TY Bankfodder

So item 3.

I sent the items out, they were reported by the recipient as damaged, so i collected them, clarified the damage and then reported it to the courier. They are stating that I was told not to collect the items. i should have left them and they would have handled it.

I was told this after the pickup of item 2 so i did not know about this term. On inspection of their terms, they actually don;t have anything that says this.

Here is a suggested document which addresses the points that you have laid out.

If there is more to add then use this as a template. There are XXX in a couple of places. Please sort those out.

Let me know if you understand what you have to do and if there is anything else you need to add

By the way, you shouldn't lose confidence. This is a sign of intense panic by them. I think they're trying to bulldoze you. Don't worry about it. When defendants act like this then you know that they are scrabbling around for something solid – but they have nothing.

Also, I use dictation software and so you need to be careful that there aren't strange words in there or things missed out. For instance in paragraph 1 I already see that it should say "the defendant say that I have breached blah blah blah"

Responses to some of the general points made by the defendants in their bundle.pdf

Sorry for the delay, I was in a meeting! TY for that, I will use that template and I will send it back to you via here to see what you think.

We're working on this all day. I just rang the courts and they said it should be OK to just resubmit anything new, we're still in time.

Quick questions: is the Consumer Rights Act valid when it is 2 businesses?

Good point. The consumer rights act is not valid when the parties are each a business.

Well spotted because it would have been embarrassing.

Phew I thought so! So what can I say instead of that? It was used for this:

The defendants state I have breached a term that I was required to inform them of an item damage within 24 hours.

and this:

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

Can you let me know the wording of the term which requires that you contact them within 24 hours

The link to the terms is here: https://www.theparcelcentre.co.uk/terms-and-conditions

The specific text is under Making a claim:

2. For damaged items, The Company must receive notice of your claim within 24 hours of the delivery date, with all paperwork regarding the claim submitted to the Company within 7 working days.

I forgot to ask specifically, can I now submit more evidence based on what they have given? I need to clearly show their evidence is not true.

Format your further proposed evidence as a " Supplemental Witness Statement "..the format is the same as your initial witness statement..complete with headers and a statement of truth...must be submitted/served not less than 3 days pre hearing.

Regards

Andy

The link to the terms is here: https://www.theparcelcentre.co.uk/terms-and-conditions

 

The specific text is under Making a claim:

2. For damaged items, The Company must receive notice of your claim within 24 hours of the delivery date, with all paperwork regarding the claim submitted to the Company within 7 working days.

okay well that's fairly nice and easy. They haven't tried to say that that is a condition of them providing compensation.

Our work out a bit of wording and come back to you in five or 10 minutes

TY and also TY Andytorch too! I will be here!

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

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?

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"?

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 call, 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.

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

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.

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

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?

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

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?

Responses to defense.pdf

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?

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?

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?

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 template to use but only now did I notice i t is missing the "name of the case"... IE: Company X Vs 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?

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