Packlink/Hermes lost ebay parcel - **Settled**

[syd16]

ok thanks, I'll submit this then on 10th August as discussed.

[syd16]

On the claim particulars section of the money claim site, it states:

 

You are required to give details of your claim in the box below. If you wish, you may also send detailed particulars direct to the defendant. 

 

Should I select the option to send detailed particulars? I wouldn't have much more detail apart from item value and postage amount which I am claiming for.

[dx100uk]

if you can fit it in within the limits of MCOL. do so.

 

dx

 

[BankFodder]

Do not send detailed poc

[syd16]

ok thanks

[syd16]

I have now submitted the claim!

[Its WAR]

I am about to issue against P2G for three lost ebay parcels. I was intending writing a slighter more detailed claim. How has your claim progressed?

 

[BankFodder]

If you have had no AOS, then today or tomorrow might be the time to apply for judgment

[syd16]

Sorry I was away so wasn't able to mention here but I have received an Acknowledgement of service and they have chosen to defend all of the claim. They have now have 28 days to file a response.

[syd16]

So on the 28th day Hermes have filed the defence below.

 

They are disputing that I have a contract with them.

 

Any thoughts? I am not sure what they mean I should be put to the strict proof to the value of the claim. It is what the customer paid for it (£319.99 item value + £2.85 postage costs + £35 court fee).

 

 

 

Quote

 

How much of the claim do you dispute?

I dispute the full amount claimed as shown on the claim form.

 

Do you dispute this claim because you have already paid it?

No, for other reasons.

 

Defence

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 serves this Defence subject to the following objection to the manner in which this claim is brought. The Particulars of Claim fail to provide details about any contractual relationship which is alleged to exist between the Claimant and the Defendant.

 

Background

3. The Defendant is and was at all material times a company limited by shares in the business of providing delivery services on a business to business, business to consumer and consumer to consumer basis.

4. In addition to providing delivery service to its own customers, the 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.

5. Packlink provides delivery services to users of the online auction site/retail site ‘eBay.co.uk’. eBay.co.uk users can opt to use the Defendant’s delivery services via Packlink. This means that the Defendant does not have any contractual relationship with
Packlink ‘s customers. They, as is the case with the Claimant, contract solely with Packlink.

6. As there is no contract between the Claimant and the Defendant, the Defendant only has limited (tracking) information about the parcel.

7. The tracking information shows that on or around 17 May 2020, the Shippers parcel entered the Defendant’s delivery network after the Claimant dropped the parcel of at one of the Defendants Parcel shops.

8. The last tracking point for the Parcel was on 18 May 2020 at the Parcelshop and therefore the Defendant accepts that the Parcel is lost.

 

The Claim Value

9. Claimant seeks to recover £357.84

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

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

 

12. This Defence is a response to the Particulars of Claim which are set out in the ‘Particulars of Claim’ on page 1 of the claim form.

Claim Form – Particulars of Claim

13. The first sentence of the Particulars of Claim is denied as the Claimant entered into a Contract with Packlink.

14. The second sentence of the Particulars of Claim is admitted, the Claimant entered into a Contract with Packlink and therefore paid Packlink for the service.

15. The third to fifth sentences of the Particulars of Claim are neither admitted nor denied and the Claimant is put to strict proof.

No contractual relationship

16. There is no contract between the Claimant and the Defendant.

17. The Claimant entered into a contract with Packlink.

18. This was made very clear during the order process.

19. The Claimant should desists with this claim and contact Packlink.

Claim for compensation

20. The Claimant claims £357.84

21. As explained above, it is denied that the Defendant owes the Claimant £357.84

 

 

 

[BankFodder]

Thanks. Absolutely no surprises here.

The next stage will be that you will get directions questionnaire and if you want to proceed then you will have to pay a further fee. I'm still very confident of your chances of success – but of course this is a judgement you will have to make for yourself.

If you decide to go on, then file the DQ with the fee – you will be asked if you want to go into mediation. Previously I've always discouraged it – but maybe you should do that because this is to be a greater emphasis on seeing an attempt to resolve the position outside the formal court process.

However, please read up on what we say here about mediation and that it is generally seen as an attempt to get you to compromise on your rights. If you go to mediation then you should stand your ground and your position should very definitely be that you want all of your money plus your costs and that if Hermes push it to a hearing then you will refer the judge to the Contracts (Rights of Third Parties) Act and also that they are acting disingenuously in your case and all other cases where they try to say that they are not bound under the rights of third parties act.

Furthermore, you should tell them at mediation that it is interesting that Hermes have changed their position because originally they declined your claim on the basis that the perfume contained alcohol which was on the prohibited items list. You will ask the mediator to inform Hermes that this point also will be brought before the courts that they are routinely using a prohibited items list to escape liability for lost items and this also is unfair.

You will tell the mediator that Hermes should realise that if this goes to court and they get a judgement against them that it will be the end of this kind of abuse of their customers once and for all.

For all of these reasons, you should stand your ground not give way – not even for a penny. Have a look at the recent Hermes stories and you will see that they have been settling and that if you're prepared to be hard-nosed, you will get your money back.
From our point of view, we would rather it went to court and there was a judgement – but your interest will be best served by letting a settlement – but all of the money that you have lost.

[syd16]

Thanks, I will consider the mediation route.

 

Just to clarify one point though, Hermes' has always stated that they are not contractually obliged and that I should be dealing with Packlink. It was Packlink who originally made the stance that the perfume is a prohibited item and therefore I am not entitled to any sort of claim.

[BankFodder]

Don't worry about it. They made the claim on behalf of Hermes

[BankFodder]

I just noticed that you put up a request for help on the other thread. I understand from that claimant that he will be along to give some details – which is very helpful.

Make sure you ask us any questions you want about your forthcoming mediation – but look at the points that I've put up on the other thread because they may well apply to you.

Of course Hermes will say that it wasn't them who talked about the prohibited items list – but you can knock that back and say that this is part of the general argument because you are inheriting contractual rights against Hermes under the contracts (rights of third parties) act 1999 – and so what Packlink says is effectively Hermes position as well. Make it clear to the mediator and to Hermes that Hermes can't distance themselves from what Packlink says.

Tell Hermes that whatever they say, if they force this matter to court then you will bring up the whole question of prohibited items for consideration by the judge – in addition to the fact that Hermes require their customers to ensure them against their own negligence or the criminality of their employees.

Also make sure that you emphasise that this is not only a breach of contract action, it is also predicated on the negligent handling of your property by Hermes.

Make it clear to Hermes that you are more than happy to go to court because you understand fully that the consequences of a judgement against them on these issues will be devastating for their business model which is simply calculated to pass the buck when their systems fail and they negligently lose or damage people's property.

[syd16]

Thanks, just to confirm my telephone mediation date is set for 19th October.

 

Appreciate my argument is slightly different to the other case but I would be interested in knowing about their experience with mediation and how whole process works from start to finish.

[BankFodder]

I think that now you have had a pretty clear explanation of the mediation process and in particular, the apparent approach by the mediator, you are in an excellent position to press your case home.

Although of course it's a good idea to rehearse your arguments and be confident of them, it seems to me that the most compelling approach to take is to make it clear to Hermes, through the mediator, that you're not prepared to give way and that the advantage to Hermes by settling that they will save further time and inconvenience – but most of all, that their systems and their unfair terms will not be exposed all over social media as a result of a judgement against them which you are sure to obtain and which you will then publish widely.

I think you should also make it clear to Hermes through the mediator that you will make as your principal issue in front of the judge that Hermes contractual terms which purport to disclaim any liability either for breaches of contract or negligence are unfair under the consumer rights act.
You should also make it clear to Hermes through the mediator that Hermes should be aware that under the consumer rights act, the judge has a duty to begin on his/her own initiative to consider the fairness or otherwise of Hermes contractual terms and you will be reminding the judge of that duty.

And finally you can get the mediator to tell Hermes that as far as you're concerned, the amount of money at stake is so little that you are happy to give it up for a chance to blow a hole through Hermes oppressive practices – which are also exactly the same kind of business model which are used throughout the courier industry.

I think these are all valid things to say. I think they will be far more important and far more effective than going through the legal basis for your argument – and I think this is the stuff that will really frighten Hermes into settling – because you can be absolutely certain that they do not want a judgement against them. If they do get a judgement against them then you will cost them millions.

In fact you can tell the mediator that you already have newspapers sniffing around waiting for the story.

[BankFodder]

I suddenly thought that it might be useful if you visited the Hermes complaints group on Facebook. There are several of them but there is one in particular which has over 12,000 members. Although the Facebook group is difficult to navigate, it might be worth your while spending an hour or so rummaging through and getting screenshots of people's complaints. If you manage to get a couple of dozen – especially some which resembled your own predicament, you could then tell the mediator that on the basis that Hermes want to go to court you will also be producing evidence of the size of the Hermes problem to the judge so that the judge will see that this is a structural and systematic way of doing business – the routine loss of parcels and the routine denial of liability even when people are "insured".

You should then point out to the mediator that no doubt the judge will have comments to make on this which will be included in his/her judgement and of which you will obtain a transcript.

I'm pretty certain Hermes wouldn't want that published to the world.

[syd16]

Great idea, thank you I will certainly take a look in Facebook.

[BankFodder]

At the very least, I think that it will give you some moral muscle if you are facing a mediator who seems to be joining forces with Hermes to be you done. They may say to you that the material is not admissible – but your riposte to that should be that it's not for them to decide and you will present it to the judge and the judge can make a decision about admissibility..

I think that you should retain an assertive attitude not only to Hermes but also to the mediator if you find that the mediator is trying to challenge you. It is not the job of the mediator to challenge either party.

Of course the mediator can suggest solutions – but it would be highly improper of the mediator to say that you should do this or you should do that.

[syd16]

So I had my mediation with Hermes and it was not successful i.e. we couldn't come to an agreement to settle out of court.

 

This was my mediation process:

 

• First call from the mediator was received at 1:03pm which was close enough to the start of my alotted time of 1pm-4:30pm. The mediator introduced themselves, confirmed the intention of the mediation and asked if I could provide a short summary of my claim and any points I would like to raise with Hermes. I mentioned the claim amount and raised the argument that Hermes inherit the liability under the Contracts (Rights of Third Parties) Act even though I booked through Packlink and that there is a systemic problem with Hermes and their business model. The mediator said they will take this to them and call back after discussing with Hermes. Call ended 1:09pm (lasted 6 minutes).

 

• Second call from the mediator was received at 1:15pm and they said that Hermes' stance is that my contract was with Packlink and not with them. Hermes mentioned they had investigated with Packlink and that I did not pay for insurance for my item but they were willing to offer me the standard claim amount of £25 plus £2.86 postage = £27.86. Of course I did not entertain that offer and I said that the whole point of having to pay extra to insure my item against their own negligence is absurd. Hermes also stated that this item was on Packlink's prohibited list. I replied that this so called list was not made clear to me when listing my item on ebay or purchasing the label through Packlink (which is ebay's affiliated choice for purchasing postage) and I would bring up the whole question of prohibited items for consideration by the judge if it goes to court. The mediator asked what I would be willing to settle at. I said I am not willing to budge from my claim amount of £357.84 which includes court costs. They reminded me that they don't see Hermes willing to accept that and that the whole point of mediation is to be willing to be flexible. I stood firm and said I am not budging from this amount and that I am being flexible by not taking Hermes to court and willing to settle now. The mediator said they will discuss with Hermes and call back. Call ended 1:27pm (lasted 12 minutes).

 

• The third call from the mediator was received at 1:32pm and they mentioned that Hermes were willing to offer £300 as a goodwill gesture plus the £2.86 postage costs = £302.86. They said £300 is the maximum they can offer to settle for this process. I stayed resolute and asserted I am not willing to go any lower than my claim amount. I said it's not so much about the money and reiterated that the routine denial of liability and having to pay extra for insurance is a systemic issue with Hermes and that I have evidence that many other customers face the same problem when using Hermes which I am willing to present to the presiding judge if this goes to court. Only if they were willing to pay me back the full claim amount then I would drop the case. The mediator did mention that taking this to court I may also lose which would mean losing further court fees (£55 I believe they mentioned as the fee) as well as time and effort in preparing for the case. I repeated that paying the extra costs and risking the money is not so much of an issue to me. I also added in there that a national newspaper are sniffing around at this story and if a judgement goes against them then I won't hesitate to share with them and across social media a copy of the transcript. The mediator asked if they were happy to share this detail to Hermes which I agreed. They said they will discuss with Hermes and call me back. Call ended 1:36pm (lasted 4 minutes). 

 

• Received the fourth and final call from the mediator at 1:39pm and they said that Hermes were not willing to improve on the offer, reiterating they would argue to the judge that my contract is not with them and is with Hermes so this case cannot be settled through the mediation process and I would receive further details on the next steps. Call ended 1:40pm (last 1 minute).

 

I am somewhat surprised that Hermes were willing to offer up to £300 plus postage costs given their arguments but would not settle by offering my full claim costs.

 

In terms of the mediator's attitude, they did add a bit of pressure in trying to get me to be flexible i.e. settle for a lower amount. I suppose it is their job to get this settled out of court. They did also mention on a couple of occasions that it may be months before this case is looked at, with the covid situation it may not be in person and that I would have to go through the motions and prepare which would take time and effort on my behalf. However as noted above in this thread I wasn't willing to settle for a lower amount so let's see how it plays in court.

 

Any advice on the next steps BankFodder?  

[BankFodder]

Like you I'm quite surprised that they stuck at 300 quid and wouldn't go the distance. It's a big risk for them if they lose and of course they may still cave in at the hearing.

Thank you very much indeed for this great explanation of what has happened. I think you need to make notes of their principal arguments and if they change those arguments during the court hearing – which I suppose is likely to be a remote hearing, then you should point this out to the judge that the mediation was conducted on a certain basis and that they are now moving the goalposts.

I'm amazed that they're still sticking by the notion that it is Packlink who are responsible and if the judge accepts that you have contractual rights under the 1999 act then this is can be extremely damaging for Hermes and all the rest of the courier companies which use brokers out of the jurisdiction. I suppose it is mainly Hermes.

Amazing that they raised the issue of the prohibited items list. It sounds to me as if they were using a shotgun approach and bringing in everything. The point you should have made in response to that is that being on the prohibited items list did not materially affect the risk of an item being lost or stolen. That could only stand a chance of protecting Hermes in the event that the kind of damage which would be risked by the prohibited item would be glass which could be broken, liquids which might be spilled, perishables which might spoil. To say that that a bottle containing some alcohol is lost because it is on the prohibited items list is absurd.
If they raise this again at the hearing then you should certainly pounce on that. In fact you should make it clear to the judge that they raised this point at mediation. If Hermes don't raise it at the hearing then you should certainly bring it up and explain to the judge that they are moving their position and that they are inconsistent.

The most important point of course is that they are insisting on "insurance" and as you clearly have understood, it is ridiculous for any company to require its customers to insure against its own negligence or the criminality of its own employees. This has to be an unfair term – and I suggest that you look very closely at the unfair terms section in the consumer rights act.
I think it's useful to point out to the judge that if it is held to be fair that customers must effectively pay for the negligence or criminality of courier companies, then this produces absolutely no incentive for the company to improve its service or to take care because they realise that the end of the day the bill for their shortcomings is paid by their customers.

If you look in the unfair terms section of the consumer rights act and also in the relevant appendices, you will also see that the judge has a duty – of his/her own initiative – to consider the fairness or otherwise of any terms of the contract. It would be a good idea if you "respectfully" pointed out to the judge this power/duty to consider the fairness or unfairness of any contractual term and I think that you certainly need to point out that Hermes routinely rely on this regardless regardless of the reason for the loss or damage.

I think also it should be pointed out that the Hermes insurance is not an opt out or opt in system. An insurance is imposed at any level. If you decline insurance then Hermes automatically confers an insurance of a certain amount. You have no opportunity to "choose" the insurance. In fact Hermes generally says in their defences that their customer "chose" the minimum level of insurance. Of course this is disingenuous because the "minimum level" of insurance is imposed on the customer. In other words an insurance scheme is foisted upon the customer like it or not.

A significant part of unfair terms is whether a customer has made a choice to go with a particular provider in order to avoid a similar insurance scheme with other providers in the same industry. The answer here is that all courier companies operate in exactly the same way and it is not possible to choose one courier company over another. In other words there is no competition in this. Whether you purchase your service through Hermes or DHL or DPD, they employ the same insurance device to oblige customers to pay for their own negligence or criminality.

This is an important point when it comes to dealing with unfair terms – that you have to show that you had no choice.

Finally I think it will be worth pointing out to a judge that Hermes have a perfectly simple solution which is to introduce price tariffs based on the value of an item. They choose not to do this. They have a basic courier fee for each item based on volume/weight – and they impose an insurance requirement as an additional service in order to protect them from their own negligence or criminality of their employees.

If Hermes instead were simply to say that it will cost £10 for an item value up to £200, £20 for an item value up to £500, £40 for an item value up to £1000 – then the value would be included in the pricing structure and this would be a completely different matter. In that way the value-based tariff would be part of their basic core service and therefore excluded from consideration as to fairness under the unfair terms rules. Because the way that Hermes and the whole of the courier industry have decided to manage their insurance cover system, it is ancillary to their core business model and therefore it is available for assessment under the unfair terms rules.
However Hermes have chosen not to do this. And they have decided in line with all of their competitors to employ a so-called "insurance" scheme – which once again is designed to get the customer to pay for the couriers own negligence et cetera. As I just pointed out, this brings the question of fairness of the terms squarely within the ambit of the unfair terms rules within the consumer rights act.

I know that I have just been rambling on quite a lot, but that's because I'm dictating this rather ad lib. as the ideas occur to me. I will leave you to untangle it and to put it all into some kind of order.

 

[BankFodder]

Incidentally, you say that the mediation didn't go well. Naturally I'm sorry that you haven't had a result – but on the other hand, maybe it brings us one step further, one step closer to a judgement which discredits some of Hermes business model and their arguments and their general oppression of their innocent customers.

 

[BankFodder]

I think I should make a further point that by this trick of Hermes saying that you "chose"'the lowest level of insurance, this has the effect of communicating to the judge that you actually decided to engage with this system and that you decided not to choose a more appropriate level of insurance.

Of course this is complete dishonesty and trickery. The judge must not be allowed to go away with the impression that you decided to engage with their insurance scheme that then tried to get away with the lowest level. The judge must understand that no one has any choice. There is never any choice and that nobody has an opportunity to decide not to engage with insurance or to engage with.

The judge must be made to understand that where Hermes says that the customer "chose" a level of insurance, this is effectively untrue.

[BankFodder]

Update??

[syd16]

Hi, have not heard anything back yet around court hearing date so just waiting now on that.