DPD have lost my parcel

[BankFodder]

If you read other threads in which I have posted, you will see that the need for "parcel protection" troubles me because effectively you are insuring against the negligence of another party – which is crazy. This is like an extended warranty where you are effectively insuring against defects which should be the responsibility of the manufacturer and enforced by their customer – the retailer (or even better, by the Market).

You pay your money for the delivery and you should expect your item delivered and if there is any problem – negligence – or some other occurrence which results in damage or loss to your parcel then it is the courier who should insure against those eventualities. It should not be the job of the customer.

On that basis, the lack of parcel protection – which is essentially insurance should be irrelevant. In fact they don't like to call it insurance because although that is exactly what it is, it's not an insurance scheme which is regulated by the FCA – and they don't want to be regulated by the FCA and be subject to the normal insurance rules. But it is insurance nevertheless.
The only benefit of taking out an insurance is that the compensation should be relatively quibble free. In fact we find that even when customers have paid the insurance, the courier company or Parcel2Go still manage to dig up a reason why the insurance is not applicable in that case – contains glass, prohibited goods, et cetera et cetera. I have the impression that they are prepared to spend more money on trying to resist a claim then it would cost them simply to satisfy it.

Secondly, you are getting the usual fob off. DPD says nothing to do with them because your contract is with Parcel2Go. In fact Parcel2Go performs the role of a convenient buffer which is calculated to isolate DPD from legal responsibility for their contractual breaches. It actually should be Parcel2Go who should sue DPD for breach of contract – but of course they never will. Both parties hope that the customer will purchase insurance and in that way, you will be the customer who becomes liable for the contractual or negligence breaches of the courier company. It's a nice little set up – and you're the one who's been set up.

In fact it's just a revenue stream because a huge number of people purchase this insurance and don't have any claim. The number of claims which are brought are probably minuscule. I really wonder whether they make more money from the insurance side of the business than the actual deliveries. After all, they don't have to pay for lorries or the transaction costs related to the transportation of goods all over the country and the labour costs. The insurance money they receive is really just a free bonus with probably very few marginal costs.

Anyway, DPD says nothing to do with them – but in fact it is. You can enforce against them using the Contracts (Rights of Third Parties) Act which gives you the equivalent rights of a contracting party unless you are specifically excluded from the Parcel2Go/DPD contract. We've never seen one – but if they decided to raise the issue then they would have to produce it.

You take the benefit of that Act – if you are clearly meant to be a beneficiary of the contract between Parcel2Go and DPD – which you clearly are and if you are named or referred to in it, specifically or as a class of person such as "sender" or "expediter" – as surely you must be.

Generally speaking the courier companies used by Parcel2Go simply rollover after a load of fuss and quite often it is necessary to issue legal proceedings - but eventually they put their hands up. However, we are generally speaking dealing with relatively low value items. Here you are dealing with £1100. This might exercise them a little bit more and they could decide to push you to a hearing.

Because you are trading as a business, it means that in all likelihood a county court small claim would be transferred to the local court of DPD or Hermes – whichever you decide to go for. That would put you to some trouble and expense because if there was a hearing you would have to travel to that court on at least one occasion and if there were problems with the management of the case – it might be more than one occasion. Although you will be able to claim your reasonable costs of travel in the event that you won, you would be hard-pressed to claim for the time spent – and these are risk factors that you would have to factor in when considering the possibility that you might lose the case. Parcel2Go and DPD will both be aware of these rules and will both be aware that this gives them an advantage over you because it will be much more troublesome for you to sue them. When they are sued by private individuals, then it is they which must travel to the court and that produces greater economic pressure upon the companies to settle with their customers. Unfortunately, as a trader – you don't enjoy that benefit.

You could sue Parcel2Go for breach of contract as you are directly a contracting partner. They would raise the issue that you hadn't bought the insurance – and you would have to respond that by paying the delivery fee, you had purchased their contractual obligations and that you didn't need to do anything more to be confident that the service would be properly carried out. I think you could very reasonably argue that the requirement by Parcel2Go that you buy an insurance in addition to the delivery price amounted to an unreasonable contract term – and therefore unenforceable.

You could sue DPD in breach of contract using your third party rights or you could sue them in negligence – or both.

I think my money would be on Parcel2Go with chances of success about 80% or 85%.

Your risk factors would include the claim fee, the hearing fee if they pushed you to a hearing – and for this kind of value they might – cost of travel and time involved travelling and also preparing and managing the case. Of course if you won then you would get all of this back and you would strike a great blow against the delivery business which somehow has managed to produce a culture amongst all their customers which is largely unquestioned that you must pay for the delivery and then if they cock it up – you must pay to remedy their breach.

Quite extraordinary – I don't understand how this culture ever took hold.

[BankFodder]

Surely you must have studied enough ELS in your first year to know that a county court action won't amount to a precedent for anything. However, it would amount to a very satisfying slap in the face for the delivery business. That's probably something that they don't teach you at any point during a programme of legal education.

[BankFodder]

Which university are you at?

[BankFodder]

As I pointed out my earlier post, my money is on going against Parcel2Go. It will be much more straightforward – although you lose the opportunity to argue negligence in the alternative. However, Parcel2Go.

In response to the post above, I disagree that the court expects you to make reasonable you are attempts to resolve the matter with your contracting party – "the other party". Under the third parties act, you take full rights as if you are the contracting party – and it's not for the judge to make any evaluation or to weigh the fact that you are taking advantage of the act against you. Unless there is something in the act or in the County Court rules which is different – and I don't believe there is. I would invite the poster above to give me a source for their proposition.

Secondly, because you are an eBay trader, the case with normally be transferred to the defendants court. The hearing of a matter in the claimant's court would only normally happen with a litigant in person – but of course there is discretion and you would argue in favour of your local court and hope that what you said carried the day. However, the poster above is wrong to make the assertion such a definite way.

Finally, the poster above has suggested that your difficulty is going to be the limit our liability. This is completely wrong. They would not be able to impose a limit on liability and the only time that might happen would be if you had misled them as to the value of the item that you are sending. In that case my view is that you would be limited to claiming that particular value. However if you had declared the full value and simply not "insured" and I don't see this as a barrier because once again, you have paid the delivery fee and is ridiculous to expect you to insure against breach of contract either by Parcel2Go or by DPD. It is for them to insure against their own shortcomings not for the customer.

So I'm sorry to say but on all three points that the poster above is making, I would say that they are wrong or mostly wrong.

[BankFodder]

It's perfectly possible for people to contract for their own personal purposes and separately to contract in relation to business activity. The OP here has told us that there are an eBay seller and this was the basis on which they were selling the computers. If they represent themselves as such in a court claim then to all intents and purposes they are considered to be a business. It's then up to the OP to explain that they are simply a small business – maybe acting as a part-time to support their activities as a law student – and this may be sufficient to persuade the court to transfer the matter to the claimant's local court.

Of course a court will expect a claimant to act reasonably that this doesn't mean that they must act reasonably to the exclusion of their rights under the third parties act. Acting reasonably means that – yes – they have to give adequate time and I realise that I've omitted to ask when this will happened – and how long it's been going on for. I suppose that I have assumed that it's been going on for a while because that would be the standard approach of these courier companies. I suppose that we had better ask this question of the OP. The OP has told us that the item was with DPD on 18 March and then missed the deadline for delivery. The OP has also told us that it has been admitted that the item has been lost – but we have already been told that they are trying to rely on the fact that there was no "insurance". I'm afraid the experience of dealing these companies shows that this is their last word and it is at this point that they expect their customers to back down and so everything has to move quite naturally to letter of claim and an issue of proceedings. Frankly, rather than being led around by the nose and getting involved in protracted correspondence, I think the OP is right to act assertively and to show Parcel2Go that they will not stand for any nonsense and the prepared to escalate the matter quickly.

I'm afraid that the track record of Parcel2Go and their agents – usually Hermes – but rarely, DPD – is such that it's really not worth wasting time. I'm afraid that this is a culture that they have produced – it is not something for which we are responsible


 

[BankFodder]

I'd say give them seven days and if you don't hear anything then send them a letter or email telling them that despite their apparent investigation you still heard nothing, what's going on. Seven days after that send the letter of claim giving them 14 days you will sue them and without any further notice. In the intervening period make sure that you've accessed money claim online and open account and prepared your claim.

However – I seem to have read somewhere, maybe on this website that MCOL has suspended activities for the moment. I suggest that you check this out now. Go to money claim – open an account and see what the messages are

[BankFodder]

Sorry but I think but as this is meant to be a self-help forum, you should take some time to read the steps in bringing a small claims action in the county court. There's information all over here and I think you'll be better off doing a bit of research on it. It's not difficult