"The Luas is free" and problems with administrative law in Ireland

Couple of points, in no particular order.

Having practised law in other jurisdictions, I don't think this kind of overreach is uniquely Irish, by any means. One of the characteristics of a penalty notice system is that it incentivizes this kind of behaviour.

I don't think the operator's actions, in issuing a penalty notice in these circumstances, is them trying to make new law, or to issue bye-laws without ministerial consent, or anything of the kind. I think they're acting on the basis of a particular interpretation of the existing, valid bye-laws. Even if that interpretation is wrong, they're not making new laws here, or pretending to.

It's worth pointing out that, as the operator of the system here, they have to form somet view as to what the law requires or permits, and act on the basis of that view. If they think the law is insufficiently clear, or that it's clear but it doesn't say what they would like it to say, they can seek ministerial approval for amendments to the law but, in the meantime, they still have to interpret and apply the law that is currently in force. So I don't think we can adopt a general position that, in acting on a particular interpretation of the law, they are purporting to make new law.

We can adopt a position that we think their interpretation is wrong and, at first glance, and without having looked at it too deeply, it looks to me like you have some good arguments here. The leap card is clearly an "electronic method of storing travel value issued by or on behalf of an operator", so it's a ticket. Is it a "valid ticket"? It's prepaid so, assuming you have a sufficient balance on your account to cover your journey, it seems clear that "the correct fare has been paid for the journey being undertaken"; the operator already has this money, because you've already paid it to them. So the only thing the operator can hang its hat on is an argument that the ticket is not "in force" if you haven't taqged on. But, from what you say, there's nothing in the bye-laws to back this up; they are silent about what "in force" means. And I think you could argue strongly that, if your "electronic method of storing travel value issued by or on behalf of an operator" has a balance attributed to it that is capable of being read and adjusted by a card reader then it's clear in "in force"; the failure of the card reader to actually read your card and adjust your balance is a deficiency in the card reader, not in your ticket.

Obviously the alternative view is that you bring your ticket into force by tagging on and, if you don't or can't tag on, you don't have a ticket that's in force. And you can see the attractiveness of that view, given the policy and purpose behind the legislation, which is to ensure that people who travel actually pay the fare. But, as you point out, this is a penal provision; it's going to be interpreted in favour of the accused; the interpretation they argue for effectively penalises you, the traveller, for the failure of their system, or for their failure to provide a system that works as it should. I think you could argue strongly that, if it was the legislative intention to penalise the traveller for the failure of the operator's fare-collection system, that would have to be made very, very clear in the legislation. And it isn't.

So, as I understand it you're under no obligation to pay the ticket. You're within your rights to opt to have your day in court. And if you do that my (preliminary, very shallow) view is that you'd have an excellent chance of being acquitted. But obviously there must be some risk that you would be convicted, which in your circumstances is a risk you prefer not to run.

At a wild guess, the risk of aquittal is why the operator has withdrawn the ticket as a "gesture of goodwill". They don't want to prosecute you and lose on the arguments that they know you will advance. (To be fair to them, they may also recognise it that would be simply unfair to prosecute you where the problem was caused by the failure of their system.)

What's to be done? Well, the obvious thing is that the operator should invest in a fit-for-purpose system that can read cards in any circumstances in which they can be legitimately used.

The other obvious thing, as you point out, is for the operator to draft, and seek ministerial approval for, bye-laws that take account of the existence and functioning of the leap card. If the leap card is only to be a valid ticket when it has been tagged on, the bye-laws need to say that.

Is there any way you can bring this matter to court? Only by being prosecuted, and you haven't been prosecuted and don't want to be. You could engineer a prosecution by finding a willing ally who doesn't face the same career risk as you do, have them exploit the known deficiency in the card reader to ride without being tagged on, keep doing that until you get caught and an SFN is issued, don't appeal the notice in case they withdraw it when they realise what your argument will be, wait to be charged and then raise your argument in the District Court.

The bye-laws say nothing about a standard fare notice and as far as I can see the SFN has, in itself, no legal effect. The bye-laws just say that if you don’t have a valid ticket you are liable to pay the standard fare. You must pay it on the spot or, at the discretion of the authorised person who has challenged you, within 14 days. It seems to me, reading the bye-laws, that if you are riding without a valid ticket they you are liable to pay the standard fare whether or not an SFN is issued. An SFN points out to you that you are liable but it doesn’t make you liable; you were liable already.

My first thought was that, since the SFN has no legal consequence or effect, can you challenge it by way of judicial review? What exactly are you seeking to get set aside? The actually legally significant measure that the operator might take is to charge you with riding without a valid ticket, and you challenge that by defending the charge. If you’re never charged, where’s the problem? What are you seeking to change? So a court might not be interested in your judicial review of an SFN that had no effect and, for what it was worth, has already been “withdrawn”.

But on further consideration I think there may be a basis for a challenge. The operator shouldn’t issue an SFN unless you are, in fact, liable to the standard fare; it is oppressive to tell people that they are liable when they are not, and obviously it may result in people paying money to the operator that they have been told they owe when, in fact, they don’t owe it. So, yeah, it seems to me that the issue of the SFN is amenable to judicial review. But, again, a court would impatient with an attempt to review an SFN that has already been withdrawn, since you’ve already had the remedy that you would be asking the court to grant.

You could launch a judicial review action after you have got the SFN but before it is withdrawn. But there’s still a tactical problem; once they understand the grounds for your application, the operator might then withdraw the SFN, and argue that your application should be dismissed because it’s now moot.

So this might be a strategy: When challenged, say that in your opinion you do have a valid ticket and that you will not accept an SFN. The inspector will then require you to leave the tram under bye-law 11. Failure to comply will be an offence, so you comply, but you then institute judicial review proceedings in relation to the inspector’s direction requiring you to leave the tram. Since that direction can’t meaningfully be withdrawn after you have already complied with it, those proceedings can go ahead.

OK.

Would need to dig into this in some detail but, still, I think there's an argument. We've got an integrated ticketing scheme under which a single fare can cover a journey, different components of which may be provided by different operators — Luas, Bus Éireann, Iarnród Éireann. Obviously there must be a clearing house operated in which the fares collected by each operator and by NTA are netted off against the amounts each operator is entitled to for the journeys it has actually provided, and appropriate balancing payments are made. If this is so then there's a good argument that, so far as the travelling public is concerned, the operator of the clearing house and each transport operator participating in the clearing house are all agents of one another for the purpose of receiving fares; as long as I have made a payment for my journey to a participant in the clearing system, I am in the same position as if I had made that payment directly to the operator(s) who provide my journey.

It's not a very impressive performance, given that the current bye-laws were issued in 2015 while the leap card has been around since 2011. They shouldn't have to update their bye-laws; the bye-laws should have been written with the reality of the ticketing system in mind right at the start.

That is not what the european court says even when the train is free. A contract is formed by entry onto the train. Unless the ticket is for a specific journey there is no contract formed by the purchase of a ticket. In the good old days when tickets were sold on buses the contract was formed on boarding the bus with liabilty to purchase a ticket.
In any case a Leap card is the purchase of credit. The credit for any journey happens when the card is debited. If no debit occurs there is no credit and thus no ticket.