Great Western Coffee Shop

From Consumer Action Group (http://www.consumeractiongroup.co.uk/forum/showthread.php?435809-FGW-and-Megabus-refusing-to-help-a-stranded-teen-**RESOLVED**)

A teenager was travelling from Truro - Plymouth to catch a Megabus service to London Victoria and then a train back to Bracknell from there.

The FGW service in the case point was 30 minutes late and she missed the connection. Thus returned to Truro and with the help of her accommodators contacted FGW and Megabus executive departments to seek redress.

Megabus refused to transfer a ticket to a coach the next day citing less than 24 hours notice. FGW refused initially to help citing they were not liable for consequential losses. Forum members suggested that this Term and Condition within the contractual agreement is:


Now this is incredibly interesting. I had often wondered about the fairness of consequential losses. I cannot count on 2 hands the amount of time I have lost out financially because the railway has run late due to circumstances within the control of the industry.

I am talking in this case about missing flights, hotel bookings, buses, ferries etc. I've missed them all in my lifetime because of late, cancelled and even early running trains. I think in future the next time FGW cause me a ^10 taxi fare in Southend because I've missed the last bus. FGW may very well be getting the bill and my GPS history to prove exactly how late I was.

All in all a very interesting dispute and I am also impressed with Mark Hopwood's response on a weekend to this.

I see no issue with a contract term specifying that consequential loss will not be covered as long as it is explained in plain language - as it is in the National Rail Conditions of Carriage and TOC's Passenger Charters. I'd take with a pinch of salt random comments on a forum that have no link to legislation or case law that would prove that the NRCoC are wrong in law on the point of consequential loss.

Such a term has been in the NRCoC for as long as I can remember. If it has been successfully challenged as an Unfair Term in Consumer Contracts it would have been removed by now.

That FGW compensated the person in the circumstances is nothing to do with their legal position. It was just a gesture of goodwill.

What FGW did was to offer a free journey, so it didn't actually cost them anything. It would be a very dangerous precedent to set to start paying consequential loss in that sort of situation, particularly after a relatively short delay. Could cost the railway industry a fortune, and not something I would be in favour of, as I know where the cost would ultimately end up.

It is well known a lot of T&Cs for various companies contracts wouldn't stand up as a fair term in court, however very few people have the financial ability to challenge a big company's contract terms through courts so they get away with it.

I don't know how consequential losses stand, but know of several examples used by large companies that would be ripped apart in court.

Could we have some examples of these terms used by large companies that would be ripped apart in court?

I can't remember specific examples at the moment.

However the most well known ones are often found in car parking contracts.

"Xxx accepts no responsibility for damage or loss to property"

Xxx as the owner/operator is responsible for certain damage or loss to property, in certain circumstances, so deemed an unfair contract term.

"Failure to comply to the terms of this car park may result in a parking charge notice of ^xx". The car park terms are a contract, however the PCN in most free car parks would be dismissed in court if challenged correctly, as a PCN value can only be for the loss caused to the car park operator which is almost certainly zero in a free car park.

There are many other examples I don't remember exact details at the moment.

Ah well, if we're talking private car parks then I'm in agreement that their 'contracts' are rarely worth the signs they are written on. However, in nearly all cases it is the operator taking the consumer/customer to court, not the other way around. It can be a lottery defending against a private parking company's small claim and motorists have lost on the same points that other motorists have won on. Small claims track cases do not set legal precedence and they need only be judged on balance of probabilities, not beyond reasonable doubt. Persuasive arguments can be made by using previous cases, but equally, a judge may dismiss details of previous cases and merely judge on the evidence and statements in front of him from the claimant and defendant.

You were initially talking about consumers challenging large companies on their T&Cs in court, rather than a company taking a consumer to court for breaking T&Cs. Saying, "It is well known a lot of T&Cs for various companies contracts wouldn't stand up as a fair term in court, however very few people have the financial ability to challenge a big company's contract terms through courts so they get away with it."

If that's the case then consumers have the right to challenge what they believe to be an unfair term, if it has financially disadvantaged them, in court on the small claims track.

Conflating what large companies do with what private parking companies do isn't really comparable.

(https://lh3.googleusercontent.com/j7F6KIkny0SF4jRneYXZGt72pZiHQGLgkYAFMSa3p3B5=w983-h553-no)

(https://lh6.googleusercontent.com/-dqeMgvWVt90/VG0oHBcDWpI/AAAAAAAAmoY/HDnNNRSRaQk/w311-h553-no/20141119_233033.jpg)

So if you don't pay within 14 Days, you incur a further ^60 Penalty which is effectively a penalty increase of 300%

In addition to that, if you pay by Debit or Credit Card, you incur a further fees for the privilage. Do I pay 1.96% if I buy a McDonalds Latte on my Barclaycard? ::)

In such cases if someone was tempted to pay the fine, I would be advising a cheque in the post. When this is rejected this can also be seen a refusing payment for a debt (albeit a speculative invoice)

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Those ^12 Late Payment / Overlimit charges on credit cards are also completely unenforceable. I N1'd CapitalOne for ^300 worth including Compound (APR rate of the credit card) and Annual Interest which more than doubled what they charged originally. They settled out of court. This was after their executive office refused following a letter of complaint and a Letter Before Action.

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I am in 2 minds about this and I was when I first posted it. I agree with John R that effectively this cost FGW nothing. It is a good publicity stunt but could also be an own goal at the same time. Some how I don't see FGW covering for a missed flight if their train was 2 hours late! Customer should have allowed sufficient time. How long is sufficient time though? 1 Hour, 2 Hours? 6 Hours?

But I also agree with richwarwicker that many big companies have terms and conditions that are unfair and challenge-able. Many however do not have legal knowledge, financial methods or the 'effort' to challenge them. His example of PPC's is a classic as per my photos and examples above.

Another example is your bank charging you penalty fees for going overdrawn when they caused you to go overdrawn through one of their own charges in the first place. An example being their Overdraft Charges forcing you into an Unauthorised Overdraft and then charging you even more so.

I'll see if I can find some other examples over time :)

BNM how does your bank charge example work?

Lloyds charged me ^25 for a failed DD, and then charged ^10 a day because that ^25 pushed me into unauthorised overdraft. I was out of the country and ran up 9 days worth of ^10 charges. (the DD failed for being 45p short as I transferred in from my saver account the value of all transactions whilst I was away, but my phone bill went over my expectation by 55p, my linked lloyds saver had several thousand in as we were saving for our wedding) That was about 3-4 years ago and the amounts are still outstanding as Out of principle we then put all the money into wife's santander account. They've charged a considerable amount of interest since!

...and hopefully not destroyed your credit report.  I would expect Lloyds would have black-marks galore over it now.

I recall an incident a few years ago when working as a Duty Manager at Reading. There was serious disruption (its not a new thing), and as we packed a lot of very late people onto a train for Newbury, one businessman said to me: "I'm 40 minutes late for an appointment at which I was going to close a contract for ^10m. Are you going to compensate me?"

To which I replied "I'm sorry sir, but we don't do consequential loss. Oh, and by the way, when I was a salesman, I would always make sure I got there an hour early if I was intending to close a deal." The doors closed and I never saw him again.

But seriously, ^10m consequential loss for a 40 minute delay on a ^10 train ticket. Imagine the can of worms..............

I haven't given any bank charge examples.  :-\

I'd prefer it if we kept this thread on topic about consequential loss. Others have widened the debate to include private parking contracts, bank charges... different beasts.

Sorry it was trout I was replying to. The others are all examples where unfair contract terms have been challenged successfully. I'd be pretty certain consequential loss could be successfully challenged in the same way if someone had the time, effort and finances to challenge it as an unfair contract term.
However I would only expect a challenge against the contract term to be successful if FGW were the cause of the delay.
If an organisation causes a loss to someone through their actions, regardless of contract those losses could be claimed back. It may become too costly to be worth bothering though unless a large consortium of people join together to serve a claim.
However if a external factor (network rail, weather, a trespasser etc) was the cause then a claim for consequential losses would likely to be unsuccessful against a FGW At least.

Consequential loss has been in the NRCoC for years. I find the lack of any legal cases against the term telling. Challenging an unfair term (not that I see this as being one) doesn't take massive finances. Small claims track isn't expensive.

richwarwicker, if you have had a rail journey that caused you additional cost beyond the ticket price, or should this happen to you in the future then, if it's your firm belief that the 'consequential loss' term is unfair, make that small claim to claw back the additional expense.

The following, taken from a legal website is interesting.  The point about it being within the parties' reasonable contemplation at the time the contract was entered into is interesting, as is the presence of an exclusion clause within the contract. 

The first branch refers to direct losses ^ these are losses that are foreseeable and recoverable. The second branch refers to indirect losses, such as consequential loss. These arise from the special circumstances of each individual case, and are only recoverable if it can be said that the party in breach of contract knew of those special circumstances for the other party at the time the contract was entered into. If they only found out about the special circumstances after the contract was entered into then this would be too late. Loss of profits could fall under this branch.

Is it Recoverable?

Consequential loss may be recoverable following a breach of contract if as mentioned above, it was within the parties^ reasonable contemplation at the time the contract was entered into. However, it is important to note that if the innocent party had been made aware of an exclusion clause that limited the other party^s liability for breach of contract, they would not be able to recover that consequential loss (providing the clause was valid, reasonable and covered the breach/liability in question).

Passenger Focus' stance on the issue is as follows:-

Can I claim consequential loss accrued as a result of a delay (e.g. missed flights, social/business meetings)?
If you suffer loss due to delay, such as a missed air flight, theatre performance or a business meeting, the train company is not liable.

In times of delay you can ask station staff for help as they may be able to arrange alternative transport provided you have left a reasonable amount of time for this. If you choose to arrange your own transport you may well not be able to claim these costs back.

Passenger Focus however does sometimes have success in getting passengers some form of compensation in these circumstances. If you have contacted the train operator and are unhappy with the response, then contact us and we will do our best to help

Note also the point about a reasonable length of time in respect of arranging alternative transport.

So if the passenegr has a discussion at point of sale with the fgw ticket office staff that they are buying the ticket to catch a flight at xx:xx, fgw would know at the time the contract is entered.

Last time I took the train to Gatwick, when I went to buy my train tickets, I advised to the ticket office that I need to be at Gatwick for check in at xx:xx and I want to be there x hours before. The ticket office staff then recommended and reserved me seats on the most suitable service for my criteria. The company therefore knew my circumstances at time I entered the contract for that ticket.

Consequential or indirect loss has its main legal precedent dating back almost as far as the railway - 1854 to be precise (Hadley v Baxendale for those who want to look it up). Consequential damages are linked to knowledge and foreseeability at the time of contracting.

For example, if you bought an assembled table and one of the legs fell off you are entitled to a refund or a replacement table. If it happened to have your prized Ming vase on it at the time you can't claim for this as the seller of the table couldn't forsee that you would have put something so valuable on it. If however it had been sold as a Ming vase stand it might be a direct loss.

The law has crept on this in resent years in favour of the contractee and some matters what used to be considered indirect have crossed the line. However, there is still a test under English law as to whether both parties could be reasonably aware of the risk of the possible loss at the time of the contract.

Tickets are sold under a standard contract and I doubt a clerk can vary the terms. It is a case where the buyer needs insurance to be sure of recovering loss.

Disclaimer - I'm not a lawyer, and look terrible in a wig.

And that is the perfect response to richwarwicker's scenario.

The ticket is sold subject to the National Rail Conditions of Carriage. Those set out the minimum compensation arrangements and state that consequential loss is not covered. Nothing you advise the ticket seller of can change that contract. If it were to be the case that you could advise the seller of your journey reasons to cover you for consequential loss just how would you do so with an online purchase or one from a TVM?

If you don't like the terms in the NRCoC, you have the choice of not entering into the contract. I.e. not buying a ticket.

If that were the case, the whole concept of unfair contract legislation would not need to exist.   

Though I'm not for one moment suggesting that the current NRCoC are unfair, far from it, particularly with regard to consequential loss.

But as a principle, firms cannot have consumer contracts that give them unreasonable/one sided rights and use the argument that if the customer doesn't like them then they shouldn't enter into them.

Notwithstanding FGW's reliance on a blanket approach to not paying out in respect of consequential loss for which it is responsible, each time I have put in a reasonable and genuine claim for expenses incurred as a result (ie taxi fares) with a polite letter they have paid up without question.........whilst this may be on a "goodwill" basis I always recommend to others to do the same and largely it seems to produce the desired result - if people take the time to write in, they generally get something in return it would seem, and would point to an acknowledgement of fair play, if not contractual obligation.

Some interesting comments here. I was going to update on my opinion based on situations where I have successfully  challenged consequential loses with FGW and GreaterAnglia.

In the case of GreaterAnglia. I successfully recovered a ^50 Taxi Fare in cash after a serious misunderstanding with their Rail Replacement Bus Services. I boarded a Bus marked "Shenfield" ... I hold GreaterAnglia fully responsible for the fact I ended up in London Liverpool Street having just been sent to Newbury Park from that very same station! Believe it or not, this has happened to me twice. First time it was prevented by a local who knew the driver was going the wrong way. The second time it only became apparent the driver was going the wrong way until we were on the outskirts of London. The driver was foreign and pulled over to show us his sheet that he was a London service. When questioned as to why the bus said Shenfield on the front the driver just shrugged and said "That's not my fault or my problem" ... Generally speaking if the bus says Shenfield you expect it to go there. Which it did over an exceptionally cavorted route. When we got back to Newbury Park a few passengers then asked the driver to wait for 10 minutes for toilet breaks. At the thought of the driver losing 20 very angry passengers - he drove off.

That being the last rail replacement service. I was very much stranded. Fortunately a cabbie I know personally offered to take me Stansted as she had to do a pickup there anyway. I caught the X30 from there to Southend-on-Sea.

GreaterAnglia refunded my taxi fare in cash as they agreed that the consequential loss was forced by their agents actions and therefore remained liable. They also provided additional rail travel vouchers as a GoGW. So I was entirely happy with their outcome.

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I think with the consequential losses that FGW should and could be held accountable to missed connections for domestic travel such as buses, other trains etc within reason. I wasn't for a moment suggesting that they should be liable for ^10 Million contract signings being delayed or aborted. If the contract was worth that much then the person in question I would very likely thought would have the means to arrange a Taxi and would better plan his day. But without knowing the full circumstances there it's difficult to pass any judgement. I agree that the railway should not be liable to such cases.

However I think there is merit in missing the last bus, train etc if the delay is within the control of the railway.

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Although this is Aviation Related. I had a terrible Ryanair experience a few years ago when I took a flight to Bournemouth. Due to reasons unknown to anyone at the time, we landed in Glasgow. Ryanair provided the most horrible tin can coaches and informed everyone they must board the coach. Upon inspection of the coaches I discovered there were no toilets onboard so asked about the comfort stop arrangements. There was to be a break of 30 minutes 4 hours into the journey and the possibility of a second 30 minute break on the M25 area. I refused this and said I would make my own way to Bournemouth at my own expense.

I was told that as I had paid to get to Bournemouth. I must travel to Bournemouth and ended short at Glasgow was not acceptable.

A rather nasty but comical argument broke out between myself and this member of staff around 80 minutes later. A crash course was given to her on what Asperger Syndrome is and how to correctly define your variables to achieve desired task results.

"Get on a Coach" defines the coach as a variable object and not specific to any vehicle. I took this to mean the possibility of the National Express Coach sitting in the stop nearby. This is what she said so I was going with that albeit trying to be smart by being my "normal"

"Get on any of these 3 Coaches" would define any of the following 3 vehicles that I must board. This does however not give the completion instruction so could still get off coach even if it was yet to move.

The argument ended on a stalemate call of Godwins Law... (http://en.wikipedia.org/wiki/Godwin%27s_law#Corollaries_and_usage)

Anyhow I contacted the coach company in question and asked them the time the coaches arrived in Bournemouth which they supplied without suspicion or objection. This took the delay well into compensation arrangements of maximum tier for EU flights. The coach took 15 hours start - finish.

I then wrote to Ryanair to seek compensation from a considerably lower tier and using the case of accepting the change of contract with arrival at Glasgow instead of Bournemouth for reasoning. I followed up the complaint about their agent in Glasgow in a separate correspondence.

Remarkably they objected my claim and that there was no way I could know the time the coach arrived at Bournemouth without being there or on it. I just forwarded the email from the coach company to them. Ryanair dropped their trousers at this point and paid out more than I was asking. They also offered to cover my rail fare as a GoGW. As I don't like take advantage, I photographed the ticket and told them they should only pay a certain amount of it based on me travelling First Class. I included the Standard Class fare for them in the email. They paid the First Class fare in full which was surprising as I wasn't expecting anything back at all for that. But a win win all round ;D

The two examples you give are very much in the control of the operators' direct agents, and thus yes, both claimable - one could almost declare that these aren't what are described by TOCs as consequential losses.

re: Ryanair flight ending in Glasgow. I would have done exactly the same as you and made my own arrangements and taken the train to complete my journey. There would have been quite an angry and loud confrontation with any member of staff telling me I had to get on a coach for a 15 hour journey, my idea of travelling hell. My understanding is that they can't make you use their alternative if you don't want to but don't expect compensation?

Correct, I think it's a "we will get you from A to B".  The fact you don't like the alternative isn't their issue.  Of course, in this case you know that their alternative delays your arrival past compensation limits is fairly obvious in this case, but even then EU compensation would be expected, I wouldn't then expect a refund for my choice of alternative, as they did offer a mode of transport - although as others state I wouldn't have taken it!