and her fiancé Davyd Winter-Bates were travelling back from London to Southampton when they decided to hop off two stops earlier at Eastleigh.

When they handed over their tickets they were shocked to be told they had breached railway rules and were ordered to pay a fine of £114 – double the price of two standard fares.

[....]

"A South West Trains spokesman said: "[...]. All tickets on the UK rail network have specific terms and conditions and customers should check that they are purchasing the right ticket for their journey. It is a specific condition of all advance purchase tickets [...] that leaving the train at an intermediate station is not permitted. [...]

"In this case, the customers bought a discount ticket on the megatrain.com website that did not allow them to travel from London to Eastleigh. The customers would have known this as the website they used to book the ticket does not offer Eastleigh as a destination. Unfortunately, by breaking the conditions of travel, this meant they had an additional charge to pay. This would have been the case in a similar situation anywhere on the UK rail network."

The first question to ask is whether or not the terms of the contract that the spokesman for South West Trains discussed are incorporated into the contract: if they have been incorporated into the contract there isn't anything else to discuss. However, there are a number of cases that point out that if you are trying to incorporate onerous terms into a contract you must draw the attention of the other party to these onerous terms.

One of these cases is Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433. Although terms in contracts can be incorporated by notice, there must be sufficient notice for this to happen. Further, the more onerous the term, the greater the sufficieny of notice required for incorporation. Then there is the Unfair Contract Terms Act 1977 which has a reasonableness test - do you think that what happened to the couple was reasonable?

Another point is that penalty clauses are not enforced under English law if their purpose is to punish the party in breach, rather than to provide compensation.

I wonder how many people have been charged by these train companies? And, I wonder when someone is going to challenge them?

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