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    • Hi, despite saying you would post it up we have not seen the WS or EVRis WS. Please can you post them up.
    • Hi, Sorry its taken me so long to get round to this, i've been pretty busy today. Anyway, just a couple of things based on your observations.   Evri have not seen/read my WS (sent by post and by email) as they would have recognised the claim value is over £1000 as it includes court fees, trial fees, postage costs and interests, and there is a complete breakdown of the different costs and evidence. I'd say theres a 1% chance they read it , but in any case it won't change what they write. They refer to the claim amount that you claimed in your claim form originally, which will likely be in the same as the defence. They use a simple standard copy and paste format for WX and I've never seen it include any amount other than on the claim form but this is immaterial because it makes no difference to whether evri be liable and if so to what value which is the matter in dispute. However, I have a thinking that EVRi staff are under lots of pressure, they seem to be working up to and beyond 7pm even on fridays, and this is quite unusual so they likely save time by just copying and pasting certain lines of their defence to form their WX.   Evri accepts the parcel is lost after it entered their delivery network - again, this is in my WS and is not an issue in dispute. This is just one of their copy paste lines that they always use.   Evri mentions the £25 and £4.82 paid by Packlink - Again, had they read the WS, they would have realised this is not an issue in dispute. They probably haven't read your WS but did you account for this in your claim form?   Furthermore to the eBay Powered By Packlink T&Cs that Evri is referring to, Clauses 3b and c of the T&Cs states:  (b)   Packlink is a package dispatch search engine that acts as an intermediary between its Users and Transport Agencies. Through the Website, Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line. (c)  Each User shall then enter into its own contract with the chosen Transport Agency. Packlink does not have any control over, and disclaims all liability that may arise in contracts between a User and a Transport Agency This supports the view that once a user (i.e, myself) selects a transport agency (i.e Evri) that best suits the user's needs, the user (i.e, myself) enters into a contract with the chosen transport agency (i.e, myself). Therefore, under the T&Cs, there is a contract between myself and Evri.   This is correct but you have gone into this claim as trying to claim as a third party. I would say that you need to pick which fight you wan't to make. Either you pick the fight that you contracted directly with EVRi therefore you can apply the CRA OR you pick the fight that you are claiming as a third party contract to a contract between packlink and EVRi. Personally, I would go with the argument that you contracted directly with evri because the terms and conditions are pretty clear that the contract is formed with EVRi and so if the judge accepts this you are just applying your CR under CRA 2015, of which there has only been 2 judges I have seen who have failed to accept the argument of the CRA.   Evri cites their pre-existing agreement with Packlink and that I cannot enforce 3rd party rights under the 1999 Act. Evri has not provided a copy of this contract, and furthermore, my point above explains that the T&Cs clearly explains I have entered into a contract when i chose Evri to deliver my parcel.    This is fine, but again I would say that you should focus on claiming under the contract you have with EVRi as you entered into a direct contract with them according to packlink, as this gives less opportunites for the judge to get things wrong, also I think this is a much better legal position because you can apply your CR to it, if you dealt with a third party claim you would likely need to rely on business contract rights.   As explained in my WS, i am the non-gratuitous beneficiary as my payment for Evri's delivery service through Packlink is the sole reason for the principal contract coming into existence. I wouldn't focus this as your argument. I did think about this earlier and I think the sole focus of your claim should be that you contracted with evri and any term within their T&Cs that limits their liability is a breach of CRA. If you try to argue that the payment to packlink is the sole reason for the contract coming in between EVRI and packlink then you are essentially going against yourself since on one hand you are (And should be) arguing that you contracted directly with EVRi, but on the other hand by arguing about funding the contract between packlink and evri you are then saying that the contract is between packlink and evri not you and evri.  I think you should focus your argument that the contract is between you and evri as the packlink T&C's say.   Clearly Evri have not read by WS as the above is all clearly explained in there.   I doubt they have too, but I think their witness statement more than anything is an attempt to sort of confuse things. They reference various parts of the T&Cs within their WS and I've left some more general points on their WS below although I do think  point 3b as you have mentioned is very important because it says "Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line." which I would argue means that you contract directly with the agency. For points 9 and 10 focus on term 3c of the contract  points 15-18 are the same as points 18-21 of the defence if you look at it (as i said above its just a copy paste exercise) point 21 term 3c again point 23 is interesting - it says they are responsible for organising it but doesnt say anything about a contract  More generally for 24-29 it seems they are essentially saying you agreed to packlinks terms which means you can't have a contract with EVRI. This isnt true, you have simply agreed to the terms that expressly say your contract is formed with the ttransport agency (EVRi). They also reference that packlinks obligations are £25 but again this doesn't limit evris obligations, there is nothing that says that the transport agency isnt liable for more, it just says that packlinks limitation is set. for what its worth point 31 has no applicability because the contract hasn't been produced.   but overall I think its most important to focus on terms 3b and 3c of the contract and apply your rights as a consumer and not as a third party and use the third party as a backup   
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    • 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.
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      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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Accord chasing for shortfall yet gave me a cheque for £50


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Hi Again,

 

I'm still struggling with Accord mortgages over a shortfall from them selling the property for half of what was paid 9 years ago.

 

My ex did a deal recently so I'm left with my half of the debt.

 

I've made a small settlement offer 8% of debt over a month ago. Accord keep pushing me to deal with them over the phone, which I have no wish to do. They also keep pestering me to fill in an expenditure form. I've explained I'm about to be out of work so I don't see how filling in the form is a fair representation of my financial position given I have one more pay day before unemployment. I can't fill in the form based on being unemployed as not sure how much benifits I will get.

 

I've explained all this, given them proof I'm not in perm employment, I've also given proof of what the property is worth and that I feel they should never have sold so cheap given value has increased so much. They came back to me saying I refuse to talk to them despite them willing to discuss over the phone. They feel they have done no wrong and as a good will gesture have given me a cheque for £50.

 

I'm writing again asking them to clarify why they need the form given I'm going to be out of work, or do they want me to wait until April and do the form then? Surely they have to answer those questions rather than keep sending long letters pestering me to chat on the phone?

 

These forms are just such a headache to do so I don't want to do one based on this month if they then are going to want another next :|

 

Getting a bit frustrating and the cheque they sent felt like an admission of guilt

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Hi Again,

 

I'm still struggling with Accord mortgages over a shortfall from them selling the property for half of what was paid 9 years ago.

 

My ex did a deal recently so I'm left with my half of the debt.

 

I've made a small settlement offer 8% of debt over a month ago. Accord keep pushing me to deal with them over the phone, which I have no wish to do. They also keep pestering me to fill in an expenditure form. I've explained I'm about to be out of work so I don't see how filling in the form is a fair representation of my financial position given I have one more pay day before unemployment. I can't fill in the form based on being unemployed as not sure how much benifits I will get.

 

I've explained all this, given them proof I'm not in perm employment, I've also given proof of what the property is worth and that I feel they should never have sold so cheap given value has increased so much. They came back to me saying I refuse to talk to them despite them willing to discuss over the phone. They feel they have done no wrong and as a good will gesture have given me a cheque for £50.

 

I'm writing again asking them to clarify why they need the form given I'm going to be out of work, or do they want me to wait until April and do the form then? Surely they have to answer those questions rather than keep sending long letters pestering me to chat on the phone?

 

These forms are just such a headache to do so I don't want to do one based on this month if they then are going to want another next :|

 

Getting a bit frustrating and the cheque they sent felt like an admission of guilt

 

You are under no pressure to fit it with their timescales. They are just running through their normal standard chasing cycle.

 

If you don't own any assets, no significant savings and your income is about to change, just wait until you know what regular income you will have going forward. They probably would not accept 8% to pay the shortfall off, as they have 12 years to enforce debt under limitations act. They would rather keep the debt and see what payments they can get. Your financial position may change and they will ask for more.

 

You should probably start asking questiions about the shortfall and send a Data Protection Subject Access Request to obtain copies of all records regarding the repossession and sale of the property. Perhaps you may find out helpful info. Don't wait until later, when it is more difficult to get the info.

We could do with some help from you.

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See post # 9 from this thread link re asking for information.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?452804-How-do-we-respond-to-shortfall

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

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