Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

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Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #61
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    Default Re: Business with damaged parcels - small claim being defended

    Insert this opposite point number one: –


    The term upon which the defendants are attempting to rely does not say what the consequences of informing them beyond their 24 hour deadline might be.
    Furthermore, it is implied in the defendants term that the 24-hour period begins from the time that the client ascertained the damage.
    Anything else would be wholly impracticable because it is impossible for the client to inform the defendant about an event of which he himself had not yet become aware. Therefore the requirement that the 24 hour period runs from the moment of delivery is completely impracticable if it is interpreted strictly.
    In the event, I did let the defendant know about the damage as soon as I had ascertained it myself. There was no undue delay.

    Finally, a term which sets a time limit in which to inform the defendant about the occurrence of damage can only be taken to be an administrative term and is not capable of being treated as a breach (if it is a breach) which is so fundamental that it undermines the entire contract so as to render it void.

    Even if there was a failure to notify the defendant within 24 hours (which is denied) this in no way could be taken as having materially affected the risk – as the damage had already occurred.
    It's a bit more strutting and legalese than I would normally like – but the judge will understand it even if the defendants don't



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  2. #62
    Basic Account Holder randm Novitiate



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    Default Re: Business with damaged parcels - small claim being defended

    OK, that sounds legally, however I think I get it. I did call them the same day as I received the item back. the defendant did inform me of the damage a few days before, so strictly I did know about 5 days before, but I held judgement until I got the time back as often these things turn out to be fixable easily.

    Does that change the statement in any way?


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    Default Re: Business with damaged parcels - small claim being defended

    As I understand it, you were informed of damage. You went round to inspect the damage as quickly as you could and having ascertained for yourself that there was damage, you informed the defendant within 24 hours. Is that correct?

    As I have already pointed out anyway, an administrative term is incapable of undermining the fundamental purpose of the contract and rendering it void. The central "peril" which was the fundamental purpose of the protection agreement had already occurred.

    Is there anywhere in the contract where they refer to it as "insurance"?



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  4. #64
    Basic Account Holder randm Novitiate



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    Default Re: Business with damaged parcels - small claim being defended

    Hi

    Correct, as soon as I got the item back (I did not go round) and clarified for myself it was damaged I rang the defendant. I was advised to log it directly with DPD (not themselves as the consolidator). I was given a form which had the defendants name as the consolidator hard typed into it and I filled out the rest, all on the same day.

    Unfortunately I have no record of the phone callicon, the girl I spoke to has left that company and the form I unsure where I got that from, if I am being strict about this. The other item was all inside 24 hours.


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    Fine, I think your position is okay. I don't really think that they will end up going into court with you. If you do, I think the judge will soon appreciate that this is a company trying to rely on exclusion clause to get out of their legal obligations. I suddenly have an idea, I'll come back to in five minutes

    There you are, better than five minutes.

    https://www.legislation.gov.uk/ukpga/1977/50 The Unfair Contract Terms Act 1977 renders unenforceable any contractual terms which undermine the contract and it applies to businesses.

    It's a long time since I looked at it. Please have a look at the relevant section and understand it.

    You could then add to the bit which I did with you – in any event the requirement of notice within 24 hours, if it is intended to avoid the contract if that time-limit is exceeded, would be unenforceable under the Unfair Contract Terms Act 1977



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  6. #66
    Basic Account Holder randm Novitiate



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    Oh yes, this is what I was on about, or had read previously, possibly on here. Something to do with a RM or Hermes claim that was successful. I will definitely have a look at that

    So, we still have a clause using the consumer act...


    The defendants say that by collecting the damaged items directly from the recipient, that I was in some way breaching the delivery contract.


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    That's one way of looking at it. We take the whole contract and we say that it is a delivery contract which if they fail to execute properly they will then compensate you for whatever damages are caused.

    Of course, they will be obliged to do that anyway. If they have a contract to do something for you and they don't do it or they don't do it properly then they would be obliged to compensate you so in fact what they are doing is there trying to say – we undertake to do something for you but if we don't do that then we won't be liable – or else we will restrict our liability if you fail to do this. It is grossly unfair.

    If we want to get into the fine jurisprudence of it then we could say that there are two contracts. There is a principal contract to deliver and then there is a co-lateral contract which comes into play if the first contract is breached. The collateral contract being to recompense you the value of goods lost or damaged because of their breach of the first contract.

    It is all Marx Brothers stuff.

    At the end of the day, they have a contractual duty to carry out a delivery and to deliver your goods in good condition. They are trying to attach exclusion clauses in order to escape their obligation. The fact is that there is a central obligation and if they attach other things such as 24-hour notice, then as I have indicated, this is purely administrative and it doesn't affect the essential contractual obligation – delivering good condition – because apart from anything else, the obligation is already been breached. Their administrative rule is essentially trying to close the stable doors after the horse has already bolted.

    Does all that make any sense to you? I was really trying to avoid getting this complicated



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  8. #68
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    Yes I can see through the lines here. I'm good with this kind of stuff. I can see you are saying that they didn;t carry out what they were supposed to, but now after that breach, they are adding clauses in to not pay up. These clauses are unfair...1977 act. Also they don;t actually h ave that clause in their terms anyway!

    I think this is trying to get the Judge to use common sense. Stop looking at the silly little terms, and focus on what went wrong in the first place.

    Also to me it is actually admitting defeat to an extent because how can you say that these extra clauses come into play wihtout having breached the contract yourself first? Is that right?


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    Default Re: Business with damaged parcels - small claim being defended

    Quote Originally Posted by randm View Post
    Also to me it is actually admitting defeat to an extent because how can you say that these extra clauses come into play wihtout having breached the contract yourself first? Is that right?
    nope. I don't think it works that way.

    You could say that these clauses are a sort of fallback position. In other words, our position is: we don't agree that we have breached but if the court finds that we have then this is our alternative position



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  10. #70
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    Default Re: Business with damaged parcels - small claim being defended

    No problem, i see that. I have attached my response here, we have all the evidnece that will go with it. Did you want to cast your eye over it for anything glaringly wrong?

    Attached Files

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    Yes, in point number three, you said it is not clear how the delivery contact was breached as alleged by the defendant. These are probably my words but anyway it's wrong. It should be the client or the claimant.

    Also in point number three, you say that you can't find anywhere in their terms, designed to try and escape the contractual duties…. I hope these weren't my words in any way they are completely unsuitable. This is finger-pointing and it doesn't go down well with anyone.

    Get rid of the words "… Designed to try and escape their contractual duties" replace with "the term upon which the defendant seek to rely is an exclusion clause and is calculated to protect them from their own fundamental breach of their contractual duty"

    In point number four – A… Are not what the defendant is claiming. I don't really understand what you're saying, but do you intend to put "defendant" or "claimant"?

    In point number six I would want to make a simple point that what you are claiming for is the replacement value of an equivalent printer because the ones which have been damaged by the defendant are no longer available and the repair cost makes it an economical to consider this as a solution

    By the way, let me give you an example of the effect of a breach of a mere administrative requirement in the contract – or a "breach of warranty" as it's really called.

    You failed to report the damage within 24 hours and then this in some way causes them some particular problem or expense. They would be entitled to say that you should reimburse them for that expense. However, they could not say that you were no longer entitled to the fundamental benefit of the contract which is to have the item delivered in good condition – or its equivalent value. Does that work for you?



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  12. #72
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    Default Re: Business with damaged parcels - small claim being defended

    Hi Bankfodder, sry for the delay, the site was down for me! I am making the changes now.

    I have made a small kahuna, the witness statement I received this morning did not have the "name" of the case or the statement at the bottom so I have had to ask for it again. If I don;t get it again and have to go with the statement as is, is it likely that it will not be accepted?


  13. #73
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    Default Re: Business with damaged parcels - small claim being defended

    Yes, the site was being serviced – it was rather an emergency.

    Sorry I don't really understand what you say you are missing. You don't know the name of the case? Or the number? And what statement are you talking about?



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  14. #74
    Basic Account Holder randm Novitiate



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    Default Re: Business with damaged parcels - small claim being defended

    Ah that explains it! So my point is that on my notes about evidence form the court. It states there must be certin info on any witeness statement. I gave the witenss a templateicon to use but only now did I notice i t is missing the "name of the case"... IE: Company X VSicon Company Y. Also we missed the statement at the bottom that should read "To the best of my ability the statements made here are truthful...."

    I am n ow struggling to get hold of the witness to get a new copy signed. If in the event he does not come back to me tomorrow,m is it better to send in the statement as is with the missing info?


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    Default Re: Business with damaged parcels - small claim being defended

    Yes you're better off sending something than nothing. However, they should all contain the statement of truth at the end.

    Also, as nice as the courts are, they are hopelessly inefficient. Every document must have the name of the case and the case number.

    Also, although it may be that you don't need to get the documents in until three days before, don't imagine that they will automatically reach the file/judge in time. I think I said you should send off immediately and that still is the case. Don't leave anything to chance.

    Furthermore, when you go to court make sure you got copies of everything – three copies. One for the judge one for the other side and one for you. You can't imagine how things get lost mislaid not read blah blah blah



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  16. #76
    Basic Account Holder randm Novitiate



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    Default Re: Business with damaged parcels - small claim being defended

    OK, I will keep my fingers crossed!

    I am sure he will get back to me in the morning.

    I have found you help very useful, I hope it will work! I am also hoping that after sending my evidence tomorrow I will not get anything back from them that I have to comb through once again. Baby's being induced next week so I have very limited time now.


  17. #77
    Site Team The Consumer Action Group Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch Highly authoritative Andyorch's Avatar



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    Default Re: Business with damaged parcels - small claim being defended

    Claim recently dismissedicon for not complying with the format on a witness statement ...

    https://www.consumeractiongroup.co.u...issed***/page3

    and See 4.1

    https://www.justice.gov.uk/courts/pr.../pd_part22#4.1

    Andy

    We could do with some help from you

    PLEASE HELP US TO KEEP THIS SITE RUNNING
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  18. #78
    Basic Account Holder randm Novitiate



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    Hmm, I need to wait, I can't have the case struck out at this point, it would be an awful waste of time.

    the statement I have was emailed to me.

    Can I use that as a statement of case reliably, just like I have submitted emails as part of evidence? As long as I specify it is not a witness statement due to the lack of structure?

    I am now having difficulty getting in touch with the witness here.

    what options do I have on this?

    Surely as he wrote and sent the statement to me I can still use it as evidence?

    I know it won't be a witness statement, but surely it can still be used if I send a covering letter along with it?

    Can I put the statement into the evidnece as above but then as soon as I get the correct statement, send it in?


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    Default Re: Business with damaged parcels - small claim being defended

    Yes, the statement doesn't really become a formally accepted document until it is tendered in court. I suggest that you tender the statements you have and mark them "draft, version with statement of truth will be made available in court on the hearing date".

    It's probably a bit unconventional but I don't see the problem.



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  20. #80
    Basic Account Holder randm Novitiate



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    Default Re: Business with damaged parcels - small claim being defended

    Hi There, I just go the statement back from the witness, he has been a little busy.

    So one other thing is that the owners of the defendants company have made statements. I have not. Do I need to? I have very little to say other than the facts of the claims and my rebuttle to their defence.


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