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Stephen150

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About Stephen150

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  1. WON WON WON WON WON WON WON WON WON WON So I have now had my case heard in the County Court and as expected RM in the first instance threw up the Harold & Stephen V Post Office precedent. I had a Magistrate whom stated he had dealt with several RM cases in the past and he acknowledged the Harold & Stephen case for the defendant’s solicitor. In turn I responded the Harold & Stephen case was in my view only relevant to standard first & second class postal services. I asked that the court acknowledge the defendants admitted in their defence documents that I did have the right to sue due to the type of service I used - Next day Guaranteed Delivery with compensation up to £500 for delay, loss or damage. With this in mind I asked the court consider the separate agreement entered into for the type of service. However, the defendants said my claim was not valid as the packaging did not comply with RM guidelines for such an item - "a mobile phone" and that it should have been wrapped by around 1cm of bubble wrap or similar. I responded by stating the item was correctly packaged and most unfortunately for the defendants I had retained the original packaging that was used (plus the phone) and which was photographed in the defendants bundle and produced this to the court. The District Judge asked to see the packaging and the phone and he measured the packet and noted it exceeded 1cm, it was not only single bubble wrapped but it was double bubble wrapped and the phone was also then in a further two protective sleeves. The D Judge invited the defence solicitor several times during the hearing to inspect the packaging but he declined saying he was not instructed by his clients to do so. I explained to the court that I felt RM had acted unreasonably and disingenuously when handling my claim and I made specific reference to an email from their escalated team saying they had reviewed my case and physically inspected the packaging on the 8th Dec 15 and it did not conform. Unfortunately for the escalated team they could not have done so as I was able to evidence to the court that RM had returned the item and original packaging to me on the 26th Nov 15! I also asked the court in any event to also consider the legal definition of "guideline" which RM referred to copiously in their defence. The JD acknowledged this on my behalf. The defence retorted by saying that no contractual relationship existed when using this service. In response I asked the DJ consider the case heard before DJ Abrahams (referred to by CAG blogger on here when she won) in Bedford County Court in August 13, and whilst in that case I think the item was lost in transit, RM had put forward the same defence as they did to my claim, however DJ Abrahams took the view it was a contractual agreement and found in favour of the claimant - so essentially the principle was the same in my case. The District Judge asked the defence Solicitor to explain why if there was no contractual relationship did the Postal Scheme state that in certain circumstances a separate contract may be formed when using such services. The defence solicitor could not put forward any background reasoning behind this wording. Earlier in the hearing it was noted that it was not unusual for RM to put forward copious defence papers as has been seen by many other Judges. In view of the extensive terms and conditions quoted, the references to the Postal Services Act 2000 and all of the clauses within RM’s UK Postal Services Scheme, and The Postal Services Act 2011 I asked the judge to consider the following: · Is it reasonable to expect a member of the public who walks into a post office to use a special delivery or other RM service to read through the reams of their terms and conditions plus The Postal Services Act 2000 and all of the clauses within RM’s UK Postal Services Scheme, and The Postal Services Act 2011 & for them to understand it all including complex legal expressions /references? · Is it reasonable to expect a member of the public who walks into a post office to carry a micrometer with them and demonstrate to the RM agent behind the counter that the package has been wrapped in accordance with the advice RM produce or to insist the RM agent produces a micrometer and issues a certificate of conformity at point of acceptance of agreement? In respect of the aforementioned I also asked the judge to consider whether or not the RM T&C's were compatible with the requirements of Section 62 & 63 of the Consumer Rights Act 2015 in particular "prominence and transparency", and the circumstances at the time. Did RM's T&C's not constitute unfair terms by putting the consumer to extensive disadvantage which is not permitted under the CPA 2015. The District J noted that my use of the RM service was post CRA 2015 and he stated this may well prove to be an issue for RM in the future, although he felt it was not something that needed to argued in my case before the court today. I had also alluded to the court that the packaging used was recycled and for some reason the defence solicitor seemed to think it was not reasonable of me to use recycled packaging to post a very valuable item such as a mobile phone. I advised the defence that the mobile phone was valued at approx £110 which whilst it may be a very high value to him, was not the case with me. The whole hearing lasted about 2 hrs and at the end the DJ stated that he found that I was a credible witness, pointed out that RM's escalated resolution team could not possibly have physically inspected the packaging on 8th Dec as in their own evidence bundle they refer to returning it to me on 26th Nov. Finally the District Judge said there was no doubt in his mind that my packaging exceeded 1cm and he could not understand why RM had rejected my claim. He also pointed out that RM had not put forward any evidence that showed in what way they concluded my item did not meet their guidelines. He ordered in favour of the claimant for the cost of repair to my phone plus all my court costs to be paid within 14 days. I have since received my cheque from RM but NO apology for subjecting me to this torrid process. My advice to anyone using the Guaranteed delivery service is make sure that you comply with RM packaging guidelines and if it is lost or damaged you should win your case. REMEMBER to retain your original packaging in the case of damaged items otherwise RM may reject your claim. Although I would also state that RM will not be able to 100% guarantee in any court that if an item is sent with 1cm bubble wrap it will not sustain any damage….. The issue of compliance with packaging is also a bit bizarre as if it is indeed a strict burden of proof on the claimant to demonstrate the packaging T&C's are complied with before a claim is paid then this would be impossible for claimants to do so in the case of LOST items. Are RM going to reject claims for legitimate lost item claims because RM don't know if it had enough bubble wrap in the first case before it was lost?!!
  2. Obiter dictum - their solicitors were DAC Beachcroft of Bristol; I think they are on some retainer to RM.
  3. Upate: The case has been filed and is due to be heard in May 2016. I asked for mediation both in order to demonstrate to the Court I am trying to resolve the matter outwith the hearing and also to be seen to following the Courts recommendations - there has thus so far been no resppnse from Royal Mail in this respect. Royal Mails solicitors has filed their bundle which not surprisingly includes alledged immunity on the basis of: *The Postal Services Act 2011 Sections 27, 29-30, 35, 65, 89-92 & para 3 PSA 2011. *Their designation as a Universal Provider *An extract from Halsburys Laws of England, Volume 36(2) *Their usual Harold Stephen v The Post Office 1978 *Royal Mails complete terms & conditions - (good for lighting a fire on a cold night) Unfortunately their bundles totals some 160 pages therefore is too much work to upload on here. I will however post the decision of the court after the case is heard. I have in my witness statement to the court stated that throughout the claims process I have been left with a very strong preception that Royal Mail has acted disengeniously throughout the handling of my claim and has in my view done so in order to disuade me from persuing my lawful claim against them. I am pretty certain that Royal Mail have adpoted a policy where they reject all claims and then get their solicitors to send reams and reams of documents to people to make them feel they have no case or chance of winning against them. Unfortunately for them I have no intention of going away. So far as the bulk of their bundle is concerned these are irrelevant as these documents refer mainly to standard 1st & second class mail services only. Royal Mail has in its defence admitted that I do have the right to bring a calim for such a matter in respect of a Special Delivery Guaranteed before 1pm premium postal service - thats good enough for me and I will ask the judge on this basis to sweep the other crap aside and focus on my right to claim. Royal Mail should be ashamed of themselves as their conduct really does border on criminality via deception.
  4. Thanks Andy & Grumpy for your assistance. I will be issuing updated documents to Royal Mail Group Ltd in the near future and this should be pretty straight forward given their written consent to this. I do not know if anyone has had a chance to read their defence posted above yet? I am sure its some sort of standard document they just use in a harsh attempt to put people off from rightfully holding them to account. Pretty sad that a business with a history like Royal Mails should conduct itself in such a way.
  5. Here is their defence doc - 8 pages in pdf format. I have made slight privacy eradications to protect individuals privacy as well as that of the defence solicitors trading name. RM Defence.pdf
  6. Update: I have their letters to hand now; their letter head has a Royal Mail emblem and the response address is one of their RM locations - Plymouth. They do write the name and address of their reg'd office as "Royal Mail Group Ltd" - in London in very small print at the foot of the page. However, they do trade simply as "Royal Mail" and in their letter they also actually invite anyone who feels RM has acted wrongly to write to them at: Escalated Customer Resolution Team, "Royal Mail" PO Box 466, Plymouth, PL9 7JH. They do not say write to "Royal Mail Group Limited". Further, in the letter they refer to T's&C's as "Royal Mails T's & C's" and not "Royal Mail Group Ltd" T's&C's. In view of this one would have thought they accept they trade as Royal Mail therefore RM being cited as the defendent should still hold?
  7. Hello Bankfodder, There defence consists of the following points although they did refer to a circumstance where they would be liable [12] but assert this does not apply as I was negligent in packaging the item [14]. RM's legal team have lodged a defence which in my is perhaps simply an attempt to muddy the water and over complicate the issue by arguing various immunities: 1. No contract was entered into between the parties 2. RM has immunity to a claim in tort in respect of such delivery of post 3. RM may only be liable to pay compensation if the conditions of the scheme known as the Royal Mail UK Postal Scheme (UK Post Scheme) are satisfied. 4. The claimant did not comply with RM's packaging guidelines therefore compensation is not available. 5. Even if the RM is liable under the UK Post Scheme, liability is limited under the scheme and the defendant, RM, is not liable for consequential loss. 6. Further argument of no contract existing quoting Harold & Stephen Co Lts V RM {1978} 1 AII ER 939 7. Immunity in tort: Citing Ofcom designation of RM as a "Universal Service Provider" USP* within the meaning of Sect 65(1) of the Postal Services Act 2011 and Ofcom's designation being made under Schedule 9, para 3(1) of the PSA 2011. 8. Citing RM as a Postal Operator under Sect 27(3) of the PSA 2011 and a scheme under Sect 89 of the PSA 2011. 9. As RM is a USP* & a Postal Operator there is no right to a claim of tort as sections 89 & 90 of the PSA 2000 applies. 10. Guaranteed Next Day Delivery is a scheme under the UK Post Scheme notified to Ofcom under Sect 89A of the PSA 2000. 11. Under the arrangements of the UK Post Scheme, in the absence of no arrangements under the UK Post Scheme no compensation is payable even if RM are deemed negligent. 12. They do admit compensation can be made under Sect 91 of the PSA 2000 provided all the terms of the scheme are complied with. [this makes all the waffle above seem rather irrelevant?] 13.They make further references to packaging guidelines and their service users obligations under this aspect of their T&C's. 14. The claimants packet did not meet with the requirements of the packaging guidelines therefore RM is not liable.
  8. Hi Silverfox1961, thanks for your message - I appreciate your help and the help of everyone else to date. I am actually looking forward to getting into Court to discuss the matter as it would appear RM does not want to accept responisbility for anything they do to their customers parcels or mail. RM is now privatised and making money so they should act more responsibly in respect of such matters.
  9. Hi Joey, yes it would seem they are in dispute with themselves on this point!
  10. Update: RM's solicitors have said their clients are being incorrectly sued - they say it should be Royal Mail Group Ltd and not Royal Mail. They have said they have no objection to this being amended by me. [it all seems rather stupid as my letters are from Royal Mail]. Does anyone know if its significant enough to stop the claim once the case is heard given their solicitors state they have no objection to any amendment and have also issued a defence to the claim issued to Royal Mail? However, other issues arise not with their solicitors if I apply to amend with the Court as they want a fee of £50 to make this simple amendment despite the cost of raising the original claim only being £25! Forms N244 & N1 SDT required. There is the option of exploring the re-issuing of a new claim at £25 but you need to get the court to give permission for this under Cival procedure rules as the defendents have issued a defence. NB: Cival Procedure rules do state defendants cannot ask for costs in respect of any such work carried out with responding to the orginal discontinued claim on small claims track cases only. [Just flagging this in case anyone else also has a similar issue]. Another thing I noted is that RM wrote to me from a full address which included a PO Box reference and my correspondence has been to the same to date - not sure how this stands going forward as its possible RM or the Court might say you cannot take future enforcement action to this address because it includes part reference to a PO Box - anyone have any experience of such a problem?
  11. Thanks Mr P - these were very useful; in particular the issue re their rumblings over any contractual relationship exisiting.
  12. Thanks for the link - I will have a read through it to see if it can provide any clarity on the privatisation process and any conditions imposed on RM.
  13. I am not sure of the exact situation now regarding previous immunity they used to hide behind under some legislation given they have now been privatised. The law does state that you can sue RM for tort in certain circumstances. If you put all the water muddying they have put in their defence to one side and actually look at the reason put forward for rejecting the claim - ie the item not been packaged properly then it will be for the court to decide this.
  14. Hello Conniff, thats exactly one of my points. This just leaves me with a view that RM operate a policy of rejecting all claims to push customers towards the hassle of taking SCCA through MCOL. I did say in my small claims action that I felt RM were disingenuous when handling my claim from the outset. In reality this individual has done me a favour as he its actually allowing me the opportunity to discredit RM's own witnesses......
  15. Yes you can sue Royal Mail: when using a premium service (i.e not normal 1st or 2nd class normal post) provided you have acted reasonably and followed their guidelines. This right to sue is given in Section 91 of Postal Services Act 2000 - Royal Mails own solicitors conceded this point to me in writing.
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