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david_v_goliath

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About david_v_goliath

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  1. Thanks Andy. Lower down in that link, it also suggests that: I have a right to inspect the document since it is referred to in Hermes' defence (which I think fall sunder 31.14 (1) (a)), that I must provide Hermes with written notice of my wish to inspect it, and that Hermes will have 7 days to provide it. So I will serve notice under 31.14 and 31.15 to Hermes by email, and file a certificate of service with the Court. I don't think I need to wait allocation etc. to make the request under these rules Documents referred to in statements of case etc. 31.14 (1) A party may inspect a document mentioned in – (a) a statement of case; (b) a witness statement; (c) a witness summary; or (d) an affidavit(GL). (e) Revoked. (2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings. (Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report) Back to top Inspection and copying of documents 31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. (Rule 31.3 and 31.14 deal with the right of a party to inspect a document)
  2. Thank you Andy - that's helpful. While I did not refer to the Hermes-Packlink contract, Hermes' defence does, and it does so quite explicitly: "Defendant also works as a subcontractor to provide delivery services to customers of PACKLINK Shipping S.L (“Packlink”) who are a company registered in, Spain with the number CIF B83357863 whose registered address is Calle Amaltea, 9 28045 Madrid pursuant to a pre-existing commercial agreement to carry out delivery services". So I think this means that Hermes should disclose this "pre-existing commercial agreement" in Standard Disclosure. It sounds like your advice is to wait for the process, and see if Hermes discloses the contract. I know you said disclosure happens after allocation - but do you know if there is typically a deadline on that disclosure? Essentially, I am wondering whether I will have enough time to review the contract (or to request its disclosure and inspection, if Hermes does not volunteer it as it should), before writing my witness statement.
  3. Thanks both. I received the DQ and have been advised to complete by 9 April and serve on defendant. So I will be sending it by email today - agreeing for referral to the small claims mediation service, and requesting a hearing venue near to my home (although I imagine all hearings will be held remotely for the foreseeable future anyway). I also managed to speak to MCOL on the phone. They didn't seem to know how I could make a request for the court to order the Defendant to disclose documents. They suggested I might file an N265 (https://www.gov.uk/government/publications/form-n265-list-of-documents-standard-disclosure) or N244 (https://www.gov.uk/government/publications/form-n244-application-notice) form. Neither of these seem appropriate to me. Can I just email the Defendant directly to ask for disclosure of the Hermes / PackLink contract? Or email the Court? I think it might be helpful to have this document in advance of any mediation or hearing (or at the very least, a document showing that I have requested the contract, and that the Defendant has refused to disclose it)!
  4. Thanks Andy. I have called MCOL, and their recorded message suggests that they are closed indefintely. I also emailed, and got an automatic response stating "Following continued advice from the Government, the County Court Business Centre is temporarily closed due to the Covid-19 outbreak". I guess my DQ has been delayed because of this...will wait and see, as it seems there is not much more that I can do at this point!
  5. Thank you for your thoughts and advice! I will do as you suggested. A have a couple of questions on timing and format. On timings: I am still waiting for a mediator to contact me, and to receive the the directions questionnaire. Should I wait on either / both of these before proceeding with the CPR31.14 request? The status of the claim is as below. This suggests to me that the DQ has only been sent to Hermes, and not to me, so I don't know if I'll ever receive it. It doesn't seem to be available on the MCOL website. A bar was put in place for Hermes Parcelnet Limited on 20/03/2020 Hermes Parcelnet Limited filed a defence on 20/03/2020 at 14:05:15 DQ sent to Hermes Parcelnet Limited on 23/03/2020 On format: Is there a prescribed form, or wording for the CPR31.14 request? Or do I just send a letter to the Court and Hermes, requesting disclosure of Hermes/PackLink contract under CPR 31.14, and make reference to this contract being relied upon in Hermes' defence? Sorry for what may be stupid questions - but I can't fine answers to these in the MCOl guide, or in your (generall very helpful) FAQ on this website!
  6. @dx100uk - attached now. I have copied the wording into a new document, anonymised it, and added a couple of notes of my own (all highlighted yellow) including for ease of reference to relevant sentences in my claim. I'd welcome your and BankFodder's thoughts and advice! @BankFodder - they refer to being a subcontractor to Packlink, at paragraph 4. CPR 31.14 seems to relate to "Documents referred to in statements of case etc....(1) A party may inspect a document mentioned in...(a) a statement of case". I wonder whether Hermes' wording is sufficient to make a request? And your latter two points make perfect sense to me! Hermes' defence - anonymised.pdf
  7. Hi @BankFodder - I hope you are keeping well! I have finally received a response from Hermes to my claim. It is a full defence. Hermes admits that it has lost my parcel, puts me to strict proof as to the value of the claim, but denies that it is liable to pay damages claimed for break of contract and/ or negligence. It asserts that there is no contract between Claimant and Defendant, and that Claimant enterted into a contract with Packlink, which was made very clear during the order process, and that Claimant should desist with this claim and contact Packlink. Hermes does not ever aknowledge that I rely on the Contracts (Rights of Third Parties) Act 1999. I am hoping for a mediation (although I have not yet been contacted). If not, I suppose I will receive a directions questionaire next, and will need to prepare for a hearing. Would it be helpful for me to upload the defence (or an anonyised version of it) here? Also, in one of the FAQs on this website, you suggest that I could write to the court and suggest some directions, if, for instance, I feel that the defendant has been withholding evidence. Do you think Hermes ignoring my claim in relation to the Contracts (Rights of Third Parties) Act warrants requesting disclose of the contract between Hermes and Packlink - with the purpose of verifying that there is no explicit exclusion that would warrant this act inapplicable?
  8. What a pain. Your case is very similar to my own. I suggest you read the following link, and follow the advice posted on there! https://www.consumeractiongroup.co.uk/topic/419960-interesting-packlink-hermes-ebay-claim-where-does-the-liability-lie/
  9. Served on 16 Feb. On reviewing the MCOL website today for an updated, I noticed that 1) Hermes has aknowledged the claim, but not yet filed a defence, and 2) that I there was a glitch / error on the form. Essentially, it looks like I had accidentally left the "I will send detailed particulars of claim" box ticke (I thought I had unticked it), with the result that the claim section has been truncated, and some extra text has automatcially been added - in red below): "...Claimant seeks £XXX, plus I will provide the defendant with separate detailed particulars within 14 days after service of the claim form. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of..." This is obviously not ideal. Is it better to try to amend the claim somehow, or to just submit a brief POC that a) clarifies that I am seeking £XXX plus costs (which was automatically truncated), and b) sets out my calculation of the £XXX?
  10. No to putting it in a WS? Do you mean I should put it in the detailed POC instead, or not at all?
  11. Thank you @BankFodder for that suggested wording, and @dx100uk for confirming. I had forgotten about the possibility of serving a witness statement. Presumably I will get an option to do that if and when Hermes files its defence, and the Court orders standard disclosure? The only other reason I can think of to file detailed particulars of claim is explain how I have quantified my claim - as attached (as the calculation is not otherwise obvious). Should this go in the WS too?
  12. @BankFodder, I have registered with MCOL, and am preparing my claim form. I have ticked the 'will send detailed particulars of claim' option, and the 'I'm claiming interest at the statutory 8% rate' box. In the brief, POC box, I am stating the following: 1. On 23 Jan, I sent a package using the Hermes delivery service. 2. On 2 Feb, Hermes confirmed that “the parcel is lost in our network”, but refused to compensate me, “as your parcel was booked through Packlink”. 3. On 9 Feb, I issued a claim for compensation to Packlink. I received £32.29. 4. On 11 Feb, I issued a letter before action to Hermes, requesting compensation for the balance of my loss. 5. On 12 Feb, Hermes again denied any compensation. This just about fits! I have few questions: a) Should I be making reference to the grounds of my case here, i.e. by reference to the Contracts (Rights of Third Parties) Act, and or an accusation of negligence in the alternative, or should I just detail that in the detailed particualrs of claim b) Disclosure. How can I get access to the contract between Packlink and Hermes, to ensure that there is no third party exclusion clause? c) Have I missed anything else (I've followed your guide on this forum, and also the user guide on MCOL)
  13. A quick update: as expected, Packlink have sent me a default settlement letter, paying £25 compensation only, and refunding my shipping fee. They state in this letter that: "The compensation claim for loss of the shipment XXX has been accepted. Please remember that shipment was covered only with standard compensation. No enhanced compensation was purchased with the postage label....With this settlement letter, all future legal obligations against us are satisfied." I have therefore sent a letter before action to Hermes, giving them 14 days to pay the balance of compensation.
  14. Thanks - I had not formalised the claim with Packlink, as I understood that they would simply pay max £25, and take ages to do it, and that I'd end up having to go to Hermes anyway. I have just today filed the "Insurance Claim Form" with Packlink. They say it could take up to 90 days for a resolution. I have sent them an email asking for a response within 14 days (which I think is reasonable). If they do not fully compensate me within 14 days, I intend to send a letter before action to Hermes, asking for compensation for the balance (i.e. the total amount, less anything that Packlink have provided by then). Will keep this thread updated.
  15. Thanks again @BankFodder. As you sugested, I have reviewed the small claims process, but before I push 'go', I want to be sure of three things: (a) whether I should be seeking compensation from Packlink (per my question in post 18); (b) the wording of my letter better action (and in particular the two questions I flagged in red font in post 18), and (c) the legal grounds of my case. What do you think about (a) and (b)? On (c), i.e. the legal grounds of my case, here is my understanding. Would appreciate your (any anyone else's) thoughts! I understand that Hermes will refuse to compensate me fully on two grounds: first, that my contract is with Packlink, not Hermes; and second, that I chose not to purchase the optional compensation, from Packlink and in doing so, I accepted a £25 limit on compensation / liability. They have only asserted the former so far, but I expect that they will also assert the latter in due course. I’m going to address these in turn. On the first, I understand that your advice is that I assert that the Contracts (Rights of Third Parties) Act, as this gives me the same rights as a contracting party (which I think would by Packlink). Are you aware of any such actions being brought against Hermes (or other couriers)? Do you know what sort of defences they are likely to assert? You have already mentioned they could assert that the agreement between Packlink and Hermes specifically excludes third parties from bringing an action against Hermes. To me, this seems quite likely, especially if the agreement between them was drawn up by a competent lawyer. I assume that the agreement is private, and so I have no way of knowing whether I am on solid legal ground, or not. Is that correct? Can I request the contract somehow, either through some sort of subject access request, or by mentioning it in my letter before action, and / or as part of any available disclosure in a small claims court case? On the second, I understand that your advice is that the requirement to purchase compensation is an ‘unfair term’ under the Consumer Rights Act (2015). Having reviewed that legislation, it seems I need to argue that the requirement to purchase compensation causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the myself. It seems to me that I am on very solid grounding here – unless you know of any likely defences that I have missed? According to the CMA’s guidance on unfair terms: “If wording could be used to reduce or remove consumers’ ability to seek redress to which they would otherwise be legally entitled, it is likely to be considered unfair, even if that was not the intention.” (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450410/Unfair_Terms_Explained.pdf) The CMA’s more detailed guidance states that: “5.6.1 If a contract is to be fully and equally binding on both trader and consumer, each party should be entitled to full compensation where the other fails to honour its obligations. Clauses which limit the trader’s liability are open to the same objections as those which exclude it altogether. See paragraphs 5.2.1 to 5.2.10 regarding disclaimers generally. 5.6.2 Use of a term restricting liability for breach of consumers’ rights under Part 1 of the Act is very likely89 to be blacklisted as well as unfair (see above, paragraph 5.2.4), and as such its use may give rise to enforcement action as a misleading commercial practice (see part 1 ‘other legislation’ on the CPRs) in the same way as terms that exclude liability in full.” (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf) Finally, how do I show that Hermes has failed to honour its obligations (or been negligent), when I don't have access to the Packlink/Hermes conract in which the relevant obligations are likely set out?
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