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Hermes lost parcel containing glass - won't compensate

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Hi all,

 

I recently sent a parcel (a glass splashback) via Hermes. I stated the value of the splashback (£44.99) when purchasing the courier service (which cost £7.99), but took the minimum insurance of up to £20. I checked before sending and their help pages stated:

 

There are also some items that we allow to be shipped in our network but are not covered for damage due to their delicate nature e.g. glass, ceramics, electronics etc.
I was prepared to take the risk of the package being damaged as it was reinforced glass, and packaged well.

 

Hermes lost the parcel, however are refusing to refund postage or offer any compensation due to the following clause elsewhere in their T+Cs:

 

Excluded items are goods which Hermes will carry but, are sent at your own risk. Hermes will not compensate you for loss, damage or late delivery of Excluded Items.
I can understand Hermes not compensating for damage to an item which they say is excluded, however it seems very unfair that they are not accepting responsibility for an item lost by their network as opposed to damaged in transit, for which the contents of the parcel is irrelevant!

 

Do I have an argument for full (£44.99+£7.99) or partial compensation (£20) here? What would be the next best steps?

 

Thank you in advance!

Edited by Jarmelik

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I think you have an excellent argument for recovering your money. As it is not a question of breakage, it is clear that the fact that you sent and excluded item is not materially affected the risk.

 

I have always been very concerned that companies like this charge a certain fee for doing the job – and then want extra money to compensate you if they get it wrong.

 

However, they won't give in easily. I'm sure that you would have to threaten and probably begin a County Court action before they would put their hands up – and you might even have to go to court. If you want to do this then we will be happy to help you. It is about time that someone put out a real challenge to this kind of unfair contractual term


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Thank you very much for your reply BankFodder. As I have accepted the terms that say that they won't be responsible for glass items going missing, presumably I would be claiming unfair terms? Realistically, what is the likelihood that this will hold up if it did reach court?

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As you say, you have accepted the terms of the contract and so therefore you would have to rely on the unfair terms provisions of the Consumer Rights Act.

 

Of course it is important to say that they use a standard form contract and this means that they impose the agreement on you and you have no say in the matter. If you do not accept their terms and conditions then you don't get service. This means that they have a dominant position and they exploit it and it can be said that their exploitation is unfair.

 

Secondly, although there are reasonable grounds for excluding glass objects, unless they produce some wholly unexpected argument, the only basis for excluding glass objects is very likely to be the risk of breakage. Had the glass object which you dispatched been broken then you would certainly not have had any hope of gaining any redress. However, in this case it appears that the item has gone astray. The fact that it was made of glass is neither here nor there and has not affected the risk and the fragility of the item had nothing to do with the fact that it has been lost.

 

Finally, – as with all courier companies and also the Postal Service, you pay the contractual fee in return for the service which is promised to you. You pay 100% and you expect 100% of the service and that means that you expect the item to be delivered. It has become the practice of courier companies to impose insurance/compensation schemes on their customers. In other words, they say that although we have promised you 100% of the service, if we fail to provide that (if we breach our contractual obligations to you) then in order for you to get full redress, you must pay an extra sum. In my view this has to be unenforceable.

 

They are already obliged to deliver your parcel under the terms of the agreement. Being required to pay extra money essentially to protect against a breach of contract is wholly unenforceable. This pretty well is the equivalent of an extended warranty – and in effect it is the equivalent of selling you duplicate rights – which is a specific example of an unfair commercial practice.

 

Although I believe that with the help of this forum there have been a few challenges to this kind of thing, I'm not aware that it has ever gone to court. Generally speaking the couriers put their hands up and pay the claim without any admission of liability and simply as a "business decision".

 

If you bought a claim against Hermes then I would expect them to do exactly the same thing here. I have to say that I would love it if it went to court and we finally got a decision on this abusive and exploitative unfair practice. If you wanted to start a claim then we would help you and if it got to court (unlikely) then we would help you there as well and I would say that you have a huge chance of winning – although there was always a possibility of failure.

 

I estimate your chances at better than 85%. I estimate the chances of Hermes putting their hands up once they receive the claim papers at better than 85%. If the matter did go to court and if you did win then this would be extremely newsworthy.

 

Because it would be a small claim, then the risk to you would be the loss of your claim fee and your hearing fee. If you want your case then you would get all of this back plus you would be covered in glory and respect and you would be - THE (WO)MAN!


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Thanks again BankFodder, I appreciate your time in responding.

 

I've given it some thought, looked at the small claims process, and provided I can convince myself I have a case and the financial risk is reasonable given the value of the claim (£25 application + £25 trial to be reimbursed if the case wins?), I believe I am prepared to take it as far as it goes to reach a reasonable conclusion. I feel cheated by Hermes' attempt to wiggle out of any responsibility, and I'm not going to be just another cheated consumer.

 

If it was to go further, it seems I have to fight two battles here:

1) That the term regarding glass items being exempt from any compensation if they are lost by the courier is unfair

2) That insurance for an item lost in transit should not need to be purchased by the consumer and should be covered by the statutory consumer duties of the service provider to perform the service

 

The first one seems fairly easy to attack and I have very little doubt that I could win that one (which makes you wonder how on earth it exists as a term in the first place) - from the Unfair Contract Terms Guidance (CMA37) published on gov.uk:

 

A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.
The second one is harder. Is there any explicit clause of the Consumer Rights Act or elsewhere that I can use to back this up if it does reach court? Edited by Jarmelik

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If anyone can help with the above query it would be appreciated. Additionally, how does this sound as an LBA?

 

My Address

Hermes Parcelnet Ltd

Capitol House

1 Capitol Close

Morley

LS27 0WH

June 22, 2017

Letter before action

 

Dear Sir/Madam,

 

On 20th May 2017 your company contracted to transport my parcel and to deliver it to .

 

You have informed me that you have lost the item in your care, and are therefore in breach of your contractual obligations (regardless of your unfair T+Cs).

 

The content of the parcel was a glass splashback and I enclose documentary evidence of the value of the parcel.

 

I require repayment of that sum in full, the wasted delivery fee, and the cost to reclaim the amount (this letter), which amounts to £54.64, broken down as follows:

Item Cost

Wasted delivery fee £7.99

Value of item £44.99

Cost of postage of this letter (second class signed for) £1.66

 

If I do not receive reimbursement in full within 14 days then I shall begin a Small Claim in the county court to recover the money, plus interest and without any further notice.

Yours faithfully

 

(Me)

 

When I bought the splashback it came with a £10 delivery fee which I have not included in the value calculation above. Should I include it, given that I would have to pay it if I was to replace the item that was lost?

 

Thank you!

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have you proof you told them it was a glass item?


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have you proof you told them it was a glass item?

 

I don't believe so - I listed the contents as 'splashback' - is that likely to be a problem? The only point I told them it was glass was when I made a claim for the lost parcel

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Is anyone able to help with the above queries? Thanks!

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Hi Jarmelik

 

I am currently going through a small claim as a business regarding 2 3D printers that were totally smashed up by DPD and the 3rd party we go through, here in Liverpool. I am hoping to get some help on here as the claim is being defended and the replacement printer we had to send out (that also got smashed up!!) had a glass bed in it, instead of the stock plastic one.

 

So I think the main areas that i'm looking at on this one with the glass are:

 

1. The contract terms are unfair

e-lawresources dot co dot uk /Unfair-Terms---Regulation-by-statute.php is a good start (cant post links yet!!).

 

There's a load of stuff I think you can use here and I am going to explore:

 

1. That the terms are in fact not actively made aware to you. I have read someone used this and won with parcel force, where some list on a wall in a post office or a tick in a box on a website is simply not adequate to make you aware. Maybe you could ask the Judge if they know all the banned/restricted stuff is to prove the point!!

 

2. Also the terms might not apply if the glass was in fact durable or toughened and the overriding reason for breakage was actually breach of the SOGAS act 1982 where they have to take reasonable care and skill in delivering. In my situation the glass that was broken was in fact tougher than anything else in the box.

 

3. The terms might simply be unfair. IE. if you packaged it up OK, put stickers on the box, told them what it was then their term is unfair.

 

So a bit of shooting there, its early days for me but just thought the above may be useful to you. I'd also love to see what you can find too.

 

I'll try and post my claim etc up now.

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Thanks randm, really appreciate your response. The "care and skill" term is definitely something I can use in my case as I think it should be easy to argue that losing a relatively large item that is supposed to be tracked at each point on its journey definitely does not show "care and skill"! I'm guessing that's probably the term that BankFodder was alluding to in his comment above.

 

Your case is slighly different to mine in that they broke your item rather than lost it. I would expect 'unfair terms' would apply in your situation, but only if the rest of the item (not just the glass bed) is damaged, and they are refusing to compensate just because some of the broken item was made of glass. I would imagine if it was only the glass bed that was broken, you might have a tougher time as stating glass is only transported at your risk would probably be considered a fair term (although I am not a lawyer!).

 

Wish you all the best, do let me know how you get on and I'll do the same! I have yet to post my LBA as I was hoping for some support from this forum - I was a bit apprehensive that I didn't get a response to my above queries and figured trying to take on a large company in court without support would be too difficult on my own! (not a dig at all to anyone on this forum - I fully appreciate it's made up of volunteers and I have absolutely no right demanding help!)

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Hi Jarmelik

 

No problem at all.

 

Yes different scenarios but I think also similiar in the way that the "glass" thing in their view is the overriding element of the breach of contract. In our view the loss or the damage is the overriding element. Does the glass mean we broke the terms (that could be fair!) and thats that or does that even come into consideration if the parcel was lost or broken? Yes, not a lawyer either!!

 

In your case I think its easier because your parcel didn't have the chance to not break did it, it was lost! I'm sure theres a few cases I have seen where this was held up. If I re-find them I will post here for you.

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I'm in a similar situation, so curious to know how this worked out for you Nivag1961. Did Hermes defend or give in?

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If it were a dog it would have bitten me!

 

I just skim-read the the thread tbh.

 

Great outcome though, give me hope!

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Hi all,

 

I'm afraid to say that I am in a similar position to others here and so am initiating small claims court proceedings against myparceldelivery / myHermes.

 

I have seen that Nivag had some template letters available which might save me some time - but I haven't been able to get a response from a direct approach.

 

Might any others here have such templates that they would be willing to share?

 

For the avoidance of doubt, the issue here is that a well known company from whom you can buy laptops (and other things) direct(ly) sent me the wrong item, suggested I send it back via myparceldelivery, who then lost / stole it, and then won't provide any compensation (despite my having purchased additional insurance). Same old story, it seems.

 

Happy to take this all the way to the magistrate, so any pointers would be appreciated!

 

Happy new year all -

mcmatt

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PLEASE DONT HIT QUOTE IF THE LAST POST IS THE ONE YOU ARE REPLYING TOO.

MAKES A THREAD TWICE AS LONG TO SCROLL THROUGH!

please do not post jpg images directly to a topic..USE PDF ....READ UPLOAD.

 

WE CAN'T GIVE ADVICE BY PM - IF YOU SEND ME A LINK TO YOUR THREAD - I WILL BE HAPPY TO OFFER HELP THERE

Single Premium PPI Q&A Read Here

Reclaim mis-sold PPI Read Here

Reclaim Bank Account, Loan & Credit Card Charges Read Here

The CAG Interest Tutorial Read Here

spreadsheets 

 

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You can see my thread here too. I had 2 items broken but the court case quite literally threw the couriers arguments out of the window. They are unfortunately appealing at the moment but part of that is I might get hold of a transcript.

 

I would be extremely willing to liaise with people to create some form of help for others. I think these couriers have bent the rules long enough!

 

link to my case is here: https://www.consumeractiongroup.co.uk/forum/showthread.php?479324-Business-with-damaged-parcels-small-claim-being-defended***Claim-Successful***Now-Appeal

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Great, thanks guys - I'll take a look, put the paperwork in and hopefully have some good news to report in due course!

 

Has anyone brought this to the attention of Trading Standards / Citizens Advice Consumer Service? It seems as though if these couriers are persistently taking the michael, and losing in court, then they need a firm hand to reign them in rather than forcing consumers to go to these lengths each and every time.

 

Thanks again,

mcmatt

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