Packlink and Hermes again **Won - plus costs**

[BankFodder]

Have they still not complied with the SAR? And have you made a complaint to the ICO?

[ng67860]

No, still no response to the SAR. 

 

I filled out the online form on the ICO website to complain. 

[BankFodder]

 

Just now, ng67860 said:

No, still no response to the SAR. 

 

I filled out the online form on the ICO website to complain. 

Do you have a complaint reference number

[ng67860]

I'll have to check the screenshot I took, it's on my computer so I can confirm later today

[ng67860]

I checked and it says that due to the large number of complaints, it can take up to 3 months before my case is assigned to a case officer. Once this has happened I will get a case number. It has been almost 2 months now. 

[BankFodder]

You will have to keep on to them because I can assure you that after three months, you will very likely find that your complaint simply disappears.

The big GDPR thing that became so important a couple years ago has by largely backfired because it has produced such a volume of complaints and yet so few extra resources that the ICO and everybody else this want and the result is that data processors can get away with murder in the confident knowledge that nothing much is going to happen.

It actually used to be much better before GDPR. You could make a complaint and get a reference number within two or three days and a result within two or three weeks

[BankFodder]

  The thread has gone rather a long time and I'm slightly out of touch. Please check the below and see if it is correct and addresses all the points

Quote

 

Tracking reference: X X X X. Defendant courier company undertook to deliver claimant's digital camera value £1500 to an address in the UK. Defendants lost the parcel through their negligent handling.
The claimant seeks compensation for defendants breach of contract or alternatively negligence: £1500 + courier fee £XX

 

Data Protection: claimants served a valid request for statutory disclosure of personal data upon defendants on 01/07 2020. Defendants have not complied and are in breach of  statutory duty. This is caused distress and additional difficult to the claimant who seeks compensation of £50. Acomplaint has been made to the Information Commissioner.

Claimant seeks [do the calculation] plus interest pursuant to s.69 County Courts act 1984

 

 

I started bringing in negligence of the cause of action in case a judge would say that the third parties act does not apply to contracts based on Spanish law – which appears to be the case with Packlink – although of course the contract itself was made here in the UK

[ng67860]

Looks good to me, thanks. I'ts all uploaded, pending a final check before submitting. 

[ng67860]

Update:

 

Claim issued 01/09/2020 and Hermes filed an acknowledgement of service on 07/09/2020 ("I intend to defend all of this claim").

 

28 days have passed and there is still no defence - do I need to do anything?

 

[BankFodder]

Go onto the MoneyClaim website and see if you can apply for a judgement. If you can then go straight ahead and do it.

It may be that somehow they have overlooked it – or else it has gotten lost in the post. Go to the MoneyClaim website now and let us know

[ng67860]

Thanks. I just tried this, but I get an error:

1. You can only request Judgment by default if the required number of days have passed.

Strange, I make it over 28 days since issue?

 

 

[AndyOrch]

Its 33 including service

[BankFodder]

Yes, the 28 days runs from the date of deemed service.

 

Quote

5.7 The claim form will be deemed to be served on the fifth day after the claim was issued irrespective of whether that day is a business day or not. ‘Business day’ has the same meaning as in rule 6.2(b).

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e

[ng67860]

Thanks both, I hadn't accounted for the deemed service part. Will wait a few more days. 

[ng67860]

Hermes waited until the last moment and filed a defence ( attached).

 

As expected, they are contesting all of it, including the SAR.

 

What do you advise as a way forward?

 

Thanks

 

 

Document (2).pdf

[AndyOrch]

The usual pass the parcel to Packlink defence...wasnt us Guv.

[BankFodder]

Yes, this defence is even more facile than the usual garbage.

So basically what they're saying is that yes they lost the parcel.

They don't owe you any contractual responsibility because your contract was with Packlink

They want you to prove the value of the parcel.

On the issue of negligence by them, they want you to prove it.

They say that because they are simply the courier, that they don't have much tracking information 

 

On the question of breach of statutory duty under the data protection rules, they want you to prove it

 

 

These people are completely stupid – but we knew that anyway.

• Anyway, on the point of contractual responsibility – they are subject to the Contracts (Rights of Third Parties) Act – and they know this and frankly they're wasting everyone's time with this defence.

 

• On the point of the value of the parcel – you will have to prove this by evidence.

 

• On the issue of their negligence, clearly you can't prove their negligence because you weren't present. On the other hand, there is a legal principle called Res ipsa loquitur. This is Latin for "the thing speaks for itself" which basically means that there can't be any other possible explanation for the loss of the parcel – unless they want to say that it is standard procedure in some way for them to lose their parcels. When you assert "res ipsa" to the court, you are effectively saying that it is clear that the circumstances of the loss can't be known to you – but the only possible explanation is the defendant's negligence – and the burden of proof then passes to them to prove that they weren't negligent – which they won't be able to do.

 

• On the issue of not having enough tracking data – this is incredible! The parcel was put into their hands and remained in their hands throughout its entire journey. Packlink simply brokered the deal and organised it. They never saw the parcel or had sight of the parcel. Hermes admit that it came into their possession and they have actually supplied you with tracking evidence of that fact and they are actually supplying you with further tracking evidence showing the last time that it was seen – in their depot. How on earth they can say that they don't have enough tracking data, I have no idea and they are simply wasting everybody's time – yours and more importantly, the courts. It's extraordinary.

 

• On the question of breach of statutory duty, as long as you can show that you sent and they received a valid SAR, then they have no defence.

 

• On the issue of them being completely stupid – Res ipsa Loquitur

[AndyOrch]

res ipsa loquitur

 

(rayz ip-sah loh-quit-her) n. Latin for "the thing speaks for itself," a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. Examples:

 

a) a load of bricks on the roof of a building being constructed by Highrise Construction Co. falls and injures Paul Pedestrian below, and Highrise is liable for Pedestrian's injury even though no one saw the load fall.

b) While under anesthetic, Isabel Patient's nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage.

 

Under res ipsa loquitur all those connected with the operation are liable for negligence. Lawyers often shorten the doctrine to "res ips," and find it a handy shorthand for a complex doctrine.

[BankFodder]

You asked what you should do next.

The answer is – not very much. Wait for the directions questionnaire which will basically want the fee if you are prepared to go ahead to a hearing. It's highly likely that the hearing will be virtual rather than face-to-face. They will offer you mediation – and although frankly I don't like mediation, you have probably better say yes. However, follow the mediation link and see what we are saying about it. Hermes will see it simply as an opportunity to beat you down and to force you to compromise on the amount you are claiming.

If they really insist on defending and they refuse anything then they will push you completely to a hearing.

I shouldn't worry too much – you have an extremely good case and their defence is extremely poor by any standards.

However they are putting you to proof of the value of the item you sent – and you will have to produce this evidence.

I suggest that you start putting together some proper evidence of the value of it – including the actual value as well as the price for which you sold it.

It could be a good idea to prepare this in a very organised way and then send a copy to Hermes in advance and tell them that as they have raised the issue in their defence, you are now providing them with the evidence and they should indicate immediately whether they accept the valuation or they will be disputing it. Point out to them that it will be the in the interests of everybody's time and convenience – including the court – for the valuation to be agreed in advance so this can be flagged up to the judge or the mediator at the inevitable hearing.

If they refuse to do this then at least you will be able to show to a mediator that you have tried to reduce problems and tried to negotiate as much as possible in advance. If it goes to a judge then you will be able to show the judge the same thing and if Hermes, having disputed your valuation all the way, continue to dispute in front of a judge then that will simply go further to demonstrate their intransigence.

So prepare valuation in a very detailed and methodical way. Lots of evidence. Send a copy of it all to Hermes. Make sure that a copy of this valuation is included in your eventual court bundle

[BankFodder]

Of course, if Hermes were less stupid – and if they honestly don't realise that they have received an SAR, then they could at least mitigate their breach of statutory duty by approaching you directly and saying that they are very concerned because you apparently sent them an SAR and they haven't complied. They could then say to you that they are very anxious to remedy this and that if you would kindly send them the SAR again, they will implement it immediately and let you have the data disclosure without any further delay.

This would be a sensible and cooperative and reasonable thing to do – but of course Hermes is too stupid – as they have proved time and time again.

I don't know who runs their data protection department or their litigation department, but they are incompetent and they should be sacked

[ng67860]

On the subject of advising the OP, I have just confirmed a mediation appointment for next week. I will read up on the other users' posts as a few have already been through the process.

 

 

[BankFodder]

Any news?

[BankFodder]

We would really appreciate an update please

[ng67860]

4 hours ago, BankFodder said:

We would really appreciate an update please

 

Apologies for the delay. We were able to agree a settlement, I'll post more details in the next couple of days.

[BankFodder]

Yes please. Full details of any settlement and how it happened would be very useful for everyone who visits this forum. Thanks