Trying to collect judgement but bailiffs unsuccesful

[randm]

Hi everyone

 

I use a courier company, i will call "TPC", who in turn use DPD. I have to say on the whole the past few years has been event free but a few months ago we sent a 3D printer to someone to use and it was smashed up really badly.

 

The recipient took photos and has emailed us stating the damage was beyond dropping in his view and we have loads of photos of the box damaged etc. I reported the issue immediately and TPC were originally very sympathetic etc. I have to say I was shocked at the damage, you would have had to try really hard to do what they did.

 

As the client needed to get printing urgently, I resent a new identical printer out, only this time this one had a glass build plate, so about 30x20, super tough, heat resistant glass plate that the plastic is printed onto. This was in fact a bespoke upgrade I did to this one but the plastic plate was also sent.

 

This printer was also sent insured fully.

 

This 2nd delivery went horribly wrong yet again, with a tonne of damage done.

 

We sent both printers in the original boxes, designed for transporting them. They are thick boxes, with the original polystyrene inserts. Loads of space etc. we also used an outer box with more packaging to be safe. The packaging has never been challenged, in fact DPD stated that it was fine.

 

long story short. I know DPD have accepted both claims (although irrelevant as the contract was with the 3rd party we use, TPC). I am still waiting for any decision, I have emailed multiple times and so we logged a small claims track.

 

Unfortunately the printers are no longer made, so I have asked for the replacement cost of the latest available model for both printers.

 

The defence is that they will not pay as there was glass in the box (even though only the 2nd item had glass in it)

 

There is no consideration about the first delivery that had no glass in it at all.

 

I have sent the court questionnaire off, have stated I am willing to mediate and I am waiting.

 

No solicitors seem to be involved at this point, certainly no legal sounding stuff has come back from the defendant at this point.

 

Just want some help and advice really. I have basically lost a part of my little business due to these printers being damaged beyond repair.

 

Questions:

1. I have no doubt that I will get the compensation for the 1st Printer as there was no glass and it was clearly in breach of the Sale of goods and services act 1982, (reasonable care and skill clause).

 

however

 

What about where there is a piece of glass in an item?

I have never actually claimed for this extra add on, I feel that if they had delivered properly in the first place I would not have had to send the 2nd printer out and also the glass did not cause the damage, it was just "also" damaged, but again I am not claiming for this.

 

2. I would normally claim for the cost of the item if damaged. However in the case of the model being superseded and no longer being available. Is it OK to claim a little more for the latest available model? I have averaged the price from 5 retailers and would genuinely be buying these to simply replace my lost printers.

 

In my defence it is a real pain in terms of retraining and new software to learn a new machine.

 

Any help would be appreciated on the best course of action and of course I will post everything up here so others can learn from my mistakes and hopefully successes!!

 

I am about to go through mediation, but can't find much on the process here.

Has anyone gone through this process as a claimant and is there any advice anyone can give.

 

I have been told by the CAB that it's a chance to "negotiate" but Ii'm not sure if negotiation is what I want to do, i'd really like the defendant to try and see the light.

 

Also can the defendant deny wanting to use mediation?

 

Any help appreciated.

[BazzaS]

https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/civil_court_mediation_service_manual_v3_mar09.pdf

[unclebulgaria67]

From what i have read.

 

It is done by phone by a mediation company, who go back and forward between parties. Both sides are contacted in advance to see whether there is any point in mediation. For mediation to be appropriate there can't really be anything significant outstanding e.g missing documents proving debt that the defendant has not got. The mediation company will ask the defendant if they think they can settle during any mediation call. They might say that they deny the claim against them because of x,y,z and therefore there is no point. It will then get reported back to you and you would have to progress the claim to a hearing paying the relevant fee.

 

I might be wrong, but going by what i have read, some people agree to mediation as a delaying tactic and when it comes to it, they don't really want to settle. They might raise arguments as to why they are not liable or the claim amount is wrong. So you would need to be ready with all of the key information in brief detail. They might say you failed to do something, so make sure you have a full record with dates that is quick to refer to.

 

See how it goes. You should say that you are willing to participate, as it looks good to a court, if there is a hearing needed later.

[randm]

https://www.judiciary.gov.uk/wp-cont...l_v3_mar09.PDF

 

Looks really useful but the link doesn't work, 404's

 

From what i have read.

 

It is done by phone by a Mediationicon company, who go back and forward between parties. Both sides are contacted in advance to see whether there is any point in Mediationicon. For mediation to be appropriate there can't really be anything significant outstanding e.g missing documents proving debt that the defendant has not got. The mediation company will ask the defendant if they think they can settle during any mediation call. They might say that they deny the claim against them because of x,y,z and therefore there is no point. It will then get reported back to you and you would have to progress the claim to a hearing paying the relevant fee.

 

I might be wrong, but going by what i have read, some people agree to mediation as a delaying tactic and when it comes to it, they don't really want to settle. They might raise arguments as to why they are not liable or the claim amount is wrong. So you would need to be ready with all of the key information in brief detail. They might say you failed to do something, so make sure you have a full record with dates that is quick to refer to.

 

See how it goes. You should say that you are willing to participate, as it looks good to a court, if there is a hearing needed later.

 

Many thanks for the advice. Yes I agree, I seem to be the one who has been willing to get round a table form the outset but it just never happened. Normally you'd think the defendants would welcome having a mediation to come to an adult agreement but I think they will just stall using it.

 

May I ask another question. Is there another fee to pay if mediation is refused. I already paid the fee to raise the claim but there seems to be another fee if mediation doesn't work.

[BazzaS]

Looks really useful but the link doesn't work, 404's

 

Odd, it worked for me but now gives 403 error.

Can you access it via :

https://www.judiciary.gov.uk/publications/court-mediation-service-manual/

[randm]

I posted something next business day, fully insured that in its standard format does not include any glass.

 

A piece of glass was however included in the parcel as an extra part.

 

The whole parcel and items in it were then damaged and pretty much smashed about, same old courier story really.

 

However due to the glass being on a prohibited items list they will not pay up for anything, despite taking the insurance money.

 

The item by the way was a 3D printer and worth £2000, which is why I bought the insured post.

 

my question is

I am not bothered about the glass,

it was an extra item,

I am happy to forgo the cost of that due to the prohibited items terms.

The glass only cracked, it did not cause any damage to the main printer

I don't think it's fair to not pay up for a smashed up printer just because there happened to be some glass in the box too.

 

Add to this, I had no idea that glass was prohibited.

Is a tick box on the website when you book a delivery adequate and fair to inform you of these terms?

We send glass all the time in the form of smartphones, tablets and monitors.

 

Any help would be much appreciated.

I have a court case pending and would love to know how to counter this.

[BankFodder]

Welcome to the world of couriers and liability avoidance.

 

I think you're absolutely right however please tell us more about it.

 

Which company is it?

 

What is the claim about

[dx100uk]

Three threads merged

Please keep to one thread

 

Dx

[Ethel Street]

I posted something next business day, fully insured that in its standard format does not include any glass.

 

Add to this, I had no idea that glass was prohibited.

 

Two issues strike me:

 

(1) If you contracted with "TPC" and they subcontract to DPD your contract is with TPC on their t & c. Do they prohibit glass? Alternatively do they incorporate DPD's t&c into their t&c?

 

(2) If we are talking about DPD UK and their standard conditions,

 

Condition 4 says "The Company shall not accept certain goods for carriage or storage, including, but not limited to, any of the following goods: ...

glass or any articles (or part of them) that are made up of glass...".

 

Condition 10 says

" Subject to the provisions of this Condition 10 and Conditions 4 ...

the Company shall be liable for any physical loss of, or physical damage to, goods during transit

 

... except to the extent that such loss or damage has arisen from or consists of: ...

loss, damage or breakage of articles of,

or for that part of any articles that comprise of goods which are not accepted for carriage or storage by the Company as set out in Condition 4...".

 

I am not a lawyer but my reading of that is that DPD will not be liable for damage to glass items, or for the glass within an otherwise permitted item,

 

but that damage to non-glass items is not excluded just because a glass item is in the package.

 

What specific clause are DPD relying on the deny liability?

 

http://www.dpd.co.uk/terms-and-conditions.jsp#11

 

 

We send glass all the time in the form of smartphones, tablets and monitors.

 

Is that glass? Or types of plastic?

 

Also you say that the parcel was "fully insured".

Who with?

There's no mention on DPD UK site of them offering insurance.

Or are you referring to the "Extended Cover" in section 12 of their conditions?

 

The Extended Cover isn't insurance as such, it increases the amount they will pay, when they are liable for damage, from the tiny amounts included in the standard cover to £5,000 per consignment.

[CrappoMan]

Is that glass? Or types of plastic?

 

A lot of phones use Corning Gorilla Glass, which is actual GLASS, so yes, millions of items are sent every year that contain glass. Some phones even have a glass front and a glass back.

[randm]

Hi Everyone, TY so much for the responses.

A I will be only too happy to share the outcome and try and ensure this case can be a good source for those in a similar predicament. I think this treatment to parcel customers has to stop

 

To answer and summarise the questions in the thread so far:

 

Yes TPC = "The parcel company", quite literally their name who are a brand name of a business called Wynne aviation. These guys are based in Liverpool and by-an-large have been OK for us.

 

They contract out to various "actual" couriers just like Parcel Monkey or or any other service like that. Only difference for us is that these guys are local and they told us they would be there for us in the event of any issues, which is not the case.

 

I spoke to DPD and they told me that my contract is with TPC. TPC originally gave me the run around by saying they would log the complaint with DPD "for me" if you get what I mean. It doesn't matter really, they have acknowledged by defending the small claim.

 

The insured parcel was bought with TPC. They offer an insured option on all their deliveries so on the 2nd delivery with the 2nd printer in it (which had the glass in it) we paid extra to send it fully insured. I assume that TPC created this product and would assume they insure the damages off to a liability company they use for that purpose.

 

The claim process

So far I agreed to mediation, I got called by the mediator last week but it turns out we do not have a case that is right for mediation. The reason for this is that they told me the negotiation is only really on a money level. I have been very honest with what we would like in compensation.

 

I just want the printers replacing and would like the cost of the postage refunded too. To negotiate purely on the money was deemed to not be correct. We have had our case now sent to the courts and are currently awaiting a court hearing date.

 

To just give you more info on the glass element of this parcel. 3D printers deposit the plastic they print onto a platform, this is a thick plastic one in the case of these 2 printer models. However I bought a specially made glass platform that was also in the box. This glass is actually very tough and we were very surprised it could be broken.

 

I will get the terms of TPC today and post them here.

 

Here's a download link to the terms and conditions of TPC.

https://www.dropbox.com/s/pycnfrejqkr8bfc/TPC-Terms.jpg?dl=0

 

Prohibited items list.

https://www.dropbox.com/s/03k84oqmiz4vj6c/TPC%20-%20Restrictions.jpg?dl=0

 

no mention of using DPD's terms, and these terms seem pretty small compared to the ones DPD have themselves.

 

I am really looking for help on these and what I can use to help me win the case or if there are any terms here that could prove difficult for me?

[BankFodder]

Please will you post up your POC and also their defence in PDF format

[randm]

I will. I am just trying to find a way of blocking out the personal details on the PDF

[dx100uk]

Follow the upload

One multi page PDF please!!

[randm]

I am really struggling to get the upload to work and also my scanner only seems to output jpegs!

 

I am also a little reticent to upload the whole document because I wouldn't want to share all the personal details, its not right. Looking at the document, only my statement and the defence statement is really of any value. Will the below suffice to get a little help? If you need anything else then just get back to me.

 

particulars of claim

https://www.dropbox.com/s/1fb22c3y08015pd/scc%20-%20particulkars%20of%20claim.jpg?dl=0

 

Defense statement

https://www.dropbox.com/s/0kggxj7l7mvhjme/Defence%20statement.jpg?dl=0

 

What is interesting to me is that I stated they are basically in breach of contract, unyet their defence is about the terms of their contract with me. Seems odd?

Edited August 7, 2017 by randm

[dx100uk]

You want jpg

Then redact the page I in paint

Pop each picture full page into word

File save as pdf

[Ethel Street]

Just an interim comment while you get the full POC and Defence up,

 

-- TPC isn't a carrier itself. It describes itself as a 'reseller' of carriers services. It looks as if it is aggregator of some sort. It's unclear how DPD's terms are incorporated into the shipments arranged through TPC (if they are)

 

-- TPC's conditions, like DPD's, do not say that if glass is included in a package then they have no liability for the rest of the contents. It will be interesting to see their defence statement in full.

 

-- Although you have repeated several time that glass is 'prohibited' this is not so. The TPC restriction guide is divided into two categories, 'restricted items' and 'prohibited items'. Gals is on the 'restricted' list, not the 'prohibited' list. This matters because TPC's conditons say that TPC will not accept items on the prohibited list, but it is vague about items that are only on the restricted list other then saying they will not be covered by insurance. Again, it only says that the restricted item itself will not be covered by insurance, not that the other items in the package will not be covered.

[randm]

Hi Guys

 

TY for the help so far, V interesting about the difference between prohibited and restricted. I would hope that the fair thing to do was to just not pay up for the piece of glass and it is starting to look hopeful on that.

 

So my POC and the defence I have posted up is all I have to show so far. There is no more than that right now. The rest of the document I have is just terms of the process and court stuff. Should I be receiving deeper defence and should I be making a deeper POC at some stage?

 

My tech guy is on tomorrow who says he can change our scanner into PDF format for me so I will sort that out then.

[Ethel Street]

Is that all there is to the Defence? All I can read of it is a statement that the insurance only covered the first item for £50 and the second for £100. It's numbered as point (1) though so I assume there's more.

 

Also you and they refer to the "insurance" but all that's been posted/linked is terms and conditions of carriage. Can you post/link the insurance document as well?

[randm]

Hi there Ethel street

 

Yes you and me too. I thought the defence did not pay any attention to my POC and also they clearly don't seem to have had any legal advice at all on this themselves. Makes me wonder if they are stalling and maybe going out of business or something? Or have an Ace up their sleeve. Either way the defence from them is pretty bizarre.

 

I have been reading on here all the defence points that Royal Mail state etc when they contend a cliam. Is there a further document we have to fill in to beef oup our statements or is this it?

[AndyOrch]

You have 28 days to inform the court if you wish to proceed with the claim.....then the claim moves to allocation to track and county court..you possibly could consider making an application to strike out that defence and request summary judgment but thats your call...their defence is not CPR compliant.....but then your particulars are not very good also...did you request section 69 interest ..its not in your particulars?

 

 

Andy

[BankFodder]

First of all it is highly likely that the PDF setting for your scanner is in the scanner software. Somewhere it will ask you what file type and you will have to change it from JPEG to PDF. This is not something which normally needs the expertise of a technician.

 

Just probe around and you will probably find the setting.

 

Secondly, I don't think that we need to worry too much about the various terms and conditions other than the glass exclusion.

 

I think we are starting to get far too technical in this thread and I think that by and large the case is straightforward. They have an exclusion clause which they are attempting to extend to items which are not covered by the exclusion. This is clearly unfair and in any event they are essentially trying to vary a term or introduce new term into an existing contract.

 

I think the chances of success are better than 90% but it would help if you could get your act together and show us the documents because this is all taking rather a long time and none of it is necessary.

 

Incidentally, on previous experience of suing courier companies, they dig their heels in and then eventually put their hands up because it's just not worth their while. I'm not promising that this will happen here – but it certainly is a highly possible scenario.

[randm]

Hi Everyone, sorry for the quietness.

 

TY very much again for the advice so far, right now, I am waiting for a court date so hopefully that will now come soon and we can get in front of a judge. I will try and get the PDF's up ASAP, I am a business owner and just run off my feet right now.

 

As soon as I have news I will post back up here.

 

You have 28 days to inform the court if you wish to proceed with the claim.....then the claim moves to allocation to track and county court..you possibly could consider making an application to strike out that defence and request summary judgment but thats your call...their defence is not CPR compliant.....but then your particulars are not very good also...did you request section 69 interest ..its not in your particulars?

 

 

Andy

 

So a lot of that is not clear to me. Sp far I opted for mediation, because I was told that its always a good idea to try and see if that would work. I have been called up by the mediator and other than receiving a letter stating that I decided that mediation is not going to work, I am still waiting for the next step from the court.

 

How do I make an application to strike out a defence and on what grounds could I do that here?

 

I have no idea what section 69 interest is, could you expand on that?

[AndyOrch]

You cant strike out /summary judgment now as you have filed the N180 and the claim has been allocated I assume with regards to your mention of mediation.

 

Should have done it before completing the N180.

 

Section 69 interest is interest on monies owed and outstanding at a rate of 8% per annum.....again as its not in your particulars you cant claim it on top.

 

 

Andy

[randm]

Just a quick reply to let everyone know I have a court hearing on the 25th October.

 

if I assume that a solicitor is coming for the defence, how does this system work?

I assume that, being in a democracy, small claims is just that...a way for us little people to gain justice without the need of an expensive solicitor.

 

 

However when I read on here things about Royal mail, bamboozling with previous court cases etc that I have no access to.

How do I handle that?