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    • The reason that I have indicated that it is the seller who should bring an action against Hermes is not because they are the seller – but because they are the person who suffered the loss. If you haven't suffered a loss then you probably don't have the status – locus standi – to bring a court action. Of course there is a slight problem that you didn't enter into the contract with Hermes – the purchaser did. Until 1999 this would have been a problem and would have prevented you from bringing any kind of action at all – at least on the basis of contract. However, since 1999, the Contracts (Rights of Third Parties) Act gives the beneficiary of any contract full third party rights as if they were a contracting party. The only exception to this is that if the contract specifically excluded non-contracting parties – and I'm not aware that Hermes has yet amended their contract to try and prevent this. Of course as usual, Hermes will make a big point about the fact that no insurance was purchased. Hopefully you have been reading around the threads on this sub- forum and you have seen that our view is that it is completely unfair and in fact it is absurd to require a customer to pay money to protect Hermes or any other service provider from the consequences of their own negligence or the criminality of their own employees. Every time this point has been raised with Hermes in mediation, Hermes have settled and we consider that it is because they want to avoid going to court to get a definitive judgement that their insurance scam – is precisely that – a scam. On the basis of what I understand here, this is more than just negligence there is criminality and your bike has been stolen. You've already begun a complaint and you have been knocked back and so I think there's no point in mucking around and I think that you should simply issue a letter of claim to Hermes giving them 14 days to settle in full or else you will begin a court action. Make sure that you have read around the forum about taking a small claim in the County Court. It's very easy but you need to be aware of the steps. If you send the letter of claim, then don't expect that they are suddenly going to refund you your money. They won't. They will force you to issue the court papers and who will then force you to pay the hearing fee. At this point, they will opt for mediation and they will try to knock you down and get your compromise in your claim. You should stand your ground and refused to compromise even a single penny. We will help you all the way. You seem to be a seller and a purchaser here who are getting on very well together and so as you are motivated by a common purpose, you may want to get an agreement where you decide to share the fees of court action – which won't be very much. I haven't checked the court fees for this value claim – but I expect that the whole thing will be only about £120. Of course you will get that back when you win – but bear in mind there is a is a slight risk factor and that means that £120 would be the extent of your risk and would be the maximum that you would lose. It is inconceivable that you would lose. You should be claiming the cost of the bike, the cost of delivery, plus interest which is presently 8% – a very good rate in today's economic climate. Of course you will also claim back your court fees. If you want to proceed then please let us know and let us know also that you have read around the stories and also the steps involved taking a small claim in the County Court and that you understand what you are doing. If you do your basic reading over the next couple of days then we can help you draft a letter of claim on Sunday and you can send it off on Monday. I would recommend that you post your draft letter of claim on this forum so we can check it. Keep it short and to the point.
    • That's what keeps divorce lawyers and mediators in work, I suppose. You think he's being unreasonable and he thinks you are.   My gut feeling is that it would be better to have this agreed in writing so it can't be challenged later, but that's just my opinion. Here's more information from the CAB in case it covers something you haven't already considered.   HB
    • Biden doesn't seem bothered about negotiating a trade treaty to suit the UK government's timetable. I don't suppose they saw this coming, not that the amount of trade involved makes up for what's being lost with Europe anyway.   https://www.independent.co.uk/news/uk/politics/brexit-boris-johnson-usa-trade-deal-b1807616.html
    • No we haven’t mentioned divorce yet The fair split is I give him half the equity and anything he wants to take from the house  I just feel he is now being unreasonable because I won’t change my mind and take him back 
    • Hi.   Have you spoken to a divorce lawyer or has your husband? Trying to look at this from the outside, it sounds as if it would be better to agree a fair split according to divorce law rather than deciding between you.   Sadly, once money becomes involved things can become more complicated, but I'd have thought a divorce lawyer would be able to advise.   ETA: Here's some advice from the government.   HB
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    • 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
    • Natwest Bank Transfer Fraud Call HMRC Please help. https://www.consumeractiongroup.co.uk/topic/428951-natwest-bank-transfer-fraud-call-hmrc-please-help/&do=findComment&comment=5079786
      • 33 replies

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Was its offer in response to your email, was it presented to you as w/p?

 

You'll have to remind me.. has this been allocated to track yet?

 

Offers almost always start very low, pretty much at the level of the filing fee is the norm.

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Evening Mike,

 

Yes it was marked w/p save as to costs and referred to email.

 

The N149a says - It appears that this case is suitable for the small claims track

 

They have put my local court on the Tomlin Order, but have said they are confident that the court will set aside judgment and reinstate their defence at the hearing on 17th March (which has now been vacated by Chester) and strong prospects of defending my claim.

 

Up2

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Here's my revised WS

 

I have made a list at the end of it of evidence I will be submitting with it. I know there should be more but am not sure what is relevant and what isn't so again I would appreciate some help please.

 

Up2

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I`ve seen better... it doesn't appear to understand its proposal! A district judge won't agree to seal the order constructed like that.

 

For the sake of a few quid and a day lost for the hearing I'd be inclined to call her and ask for a chat off the record.

 

It will probably be granted the set aside and you'll probably come away with general directions for defence, disclosure, hearing etc on the sct... by the time you've run through the process there's no real win when you consider your time, travel, copying, phone... the list is endless.

 

Try her at say 90% and offer to draft the schedule.

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Up2

 

Let me know if/when you've had a chat with MBNA.

 

One point worth noting, if this proceeds to the hearing don't allow yourself to be drawn on the f&f settlement of PPI.. keep in mind the 2 separate elements of PPI and those of default/penalty charges.

 

S29 of the LA may also provide you with a greater chance of relief instead of s32 as you have a signed acknowledgment from the other side within the PPI redress.

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Hi Mike,

 

Have been without my dino laptop for what seems like forever (don't know how I managed lol) and since I last posted I have received a new hearing date for my local court, and have sent my W/S to them.

 

I have not been able to reply to MBNA offer by the deadline so not sure if I still can, but I really do not want to call.

 

I didn't manage to see your posts regarding S29 until today, and my w/s has already been sent so I'll have to hope that S32 is enough :|. Will the Court send a copy of it to MBNA? or should I have done that?

 

I wont let them try and bamboozle me into the f&f for PPI, I will have copies of the letters sent questioning their calculations after the PPI was received.

 

S29 of the LA may also provide you with a greater chance of relief instead of s32 as you have a signed acknowledgment from the other side within the PPI redress Sorry Mike, I'm not sure what you mean by this remark. The PPI redress was less than 2 years ago, and as far as I remember nothing was signed! does that make a difference? Or am I totally confusing myself (again :-( )

 

I also received a bailiff warrant returns report, that says:- To the Claimant, TAKE NOTICE that the WARRANT in this action has not been executed for the following reasons:- 149 DESCRIPTION - ORDER MADE XFERRING CASE TO XXXX. UNABLE TO XFER OUT WITH LIVE WARRANT. WRT TO BE REISSUED IF APPL SAJ UNSUCCESSFUL. The warrant has been returned to the Court which issued it.

 

That was from Wrexham CC, (where I was told by CCBC to send the request) and it appears to have been sent to Chester CC, but received the report from my court. I assume this means I will not have to pay for a new one if their set aside request is refused?

 

Thanks as always

Up2

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You should serve copy w/s on the other side and attach any docs you refer to and rely upon.

 

There is no time limit on your response, MBNA may want you to believe there is but the parties should be seeking to resolve the issues, setting time limits seems to contradict the overriding objectives.

 

Limitation act s29(7) refers to the extension of time by ack or payments, its PPI redress letter may satisfy the extension of usual 6 year bar. I note the account was assigned in 2005 and the redress was settled in 2012 so you may need to lay your hands on correspondence from it in the intervening years to fully satisfy the court.

 

Warrant fee, you should be able to recover this, send the other side a brief summary of your costs in the case to include the sa hearing and take a copy with you on the day.

 

Don't duck out of calling the other side, it can pay dividends and save a lot of time.

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You should serve copy w/s on the other side and attach any docs you refer to and rely upon. - [i]Will do[/i]

 

There is no time limit on your response, MBNA may want you to believe there is but the parties should be seeking to resolve the issues, setting time limits seems to contradict the overriding objectives. I will draft a letter explaining why their offer is unacceptable and that I have submitted a W/S and enclose a copy (and 15 pages of docs I refer to) The hearing is at the end of April so plenty of wiggle space. Should I also prepare my version of terms?

 

Limitation act s29(7) refers to the extension of time by ack or payments, its PPI redress letter may satisfy the extension of usual 6 year bar. I note the account was assigned in 2005 and the redress was settled in 2012 so you may need to lay your hands on correspondence from it in the intervening years to fully satisfy the court. I have letters from Link between 2005 and 2012, but alot of correspondence from MBNA from 2012 when the PPI refund was originally requested. As you say, they have paid the PPI after the six year period, so have they not basically acknowledged that the LA does not apply due to fraud/concealment/mistake? [/I]

 

Warrant fee, you should be able to recover this, send the other side a brief summary of your costs in the case to include the sa hearing and take a copy with you on the day. I will have a go, but I may need help with this bit

 

Don't duck out of calling the other side, it can pay dividends and save a lot of time. [I]I have been trying to build myself up to this but can't even get the first line rehearsed in my head - I deal with this sort of thing much better in person and am not as scared of having to go to court as I am picking up the phone. Nuts I know, but I don't want to call and get myself all tongue tied and appear weak and inexperienced for them to use against me

 

Thanks Mike

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S32 is always difficult to prove, s29 is far simpler 'if' you can show correspondence from the intervening years resulted in the 2012 redress.

 

MBNA's defence appears to be attempting to reverse the burden of proof to you. If it pleads the terms are fair you must press for disclosure of it breakdown of costs to establish whether the charges were a genuine pre estimate of loss.

 

Don't get in a flap, ring the other side and state you are prepared to settle for £xxx, don't get drawn on any arguments its purely to agree the quantum.

 

Costs summary is straightforward, something along the following lines but amended to suit your case;

 

13th February 2014

 

Dear xxxx

 

Re: Case no xxxxxxx Mr xxxxxxxxxxx v xxxxxxxxxxxxx Ltd

 

By way of service please find below summary of costs in the matter of xxxxxxxx hearing at 20th February 2014.

 

 

1. 1 day loss of earnings at Litigant in Person rate of £90.00 [Practice direction 27, para 7.3 (1)

2. Travel 20.4 miles round trip from XXXX XXX @ £00.45 per mile - £9.18

3. Parking £5.00

 

Total at £104.18

 

 

I trust the above is in order.

 

Regards

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EDITED POST I have decided not to send a variation of the Tomlin Order as I do not fully understand its use and have removed the attachment

 

 

Many thanks

 

Up2

Edited by up2meears
Have decided not to send a variation of Tomlin Order
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  • 1 month later...
EDITED POST I have decided not to send a variation of the Tomlin Order as I do not fully understand its use and have removed the attachment

 

 

Many thanks

 

Up2

 

Seems sensible Up2, any news from the other side yet?

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Hi Mike,

 

Since last posting, I have sent them another offer (when I sent my witness statement) but have heard nothing - that was about a month ago (Their solicitor needed to read my copy of the WS because MBNA didn't give her a copy).

 

The hearing for set aside was yesterday, and as you correctly advised it was allowed as it seemed they had submitted the docs correctly.

 

The Judge apologised that it had been an error of the court and explained that it will go back to the stage it was at. Fair enough.

 

He asked whether I had filled out the mediation form, which I do not remember seeing so I said no, but told him that I had requested mediation on the N180. He said that if mediation doesn't work or I am not happy with any offer they provide, then I can carry on through the court at the end of May.

 

I asked their solicitor lady where I get the mediation form from and she said the court will send me one - is that right or am I best requesting one?

 

In the assumption that this will now go to court I am starting to get paperwork ready and will be writing a letter to MBNA to press for disclosure (like you mentioned in post #264) for its breakdown of costs to establish whether the charges were a genuine pre estimate of loss. - I am assuming I can request this info now as I will need this in order to prove what they've stated I will need to prove - hope that makes sense

 

I am also sending a SAR to the DWP for confirmation of the dates I was in receipt of IB (although I have a copy of the letter I sent MBNA at the time asking for help which states the dates) but I thought this would be useful and also a letter to my local constabulary asking them to disclose the reason the job offer was withdrawn although I'm not sure if I can request this via a SAR or under something else like the Freedom of Information Act? - I will have to research.

 

I have started highlighting all the points in the OFT debt collection guidelines 2003 which MBNA have breached (getting all the evidence together I have to prove their breach) and have downloaded a copy of the UTCCR 1999 as they are using this in their defence regarding the legitimacy of the charges.

 

I am now going to dig out the dummys guide to preparing a court bundle which slick kindly provided me with a few months ago.

 

Up2

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Hi Up2,

 

I am now going to dig out the dummys guide to preparing a court bundle which slick kindly provided me with a few months ago.

 

Did I send you as copy by e-mail as the Site link may not be working.

 

:-)

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Hi Up2

 

I've sort of lost track of where you are with service of documents at this stage... do you have a copy of it's defence? If you've already posted it could you point me in its direction please.

 

Also, did the dj state whether he would allocate to small claims?

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Hi Mike,

 

Their defence is at post #56

 

The dj said he would allocate to small claims track

 

Up2

 

SCT is good news, not much prospect of it recovering it's costs for instructed counsel....... should provide you with a little more leverage to get this thing settled.

 

I'd start pressing it for disclosure of it's charges breakdown now, it will probably ignore but it should be under notice that if it seeks to defend on the basis that the charges are fair and is attempting to put the burden of proof on you it will be compelled at some stage to disclose. Perhaps remind it of schedule 2.1 (q)

 

(q)excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

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Brilliant Mike,

 

Many thanks for that I will draft a letter to send - probably tomorrow now as I am swimming in paperwork, but will post up for checking before I send.

 

Up2

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hi up2, just looking in :)

as expected, they got their setaside down to the 'error'. at least the j apologised! and you didnt get stung for any costs for the hearing. good luck.

IMO

:-):rant:

 

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