MyHermes MCOL proceedings started

[eshroom]

10/12/19 - Parcel booked with MyHermes

20/12/19 - Final invoice paid to MyHermes as they deemed parcel to be overweight

17/01/20 - Contacted MyHermes as item appeared to be lost

 

MyHermes finally confirmed it had lost parcel but claimed I was not eligible for compensation as I contacted them outside of the 28 days stipulated in their terms (even though I did contact them within 28 days of the second invoice being paid and the 28 day rule being a clear contradiction to the Consumer Rights Act, making the loss a breach of contract).

 

After much back and forth, I have filled a claim on MCOL.

 

I have read other threads on this forum and am confident I have followed processes correctly, I will update once a resolution is reached.

 

The claim is for a the cost of postage plus their minimum insurance value of £25, so not a very big claim, but a matter of principle and as I had some spare time this month, I finally got round to filing it.

Edited December 5, 2019 by eshroom

[BankFodder]

What was the value of the parcel and what did it contain?

Please can you post up your claim form here in PDF format.

 

[eshroom]

It was a plastic roof drain and plastic accessories valued at £29. I'll upload shortly. Thanks!

[BankFodder]

I presume that you sent a letter of claim before issuing the papers.

Why on earth didn't you claim for the whole value instead of just the £25?

 

Also, please can you check your dates in your first post because all the events seem to have occurred in the future!

[eshroom]

I claimed out of a matter of principle.

 

I knew it was insured to £25, I chose not to insure the extra £4 and so I don't feel entitled to claim for the full £29.

[BankFodder]

well I'm afraid that you have missed the main principle which is why should you pay more in order to insure them against their own breach of contract? 

 

This is the confidence trick which all courier companies seem to be practicing against their innocent customers and it's been going on for years.

 

Follow the link to the piece on extended warranties and you will understand more about how you've been conned into giving up some of the value of your own property because they have breached their contract towards you and lost the item. It is Hermes who should be insuring against their own negligence and their own contractual breaches.

 

Hermes should not be relying on their customers to protect them against their own contractual breaches. That is the principle that you should be be attempting to defend and unfortunately you appear to have surrendered it.

 

[eshroom]

I agree with you, but it seems a bit hit or miss when it comes to claiming in case of a loss as this post shows:

www.consumeractiongroup.co.uk/topic/415377-parcel2go-hermes-lost-parcel-small-claims-procedure/

 

 

 

 

If it was certain I would win a claim in case of loss/damage, I wouldn't ever pay extra for "insurance".

[BankFodder]

I'm afraid that standing on principles almost always involves a bit of risk.

I hadn't noticed the case that you have referred to – and our site team member @Andyorch has already commented on it that there is a lottery in so far as judges are concerned.

I haven't seen the claim form and I don't know precisely how it was argued in court. I feel very strongly that the decision is wrong because it effectively allows contractual terms to overcome statutory rights – and this has to be in error.

Whatever the case, it is most likely that Hermes will simply put their hands up and pay you out and if you had claimed 5 pounds more they would have done the same. Even if they had gone to court, your chances of winning on a claim for the £25 would be better than 95% and the worst you might have expected would have been for the court to refuse to award you the extra 4 pounds and simply to give you the £25.

I think that Hermes and the other courier companies rely on the fact that their customers don't have sufficient confidence to refuse to pay for the extra insurance.

Clearly this is something which needs to be tested at a reasonably within the court structure but of course this is most unlikely to happen given the value of claims.

I was sorry to see that your original reason for not claiming the full value was that

Quote

 I chose not to insure the extra £4 and so I don't feel entitled….

 

I asked you to post up your claim form. I think it will be helpful if you did that.

[BankFodder]

Incidentally, are you an eBay trader or trading in some other way?

[BankFodder]

… and incidentally, I take the view that a secondary contract – in this case, the separate "insurance"/compensation contract is unfair because it seeks to limit the rights of the consumer in relation to the main contract (the delivery contract).
You can read about it here:

 

 

 

As I have said, I have not seen the claim form in the case which you referred to above, but I doubt whether it makes mention of section 72 – and that along with the problem of the judge lottery, is what has resulted in the claimant losing his case.

A great shame.

 

It is clear that a culpable contracting party should not be entitled to rely on the failure of the innocent contracting party to buy additional insurance in order to escape his contractual obligations.

[eshroom]

I am not a seller. This was a store return, using a label I purchased directly from MyHermes. It took me so long to notify them as the store never informed me they didn't receive the return.

 

I will upload the claim form I just don't have access to a computer right now. I didn't mention section 72.

[BankFodder]

Well you've been with us since 2011, it's a great shame that you didn't come here first before issuing the claim. We could have steered you in a better direction

[eshroom]

Claim form attached.

Claim Hermes.pdf

[BankFodder]

Thank you. The claim form could have been much simpler. It wasn't necessary to go into the whole history of everything at this moment.

A bit strange that they didn't respond at all. You never know your luck maybe you get a default judgement. Keep in monitoring and put in for judgement the very moment that it allows you.

Keep us updated. Once again I think it's a real shame that you didn't claim for the full amount. I'm sure that simply claiming for the insured amount was a very noble gesture.

[eshroom]

6 minutes ago, BankFodder said:

Keep us updated. Once again I think it's a real shame that you didn't claim for the full amount. I'm sure that simply claiming for the insured amount was a very noble gesture.

 

Lesson learnt here.

 

They have responded but not to me. I just got an email from MCOL saying the defendant has been granted a 14 day extension.

[BankFodder]

Okay – so you can either expect them to put in a defence, or more likely they might put their hands up. However, they may decide to test you to see whether you are prepared to pay the hearing fee before putting their hands up. The money is no skin off their nose if they have to pay all costs. I think that they would prefer to see you back down

[eshroom]

I'm surprised they haven't backed down already. Clearly if I am prepared to risk a £25 fee for a £25 claim, I will be prepared to also risk the hearing fee, but maybe they are not seeing it like that.

 

Or maybe they genuinely believe they can defend their 28 day term to report losses.

[eshroom]

So today, one day before the deadline, they have rejected the claim and offered mediation.

 

I am confident their terms is:

 

a) Flawed "You must notify us in writing of any claim for Loss or Damage or Late Delivery within 28 days of the date of the relevant Order." when a Hermes label is valid for 60 days from the date of purchase, if I send the parcel on the 29th day after purchase, the implication is I will no longer be covered for loss of the parcel

 

b) In contradiction to the consumer rights acts, for which the loss of the package is a breach of contract and comes with a 6 year period in which I can raise a claim, not 28 days

 

c) As I only fully paid my order (which was deemed overweight and so a second payment was required 10 days after the initial order) exactly 28 days before I notified them of the loss, I would deem the second payment date to be the "relevant order" date and therefore the 28 day term having been satisfied.

 

d) The requirement to notify them of a loss serves only to restrict a claimant from their right to compensation, given that all their parcels are digitally tracked by Hermes themselves and therefore they are aware of any potential loss and should be investigating automatically. They should not need to be notified of something their system already knows

 

Should I take mediation? I in any case will not settle for anything less than my initial claim amount, i.e. full compensation plus full costs. Or, should I progress to the next stage of the claim?

[BankFodder]

13 minutes ago, eshroom said:

So today, one day before the deadline, they have rejected the claim and offered mediation.

 

I am confident their terms is:

 

a) Flawed "You must notify us in writing of any claim for Loss or Damage or Late Delivery within 28 days of the date of the relevant Order." when a Hermes label is valid for 60 days from the date of purchase, if I send the parcel on the 29th day after purchase, the implication is I will no longer be covered for loss of the parcel

in relation to the time limit fr claiming https://www.consumeractiongroup.co.uk/topic/387655-schedule-2-part-1/ esp pars. 2 and 20 - but especially para. 2

 

 

b) In contradiction to the consumer rights acts, for which the loss of the package is a breach of contract and comes with a 6 year period in which I can raise a claim, not 28 days

 

c) As I only fully paid my order (which was deemed overweight and so a second payment was required 10 days after the initial order) exactly 28 days before I notified them of the loss, I would deem the second payment date to be the "relevant order" date and therefore the 28 day term having been satisfied.

 

d) The requirement to notify them of a loss serves only to restrict a claimant from their right to compensation, given that all their parcels are digitally tracked by Hermes themselves and therefore they are aware of any potential loss and should be investigating automatically. They should not need to be notified of something their system already knows

 

Should I take mediation? I in any case will not settle for anything less than my initial claim amount, i.e. full compensation plus full costs. Or, should I progress to the next stage of the claim?

 

You seem to be getting hung up on the 28 day notification period. It's nonsense and as I have suggested above, that would be an unfair term and therefore unenforceable. In any event, as you know, you have six years to bring a legal action in respect of their breach. Their attempt to defend on the basis of 28 days effectively is an attempt to limit your legal rights.

As far as mediation goes, personally I think it's a waste of time. Other members of the site team will suggest differently. It's a matter for you but don't forget it will be used by Hermes as an attempt to get you to compromise on the value of your claim.

 

[eshroom]

Here is their rejection, so it seems I incorrectly states the value as £18, my receipts show otherwise, so I can prove the correct value.

 

Furthermore, they claim their terms limit their liability to £20 (point 22.3 below), this is correct, I just checked, but it is in contradiction to their advertising, e.g. here, which states £25 minimum cover (and is the reason I claimed £25).

 

Their rejection:

Why they disagree with the claim

1. If any part of the Particulars of Claim are not expressly admitted or denied below, such parts are denied by the Defendant entirely.

 

2. The Defendant is and was at all material times a company limited by shares in the business of providing delivery services for business to business, business to consumer and consumer to consumer. The Defendant operates “myhermes.co.uk” which is a website that can be used to order delivery services from the business of the Defendant operated under the ‘myHermes’ brand.

 

3. On or around 10 December 2018, the Claimant entered into an agreement with the Defendant for the use of its myHermes delivery services.

 

4. The agreement was governed by the Defendant’s standard terms and conditions (the “Contract”).

 

5. The Claimant confirmed before completing the Contract that he had read and accepted the Defendant’s terms and conditions.

 

6. The Claimant stated that the parcel contained a ‘Roof drain’ (the “Parcel”). 7. The Claimant stated that the Parcel was valued at £18.00.

 

8. In consideration of the Defendant providing the delivery services, the Claimant paid the sum of £3.59 (including VAT).

 

9. On or around 10 December 2018, in anticipation of delivery to XXXXXXXXXXX, Claimant dropped the Parcel off at one of the Defendant’s ParcelShops.

 

10. The last tracking point for the Parcel was on 18 December 2018 at one of the Defendants depots. There are no further tracking points after this date and therefore the Defendant accepts that the Parcel is lost. The Claim Value

 

11. The Claimant stated on the ‘Order Form’ for the Parcel that the value was £18.00

 

12. The Claimant paid £3.59 for the delivery charges of the Parcel.

 

13. Yet, the Claimant seeks to recover £55.68.

 

14. The Claimant is put to strict proof as to the value of the claim.

 

16. The Defendant denies that it is liable to pay the Claimant the damages claimed for breach of contract and/or negligence.

 

17. This Defence is a response to the Particulars of Claim which are set out in the ‘Particulars of Claim’ on page 2 of the claim form. Claim Form – Particulars of Claim

 

18. The first to fourth sentences of the Particulars of Claim are admitted.

 

19. The fifth to sixth sentences of the Particualrs of Claim are neither admitted nor deniend and the Claimant is put to strict proof. Making a Claim for compensation

 

20. The terms of the Contract which were accepted by the Claimant, and in force at the relevant time, set out the Defendant’s liability in respect of making a claim. The relevant provisions of the Contract state:

 

20.1 Clause 9.1 You must notify us in writing of any claim for Loss or Damage or Late Delivery within 28 days of the date of the relevant Order. If you fail to do so, we will not be liable to you for it, except where you are able to prove that it was not possible for you to notify us of your claim in writing within this time limit.”

 

20.2 Clause 9.2 When we receive your claim for Compensation, we will require you to back up your claim by providing us with any relevant information about the relevant Parcel and or Goods including without limitation: 9.2.1 proof of the Parcel's dispatch; 9.2.2 estimates for the repair of the Goods; 9.2.3 proof of the value of the Goods; 9.2.4 the cost price of the Goods and related proof including receipts; and 9.2.5 details of the weight, size, volume and nature of the Goods.

 

20.3 Clause 9.3 In the case of alleged Damage, you must ensure that the Parcel, its packaging and the Goods are held for inspection at the Delivery Point.

 

20.4 Clause 9.4 We may make any investigations that we think are necessary to check out any claim.

 

20.5 Clause 9.5 Any claim for Compensation must be made on a properly completed Claim Form. You must send this Claim Form to us so that we receive it within 14 days of the date that we provided it to you.”

 

21. As a result, the Defendant denies that any compensation is payable in relation to the Parcel as the Claimant failed to notify the Defendant of any claim for Loss or Damage or Late Delivery within 28 days of the date of the relevant Order.

 

22. If, which it is denied, the Defendant is found to be liable to pay compensation for the damage/loss of the Parcel, the Defendant denies that it is liable to pay the Claimant the damages claimed as the relevant provisions of the Contract limit the Defendant’s liability in actions for breach of contract and/or negligence. The relevant provisions state:-

 

22.1 Clause 7.2 “For any other Goods or Parcels we will only be liable to you for Loss or Damage or Late Delivery to the extent that it is caused by our negligence, in which case we will pay compensation to you subject to the limits set out in condition 8 below (“Compensation”).”

 

22.2 Clause 7.3 “The Compensation shall be the full extent of our liability to you for Loss or Damage or Late Delivery”

 

22.3 Clause 8 “8.1 Unless you have taken out our Full Cover, the following limits apply to our liability to you under a Contract: 8.2 Our liability for each instance of Loss or Damage or anything else other than Late Delivery is limited to whichever is lesser of: 8.2.1 £20; or 8.2.2 the cost of repairing the damaged Goods, or the value of the lost or damaged Goods (as we shall reasonably determine up to a maximum of the price you paid or were paid for the Goods). 8.3 Our liability for Late Delivery is limited to refunding the Charges. 8.4 When you submit an Order, you may take out our Full Cover. If you do so the limit of our liability to you for Loss or Damage will be varied to whichever is the lesser of: 8.4.1 the level of your Full Cover per Parcel; or 8.4.2 the cost of repairing the damaged Goods, or the value of the lost or damaged Goods, (as we shall reasonably determine up to a maximum of the price you paid or were paid for the Goods).”

 

23. Full Cover is defined at Clause 1.1.12: “Full Cover” means optional enhanced compensation that you may, for a fee, take out when you submit an Order. For details click here. [Links to https://www.myhermes.co.uk/our-services/our-prices.html]”

 

24. Accordingly, the Contract terms limit the Defendant’s liability for loss or damage to a parcel (in contract and/or negligence) to a particular value (as determined by clause 8), for the loss or damage to goods. That compensation value is the lesser of £20 or the value of the damaged/lost goods.

 

25. The Claimant opted to increase the level of compensation for the Parcel and therefore, pursuant to the terms of the Contract the Claimant is entitled to maximum compensation in the sum of £21.59. Claim for compensation

 

26. The Claimant claims £55.68 27. As explained above, it is denied that the Defendant owes the Claimant £55.68

[BankFodder]

Does the £55 which they say you are claiming include the court costs? Is that what they on about? If it is then their defence is highly misleading

[eshroom]

Yes, that's right.

[BankFodder]

Well in that case, if you decide to go to mediation, you should start off with a list of their inaccuracies – bullet pointed 1, 2, 3 et cetera and read the list out to the mediator who will be on the telephone and tell them that if these inaccuracies are not accepted then you will go to court.

Make it clear that this is your starting position and that you will not get involved in any further discussion until the other side accept that their particulars of claim is inaccurate and misleading.

 

[BankFodder]

Also make it clear to the mediator that any settlement must include your court fees and that if this not accepted then you will get a court.

Explained that this is not negotiable and then refused to make any further comment until your position is accepted. The mediator might try to persuade you to move. Be resolute

[eshroom]

Thank you, great advice! What about my inaccuracy? Namely under declaring the value?

Edited December 27, 2019 by eshroom
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