Parcel Force Negligence : Assistance Required

[AndyOrch]

48 minutes ago, BankFodder said:

Parcelforce is simply a trading name of the post office.

If you hadn't accepted the mediation then you could have had the matter properly tested in court against the retailer – although it is highly likely that the retailer would have put their hands up. They are responsible for the faulty item and for all delivery charges and liabilities related to its return to them and its subsequent safe return to you.

Can you please post up the document which says that if you didn't accept mediation it would go against you in court.

If you really are worried about the confidentiality of your settlement agreement then please email a copy of it to me at our admin email address.

 

If I could clarify....all parties are expected to participate in ADR/Mediation....even though it fails 99.9% of the time and is not suitable to simple money claims.....at least you participated.

 

 

 

[ThinkCarefully87]

I just wanted to get a resolution to this faulty item and as already mentioned I was feeling low due to my personal situation coupled with that if we didn't agree to mediation it would go against us.

[BankFodder]

Yes, another bad decision. Also, because they were being required to pay the bill, I have no idea why you didn't simply pay the full amount of insurance needed to make sure that its value was covered in the event of a loss. That would have been paid for by the defendant and there would be no problem. I know that all this is probably making you feel worse – but there are other people who read these threads and will benefit by them.

I think you have two options here. One is to try and pursue the post office – but we have already explained the various possibilities and the fact that they may well have a limited liability.

The second one is to ask the court to restore the claim on the basis that the intention of the mediated settlement was that the defendant would pay the costs of delivery and the implicit in that agreement was that the defendant would also assume responsibility for the safe delivery of the item in line with the normal common law contractual principles applicable to the contractual circumstances existing between the two of you. I think that there is some force behind this argument. I think it would work quite well. Your position would be that you had merely undertook to carry out the administrative task of organising the delivery that the you are acting on behalf of the defendant. However a serious flaw in this would be that the defendant would then argue that you should have ensured the consignment correctly and I think that this would be a powerful criticism – unless you can tell us that it was agreed with the defendant not to pay the insurance figure. Was this your decision or is it the decision of the defendant? Was it by agreement with the defendant?

 

[BankFodder]

10 minutes ago, Andyorch said:

 

If I could clarify....all parties are expected to participate in ADR/ Mediation....even though it fails 99.9% of the time and is not suitable to simple money claims.....at least you participated.

 

 

I'm going to say that the links contained in the thread above call reference to a document which is published in 2009. I can't lay my hands on it at the moment but there is much more recent document published by the mediation service which in fact says that more claims are often not suitable for this service.

I generally tend to feel that mediation is a bad idea because most companies think that it is an opportunity for you to give up some of your rights. There is no need for this at all. If you are in the right then you should insist on that right – 100%

 

[BankFodder]

To follow on from my comments about mediation, there is even grave doubts about the quality of the mediation staff. It has been known for mediators to attempt to rely on the consumer rights act even though they are dealing with non-consumer contracts and they have had to be corrected by one of the parties to the mediation.

I think this speaks volumes about what you get if you decide to go for mediation. Mediation = almost always, mediocre

[ThinkCarefully87]

Dear BankFodder,

I have just heard from my husband who during his working day has been into the Reading office, where the parcel initially went to

 

who have confirmed that it definitely left there on Monday 17th June 2019 and I have attached herewith a copy of the actual scan of the parcel with bar code confirming the destination of the parcel. 

 

Wasn't sure if this was helpful or not. 

 

The guy did say to my husband without any hesitation that we should take legal action against Parcel Force.  

[BankFodder]

We don't need to see the attachment. Thanks.

I don't think that what the postal staff say about taking action makes a lot of difference. They don't particularly understand the problems and intricacies and possible exemptions. I wouldn't rely on their advice – you must rely on your own judgement.

I think we explained the situation pretty thoroughly here and I'm not sure what else we can do. If you want to sue the post office then we will help you.

You are in Reading – but because you are a business suing another business – the post office – you should also understand that it is likely that the case may be transferred to the local court of the post office head office – unless we can help you argue that it should remain with you. However you ought to factor in this risk and the cost and inconvenience of attending their local court – in the event that they push it to a hearing as they are quite likely to do.

[ThinkCarefully87]

Thank you, I will have a think about where we go from here & if I do decide to progress with a claim with an initial letter, if I can pass it through you to check, I would be very grateful.  Thank you so much again for your assistance to date

[BankFodder]

If you decide to make a claim against the post office then the claim is straightforward:

 

Quote

The defendant agreed to deliver a parcel – delivery reference number X X X X X to as an address at ***simply put the postcode here****. In breach of the delivery agreement, the defendant lost the parcel.
The parcel contained a lighting strip model number X X X value £XYZ. The defendant has refused to reimburse the claimant.
The claimant claims damages of £XYZ plus interest pursuant to section 89 of the County Courts Act 1984

 

You don't need anything more than that.

Now here's some information which may be will confuse you.
By agreeing to enter into mediation in the way that you did and by agreeing the settlement that you did you effectively gave up all of your rights in a case where the right was completely on your side. It was unarguable and your chances of success were much better than 95%. It was a serious strategic error. Even if you had decided to go into mediation, you should have given no ground whatsoever even if that meant that the mediation failed.

However, if you bring a claim against the post office then once again you will be offered mediation. Exceptionally I suggest that you opt for it.
The reason for it is this that whereas your chances in the original action were indisputable, an action against the post office for the reasons I've already suggested, your chances of success are much less – maybe 60%. Because of this, the circumstances are such that if you are able to enter into a settlement with the post office whereby they offer you a good proportion of what you are seeking, then it might be prudent to accept it. By the time the mediation is arranged you will have seen their defence and you will probably have brought it here so we can have a look and comment. You will then understand much better the strength of your negotiating hand. Maybe it will be very strong but if the post office starts to rely on their statutory exemptions then frankly if the post office offered you even half or even a third of what you are seeking, I would recommend that you accept it.

I hope you can start to understand that the value of mediation to you depends on the strength of your hand. You had a full house and you gave it away. Now you have a much weaker hand and you will have to play its strengths as hard as you can.

[BankFodder]

I'd like to add to my earlier comments where I cast doubt on the value of mediation. Also doubt on any negative inferences that a judge might draw from a failure of mediation or even a refusal to enter into mediation.

If you have the right on your side then there is no judge in the land who will find against you and certainly there is no judge in the land who will deprive you of your clear rights simply because you didn't agree to enter into a discussion as to possible compromise.

If you are supplied with a faulty item as a result of a contract and the item fails – especially within three months has happened in the circumstances of this thread, then there is absolutely no way that any judge will refuse to grant you your remedy or will simply award you only 50% of what you are seeking simply because you didn't enter into mediation. I notice several times that in the document published 2009 that the author claims that the court's overriding objective is to encourage mediation. This is completely incorrect.

The overriding objective contains a substantial list of aims but the first aim – which is repeated at several places is to achieve a just outcome without incurring disproportionate costs. The emphasis is on "just outcome".
There is a reference to alternative dispute resolution – mediation – but it comes well down the list. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01 - written in 2018.

The priority is justice. Mediation is not a priority. I don't understand why the author of the 2009 guide to mediation got away with saying that mediation was the overriding objective. It's completely wrong.

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

this guide is 10 years old. Written in 2009 and is written by the mediation service itself.  Clearly it is superseded by the Civil Procedure Rules 2018. It is wrong now – but it was wrong in 2009

[ThinkCarefully87]

Yes I fully take all of this criticism and bad decision making on the chin and will learn from this.  I am just about to log a claim with Parcel Force (again) and plan to send a letter to Gary Simpson, Managing Director, which will be sent electronically and via first class recorded post.  I have got nothing to lose by challenging them as far as I am concerned.  Things can't be any worse.  Thanks again for all of our help

 

 

[ThinkCarefully87]

Dear BankFodder, assume that it is best that I send my letter on our official business headed paper?

[BankFodder]

Yes you may as well. It won't really make any difference.

You will have to sue them as a business and that means that there is a risk that the hearing – if there is a hearing – will take place in their local court.

 

[ThinkCarefully87]

Dear BankFodder

 

Just came across these conditions of carriage for Parcel Force : https://www.parcelforce.com/conditions-of-carriage, Section 12, liability for delay, loss or damage.  12.1 Subject to the provisions of these Conditions, Parcelforce Worldwide shall pay compensation to the Customer for loss or damage caused by its negligence or that of those for whom it is vicariously liable, and a refund in the case of delay.

 

Surely Parcelforce have been negligent in that they have failed to deliver my parcel and that they are currently unable to tell me where it is? 

 

Also found this : https://www.royalmail.com/business/services/sending/parcels-uk/parcelforce-express24 - Guaranteed, fully tracked, with signature on delivery

Would this not be construed as breach of advertising, could this not be used against them?

 

 

[BankFodder]

Yes, they all say that compensation will be paid. The problem is that they don't say how much and you seem to be assuming that they will compensate you for the complete value of your lost item.

Another thing which occurs to me, is that did you declare any kind of value for this item?

[ThinkCarefully87]

Morning BankFodder, rightly or wrongly I would hope to be compensated in full by an item that belongs to me which is unable to be returned to me, is unable to be currently delivered and is, through somebody's negligence, unable to be accounted for.  I paid them in good faith and had to confirm the weight, length, width, depth etc and was charged accordingly for that service.

 

Yes I have declared the value of the item to them and the value I quoted was £1,000.

 

I am extremely grateful for all of the prompt assistance/advice that you have given to me to date and would like to know whether I can make a donation to the site to express my gratitude.

 

Thanks

[BankFodder]

We certainly don't have any objection at all to you making a donation – but I suggest that you wait until you get a result.

I completely agree that you hope to be compensated in full and we will help to give you the best chance possible. It's good that you quoted the full value because that gives you the best chance of success. We have had several people who have undervalued their items with other courier companies and they have seriously compromised their chances of success as a result.

What is important here is that Parcelforce were fully aware of the value of the item and they undertook the risk on that basis.

I've drafted a suggested particulars of claim in an earlier post. You may want to amend it but if so then let us see it first. You will need to send them a letter of claim giving them 14 days. On day 15 issue the papers. Don't bluff

[ThinkCarefully87]

Dear BankFodder, I would like to confirm that I have already tried to submit an on line claim to Parcel Force, just so that it can be proven further down the line, if necessary, that I have followed "their procedure".  I was provided with the direct email address to do this but I have not, as yet, heard anything back from them.  I guess my defence can be, if required, that I have tried to submit a claim, with the email as evidence.

 

Sorry but when you mention on Day 15 issue the papers, does this mean via MCOL.

 

Thank you

[BankFodder]

Yes - MCOL

[ThinkCarefully87]

Dear BankFodder, step back in amazement, I have received an email from Parcel Force in the last ten minutes to confirm that my parcel has been delivered this morning but no explanation as to where it has been for four days and no apology that they have failed with what they guarantee under their express 24 hour service nor any offer of a refund of the carriage costs.  I do obviously have to wait for confirmation now from the "defendant" that they are happy to refund me as per the settlement claim and that the item that has not been damaged in any way.  Obviously I will be back to you should this prove to be the case but fingers crossed luck will be on our side and the parcel is in one piece.  Thanks again for all of your assistance and I will be back in touch should I need further advice with the situation and with relation to a donation.  

[BankFodder]

Good. I'm very pleased for you.

I certainly think you should put in a claim for the carriage costs.

Also if there is any nonsense from the defendant then you should let us know about it immediately. I hope there's no issue about the condition of the item because once again in your settlement agreement I see that you have basically taken responsibility for it safe delivery when in fact the responsibility should very properly been with the defendant and would have been if you had simply rested on your contractual rights.

I also think you should change your username. I think that what has happened was nothing to do with bad luck

[ThinkCarefully87]

Thanks BankFodder.  My username is purely based on a series of events in my personal life so far this year.  

[BankFodder]

Well start changing your luck. You can start with your username here. Send me a message and tell me what alternative name you would like.

[ThinkCarefully87]

We might as well go for ThinkCarefully87