That major premise is true. I don't think anyone could realistically argue that the existence of DelayRepay influences a consumer's buying decision, however. You buy a train ticket to make a train journey. The existence of a statement that you might receive amount X whereas the contract (the NRCoT) says you might receive lesser amount Y in the 1-2 journeys out of every 100 that are delayed isn't going to change your mind.
The statement has to have been taken into account by the consumer in entering into the contract, which for the reasons given above means the sections mentioned probably don't catch DelayRepay leaflets. If I am wrong and they do, then s 50 (2) CRA 2015 says that the taking into account must also be subject to anything that qualified the statement and that was said or given to the consumer on the same occasion – a statement that DelayRepay and Passengers' Charters don't form part of the contract would seem to me to be exactly such a qualification. If I am further wrong, then the reduction of price would be "an appropriate amount", which is open to a lot of debate.
I agree that some caselaw on the matter would be useful; however, the chance of it getting to a court capable of setting a precedent without an out of court settlement intervening seems negligible to me.
That major premise is true. I don't think anyone could realistically argue that the existence of DelayRepay influences a consumer's buying decision, however. You buy a train ticket to make a train journey. The existence of a statement that you might receive amount X whereas the contract (the NRCoT) says you might receive lesser amount Y in the 1-2 journeys out of every 100 that are delayed isn't going to change your mind.
The statement has to have been taken into account by the consumer in entering into the contract, which for the reasons given above means the sections mentioned probably don't catch DelayRepay leaflets. If I am wrong and they do, then s 50 (2) CRA 2015 says that the taking into account must also be subject to anything that qualified the statement and that was said or given to the consumer on the same occasion – a statement that DelayRepay and Passengers' Charters don't form part of the contract would seem to me to be exactly such a qualification. If I am further wrong, then the reduction of price would be "an appropriate amount", which is open to a lot of debate.
I agree that some caselaw on the matter would be useful; however, the chance of it getting to a court capable of setting a precedent without an out of court settlement intervening seems negligible to me.
I would respectfully disagree. You state that the statement must be taken into account. Sadly, there is no caselaw on this point, however the relevant section says that information becomes an enforceable term if "it is taken into account by the consumer when deciding to enter into the contract", or if "it is taken into account by the consumer when making any decision about the service after entering into the contract". There is again no mention of the burden of proof in this one - but note that it does not say that "it influences", merely that it must be taken into account. Speaking from a personal perspective, I have several options for travelling on my commute, and I choose the train partly because I know that if I am delayed, I can expect to receive compensation. So in my case, Delay Repay certainly
is taken into account by me, and so becomes an enforceable part of the contract.
Furthermore, this
analysis (about half-way down) of the CRA further states that any terms that purport to restrict liability for S50 statements is blacklisted as unfair and therefore void.
This guidance from the Competition and Markets Authority makes this perfectly clear as well (page 61). Hence the statement "this does not form part of the contract" may as well not exist, for all the effectiveness it has.
I would also suggest that the National Rail timetable, and any copy or extract thereof presented to the consumer when buying any ticket(s), definitely forms part of the contract, as the journey times and timings therein are a significant factor - if my commute took twice as long by train, I would simply take the car instead. Hence if the TOC fails to then comply with that timetable, S50 makes clear that I have remedies in accordance with S54 - as repeat performance is not possible in the context of a contract for travel, a S56 price reduction, i.e. Delay Repay of some sort, is the appropriate remedy.
I don't like that the TOCs try to forget that the CRA applies to them. It didn't originally, but
it now does, and many of them seem not yet to have woken up to that reality, and refuse to comply.