2 Postmen each gave a Special Delivery parcel to people outside the properties in the street - ***WON***

[CrappoMan]

...Yes RM breached the contract, that isn't in dispute. You seem unable to accept that they have a valid limitation clause.

So, they breached the contract, but their liability remains limited...

 

Does their contractual liability cover negligence ? Or is it to cover 'extraordinary circumstances', such as a sorting machine breakdown damaging a parcel or a van being caught in a flood and the contents of the van being destroyed by water.

 

Contractual terms can cover all sorts of unforeseen situations such as acts of god, the outbreak of war or statutory law changes, but can negligence be limited by contractual terms, given that negligence is a choice and not a situation forced on a company ?

[BazzaS]

Does their contractual liability cover negligence ? Or is it to cover 'extraordinary circumstances', such as a sorting machine breakdown damaging a parcel or a van being caught in a flood and the contents of the van being destroyed by water.

 

Contractual terms can cover all sorts of unforeseen situations such as acts of god, the outbreak of war or statutory law changes, but can negligence be limited by contractual terms, given that negligence is a choice and not a situation forced on a company ?

 

Negligence isn't a choice. Recklessness MIGHT be a choice.

One can choose a lack of care and become reckless, and then a negligent act might follow. The tortfeasor still didn't "choose negligence"

 

Even then : negligence is a non-deliberate act, thus can't be "by choice". If "negligent by choice" : that becomes malice rather than negligence!

 

Liability for negligence certainly can be limited in contracts (although not for death / personal injury - such a limitation clause would be void)

[bankoff]

Hi It's WAR

 

We are going to court. But it is Hermes and not RM. See Hermes Extra Charges but lost item,,,

 

Maybe what happens to us will be of help to you,

[Its WAR]

The posties chose their course of action through deliberate negligence. I am assuming they have in depth training to cover such deliveries and their actions will clearly be shown to be deliberate choices against every word of their training, rather than negligence by mistake or not exercising sufficient care. Still hoping to find out what that training might be (the chapter in the training manual?).

 

I am aware of the fact RM have limited their liability. That is their defence. I am looking for an attack. It may or may not win a court case but it might enable RM to decide not to risk defending or suffer the embarrassment of social media to examine the issue.

 

And yes, I have been using special delivery since the days we had to draw a blue line around the parcel. Yet despite this, I remained unaware the liability was reduced for 9am delivery. It was a total surprise when we found that out. It was not specified at the point of sending. Indeed the assumption is that a £23 charge being so much more expensive than standard, implies you do not get a lower level of service. I imagine RM are fully aware that 9am deliveries have an increased risk. Therefore the extra charge covers the extra work and the reduced compensation reflects the extra risk of a claim. Therefore , if they are aware of this and have reduced their cover because of it.......then the posties will also be aware and trained to take even more care of falling prey to the risk.

[BazzaS]

There is no such thing as "deliberate negligence"

Don't put this in any court claim

 

If you must, put "chose to be reckless, leading to negligence"

[Its WAR]

In 2015, I sent two parcels (one day apart) by Royal Mail Special Delivery 9am.

One to London and one to Liverpool.

Both posties gave the parcels (each containing a Rolex watch, purchased form me using stolen card details) to a man loitering  in the street outside the addresses. 

 

The police concluded their investigations and nobody was found to charge with the offence.

 

I have written to Royal Mail many times  since 2015, all my letters (sent Signed For post) including a Notice Before Action, received no replies whatsoever. I think that is pretty disingenuous.

 

I therefore reluctantly issued a summons.

The summons did prompt the only communication back from Royal Mail, in the form of a defence. 

The County Court hearing is set for Feb 2020.

 

The date to exchange documents upon which I intend to rely is 10 December. Rather too soon I am afraid, as I am still waiting to receive two witness statements (from the Police) of the two posties. In these I am told both accept they gave the parcels to a man in the street. I am mindful to request more time.

 

I am aware Royal Mail have a limited £50 compensation (which they have not offered) and presenting a case for breach of contract and or tort is not going to be so easy. But after so long, I have still been unable to escape the unfairness of the position.

 

I hope at least to intelligently argue my case to a judge and accept the result (even if it is just the £50 and postage x two and court fees).

 

My overall losses were insured to a degree by my insurers and most of my insurance claim was settled by them. 

The action is therefore limited to the uninsured portions of my losses (Two excess fees £500 each, loss of no claims discount £350, postage costs £54, compensation £100, interest and fees) and total £2000.

 

I could really use some help in rebutting their standard defence (much of which seems to be clutter to make the whole thing look very complex). I also need help to present case law which will help me argue a strong case. 

 

I am aware of Royal Mails standard liability of £50 per parcel, but wish to examine the circumstances that caused the loss.

Not being told by counter staff of the reduced compensation levels etc and particularly the negligent staff not following procedure (if indeed there is a training manual which instructs them of such procedure).

 

In my view, these items were not just 'lost in the post' and Royal Mail should not be able to get away with the easy way out of sending me £50 plus postage for each loss.

 

Their defence even says I am not due their usual compensation as my claim was not submitted on their standard form (all the information for making a claim was however provided by me in my first letter to them within days of the loss). 

 

Looking at their behaviour in ignoring me and their defence which seems to rely on the hope  most people will give up before getting to court,  I am hoping for some  insights that I would never otherwise think of, and make a worthy fight of this.

 

Thank you in advance.

It's War.

 

 

[Its WAR]

I have just found a thread where this topic was discussed three years ago. So we might repeat a few things. I guess the difference now is that despite my efforts, Royal Mail did not engage with me at all, and the summons has now been issued.

 

[dx100uk]

for sake of history 

I have merged your threads for you.

[BankFodder]

Please post up your claim form and the defence in scanned PDF format.

[Its WAR]

Attached claim form.

Scan0003.pdf

[Its WAR]

Attached Defence form

Scan0005.pdf

[BankFodder]

So by and large they are relying upon the statutory exemptions. However I'm interested to see that you are saying that the special delivery service is not covered by that. Is that correct?

 

[Its WAR]

I think their statutory exemptions are just their copy and paste defence. They are also relying on the fact that I did not submit a claim form within their time frame and so argue my correspondence does not constitute making a claim (which would have been limited to £50 each loss in any case). Regarding Special Delivery, I had read that it is a contractual arrangement outside of their 'no contract exists' defence.

 

[Its WAR]

Is there a defence against the argument Royal Mail say there is no contract, and they are immune from tort and therefore cannot be sued?

 

 

[Its WAR]

Is there an angle regarding the Consumer Rights Act 2015 ("CRA")? Assuming it might be unfair for Royal Mail to hide behind not entering into a contract for the purpose of limiting their liability.

 

From 1 October 2015, the CRA covers all aspects of unfair terms in business-to-consumer contracts which had previously been covered by UCTA and the Unfair Terms in Consumer Contracts Regulations 1999.  It deals with implied terms in relation to the quality of goods and services, including digital content, and regulates attempts on the part of a trader to exclude its liability for breach.  The CRA also introduced a "fairness" test.  Any term which causes "a significant imbalance" in the parties' respective positions, to the detriment of the consumer and in a way which is contrary to the requirement of good faith, will be regarded as "unfair".

 

A term that is "unfair" is not binding on the consumer, and the consumer can treat it as struck out of the contract. The remainder of the contract will stand if it is capable of doing so according to the usual principles of severability.

[Its WAR]

If Royal Mail claim no contract exists in the first place and in any case they have  immunity form tort  and so cannot be sued, and If that is established law from the High Court, why don't they simply apply to have any County Court claim struck out?

 

[Its WAR]

Royal Mails 86 page bundle arrived today.

No witness statement just pages of various sections of various Acts and extracts of Halsbury and Harold Stephen v Royal Mail.

 

Interesting to note 40 pages are illegible.

 

I wonder if I can get those pages struck out and maybe remove whole chunks from  their defence? Scan0009.pdf Eg Harold Stephen.

 

I have scanned one page.

What do you think?

20 pages of Postal services Act unreadable,

50 pages UK Post Scheme - readable.

20 pages Halsbury and Harold Stephen - un readable.

 

Would anybody expect to have to struggle through 40 pages of this ?

 

 

Here is the scan.

Scan0009.pdf

Edited December 10, 2019 by Its WAR

[Its WAR]

Three hour hearing today in the Taunton County Court....WON....

 

It was like a game of chess, exhilarating from the first move. I lost a couple sacrificial points and one or two pieces I would have liked to have won. 

 

As soon as I arrived in the waiting  room, I was approached by the solicitor who had travelled 100 miles or so to get there.

He suggested it was appropriate to spend a few minutes to see if we could agree a settlement. I agreed and said £1600.

He went out to make a phone call, and I sat down wishing I hadn't made the offer because I really wanted the judge to hear my story and win the CCJ.

 

After a phone call, he returned. The figure was refused but he could offer £1000. I refused.

He said I might end up with nothing if it went to hearing.

I replied that he didn't know my argument and it would end up with a CCJ against them.

The next minute we were in front of the judge.

 

The judge explained how she was going to conduct the case and would invite me to speak first.

The solicitor was rather naughty and interrupted her and got to speak first for a few minutes.

He explained that he accepted there was a contract and we should therefore not spend time over it as he was conceding that point.

I thought to myself, no way was I not discussing the contract.

I had the feeling he did not want me to mention it.

 

The judge quickly enough took back control and I could present my case.

I explained how the case was only brought because Royal Mail ignored all my correspondence.

That the RM defense statement refused to accept I had a claim under the Special Delivery postal scheme, but that later emails suggested I could make a claim under the scheme, therefore I was prepared to reduce the value of my claim and limit it to the scheme but that my claim now needed to have costs, which the scheme fails to provide. But RM should have entered into dialogue with me well before I issued the action.

 

As the defence document stated I had not proved I had suffered a loss, I commenced by proving the loss had occurred and RM should have known there was a loss and the defence was misleading the court. I produced the tracking numbers from all my letters and suggested each letter would have caused RM to check the tracking numbers.

 

I produced the Police Report and the two postal workers statements evidencing the parcels were not delivered to the addresses.

I suggested that these police interviews would no doubt have been followed by Royal Mail's own internal interviews between senior management and the postal workers and the reports would have been placed in their employees employment  file. It was  reasonable to expect the interviews with the police were also accompanied by senior management and therefore  reasonable to conclude the defendants absolutely knew the circumstances of loss and that the lost parcels were really lost, despite their defense document specifically not admitting it to the court.

 

 I then went on tell the court that RM accepted I had provided everything required by them to support my claim under the postage scheme, except the original proof of posting and proof of value of the contents. I had been unable to provide these original documents as my insurance company required them and the loss adjuster had archived them but was now retired.

 

I explained how the certificate of postage served to prove I actually posted a parcel, had the parcels disappeared somewhere in the system, but that whilst I could not produce the certificate or till receipt, proof of delivery constituted proof of postage, albeit the delivery was made in the street outside the address.

 

I could not prove the individual value of the trade prices of the two Rolex watches. But under the scheme I should only need to prove £500 per parcel, being that is the cap on compensation for Special Delivery. It was reasonable to accept the trade prices of the Rolex exceeded the cap on compensation.

 

Given the above information, albeit not in the form they required under the scheme, nevertheless did evidence the two pieces of information they were after to satisfy a claim. Therefore I did have a valid claim under the scheme. Yet their defense statement refused to accept I could make a claim.

 

I spoke regarding the contract, that the defence declared all through that there was no contract and only today did they accept there was one. I wanted to discuss it rather than have it glossed over because it was not reasonable behaviour for the defense to tell both me and the court there was no contract, when they knew there was one. Suggesting crown immunity and no contract seems to be a tactic used in the hope claimants would not pursue a claim. That this was done in the hope I would withdraw. Yet it was clear there was a contract all along.

 

The defence bundle included a 50 page document entitled The Royal Mail United Kingdom Post Scheme (this bundle appears to be sent out in defense to every claim) a footnote on page 3 states that some of RMs services include services under contracts which have their own terms and Special Delivery is one of these. 

 

Further I had Stephens v Royal Mail where Lord Denning concludes pge 1177 para F "except for registered letters which are different......and there is a liability for them'. (interestingly both the documents were provided by the defence in their bundle. The 50 page document killed their defense later on. Sadly Stephens was not mentioned again so I cannot say whether it helped and the defense solicitor did not refer to it.

 

The time was passed to the defence solicitor.

He questioned me arguing I had not suffered a loss because I had made a successful insurance claim.

I replied I had lost £250 excess for each parcel plus I lost my no claims bonus £350 , plus £80 to he police and other minor costs, but more importantly, I had also lost £185 issue fee and £335 hearing fee simply because they failed to respond to any correspondence especially the notice before action. It was unreasonable of them to fail to enter into dialogue before I felt obliged to sue. 

 

He moved on to the Special Delivery before 9am scheme which had a max cap of £50 compensation (which was the service I had bought), he introduced a photocopy of a flyer detailing the scheme. The flyer  was not in the bundle. The judge asked if I minded it being introduced. I said it should have been in the bundle and I did mind. (I didn't mind really), and knew she would accept it being introduced. I knew it would pave the way for me to do the same later. The solicitor then spend time digging himself a hole by explaining the details of the scheme and its limited £50 compensation, according to the photocopy of a flyer.

 

I then was able to introduce my own extra document which I had printed off the internet. I explained that if a member of the public wanted information about compensation, they would go to the internet and this was the document I found last week, 'Royal Mail's Retail Compensation Policy For Loss'. Nowhere in this document did it specify anything at all about there being a £50 cap on any Special Delivery Scheme (particularly a 9am scheme). It implied that Special Delivery 1pm had a £500 cap and as the 9am scheme was excluded from the document , it was assumed that the compensation was also £500.

 

I referred  back to the 50 page bundle and described it as the definitive document relating to Royal Mail's postal schemes.  More definitive than the summary of the much shorter document and certainly more definitive than a photocopy of the introduced flyer. In the 50 page document  section 17.7.5 states the cap for the amount of compensation. For Special Delivery it is £500. Also section 21 covers Special Delivery. 21.8 refers back to 17.7.5 and again states the cap is £500. Nowhere in the definitive document does it state anywhere that any Special Delivery scheme reduces the max compensation to £50, indeed the 9am service is not mentioned anywhere in the document. This implies that all Special Delivery schemes (whether the 9am or the 1am service has £500 compensation.

 

The solicitor then went back to arguing I had not proven the value of my loss and that all I had shown were the retail prices of £2395 and £3795. He suggested such valuable items were prohibited as there was a maximum value allowed of £2500. I asked him to show me from the definitive document,  anywhere that mentioned such a prohibition on values. But that he wouldn't find such a reference because there wasn't one. He came back with a real gem, and quoted from page 38. section 5.7.36 which simply stated that Valuables can only be sent using the Special Delivery service. I re read it aloud, and said that was exactly what I had done and that nothing in the document contained any restriction on how valuable an item needed to be.

 

He pressed the point regarding my failure to prove the value of the loss. Then went on to argue that in any case as I had made a successful insurance claim, there was no loss. He read from my claim that I had received an insurance settlement of £4100. I piped up, that there was the evidence of the trade price of the watches. My insurance claim was for the trade price and that the total claimed was £4600 for the two watches less £250 each excess, leaving £4100. This evidenced the value of two watches and confirmed they were below the prohibited value (even if there was such a thing) (I think there is now, but not on the documents that count. But even then you can send more valuable things, so they are not actually prohibited, but you get no compensation at all if they are lost).

 

We then argued again over whether I had suffered a loss because I had been settled by my insurers and this claim might even show me a profit if it was settled in full because I would have been able to spend the settlement of my insurance to make its profit too. I argued there was a real loss because of the deducted excesses etc. But in any case, by claiming under the scheme, I had a genuine claim of the £500 compensation per parcel (assuming the reduced £50 cap had been destroyed by it not appearing in the definitive document)

 

He then tried to argue that the scheme did not require handing the parcel to the named individual and the parcels were therefore correctly delivered to the address. This was immediately refuted as the police statements confirmed the postal workers did not enter the address but gave the parcels away in the street.

 

The judge moved to summing up.

She said that prior to today, it was accepted there was no contract and only today does Royal Mail agree there was a contract.

Should we rely on the terms of the before 9am service? Nothing in the document mentions 9am scheme at all or prohibited values.

My letters did notify RM of a potential claim within the 80 day window, even though the claim was not made within that window.

Royal Mail claim the parcels were delivered but ordinary reasonable expectation means delivery would be to the door of the address. The difficulty for Royal mail is the parcels were delivered to outside the buildings.

Does not find delivery was made and rejects RMs argument that it was.

 

In terms of which scheme to apply, 9am does not appear to be mentioned in RMs schemes and she accepts I was not made aware of the facts that made the 9am scheme different. Therefore the claim is governed by the Special Delivery provision. There was therefore a claim made under the scheme.

It was clear the nature of the claim was brought to the attention of RM within time. I find appropriate claim was made within the timescale.

 

Nowhere can she find that evidence must only be such as is detailed in the schemes or on the required forms.

Find I am entitled to bring a claim not limited to the 9am scheme.

Then a load of scribbles I cant now read what they meant, I fear they might contain a but and then discuss making a profit. 

Allow insurance excess of £250 each parcel. Disallow my no claims discount loss of £350. Disallow the £80 fee I had to pay the police to obtain copy postal workers statements.  Allow 2.5% interest not 8% due to low interest rates. Allow issue fee and hearing fee, travel costs and a few small expenses.

 

Sadly, I can't find the part of the judgment regarding the claim for £500 compensation for loss or whether it was £50 compensation agreed,  due to being confused whether this was disallowed because it might make my claim a profit. I need to phone the court in the morning to see how the summary was worded but  the values of the claim agreed seem to have missed out this £1000  and have ended up around £1150.

 

I will take the £1150 because it also includes a CCJ won against Royal Mail.

I kind of hope they forget to pay and I can send in the bailiffs. 

 

Please know, their standard defence including their pretense of no contract is worrying, but is easily turned into a winning argument using the documents they use to defend themselves with. Making a claim within 80 days and being forced to evidence your claim using their preferred lists of what constitutes evidence , is not necessary. You can use anything at all that might evidence your claim (although obviously it is simpler to do it their way).

 

Crown Immunity was never discussed, but remains simply to put you off, but it might well be discussed for your claim. Stephens was not examined and used again as a frightener. The effort and hours of research and preparing the case, losing sleep and the nervous energy is a huge demand and even though I won the day, the £1150 win (realising the costs were around £600) is not worth it. Despite the above,  journey was really interesting and informative and the three hours before the judge was really exciting.

 

 

 

[BankFodder]

Bravo. A fantastic win for you. Congratulations on your resilience and persistence in this and also for the very interesting and detailed summing up.

When you get a copy of the judgement may be the post up here for everybody to have a look at.

Thank you