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Parcel delivery insurance is prohibited under section 57 – Consumer Rights Act – Read about It Here and in The Times. ×


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    • Post in Suing a parcel delivery company when you don't have a direct contract with them – third-party rights Copy of judgment available

      BankFodder posted a post in a topic,

      We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Parcel delivery insurance is prohibited under section 57 – Consumer Rights Act – Read about It Here and in The Times.

Smile Current Account Charges

TomMcLaren

By TomMcLaren
in Smile

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TomMcLaren

TomMcLaren

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I have a smile account that I have never really used, that was £480 overdrawn vs a limit of £500. An annual direct debit for £53 was charged to my account in Novemember, which was rejected by Smile. I was charged £20, leading to my account being over my limit for 5 days until I corrected it. However, I was subsequently charged a further £40 (£5 a day for being overdrawn and a £15 "service charge", presumably for the red ink). When these charges were applied this pushed me over my overdraft limit again. I was away at the time and only checked my account today. In the meantime I have been charged £90 in overdraft charges and accrued a further £160 yet to be applied.

 

Outside of how unreasonable the scale of the charges, (******s) I believe that they are not allowed to charge me for the overdraft when it was their charges that caused me to be overdrawn. Does anyone know if this is the case?

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Guest stephen

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Hi Tom the charges they have applied are penalty charges and therefore in my opinion are illegal. if I was you I send them a letter requesting a refunded of the money within 14 day or your have no alternative but to start legal action.

 

If you want a sample letter to send them, please email me and are send you one I have written. Alternatively, there is one on the forum you can download.

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Hi, Tom as I just said in my email court should always be the last action. However sadly from my own experience, it is the only action that the banks understand.

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TomMcLaren

TomMcLaren

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Just thought you might like to know that I received the following reponse today:

 

Hello Mr McLaren

 

As an internet bank we give our customers the responsibility of checking on their account as they have 24 hour access to their access via the internet. Full details are contained in the terms and conditions of your account. I'm sorry I'm unable to refund any of the charges for you as this was not a bank error.

 

Thanks

 

Sarah

 

To which I have replied:

 

Let me clarify the position. The £20 charge for an unpaid item applied 25th November led to my account being £9.80 above my overdraft limit. Despite my deposit of sufficient funds to correct this overdraft, the further £40 charges that you applied for the overdraft that your charge created caused me to incur a further £250 in overdraft fees.

 

I do not dispute the £20 initial charge. However, your application of further charges based on this initial £20 charge is contrary to the Unfair Terms in Consumer Contracts Regulations 1999. As I'm sure you are aware, the schedule to these regulations identifies a disproportionate penalty charge as being unfair and therefore invalid. I request that you refund all charges that have been unfairly applied to my account and ensure that no further charges are made. Furthermore, please state in your reply that it is your final response to my complaint in order that, if required, I may proceed with legal action.

 

That was an abridged version of the original letter I wanted to send, but that breached the 1000 character limit on their online secure messaging system (useless!!), as follows:

 

Dear Sir or Madam,

 

Thank you for your reply to my enquiry. As you have full access to my account details, I am sure you have investigated my request thoroughly. However, I feel that you may not have understood the sequence of events that occurred and led to charges being applied to my account. Specifically, it was your charge for the unpaid item in October (applied 25th of November) that led to my account being £9.80 above my overdraft limit. Despite the deposit of funds sufficient to bring my account back beneath my limit, the further charges that you applied for this "unautorised overdraft" (£15 service charge and £25 for 5 days"Daily Charge") again pushed my account over my overdraft limit. As I did not correct this until last weekend, I have subsequently been charged £90 in fees, with a further £160 accrued and to be applied on the 20th of this month. I assume that there will be a further charge applied in March.

 

I am fully aware that the fees I have been charged are specified in the terms and conditions of my account. As such, I do not dispute the £20 charge for the refused item. However, your application of this £20 fee to my account has led to the further accrual of £290 in overdraft fees to date. This £290 in charges to date is contrary to the Unfair Terms in Consumer Contracts Regulations 1999, in that the charges are unfair. As I am sure that you must be aware, the schedule to these regulations identifies a disproportionate penalty charge as being unfair and therefore invalid. Additionally, Penalty charges are not recoverable at Common Law. Precedents include Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79, along with Murray v. Leisure play [2005] EWCA Civ 963, whereby it was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

Given the unfair nature of these charges, and the lack of legal basis for their application, please refund all charges that have been unfairly applied to my account and ensure that no further charges are made. If you are not willing to comply with this request, please state in your reply that it is your final response to my complaint, in order that I may proceed with legal action.

 

Yours Faithfully,

 

Tom McLaren

 

Thanks for the inspriation Stephen!

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TomMcLaren

TomMcLaren

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Just thought I'd let you know I a response from Smile - they offered to cancel the charges that hadn't been applied as a customer relations exercise - do they not get it?!!! I've stuck to my guns, said "thanks but no thanks and by the way I've cleared all the debt that I have calculated I owe you so please close my account". Got a standard "this is to let you know our complaint policy" reply, so fingers crossed they might actually do something this time!! :roll:

 

BTW - I've decided that once I resolve this I'm going to claim back all prior charges. If it goes to court I'll make it a full charges case...

 

Tom

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BankFodder

BankFodder

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You shoudn't close your acocunt. Let them do it if they want.

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TomMcLaren

TomMcLaren

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This topic was closed on 03/05/19.

If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support their.

If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

- Consumer Action Group

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Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

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