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Monday essay: Thank you minister – up to a point

Passengers who bought Advance tickets have been angered by the refusal of train operators to recompense them when they could not travel as a result of a lockdown. The government, which controls the policy on this, has now given way and says that unused Advance tickets can be rebooked for up to a year ahead, without the usual administration fee. But Sim Harris suggests that this concession does not go far enough.

UNTIL now, an unused Advance ticket was worthless once the date of travel had passed. If you could see problems ahead you could usually rebook before the day of travel, but only by paying an administration fee for the privilege.

The government has now heeded the protests, and says that Advance ticket holders who have to stay at home during a lockdown when they had intended to travel can now rebook up to a year ahead without paying a fee, or claim rail travel vouchers or ‘credit notes’ (whatever they may be).

But transport secretary Grant Shapps has declined to go the whole distance, because you still can’t claim a simple cash refund. This seems odd.

When you buy a ticket to travel, you are entering into a contract with the operator. You agree to pay the fare, and the railway company agrees to carry you between A and B – the places named on your ticket. Plainly, if that ticket is valid on a specific date, then that is the day on which both parties are bound to perform their respective parts of the contract. If the ticket says you must occupy a specific seat on a specific train, then there you must sit. It is a further condition of the contract.

Now along comes Covid, and travel on that date is no longer allowed, unless your journey is ‘essential’, which rules out that weekend you had been planning with your auntie Mildred.

The contract, in legalise, could be described as having been ‘frustrated’ by external factors, sometimes described as ‘force majeure’. But whether you can claim force majeure, at least under English or Scots law, depends on whether there is an appropriate condition in the contract which provides for it. (We should note here that ‘force majeure’ has no technical legal meaning in Scots or English law, according to lawyers Pinsent Masons. Forget that one, then.)

As you might guess, the National Rail Conditions of Carriage don’t mention force majeure, but Section 8 of the specific terms and conditions covering Advance tickets says (in part): ‘if the train you purchased a ticket for is cancelled or delayed and as a result you decide not to travel a refund will be offered on completely unused tickets and you will not be charged an administration fee’.

The problem with that, of course, is that although you were forbidden to travel because your journey was not ‘essential’, the wretched train ran on time anyway, with your (empty) seat on it.

All in all, it appears that Grant Shapps has done something helpful but not, arguably, helpful enough.

He could have allowed cash refunds, he could have made the concession retrospective (it is not clear how far it goes back) and, while we are at it, he could have done something for Railcard holders, who may have trustingly paid their £30 at the start of the year but very soon could not travel.

Meanwhile, rebooking your journey for a date in 2021 is not watertight either, considering that no one knows when lockdowns will end. How about a nice walk instead?

The next print edition of Railnews, RN285, will be published on 5 November. The new edition and some previous issues can be obtained by calling 01438 281200 from UK numbers or +44 1438 281200 internationally, and selecting Option 2.

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