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    • Court hearing today. WON on all counts of claim. The win though is not the interesting bit, but the ‘why’ is really useful. We were allocated 90 minutes but it took two hours by telephone . The defense were represented but I failed to note whether by a solicitor, barrister or other advocate.   As soon as the judge finished the introductions and before he had time to pass the time over to me to explain my case, the defense interrupted and asked the claim be struck out. He then spent the next 40 minutes discussing with the judge that I had failed to properly serve my bundle upon which I intended to rely. The judge asked me to explain and I said I had served the bundle to them and the court 3 days before the deadline, by signed for post with a tracking number to the address named in the summons being the Royal Mail Head Office in London. I said it was a bit rich that they were making this request when they had failed to serve me and the court with their bundle within the deadline and that I had only just received it. They quoted a certain principle of law (which I failed to write down) which explained that service of documents must be made to the address which either party may request service to be made. They claimed that six months earlier when they lodged their defense to my summons, the covering letter had been sent from their Sheffield office and it constituted the address for future service of documents. I of course had no idea of such a requirement and said that a simple letter heading on a piece of correspondence was not the same as a formal sentence in a letter requesting such future service. It gave the judge some concern but he decided to park the issue and allow the hearing to continue.   I was able to explain my case for the £50 compensation for the lost parcel using the evidence from the defense bundle referencing the Overseas Post Scheme. It was all straight forward. I explained the facts and let them speak for themselves. I then moved on to the delayed Special Delivery items. This is where the fun began because I had to argue against their terms and conditions. I used the defense bundle referencing the UK Post Scheme. I quoted from various clauses which explained the rules relating to claims. That ALL delay claims must be made within 3 months, then that Special Delivery was actually 14 days so not 3 months after all, then another clause which confirmed the deadline was 3 months for all delay claims. I quoted further that these were “common terms” and that some services (Special Delivery was one) had additional terms which were called “specific terms”. Another clause stated that where a conflict arises between common and specific terms, then specific terms took priority. So I turned to the Special Delivery section to quote the specific terms as these would have priority. There was only one term that referenced claims. It simply said If we do not succeed in attempting to deliver by this time (being the next day) we will refund your postage. I used this single phrase to take priority over the 3 months  or 14 day deadline mentioned in the common terms. I discussed how the various clauses conflicted with themselves as if the clauses themselves did not know what the deadlines were and how ambiguous and confusing it was.   The time was then past to the defense and he started to argue there was no contract nor liability in tort (a substantial portion of their written defense document and bundle discussed this argument). It made me smile because I was ready for that. The judge though was ahead of the game and (especially because 40 minutes had been wasted at the beginning) he did not want to hear of it. After about one minute, he stopped the defense by saying exactly what I was preparing to say. Simply that I was not suing under contract or tort but under the conditions of the various postal schemes for which they were liable. He asked the defense to answer my claims. The defense then prevaricated trying to argue the clause that distinctly mentioned the 14 day time limit within which to make a claim for delay (which of course it did) ( as an aside, most people might accept that deadline and not bother to pursue a claim). He had nothing to add about the lost parcel.   Time had run out, we had no questioning and the judge said he was summing up. He was quite happy I had served my documents sufficiently well and took the view that the defense had fallen foul of the court order so he was cancelling out the question about valid service. He had no difficulty in accepting the claim that the lost parcel was valid and awarded me the £50 compensation. He then spoke at longer length about the delay claims and the conflict in the clauses. (at this point I had no idea which way this bit would go). Then, he spoke of how a business such as Royal Mail should not be accepting clauses in their contracts which were clearly inconsistant. (that’s when I started to relax), (and then the best takeaway of the hearing), He said that common law provides in the event of a standard contract if there is any ambiguity, the interpretation should be judged against the person drafting the contract. He called it Contra Proferendem. (I had no idea of that concept but had effectively explained it anyway). I was awarded the whole claim plus costs. The defense asked for permission to appeal which was refused.    Remember the phrase “Contra Proferendem” . I shall be looking more into it. I am sure it will come in handy against any institution that have drafted contracts that cannot be individually negotiated. And will certainly be useful for a long while yet against Royal Mail et al.
    • Original loan was £5000 unsecured over 5 years, 28 payments remaining, he wanted to extend it back up to 5 year.........the bank offered him £6700 to clear his credit card and the bank loan, £135 per month from the original figure of £121    One debt of two years old and one debt of 15 months        
    • Probably a good thing in disguise. Its never a good idea to bundle up everything to one creditor.   How big was the loan to be and would it have been secured? And how old are all his other debts? Who says they even enforceable?   Dx
    • My son was offered an extension to his current loan, with Barclays, they saw him as a good risk due to surplus money still in his account each month, the extension was to include his Barclay Card, all finances including external credit loans and personal circumstances were taken into consideration, and they still saw him as a good risk.......   he was declined today....He didn't ask to have his loan extended but they said he was pre approved and they could help him and he would be financially better off, which is true he would be.......apparently his outgoings were to much in relation to his income which is totally rubbish..its only 47% out goings    So we would like to make an official hard hitting complaint   Thanks to all who read my jottings  
    • Can you make them road legal by placing a sticker on them with the relevant info?  Just a thought...
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    • Ebay Packlink and Hermes - destroyed item as it was "damaged". https://www.consumeractiongroup.co.uk/topic/430396-ebay-packlink-and-hermes-destroyed-item-as-it-was-damaged/&do=findComment&comment=5087347
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
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    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
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Sold quad bike buyer says not working.


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Hi hoping someone can help please.

My husband sold yesterday his quad bike.

It's been laying in the garage for 18 months and due to ill health,  was the main reason for selling. 

 

The quad was put through it's MOT the previous day and passed.

I advertised it and it generated a lot of interest.

The only problem it had I put in the ad.

The speedo was not working. 

 

Viewings were yesterday and the potential buyer wanted to test it.

Unfortunately the disc lock was on when he tried to reverse which resulted the disc brake coming off.

My husband tried to remedy it but said it may take hour or so.

The buyer agreed to come back with the money later which he did with a mechanic. 

 

The problem wasnt sorted and there was a lot of swearing as the buyer wanted it.

The mechanic told him to wait to see if could be fixed.

 

They went off and came back within the hour but the job was proving a tough one. 

He still wanted the quad and it was agreed we would message once it was sorted. 

The weather took a turn for the worst with heavy rain so the job was put on hold til it stopped. 

 

Later that day the buyer messaged to see how things were going.

I said he may have to collect today due to the weather.

As it turns out the rain stopped and job finished.

 

We had planned to go out but my husband was too tired so i messaged to say it was fixed.

He came to collect it with his Dad.

It was tested 3 times by himself and his Dad all happy.

 

The paperwork complete and money handed over, although we knocked another £20 off for fuel plus £10 he said he lost somewhere between his pocket and my hand. 

It was put in the van I dont think secured hubby said.

Less than hour later he messages to say it not working starter motor had gone?

 

Hubby went through few things but he said still not working but horn and lights were.

Was getting a little annoyed as it was working when it left here and he was happy.

Hubby suggested charging battery which was new.

I asked him to return it but he says he cant until monday as he has no transport. 

 

Today hes messaged.

Hes charged battery up and says its just cutting out so hubby is going to look at it now to see whats wrong. 

[sIGPIC][/sIGPIC]

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What is troubling here is the variety of different things which are being said about it – in particular they phoned you and said that the starter motor wasn't working. Now they are saying that the starter motor is working in fact the engine keeps on cutting out.

This is a private sale – I presume – so you don't have any obligations towards the purchaser under the Consumer Rights Act and there is no cooling off period.

By and large your duty is simply not to tell porkies about the quad bike – to be very straight dealing. It sounds to me as if you have been.

I don't see any obligation to give a refund. If you're husband decides to have a look at the motor to see what is going wrong then I think that you should make it clear that he is doing it is a matter of goodwill but after that he doesn't consider that he has any responsibility. They obviously have checked it out and you say that the seller came along with his own mechanic who presumably held out his own expertise in checking the bike and testing it and they found that it was acceptable.

It seems to me that they have purchased it with their eyes open. I don't hear that they are saying that you have misrepresented bike or misled them in any way.

Of course there may be some unpleasantness but if you are prepared to deal with that, then I think that you should say to them that you are not prepared to get involved any further than you have done

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Hi and thank you. My husband has been and now sorted the bike and its working fine. Shortly after he left the buyer, I received a message stating it wouldn't go into gear. This was not mentioned during the time he was there.

 

I have since had messages stating that it needs a new gear selector as its bent. I can only presume this has occurred during transit or he's been a bit heavy footed and caused it. He's been very pleasant about the whole thing but denys he's done anything to cause the damage. It worked ok the day before and during views and tests. 

 

Thank you for the clarification BankFodder its appreciated. 

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I was in a similar situation a long time ago.

After the first messing about from the buyer for a front light not working which i fixed at his address, i got another text about worn tyres.

Next day i went there with cash, bought the bike back and sold it to someone else. 

Some mugs think that they buy a 20 year old vehicle from a private individual and it must be in showroom conditions with full warranty. 

If you can, get the quad back and sell it to a more normal person.

This is a mick taking monkey and will call you for years to come even for a puncture.

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Good morning. Buyer now demanding a refund. Says it's not what we said it was. Hes had it for a week. Bike was working  now he's telling me its cutting out. The first day he took it i asked him to bring it back as we had another buyer. He said no he would be happy for hubby to come sort it which he did. Hes driving me daft now phoning and messaging. I dont want to offer a refund as basically i think he's caused problems associated with the bike now. 

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  • Andyorch changed the title to Sold quad bike buyer says not working.

Tell them to take it to a proper workshop that specialises in that make of quad bike and ask them for a report on its condition and any problems and suggest that you will pay 1/2 of the cost of the report and take it from there.

Cahnces are they wont want a full report because it may show up damage they have caused.

 

Yeras ago my next door neighbour bought a piece of petrol powered gardening kit and he couldnt get it to work. Reason was it was a 2 stroke engibne and he hadnt added 2 stroke mix to the fuel. When I told him about this he siad that he had doen so and it still wouldnt run, He had added ordinay lube oil to the fuel.

Sometimes certain items are not for certain people and I think this may well apply here.

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