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    • Well done on your victory!  👏   You must have a magic touch, it's extremely rare that the PPCs accept an appeal.
    • Court hearing today. WON on all counts of claim. The win though is not the interesting bit, but the ‘why’ is really useful. We were allocated 90 minutes but it took two hours by telephone . The defense were represented but I failed to note whether by a solicitor, barrister or other advocate.   As soon as the judge finished the introductions and before he had time to pass the time over to me to explain my case, the defense interrupted and asked the claim be struck out. He then spent the next 40 minutes discussing with the judge that I had failed to properly serve my bundle upon which I intended to rely. The judge asked me to explain and I said I had served the bundle to them and the court 3 days before the deadline, by signed for post with a tracking number to the address named in the summons being the Royal Mail Head Office in London. I said it was a bit rich that they were making this request when they had failed to serve me and the court with their bundle within the deadline and that I had only just received it. They quoted a certain principle of law (which I failed to write down) which explained that service of documents must be made to the address which either party may request service to be made. They claimed that six months earlier when they lodged their defense to my summons, the covering letter had been sent from their Sheffield office and it constituted the address for future service of documents. I of course had no idea of such a requirement and said that a simple letter heading on a piece of correspondence was not the same as a formal sentence in a letter requesting such future service. It gave the judge some concern but he decided to park the issue and allow the hearing to continue.   I was able to explain my case for the £50 compensation for the lost parcel using the evidence from the defense bundle referencing the Overseas Post Scheme. It was all straight forward. I explained the facts and let them speak for themselves. I then moved on to the delayed Special Delivery items. This is where the fun began because I had to argue against their terms and conditions. I used the defense bundle referencing the UK Post Scheme. I quoted from various clauses which explained the rules relating to claims. That ALL delay claims must be made within 3 months, then that Special Delivery was actually 14 days so not 3 months after all, then another clause which confirmed the deadline was 3 months for all delay claims. I quoted further that these were “common terms” and that some services (Special Delivery was one) had additional terms which were called “specific terms”. Another clause stated that where a conflict arises between common and specific terms, then specific terms took priority. So I turned to the Special Delivery section to quote the specific terms as these would have priority. There was only one term that referenced claims. It simply said If we do not succeed in attempting to deliver by this time (being the next day) we will refund your postage. I used this single phrase to take priority over the 3 months  or 14 day deadline mentioned in the common terms. I discussed how the various clauses conflicted with themselves as if the clauses themselves did not know what the deadlines were and how ambiguous and confusing it was.   The time was then past to the defense and he started to argue there was no contract nor liability in tort (a substantial portion of their written defense document and bundle discussed this argument). It made me smile because I was ready for that. The judge though was ahead of the game and (especially because 40 minutes had been wasted at the beginning) he did not want to hear of it. After about one minute, he stopped the defense by saying exactly what I was preparing to say. Simply that I was not suing under contract or tort but under the conditions of the various postal schemes for which they were liable. He asked the defense to answer my claims. The defense then prevaricated trying to argue the clause that distinctly mentioned the 14 day time limit within which to make a claim for delay (which of course it did) ( as an aside, most people might accept that deadline and not bother to pursue a claim). He had nothing to add about the lost parcel.   Time had run out, we had no questioning and the judge said he was summing up. He was quite happy I had served my documents sufficiently well and took the view that the defense had fallen foul of the court order so he was cancelling out the question about valid service. He had no difficulty in accepting the claim that the lost parcel was valid and awarded me the £50 compensation. He then spoke at longer length about the delay claims and the conflict in the clauses. (at this point I had no idea which way this bit would go). Then, he spoke of how a business such as Royal Mail should not be accepting clauses in their contracts which were clearly inconsistant. (that’s when I started to relax), (and then the best takeaway of the hearing), He said that common law provides in the event of a standard contract if there is any ambiguity, the interpretation should be judged against the person drafting the contract. He called it Contra Proferendem. (I had no idea of that concept but had effectively explained it anyway). I was awarded the whole claim plus costs. The defense asked for permission to appeal which was refused.    Remember the phrase “Contra Proferendem” . I shall be looking more into it. I am sure it will come in handy against any institution that have drafted contracts that cannot be individually negotiated. And will certainly be useful for a long while yet against Royal Mail et al.
    • The White House highlights the upcoming offer of free trips in the US by the ride-hailing firms. View the full article
    • Original loan was £5000 unsecured over 5 years, 28 payments remaining, he wanted to extend it back up to 5 year.........the bank offered him £6700 to clear his credit card and the bank loan, £135 per month from the original figure of £121    One debt of two years old and one debt of 15 months        
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    • Ebay Packlink and Hermes - destroyed item as it was "damaged". https://www.consumeractiongroup.co.uk/topic/430396-ebay-packlink-and-hermes-destroyed-item-as-it-was-damaged/&do=findComment&comment=5087347
      • 33 replies
    • I sent in the bailiffs to the BBC. They collected £350. It made me smile.
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
      • 1 reply
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I've been asked to provide more information. I've searched it on the forums but couldn't find anyone with CPR 18 in this section. It says I haven't sent a list but I included a list in both my first letter and LBA. They want to know what I think is reasonable and give me the reason why and the principles behind the regulations I am relying on? Is there a standard response to this, so boring how they try to put ppl off and yet the all end up paying!!

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Look at the stickies in the Natwest forum, I can see at least 2 there. (Can't tell you if they're relevant to you, though, have never had to deal with one of 'em). ;-)

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OK the problem is I haven't so far received an AQ only submitted a claim a short time ago. I received a note to say the claim has been accepted and will be defenceded then this huge defence came through demanding copies of charges which were already sent twice so far!

The letter refers to the AQ a few times... do I need to wait until I get the AQ through before sending off ?

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just came through the post seconds in lol the AQ which is being dispersed with. I'll send off the draft

 

The Request

 

1. Please provide the following particulars in support of your claim:

 

2.1 In relation to each charge please identify (a) the date when the charges was charged; (b) the amount of the same; and © the reason(s) given for the charging of the same.

 

I refer the Defendant to the attached spreadsheet/document I have prepared in which I have listed the following:

 

(a) the date when each charge was charged;

 

(b) the amount of the same; and

 

© the reason given by the Defendant for the charging of the same.

 

2.2 In relation to each charge, please clarify the following;

(a) Is it the case of the Claimant the same should not have been charged?

The Claimant is aware that each charge has been debited by the Defendant from the Claimant’s account pursuant to the terms and conditions signed by the Claimant when the account was opened. However, please see my replies below.

 

(b) If yes; please explain why the Claimant contends that the same should not have been charged?

The Claimant does not contend that the same should not have been charged; merely that the charge made should have represented the Defendant’s liquidated losses and not the fixed charges applied by the Defendant according to the terms and conditions in force at the time the charge was made.

© If no; is it the case of the Claimant that the same should have been charged in this amount?

This is exactly the Claimant’s case. Each charge debited by the Defendant from the Claimant’s bank account should not have been charged in the amount that was charged. It is the Claimant’s case that each charge is a disproportionate penalty in that each charge does not truly represent the actual cost to the Defendant. The Claimant reminds the Defendant that it has been put to strict proof in previous correspondence and/or the Particulars of Claim that the amount charged for each charge debited does truly reflect the Defendant’s costs and that they are not making a profit from such charges – in the absence of any documentation to support the Defendant’s contention that each charge debited represents the Defendant’s liquidated losses, the Claimant contends that the Defendant has no defence to the claim that each charge is disproportionate and therefore unenforceable in common law, or by the previously claimed Acts, Statutes and Regulations pleaded.

 

(d) If yes; please explain why the claimant contends that the same should not have been charge in this amount and identify the sum the claimant contends should have been charged.

The Claimant cannot specifically reply to this request in that the amount that should have been charged cannot be specified because the Defendant has failed to reply to the Claimant’s request for a breakdown of costs incurred by the Defendant in applying charges to the Claimant’s account. The Defendant’s contentions that the charges are fair, reasonable and transparent are denied because of this material failure to disclose this information. Had the Claimant been made aware of the breakdown of each and every charge debited, the Claimant would have been able to reply to this particular request.

 

(e) If no; please state the claimant case.

The Claimant has already stated a case in the Particulars of Claim (or as amended) and repeats the same claims as if they were repeated in this reply. The Claimant also refers the Defendant to the answer at 2.2© above.

 

3. In your claim you state that the charges are "unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999, the unfair Contract Terms Act 1977 and at Common law" and 2they must be reasonable under s15 of the Supply of Goods and Services Act 1982

4. Please specify all of the facts relied on by the Claimant in support of the contentions in paragraph 3 above, and in particular please identify (a) the section(s) of the Unfair Contract Terms Act 1977 ("UCTA 1977"); (b) the regulations of the Unfair Contract Terms in Consumer Regulations 1999 ("the regulations"); and © the principles of common law replied upon by the Claimant in alleging that the contractual provision(s) referred to are unenforceable. Please also identify the contractual provision(s) that the claimant alleges are unenforceable by reference to UCTA/ the regulations.

The Claimant specifically pleads that the charges debited to the Claimant’s account by the Defendant are automatically unfair because, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract (which the Claimant pleads is invalid in any event) to the detriment of the Claimant. “Good faith” (as defined by the Unfair Terms in Consumer Contracts Regulations 1999) means that that the Defendant must deal fairly and openly with the Claimant. The Defendant has not dealt fairly and openly with the Claimant. Further, as the contractual term (i.e. each and every charge debited from the Claimant’s account according to the “contract” entered into by the parties pursuant to the Defendant’s terms and conditions, as well as the terms and conditions themselves) was not individually negotiated and was drafted in advance, the Claimant was unable to influence the substance of the term, making it unfair. In the absence of a breakdown of the Defendant's liquidated losses and/or actual costs of each and every charge applied to the Claimant's account, the contractual term in force at the time of the charge forced the Claimant to pay a disproportionately high sum to the Defendant in compensation for the Claimant’s alleged failure to fulfil his obligation.

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  • 3 weeks later...

We've received a letter offering £229.53 which apparently covers charges, well it doesn't lol before claim it totaled £256.01 and since one of two more mistakes (but won't happen again) now £303.20.

 

The court has also written asking for a reason as to why they shouldn't wait until the OFT case concludes... ?? Any Ideas?

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