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myHermes - Lost item, they refuse to pay compensation - Judgment and then bailiffs - **Won**

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In Brief:

I sold a coffee machine on eBay, and sent the parcel via myHermes. They have since lost the parcel and have refused to pay compensation on the coffee machine as it appears on their extensive list of ‘excluded’ items.

 

Having read through a similar case /showthread.php?456708-Hermes-Extra-Charges-but-lost-Item I feel I have a good chance to take this to the small claims court to get compensation. I’ve not had to do this before so if I could get some advice on the letter before action before I send it, I would really appreciate it.

 

In Detail:

 

06/08/2017

The coffee machine sold on ebay for £215.00 +£9.50p&p, the coffee machine was brand new (an unwanted gift) and still in the original shipping packaging.

 

07/08/2017

Via the myHermes website I purchased shipping which cost £6.79, I also took out insurance for the coffee machine at an additional £5.70. At the time of purchasing I told them that the parcel contained a coffee machine. I securely attached the shipping notification and dropped the parcel off at my local myHermes ParcelShop. Later that day the parcel shows as received on myHermes online tracking.

 

Somethings to note:

I clicked on the link to the list of prohibited and excluded items (myhermes.co.uk/help/carry-guide.html#helppage), however I didn’t see the full list of excluded items below which explicitly lists coffee machines as being excluded.

I also mistakenly entered the value of the coffee machine as £200.00 instead of the full £215.00

 

08/08/2017

Parcel shows as being at national hub

 

09/08/2017

Parcel shows as being at receivers local hub and out for delivery. Unfortunately the tracking does not get updated beyond ‘out for delivery’.

 

12/08/2017

Buyer contacts me to let me know parcel hasn’t arrived and myHermes will not update him.

I contact myHermes online chat and they tell me they will look for my parcel and update me by Monday 14/08/2017. (full chat log can be provided if required)

 

13/08/2017

myHermes email me to ask for the following details of the parcel to help find it: (full email can be provided if required)

1. Contents of the parcel

2. Description of the outer packaging of the parcel.

3. Size of the parcel.

4. Weight of the parcel.

I responded to the email giving them the details, and also included pictures of the parcel I had taken before posting.

 

14/08/2017

myHermes email me to let me know they can not locate the parcel and that I should submit a claim for compensation. (full email can be provided if required)

I submitted an online claim which didn’t ask for the value being claimed but asked for details of the ebay listing to prove the value of the Coffee Machine.

I received an automated email acknowledging receipt of the claim. (full email can be provided if required)

 

15/08/2017

myHermes email me to inform me:

We have assessed your claim and on this occasion we are unable to offer you a settlement; the contents of the parcel are excluded from compensation for Loss. (full email can be provided if required)

I regretfully replied to the email while being very angry. I asked how they can have an extensive list of excluded items which essentially gives their staff impunity to steal items off that list, and are they not going to even offer to refund the delivery cost. (full email can be provided if required). As yet they have not replied to that email.

The buyer requested a refund, and as per eBay rules as the parcel has been in transit for over 7 days I will need to refund the buyer.

 

 

 

Draft Letter Before Action

 

Name & Address of Customer

 

16th August 2017

 

Letter before Action

 

Dear Sirs

 

Reference Number of Parcel and value

 

As I have already informed you via your online chat on 12/08/2017, on 07/08/2017 you contracted to transport my parcel and to deliver it to (insert address of recipient).

 

In breach of the contract you have failed to do this as you have since informed me that the parcel is lost.

 

The content of the parcel was a coffee machine and I enclose documentary evidence of the value of the parcel.

 

I require repayment of that sum in full and the wasted delivery fee, which amounts to £227.49.

 

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

 

 

Do I need to put the full £227.49 in the title?

I will include a printout of the completed eBay listing, and the myHermes invoice as proof of value. I don’t need to include anything else at this stage do I?

 

Any help provided would be greatly received.

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I think that in principle you have a chance of winning. Although the machine was on the list of excluded items, it is difficult to see how that might have materially increased the risk for them.

 

Also, you inform them in advance that it was a coffee machine and they accepted on that basis. Do you have evidence that you inform them that it was a coffee machine?

 

I think that you will only be able to sue them for the declared value. If you told them that it was £200 and that probably will be the limit of your action – and rather than hand them a reasonably easy victory on that point, I would simply sue them for that – plus the delivery costs plus interest.

 

If you don't have evidence that you inform them in advance that it was a coffee machine then you may have a more difficult time of it.

 

Your letter before claim is pretty good in that it does not get too wordy and doesn't try to score cheap points. However, I would point out to them the two points which I made – that you inform them at the time of booking the delivery that it was a coffee machine and also, the fact that it was a coffee machine did not materially affect the risk – unless they would like to demonstrate otherwise.


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Thank you so much for your advice!

 

Yes, thankfully I do have evidence that I told them in advance that it was a coffee machine, I'll include that with my letter. I've updated the value be sought, added in the section about materially affecting risk, and that they knew ahead of time the contents.

 

Thanks again for your help.

 

 

Name & Address of Customer

 

16th August 2017

 

Letter before Action

 

Dear Sirs

 

Reference Number of Parcel and value

 

As I have already informed you via your online chat on 12/08/2017, on 07/08/2017 you contracted to transport my parcel and to deliver it to (insert address of recipient).

 

In breach of the contract you have failed to do this as you have since informed me that the parcel is lost.

 

I informed you at the time of booking the delivery that the content of the parcel was a coffee machine, the fact that the parcel was a coffee machine did not materially affect the risk of the parcel being lost, unless you are able to demonstrate otherwise.

 

I enclose documentary evidence of the value of the parcel, and that I declared the contents to be a coffee machine valued at £200.00.

 

I require repayment of that sum in full and the wasted delivery fee, which amounts to £212.49.

 

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

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No don't send them a copy of the evidence. Simply refer to it


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Thanks for the help, LBA went off today. I'll post an update when I get a response or when I submit the county court paperwork.

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cant see coffeee machines on their list of prohibited or excluded items unlessyou include items that may contain glass. I would have thought that this would exclude compo for damage, not them losing it. they should get their insurers to explain the policy to you and see if you have a case to take to the insurance ombudsman. That may well cost the more than the price of a coffee machine so worth a look at if you get no joy this time round.

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It's probably not an insurance company unfortunately . I wish it was. It would be much easier to go under the FCA regulations. Most of these things seem to be their own little compensation schemes


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Is that right? Coffee machines are not expressly excluded ?


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It is on their list. If you're on their website - https://www.myhermes.co.uk/help/carry-guide.html there's cartoon drawings of a few items but click "view full list" and it says:

 

"Kitchen Appliances - White goods/coffee machines/microwaves"

 

It's on the list of excluded items, so items they say they will carry but are sent at your own risk.

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But, I agree with what ericsbrother says - surely any reasonable person would read that as risk of damage, not risk of them "losing" the item altogether...

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the linked site says 'loss'. really, how can a co not be responsible for a loss (or even damage) of an item once it's deemed in it's care.

in comparison this is parcelforce

http://www.parcelforce.com/help-and-advice/sending/items-we-exclude-compensation

blimey, what do parcel/courier co's cover! certain (prohibited) items excluded understandably, but common regular things! what's the point in using them... :)

presume then it is down to legal route, as their terms pretty much exclude everything :)


IMO

:-):rant:

 

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Unsurprisingly myHermes have not responded to my LBA within the 14 days.

 

I am now going through the process of submitting a County Court Claim. For the short statement I am going to include the following:

 

The defendants are a parcel delivery company.

On 07/08/2017 the defendants agreed to

deliver the claimant's parcel containing a

coffee machine, value £200, to an address in

the UK. The delivery fee was £12.49 which was

paid by the claimant. Reference no.

XXXXXXXXXXXX

The defendants failed to deliver the parcel

and have subsequently reported it as lost.

The defendants refuse to refund the value of

the coffee machine and the delivery fee.

 

The claimant seeks

 

£200.00 - value of Coffee Machine

£12.49 wasted delivery fee

Total: £212.49

 

Is there any other information I should submit at this time? I have included interest which brings the total claimed to £213.47, but I don't think I need to include that in the statement as there are other fields for that.

 

Thanks for the help.

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Nice and brief and to the point.


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Thank you for the confirmation BankFodder. The statement came from one of your posts in another thread, so thanks again for your help! County Court claim has been submitted today.

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Unsurprisingly myHermes have not responded to my LBA within the 14 days.

 

I am now going through the process of submitting a County Court Claim. For the short statement I am going to include the following:

 

The defendants are a parcel delivery company.

On 07/08/2017 the defendants agreed to

deliver the claimant's parcel containing a

coffee machine, value £200, to an address in

the UK. The delivery fee was £12.49 which was

paid by the claimant. Reference no.

XXXXXXXXXXXX

The defendants failed to deliver the parcel

and have subsequently reported it as lost.

The defendants refuse to refund the value of

the coffee machine and the delivery fee.

 

The claimant seeks

 

£200.00 - value of Coffee Machine

£12.49 wasted delivery fee

Total: £212.49

 

Is there any other information I should submit at this time? I have included interest which brings the total claimed to £213.47, but I don't think I need to include that in the statement as there are other fields for that.

 

Thanks for the help.

 

You can only claim interest from the date the claim form was submitted.

You should also claim your issue fee.

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You can only claim interest from the date the claim form was submitted.

 

I'm not at all sure that is correct. I think that interest is claimed from the date of the cause of action


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On the claim form it said to claim interest from the date the money became owed. So I used the date Hermes confirmed the item had been lost as the start date.

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correct


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I'm not at all sure that is correct. I think that interest is claimed from the date of the cause of action

 

That certainly is the case where interest is being claimed under a contractual agreement relating to interest (and that also allows the contractually agreed interest rate rather than the court imposed rate used as a default).

 

http://www.compactlaw.co.uk/free-legal-information/small-claims-court/claiming-interest.html fits with my understanding (from date of claim, where no contractual agreement regarding interest exists)

 

You are entitled to claim interest from the date of your "Claim Form" (for Claim Form see How to Claim) until the date of the trial.

 

http://justclaim.co.uk/small-claims-guide/filling-n1.html fits with your understanding .....

To claim section 69 interest you first have to work out the total amount of your claim - excluding interest and court fees. You are entitled to claim interest at 8% per annum on this amount. Work out the 'daily rate' by multiplying 'the amount of your claim' x 0.00022. You also need to count up the number of days from when the money became due up to the date on which you issue the claim. Multiply the daily rate by the number of days to work out the 'interest so far'. Then drop each of these numbers into the following paragraph:

 

The CAB site is less than helpful, offering instead 3 possibilities!

https://www.citizensadvice.org.uk/law-and-courts/legal-system/taking-legal-action/small-claims/going-to-court/taking-court-action/step-three-filling-in-the-claim-form/

 

Depending on how quickly your claim is resolved and what the outcome is, you can claim interest from:

  • the date the problem started to the date when you issue the claim form
  • from the date you issue the claim form to the date of a court order
  • in some cases, from the date of a court order until the date you are paid.

 

 

S69 does indeed say "date when the cause of action arose"

http://www.legislation.gov.uk/ukpga/1984/28/section/69 , at 69(1)

 

So, ask for it from the date of cause of action, but since it "may be included" (s.69(1) again), rather than "shall be included" don't be surprised if it gets awarded from date of issue of claim!.

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Naturally, you wouldn't be able to claim interest in respect of a contract which itself is creating interest. In that case, the sum owed is accumulating all the time and doesn't need further interest on it. That effectively would be an example of betterment


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I'm very interested to know how you get on as I'm having almost the exact same problem myself.

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Watching with interest as I too am in the same situation...

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I think this has happened to many hundreds, be interesting to see if there have been county court rulings.

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Sorry I haven't updated in a while, the birth of my daughter came 4 weeks early so I've been a bit pressed for time!

 

My County Court Claim was submitted on 03/09/2017, and was issued on 04/09/2017. I take it this means it was deemed as Served on 09/09/2017 (5 days after issued)

 

On 12/09/2017 I received the below email from myHermes responding to my Letter Before Action. They erroneously refer to my item being broken rather than lost, and have refunded the £12.49 Shipping and Insurance fee.

 

 

Response By E-mail (Karen) (12/09/2017 09.00 AM)

 

Dear Alex,

 

Regarding parcel number: XXXXXXXXXXXXXXX

 

Thank you for contacting myHermes via letter. My name is Karen Murphy and I work within the Customer Relations Department at myHermes. I apologise for the delay in response; this is due to an unprecedented increase in queries and we are working to assist with all enquiries as soon as possible. I am sorry that your coffee machine was damaged in transit.

 

Our services use a varied network of service provider's, depots, and sorting facilities. Throughout our operational process there are a number of occasions where the parcels will leave the care of our service provider's/handlers and instead will be handled through sorting machinery and conveyor belts. As such, any instructions on the parcel e.g. Fragile/This Way Up cannot be followed directly. For this reason, we communicate on our site a comprehensive list of both restricted and prohibited items, as we cannot guarantee safe transit during this process.

 

Please refer to: myhermes.co.uk/help/carry-guide.html

 

Excluded items

 

We have listed below Excluded Items.

 

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.

 

Kitchen Appliances - White goods/coffee machines/microwaves

 

However, as a gesture of goodwill, I have refunded your postage costs of £12.49 back to the original payment method. Please allow 3-5 working days for this to be processed.

 

Though Hermes Parcelnet Limited is not regulated in the same way as Royal Mail, it is through Ofcom, specifically, The Postal Redress Service (POSTRS) that complaints can be escalated if you feel we have not satisfied your enquiry through our complaints process.

 

To clarify, POSTRS, is an independent body whose role is to resolve disputes between regulated postal operators and their customers.

 

Alternatively, you may wish to contact your Local Trading Standards Authority to further assist you.

 

We sympathise with any frustration and inconvenience you feel has been caused as a result of this matter. Hermes strives to provide outstanding delivery and customer service and we understand that on this occasion we have not met your expectations. Thank you for your feedback throughout.

 

Kind regards

 

Karen Murphy

 

Customer Relations Advisor

 

myHermes Customer Relations Department

 

 

 

As 14 days have now passed since the Court Claim was Served, and there has not been a response to the court claim I believe I can now request judgement for the figure minus the £12.49 I have been refunded but adding on the interest accrued. Is this correct? If so I shall go ahead with judgement.

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Yes, put in judgement for the outstanding sum plus interest on the outstanding sum


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