Lost Hermes parcels x3, help for court hearing w/o lawyer

[mic001]

I am a small independent skincare maker. 

I purchased the service of MyHermes to collect and deliver 4 parcels of wholesale skincare goods to a stockist, and 3 were lost.

* 2 parcels had their last scan at the Hermes depot Jun 1st '18, and haven't been seen since. 

* 1 parcel made it to the destination OK. 

* 1 parcel was said to have been delivered but was never received, and at some point I was told the delivery scan happened on the other side of town to where the parcel was supposed to go.

MyHermes say they've conducted multiple sweeps of the warehouse and can't find them, and have offered me £50 only as a 'good will gesture', which is insulting.

 

I have taken the case through the small claims procedure and it’s been moved from different courts/online to court / different judges etc, and finally now there is a hearing date. 

I was hoping to settle this without a hearing as I don’t have a lawyer.

Hermes claim as the contents is liquids they don’t cover them in their terms. 

I labelled the boxes as ‘Skincare’ and they took them anyway. And it’s beside the point what the contents were since the boxes were lost/stolen.

 

I'm claiming for the wholesale price of these goods. The case is for around £4,600 including the court costs.

 

I have to pay another £355 hearing fee now, on top of the few hundred I’ve already paid to make the small claims case.

 

Do I continue? Can I go to a hearing without a lawyer and be successful?

Do I have any chance? I’m just so sick of all this.

 

I have only a few days (until the 8th March) to pay the hearing fee so I need to decide ASAP whether this is worth it.

I would so so appreciate some help or support from someone who knows much more about this than me!

[BankFodder]

I'm on a telephone at the moment so please stand by for a fuller reply later.

however in the meantime please browse the other similar threads for an understanding of why you have an excellent chance of winning although of course it is a risk as you already seem to understand

[mic001]

Thank you BankFodder, I was hoping to hear from you as I have indeed been reading through other posts.

I have some commitments today but will be researching hard to put a proper 'legal sounding'  (not my forté) argument together over the next few days so any input would be greatly appreciated.

I would be willing to go to press also. It's awful how Hermes bullies can impact a tiny business like mine when they're clearly at fault and the cost is nothing to them and covered by their insurance surely.

Thank you in advance.

[BankFodder]

Please will you post up your claim form and also the defence in pdf format

[silverfox1961]

Hi and a welcome from me.

I have an interest in Hermes (and Parcels2Go) and it is my opinion that they do not want their terms and conditions tested in court as almost everything they convey is prohibited for them to carry which (again in my opinion) is not lawful.

Nearly case I have followed so far has been settled but it needs a full court case to test those terms and conditions. As your case is quite a costly one, Hermes may decide that it is worth defending so you do need to be aware of that.

Bankfodder is the 'go to' guy in these cases and I am glad to see he is helping.

[mic001]

Thank you Silverfox.

Here are the claims form and defence as requested by BankFodder.

The claim was amended after the 3rd parcel was lost (at the point of the original filing the 3rd parcel was presumed delivered as it had a delivery scan, but it actually never arrived).

I'm aware the claim form is messy and not legal sounding. I had to amend the details on the same form, or else I thought I had to.

I am trying to craft a better and more professional sounding defense now, and to hit several key points, such as their unfair T&C's and that they didn't show any due care and skill in losing the parcel.

UPDATED 014MC192-claim-form-claimant-copy.pdf

Defence.pdf

Edited March 2, 2019 by mic001
changed typo of (4rd) to (3rd)

[mic001]

I really can't afford legal representation, but do you think there would be a 'no win no fee' type practice I could approach about this. 

I  would be happy to pay a fee from the winnings. I don't think the potential % is high enough for these types of lawyers to be interested though.

[BankFodder]

You need to be wary of no win no fee

they don't tell you is that if you lose then you are still liable to pick up the other party's costs.

 

Secondly, you have essential ingredients that  no lawyer will have and frankly no money can buy. 

you have self-interest and grudge.

 

[mic001]

2 minutes ago, BankFodder said:

You need to be wary of no win no fee

they don't tell you is that if you lose then you are still liable to pick up the other parties costs.

 

Secondly, you have and essential ingredients but no lawyer will have and frankly with money can't buy. 

you have self-interest and grudge.

 

VERY TRUE. I am willing to go to court and represent this myself, I jst need to understand what my argument is and have the points able to come across clearly. 

[BankFodder]

I see that they say that you declared the value at £20 per box.

You have not referred to this in your claim??

[mic001]

Hi, as I remember this was the standard threshold at which you didn't need to take out their extra aid cover.

This was my first big order to a stockist, and I was using Hermes for smaller parcels and wasn't aware of their terrible reputation. Also I didn't feel I should have to pay insurance cover... trusting them to do their job properly.

Knowing as I do now, I always send via better couriers and I now have business insurance which would cover loss.  

[BankFodder]

I think it would be very prudent to go through the delivery booking routine again and take screenshots all the way.

We need to be sure that somewhere you haven't declared a value.

If they can show that you have declared about you and I'm thinking about the £20 per boxwhich they claim is what you set the value at then you may have difficulty in suing.

On the other hand if you are confident that you did not declare any valueand they accepted the consignment on that basis, then you probably have a very good chance. 

 

 

 

 

[BazzaS]

On 3/2/2019 at 11:58 AM, mic001 said:

I really can't afford legal representation, but do you think there would be a 'no win no fee' type practice I could approach about this. 

I  would be happy to pay a fee from the winnings. I don't think the potential % is high enough for these types of lawyers to be interested though.

I doubt it is the potential percentage alone that is the issue, but:

a) Both the cap on the maximum percentage together with the value of the claim, so that both: i) you'd not recover the full sum, and ii) the maximum the solicitor would get may not make it worth the time they'd have to expend, although (more importantly)

b) The fact this is still likely to be on the small claims track, so solicitors costs are VERY limited unless the circumstances are SO extreme the judge removes the limit on their basic fee (2 hours or so worth), which is unlikely. The whole point of small claims track is to keep things simple so a solicitor isn't mandated.

 

See below for more on 'no win, no fee'.

 

[BazzaS]

On 3/2/2019 at 12:03 PM, BankFodder said:

You need to be wary of no win no fee

they don't tell you is that if you lose then you are still liable to pick up the other party's costs

 

BF is right that No win No fee (NWNF) isn't a good option here (see my recent post), but not for the reason BF states. This is likely to be a small claims track case, and (see above) it will be hard to find a solicitor to take it on on a 'no win, no fee' basis.

If this case was likely to be in fast track or multi-track, then NWNF could be an option. BF is wrong about the warning and risks  of costs with a Conditional Fee Agreement (CFA) though.

A solicitor NOT discussing the implications of winning (and the 'success fee' that came with it), or costs implications of losing would be almost unheard of: it would be a professional obligation under 'client care'.

 

Along with that, the CFA should include 'self-insuring' After the Event (ATE) insurance. This insurance insures against costs if you lose. If you win, you don't get to recover the ATE premium, it has to be paid (and comes out of the judgment award). If you lose you don't have to pay costs (and you don't have to pay the ATE insurance premium...., it is covered by the insurance, hence 'self-insuring').

 

So, if you can find a solicitor who is happy to take the case on on a CFA basis, you won't have to pay the other sides costs if you lose*.

 

* : provided you haven't misled your solicitor when they did the 'risk assessment' for the insurance, comply with their advice, and  are truthful and honest during your claim.

 

OP, the declaring each package to be worth at most £20 may prove to be a major sticking point for you.

Edited March 3, 2019 by BazzaS

[mic001]

Hi all

I've just looked through my order emails and gone through the booking process again, and I think you're right that I stupidly declared it as £20 value, rather than declaring the full value and just not taking the extra cover.

The cover only seems to go up to £300 max anyhow.

I can't believe I didn't check this before!

Do you think my case would be thrown out then... They did still lose my parcels though, is that worth anything or have I shot myself in the foot with the £20 declaration.

*facepalm* 

[BankFodder]

I'm afraid that this reduces my level of confidence to very much a 50/50 chance of success and maybe slightly better odds in their favour.

as you may have read in other threads, the principle that you should insure them for their possible breach of contract is abhorrent to me.

however when parties decide to enter into a contract I think that they are entitled to understand exactly what the basis of that contract is including the level of any risk that they undertake.

by effectively misleading them as to the value of the item, you have not allowed them to calculate their level of risk and whether or not they want to enter into the contractual obligation with you.

I'm afraid I think that you are on very thin ice and you should certainly calculate the risk in respect of the expenses that you would lose and also the reasonable expenses incurred by the other side in defending the claim.

this would not extend to their legal costs because it is a small claim but it would extend to their reasonable cost of travel. This might not be very much but you certainly have to factor it all in.

 

The declared value is likely to be the limit of what you can recover.

 

 

 

 

 

[mic001]

That certainly makes sense and thank you very much for explaining it so succinctly. 

A stupid error from me and I think I’ll have to drop the case and take it as a massive learning experience. 

I’ve learnt a lot since then, and even more from this forum. I wish I had found it sooner. You legal minds are giving us noobs very valuable advice.

Thank you to all the contributers to this post... hope it helps someone else too!

[ericsbrother]

If yopu insure something for £100 and it is worth £1000 your insurer will pay out the £100. Now with the parcel you have basically accepted that any insured risk is only worth £20 but that doesnt limit your claim to that as they have lost the parcel so it is your consequesntial loss that really counts. Were the items business stock? If so that changes the contract form purely a consumer contract to a B2B one. Now they may argue that they werent aware you were a business and wouldnt have offered you those terms if they knew you were. So you gain some and you lose some.

The fact they were liquirds wont affect the outcome, they lost it not broke it.

[mic001]

Hey ericsbrother, thank you for your voice on this matter.

Yes it was business stock, from what I have learnt that doesn’t garner the same rights as if it were a private customer :( 

Now I have dropped the case do you think I can still claim for the loss of the parcels? 

And in that case, are you saying that they only have to pay me out £20 for each parcel? In that case I really can’t be bothered dealing with them all anymore.

I can only wish they’ll have terrible sex and constant stubbed toes all through life haha

 

I wonder if going to the Police might be of any use? I mean they stole / lost my parcels?

[BankFodder]

You should certainly claim for the declared amount. Why let it go?

[mic001]

It’s just been such a nightmare, I don’t know if more fighting is worth the £60 (if it indeed would only be £20 each parcel lost)!

I’ve been through the whole system, they’ve offered me their paltry £20 and I turned it down because I was going through the small claims track... so even if I am still eligible it’s a bit soul destroying!

[ericsbrother]

then you just write to them and say you accept the £20 per parcel. As it never got to court yu can do this. You should ahve accepted this before dropping the claim. that is somehting you omitted from your postings here and if you had told us the full story you would have got more precise advice.

Go to the police? what about? would you go to the police if they dropped it and broke it?

i suggest that you start to understand the minefield that running a business is and satrt accounting for these mishaps in your profit and loss accounts and adjust your prices accordingly. If a shipment is worth £100 then use RM instead of this lot. You need to check out all the prices, sizes etc so yu know from the outset what it will cost when yu get an order. You may need to adjust your prices to lessen teh load of increased postage, peopel will apy a bit more for the goods rather thnn pay the same grand total with a high postage cost

[mic001]

Hi thanks for your input.

I think I wrote this was my first big order a while ago now and I have learnt a lot since then. The first time I used Hermes so understandably had no idea about the minefield of couriers and insurance and how terrible different couriers are.

I've changed many things since then, from using different logistics to stronger terms, to business insurance... so I'm all good now and I understand running my business, thanks.

Police I mention because they lost/presumably stole for the grey market 3 parcels of my property. Is that so outrageous a thought? I don't think so. But I also can't be bothered with it all, it's a headache I want to put behind me.

I didn't intentionally omit anything, more that I wasn't aware of information that may be important until asked.

[ericsbrother]

you cant presume "they" stole anything. It is just as likely the courier left it with a neighbour who promptly binned it. You have no proof of anything so dont make accusations you have no evidence for, it will get you into trouble should you decide you want to use the courts in the future.

Now you write this off againt your income as a necessary expenditure at the value of what the goods cost you (plus packaging post ectc).