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Its WAR

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Its WAR last won the day on January 24

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  1. Well, the hearing did not go my way and the judgment was set aside and the claim struck out. The judgment was set aside because the judge felt they had a good prospect of defending the case. He based that decision on two points. The first, that their contract terms and conditions stated they do not offer guaranteed services, and I had agreed to those terms. I explained that Parcelforce Express 48 contained defining features and benefits which had not been supplied and argued saying the contractual terms could not trump consumer law and therefore the consumer laws which I quoted should be examined. I included Contra Proferentem and Misrepresentation to deal with the ambiguity and validity of the contract along with the Consumer Rights Act and Consumer Protection from Unfair Trading Regulations to support the misdescription of the product, but It all fell on deaf ears, because of the second point. The second and fatal point was that I could not quantify the loss which I stated as £250. I based this loss on the extra costs I was now forced to pay for trackable postage in order to stop ebay defects being applied to my ebay account and so lose my Top Rated Plus status. The problem was that I had not actually suffered those losses and was now only paying those costs to reduce risk of what might happen in the future, but had not and might not happen at all. So I had not actually suffered the loss I had claimed. The request to strike out was made informally by the solicitors and the judge agreed because I would have a hard job in successfully winning the second point. He accepted I might have an argument based on contract but that was all, but had to base his judgment on all the matters of the claim. He was quite disapproving of the defendants 'bland' excuse for saying they had not received the claim form. Initially I thought I was onto a winner when the defendants solicitor stated they often find lots of claim forms don't turn up. He seemed to agree the issue was one to do with one concerning the defendants mailroom. ( I was unable to put my point across that they had wasted two weeks and incurred expensive litigation costs in that time trying to get a copy of the claim form, which they might well have had in that pigeon hole somewhere. Their suggestion was that they couldn't link the default judgment with me, as the judgment only contained my name. This was misleading the court as the judgment contained my name and address and postcode and therefore they could easily have found the details (and probably did) . This morning I actually phoned their helpdesk and asked for the details of my order and they found them immediately upon entering my postcode and checking my name and first line of my address. It was that easy. To think the defendants did not do that was unbelievable. They chose to do much cost bearing work instead. Anyway, I could tell pretty well from the off it wasn't going my way and I was limited to answering questions raised by the judge rather than presenting my points. The whole thing was late starting and felt rushed, made worse by the judge saying time did not permit him to look more closely at the contract. Having pronounced his judgment, the silver lining then came. The solicitor asked for costs but the judge very quickly refused them. The solicitor asked if the judge had seen the costs schedule in the bundle (which was now over 100 pages thick). He said he hadn't seen it but wasn't allowing any costs. So I lost the claim, which cost £35 to issue and £75 for the warrant. But actually I have gathered some great information from my research and studying the defence arguments. That will certainly he helpful in my other more straight forward claim. (I might even get a hearing with the same judge). The solicitor had a schedule of costs amounting to £3278 of which they were hoping to claim £505 from me.....................Somehow I think it is they (or Interparcel) who were the real losers today. They really should have agreed to refund me the £10.56 postage for taking 8 days to deliver a 48 hour package
  2. Thanks Andy, that is encouraging. Thanks FruitSalad too, some very helpful points. They have never mentioned the fact they did receive a signed for letter before action and ignored it. They say they did not get the claim form, but did get the Judgment and Warrant (so they got 3 out of 4). All were posted to the same address. It seems a bit of a scam to tell the court you didn't get a claim form. Goodness, we could all say that. It probably just got lost internally and never found the right intray. They also say they were unable to identify me from the judgment form which they said only contained my name. I reckon (even if they only had my name), they could enter it into their system and find I held an account with them. The thing is they have mislead the court because the judgment form also has my address and postcode. They could easily have written to me and commenced a speedy dialogue to avoid a full hearing and go for a consent order instead, rather than waste 2 weeks before they managed to get the court to enter their Notice to Act. Or, they could simply have told Interparcel to phone the court and get the details almost instantly. But nope, they decided to do nothing to mitigate costs and it seems they have got £3000 to invoice to someone, eventhough the schedule seems to be £505 as a fixed fee. It seems to me, they really do not want to get this heard and are trying desperately to get it thrown out. Interestingly many of the other parcel comparison websites have stopped using the Parcelforce Express 24 or 48 description but have changed it to simply Parcelforce or Parcelforce Economy. I think Interparcel (and still a few others) have not bothered to change theirs yet and have fallen foul of it. This really is a simple matter of them describing a service with very specific features and benefits, selling it as such, but then supplying something very different. If it were a shop selling a tin of branded beans and sending you their own brand version, it is the same argument. Except in my claim, they never had the branded beans in the first place from their supplier and therefore should never be offering them for sale. Whilst they argue their contract allows them not to supply the goods they described and their contract trumps the misrepresentation or sale of goods and services acts. Contra Preferentem should work there. They have failed to mention anything in the 100 pages that answers how they expect to be able to describe the product they are selling and then not tell their customer they have removed all the features and benefits that define it. They hang on their contract that states the service has no delivery guarantee and that if I want additional insurance cover then I have to pay extra. Well sorry, I didn't want additional cover because the product I chose comes complete with £100 worth already, no wonder I didn't want to buy extra. Well, Monday should answer these questions.
  3. Actually it looks like the fee is fixed to £250 plus the £255 application fee, despite them saying they have incurred £3000 in their schedule.
  4. There billables? They have asked for 'Costs in the case' and have just last night sent a schedule of costs amounting to £3000 along with a skeleton argument. Their bundle is now 100 pages, 15 of which are mine and I havent even heard of a skeleton argument before and have run out of time to do one. It seems they should be delivered to the court and other side a day before the hearing. I am happy enough to have it set aside if I get a hearing, but they are also seeking a summary judgment and strike out. They really should have offered me to agree to a Consent Order which would have meant almost no cost bearing work. Am I really exposed to such a risk of costs if this all goes against me?
  5. I have now received an email from their solicitors telling me they have applied for the court to either strike out the claim or make summary judgment. Arguing my claim has not merit and should not waste more legal time by moving to a trial. I don't have much time to understand how this works. I guess if its agreed, my claim is lost. If it is not agreed, my claim moves immediately on for the judge to decide whether to set aside the judgment. I either win and the judgment.warrant remain in force, or I lose and the claim gets a hearing in a few weeks/months. So I now have an extra hurdle to jump on Monday. It does seem rather short notice though. Any advise would be appreciated.
  6. The hearing is set for 4th October by telephone. Interparcels solicitors have sent me a list of documents they intend to show the court. Amongst them is their defence , witness statement and exhibits (probably screen shots from their online booking form which could work in my favour if they state the service chosen). It seems to me, these documents are irrelevant and could appear to hope to persuade the judge they have a defendable case. Surely this hearing should be limited to whether the judgment should be set aside and not used to discuss the actual merits of the case? They have also asked me to send them a copy of the particulars of claim (as they sate they haven't had one) and any relevant documents I would like them to include in their bundle (within 5 days). Should actually do as they ask? What should I bring to the attention of the court to support my argument that both the warrant should stand and the judgment not be set aside? Do I need to send a witness statement to argue against setting aside? Do I send one that actually argues my case? I have never attended a setting aside hearing before only a good few normal ones. Any help would be appreciated.
  7. Just had the notice from the court. The application to set aside judgement has be transferred to my local court to be listed for a hearing. This will upset Interparcel solicitors as they hoped a judge would set it aside without one. I guess this just piles up costs for them to progress. Risky business for them to apply to set aside on the basis they want to defend the claim. Defending the claim at a hearing risks them losing and my win being supported by a judgment rather than just be default. This will be more exciting than a game of chess.
  8. The particulars detailed the cost of postage in full plus £250 as my judgment for the consequences as a compensation amount which a judge may award as damages due to the misrepresentation at the discretion of the judge. I wasn't sure whether to allocate a sum but decided to do so because otherwise the claim would have been for £10. By making it £260 I felt it would either end the way it seems with a default judgment which I am kind of happy with, or with a defended claim and a hearing, which I am also happy with. Actually, I would like the court to examine the misrepresentation because it happens all the time. A properly argued claim with a positive judgment would of course give rise to further questions. ie what happens as I continue to use their (or others) service who continue to offer Parcelforce Express 48 when I now know that I (and nobody else) actually get that service. Would that give rise to further actions or actually bring an end to them, because I now know that what they are purporting to sell is not what they are giving?
  9. My copy of the claim was sent to me from MCOL. I did not tell Interparcel I had issued a claim, I only told them I was issuing it. I left it to the court to send them the summons. I am sure the court will determine they had received the summons, otherwise everybody could thwart the system by suggesting they never received a summons. So I agree, Interparcel would have received the claim. Maybe whoever opened the post did not deal with it properly or maybe its just a hope to get away with it, realising they missed the deadlines. I am happy to wait and see what happens. I remain happy to maintain the judgment 'win' and get settled but also happy to get to argue mis representation with them in front of a judge, if the judgment is set aside.
  10. UPDATE. I issued a summons, obtained judgement by default and sent the bailiffs in. The bailiffs have given them until Monday 6th Sept 2021 to pay. On 3rd Sept Interparcel's solicitors applied to stay the warrant of control (dated 24 August) and to set aside the judgment (so they can defend the claim). They argue Interparcel did not receive the summons claim form and the first they new of the claim was when they received the judgment by default document from MCOL on 17 August (Interparcel immediately instructed their solicitors). It appears they did not tell the solicitors there was a bundle of email correspondence and Notice before Action warning them of a claim. On 31 August the solicitors contacted MCOL to obtain the court papers but the Court was unable to provide copies as due to a backlog, the court had not yet uploaded the Notice of Acting which would allow them to pass the docs to the solicitors. They eventually obtained the details from the court on 3rd Sept, but by then the bailiff had been instructed (10 days after the default judgment was issued). The solicitors could have asked Interparcel to log in to MCOL to get the claim details as soon as they received the judgment 2 weeks earlier (also as advised by the court). Interparcel claim they could not link the judgment document with any complaint and were therefore prejudiced as the Court was too slow to send the claim details or enable the solicitors to obtain them. Anyway, the solicitors have applied for an urgent decision without a hearing. Is there anything I can usefully write to the court immediately to support why the court should not agree to stay the warrant or set aside the judgment? The judgment was for £260 (and now) plus the bailiff warrant fee £75.
  11. Rather disappointed to to receive an order form the court striking out the claim on the basis that it was not issued in the name of the person entitled to bring a claim (ie my uncle). I had made the mistake of naming myself as the claimant. I should have applied to be his litigation friend (and of course can do so if I issue another summons and send the litigation friend forms into the court with the summons). Alternatively I can apply to have the order set aside and support the application with the litigation friend forms. The setting aside application costs £80. So clearly the best option is simply to issue another summons and apply the rules of CPR 21 and in the meantime there is a window open for the BBC to make the refund and safely for them avoid a hearing. However I am sure the court will look dimly on another summons as the defendant has made an offer to settle the value of the refund. This offer has not yet been accepted by me nor rescinded by them. So it is obvious I should first accept the offer and therefore risk losing the opportunity to discuss this claim in a court if they pay up. Unless of course they renege on their offer, in which case my action has an extra point of claim.
  12. This message arrived today from the previous chat. I am sorry as previously advised the service chosen is an estimate only and is not guaranteed, therefore not covered by the money back guarantee. Parcel Force do not offer any type of guarantee with the contract we have, therefore we cannot pass this onto our customers as per our terms of use which you have agreed to when placing the order, no refund is due. This then makes it clear that Parcelforce (Royal Mail) have sold their products to the various courier companies at special rates by excluding the features and benefits which they do provide to customers if they buy them direct from Parcelforce. The couriers then market the service excluding these features and benefits without telling their customers they have been excluded. This supports my argument that they are actually selling a totally different product than the one they describes as Parcelforce Express 48. More interesting is the thought that Royal Mail are 100% aware that these products are being resold without the features and benefits yet still allow the companies to market and sell the product by the same name. Therefore they support them in this misrepresentation. I suggest then that the level of misrepresentation amounts to fraud rather than negligent or innocent misrepresentation.
  13. Yes FruitSalad, and this is a very similar cause for action for when choosing PF48 but the automatic compensation is excluded as happened with my claim against Parcel2go, with the only difference being P2G made efforts to sell me insurance but did not tell me they always remove the free insurance that PF48 normally comes with. So this is all about arguing the case in court (and has little to do with actually caring whether I get any compensation). I will send them a 7 day letter before action in the expectation they will be too slow to respond. This will allow me to issue the summons and claim damages which just might make them choose to defend (assuming the claim is high enough). I guess I have to calculate the stress etc that you mentioned and the cost of a defect from ebay which has the effect of losing Top Rated status and therefore get lower ranking in where my listings show up and increased selling costs. Except I don't actually lose my status yet, only when my defects reach 3% of transactions in any year. Currently I am at 1.97% so could probably 'afford' 2 or 3 more without losing status. However, I guess they are not liable for consequential loss even when they fail to perform. It's somewhat strange to think that most actions seek the result of being refunded or other monetary amount in the hope court action becomes unnecessary. I actually want to discuss this in court and would hope they fight it all the way.
  14. I have had an online chat with Interparcel. I really think I will issue a summons and hope to get a hearing. I guess I should value the claim as £10.56 being the cost of postage but wonder whether I should ask the court for a token amount for damages (receiving a late delivery defect from eBay etc) . I will have to check to see whether the Mis representation Act 1967 allows for damages or just the contract amount. I suppose the thing is, if the claim is only £10.57 they would be stupid to defend it, so the Letter Before Action should get them to settle......................I would rather hope they don't settle so I get to read a proper defense and hope to get a hearing and discuss this with a judge. Should I sue for a higher amount to include damages and how should I quantify the amount? Me My parcel xxxxxxxxxxxx was Parcelforce 48 Express. Booked on 30 June and delivered on 8 July. How do I claim for your failure to provide the service I purchased? Interparcel Thank you for contacting Interparcel. I am very sorry the delivery was delayed, unfortunately the service is only estimated transit time and not covered by any money back guarantee on late deliveries. Me I don't accept that. I paid for PF48 and you supplied me something that took 8 days. PF48 has a compensation scheme attached and I am claiming it. Please advise how. Interparcel You have booked the service via Interparcel and we do not offer compensation for late deliveries as its estimated transit time. I do apologies for the inconvenience caused. Me OK so I paid for Parcelforce 48 Express but you removed some features and benefits from that product and sold me something which excluded them. I quite fancy having having a judge examine this in court. Are you absolutely giving me your final answer that you refuse to compensate or would you like to get somebody else to make that decision? Interparcel I am very sorry but the service is not covered by a money back guarantee so no refund is due for the late delivery. Me Parcelforce Express 48 is covered by a guaranteed delivery date and does compensate for late delivery. If you are saying the product I bought does not have these features and benefits, then you have sold me something other than Parcelforce Express 48. Please confirm you have made your final refusal to refund or pass this request to the person who will make that decision. Please also be advised I shall take further action should you refuse to compensate. Interparcel You have booked the service via Interparcel and we do not compensate for late deliveries as the service is not covered by a money back guarantee. Me OK. So I have bought Parcelforce Express 48 but you have taken away features and benefits from that product and given me a lesser product because you do not honour the compensation for late delivery which the product would normally come with? Interparcel You booked the service with Interparcel and you would need to go by our description what we are selling and its not covered. Me Thank you for clarifying. So I booked with Interparcel to receive the service you described as Parcelforce Express 48 . It seems you actually supplied a service purporting to be Parcelforce Express 48 but in fact was an entirely different product. Rather than a 48 hour delivery with compensation for being late or lost, you supplied an 8 day service with no compensation for delay or loss. From your replies it is clear you have refused to compensate. I have asked that this complaint be passed to a person who can make that final decision and it appears you have taken it upon yourself to make it. Please therefore be advised I shall now issue a summons in the County Court to recover the compensation for delay according to the features and benefits of the product I ordered but which you failed to supply. I will issue the summons on Saturday 17th July 2021 to allow you time to reconsider your position. Well that was the chat and it's been a few hours waiting for their response. I expect them to fold, but live in hope to get a hearing.
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