Interesting Packlink / Hermes / eBay claim - where does the liability lie? **WON**

[david_v_goliath]

@BankFodder, I have registered with MCOL, and am preparing my claim form.

I have ticked the 'will send detailed particulars of claim' option, and the 'I'm claiming interest at the statutory 8% rate' box.

 

In the brief, POC box, I am stating the following:

 

1.       On 23 Jan, I sent a package using the Hermes delivery service.

2.       On 2 Feb, Hermes confirmed that “the parcel is lost in our network”, but refused to compensate me, “as your parcel was booked through Packlink”.

3.       On 9 Feb, I issued a claim for compensation to Packlink. I received £32.29.

4.       On 11 Feb, I issued a letter before action to Hermes, requesting compensation for the balance of my loss.

5.       On 12 Feb, Hermes again denied any compensation.

 

This just about fits! I have few questions:

 

a) Should I be making reference to the grounds of my case here,  i.e. by reference to the Contracts (Rights of Third Parties) Act, and or an accusation of negligence in the alternative, or should I just detail that in the detailed particualrs of claim

 

b) Disclosure. How can I get access to the contract between Packlink and Hermes, to ensure that there is no third party exclusion clause?

 

c) Have I missed anything else (I've followed your guide on this forum, and also the user guide on MCOL)

 

 

 

 

[BankFodder]

You don't have to have it in numbered paragraphs. You can simply have it in narrative form – and that will give you extra characters.

 

Quote

The claimant seeks reimbursement of the value of a parcel which was lost by the defendant delivery service about XXX date. The delivery was arranged through Packlink, a broker acting on behalf of the defendant. The parcel was contained XXX item was worth £XXX. £XXX has been reimbursed by Packlink and the claimant now seeks the balance of £XXX from the defendant. The defendant has confirmed in writing that they lost the parcel but declines to reimburse the claimant. The claimant relies upon the Contracts (Rights of Third Parties) Act 1999. Alternatively the defendant was negligent.
The claimant seeks £XXX plus interest per section 69 County Courts act 1984+ costs

 

Do you need to send an extra particulars of claim. I'm not clear that is necessary in this case. What do you think?

[dx100uk]

no don't use extra particulars

all you need is to cover the basics 

BF's example above is perfect.

 

anything else you expand upon your basic details in your witness statement if they don't cough before then.

 

dx

 

 

[david_v_goliath]

Thank you @BankFodder for that suggested wording, and @dx100uk for confirming.  I had forgotten about the possibility of serving a witness statement. Presumably I will get an option to do that if and when Hermes files its defence, and the Court orders standard disclosure?

 

The only other reason I can think of to file detailed particulars of claim is explain how I have quantified my claim - as attached (as the calculation is not otherwise obvious).

 

Should this go in the WS too?

 

 

Edited February 16, 2020 by david_v_goliath
Calculation attached

[BankFodder]

No

[david_v_goliath]

No to putting it in a WS? Do you mean I should put it in the detailed POC instead, or not at all? 

[BankFodder]

Meaning just send off the claim as suggested – see what they come up with by way of a defence and then respond to it.

Keep it simple

[david_v_goliath]

Served on 16 Feb.

 

On reviewing the MCOL website today for an updated, I noticed that 1) Hermes has aknowledged the claim, but not yet filed a defence, and 2) that I there was a glitch / error on the form. Essentially, it looks like I had accidentally left the "I will send detailed particulars of claim" box ticke (I thought I had unticked it), with the result that the claim section has been truncated, and some extra text has automatcially been added - in red below):

 

"...Claimant seeks £XXX, plus
I will provide the defendant with separate
detailed particulars within 14 days after
service of the claim form.
The claimant claims interest under section 69
of the County Courts Act 1984 at the rate of..."

 

This is obviously not ideal. Is it better to try to amend the claim somehow, or to just submit a brief POC that a) clarifies that I am seeking £XXX plus costs (which was automatically truncated), and b) sets out my calculation of the £XXX?

 

[BankFodder]

Definitely not ideal – it could have been avoided  .

Yes, send a very short POC immediately and sign a certificate of service.

 

[david_v_goliath]

Hi @BankFodder - I hope you are keeping well!

 

I have finally received a response from Hermes to my claim. It is a full defence. Hermes admits that it has lost my parcel, puts me to strict proof as to the value of the claim, but denies that it is liable to pay damages claimed for break of contract and/ or negligence. It asserts that there is no contract between Claimant and Defendant, and that Claimant enterted into a contract with Packlink, which was made very clear during the order process, and that Claimant should desist with this claim and contact Packlink. Hermes does not ever aknowledge that I rely on the Contracts (Rights of Third Parties) Act 1999.

 

I am hoping for a mediation (although I have not yet been contacted). If not, I suppose I will receive a directions questionaire next, and will need to prepare for a hearing.

 

Would it be helpful for me to upload the defence (or an anonyised version of it) here?

 

Also, in one of the FAQs on this website, you suggest that I could write to the court and suggest some directions, if, for instance, I feel that the defendant has been withholding evidence. Do you think Hermes ignoring my claim in relation to the Contracts (Rights of Third Parties) Act warrants requesting disclose of the contract between Hermes and Packlink - with the purpose of verifying that there is no explicit exclusion that would warrant this act inapplicable? 

[dx100uk]

yes one multipage PDf please

 

dx

 

[BankFodder]

If they refer to their contract with Packlink in their defence then you can put in a CPR 31.14 request.

 

Anyway, don't worry that they don't reference the third parties Act. Why would they want to play into your hands? It will be more interesting if they denied it. Frankly the fact that they are silent on the matter indicates that they are subject to it.

And anyway, liability negligence has nothing to do with contract – and it is clear that is reasonably foreseeable that you as the sender of the item could be affected by their negligent acts or omissions.

 

[david_v_goliath]

@dx100uk - attached now. I have copied the wording into a new document, anonymised it, and added a couple of notes of my own (all highlighted yellow) including for ease of reference to relevant sentences in my claim. I'd welcome your and BankFodder's thoughts and advice!

 

@BankFodder - they refer to being a subcontractor to Packlink, at paragraph 4. CPR 31.14 seems to relate to "Documents referred to in statements of case etc....(1) A party may inspect a document mentioned in...(a) a statement of case". I wonder whether Hermes' wording is sufficient to make a request? And your latter two points make perfect sense to me! 

 

 

Hermes' defence - anonymised.pdf

[BankFodder]

I think that the reference to them being a "subcontractor to provide delivery services…" and also to a "pre-existing commercial agreement…" is quite sufficient reference to allow you to make a CPR 31. 14 request – and it's no skin off your nose to make it and it's up to them either to satisfy it or to say why not. Also – at paragraph 24 they agreed that they had a contract with Packlink – which is another reference to a document which brings within the ambit of CPR 31,000 

Secondly, they don't address your point about the Contracts (Rights of Third Parties) Act and I think that is significant – but anyway you made the point and it's up to the court to decide. I notice that they are putting you to strict proof as to the issue of the Third Parties Act – and I think this also gives you access to CPR 31 disclosure.

Thirdly, they haven't at all addressed the issue of negligence. They haven't explained that they don't owe you a duty of care or that the type of damage you suffered was foreseeable.

It's a piece of sloppy drafting – which is what we are used to from this company – and particularly the missing paragraphs demonstrate that very well.

The important thing is that they accept that they've lost the parcel. Now they have to convince a judge that they don't owe you any duty either contractual or duty not to handle your goods negligently. I think they've got a tough job and if you go to mediation I think you would be wrong to give even an inch of ground to them. Stick by your guns. It's not very much money and they will be very stupid to take this much further. They might try mediation as a cheap option – but they won't want to go further. Stick by your guns and don't give an inch.

Insist on the money plus all your costs and don't give ground. Particularly if they don't respond to your CPR 31 request – then that is something absolutely to hold over them because if they don't accede to your request and effectively means that they have something they don't want to reveal to you. You can point out to the mediator that they will have to reveal in court as part of their core bundle if they don't rely on it.

 

In fact, you should make it clear to the mediator that you will only enter into mediation if they satisfy your CPR 31 request. Tell the mediator that if they won't then it is the lack of cooperation which is pushing you both into court. That should be the end of the conversation until they reveal the documents.

They're idiots

[david_v_goliath]

Thank you for your thoughts and advice! I will do as you suggested.

 

A have a couple of questions on timing and format.

 

On timings:

 

I am still waiting for a mediator to contact me, and to receive the the directions questionnaire. Should I wait on either / both of these before proceeding with the CPR31.14 request? The status of the claim is as below. This suggests to me that the DQ has only been sent to Hermes, and not to me, so I don't know if I'll ever receive it. It doesn't seem to be available on the MCOL website.

• A bar was put in place for Hermes Parcelnet Limited on 20/03/2020
• Hermes Parcelnet Limited filed a defence on 20/03/2020 at 14:05:15
• DQ sent to Hermes Parcelnet Limited on 23/03/2020

On format:

 

Is there a prescribed form, or wording for the CPR31.14 request? Or do I just send a letter to the Court and Hermes, requesting disclosure of Hermes/PackLink contract under CPR 31.14, and make reference to this contract being relied upon in Hermes' defence? 

 

Sorry for what may be stupid questions - but I can't fine answers to these in the MCOl guide, or in your (generall very helpful) FAQ on this website!

[AndyOrch]

Claimants shouldnt need  CPR 31.14...you are the claimant.Ring the court and ask about your DQ.

 

Disclosure of documents follows allocation....( after you submit your DQ)

 

Andy

[david_v_goliath]

Thanks Andy. I have called MCOL, and their recorded message suggests that they are closed indefintely. I also emailed, and got an automatic response stating "Following continued advice from the Government, the County Court Business Centre is temporarily closed due to the Covid-19 outbreak". I guess my DQ has been delayed because of this...will wait and see, as it seems there is not much more that I can do at this point! 

[AndyOrch]

Yes not much happening at the moment...you could complete your DQ in the meantime...dont submit until advised by the court.

 

 

 

[david_v_goliath]

Thanks both. I received the DQ and have been advised to complete by 9 April and serve on defendant. So I will be sending it by email today - agreeing for referral to the small claims mediation service, and requesting a hearing venue near to my home (although I imagine all hearings will be held remotely for the foreseeable future anyway). 

 

I also managed to speak to MCOL on the phone. They didn't seem to know how I could make a request for the court to order the Defendant to disclose documents. They suggested I might file an N265 (https://www.gov.uk/government/publications/form-n265-list-of-documents-standard-disclosure) or N244 (https://www.gov.uk/government/publications/form-n244-application-notice) form. Neither of these seem appropriate to me. 

 

Can I just email the Defendant directly to ask for disclosure of the Hermes / PackLink contract? Or email the Court?

 

I think it might be helpful to have this document in advance of any mediation or hearing (or at the very least, a document showing that I have requested the contract, and that the Defendant has refused to disclose it)!

[AndyOrch]

As per my last post...the disclosure of documents follows after allocation...both parties will be directed by the court in its directions to perform standard disclosure along with their statement of case.If the " contract " has been referred to by either the claimant or defendant in particulars of claim or defence or in the impending " statements of case " then they must disclose that document in their standard disclosure...as evidence to support their defence.

 

If it has not been referred to.....and its pity you didn't refer to it in your particulars then you may have to force disclosure...you could possibly use CPR 18 or CPR 31.6  or 31.12...but that would involve making an application n244 and fee.

 

The N265 is for Fast Track cases.....yours is or considered to be small claims track.

[david_v_goliath]

Thank you Andy - that's helpful.

 

While I did not refer to the Hermes-Packlink contract, Hermes' defence does, and it does so quite explicitly: "Defendant also works as a subcontractor to provide delivery services to customers of PACKLINK Shipping S.L (“Packlink”) who are a company registered in, Spain with the number CIF B83357863 whose registered address is Calle Amaltea, 9 28045 Madrid pursuant to a pre-existing commercial agreement to carry out delivery services". So I think this means that Hermes should disclose this "pre-existing commercial agreement" in Standard Disclosure. 

 

It sounds like your advice is to wait for the process, and see if Hermes discloses the contract. I know you said disclosure happens after allocation - but do you know if there is typically a deadline on that disclosure? 

 

Essentially, I am wondering whether I will have enough time to review the contract (or to request its disclosure and inspection, if Hermes does not volunteer it as it should), before writing my witness statement. 

 

[AndyOrch]

Specific disclosure or inspection

31.12

(1) The court may make an order for specific disclosure or specific inspection.

(2) An order for specific disclosure is an order that a party must do one or more of the following things –

(a) disclose documents or classes of documents specified in the order;

(b) carry out a search to the extent stated in the order;

(c) disclose any documents located as a result of that search.

(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

(Rule 31.3(2) allows a party to state in his disclosure statement that he will not permit inspection of a document on the grounds that it would be disproportionate to do so)

(Rule 78.26 contains rules in relation to the disclosure and inspection of evidence arising out of mediation of certain cross-border disputes.)

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31#31.9

[david_v_goliath]

Thanks Andy. Lower down in that link, it also suggests that:

• I have a right to inspect the document since it is referred to in Hermes' defence (which I think fall sunder 31.14 (1) (a)),
• that I must provide Hermes with written notice of my wish to inspect it, and
• that Hermes will have 7 days to provide it. 

So I will serve notice under 31.14 and 31.15 to Hermes by email, and file a certificate of service with the Court.  I don't think I need to wait allocation etc. to make the request under these rules

 

Documents referred to in statements of case etc.

31.14

(1) A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

(c) a witness summary; or

(d) an affidavit^(GL).

(e) Revoked.

(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.

(Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)

Back to top

Inspection and copying of documents

31.15  Where a party has a right to inspect a document–

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)

[AndyOrch]

You could try...but bear in mind that CPR 31 does not apply to SCT claims and although your case has yet to be allocated to a track no doubt they will state ...does not apply.

 

They will have to disclose anyway at SD..but as you state you will have little time to examine or respond in your statement if they serve you late....or if at all. 

[david_v_goliath]

I wanted to provide an update to this chain. I have reached a settlement with Hermes.

 

For the benefit of anyone else going through this process, some notes:

 

The formal mediation process was delayed (I guess, due to Covid). I wrote directly to the relevant person in Hermes' legal department (firstname.lastname@hermes-europe.co.uk - you will get the names in your claim form, for anyone else going through this process)

 

I played hard ball - I maintained my position in my claim form, I did not give Hermes' (in my view, entirely without merit) arguments any attention, and I maintained the fact that unless Hermes' settle for the full amount claimed, I would pursue this to Court.

 

I also insisted on production of the contract between Hermes and Packlink, which was referred to multiple times in Hermes' defence. My understanding is that the wording in this contract - if carefully enough worded - might afford Hermes some protection against claims under the Right of Third Parties act. I never got sight of the contract, so I don't know. Read what you will into Hermes' refusal to provide the contract - either it is commercially sensitive (although it could be redacted to get around this), or the smoking gun sits within.

 

Hermes initially offered to pay only the amount of my claim, less costs. I insisted on the amount plus costs. They paid up.

 

Thank you to the moderators on this thread that provided me with candid advice along the way. It was very helpful, and I hope it helps anyone else in this position.